Administrative law [3rd edition.] 9780409338706, 0409338702

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Administrative Law Third edition

Roger Douglas BA (Hons), LLB (Hons) (Melb), MPhil (Yale), PhD (La Trobe) Professor, La Trobe Law School, La Trobe University

Margaret Hyland LLM, LLB (Hons) (Syd), BSocWk (UNSW) Lecturer, University of Western Sydney

LexisNexis Butterworths Australia 2015

LexisNexis AUSTRALIA

ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Series: Notes: Subjects: Other Authors/Contributors: Dewey Number:

Douglas, Roger (Roger Neil) Administrative law. 3rd edition. 9780409338706 (pbk). 9780409338713 (ebk). Focus. Includes index. Administrative law — Australia. Hyland, Margaret 342.94.

© 2015 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 1999; Second edition 2004. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in ITC Slimbach and Helvetica Neue Fonts Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface This book is designed to introduce students to administrative law. Although its focus is on the judicial review of administrative decisions, we have chosen to dedicate a sizeable portion of the book to merits review by tribunals in acknowledgment of the increased intervention by the state, the prohibitively high costs of judicial review and the value and accessibility of review on the merits for ‘ordinary’ people. We also discuss the role of the Ombudsman in the review process, and briefly refer to some of the other processes whereby administrators are held accountable for their actions. Recognising the importance of information in the accountability processes, we consider access to information, both in relation to decisions which affect the individual would-be litigant, and in relation to administrative activity generally. This text is introductory and will provide you with a framework and structure for further exploration of administrative law. Reading, interpreting and applying legislation is central to administrative law. So enjoy the challenge of reading legislation as the skills you learn in administrative law will assist you in other areas of legal study and practice. To assist you in the development of your skills, we have provided a piece of legislation to be used for the tutorial problems. As you tackle these problems you will become aware of the importance of legislation in determining administrative law outcomes. Administrative law in practice goes beyond statutory interpretation and arcane bodies of knowledge. Administrative law is about the interface between the state and people’s lives. For example, in a compensation matter, the nature of the claimant’s problem must be identified; medical issues will require finding a doctor who can advise as to whether the client’s case is likely to succeed, and who can give helpful evidence and an unexpected video can show the permanently incapacitated client chopping wood. These are the kind of raw materials which make up the stories which lie behind the many cases you will read in your study of administrative law. The problems we present assume that someone has already done the hard work involved in determining ‘the facts’. The problems are intended to stimulate you to test your problem-solving skills and to provide insight into the issues raised by administrative review. The resolutions are provided as tentative answers only. They often involve tacit assumptions about the facts of the case. We realise that the stories we write will not always be read as we intended they be read. Different readers will bring different assumptions to bear when approaching these problems. As a result, they may well favour different answers. Moreover, administrative law is often fluid enough for different lawyers to be able to reach different conclusions, faced with the ‘same facts’. The first edition of this work was a joint effort, with Hayley Katzen primarily responsible for nine of the book’s 17 chapters. Since this book was first published, Hayley’s interests have changed, and Roger was responsible for the second edition. This meant that he was responsible for any errors that appear, whether they be errors in the original edition, or errors which reflect failure to take account of developments in administrative law since 1998. However, it would be both churlish and dishonest not to point out that the changes made to the second edition were relatively slight, and that this edition still draws very heavily on Hayley’s contribution to the first edition. For this reason Roger chose to persist with the use of the first person plural except where the first person singular was obviously called for. The publisher’s convention is that authorship of a new edition is ascribed to the person or persons responsible for the updating. However, the reality is that the second edition would be better described as Douglas and Katzen’s Administrative Law . The preparation of the third edition has been a joint exercise, with Margaret being responsible for the considerable upgrading required by changes to FOI law, and Roger responsible for dealing with the rise of the CATs. Those acknowledged in the first edition deserve continuing acknowledgment. These include colleagues and associates, and in particular Jeffrey Barnes at La Trobe University; Jonathan Horton; Kay Ransome, Registrar of the Administrative Appeals Tribunal; Madeline Shaw and Robin Creyke for their early comments in relation to merits review for undergraduate administrative law students. I hope that the book is the better for what I have learned from teaching administrative law at La Trobe and what Hayley learned from teaching students at Southern Cross University. We were and are also appreciative of the work of Prue McLennan, Rowena Oldfield and Michele Croucher at LexisNexis Butterworths. In connection with her work for the first edition, Hayley had financial support from the Law Foundation, and non-financial support from valued friends, particularly Cynthia Maxwell-Smith and Jen Lewis. The second and third editions have drawn on all these contributions. We would also like to thank those at LexisNexis who have been responsible for the editing of this edition. No doubt there are those whose work needs no editing, but we are not among them. So our thanks go to Serena Cubie, Mary Jane Oliver, Felicia Gardner, Pamela O’Neill and Geraldine Maclurcan. As was the case in relation to the first edition, I would particularly like to thank Robin Burns for her continuing support, and — insofar as book editing conflicts with domestic duties — forebearance. Roger Douglas Melbourne September 2014

Acknowledgments The authors and publishers are grateful to the holders of copyright in material from which extracts appear in this work, particularly to the Commonwealth Copyright Administration for the following: Annual Report 2012–2013 , Administrative Appeals Tribunal, Canberra, 2013; Better Decisions: Review of Commonwealth Merits Review Tribunals Report No 39 , Administrative Review Council, Attorney-General’s Dept, Canberra, 1995. W hile every care has been taken to establish and acknowledge copyright, the publishers tender their apologies for any accidental infringement. The publishers would be pleased to come to a suitable arrangement with the rightful owners in each case.

Table of Cases References are to paragraphs

A Ackroyd v W hitehouse (1985) … . 10.4.7 , 11.3.4 Adamou v Director-General of Social Security (1985) … . 3.5.8 Adams v Minister for Immigration and Multicultural Affairs (1997) … . 7.2.3 , 13.5.2 Adams and Tax Agents Board, Re (1976) … . 2.4.10 Ainsworth v Criminal Justice Commission (1992) … . 10.4.5 , 12.1.4 , 12.1.5 , 12.1.6 , 12.1.7 , 16.2.8 Allan v Development Allowance Authority [1998] … . 5.3.7 — v Transurban City Link Ltd (2001) … . 5.1.7 Alphapharm Pty Ltd v†Smithkline Beecham (Australia) Pty Ltd (1994) … . 5.1.5 Anisminic Ltd v Foreign Compensation Commission [1969] … . 4.4.3 Annetts v McCann (1990) … . 10.4.2 Ansell v W ells (1982) … . 11.1.15 Ansett Transport Industries Operations Ltd v Commonwealth (1977) … . 7.2.6 Ansett Transport Industries (Operations) Pty Ltd v Department of Aviation (1987) … . 11.1.10 — v W raith (1983) … . 13.1.1 , 13.3.11 Anti-Fluoridation Association of Victoria and Secretary, Department of Health, Re (1985) … . 14.3.29 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) … . 11.1.4 , 11.1.10 ARM Constructions Pty Ltd v Deputy Federal Commissioner of Taxation (NSW ) (1986) … . 13.3.11 Associated Picture Houses Ltd v W ednesbury Corporation [1948] … . 9.1.1 Aston and Secretary, Department of Primary Industry, Re (1985) … . 2.2.12 Attorney-General (HK) v Ng Yuen Shiu [1983] … . 10.3.11 Attorney-General (NSW ) v Kennedy Miller Television Pty Ltd [1998] … . 13.2.3 — v Quin (1990) … . 7.3.4 , 7.3.5 , 10.3.11 , 12.1.5 Attorney-General (UK) v Heinemann Publishers (Australia) Pty Ltd (1988) … . 4.3.6 Australian Broadcasting Tribunal v Bond (1990) … . 2.4.5 , 3.6.3 , 4.2.6 , 4.2.7 , 8.1.4 , 9.1.3 , 9.2.2 , 9.2.3 , 9.2.5 , 9.2.6 , 11.1.16 Australian Capital Television Pty Ltd v Commonwealth (1992) … . 1.2.4 Australian Conservation Foundation Inc v Commonwealth (1980) … . 5.1.2 , 5.1.7 , 5.2.1 , 5.2.2 , 5.3.6 , 5.3.8 , 5.3.9 — v Minister for Resources (1989) … . 5.3.6 , 5.3.8 Australian Heritage Commission v Mount Isa Mines Ltd (1995) … . 9.2.4 — v— (1997) … . 9.2.4 Australian National University v Burns (1982) … . 4.2.9 Australian Postal Commission v Hayes (1989) … . 3.5.9 , 11.1.15 — v Matusko (1996, unreported) … . 3.6.3 — v Nguyen (1996) … . 3.6.3 Australian Railways Union v Victorian Railway Commissioners (1930) … . 5.5.4 Australian Securities Commission v Somerville (1994) … . 13.5.2 Azevedo v Secretary, Department of Primary Industries and Energy (1992) … . 2.2.3

B Banks v Transport Regulation Board (Vic) (1968) … . 10.3.6 Baran and Secretary, Department of Primary Industries and Energy, Re (1988–90) … . 2.4.9 Barbaro v Minister for Immigration and Ethnic Affairs (1982) … . 3.5.11 Barbaro and Minister for Immigration and Ethnic Affairs, Re (1980) … . 3.5.11

Bateman’s Bay Local Aboriginal Land Council v Aboriginal Benefit Fund Ltd (1998) … . 5.1.2 , 5.1.3 , 5.1.7 , 12.1.8 Becker and Minister for Immigration and Ethnic Affairs, Re (1977) … . 2.2.12 Bilbao v Farquhar [1974] … . 5.3.11 Bird v Minister for Schools, Vocational Education and Training (1994) … . 11.2.15 Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) … . 13.3.11 Bleicher v Australian Capital Territory Health Authority (1990) … . 14.3.10 Bogaards v McMahon (1988) … . 2.4.11 , 2.4.12 Bond v Australian Broadcasting Tribunal (No 2) (1988) … . 11.1.5 , 11.1.6 Booth v Dillon [1976] … . 15.2.8 Boyce v Paddington Borough Council [1903] … . 5.1.3 Boyd and Comcare, Re (1991) … . 2.5.9 Bragg v Secretary, Department of Employment, Education and Training (1995) … . 17.1.3 Brandy v Human Rights and Equal Opportunity Commission (1995) … . 1.2.6 , 1.2.7 , 5.6.3 Bread Manufacturers of New South W ales v Evans (1981) … . 10.4.11 Breen v W illiams (1994) … . 5.6.2 — v— (1996) … . 14.3.12 Brennan and the Law Society of the Australian Capital Territory, Re (1984) … . 14.3.9 Brian Lawlor Automotive Pty Ltd and Collector of Customs, New South W ales, Re (1978) … . 2.4.7 British Columbia Development Corp and Friedmann, Re (1984) … . 15.2.7 , 15.2.9 Bropho v Tickner (1993) … . 5.6.1 , 5.6.2 BTR Plc v W estinghouse Brake and Signal Co (Australia) Ltd (1992) … . 13.3.10 Buckfield and Repatriation Commission, Re (1993) … . 3.4.1 Buksh v Minister for Immigration, Local Government and Ethnic Affairs (1991) … . 6.1.3 Burns and Australian National University, Re (1984) … . 14.3.20 Bushell v Repatriation Commission (1992) … . 3.5.4

C Cains v Jenkins (1979) … . 11.1.17 , 11.2.19 Calvin v Carr [1977] … . 4.4.3 — v— [1980]; (1979) … . 10.4.7 , 11.3.4 , 12.1.5 Canwest Global Communications Corp v Australian Broadcasting Authority [1998] … . 13.5.2 Carey and Collector of Customs, Queensland, Re (1978) … . 2.4.8 Carltona Ltd v Commissioners of W orks [1943] … . 6.4.4 Century Metals and Mining NL v Yeomans (1989) … . 10.3.8 , 11.2.20 Chairperson, Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1995) … . 15.2.15 Chan v Minister for Immigration, Local Government and Ethnic Affairs (1991) … . 12.1.15 Chelfco Ninety-Four Pty Ltd v Road Traffic Authority [1985] … . 5.3.10 Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) … . 11.1.13 Church of Scientology v W oodward (1982) … . 4.3.4 Cinkovic and Repatriation Commission, Re (1990) … . 3.5.3 City of Enfield v Development Assessment Commission (2000) … . 9.2.4 City of Salisbury v Biganovsky (1990) … . 15.2.8 Cleary and Department of Treasury, Re (1993) … . 14.1.1 Collector of Customs v AGFA-Gevaert Ltd (1996) … . 1.2.8 — v Pozzolanic Enterprises Ltd (1993) … . 1.2.8 Collector of Customs (NSW ) v Brian Lawlor Automotive Pty Ltd (1979) … . 2.4.4 , 2.4.9 Collector of Customs (Tas) v Flinders Island Community Association (1985) … . 11.1.9 Comcare Australia v Grimes (1994) … . 2.4.13 Comcare v A’Hearn (1993) … . 4.5.1

Commissioner of Police v Tanos (1958) … . 10.4.3 Commissioner of State Revenue v Anderson [2004]; (2004) … . 13.3.10 Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) … . 12.1.9 Commonwealth v Northern Land Council (1993) … . 13.4.2 , 13.4.3 — v Pharmacy Guild of Australia (1989) … . 13.1.1 — v Sciacca (1988) … . 2.4.12 Community and Public Sector Union v W oodward (1997) … . 4.3.5 Comptroller-General of Customs v Akai (1994) … . 2.2.3 Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1), Re (1980) … . 2.5.3 , 2.5.4 , 2.5.8 — (No 2), Re (1981) … . 2.2.2 Cooper v W andsworth Board of W orks (1863) … . 10.2.1 , 10.3.1 , 11.1.13 , 12.1.2 , 12.1.15 Corporate Affairs Commission v Bradley [1974] … . 5.5.2 , 5.5.3 Corporation of City of Enfield v Development Assessment Commission (2000) … . 12.1.2 Council of Civil Service Unions v Minister for Civil Service [1985]; [1984] … . 4.3.3 , 6.1.4 , 10.3.8 , 10.4.3 Courtney v Peters (1990) … . 10.4.6 Craig v South Australia (1995) … . 2.2.5 , 4.4.3 , 8.1.3 , 12.1.4 Criminal Justice Commission v Connolly [1997] … . 16.2.8 Cudgen Rutile (No 2) Pty Ltd v Chalk (1974); [1975] … . 7.3.5 Curragh Queensland Mining Ltd v Daniel (1992) … . 9.2.6 Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] … . 13.2.3

D Dahlia Mining Co Ltd v Collector of Customs (1989) … . 1.2.6 Dainford Ltd v Independent Commission Against Corruption (1990) … . 11.1.5 Davis v Commonwealth (1986) … . 5.3.6 Devine and Commonwealth, Re (1982) … . 2.4.11 Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1994) … . 9.2.4 Dickinson v Perrignon [1973] … . 5.3.11 Dietrich v R (1992) … . 11.1.18 Dimes v Proprietors of Grand Junction Canal Pty (1852) … . 11.2.7 Director-General of Social Services v Chaney (1980) … . 3.6.3 — v Hales (1983) … . 2.4.5 Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis [2012] … . 11.1.11 Ditfort; Ex parte Deputy Commissioner of Taxation (NSW ), Re (1988) … . 4.3.4 Dornan v Riordan (1990) … . 13.3.10 , 13.3.12 Drake v Minister for Immigration and Ethnic Affairs (1979) … . 2.2.3 , 2.2.4 , 2.2.10 , 2.2.12 Drake and Minister for Immigration and Ethnic Affairs (No 2), Re (1979) … . 2.2.10 , 2.2.11 , 6.3.11 , 7.3.3 Du Pont (Australia) v Comptroller-General of Customs (1993) … . 17.1.3 Dyrenfurth and Department of Social Security, Re (1987) … . 14.3.17 Dyson v Attorney- General [1911] … . 12.1.2

E Eastman v Commissioner for Social Housing [2010] … . 7.3.5 Ebner v Official Trustee in Bankruptcy (2000) … . 11.2.3 — v— (2001); [2000] … . 11.2.7 Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re [1993] … . 14.1.4 Edelsten v Federal Commissioner of Taxation (1989) … . 10.4.8 Elliott v Australian Securities and Investments Commission (2004) … . 11.1.18 — v Knott [2002] … . 12.1.2 Esber v Commonwealth (1992) … . 2.2.5

Ewatt v Lonie [1972] … . 11.2.14

F FAI Insurances Ltd v W inneke (1981) … . 11.1.14 — v— (1982) … . 7.2.3 , 10.3.3 , 10.3.4 , 10.3.6 , 10.3.8 , 12.1.5 Federal Airports Corporation v Aerolineas Argentinas (1997) … . 12.1.15 Fleming v R (1998) … . 13.2.2 Fletcher v Federal Commissioner of Taxation (1988) … . 2.4.7 Flynn v Director of Public Prosecutions [1998] … . 12.1.2 Foley v Padley (1984) … . 6.5.1 Fordham v Evans (1987) … . 5.4.3 Fordham and Victoria v Evans (1987) … . 5.4.4 Forster v Jododex Australia Pty Ltd (1972) … . 12.1.5 , 12.2.1 Forster, Ex parte; Re University of Sydney (1963) … . 6.4.4 Francis v Attorney-General (Qld) [2008]; (2008) … . 10.4.8

G Galea and Secretary, Department of Social Security, Re (1994) … . 3.5.2 Ganchov and Commissioner for Safety, Rehabilitation and Compensation of Commonwealth Employees, Re (1990) … . 2.2.13 Garcia v National Australia Bank Ltd (1998) … . 5.6.3 Gay Solidarity Group and Minister for Immigration and Ethnic Affairs, Re (1983) … . 2.5.4 Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1987) … . 6.3.11 Glennister v Dillon [1976] … . 15.2.7 Glynn v Independent Commission Against Corruption (1990) … . 11.2.5 — v Keele University [1971] … . 11.3.2 Gordon M Jenkins and Associates Pty Ltd v Coleman (1989) … . 11.1.9 Gouriet v Union of Post Office W orkers [1978] … . 1.1.3 Green v Daniels (1977) … . 6.3.12 , 12.1.5 Greenham and Minister for the ACT, Re (1979) … . 3.2.1 Greiner v ICAC (1992) … . 16.2.8 Griffith University v Tang (2005); [2005] … . 4.2.9

H Hall v University of New South W ales [2003] … . 11.1.15 Hamblin v Duffy (1981) … . 3.6.2 Hancock v Executive Director of Public Health [2008] … . 13.2.2 Haoucher v Minister for Immigration and Ethnic Affairs (1990) … . 10.3.7 , 10.3.8 , 10.4.4 , 11.1.8 Harrigan v Department of Health (1986) … . 3.6.6 Harris v Australian Broadcasting Corporation (1983) … . 14.3.28 — v Caladine (1991) … . 2.2.5 Heatley v Tasmanian Racing and Gaming Commission (1977) … . 10.3.3 , 10.3.7 , 10.3.8 , 11.1.13 , 11.1.14 Helena Valley/Boya Association (Inc) v State Planning Commission (1990) … . 5.2.1 Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) … . 11.1.8 Hodgens v Gunn; Ex parte Hodgens [1990]; (1989) … . 11.3.1 , 12.2.2 Hospital Benefit Fund of W estern Australia Inc v Minister for Health, Housing and Community Services (1992) … . 2.4.13 Hot Holdings Pty Ltd v Creasey (2002) … . 11.2.20 Howard and Treasurer of Commonwealth, Re [1985] … . 14.3.19 Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) … . 5.6.3 Hunter Developments Pty Ltd v Cohen (1984) … . 3.2.4 Hunter Valley Developments Pty Ltd v Cohen (1984) … . 4.5.1

Hurt v Rossall (1982) … . 11.1.15

I Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] … . 5.1.7 IW v City of Perth (1997) … . 8.3.2

J James and Australian National University, Re (1984) … . 14.3.20 Jeffs v New Zealand Dairy Production and Marketing Board [1967] … . 11.1.11 John Fairfax and Sons Ltd v Australian Telecommunications Commission [1977] … . 12.1.12 — v Police Tribunal of New South W ales (1986) … . 5.2.1 Johns v Australian Securities Commission (1993) … . 10.4.5 — v Release on Licence Board (1987) … . 11.1.2 Johnson v Sammon (1974) … . 5.6.1 Judiciary and Navigation Acts, Re (1921) … . 4.3.5

K Kable v Director of Public Prosecutions (NSW ) (1996) … . 1.2.5 , 4.3.7 , 16.2.5 Kamminga and Australian National University, Re (1992) … . 14.3.19 , 14.3.21 Kavvadias v Commonwealth Ombudsman (1984) … . 14.1.3 — v— (No 1) (1984) … . 15.2.16 — v— (No 2) (1984) … . 15.2.15 , 15.2.16 Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) … . 11.1.20 , 11.2.12 , 11.2.17 Kembi (Cox Peninsula) Land Claim (1988, unreported) … . 8.3.2 Khan v Armaguard Ltd [1994] … . 3.5.9 Kioa v W est (1985) … . 5.2.1 , 10.1.2 , 10.3.4 , 10.3.6 , 10.3.7 , 10.3.8 , 10.3.10 , 10.4.1 , 10.4.3 , 10.4.8 , 10.4.9 , 11.1.2 , 11.1.4 , 11.1.6 , 11.1.7 , 11.1.12 , 11.3.2 Kirk v Industrial Relations Commission of New South W ales (2010); [2010] … . 4.2.2 , 4.4.6 , 4.4.7 Knight and Comcare, Re (1994) … . 3.5.14 — , Re (1995) … . 3.2.1 Koppen v Commissioner for Community Relations (1986) … . 11.2.9 Krstic v Australian Telecommunications Commission (1988) … . 11.1.17 , 11.1.19 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) … . 2.2.7

L Lamb v Moss (1983) … . 12.2.1 Lander and Australian Taxation Office, Re (1985) … . 14.3.23 Lange v Australian Broadcasting Commission (1997) … . 5.6.3 Laws v Australian Broadcasting Tribunal (1990) … . 11.2.2 , 11.2.3 , 11.2.5 , 11.2.22 Lear and Department of Transport and Communications, Re (1988–89) … . 2.4.9 , 4.1.1 Leghaei v Director-General of Security [2005] … . 11.1.4 Lehtovaara v Acting Deputy Commissioner of Patents (1981) … . 2.2.5 Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) … . 13.1.2 Levy v Victoria (1997) … . 5.5.3 Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) … . 10.4.4 , 11.1.11 Lindsey and Australian Postal Commission, Re (1989) … . 3.5.12 Littlejohn and Secretary, Department of Social Security, Re (1989) … . 2.2.13 Livesey v New South W ales Bar Association (1983) … . 11.2.5 , 11.2.17 Lloyd v Costigan (1985) … . 13.5.2 Loschiavo and Secretary, Department of Housing and Construction, Re (1980) … . 2.5.5 Lucire and Commonwealth Ombudsman, Re (1983) … . 15.2.16

Lumsden and Secretary, Department of Social Security, Re (1986) … . 2.2.12 LVR (W A) Pty Ltd v Administrative Appeals Tribunal [2012] … . 3.5.3 Lynch and Minister for Health, Re (1995) … . 2.2.9

M Macquarie University, Re; Ex parte Ong (1989) … . 11.1.4 , 11.1.11 , 11.2.21 Maher and Attorney-General’s Department, Re (1985) … . 14.3.17 Mahon v Air New Zealand Ltd [1984] … . 11.1.16 Majar v Northern Land Council (1991) … . 11.1.18 Maloney v New South W ales National Coursing Association Ltd [1978] … . 11.2.19 Marine Hull and Liability Insurance Co Ltd v Hurford (1985) … . 10.4.6 , 10.4.8 — v— (1986) … . 10.4.6 Marine W orld Victoria Ltd and Minister for Arts, Heritage and the Environment, Re (1986) … . 2.5.9 Martin and Commonwealth, Re (1982) … . 2.2.7 Maurice, Re: Ex parte Attorney-General (NT) (1987) … . 11.2.13 McAuliffe v Secretary, Department of Social Security (1991) … . 13.3.11 McBeatty v Gorman [1975] … . 17.1.3 McDonald v Director-General of Social Security (1984) … . 3.5.3 , 3.5.4 McHattan and Collector of Customs (NSW ), Re (1977) … . 2.5.3 McIlraith v Institute of Chartered Accountants in Australia [2003] … . 13.2.3 McKinnon v Secretary, Department of Treasury (2006) … . 14.3.18 Meagher v Stevenson (1993) … . 17.1.3 Mercantile Credits Ltd v FCT (1985) … . 17.1.3 Midland Metals Overseas Ltd v Comptroller- General of Customs (1991) … . 2.4.12 Minister for Aboriginal Affairs v Peko-W allsend Ltd (1986) … . 6.4.4 , 6.4.5 , 8.2.4 Minister for Arts, Heritage and Environment v Peko-W allsend Ltd (1987) … . 1.2.3 , 4.3.4 Minister for Health v Thomson (1985) … . 11.1.9 Minister for Immigration and Citizenship v Li (2013); [2013] … . 3.5.8 , 9.1.1 , 9.1.3 , 9.1.4 Minister for Immigration and Ethnic Affairs v Conyngham (1986) … . 12.1.14 — v Daniele (1981) … . 2.4.12 — v Guo (1997) … . 12.1.6 — v Pochi (1980) … . 3.5.12 , 9.2.5 , 11.1.16 , 13.3.1 , 13.3.12 — v Teoh (1995) … . 8.2.5 , 10.3.8 , 10.3.9 , 10.3.10 — v W u Shan Liang (1996) … . 13.1.2 , 13.3.11 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) … . 2.4.11 , 7.3.5 — v Jia (2001) … . 11.2.20 — v Rajamanikkam (2002) … . 9.2.6 — v Yusuf (2001) … . 13.3.7 , 13.3.10 , 13.3.11 Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003); [2003] … . 9.2.4 — , Re; Ex parte Epeabaka (2001); [2001] … . 11.2.13 — , Re; Ex parte Lam (2003); [2003] … . 7.3.5 , 10.3.10 , 10.3.11 , 11.1.11 , 11.3.2 — , Re; Ex parte Miah (2001) … . 10.4.3 , 10.4.6 , 10.4.9 , 11.3.1 — , Re; Ex parte Palme (2003) … . 13.1.1 , 13.3.10 Minister for Immigration and Multicultural and Indigenous Affairs v W ong [2002] … . 13.5.2 Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) … . 7.3.5 , 11.1.10 Minister for Industry and Commerce v Tooheys Ltd (1982) … . 4.2.8 Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) … . 9.1.3 Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth) … . 2.2.4 Morales v Minister for Immigration and Ethnic Affairs (1995, unreported) … . 3.6.5 Mulheron and Australian Telecommunications Corporation, Re (1991) … . 2.4.14

N NAIS v Minister for Immigration and Multicultural and Indigneous Affairs (2005) … . 11.1.22 Nation and Repatriation Commission, Re (1994) … . 2.4.12 National Companies and Securities Commission v News Corporation Ltd (1984) … . 10.4.5 , 11.1.15 NEAT Domestic Trading Pty Ltd v AW B Ltd (2003); [2003] … . 4.2.9 Nevistic v Minister for Immigration and Ethnic Affairs (1981) … . 2.2.11 New South W ales v Canellis (1994) … . 11.1.18 — v Kable [2013] … . 8.1.3 — v Macquarie Bank Ltd (1992) … . 9.1.4 New South W ales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) … . 6.3.11 , 9.1.5 Nicholson and Secretary, Department of Social Security, Re (1991) … . 2.4.14 North Coast Environmental Council Inc v Minister for Resources (No 2) (1994) … . 5.3.7

O O’Brien v Repatriation Commission (1984) … . 13.3.11 O’Keeffe Nominees Pty Ltd v BP Australia Ltd And Trade Practices Commission (Intervener) (1995) … . 5.5.2 O’Reilly v Commissioners of State Bank of Victoria (1982) … . 6.4.4 , 6.4.5 O’Reilly, Re; Ex parte Australena Investments Pty Ltd, Re (1983) … . 12.1.11 O’Rourke v Miller (1985) … . 11.1.15 O’Sullivan v Farrer (1989) … . 14.3.19 Oatmont Pty Ltd v Australian Agricultural Co Ltd (1991) … . 5.3.6 Ogle v Strickland (1987) … . 5.3.2 , 5.3.4 , 5.3.6 Onus v Alcoa of Australia Ltd (1981) … . 5.1.9 , 5.2.3 , 5.3.6 , 5.3.7 Osmond v Public Service Board of New†South W ales [1984] … . 13.2.2 , 13.2.3 Our Town FM Pty Ltd v†Australian Broadcasting Tribunal (1987) … . 13.1.1 Owens v Australian Building Construction Employees and Builders Labourers Federation (1978) … . 5.5.2

P Palmer and Minister for the Australian Capital Territory, Re (1978) … . 13.3.8 Pancontinental Mining v Barns (1994) … . 4.2.13 Parisienne Basket Shoes Pty Ltd v W hyte (1938); [1938] … . 9.2.4 Parramatta City Council v Pestell (1972); [1972] … . 9.1.5 Paull v Munday (1976) … . 6.5.1 Pearlman v Keepers and Governors of Harrow School [1971] … . 4.4.3 Peninsula Anglican Boys’ School v Ryan (1985) … . 6.3.11 Perder Investments Pty Ltd v Lightowler (1990) … . 7.3.3 Perring v Australian Postal Corporation (1993) … . 3.5.5 Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) … . 4.3.6 Pettitt v Dunkley [1971] … . 13.2.2 Pfizer Pty Ltd v Birkett (2000) … . 11.1.9 Plaintiff M47/2012 v Director-General of Security [2012] … . 6.5.1 Plaintiff S157/2002 v Commonwealth (2003) … . 4.4.4 , 4.4.5 , 4.5.1 , 12.1.5 Pochi and Minister for Immigration and Ethnic Affairs, Re (1979) … . 3.5.12 , 3.5.13 Polites, Re; Ex parte Hoyts Corp Pty Ltd (No 2), Re (1991) … . 11.2.8 , 11.2.9 Prasad v Minister for Immigration and Ethnic Affairs (1985) … . 9.1.4 Prica and Comcare, Re (1996) … . 3.5.9 Project Blue Sky Inc v Australian Broadcasting Authority (1998) … . 6.6.1 , 6.6.2 , 13.3.10 Prosser and Australian Telecommunications Corporation, Re (1989) … . 14.3.21 Public Service Board of New South W ales v Osmond (1986) … . 12.1.5 , 13.1.2 , 13.2.1 , 13.2.2 , 13.2.3

Q Queensland Medical Laboratory v Blewett (1988) … . 4.2.8 , 10.4.2 , 10.4.11 Queensland Mines Ltd and Export Development Grants Board, Re (1983–85) … . 2.4.7 Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority (No 3), Re (1992) … . 3.3.2

R R v Anderson; Ex parte Ipec-Air Pty Ltd (1965); [1965] … . 7.2.5 , 12.1.10 — v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) … . 5.5.5 — v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953); [1953] … . 11.2.11 — v Civil Service Appeal Boards; Ex parte Cunningham [1991] … . 13.2.3 — v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) … . 11.2.3 , 11.2.18 — v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] … . 10.3.2 , 10.3.3 — v Galvin; Ex parte Bowditch (1979) … . 12.2.2 — v Hickman; Ex parte Fox and Clinton (1945) … . 4.4.4 , 4.4.5 — v Higher Education Funding Council; Ex parte Institute of Dental Surgery [1994] … . 13.1.2 — v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (No 2) (1978) … . 11.2.13 — v Inland Revenue Commissioners; Ex parte National Federation of Self- Employed and Small Businesses Ltd [1980] … . 5.1.5 — v Judge of District Courts and Shelley; Ex parte Attorney-General [1991] … . 11.2.15 — v Liquor Commission of the Northern Territory; Ex parte Pitjantjatjara Council Inc (1984) … . 12.2.2 — v London County Council; Ex parte Empire Theatre (1894) … . 11.2.11 — v Ludeke (1985) … . 5.5.1 — v Magistrate’s Court at Lilydale; Ex parte Ciccone [1973] … . 11.2.8 — v Merthyr Tydfil Justices; Ex parte Jenkins [1967] … . 11.1.21 — v Metropolitan Police Commissioner; Ex parte Parker [1953] … . 10.3.6 — v Milk Board; Ex parte Tomkins [1944] … . 11.1.9 — v Murphy (1986) … . 5.6.3 — v Rankine River Justices; Ex parte Sydney (1962) … . 11.2.16 — v Revising Barrister for Borough of Henley [1912] … . 12.1.11 — v Thames Magistrate’s Court; Ex parte Polemis [1974] … . 11.1.3 — v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981) … . 7.2.3 , 12.1.10 — v Trade Practices Tribunal; Ex parte Tasmanian Breweries Ltd (1971) … . 14.1.4 — v W ar Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) … . 11.1.15 — v W atson; Ex parte Armstrong (1976) … . 11.2.2 , 11.2.4 — v W ilson; Ex parte Kirsch (1934) … . 7.1.3 Rajski v W ood (1989) … . 11.2.14 , 11.2.15 Rana v Military Rehabilitation and Compensation Commission (2011); [2011] … . 2.4.13 Reference under Ombudsman Act, Re; Ex parte Director-General of Social Services, Re (1979) … . 6.4.4 Reference under Section 11 of Ombudsman Act 1976 for an Advisory Opinion, Re; Ex parte Director-General of Social Services (1979) … . 15.2.23 Refugee Review Tribunal, Re; Ex parte Aala (2000) … . 11.3.2 , 12.1.2 , 12.2.1 Registrar, Social Security Appeals Tribunal, Re: Ex parte Townsend (1995) … . 1.2.7 Reid v Nairn (1985) … . 13.5.2 Rennie and Defence Forces Retirement and Death Benefits Authority, Re (1979) … . 2.4.5 Repatriation Commission v Bushell (1991) … . 13.3.11 Repatriation Commission and Delkou, Re (1985) … . 3.3.1 Richmond River Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1992) … . 11.2.12 Ridge v Baldwin [1964]; [1963] … . 10.3.3 , 11.3.1

Right to Life Association (NSW ) Inc v Secretary, Department of Human Services and Health (1994) … . 5.3.7 , 5.3.8 Roadshow Films Pty Ltd v iiNet Ltd (No 1) (2011) … . 5.5.3 , 5.6.1 Roberts v Hopwood [1925] … . 8.2.3 Robinson v W estern Australian Museum (1977) … . 5.1.4 Ruhani v Director of Police (No 2) (2005) … . 12.2.2

S SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) … . 11.3.2 Samrein Pty Ltd v Metropolitan W ater, Sewerage and Drainage Board (1982) … . 8.3.2 Sankey v W hitlam (1978) … . 13.4.2 , 13.4.3 Sanyo Australia Pty Ltd and Comptroller-General of Customs (Matsushita Electric Co (Aust) Pty Ltd and Akai Pty Ltd; parties joined), Re (1994) … . 2.5.10 Saraceni v Australian Securities and Investments Commission (2013) … . 10.4.5 SAT FM v Australian Broadcasting Authority (1997) … . 4.2.8 Sawmillers Exports Pty Ltd and Minister for Resources, Re (1996) … . 2.4.10 Schmidt v Secretary of State for Home Affairs [1969] … . 10.3.7 Sean Investments Pty Ltd v MacKellar (1981) … . 13.3.10 Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) … . 14.3.35 Secretary, Department of Social Security v Riley (1987) … . 2.4.7 Secretary, Department of Social Security and Glanville, Re (1994) … . 3.3.1 Secretary, Department of W orkplace Relations and Small Business v Staff Development and Training Centre Pty Ltd (2001) … . 14.3.19 Shewcroft and Australian Broadcasting Corporation, Re (1985) … . 14.3.29 Shire of Beechworth v Attorney-General (Vic) [1991] … . 5.3.10 Shop, Distributive and Allied Employers Association v Minister for Industrial Affairs (1995) … . 5.2.1 Sinclair v Mining W arden at Maryborough (1975) … . 5.3.8 , 5.3.9 , 14.1.4 Singh (Heer) v Minister for Immigration and Ethnic Affairs (1987, unreported) … . 11.1.21 Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) … . 11.1.8 Soldatow v Australia Council (1991) … . 13.3.12 Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1990) … . 11.1.8 Sordini v W ilcox (1983) … . 13.3.10 Soulemezis v Dudley (Holdings) Pty Ltd (1987) … . 13.1.1 , 13.3.10 , 13.3.12 South Australia v O’Shea (1987) … . 10.4.10 , 11.1.2 , 14.3.5 — v Tanner (1989) … . 9.1.4 — v Commonwealth (1962) … . 4.3.4 Stead v State Government Insurance Commission (1986) … . 11.3.2 Steed v Minister for Immigration and Ethnic Affairs (1981) … . 13.3.11 Stollery v Greyhound Racing Control Board (1972); [1972–1973] … . 11.2.21 Styles v Secretary, Department of Foreign Affairs and Trade (1988) … . 12.2.3 Sullivan v Department of Transport (1978) … . 3.5.5 , 3.5.7 , 3.5.8 , 11.1.20 Sunshine Coast Broadcasters Ltd v Duncan (1988) … . 9.1.5 Sutherland Shire Council and Department of Industry, Science and Resources, Re (2001) … . 14.3.19 Svecova v Industrial Commission of New South W ales (1991) … . 4.4.1 Szajntop v Gerber (1992) … . 4.2.13 Szelagowicz v Stocker (1994) … . 9.2.3 , 9.2.6

T Tasmanian Conservation Trust Inc v Minister For Resources and Gunns (1995) … . 5.3.7 Taxation Appeals NT 94/281–NT94/29, Re (1995) … . 3.5.9 Telecasters North Queensland Ltd v Australian Broadcasting Tribunal (1988) … . 5.4.4 , 5.4.5 Testro Bros Pty Ltd v Tait (1963) … . 10.3.2

Thomas v Appleton (1994) … . 12.2.2 Thompson v Randwick Municipal Council (1950); [1950] … . 8.3.1 , 8.3.2 Thorpe v Commonwealth (No 3) (1997) … . 4.3.5 — v Minister for Aboriginal Affairs (1990) … . 6.3.5 Tickner v Chapman (1995) … . 6.4.5 Titan v Babic (1994) … . 3.5.5 Toohey (Aboriginal Land Commissioner), Re; Ex parte Northern Land Council (1981) … . 8.3.1 , 8.3.2 Toohey, Re; Ex parte Meneling Station Pty Ltd (1982) … . 8.2.4 Tooheys Ltd v Minister for Business and Consumer Affairs (1981) … . 5.1.9 , 5.3.4 Tradigrain Australia Pty Ltd and Export Development Grants Board, Re (1984) … . 2.4.7 Troughton v Deputy Commissioner of Taxation [2008] … . 7.3.2 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) … . 5.1.3 , 5.2.1 Tuite v Allen (1993) … . 4.2.13 Turner v Minister for Immigration and Ethnic Affairs (1981) … . 2.2.2 Twist v Council of the Municipality of Randwick (1976) … . 10.4.6 , 11.3.1

U United States Tobacco Co v Minister for Consumer Affairs (1988) … . 5.3.9 , 5.4.3 , 5.4.4 , 5.6.2 , 5.6.3

V Vakauta v Kelly (1989) … . 11.2.11 , 11.2.12 , 11.2.17 , 11.3.5 Vietnam Veterans’ Association of Australia New South W ales Branch Inc v Gallagher (1994) … . 11.2.14 Vincent and Minister for Immigration and Ethnic Affairs, Re (1978) … . 2.5.5

W W A Pines Pty Ltd v Bannerman (1980) … . 13.5.2 W alker v Industrial Court of New South W ales … . 4.4.3 W ang and Migration Agents’ Board (1996, unreported), Re … . 3.3.1 W arringah Shire Council v Pittwater Provisional Council (1992) … . 8.3.2 , 8.3.3 W atson v Lee (1979) … . 6.6.1 , 6.6.3 , 12.1.5 W ebb v R (1994) … . 11.2.4 , 11.2.5 , 11.2.7 , 11.2.10 , 11.2.18 W estern Australian Field and Game Association Inc v Pearce (1992) … . 12.1.10 W etzel v District Court of New South W ales (1998) … . 7.3.2 W halley v Commissioner of Police [2003] … . 13.2.3 , 13.3.3 W hite v Ryde Municipal Council [1977] … . 11.1.11 , 11.1.14 W illiams and Australian Electoral Commission (and The Greens as party joined), Re (1995) … . 3.4.3 W ilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) … . 1.2.6 , 2.2.1 , 16.2.5

X X v McDermott (1994) … . 11.1.17

Y Yarmirr v Australian Telecommunications Corporation (1990) … . 12.1.10 Yates v Keating (1990) … . 5.3.6

Table of Statutes References are to paragraphs

Commonwealth Acts Interpretation Act 1901 s 8 … . 2.2.5 s 22(a) … . 14.3.22 s 25D … . 13.3.2 s 34A … . 6.4.2 s 34AA … . 6.4.2 s 34AB … . 6.4.2 , 6.4.3 Administrative Appeals Tribunal Act 1975 … . 1.3.2 , 2.1.7 , 2.2.9 , 13.3.2 s 3(2) … . 2.2 s 3(3) … . 2.4.4 s 3(3)(g) … . 2.4.6 s 14 … . 11.2.7 s 20(1A) … . 3.3.7 s 25 … . 2.4.3 , 2.4.9 s 25(5) … . 2.4.6 s 26 … . 2.4.9 s 27 … . 2.5.2 s 27(1) … . 2.5.3 , 2.5.5 s 27(2) … . 2.5.4 , 2.5.8 , 5.3.7 s 27A … . 3.1.2 s 27A(2)(b) … . 3.1.2 s 27A(3) … . 3.1.2 s 28 … . 13.3.3 , 13.3.4 , 13.3.5 s 28(1) … . 13.3.5 , 13.3.7 s 28(1A) … . 13.3.6 s 28(1AA) … . 13.3.6 s 28(1AC) … . 13.3.6 s 28(2) … . 13.3.6 , 13.4.4 s 28(5) … . 13.3.6 s 29(1)(a) … . 3.2.1 s 29(1)(b) … . 3.2.1 s 29(1)(c) … . 3.2.1 s 29(1)(c) … . 3.2.3 s 29(2) … . 3.2.3 , 14.3.35 s 29(7) … . 3.2.4 s 29A … . 3.2.2 s 30 … . 2.5.6 s 30(1A) … . 2.5.7 s 33 … . 2.3.2 , 3.5.1 , 3.5.9 s 33(1)(c) … . 2.2.7 , 3.5.1 , 3.5.11 s 34 … . 3.3.4 s 34(3) … . 3.3.4 s 34A … . 3.3.6 s 34B … . 3.4.4

s 35 … . 3.5.13 s 37 … . 3.5.9 , 13.3.8 , 14.3.35 s 37(1)(a) … . 13.3.8 s 37(1)(b) … . 13.3.8 s 39 … . 3.5.3 , 3.5.8 , 3.5.9 , 10.4.2 s 40 … . 3.5.11 s 41(1) … . 3.3.1 s 41(2) … . 3.3.1 , 3.6.3 s 42A(1) … . 3.4.3 s 42A(1A) … . 3.4.3 s 42A(2) … . 3.4.3 s 42B … . 3.4.3 s 43 … . 2.2.1 , 2.2.6 s 43(2) … . 13.3.4 , 13.3.6 s 43(2)–(2B) … . 13.3.9 s 43(2A) … . 13.3.5 s 43(2B) … . 3.6.2 , 13.3.9 s 43(6) … . 2.2.13 s 43AB … . 13.3.10 s 44 … . 3.6.2 s 44(1) … . 3.6.3 s 44(4) … . 3.6.5 s 44(5) … . 3.6.5 s 44A … . 3.6.4 s 45(1) … . 3.6.6 s 59 … . 15.2.23 Administrative Appeals Tribunal Regulations reg 19(6) … . 3.2.2 reg 19(6)(c) … . 3.2.2 Administrative Decisions (Judicial Review) Act 1977 … . 1.3.2 , 1.3.4 , 2.4.5 , 3.2.4 , 4.1.2 , 4.2.4 , 4.2.14 , 4.3.2 , 5.1.8 , 5.1.10 , 5.2.3 , 6.1.1 , 9.1.5 , 12.1.8 , 12.1.15 , 12.2.1 , 15.2.7 , 15.2.24 s 3 … . 4.2.5 s 3(1) … . 4.2.10 s 3(4)(a) … . 5.3.3 s 3(4)(a)(i) … . 5.3.3 s 5 … . 5.3.3 , 13.3.5 s 5(1) … . 5.3.3 , 6.1.4 s 5(1)(a) … . 6.1.4 , 9.2.6 s 5(1)(b) … . 6.1.5 s 5(1)(c) … . 6.1.5 , 9.2.4 , 9.2.6 s 5(1)(e) … . 6.1.4 , 7.2.1 , 8.2.1 , 8.3.1 , 9.1.1 , 9.2.3 s 5(1)(f) … . 8.1.1 , 9.2.3 , 9.2.6 s 5(1)(h) … . 9.2.1 , 9.2.6 s 5(2)(a) … . 8.2.1 s 5(2)(b) … . 8.2.1 s 5(2)(c) … . 8.3.1 s 5(2)(d) … . 8.3.1 s 5(2)(e) … . 7.2.1 s 5(2)(f) … . 7.2.1 s 5(2)(g) … . 9.1.1 , 9.2.6

s 5(3) … . 9.2.1 , 9.2.6 s 5(3)(b) … . 9.2.6 s 6 … . 3.6.3 , 4.2.7 , 4.2.13 , 5.3.3 s 6(1) … . 6.1.4 s 6(1)(b) … . 6.1.5 s 6(1)(c) … . 6.1.5 s 6(1)(e) … . 6.1.4 , 7.2.1 , 8.2.1 , 8.3.1 , 9.1.1 s 6(1)(f) … . 8.1.1 s 6(2)(a) … . 8.2.1 s 6(2)(b) … . 8.2.1 s 6(2)(c) … . 8.3.1 s 6(2)(d) … . 8.3.1 s 6(2)(e) … . 7.2.1 s 6(2)(f) … . 7.2.1 s 5(2)(g) … . 9.1.1 s 7 … . 5.3.3 , 6.1.4 s 9 … . 4.2.2 s 9A … . 17.1.3 s 10(2)(b)(ii) … . 17.1.3 , 17.2.5 s 11 … . 4.5.1 s 12 … . 5.4.2 , 5.5.3 s 12 … . 5.4.2(2) s 13 … . 4.2.6 , 4.2.11 , 5.1.5 , 5.3.7 , 9.1.1 , 13.3.2 , 13.3.3 , 13.3.5 , 13.3.11 , 13.5.2 s 13(1) … . 13.3.4 , 13.3.7 s 13(2) … . 13.3.5 s 13(4A) … . 13.3.6 s 13(7) … . 13.3.6 , 13.5.2 s 13(8)–(11) … . 13.3.4 s 13A … . 13.3.6 s 14 … . 13.3.6 , 13.4.4 s 16(1)(a) … . 12.1.4 s 16(1)(b) … . 12.1.13 s 16(1)(c) … . 12.1.5 s 16(1)(d) … . 12.1.7 , 12.1.13 s 16(2)(a) … . 12.1.5 s 16(2)(b) … . 12.1.7 , 12.1.13 s 16(3) … . 12.1.13 s 16(3)(a)–(c) … . 12.1.13 s 16(3)(b) … . 12.1.5 s 16(3)(c) … . 12.1.7 s 18(1) … . 5.5.4 Archives Act 1983 … . 14.2.1 Audit Act 1901 … . 16.2.2 s 34 A … . 15.2.21 Auditor-General Act 1997 … . 16.2.2 Australian Heritage Act 1975 s 4 … . 9.2.4 Australian Information Commissioner Act 2010 … . 14.2.2 s 4 … . 14.2.3 s 5 … . 14.2.3

Australian Security Intelligence Organisation Act 1979 s 8A … . 6.3.10 Australian Soldiers Repatriation Act 1920 … . 2.1.4 Constitution … . 1.2.5 , 1.2.6 , 4.4.6 , 5.5.4 , 12.1.2 s 75 … . 4.4.2 s 75(iii) … . 4.2.2 , 4.2.3 s 75(v) … . 4.2.2 , 4.2.3 , 4.2.4 , 4.5.1 Crimes Act 1914 s 70 … . 14.1.3 Criminal Code Act 1995 s 102.1 … . 6.3.8 Customs Act 1901 … . 2.4.9 , 6.3.5 s 167(3) … . 2.4.8 s 167(3A) … . 2.4.8 Environment Protection and Biodiversity Conservation Act 1999 s 487 … . 5.3.7 Environment Protection (Impact of Proposals) Act 1974 … . 5.2.2 Federal Court Rules … . 4.5.1 O 54 r 3 … . 4.2.11 , 4.2.14 Federal Magistrates Court Act 1999 … . 4.2.14 Freedom of Information Act 1982 … . 1.3.2 , 1.3.6 , 14.1.1 , 14.1.4 , 14.2.1 , 14.2.2 , 14.3.20 s 3 … . 14.2.3 , 14.3.2 , 14.3.3 , 14.3.15 , 14.3.19 s 3(1) … . 14.3.1 s 3(1)(a)–(b) … . 14.3.1 s 3(1)(b) … . 14.3.1 s 3(3) … . 14.3.1 s 3(4) … . 14.3.1 s 3A … . 14.2.3 , 14.3.1 , 14.3.2 , 14.3.3 , 14.3.15 , 14.3.19 s 4(1) … . 14.3.8 , 14.3.9 , 14.3.13 , 14.3.14 , 14.3.15 s 5 … . 14.3.9 s 6 … . 14.3.9 s 6C … . 14.2.3 , 14.3.8 , 14.3.12 s 7 … . 14.3.15 s 7(1) … . 14.3.9 s 7(2) … . 14.3.15 s 7(2AA) … . 14.3.15 s 7(2B) … . 14.3.15 s 7(2D) … . 14.3.15 s 7(2E) … . 14.3.15 s 7(3) … . 14.3.15 s 7A … . 14.2.3 , 14.3.4 s 8(1)(f) … . 14.3.4 s 8(2)(g) … . 14.3.4 s 8A … . 14.3.5 s 8A(1) … . 14.3.5 s 8A(2) … . 14.3.5 s 8C … . 14.3.4 s 8D … . 14.3.5 s 9A … . 14.2.3 s 10 … . 14.3.5

s 11 … . 5.3.1 , 14.3.7 , 14.3.15 , 14.3.22 s 11(2) … . 14.3.22 s 11A … . 14.3.3 , 14.3.21 , 14.3.26 s 11A(5) … . 14.2.3 , 14.3.18 s 11B … . 14.2.3 , 14.3.3 , 14.3.19 , 14.3.21 s 11B(3) … . 14.3.19 s 11B(4) … . 14.3.19 s 11B(4)(d) … . 14.3.21 s 12 … . 14.3.14 s 13(1) … . 14.3.14 s 15(1) … . 14.3.24 s 15(2)(a) … . 14.3.24 s 15(2)(b) … . 14.3.24 s 15(3) … . 14.3.24 s 15(4) … . 14.3.24 s 15(5) … . 14.3.27 s 15(6) … . 14.3.27 s 17(2) … . 14.3.29 s 20 … . 14.3.27 s 20(3) … . 14.3.27 s 21 … . 14.3.28 s 22 … . 14.3.29 s 22(1) … . 14.3.24 s 22(2) … . 14.3.28 s 24 … . 14.3.28 s 24(1)(a) … . 14.3.29 s 24(1)(b) … . 14.3.29 s 24(5) … . 14.3.29 s 24(6) … . 14.3.29 s 24A … . 14.3.29 s 25 … . 14.3.28 , 14.3.29 s 26 … . 14.3.30 , 14.3.31 , 14.3.35 s 26(2) … . 14.3.30 s 26A … . 14.3.35 s 27 … . 14.3.35 s 27A … . 14.3.35 s 31B … . 14.3.3 , 14.3.13 , 14.3.15 , 14.3.18 s 32 … . 14.3.16 s 33 … . 14.3.15 , 14.3.17 , 14.3.29 ss 33–47A … . 14.3.19 s 33A … . 14.3.29 s 34 … . 14.2.3 , 14.3.2 , 14.3.15 , 14.3.17 s 35 … . 14.3.17 s 36 … . 14.3.21 , 14.3.21 , 15.2.16 s 36(1)(b) … . 14.3.21 s 36(5) … . 15.2.16 s 37 … . 14.3.15 , 14.3.17 s 37(1) … . 14.3.29 s 38 … . 14.3.15 , 14.3.17 , 15.2.16 s 38(2) … . 14.3.23

s 40 … . 14.3.21 s 42 … . 14.3.2 , 14.3.15 , 14.3.17 , 14.3.23 s 42(2) … . 14.2.3 s 44 … . 14.3.36 s 45 … . 14.3.15 , 14.3.17 , 14.3.21 , 14.3.23 s 45A … . 14.3.15 , 14.3.17 s 46 … . 14.3.15 , 14.3.17 s 47 … . 14.3.12 s 47A … . 14.3.15 , 14.3.17 ss 47B–47J … . 14.3.19 s 47C … . 14.2.3 , 14.3.21 s 47E … . 14.3.21 s 47F … . 14.3.21 s 48 … . 14.3.6 s 50(1) … . 14.3.6 s 50(2)(a) … . 14.3.6 s 50(2)(b) … . 14.3.6 s 50(3) … . 14.3.6 s 51 … . 14.3.6 s 52 … . 14.3.32 s 54 … . 14.3.34 , 14.3.35 s 54(1) … . 14.3.32 s 54A(1) … . 14.3.32 s 54B … . 14.3.32 s 54C … . 14.3.32 s 54F … . 14.3.33 s 54L … . 14.3.33 s 54M … . 14.3.33 s 54W … . 14.3.33 , 14.3.35 s 55 … . 14.3.33 s 55B … . 14.3.33 s 55C … . 14.3.33 s 55H … . 14.3.36 s 55K … . 14.3.34 , 14.3.35 s 55K(4) … . 14.3.31 s 56 … . 14.3.36 s 57A … . 14.3.34 , 14.3.35 s 57A(1)(a) … . 14.3.34 s 57A(2) … . 14.3.35 s 58 … . 14.3.34 s 61 … . 14.3.35 s 61A … . 14.3.35 s 64(1) … . 14.3.35 s 64(2) … . 14.3.35 s 64(5) … . 14.3.35 s 64(6) … . 14.3.35 s 66 … . 14.3.35 s 68 … . 14.2.3 s 75(4) … . 14.3.31 s 86(2) … . 14.3.31

s 89N … . 14.3.34 s 91 … . 14.3.26 s 92 … . 14.3.26 s 93A … . 14.3.19 s 94(1) … . 14.3.25 Pt II … . 14.2.3 , 14.3.4 , 14.3.5 Pt III … . 14.2.3 Pt IV … . 14.3.3 , 14.3.15 , 14.3.32 Pt IV Div 2 … . 14.3.19 Pt IV Div 3 … . 14.3.3 , 14.3.19 Pt V … . 14.3.6 , 14.3.23 Sch 2 Pt I … . 14.3.9 Sch 2 Pt II … . 14.3.11 , 14.3.15 Sch 2 Pt III … . 14.3.11 , 14.3.15 Freedom of Information Amendment (Reform) Act 2010 … . 14.2.2 Freedom of Information (Fees and Charges) Regulations reg 5 … . 14.2.3 , 14.3.25 High Court Rules r 25.3 … . 12.1.2 Human Rights and Equal Opportunity Commission Act 1986 s 11(1)(o) … . 5.5.5 Income Tax Assessment Act 1936 … . 1.1.2 s 175 … . 6.6.1 Judiciary Act 1903 … . 4.2.14 , 4.3.2 s 38 … . 4.2.2 s 39B … . 3.6.3 , 4.2.2 , 4.2.11 , 4.2.12 , 15.2.24 , 17.1.3 s 39B(1) … . 4.2.4 s 39B(1A) … . 4.2.4 , 4.2.12 s 44(2A) … . 4.2.4 s 78A … . 5.5.4 Jurisdiction of Courts (Cross-Vesting) Act 1987 s 3(1) … . 4.2.2 s 4(1) … . 4.2.2 Law Enforcement Integrity Commissioner Act 2006 s 5 … . 16.2.4 Legislation Act 1903 s 19 … . 6.6.1 Legislative Instruments Act 2003 … . 6.3.9 s 5(2) … . 6.3.3 s 16 … . 6.3.3 s 17 … . 6.3.3 Migration Act 1958 … . 1.1.2 , 4.2.12 , 4.5.1 , 6.5.1 , 9.2.4 , 9.2.6 s 51A … . 10.4.3 s 97A … . 10.4.3 s 118A … . 10.4.3 s 127A … . 10.4.3 s 366A … . 3.5.6 s 427(6) … . 3.5.6 s 496 … . 6.4.2 s 499 … . 6.3.10

s 501(2) … . 13.3.10 s 501G … . 13.3.10 s 501G(1) … . 13.3.10 s 501G(4) … . 13.3.10 Migration Reform Act 1992 … . 9.2.4 Ombudsman Act 1976 … . 1.3.2 , 15.1.4 s 3(1) … . 15.2.5 s 3(7) … . 15.2.6 s 3(9) … . 15.2.4 s 3(15) … . 15.2.5 s 3AB(1) … . 15.2.5 s 3BA … . 15.2.5 s 4(1) … . 15.2.2 s 4(2) … . 15.2.3 s 5 … . 15.2.4 s 5(1) … . 15.2.3 s 5(1)(a) … . 15.2.3 s 5(1)(b) … . 15.2.3 s 5(2) … . 15.2.3 , 15.2.5 , 15.2.10 s 5(2)(a) … . 15.2.10 s 5(2)(d) … . 15.2.10 s 6 … . 15.2.11 s 6(1)(ii) … . 15.2.12 s 6(1)(b)(i) … . 15.2.11 s 6(1)(b)(ii) … . 15.2.11 s 6(1)(b)(iii) … . 15.2.11 s 6(1A) … . 15.2.11 s 6(1B) … . 15.2.11 s 6(1C) … . 15.2.11 s 6(2) … . 15.2.11 , 17.1.1 s 6(3) … . 15.2.11 , 17.1.1 s 6(4) … . 15.2.11 , 17.1.1 s 6(4D)–(11B) … . 15.2.11 s 6(4D)–(4E) … . 17.1.1 s 6(5)–(8) … . 17.1.1 s 6(9)–(11) … . 17.1.1 s 6(11A)–(11C) … . 17.1.1 s 6(12) … . 15.2.9 s 6(12)–(15) … . 17.1.1 s 6(13)–(15) … . 15.2.11 s 6(16)–(19) … . 17.1.1 s 7 … . 15.2.13 s 7(2) … . 15.2.13 s 7A … . 15.2.3 s 7A(1) … . 15.2.15 s 8 … . 15.2.3 s 8(1) … . 15.2.15 s 8(2) … . 15.2.16 s 8(3) … . 15.2.17 s 8(4) … . 15.2.15

s 8(5) … . 15.2.3 , 15.2.15 s 8(9) … . 15.2.15 s 8(10) … . 15.2.21 s 9 … . 15.2.17 , 15.2.18 s 9(3) … . 15.2.18 s 9(4) … . 15.2.16 , 15.2.18 s 10 … . 15.2.23 s 10(1) … . 15.2.19 s 10(1)(b) … . 15.2.11 s 11 … . 15.2.23 s 11(3) … . 15.2.23 s 11(4) … . 15.2.23 s 11A … . 15.2.24 s 12 … . 15.2.3 s 12(3) … . 15.2.13 s 13 … . 15.2.17 s 14 … . 15.2.17 s 15 … . 15.2.3 , 15.2.8 , 15.2.20 , 15.2.21 s 15(1)(a)(ii) … . 15.2.20 s 15(1)(a)(iii) … . 15.2.20 s 15(1)(a)(iv) … . 15.2.20 s 15(1)(a)(v) … . 15.2.20 s 15(3) … . 15.2.21 s 15(4) … . 15.2.21 s 16 … . 15.2.3 , 15.2.22 s 17 … . 15.2.22 s 19(1) … . 15.2.22 s 19B … . 15.2.2 s 35 … . 14.1.3 , 15.2.16 s 35(4) … . 15.2.16 s 35A … . 15.2.16 s 36 … . 15.2.17 Pt II … . 15.2.2 Pt IIA … . 15.2.2 Ombudsman Regulations 1977 regs 4–6 … . 15.2.5 Sch 1–3 … . 15.2.5 Privacy Act 1988 … . 14.2.1 Racial Discrimination Act 1975 s 25Z(1) … . 1.2.6 s 25ZAA(2) … . 1.2.6 s 25ZAA(3) … . 1.2.6 Pt II … . 1.2.6 Pt III … . 1.2.6 Rules Publication Act 1903 … . 6.6.1 Safety, Rehabilitation and Compensation Act 1988 s 64 … . 2.5.2 s 67 … . 3.5.14 Social Security Act 1991 … . 1.1.2 , 3.2.2 Pt 6.1 … . 2.1.9

Social Security (Administration) Act 1999 s 9 … . 6.3.10 s 138 … . 3.1.2 s 142 … . 17.1.2 s 177 … . 3.1.2 s 179 … . 2.4.8 , 17.1.2 s 181 … . 17.1.2 Taxation Administration Act 1953 … . 1.1.2 Sch 1 Div 358 … . 6.3.10 Therapeutic Goods Act 1989 … . 5.3.7 Veterans’ Entitlement Act 1986 … . 2.2.9 , 3.2.3 s 135 … . 17.1.2 s 147 … . 3.5.6 s 147(2) … . 11.1.17 s 175 … . 17.1.2

AUSTRALIAN CAPITAL TERRITORY ACT Civil and Administrative Tribunal Rules r 7 … . 3.2.4 ACT Civil and Administrative Tribunal Act 2008 … . 2.1.8 , 3.1.2 s 6 … . 2.3.2 s 7 … . 2.3.2 , 3.5.8 s 7(c) … . 3.5.1 s 9 … . 2.4.3 , 2.4.6 s 10 … . 3.2.2 s 10(2) … . 3.2.3 s 12 … . 2.4.4 , 2.4.6 ss 23-25 … . 3.3.7 s 26 … . 3.5.1 , 3.5.11 s 29 … . 2.5.6 s 29(5) … . 2.5.7 s 30 … . 3.5.6 s 32(2) … . 3.4.3 s 33 … . 3.3.4 s 39 … . 3.5.13 s 44(1) … . 3.5.3 s 44(1)(b) … . 3.5.11 s 44(4) … . 3.5.3 s 48 … . 3.5.14 s 53 … . 3.3.1 , 3.6.4 s 54 … . 3.4.4 s 55 … . 3.4.1 s 56(a) … . 3.4.3 s 56(d) … . 3.4.3 s 68 … . 2.2.4 s 69 … . 3.6.5 s 74(2)(b) … . 3.4.3 s 83 … . 3.4.3 s 84 … . 3.6.6 s 86 … . 3.6.2

s 108 … . 3.5.1 ACT Self-Government (Consequential Provisions) Act 1989 … . 15.2.2 Administrative Appeals Tribunal Act 1989 … . 2.1.8 Administrative Decisions (Judicial Review) Act 1989 s 3(4) … . 5.3.3 s 5 … . 5.3.3 s 6 … . 5.3.3 s 7 … . 5.3.3 s 12 … . 5.4.2 , 5.5.3 s 13 … . 13.3.3 s 19 … . 5.5.4 Court Procedures Act 2004 ss 12–16 … . 3.2.2 Freedom of Information Act 1989 … . 14.2.1 Legislation Act 2001 … . 6.3.9 s 12 … . 6.3.3 s 17 … . 6.3.7 s 19 … . 6.3.7 s 236 … . 6.4.3 Ombudsman Act 1989 … . 15.1.4 , 15.2.2 s 6(2) … . 17.1.1 s 6(5) … . 17.1.1 s 6(6) … . 17.1.1 s 6(7) … . 17.1.1 s 6A … . 17.1.1 s 6B … . 17.1.1 Public Interest Disclosures Act 2012 … . 16.2.10 s 7 … . 16.2.11 s 8 … . 16.2.11 s 15 … . 16.2.11 s 19 … . 16.2.11 s 23 … . 16.2.11 s 30 … . 16.2.11 s 31 … . 16.2.11 s 33 … . 16.2.12 s 35 … . 16.2.12 s 39 … . 16.2.12 s 40 … . 16.2.12 s 41 … . 16.2.12 s 42 … . 16.2.12

NEW SOUTH WALES Administrative Decisions Review Act 1997 … . 2.3.2 s 4 … . 2.5.2 s 6 … . 2.4.4 s 6(3) … . 2.4.4 s 6(5) … . 2.4.6 s 48 … . 3.1.2 s 48(2) … . 3.1.2 s 48(3) … . 3.1.2

s 55 … . 2.5.2 s 55(1) … . 3.2.1 , 3.2.3 s 55(1)(b) … . 2.1.9 , 2.4.8 s 55(2) … . 3.2.3 s 55(4) … . 3.2.3 s 56 … . 3.2.2 s 57 … . 3.2.4 s 60(1) … . 3.3.1 s 60(2) … . 3.3.1 s 63(1) … . 2.2.4 s 63(1)(b) … . 2.2.5 s 64 … . 2.2.8 s 64(5) … . 2.2.8 s 67(2) … . 2.5.6 s 119(1) … . 3.6.3 Administrative Decisions Tribunal Act 1997 … . 2.1.8 s 3(b)–(c) … . 2.3.2 s 38 … . 2.4.3 Civil and Administrative Tribunal Act 2013 … . 2.1.8 s 3(d) … . 3.5.1 s 24 … . 3.3.7 s 25 … . 3.3.7 s 26 … . 3.3.7 s 29 … . 2.4.6 s 30 … . 13.3.3 s 37 … . 3.3.4 s 38(2) … . 3.5.7 , 3.5.8 , 3.5.11 s 38(4) … . 3.5.1 , 3.5.7 s 38(5) … . 3.5.2 s 38(5)(c) … . 3.5.8 s 44 … . 2.5.7 s 44(1) … . 2.5.7 , 3.5.3 s 44(4) … . 3.5.3 s 45 … . 3.5.6 s 46(1) … . 3.5.1 s 46(1)(b) … . 3.5.11 s 49 … . 3.5.13 s 54 … . 3.6.6 s 55(1) … . 3.4.3 s 55(1)(a) … . 3.4.3 s 55(1)(b) … . 3.4.3 s 59 … . 3.4.1 s 60 … . 3.5.14 s 62(3) … . 13.3.9 s 83(3) … . 3.6.5 s 83(5) … . 3.6.4 Civil and Administrative Tribunal Regulation 2013 reg 6 … . 3.2.2 Sch 1 cl 10(4) … . 3.3.4 Government Information (Public Access) Act 2009 … . 14.2.1 , 14.2.3

Independent Commission Against Corruption Act 1988 … . 16.2.4 s 5 … . 16.2.5 s 5A … . 16.2.5 s 6 … . 16.2.5 ss 7–9 … . 16.2.5 ss 7–12 … . 16.2.5 s 9 … . 16.2.8 s 10 … . 16.2.6 s 10(2) … . 16.2.6 s 11 … . 16.2.6 s 13(1)(d)–(j) … . 16.2.7 s 13(2)–(5) … . 16.2.6 ss 14–16 … . 16.2.6 s 20 … . 16.2.6 s 20(a) … . 16.2.6 s 21 … . 16.2.6 s 22 … . 16.2.6 s 23 … . 16.2.6 s 24 … . 16.2.6 s 25 … . 16.2.6 s 26(2) … . 16.2.6 s 35 … . 16.2.6 s 37 … . 16.2.6 s 37(4) … . 16.2.6 s 37(5) … . 16.2.6 s 38 … . 16.2.6 s 40 … . 16.2.6 s 41 … . 16.2.6 ss 43–47 … . 16.2.6 s 53 … . 16.2.6 s 64A … . 16.2.5 s 73 … . 16.2.6 ss 74–75 … . 16.2.6 ss 74–78 … . 16.2.8 s 74A(2) … . 16.2.6 s 81 … . 16.2.6 ss 82–84 … . 16.2.6 s 86 … . 16.2.6 Pt 7 … . 16.2.8 Sch 1 cl 4 … . 16.2.5 Sch 1 cl 6 … . 16.2.5 Sch 1 cl 6(2) … . 16.2.5 Interpretation Act 1987 s 49 … . 6.4.2 s 49(10) … . 6.4.3 Local Government Act 1919 … . 10.4.6 Ombudsman Act 1974 … . 15.1.4 s 12(1) … . 15.2.12 s 13(4)(b)(iv) … . 15.2.12 s 13(4)(b)(v) … . 17.1.1

Pt 4A … . 15.1.8 Public Interests Disclosures Act 1994 … . 16.2.10 s 18 … . 16.2.11 s 19 … . 16.2.11 s 20 … . 16.2.12 s 21 … . 16.2.12 s 22 … . 16.2.12 s 25 … . 16.2.11 s 26 … . 16.2.11 s 27 … . 16.2.11 s 28 … . 16.2.11 Pt 2 … . 16.2.11 Subordinate Legislation Act 1989 … . 6.3.9 s 9 … . 6.6.1 Supreme Court Act 1970 s 65 … . 5.3.11 Uniform Civil Procedure Rules 2005 r 59.4 … . 12.1.2

NORTHERN TERRITORY Information Act … . 14.2.1 Ombudsman (Northern Territory) Act 1980 … . 15.1.4 s 34 … . 17.1.1

QUEENSLAND Acts Interpretation Act 1954 s 27A(12) … . 6.4.3 Crime and Misconduct Act 2001 … . 16.2.4 s 15 … . 16.2.5 s 24(e) … . 16.2.6 s 33 … . 16.2.5 s 35(f) … . 16.2.6 s 36 … . 16.2.6 s 37 … . 16.2.6 s 38 … . 16.2.6 s 45 … . 16.2.6 s 46 … . 16.2.6 s 46(2)(b) … . 16.2.6 s 47(3) … . 16.2.6 s 49 … . 16.2.6 , 16.2.7 s 49(2)(a) … . 16.2.6 s 50 … . 16.2.6 s 50(4) … . 16.2.6 s 64 … . 16.2.8 s 69 … . 16.2.8 s 73 … . 16.2.6 s 75 … . 16.2.6 s 80 … . 16.2.6 s 81 … . 16.2.6 s 82(1)(a) … . 16.2.6 ss 86–88 … . 16.2.6

s 188(2) … . 16.2.6 s 188(3) … . 16.2.6 s 192 … . 16.2.6 s 197 … . 16.2.6 s 198(1)(c) … . 16.2.6 ss 216–218 … . 16.2.6 s 228 … . 16.2.5 s 231 … . 16.2.5 s 236(3) … . 16.2.5 s 236(4) … . 16.2.5 s 238 … . 16.2.5 Pt 6 … . 16.2.8 Sch 2 … . 16.2.5 Criminal Justice Act 1991 … . 16.2.4 Judicial Review Act 1991 s 7 … . 5.3.3 s 20(1) … . 5.3.3 s 20(2)(e) … . 7.2.1 , 8.2.1 , 8.3.1 , 9.1.1 s 20(2)(f) … . 8.1.1 s 21(1) … . 5.3.3 s 21(2)(e) … . 7.2.1 , 8.2.1 , 8.3.1 , 9.1.1 s 21(2)(f) … . 8.1.1 s 22(1) … . 5.3.3 s 23(a) … . 8.2.1 s 23(b) … . 8.2.1 s 23(c) … . 8.3.1 s 23(d) … . 8.3.1 s 23(e) … . 7.2.1 s 23(f) … . 7.2.1 s 23(g) … . 9.1.1 s 28 … . 5.4.2 , 5.5.3 s 30(1)(a) … . 12.1.4 s 30(1)(b) … . 12.1.13 s 30(1)(c) … . 12.1.5 s 30(1)(d) … . 12.1.7 , 12.1.13 s 30(2)(a) … . 12.1.5 s 30(2)(b) … . 12.1.7 , 12.1.13 s 30(3) … . 12.1.13 s 30(3)(a)–(c) … . 12.1.13 s 30(3)(b) … . 12.1.5 s 30(3)(c) … . 12.1.7 s 32(1) … . 13.3.3 s 44 … . 5.3.10 s 51(1) … . 5.5.4 Ombudsman Act 2001 … . 15.1.4 s 20(2) … . 15.2.12 s 23(1)(d)–(f) … . 17.1.1 s 23(2) … . 17.1.1 Pt 6 … . 15.1.8 Parliamentary Commissioner Act 1974 … . 15.1.4

Queensland Civil and Administrative Tribunal Act 2009 … . 2.1.8 s 3 … . 2.3.2 s 9 … . 2.4.6 s 20(1) … . 2.2.4 s 22(1) … . 3.3.1 s 22(2) … . 3.3.1 s 28(3)(b) … . 3.5.11 s 28(3)(c) … . 3.5.8 s 29 … . 3.5.2 , 3.5.8 s 29(3) … . 3.5.1 s 32(1)(a) … . 2.5.7 s 32(2) … . 3.4.4 s 33(2) … . 3.2.1 s 33(3) … . 3.2.3 s 38 … . 3.2.2 ss 39–41 … . 2.5.6 ss 40–41 … . 3.5.3 s 42 … . 2.5.7 s 43 … . 3.5.6 s 46 … . 3.4.3 s 47 … . 3.4.3 s 48 … . 3.4.3 s 52 … . 3.4.3 s 57(1) … . 3.5.11 s 61(1)(a) … . 3.2.4 s 62 … . 3.3.7 s 67 … . 3.3.4 s 69 … . 3.6.5 s 74 … . 3.3.4 s 87 … . 3.4.1 s 90 … . 3.5.13 s 98(1)(a) … . 3.5.1 s 100 … . 3.5.14 s 111 … . 3.5.1 s 116 … . 2.2.5 s 118 … . 3.6.6 ss 137–138 … . 2.4.14 s 142 … . 3.6.2 s 145 … . 3.6.4 s 149 … . 3.6.2 , 3.6.4 s 157(1) … . 3.1.2 s 157(4) … . 3.1.2 s 222 … . 3.3.7 s 223 … . 3.3.7 s 226 … . 3.3.7 Queensland Civil and Administrative Tribunal Regulations Pt 3 … . 3.2.2 Right to Information Act 2009 … . 14.2.1 , 14.2.3 Public Interests Disclosure Act 2010 … . 16.2.10 s 12 … . 16.2.11

s 13 … . 16.2.11 s 17 … . 16.2.11 s 29 … . 16.2.11 s 30 … . 16.2.11 s 31 … . 16.2.11 s 32 … . 16.2.11 s 36 … . 16.2.12 s 38 … . 16.2.12 s 40 … . 16.2.12 s 41 … . 16.2.12 s 42 … . 16.2.12 s 65 … . 16.2.12 s 66 … . 16.2.11 Statutory Instruments Act 1992 s 9 … . 6.3.3

SOUTH AUSTRALIA Freedom of Information Act 1991 … . 14.2.1 Ombudsman Act 1972 … . 15.1.4 s 13(3) … . 17.1.1 South Australian Civil and Administrative Tribunal Act 2013 … . 2.1.8 , 3.1.2 s 8 … . 2.3.2 s 8(f) … . 3.5.1 s 22 … . 3.5.1 s 26 … . 2.2.5 s 28 … . 2.2.8 s 33 … . 2.4.3 , 2.4.6 s 34 … . 2.2.6 , 2.4.3 s 34(4) … . 2.2.4 s 36(1) … . 3.3.1 s 36(2) … . 3.3.1 s 39(1)(a) … . 3.5.1 s 39(1)(b) … . 3.5.11 s 40(3)(b) … . 3.5.11 s 43 … . 3.5.1 s 43(1) … . 3.5.8 s 43(1)(b) … . 3.5.2 s 43(1)(c) … . 3.5.2 s 44 … . 3.3.7 s 46 … . 3.4.3 s 47(1) … . 3.4.3 s 48 … . 3.4.3 s 49 … . 3.4.3 s 50 … . 3.3.4 s 50(10) … . 3.3.4 s 51 … . 3.4.1 ss 53–55 … . 2.5.6 s 54 … . 2.5.7 s 56 … . 3.5.6 s 56(1)(b) … . 3.5.3

s 57 … . 3.5.14 s 60 … . 3.5.13 s 65 … . 3.3.5 s 66 … . 3.2.4 s 67(2) … . 3.4.4 s 71 … . 3.6.2 s 71(5) … . 3.6.4 s 72 … . 3.6.6 s 94 … . 3.3.7 s 95(2)(c) … . 3.2.2 W histleblowers Protection Act 1993 … . 16.2.10 s 4 … . 16.2.11 s 5 … . 16.2.11 s 5(1) … . 16.2.12 s 5(2) … . 16.2.11 s 5(2)(ii) … . 16.2.11 s 7 … . 16.2.12 s 8 … . 16.2.11 s 10 … . 16.2.11

TASMANIA Judicial Review Act 2000… . 5.3.10 s 7 … . 5.3.3 s 17(1) … . 5.3.3 s 17(2)(e) … . 7.2.1 , 8.2.1 , 8.3.1 , 9.1.1 s 17(2)(f) … . 8.1.1 s 18(1) … . 5.3.3 s 18(2)(e) … . 8.2.1 , 8.3.1 , 9.1.1 s 18(2)(f) … . 8.1.1 s 19(1) … . 5.3.3 s 19(2)(e) … . 7.2.1 s 20(a) … . 8.2.1 s 20(b) … . 8.2.1 s 20(c) … . 8.3.1 s 20(d) … . 8.3.1 s 20(g) … . 9.1.1 s 21(e) … . 7.2.1 s 21(f) … . 7.2.1 s 25 … . 5.4.2 , 5.5.3 s 27(1)(a) … . 12.1.4 s 27(1)(c) … . 12.1.5 s 27(2)(a) … . 12.1.5 s 27(3)(b) … . 12.1.5 s 29 … . 13.3.3 s 39 … . 5.5.4 Magistrates Court (Administrative Appeals Division) Act 2001 … . 2.1.8 Ombudsman Act 1978 … . 15.1.4 s 20 … . 17.1.1 Public Interests Disclosue Act 2002 … . 16.2.10 Right to Information Act 2009 … . 14.2.1 , 14.2.3

Supreme Court Rules r 623 … . 12.1.2

VICTORIA Administrative Appeals Tribunal Act 1984 … . 2.1.8 Administrative Law Act 1978 s 2 … . 5.3.10 s 4 … . 4.5.1 s 5 … . 12.1.4 s 8(1) … . 13.3.3 s 11 … . 5.3.10 Archaeological and Aboriginal Relics Preservation Act 1972 … . 5.2.3 Corrections Act 1986 s 69(2) … . 4.4.5 Firearms Amendment Act 1987 s 17(2) … . 6.3.5 Firearms (Amendment) Act 1988 s 17 … . 6.3.5 Freedom of Information Act 1982 … . 14.2.1 s 9 … . 6.3.11 Interpretation of Legislation Act 1984 s 42 … . 6.4.2 s 42A … . 6.4.2 Ombudsman Act 1973 … . 15.1.4 s 14(3) … . 15.2.12 s 15A(1)(d) … . 17.1.1 Protected Disclosures Act 2011 … . 16.2.10 s 3 … . 16.2.11 s 4 … . 16.2.11 s 5 … . 16.2.11 s 9 … . 16.2.11 s 13 … . 16.2.12 s 14 … . 16.2.12 s 15 … . 16.2.12 s 15A … . 16.2.12 s 15B … . 16.2.12 s 16 … . 16.2.12 s 28 … . 16.2.11 s 29 … . 16.2.11 s 30 … . 16.2.11 s 72 … . 16.2.11 Pt 2 … . 16.2.11 Pt 3 … . 16.2.11 Subordinate Legislation Act 1994 s 12(4) … . 6.6.1 s 12J(5) … . 6.6.1 s 15(2) … . 6.3.5 , 6.6.1 s 16A(3) … . 6.6.1 s 16B(3) … . 6.6.1 s 16C(3) … . 6.6.1

s 16F(4) … . 6.6.1 s 22 … . 6.3.5 Supreme Court (General Civil Procedure) Rules O 56 … . 4.5.1 Victorian Civil and Administrative Tribunal Act 1998 … . 2.1.8 , 3.1.2 s 4 … . 2.4.4 s 4(2) … . 2.4.6 s 4(2)(b) … . 2.4.4 s 5 … . 2.5.2 s 41 … . 2.4.6 s 42 … . 2.4.3 s 45(1) … . 13.3.3 s 50(1) … . 3.3.1 s 50(3) … . 3.3.1 s 51 … . 2.2.4 s 51(2) … . 2.2.6 s 57 … . 2.2.8 s 59 … . 2.5.6 s 59(1)(b) … . 3.5.3 s 60 … . 2.5.7 s 60(1)(a) … . 2.5.7 s 62 … . 3.5.6 s 62(6) … . 3.5.5 s 67 … . 3.2.3 s 67(1) … . 3.2.1 s 67(1)(b) … . 3.2.3 s 67(4) … . 3.5.2 s 68 … . 3.2.2 s 74 … . 3.4.3 s 75(2) … . 3.4.3 s 76 … . 3.4.3 s 77 … . 3.4.3 s 78 … . 3.4.3 s 80 … . 3.3.7 s 83 … . 3.3.4 s 85 … . 3.3.4 s 87 … . 3.4.3 s 94 … . 3.3.5 s 95 … . 3.3.5 , 3.5.1 s 96 … . 3.6.6 s 97 … . 3.5.8 s 98 … . 2.3.2 , 3.5.1 s 98(1)(a) … . 3.5.8 s 98(1)(b)(c) … . 3.5.11 s 100(2) … . 3.4.4 s 101(1) … . 3.5.13 s 102(3) … . 3.5.11 s 104 … . 3.5.1 s 107 … . 2.2.5 s 109 … . 3.5.14

ss 112–115 … . 3.4.1 ss 113–115 … . 3.5.14 s 118(2) … . 3.6.4 s 120(1) … . 2.4.14 s 126 … . 3.2.4 s 132 … . 3.2.2 s 148 … . 3.6.2 s 148(7) … . 3.6.5 s 149 … . 3.6.4 s 157 … . 3.3.7 s 158 … . 3.3.7 Sch 3 cl 7 … . 3.5.1 Victorian Civil and Administrative Tribunal (Fees) Regulations 2013 reg 4(4) … . 3.2.2 reg 6 … . 3.2.2 reg 7 … . 3.2.2

WESTERN AUSTRALIA Coroners Act 1920 … . 10.4.2 Corruption and Crime Commission Act 2003 … . 16.2.4 s 4 … . 16.2.5 s 8 … . 16.2.5 s 9 … . 16.2.5 s 12 … . 16.2.5 s 17 … . 16.2.7 s 18(c) … . 16.2.6 s 25 … . 16.2.6 s 25(5) … . 16.2.6 s 28 … . 16.2.6 s 32 … . 16.2.6 s 33 … . 16.2.6 s 35 … . 16.2.6 s 37 … . 16.2.6 s 43 … . 16.2.6 s 43(5) … . 16.2.6 ss 84–92 … . 16.2.8 s 86 … . 16.2.8 s 94 … . 16.2.6 s 95 … . 16.2.6 s 96 … . 16.2.6 s 99 … . 16.2.6 s 100 … . 16.2.6 s 101 … . 16.2.6 s 145 … . 16.2.6 s 152 … . 16.2.5 s 153 … . 16.2.5 ss 158–161 … . 16.2.6 s 188(3) … . 16.2.6 Pt 5 … . 16.2.8 Sch 2 cl 1 … . 16.2.5

Sch 2 cl 7 … . 16.2.5 Freedom of Information Act 1982 … . 14.2.1 Parliamentary Commissioner Act 1971 … . 15.1.4 s 14(4) … . 17.1.1 s 14(5) … . 17.1.1 Public Interets Disclosure Act 2003 … . 16.2.10 s 5 … . 16.2.11 s 9 … . 16.2.11 s 10 … . 16.2.11 s 13(1) … . 16.2.11 s 24 … . 16.2.11 Rules of the Supreme Court of W estern Australia O 56 r 2 … . 12.1.2 State Administrative Tribunal Act 2004 … . 2.1.8 s 4(3) … . 2.4.6 s 9 … . 2.3.2 s 9(c) … . 3.5.1 s 13 … . 2.4.3 s 15 … . 2.4.6 s 20(1) … . 3.1.2 s 20(4) … . 3.1.2 s 24(1) … . 13.3.3 s 25(1) … . 3.3.1 s 25(2) … . 3.3.1 s 27(2) … . 2.2.4 s 30 … . 3.5.3 s 32 … . 3.5.1 ss 32–34 … . 3.3.7 s 32(1) … . 3.5.8 s 32(2) … . 3.5.11 s 32(5) … . 3.5.11 s 32(6) … . 3.5.2 , 3.5.8 s 36 … . 2.5.6 s 36(4) … . 3.5.3 s 37 … . 3.5.3 s 38 … . 2.5.7 s 38(1)(a) … . 2.5.7 s 39 … . 3.5.6 ss 41–43 … . 3.4.1 s 42(1) … . 3.2.1 s 42(7) … . 3.2.1 s 43 … . 3.2.2 s 46(1) … . 3.4.3 s 46(2) … . 3.4.3 s 47 … . 3.4.3 s 48 … . 3.4.3 s 50 … . 3.4.3 s 52 … . 3.3.4 s 52(5) … . 3.3.4 s 53(b)(ii) … . 3.4.3

s 56(2) … . 3.4.1 s 59 … . 2.2.5 s 59(1)(b) … . 3.6.6 s 60(2) … . 3.4.4 s 61 … . 3.5.13 s 65 … . 3.3.5 , 3.5.1 s 70 … . 3.5.11 s 71(5) … . 2.2.6 s 84 … . 2.4.14 s 87 … . 3.5.14 ss 87–88 … . 3.5.14 s 105 … . 3.6.2 s 105(9) … . 3.6.5 s 106 … . 3.6.4 State Administrative Tribunal Regulations 2004 Pt 3 … . 3.2.2 State Administrative Tribunal Rules r 9 … . 3.2.3 r 10 … . 3.2.4 rr 40–41 … . 3.5.14

INTERNATIONAL International Covenant on Civil and Political Rights Art 14 cl 3(f) … . 11.1.21

Abbreviations AAT AAT ACT CAT ADJR Act ADR Act ADT ADT Act ART FOI Act (Cth) IRT MRT NSW CAT Ombudsman Act QCAT SA CAT RRT SAT SSAT VCAT VCAT Act VRB

Administrative Appeals Tribunal (Cth) Act Administrative Appeals Tribunal Act 1975 (Cth) Australian Capital Territory Civil and Administrative Tribunal Administrative Decisions (Judicial Review) Act 1977 (Cth) Administrative Review Act 1997 (NSW ) Administrative Decisions Tribunal (NSW ) Administrative Decisions Tribunal Act 1997 (NSW ) Administrative Review Tribunal (Cth) Freedom of Information Act 1982 (Cth) Immigration Review Tribunal Migration Review Tribunal New South W ales Capital Territory Civil and Administrative Tribunal Ombudsman Act 1976 (Cth) Queensland Civil and Administrative Tribunal South Australian Civil and Administrative Tribunal Refugee Review Tribunal State Administrative Tribunal (W estern Australia) Social Security Appeals Tribunal Victorian Civil and Administrative Tribunal Victorian Civil and Administrative Tribunal Act 1988 (Vic) Veterans Review Board

Contents Preface Acknowledgments Table of Cases Table of Statutes Abbreviations

PART 1 Introduction 1 Introduction to Administrative Law

PART 2 Challenging Administrative Decisions 2 The Form and Nature of Merits Review Systems 3 Merits Review: Procedure

PART 3 Challenging Administrative Decisions — Judicial Review 4 The Judicial Reviewability of Administrative Action 5 Access to Judicial Review 6 Rule-making and Administrative Powers 7 Discretionary Powers 8 Legality 9 Judicial Review of the Merits? 10 Grounds of Review: The Implication of Procedural Fairness 11 Grounds of Review: The Rules of Procedural Fairness 12 Relief for Unlawful Action

PART 4 Access to Information 13 Understanding Decisions: The Right to Reasons 14 Access to Information

PART 5 Other Avenues of Accountability 15 The Ombudsman 16 Other Procedures for Controlling Administrative Behaviour

PART 6 Choice of Forum 17 Choice of Forum Appendix Index

Detailed Contents Preface Acknowledgments Table of Cases Table of Statutes Abbreviations

PART 1 Introduction 1 Introduction to Administrative Law 1 What is administrative law? 2 The constitutional framework 3 Australian administrative law 4 State and territory systems of review 5 The structure of this book

PART 2 Challenging Administrative Decisions 2 The Form and Nature of Merits Review Systems 1 Forms of merits review 2 The nature of merits review 3 Objectives of merits review 4 The jurisdiction of merits review tribunals 5 Standing requirements for merits review tribunals

3 Merits Review: Procedure 1 What happens after an administrator has made a decision? 2 What are the requirements for lodging an application for review? 3 What happens after an application has been lodged? 4 Can the tribunal make a decision without a formal hearing? 5 What happens at a tribunal hearing? 6 Appeals from decisions

PART 3 Challenging Administrative Decisions — Judicial Review 4 The Judicial Reviewability of Administrative Action 1 Reviewing the lawfulness of administrative activities 2 Jurisdiction 3 Justiciability 4 Ouster clauses 5 Time limits

5 Access to Judicial Review 1 The development of the doctrine of standing 2 Standing requirements at common law 3 Statutory formula for standing 4 Joinder 5 Intervention 6 ‘Amicus curiae’ or ‘friend of the court’

6 Rule-making and Administrative Powers 1 Grounds for review: An introduction 2 Sources of administrative powers 3 Bureaucratic rule making

4 Repositories of power 5 Determining whether powers have been exceeded 6 Complying with procedures

7 Discretionary Powers 1 Discretionary powers 2 Discretionary powers must be exercised by the repository 3 Self-fettering

8 Legality 1 No errors of law 2 Relevant and irrelevant considerations 3 Improper purposes

9 Judicial Review of the Merits? 1 Unreasonableness 2 Evidence

10 Grounds of Review: The Implication of Procedural Fairness 1 Introduction 2 Implication of the duty to observe procedural fairness 3 Historical development of the implication principle 4 Factors which affect the operation of the presumption

11 Grounds of Review: The Rules of Procedural Fairness 1 The hearing rule 2 The rule against bias 3 The consequences of a breach of procedural fairness

12 Relief for Unlawful Action 1 Types of orders 2 Orders are discretionary

PART 4 Access to Information 13 Understanding Decisions: The Right to Reasons 1 The value of reasons 2 Common law 3 Statute 4 Evidence: public interest immunity 5 Discovery and interrogatories

14 Access to Information 1 Access to government information 2 Access to non-legislative information 3 The FOI Act 1982 (Cth)

PART 5 Other Avenues of Accountability 15 The Ombudsman 1 Introduction 2 The Commonwealth Ombudsman

16 Other Procedures for Controlling Administrative Behaviour 1 Making administrators politically responsible 2 Encouraging honesty and efficiency 3 Control by whom, for what?

PART 6 Choice of Forum 17 Choice of Forum 1 Law and choice of forum

2 Strategic considerations Appendix Index

[page 1]

PART 1 Introduction

[page 3]

1 Introduction to Administrative Law General Administrative law is the body of principles, practices and institutions which provide mechanisms for the supervision, regulation and structuring of the exercise of the executive power of government. This book is concerned with these rules, principles and institutions. Before studying these rules and institutions, we will consider the nature and characteristics of administrative law and some key legal concepts and doctrines. This chapter will also give you an overview of the components of administrative law and an outline of the book’s general approach.

Objectives After studying this chapter, you will understand: 1. 2. 3. 4. 5. 6.

definitions of administrative law; the constitutional framework within which administrative law operates; the distinction between merits review and judicial review; the structure of the Commonwealth system of administrative review; the structure of the state and territory systems of administrative review; and the structure of this book.

1 What is administrative law? 1.1.1 Definitions Broadly, administrative law is the body of rules, practices and institutions that regulate the exercise of government power. Administrative law serves to legitimate exercises of authority in cases where they are both legal and justifiable; and to enable challenges to the exercise of authority where these are flawed. Ideally it: … addresses the ideals of good government according to law. We take those ideals to include openness, fairness, participation, accountability, consistency, rationality,

[page 4] accessibility of judicial and non-judicial grievance procedures, legality and impartiality: M Aronson and B Dyer, Judicial Review of Administrative Action , LBC Information Services, 2000, p 1.

1.1.2 Characteristics of administrative law The power at the disposal of the executive arm of government is significant. Among a myriad of activities, it provides income support, grants and revokes licences, assesses tax liability, controls immigration, performs arrests and processes criminal suspects and offenders. Each of these activities is governed by a number of bodies of law. There are specific pieces of legislation which govern particular areas of administration: these include statutes such as the Social Security Act 1991 (Cth); the Income Tax Assessment Act 1936 (Cth); the Migration Act 1958 (Cth), and the Taxation Administration Act 1953 (Cth). We do not think of these as forming part of administrative law. Rather, because law must be parcelled up into digestible morsels if it is to be absorbed, we group these specialised bodies of law into separate categories. Nor is administrative law conventionally regarded as including the law which governs the structure of the public sector employment. W hile this is an important determinant of how administrators behave, it tends to be left to fields of study such as public administration, or caught up under the general heading of labour law. There is a tendency, too, for administrative law to concern itself with only some of the processes and institutions whereby administration is externally supervised. Thus while the Ombudsman tends to be regarded as lying within the purview of administrative law, auditors-general do not. Tribunals are regarded as lying within the ambit of administrative law; parliamentary supervision is not. These boundary problems are inevitable: administrative law is defined by convention and usage, rather than by self-evident boundaries. That said, there is a general consensus about what lies within the province of administrative law. In particular, administrative law covers:

tribunals charged with the review of administrative behaviour; the general rules which govern the scope of, and limits to, the exercise of administrative powers and discretions; laws bearing on the right to have access to information about government activity; and Ombudsmen. Several things flow from this: Administrative law tends to be somewhat individualistic in its orientation. It is generally mobilised (and up to a point can only be mobilised) by people pursuing their particular interests. Those pursuing personal interests are often able to make out apparently good cases for special treatment, and while the government can act as a spokesperson for a collective interest, it may not do so satisfactorily in cases where the collective interest — whatever that might be — conflicts with the government’s interests. [page 5] However, administrative law must nonetheless balance individual and collective interests. It must do so because it is concerned with the legality of administrative behaviour, and legality is to a considerable extent determined by what the executive and parliament decide the law is to be. Moreover, judges and members of tribunals are not independent of the political system in which they operate. They are appointed by governments which presumably expect them to behave in certain ways, and their institutional peace of mind (and possibly even survival) may depend on not alienating governments unduly. Courts and tribunals enjoy considerable moral capital, but they may be averse to dissipating it. Administrative law therefore reflects tensions — between the interests of individuals and the collectivity; between those who staff the administrative law system and those whose activities they supervise; and between different actors within the administrative law system.

1.1.3 The imprecise boundaries of administrative law Traditionally, administrative law has been largely concerned with government administration. It is generally conceptualised as lying within the purview of ‘public law’, that is, the law which concerns the relations between the individual and the state. Activities outside the public sector are governed by bodies of private law, such as contract, tort and consumer protection law. Lord W ilberforce in Gouriet v Union of Post Office Workers [1978] AC 435 at 482 claimed that: The distinction between public rights … and private rights, is fundamental in our law. To break it … is not a development of the law, but a destruction of one of its pillars.

Despite Lord W ilberforce’s claims, the distinction is a problematic one. The distinction has never been a rigid one. Administrative law doctrines such as natural justice have expanded into the private sphere, and in particular into situations where members of private organisations find their livelihood threatened. Conversely, private law doctrines such as estoppel nibble away at the purity of public law concepts such as the duty not to fetter one’s discretion. Remedies which are ostensibly purely public law remedies are sometimes, but unpredictably, issued against non-government bodies. Distinguishing between public and private rights is also complicated by the fact that the boundaries of the state are apt to be controversial, as is the question of whether particular functions should be performed by the state. This is particularly so in Australia where statutory corporations have long played an important role in our political economy, and where debates about whether to nationalise or privatise have been an ongoing feature of political life. Finally, while law has tended to draw a distinction between the public and the private, the distinction may be substantively misleading, implying as it does that state power is qualitatively different from other forms of power and even that nonstate exercises of power are possibly of less concern than exercises of state power: for more information on the private/public distinction, see ‘Further reading ’. The distinction is further blurred by the government looking to corporate models for [page 6] reform of the public sector. As a means of delivering services in a more efficient manner, Australian governments have sought to achieve internal coordination by managerial control rather than by strict rules. They have contracted out some of its functions to the private sector. This raises questions about how people may seek appropriate redress for decisions and actions which affect them and whether notions of accountability and openness should not apply equally to private bureaucratic structures which exercise power over people’s lives. For instance, should employment assistance programs be subject to administrative law? W ith the boundaries between the province of administrative law and the province of private law becoming increasingly blurred, it will be interesting to see how administrative law develops and is allowed to develop in relation to these challenges.

2 The constitutional framework

1.2.1 Introduction Administrative law has developed within a constitutional framework defined both by law and convention. The development of administrative law was itself fashioned by constitutional concepts, such as the rule of law, separation of powers and responsible government. Constitutional principles are often discussed as part of administrative law, because in providing for the structure of government, they often control the operation of the state by limiting the power at the disposal of officials.

1.2.2 Parliamentary supremacy and the rule of law W ithin constitutional limits the legislature can enact any law that it chooses. The executive has an obligation to act consistently with that law and the judiciary has a parallel obligation to apply the law. The rule of law requires that everything must be done in accordance with the law. In relation to government, this means that lawful authority must exist for all action taken by government. All exercises of lawful authority must be in accordance with the law. Should government fail to comply with legal requirements, individuals adversely affected by the unwarranted intrusion may bring an action before the courts in order to assert their rights and have the action of the government declared unlawful. Such challenges are made by using administrative law.

1.2.3 Responsible government A central feature of responsible government is that the executive arm of government is headed by members of the parliament. In Australia, the executive arm is formally headed by the Monarch whose powers are exercisable — and exercised — by the Governor-General, a governor or an administrator. This officer, by convention, must choose a government acceptable to the lower house of parliament, and must normally act only on the advice of that government. The political executive is accountable to parliament. This accountability depends on convention and politics rather than law, but is ultimately grounded in the executive’s dependence on parliament for the legislation it needs if it is to give effect to its policies and for the funds it needs if government is to continue. However, even these constraints operate by virtue of convention rather than force of law. In theory a government might refuse to resign or recommend [page 7] an election following denial of supply by the lower house, and a governor might refuse to dismiss it. This would give rise to a constitutional crisis, but its resolution would depend on politics rather than law. It is convention rather than law which explains why Australian governments have normally resigned or been dismissed following refusal of supply, whereas in the United States, a Congressional refusal to pass a budget simply meant that the United States government gradually ceased to function as the money began to run out, political pressures eventually securing a compromise between the president and his congressional adversaries. The convention that the government should resign or seek an election on losing the confidence of the lower house is supplemented by a second quasi-convention to the effect that individual ministers should resign in certain circumstances. In theory ministers are responsible both in the sense of being responsible for their own conduct and for those of their subordinates. The doctrine operates only in a very attenuated form. The complexity of government activities means that it would often be unrealistic to expect that ministers take full responsibility for any error committed by an officer in their department: Minister for Arts, Heritage and Environment v PekoWallsend Ltd (1987) 15 FCR 274 at 277; 75 ALR 218 at 223 per Bowen CJ. Moreover, even where ministers have been at fault, they rarely resign, and normally rely on party solidarity to save them from attack. Responsibility is better described as accountability. Ministers who err face parliamentary scrutiny of their behaviour. They pay a price, but it is a subtle, political price. It is paid both by governments which do not put pressure on an errant minister to resign and on ministers who have not made the supreme sacrifice. Their authority is reduced, and their political future may suffer.

1.2.4 Representative democracy In a representative democracy ‘the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act’: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 138; 108 ALR 577 at 594 per Mason CJ. This concept of representative democracy embodies two notions: open government and accountable government: ‘Open government’ requires that electors have access to the information, ideas and arguments which are necessary to make an informed judgment as to how they have been governed and as to what policies are in the interests of themselves, their communities and the nation: Australian Capital Television Pty Ltd v Commonwealth at CLR 231 per McHugh J. ‘Accountable government’ requires that once information is accessible, individuals can communicate [their] views … [and] criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives: Australian Capital Television Pty Ltd v Commonwealth at CLR 138 per Mason CJ.

The ideals implicit in these observations square uneasily with the reality of Australian politics, an arena in which presentation matters more than policies, and in which arguments about policies tend to involve competitive mis-representation with the winner being the party that can best deceive the electorate. As it stands, [page 8] the electorate seems to penalise politicians who promise only the achievable, while self-righteously condemning politicians for dishonesty. The Australian polity would be healthier if voters were mature enough to base their choice between parties on the basis of an informed assessment of the merits of their policies, and parties reciprocated by seeking support on the basis of realistic promises and reasoned defences of their worth. But democrats must ultimately take voters as they find them, and the task of Australian politicians is to appeal to the

emotions of a restive electorate, while somehow governing in a manner consistent with the dispiriting rules of arithmetic. The High Court’s ideals are nonetheless important, if only as a guide as to how the High Court will be disposed to act in face of threats to political communication. And an absence of free and informative political communication would be even worse than its ineffectiveness.

1.2.5 Separation of powers Australian versions of this doctrine involve a limited degree of separation between the executive and the legislature, and a judiciary which is largely independent of the other two branches. This distinction has its origins in English law, where it reflects convention, but is even more central to an understanding of Australian law, where it is effectively mandated by the Constitution at federal level, and where state systems of administrative law have developed in the shadow of the Australian Constitution: Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; 138 ALR 577. One rationale for the separation of powers is functional: different functions require different kinds of skills, and it is therefore appropriate that they be performed by different people. Another is to reduce the likelihood of abuse of state and institutional powers. There are two aspects of this: first, separation of powers means that the state is likely to be weak, and therefore less likely to be repressive. (It may also be less likely to be effective.) It also means that it will be more difficult for the incumbents of any one branch of the state to pursue their own particular interests. In this respect, it reflects fears firmly grounded in millennia of political experiences. The separation of powers doctrine is predicated on something of a fiction: that government powers can be classified as legislative, executive or judicial, and that it is feasible to confine legislative and executive powers to a legislature and an executive while leaving judicial powers to the judiciary. This does not matter too much: the fact of separation is probably more important than its coherence. In any case, the doctrine is taken seriously by the courts and has influenced the structure of Australian administrative law. However, the conceptual problems which bedevil separation of powers doctrines create grey areas where one or more of the arms of government might appear to be trespassing into the territory of the other. Legislatures and executives complain that the judiciary is usurping their functions; courts complain that politicians are threatening their independence. Border disputes are much more interesting than peaceful coexistence, and it is easy to forget the degree to which Australian administrative law reflects a broad consensus among politicians and judges. (A good case can be made for the proposition that it has been politicians rather than judges who laid the basis for Australia’s system of judicial review. And while some Federal Court judges may have trespassed unduly [page 9] into executive decision making, the High Court has tended to discourage such adventures, even while engaging in adventures of its own.)

1.2.6 Separation of powers and administrative law The separation of powers doctrine both justifies and complicates Australian administrative law — especially at federal level where the local version of the doctrine is constitutionally entrenched. The complications arise from the existence of ‘tribunals’, court-like bodies which perform like courts and have some of the powers of courts, but whose members often lack the status and security of tenure which help provide the basis for the independence of the traditional courts. Tribunals now operate in both the private law and public law areas, and may be established both by private bodies (such as the Australian Football League or AFL) and governments. In the public sphere they pose a variety of problems. The least serious relates to the fact that public law tribunals may be empowered to exercise all the powers of the primary decision maker. They are therefore vested with full executive power, while being required to behave in a court-like manner. Separation of powers requires that courts not be the respositories of executive power. It does not, however, preclude the executive from behaving in a court-like manner. Indeed, administrators whose decisions directly affect the rights and interests of individuals are expected to provide a fair hearing, to make rational decisions and above all, to act within the law. W hat separation of powers precludes is the exercise of judicial powers by tribunals which lack the institutional independence of the courts, and attempts to confer executive functions on the courts. Authority is provided by Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; 127 ALR 1. Brandy, an officer of the Aboriginal and Torres Strait Islander Commission (ATSIC) lodged a complaint against a fellow officer, Bell. Bell complained that he had been subjected to verbal abuse and threatening behaviour in contravention of Pt II of the Racial Discrimination Act 1975 (Cth). The Human Rights and Equal Opportunity Commission (HREOC) found the complaint substantiated and issued a number of declarations pursuant to s 25Z(1) of the Racial Discrimination Act including that Brandy apologise and pay damages. This determination was not binding or conclusive between any of the parties to the determination. In accordance with the Act’s prescribed procedure for enforcement of the tribunal’s determination, the Commission lodged the determination with the Federal Court and it was registered in accordance with s 25ZAA(2) and (3). The issue before the court was whether the provisions in Pt III of the Racial Discrimination Act were valid. Those provisions conferred finality on a determination of the Commission once it had been lodged with and registered by the court. The High Court upheld the challenge to the validity of these provisions, finding that the legislative scheme did not merely provide the machinery for the enforcement of a determination, it purported to give a registered determination effect ‘as if it were an order made by the Federal Court’. This constituted an exercise of judicial power by the Commission. As HREOC was not constituted as a court within the terms of the Constitution, the provisions breached the terms of the Constitution and were therefore invalid. Mason CJ, Brennan and Toohey JJ said at CLR 260 that:

[page 10] [A]n exercise of executive power by the Commission and the performance of an administrative function by the Registrar of the Federal Court simply cannot create an order which takes effect as an exercise of judicial power; conversely, an order which takes effect as an exercise of judicial power cannot be made except after the making of a judicial determination.

The court also noted that even if the review function entrusted to the Federal Court is an exercise of federal judicial power in the form of a grant of original jurisdiction, the determination is registered and becomes enforceable in circumstances where the review procedure is not invoked. W hat saves Commonwealth administrative tribunals from a similar fate, is that the decisions of administrative tribunals have no greater effect in law than those of primary decision makers and are not directly enforceable: Dahlia Mining Co Ltd v Collector of Customs (1989) 90 ALR 193. The enforceability of decisions affecting legal rights or obligations now appears to be the distinguishing feature of judicial power. This is a legal distinction rather than a substantive one. Indeed, one might observe that the only difference between an administrative tribunal’s decision and an order of the Family Court or a Magistrates Court is that the former is more likely to be complied with! W hile the logic of the separation of powers precludes the conferral of judicial powers on executive bodies, it also implies that courts should not be given executive functions. This has the potential to cause difficulties when legislation provides for the appointment of judges to merits review tribunals. At state level, this problem is not particularly acute: state constitutions do not preclude blurring of boundaries between judges and administrators. But the Commonwealth Constitution is less tolerant of boundary blurring. One solution to the problem has been to draw a distinction between judges acting as judges and judges acting in other roles. The High Court has accepted that there are some roles which are non-judicial, but which are appropriately performed by judges in a non-judicial capacity. These include determining whether to issue warrants, and sitting as a member of a tribunal. W hen judges perform these roles, they do so not in their judicial capacity, but as repositories of the power in question. That said, judges are wary about judges being asked to perform non-judicial functions. There is considerable unease about sitting judges presiding over Royal Commissions, and there would be even more about judges performing functions which do not resemble judicial functions. Indeed at federal level, the High Court has held that judges may perform executive functions only if they agree and only if this would not undermine the standing of the courts. Since state courts generally exercise federal jurisdiction, it follows that relevant state judges may not be given executive functions inconsistent with their status as judges: Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; 138 ALR 220. Separation of power constraints are weaker at state level: indeed, rather than create a merits review tribunal, Tasmania has confered a merits review jurisdiction on the Magistrates Court.

1.2.7 Application The logic of the Australian version of separation of powers is that it is important to distinguish between two forms of administrative review: [page 11] judicial review, and merits review. It can be difficult to draw this distinction, since both judicial review and merits review require decisions as to the meaning of relevant law. It may nonetheless be possible to draw three important distinctions by examining: the purpose of the review, the review bodies’ remedial powers and the status of the decisions. Purpose Judicial review may be concerned with matters which are irrelevant to the question of merits review. Judicial review is often concerned with whether the decision maker had the power to make the decision and whether the process whereby the primary decision was made was lawful: see Chapter 4 . If there was any kind of material procedural error, the court may order the matter to be set aside. On review on the merits, the question of whether there were prior procedural errors is immaterial, so long as the tribunal avoids making any of them. Conversely, a decision may be legally impeccable, but ‘wrong’ on the merits. The review tribunal may find that while there were no legal errors in the primary decision maker’s factfinding process, the primary decision maker nonetheless made a mistaken finding of fact. Merits review provides an opportunity for review of the entire decision: the process of reaching the decision, the facts, the law and the policy, and their application to the facts are reconsidered afresh and a new decision is made. The purpose of merits review is to determine whether the decision for which review is sought is the ‘correct or preferable decision’: see 2.2.4 . Moreover, merits review involves evaluation, and the review tribunal may differ from the primary decision maker’s assessment in relation to the decision which it considers ought to be made. Remedial powers Given these distinctions, the powers of courts and tribunals are and must be different. W hile courts can set aside the primary decision, they cannot normally substitute a different decision as they cannot substitute their own opinion on matters which parliament has left to the judgment of an administrative decision maker: see 12.1.6 , 12.1.14 . State Supreme Courts could possibly be given a limited power to do so, and states can create specialist courts with the power to make meritsbased decisions. There are examples such as the Land and Environment Courts of New South Wales, Queensland and South Australia, but these are exceptional. Merits tribunals have the power to remake decisions and to exercise the same powers and discretions as those conferred on the primary decision maker by the enabling statute: see 2.2.2 . The fact that a tribunal possesses the powers of the primary decision maker means that its decision has the same effect, in law, as the decision under review. Consequently, the enforcement problems raised by the Brandy case do not arise. These distinctions have implications for choice of strategy when a person is aggrieved by a particular decision: see Chapter 17 .

Moreover, while tribunal decisions are not binding in the way that higher court decisions are, they nonetheless have persuasive force, especially given the importance attached by administrators to consistency. Status of decisions The decisions of courts are binding on administrators and may be binding on other courts. The decisions of merits review tribunals are not binding and have no greater effect in law than those of the primary decision maker. However, when the tribunal varies the decision under review or substitutes a new decision, the decision is deemed to be that of the person who made the reviewable decision and binds the responsible government department and the parties: see [page 12]

2.2.13 . This overcomes the problems of enforcement encountered by the HREOC in the Brandy case: see 1.2.6 . Provided the legislation under which the decision is made is constitutional, the review tribunal’s decision on the merits does not infringe the doctrine of separation of powers: Re Registrar, Social Security Appeals Tribunal: Ex parte Townsend (1995) 130 ALR 163.

1.2.8 The blurred distinction between judicial review and merits review Distinguishing the merits of a decision from its lawfulness requires a distinction to be drawn between questions of fact and value and questions of law. As we have shown, the distinction is important because it is normally only merits review bodies that determine questions of fact and only judicial bodies can conclusively determine questions of law: see 3.6.2 . The distinction between questions of law and questions of fact is often clear, but not always: There are mixed questions of fact and law. Decisions such as: ‘Is this person a refugee?’, involve both questions of fact and questions of law. Answers to each will tend to colour how the decision maker answers the other. Fact finders’ powers to make findings of fact are limited by law. There must be some evidence or ground for these findings. Nor may the finding be so unreasonable that no reasonable decision maker acting according to law could have made it. Both these issues are discussed below: Chapter 9 . In exceptional circumstances, laws may be interpreted as conditioning the exercise of a power not on the repository’s reasonable beliefs in the existence of facts, but on the actual existence of those facts. In such cases, a review court must determine whether the requisite facts existed. For good reasons, courts rarely assume that the exercise of power is so conditioned, but occasionally they do — even when there seems little legislative foundation for doing so. The meaning to be given to words and phrases is ultimately governed by law, but may also involve questions of fact. This is the case when legal documents are being construed and where the legal significance of particular statements is to be determined. Determining whether the meaning to be given to words is a question of fact or law can be difficult: see Collector of Customs v Pozzolanic Enterprises Ltd (1993) 43 FCR 280; 115 ALR 1 and Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389; 141 ALR 59 in which doubts were expressed about one of the propositions advanced in Pozzolanic . Further, while it is often possible to distinguish between legal questions (the scope of a decision maker’s discretion) and merits questions (how the discretion is exercised), the distinction can be blurred: Interpretations of law may well reflect judicial values. Interpretations of law may be chosen on the basis of the outcome they yield in a particular case. Some grounds for review are so vague as to give considerable scope for the introduction of de facto merits review. The ‘considerations’ grounds are sometimes used in this way, as is the substantive unreasonableness ground: see Chapters 8 , 9 . [page 13]

3 Australian administrative law 1.3.1 Development of Australian administrative law The reception of English law into the Australian colonies included the common law principles used by the courts to regulate the relationship between the governed and the government. These principles were largely the same as those the courts applied to private law matters. As a result, there was no coherent body of law referred to as administrative law. A century ago, the English constitutional lawyer, Dicey, argued that the traditional English system with its lack of administrative law, upheld the rule of law in that it applied the ordinary law to government through the ordinary courts. As Dicey said there is no ‘exemption of officials or others from the duty of obedience to the law’: A V Dicey, The Law of the Constitution , 10th ed, Macmillan, London, 1960, pp 202–3. At the time, this was simply not true, but it reflects noble aspirations.

1.3.2 Reform of Australian administrative law Concern about the power of the bureaucracy and an awareness that the common law control over the administration was limited led to the introduction of a reform package commonly referred to as the ‘New Administrative Law’. It comprised the Ombudsman Act 1976 (Cth), the Administrative Decisions (Judicial Review) Act 1977 (Cth), the Administrative Appeals Tribunal Act 1975 (Cth) and the Freedom of Information Act 1982 (Cth). It also involved the establishment of an Administrative Review

Council which monitors the operation of the system of administrative review. Since the 1970s, institutions to control the corruption of executive government have burgeoned. There has also been increasing concern with institutional mechanisms for making administrators responsible both to their organisational superiors and to ministers, and to ‘consumers’ and other stakeholders.

1.3.3 Structure of Australian administrative law Mechanisms for holding the administration accountable can be broadly categorised as follows: tribunal review of administrative action: see Part 2 ; judicial review of administrative action: see Part 3 ; rights of access to information: see Part 4 ; Ombudsman review of administrative behaviour: see Part 5 ; and other external review, including review both by hierarchical superiors, and outsiders: see Part 5 . The first four mechanisms are to a considerable extent designed to cater to individual grievances. Ideally, individual complaints should be reflected in institutional adaptations to minimise the incidence of such complaints. The reality may be more complex. A particular level of complaints may be accepted as part of an agency’s risk management structure, or worse, the review bodies may not manifest sufficient consistency to guide even such administrators as are anxious to comply with tribunal and court decisions. Freedom of Information and the Ombudsman have more scope for achieving collective values. Freedom of Information may make [page 14] for a more informed citizenry — although Freedom of Information works far better for those who want information of largely personal interest than it does in relation to those who are seeking information of general interest. The Ombudsman, while in many ways reactive, also processes such a body of complaints as to have a real chance of being able to identify structural weaknesses in the administration. Doing so, moreover, is part of the Ombudsman’s duties: see 15.1.3 .

1.3.4 Review of administrative decisions and action An administrative decision may be wrong for a variety of reasons. It may be legally flawed. Alternatively, it may not involve any errors of law, but it may nonetheless not constitute a satisfactory decision. It may, for example, be based on what turns out to be an erroneous assessment of the relevant facts, or it may involve an exercise of a discretion which, while consistent with the decision maker’s legal powers, nonetheless seems substantively unsatisfactory. Decisions which are legally flawed can be reviewed by courts, and if legal error can be established, the court may set the decision aside. This is known as judicial review and is discussed at Part 3 . The importance of the Administrative Decisions (Judicial Review) Act 1977 (Cth) is that it facilitates judicial review, a process which had once been highly technical. Courts are not supposed to inquire into the substantive merits of a decision. Accordingly, if decisions were to be reviewable on the grounds that the administrator could have made a ‘better’ decision, a non-curial institution had to be established to perform this function. Merits review institutions are discussed at Part 2 . At the Commonwealth level, the Administrative Appeals Tribunal (AAT) performs this function. It was the first element of the institutions of the new administrative law to be established, and was intended to combine accessible review procedures with a relatively independent and respected tribunal. In contrast to the existing tribunal ‘system’, it was to be a comprehensive review tribunal, which would develop system-wide standards and subject a wide range of administrative agencies to external review. The tribunal never achieved a monopoly over merits review: in particular, migration decisions remained outside its jurisdiction. It did, however, achieve a very broad jurisdiction, including an appellate jurisdiction from specialist first instance tribunals in the high business areas of social security and veterans’ affairs. The AAT resembles a court but its powers include those of administrators. As discussed above at 1.2.8 , the distinction between review on questions of law and review on the merits is sometimes a rather fine one.

1.3.5 Judicial review Among the achievements of the New Administrative Law was a simplification of the judicial review process. The grounds for judicial review were left largely unchanged, but the task of the aggrieved individual was simplified by providing people with a right to demand reasons for decisions which affected them. This meant that it was easier for people to know whether the administrator had made a mistake. (It also meant that at least some aggrieved individuals could learn that the administrator actually did have good grounds for the adverse decision.) The making of applications was simplified, as was the previously complex law of remedies. W hile sometimes of a relatively technical nature, these developments appear to have stimulated a sharp increase in administrative law litigation. [page 15]

1.3.6 Access to information The New Administrative Law sought to overcome the common law tradition of secrecy so that disclosure of government information is, of itself, in the public interest unless countervailing matters of public interest outweigh disclosure: see 14.1.4 . In order to ensure open and accountable government, individuals need to have a right of access to various forms of information held by government. This information includes the policies which govern the exercise of statutory discretions, information relevant to the making and

evaluation of political decisions, and the information relied upon in reaching decisions concerning individuals. There are two components which provide increased access to information: access to reasons of an administrative decision maker is provided for by legislation: see Chapter 13 ; the Freedom of Information Act provides a general right of access limited by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of individuals: see Chapter 14 .

1.3.7 Ombudsman Among the most important elements of the New Administrative Law was the establishment of the office of the Ombudsman. In contrast to the tribunals and courts, the Ombudsman possesses only a recommendatory power, but Ombudsman recommendations are taken seriously. Non-compliance is extremely rare. The Ombudsman is also responsible for making more general recommendations in relation to matters of administration, and Ombudsman Annual Reports highlight the importance of this aspect of the Ombudsman’s role. The Ombudsman is discussed at Chapter 15 .

1.3.8 Investigatory bodies and political supervision This does not exhaust the list of rules and procedures for ensuring administrative accountability and legality. Parliament and politics still have a role to play in this respect. Indeed, long before the age of the New Administrative Law, the Senate had established a standing committee to supervise the regulation-making process. For the time being at least, this remains the most important mechanism for ensuring that regulations are not only legal (in the sense of being consistent with enabling legislation), but also appropriate (in the sense that they do not infringe on fundamental rights, or cover matters which ought to be governed by Acts rather than regulations). (More details on the regulation-making process are provided in Chapter 6 .) Politics also operates in less formal ways to ensure a form of accountability. Political controls coexist with other review processes. Freedom of Information laws enhance political controls, insofar as they make politically embarrassing information more accessible. The powers of the Ombudsman are in part based on the Ombudsman’s capacity to mobilise political sanctions. Supervision is also achieved through other institutions. Auditors-General are charged with monitoring government expenditure with a view to identifying fraud and inefficiency. Corruption Commissions may serve to discourage official misbehaviour. ‘W histleblowers’ may expose government misbehaviour, and legislation which protects such exposures might be expected to increase the degree to which these take place. W e discuss these processes in Chapter 16 . [page 16]

4 State and territory systems of review The states and territories have gradually followed the federal lead and in some instances introduced significant reforms. In the chapters which follow, our emphasis will be on federal rather than state administrative law. This is partly because in many respects, the rules and institutions are similar. It also reflects the fact that space considerations simply do not permit detailed descriptions of the features of all nine Australian jurisdictions. However, it is important to recognise both the similarities and differences between federal and state and territory administrative law systems.

1.4.1 Merits review State practice is somewhat different from Commonwealth practice. Until recently the typical state practice was to establish specific tribunals to hear disputes in a range of jurisdictions including antidiscrimination, consumer claims, residential tenancies, commercial matters, gaming licences, mental health, guardianship, victims’ compensation and professional discipline. The Australian Capital Territory followed the Commonwealth model, and in 1984 Victoria created an Administrative Appeals Tribunal, modelled on the Commonwealth AAT, and the Australian Capital Territory mirrored the Commonwealth review procedures upon being given local self-government. In 1997, New South Wales established the Administrative Decisions Tribunal, a mixed tribunal which exercised the powers of many of the old specialised ‘civil’ tribunals as well as administrative review powers. The Victorian Civil and Administrative Appeals Tribunal, which was established the following year, possesses a particularly broad jurisdiction: see 2.1.8 . The Victorian model has spread to the Australian Capital Territory, New South Wales, Queensland, South Australia and, in a slightly attentuated form, Western Australia. Rather than establish a new administrative tribunal, Tasmania conferred an administrative review jurisdiction on the Magistrates Court. The states’ more flexible constitutions mean that enforcement powers can be given to bodies staffed by people other than those with judicial tenure. For similar reasons, states are able to confer merits review powers on courts, and several have done so. The New South Wales Land and Environment Court is a long-standing example of such a court.

1.4.2 Judicial review Four jurisdictions (Australian Capital Territory, Queensland, Tasmania and Victoria) have passed legislation to streamline the procedures for seeking judicial review of administrative decisions. In New South Wales, the Northern Territory, Queensland, South Australia and Victoria, changes to the Rules of Court have facilitated applications for judicial review other than pursuant to the judicial review statutes. The statutory schemes and the reformed procedural rules have eliminated many of the complexities which once attended the making of applications for judicial review.

1.4.3 Access to information In the Australian Capital Territory, New South Wales, Queensland, Tasmania and Victoria, access to reasons has now been provided pursuant to statutory judicial review provisions (Australian Capital Territory, Queensland, Tasmania, Victoria), and under legislation establishing general merits [page 17]

review tribunals (Australian Capital Territory, New South Wales, Queensland, South Australia, Victoria, Western Australia). In addition, Freedom of Information legislation has been passed in all jurisdictions, the Northern Territory being the last jurisdiction to do so. The state and territory legislation was closely modelled on the federal legislation. However, a number of these Acts have also sought to improve on the federal provisions. For instance, the Victorian and Tasmanian Acts provide a restriction on the application of a number of exemptions to a period of years after the creation of the document. The Victorian Act provides for the release of an otherwise exempt document on the grounds of overriding public interest and the Queensland and Western Australian Acts standardise the public interest test.

1.4.4 Delegated legislation In relation to delegated legislation, four states have gone considerably further in the direction of openness than the federal system. New South Wales, Queensland, Tasmania and Victoria have enacted relatively elaborate procedures, designed to encourage and facilitate public input into the making of delegated legislation. These schemes require that before making subordinate legislation, the maker prepares a Regulatory Impact Statement, and gives notice of this. Public feedback is to be sought and taken into account. Regulations, once made, are subject to a sunset clause. In all jurisdictions, parliament has established committees to review delegated legislation for legality and appropriateness: see Chapter 6 .

1.4.5 Investigation Ombudsmen and Auditors-General exist in every jurisdiction. In addition, New South Wales, Queensland, Victoria and Western Australia have established permanent investigative bodies to inquire into official misconduct and corruption. States and territories also appoint Royal Commissions of Inquiry from time to time to inquire into specific issues.

5 The structure of this book 1.5.1 The focus of this book This book will focus on the core areas of administrative law, merits and judicial review. Part 3 of this book examines judicial review in detail as this is generally considered the more complex aspect of administrative law. However, the large and ever-increasing number of people who make use of and are affected by merits review has encouraged us to devote considerable attention to this component in Part 2 of the book. The focus is on Commonwealth law, but reference is made to state and territory law where it is significantly different.

1.5.2 Other areas In addition to these core areas of administrative law, Part 4 considers access to information as a means of informing those affected by government decisions of the basis upon which the decision has been made and as a means of facilitating both merits and judicial review. Finally, in Part 5 , we discuss organisational and political controls over administrative behaviour along with the use of investigative bodies and whistleblower protection. Choice between available avenues of redress is discussed in Part 6 . [page 18]

Further reading Public/private distinction Airo-Farulla, G, ‘Public and Private in Australian Administrative Law’ (1992) 3 Public Law Review 186. Thornton, M (ed), Public and Private: Feminist Legal Debates , Oxford University Press, Melbourne, 1995.

Administrative law theory Allars, M, ‘Theory and Administrative Law: Law as Form and Theory as Substance’ in K Cole (ed), Administrative Law and Public Administration: Form vs Substance , Australian Institute of Administrative Law, Canberra, 1995. Administrative Review Council, First Annual Report 1977 , AGPS, Canberra, 1977. Mason, Sir Anthony, ‘Administrative Review: The Experience of the First Twelve Years’ (1989) 18 Federal Law Review 122.

General Creyke, R, McMillan, J and Smyth, M, Control of Government Action: Text, Cases and Commentary , LexisNexis Butterworths, Sydney, 2013, ch 1. Douglas, R and Head, M, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014, ch 1.

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PART 2 Challenging Administrative Decisions — Merits Review

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2 The Form and Nature of Merits Review Systems General In Chapter 1 you were introduced to the distinction between merits and judicial review. In this chapter and the next, we will consider merits review in more detail. We will begin by considering the availability of merits review in Australia, the nature of merits review and its objectives. In this chapter we will also consider how merits review tribunals obtain their jurisdiction and who may apply for merits review. In Chapter 3 we will focus on the mechanics of merits review tribunals. The discussion will focus on the Administrative Appeals Tribunal (Cth) (the AAT) and the Civil and Administrative Tribunals of the Australian Capital Territory, New South Wales, Queensland, South Australia and Victoria (the CATs), and the Western Australian State Administrative Tribunal. We will also make some reference to other tribunals.

Objectives After studying this chapter, you will understand: 1. 2. 3. 4. 5.

the different forms of merits review; the nature of merits review; the objectives of merits review; the jurisdiction of merits review tribunals; and the standing requirements for merits review tribunals.

1 Forms of merits review 2.1.1 Parliamentary intervention W hen the Commonwealth of Australia was first established, individuals were only able to question the merits of a government decision by recourse to parliament. Individuals could ask a member of parliament to approach the responsible minister on their behalf. The member of parliament [page 22] would seek review of the decision affecting the individual by writing a letter to the responsible minister or by invoking parliamentary procedures such as questions to the minister.

2.1.2 Jurisdiction-specific merits review Before the New Administrative Law many areas of administrative decision making were not reviewable on the merits: see 1.3.2 . Further, decision makers were not required to give reasons which revealed their decision-making process. In those areas where merits review was available, review processes were created under individual legislative or administrative schemes. Some of these review processes were conducted within the agency, others were conducted outside the agency. The degree to which these forms of review were available and the powers available to the reviewer depended on the law in the area and the policy of the agency.

2.1.3 Internal review Internal review is the process where the responsible government agency reviews on the merits a decision made by one of its officers. The reviewing officer can usually substitute a new decision if the decision under review is found to be defective on matters of law, merits or administrative process. Internal review is probably the oldest form of merits review. Even before the New Administrative Law, agencies had arrangements for some form of review of decisions by ministers, departmental secretaries or particular officers. However, this form of review tended to be restricted in ambit, was often discretionary and its independence was doubtful.

2.1.4 External merits review tribunals In addition to this discretionary and ad hoc internal review, administrative review tribunals were created in some jurisdictions to review decisions on the merits. For instance, the War Pensions Entitlement and Assessment Appeals Tribunal was established under the Australian Soldiers Repatriation Act 1920 (Cth). Such tribunals conduct external review of agency decisions. External review is the process where an independent body, separate from the responsible government agency, reviews on the merits a decision made by the primary decision maker or the review officer of the agency. The external review body can usually substitute a new decision if the decision under review is found to be defective on matters of law, merits or administrative process. However, in some instances, the external review body only has recommendatory powers: see 2.2.1 .

2.1.5 Rationale for change to merits review processes These methods of administrative review were considered unsatisfactory: parliamentary review is haphazard; internal review is discretionary and lacks independence; jurisdictionspecific merits review tribunals generally have widely varying powers, procedures and membership; and judicial review is costly, technical and limited to questions of law. At Commonwealth level, this last limitation is one that cannot be

overcome by legislation: attempts to vest federal courts with a merits review jurisdiction would involve an impermissible conferral of executive powers on Ch III courts. At state level, this problem is less acute, and Tasmania has conferred a merits review jurisdiction on its Magistrates Court. In addition, with the New Administrative Law came a governmental commitment to facilitating challenges to administrative [page 23] action. This included a commitment to administrative principles like open and reviewable decision making; consistency as to which decisions should be subject to review and the manner in which review should be undertaken; accessibility of services; a focus on substantive rather than procedural issues and the participation of citizens in decision-making processes.

2.1.6 Federal merits review and the New Administrative Law The federal government led the way in the establishment of a merits review system. In the early 1970s two committees were established to consider the Commonwealth merits review system: the Kerr Committee ( Commonwealth Administrative Review Committee Report , Parliamentary Paper No 144 of 1971, CGPS, Canberra, 1971) and the Bland Committee ( Final Report of the Committee on Administrative Discretions , Parliamentary Paper No 316, CGPS, Canberra, 1973). These Committees recommended a comprehensive system of administrative law tailored to Australian conditions and constitutional constraints. A key recommendation was the establishment of a coherent and integrated Commonwealth merits review system including an independent general appellate tribunal with powers to review a wide range of administrative decisions on the merits.

2.1.7 Federal general review tribunal The response to these recommendations was the enactment of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). This Act created the Administrative Appeals Tribunal (AAT). The creation of the AAT enabled the review functions to be centralised in a single body, ‘with a view both to providing effective, independent and visible review of all appropriate decisions and to ensuring consistency of review standards across all jurisdictions’: Administrative Review Council, Constitution of the Administrative Appeals Tribunal , Report No 29, AGPS, Canberra, 1987, p 3. This was the first generalist merits review tribunal created in Australia.

2.1.8 General review tribunals in the states Generalist merits review tribunals similar to the federal AAT were established in Victoria and the Australian Capital Territory: see Administrative Appeals Tribunal Act 1984 (Vic); Administrative Appeals Tribunal Act 1989 (ACT). The legislation establishing these tribunals was modelled on the AAT Act (Cth). In 1998, Victoria replaced its AAT with a ‘super tribunal’, the Victorian Civil and Administrative Tribunal (VCAT) and New South Wales also established a ‘super tribunal’, the Administrative Decisions Tribunal (NSW ADT): Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act); Administrative Decisions Tribunal Act 1997 (NSW ) (ADT Act (NSW )). These tribunals were given jurisdiction over both administrative matters and matters once handled by specialist civil tribunals. The Australian Capital Territory and New South Wales subequently overhauled their tribunal legislation and established Civil and Administrative Tribunals (CATs) with more comprehensive jurisdictions. (The New South Wales ADT Act survived, renamed and amended, and supplements the provisions of the Civil and Administrative Tribunal Act 2013 (NSW ).) Queensland, South Australia and Western Australia have also established CATs or their equivalents: ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act); Civil and Administrative Tribunal Act 2013 (NSW ) (CAT Act); Queensland [page 24] Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act); South Australian Civil and Administrative Tribunal Act 2013 (SA) (SACAT Act); State Administrative Tribunal Act 2004 (WA) (SAT Act). Tasmania decided to confer responsibility for most merits review decisions on divisions of established courts. In South Australia, the District Court is responsible for hearing a broad range of administrative matters. In Tasmania, merits review has been entrusted to a newly created Administrative Appeals Division of the Magistrates Court: Magistrates Court (Administrative Appeals Division) Act 2001 (Tas). The reviewability of administrative decisions is governed not by the legislation constituting the tribunal, but by legislation which confers jurisdiction in relation to particular administrative decisions (typically, but not necessarily, decisions under the legislation that confers the relevant decision-making power). As to the desirability of review by ‘tribunals’ as opposed to ‘courts’, see J Anderson, ‘Merits Review in the States and Territories’ in J McMillan (ed), The AAT — Twenty Years Forward , AIAL, Canberra, 1998, pp 286–8.

2.1.9 Increasing importance of internal review At Commonwealth level, the AAT was the first part of the New Administrative Law package to be established. Its jurisdiction expanded steadily, but has largely levelled off over the last few decades. The number of pieces of legislation confering jurisdiction has remained around 400 for several decades, and the number of applications to the AAT has remained around 6–7,000. The AAT has achieved considerable legitimacy, and there have been no serious attempts to roll back its role in the review system. Moreover, in areas handled by specialist tribunals there has been a trend towards conferring greater powers on tribunals, as evidenced by the establishment of merits tribunals in the politically fraught migration area, and by the conferral of decision-making, as opposed to recommendatory power, on the Social Security Appeals Tribunal (SSAT). States were slow to follow the Commonwealth example, and most of them have opted to follow a Victorian precedent, the establishment of tribunals that exercise both merits review functions in administrative law cases, and court-like powers in various private law areas. The legislation conferring jurisdiction on the tribunals does not necessarily allow appeals from all primary decisions. The Administrative Decisions Review Act 1997 (NSW ) (ADR Act) makes statutory provision for internal review, making it a precondition to external merits review in most cases: ADR Act (NSW ) s 55(1)(b) (this provision survived the passage of legislation establishing the CAT). In the other jurisdictions, there are no such provisions in the general tribunal legislation, but some are to be found in the statutes which confer jurisdiction and regulate its exercise. For instance, the AAT Act (Cth) does not make reference to internal review. In these jurisdictions, internal review processes are only available at the discretion of the agency or where they are prescribed by statute. In the social security jurisdiction, internal review undertaken by Authorised Review Officers or the Secretary is a mandatory prerequisite to external review for most decisions: Social Security Act 1991 (Cth) Pt 6.1.

2.1.10 The proliferation of tribunals The current Commonwealth merits review system is not as streamlined as envisaged by the Kerr and Bland committees.

[page 25] A number of distinct tribunals were retained when the general tribunals were created and a number has been created since their establishment. For example, at the federal level: Some of these jurisdiction-specific tribunals review decisions which the general tribunal, the AAT, does not have jurisdiction to review, for example, the Merit Protection Commission. In the high-volume jurisdictions of veterans’ entitlements and social security, a two-tier structure has been created. After internal review, an applicant must seek review of a decision before the first tier tribunal, such as the SSAT or Veterans Review Board (VRB). An appeal then lies from decisions of the first tier tribunal to the second tier general tribunal, the AAT. In the high-volume jurisdiction of migration, two specialist tribunals have been created, the Migration Review Tribunal (MRT) (formerly the Immigration Review Tribunal (IRT)), and the Refugee Review Tribunal (RRT). There is no general right of appeal to the AAT from these decisions. However, the Principal Member may refer a matter to the AAT for determination.

2.1.11 Umbrella tribunals of the future? At state and territory level, there has been a tendency towards consolidation. The CATs have incorporated most of the numous specialist tribunals which existed prior to their establishment, and unlike the AAT, include both primary and appeal jurisdictions. Critics of the proposal for the establishment of the Administrative Review Tribunal (see below) argued that some of the benefits of specialist tribunals such as accessibility, specialist expertise, diversity and innovation may be lost: see, for example, R Bacon, ‘Are the Babies Being Thrown Out with the Bathwater?’ in C Finn (ed), Administrative Law for the New Millennium , AIAL, Canberra, 2000, pp 150–75. In their view, the changes might not bring the anticipated benefits of efficiency and economy. Sir Gerard Brennan has argued that the AAT’s appellate role in relation to the ‘mass business’ tribunals means that it was better equipped to achieve in its decisions and thereby better able to provide normative guidance to administrators: ‘Twentieth Anniversary of the AAT — Opening Address’ in J McMillan (ed), The AAT — Twenty Years Forward , AIAL, Canberra, 1998, p 16.

2.1.12 Tiered tribunals The review by the Administrative Review Council (ARC) of the system of Commonwealth Merits Review Tribunals, Better Decisions: Review of Commonwealth Merits Review Tribunals , Report No 39, AGPS, Canberra, 1995 also recommended the creation of an umbrella review tribunal, the Administrative Review Tribunal (ART). In addition, it recommended the introduction of a tiered system of merits review at the federal level. Legislation to establish such a tribunal was introduced in 2000, but many features of the proposed reform were highly controversial, and the bill was defeated in the Senate: Administrative Review Tribunal Bill 2000 (Cth). However the NSW ADT was given both first instance and review jurisdictions. The state and territory Civil and Administrative Tribunals are also tiered. [page 26]

2.1.13 How does a tiered system work? Tiered systems are structured so that jurisdiction-specific tribunals are amalgamated into one umbrella tribunal. Different Divisions are created for different jurisdictions. These Divisions operate under procedures tailored specifically for that jurisdiction. Decisions of these divisional tribunals can then be appealed to an Appeal Panel: At the federal level, a 1995 report proposed that the SSAT, IRT, RRT and AAT be amalgamated into a single new tribunal, to be called the ART. This ART would have been divided into Divisions, namely: Welfare Rights Division, Migration Division, Commercial and Major Taxation Division, Small Taxation Claims Division, Security Division, General Division (comprising the residual jurisdiction of the AAT): see diagram below. Referrals or appeals from these Divisions would have been allowed with leave of the ART President to a Review Panel where in the President’s opinion the case ‘raises a principle or issue of general significance’. The ART would not, however, have had jurisdiction in relation to veterans’ benefits: when coherence is incompatible with politics, politics sometimes wins. Opposition to the ART proposal ensured that the status quo prevailed at the Commonwealth level, but the idea of a supertribunal did not go away. The measures announced in connection with the 2014 Budget included the establishment of an Administrative Review Tribunal which would include the specialist tribunals, and even the Veterans’ Review Board. At state level, the ART model has had considerably greater appeal. In the CATs, the tribunals’ first tier exercises both public law and private law jurisdictions. The public law jurisdiction is typically a review jurisdiction. The private law jurisdiction typically involves the tribunal being a primary decision maker. The second tier is constituted by an appeal panel which hears appeals from decisions made at the first tier level. The right to appeal within the tribunal coexists with rights to appeal to courts, and in any case, appeal lies from the appeal panel to the relevant Supreme Court. Typically, first tier cases are heard within specialist divisions. These vary across jurisdictions. In New South Wales there are four divisions: administration and equal opportunity; consumer and commercial; guardianship; and occupational. The Victorian CAT has three: administrative, human rights and civil (and these are in turn divided into lists). In some states, planning disputes are also handled by a dedicated division, but in others, planning matters continue to be handled by specialised planning and environment courts. The use of divisions enables a degree of specialisation, while also enabling the tribunal to deal on a one-off basis with cases which involve issues which, under a fragmented system, would occasionally fall within the jurisdiction of a number of mutually independent tribunals.

2.1.14 Advantages of a tiered system of review For constitutional reasons, the CATs are feasible only at state and territory level: since their private law jurisdiction requires that they have enforcement powers, they must be given powers which mean that they are exercising the state’s judicial powers. Since a feature of tribunals is that their members do not enjoy the tenure of federal judges, any attempt to establish such a tribunal at Commonwealth level would be struck down as an impermissible [page 27]

Diagram adapted from ‘Recommended Structure for the Merits Review System’ from Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals , Report No 39, AGPS, Canberra, 1995, p 143. The AD(JR) Act is the Administrative Decisions (Judicial Review) Act 1977.

attempt to confer judicial powers on a body whose members did not enjoy the constitutional independence enjoyed by Ch III judges. (No such problems arise in relation to the public law jurisdiction, since it involves the tribunal exercising the Commonwealth’s executive powers.) But it is still puzzling that the Commonwealth resists integration, while the states have embraced it. Clearly integration has both advantages and disadvantages. The advantages of a tiered system include: the first tier acts as a filter for selecting cases to go to the second tier; the second tier hears ‘hard cases’ and develops principles to guide primary decision makers; [page 28] the first tier focuses on speed, efficiency and informality, whereas the second tier focuses more on procedural fairness and the quality of the decision; and the tiered system preserves minimum safeguards of review and enables each division to tailor its procedures to the type of cases and applicants with which it deals. Disadvantages are less apparent, but include: the prestige of the tribunals tends to be related to the complexity of the cases that they handle, and while it is petty to be concerned with status issues, people are concerned by them, which may affect the legitimacy of their decisions; some of the CATs have hundreds of decision makers, far more than any of Australia’s courts, and this has the potential to pose problems for their heads; and while size is likely to be reflected in a diverse talent pool, problems may arise in relation to how best to ensure that cases giving rise to particular demands are handled by people with the requisite skills.

2 The nature of merits review 2.2.1 Recommendatory or determinative decision-making powers A merits review tribunal’s powers may be determinative or recommendatory. Generally, federal merits review tribunals have all the powers and discretions of the primary decision makers in relation to the decisions over which they have jurisdiction. Their powers are described as determinative as they are able to resolve the matter by substituting a new decision. For instance, the AAT Act (Cth) s 43 enables the tribunal to affirm, vary, set aside a decision and substitute a new decision or set aside the decision and remit the matter to the primary decision maker. However, the particular statute that gives the tribunal its jurisdiction may limit its decision-making power. For instance, a statute may give tribunals the power to make recommendations only. Such recommendations do not bind the government authority to carry out that recommendation; they merely bind the minister to reconsider the matter in light of the recommendations. However, if the government agency has a policy of following the tribunal’s recommendations, the applicant must be provided with an opportunity to be heard before the respondent can depart from the recommendation. Recent High Court decisions cast some doubt on whether a tribunal which includes judges among its members can be given no more than a power to recommend: see especially Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; 138 ALR 220. At state level, the tribunal may itself be the primary decision maker, in which case the analogue to the AAT will be the

appellate division of the tribunal. In administrative matters, the CATs are not making primary decisions, but reviewing them. However, their decisions are nonetheless appealable within the tribunal. Like the powers of the AAT, the powers of the tribunal will depend on legislation. In most [page 29] jurisdictions, primary (including review) decisions involve merits review, but appeal decisions involve something between pure merits review and judicial review.

2.2.2 ‘Stand in shoes of primary decision maker’ Unlike courts, the Commonwealth merits review tribunals do not act in a supervisory role. Unless the legislation specifically limits their powers, tribunals can exercise all the powers and discretions conferred on the primary decision maker. They are said to ‘stand in the shoes of the primary decision maker’. The tribunal may ‘place itself in the position of the decision maker, exercising all the powers and discretions available to that person, and not confining itself to the material that was before him’: Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 390. Their powers are the same as those of the primary decision maker: not only are they no greater than the primary decision maker’s powers, tribunals also do not have the discretion to limit their function: Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 at 92 per Davies J.

2.2.3 Hearing de novo Commonwealth merits review may involve a fresh hearing, known as a hearing de novo . Such a hearing requires applicants to make out their case again by producing evidence and calling witnesses. Tribunals exercise their powers based on the evidence before them, whether or not such evidence had been before the primary decision maker or even existed at the time of the original decision: Comptroller-General of Customs v Akai (1994) 32 ALD 463; 50 FCR 511. Further, an applicant may present different submissions to the review body and is not confined by the submissions put to the original decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 at 598–9 per Smithers J. In Azevedo v Secretary, Department of Primary Industries and Energy (1992) 26 ALD 567; 35 FCR 284, French J said at FCR 297: The proper approach for the Tribunal is to regard the administrative decision-making process as a continuum and to look upon its function as a part of that continuum so that within the limits of reconsideration of the decision under review, the Tribunal considers the applicant’s entitlement from the date of application or other proper commencing date to the date of the Tribunal’s decision.

Consequently, a tribunal may overturn a decision although based on the material before the primary decision maker, the earlier decision may have been correct. It may also uphold a decision although the earlier decision had been wrong on the evidence before the primary decision maker.

2.2.4 Correct or/and preferable decision Unlike courts exercising judicial review, a Commonwealth review tribunal’s role is normally not to determine whether the original decision was wrong. As another executive body in the administrative hierarchy, the tribunal’s function is ‘merely to do over again what the decisionmaker himself did’: Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth) (1963) 113 CLR 476 at 502 per Kitto J. Generally, a tribunal is bound to consider the relevant facts proved on the evidence before it and to decide on the basis of those facts what is the ‘correct or preferable decision’: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 at 589 per Bowen CJ and Deane J. [page 30] At state level the position varies. The ADR Act (NSW ) requires the tribunal to decide what the ‘correct and preferable decision is’: s 63(1), and see too QCAT Act (Qld) s 20(1); SAT Act (WA) s 27(2); ACAT Act (ACT) s 68; VCAT Act (Vic) s 51 (tribunal can do anything the decision maker could do). This means that the tribunal must make the correct decision and if there is a range of decisions, all of which could be correct, the tribunal must select the preferable decision. In South Australia, the tribunal’s role is slightly different. It is to ‘reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision-maker’: SACAT Act (SA) s 34(4).

2.2.5 Scope of review: the law Tribunals generally have the power to decide questions of law relevant to the application for review : Lehtovaara v Acting Deputy Commissioner of Patents (1981) 39 ALR 103; ADR Act (NSW ) s 63(1)(b), but cf QCAT Act (Qld) s 116; SACAT Act (SA) s 26; VCAT Act (Vic) s 107; SAT Act (WA) s 59 (decision must be made by a legally qualified person). The ‘law’ includes all statutes and delegated legislation binding on the tribunal. The ‘power’ to decide is, however, only a limited one: they have the power to make ‘correct’ findings on questions of law, but in contrast to courts, they do not have the power to make binding decisions insofar as these are based on erroneous interpretations of the law: Craig v South Australia (1995) 184 CLR 163; 131 ALR 595. Tribunals generally exercise their decision-making powers in accordance with the law in force at the time of the hearing: Harris v Caladine (1991) 172 CLR 84 at 125; 99 ALR 193 per Dawson J. However, this principle may be overridden by the presumption against retrospectivity which provides that in the absence of express provisions to the contrary in legislation, an Act of parliament or a Regulation is not intended to deprive people of rights, privileges, obligations or liabilities acquired, accrued or incurred under the old law: Acts Interpretation Act 1901 (Cth) s 8. This provision protects ‘anything that might fairly be described as a right, although that right may be inchoate or contingent’: Esber v Commonwealth (1992) 174 CLR 430 at 441; 106 ALR 577 at 583–4 per Mason CJ.

2.2.6 Scope of review: the merits One of the distinguishing features between merits review tribunals and courts exercising judicial review is that tribunals consider the merits of the decision. W here legislation establishing a tribunal does not contain any direct reference to the ‘merits’, the merits review function is implied in the provision that in reviewing a decision, the tribunal may exercise ‘all the powers and discretions that are conferred by any relevant enactment on the person who made the decision’: AAT Act (Cth) s 43; VCAT Act (Vic) s 51(2); SAT Act (WA) s 71(5), cf SACAT Act (SA) s 34. The merits include the assessment of the facts, and the law and policy which has been applied or which ought to be applied to the facts in reaching the decision. In order to make their decisions, tribunals normally conduct a de novo hearing. The applicant need not show special reasons for reliance on evidence not presented to the primary decision maker. South Australia is unusual in holding ‘rehearings’ rather than de novo trials: s 34.

2.2.7 Must the tribunal consider all the issues? In adversarial proceedings the parties raise the issues and the judge makes a decision based on the issues raised.

[page 31] However, in the case of de novo merits review tribunals, the tribunal member, standing in the shoes of the primary decision maker, is required to consider all the facts and issues and to reach the ‘correct or preferable decision’. Tribunals are not limited by the issues raised by the parties and have their own inquisitorial powers. For instance, AAT Act (Cth) s 33(1)(c) provides that the tribunal ‘may inform itself on any matter in such manner as it thinks appropriate’. Tribunals are also not bound by a party’s concession in respect of any of the issues before it. The AAT will generally accept concessions unless there exist good reasons to the contrary. In Re Martin and Commonwealth (1982) 5 ALD 277 at 284–5, the AAT commented that the tribunal will not accept the concession ‘when evidence is adduced before the Tribunal by the applicant which raises a serious doubt as to the correctness of the conceded issue’. Even where parties agree, the tribunal may be required to consider that issue if it relates to a question of law. In Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 195 Bowen CJ noted, in the context of an AAT decision, that there was a: … clear statutory precondition upon which the Tribunal had to be satisfied and enough material and evidence before it to raise the issue independently of the parties’ submissions. In these circumstances it was an error of law not to consider and decide the issue of immigrant status.

2.2.8 Government policy: addressed in statutory scheme Merits review tribunals deal with policy in different ways depending on the particular statutory scheme establishing the tribunal. For instance, the New South Wales CAT must apply lawful policy in force at the time the reviewable decision was made, unless the policy is contrary to law or produces an unjust result in the circumstances of the case: ADR Act (NSW ) s 64. ‘Government policy’ is restrictively defined to mean a policy adopted by Cabinet, the Premier or any other minister: ADR Act (NSW ) s 64(5). Similarly, the Victorian CAT must apply the policy if the relevant minister certifies that there was a statement of policy in existence at the time a decision was made, the policy is within power, the reasons state that the policy was relied upon in reaching the decision and the Victorian CAT is satisfied that the applicant was aware of the policy or could reasonably have been expected to be aware of that policy: VCAT Act (Vic) s 57, and see too SAT Act (W A) s 28 (must have regard to policy).

2.2.9 Government policy: addressed in legislation conferring jurisdiction In contrast, the AAT Act (Cth) does not contain a provision which specifically addresses the issue of policy. However, the specific legislation which confers jurisdiction on the AAT may include a provision which confers a power on the minister or department to make and apply a policy. If the statutory provision gives the policy legislative force, the minister, department and tribunal are all bound by the policy. For instance, the AAT was bound to apply principles determined by the minister stipulating the procedure to be followed for approval of pathology services: Re Lynch and Minister for Health (1995) 38 ALD 401. In the veterans jurisdiction, the Veterans’ Entitlements Act 1986 (Cth) provides for the preparation of a Statement of Principles by the Repatriation Medical Authority. This Statement [page 32] defines factors which establish whether there is a causal link between service and disability. This Statement is a disallowable instrument which is binding on the Repatriation Commission, the VRB and the AAT.

2.2.10 No legislative guidance as to how to deal with policy In the absence of legislative provisions directing how policy should be approached, a tribunal, as a body independent of the executive, is not required to reach its decision in conformity with government policy. Further, it must not abdicate its review function by merely determining whether or not the decision conforms with government policy. The case law, developed in the context of the AAT, provides that the AAT is ‘at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function’: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642 per Brennan J. The general rule is that the AAT is to make the ‘correct or preferable decision’ on the material before it and must have regard to government policy as one of the relevant factors in its determination of an application: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 69–70; 24 ALR 577 per Bowen CJ and Deane J. If the AAT applies the policy, it is because it helps the AAT to arrive at the ‘correct or preferable decision’ in the circumstances of the case. In general, the AAT adopts a practice of applying lawful ministerial policy, particularly if parliament has scrutinised and approved the policy, unless there are cogent reasons not to apply it. Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 recommended that the AAT should adopt the following practice: When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply the policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.

2.2.11 Consistency One of the factors to be considered in arriving at the ‘correct or preferable decision’ is its consistency with other comparable decisions. A guiding policy is a useful aid to achieving consistency. The AAT must take the relevant policy into account as a relevant factor in the achievement of consistency in decision making. In Drake (No 2) , Brennan J said (at 639) that: Inconsistency is not merely inelegant; it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.

However, consistency ‘is safely sought by reference to policy only when the policy is appropriate and acceptable. Decision makers may be consistently wrong and consistently unjust’: Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 at 647 per Deane J. [page 33]

2.2.12 AAT’s consideration of the policy The AAT’s consideration of the policy extends beyond the question of its validity to the question of its wisdom: Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158. It must indicate that it has considered the propriety of the particular policy, be fully informed as to the policy and full details of the

policy should form part of the documents before the AAT: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 70; 24 ALR 577 at 591. However, the AAT’s main concern is not to review the policy but rather a consideration of the weight to be attributed to the policy. The fact that the outcome of the review may have significant political implications does not affect the right of the AAT to undertake the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577. However, in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at 380, the AAT (Davies J presiding) said that where the government policy affected an entire industry, had been resolved upon by ministers of the states and federal ministers and had been developed in the political arena after consultation with industry, the AAT, ‘which is not accountable politically and which cannot proceed by obtaining industry consensus, must give such a policy great weight’. In contrast, where a departmental policy has not been settled at ministerial level, less weight may be attached to it: Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225.

2.2.13 Status of decisions of merits review tribunals As discussed at 1.2.7 , the decisions of merits review tribunals have no greater effect in law than those of the primary decision maker and are not directly enforceable. W hen the tribunal varies the decision under review or substitutes a new decision for that of the primary decision maker, the decision is deemed to be that of the person who made the reviewable decision: see AAT Act (Cth) s 43(6). Such decisions bind the responsible government agency and the parties. However, because administrative review tribunals are not part of the court hierarchy, the doctrine of precedent does not apply to their decisions. Further, tribunal decisions consider the merits and thus involve considerations of fact and the weight to be given to various factors. The doctrine would be inappropriate for these purposes. Although agency decision makers are not bound by decisions of general review tribunals in relation to matters which raise similar issues, account is taken of these decisions. Tribunal decisions are considered authoritative and persuasive, although not conclusive, in determining questions of law. Similarly, a tribunal constituted under the AAT Act (Cth) is also not bound by the decisions of another tribunal constituted under that Act. However, in the interests of certainty, consistency and administrative efficiency, it is considered desirable for a tribunal to follow decisions of a higher level tribunal on legal questions, even where the presiding member is not convinced of its correctness: Re Ganchov and Commissioner for Safety, Rehabilitation and Compensation of Commonwealth Employees (1990) 19 ALD 541. W here a question of law is raised by many different applications, the practice of the AAT has been to constitute a tribunal by the President or a judicial member to determine this question after full argument. W hile that decision is not binding on the tribunal in future proceedings, it is nevertheless very highly persuasive: Re Littlejohn and Secretary, Department of Social Security (1989) 17 ALD 482. [page 34]

3 Objectives of merits review 2.3.1 Competing values The objectives of merits review indicate a tension between the need to ensure individual justice through a process of open and accountable government, and the demands of administrative efficiency. Moreover, while some of the Acts recognise that the achievement of some goals may come at some cost to the achievement of others, other Acts assume that trade-offs are unnecessary.

2.3.2 Statutory objectives Some review tribunals have statutory objectives. For instance, the objects of the ADR Act (NSW ) include review that is accessible, efficient, effective, informal and expeditious: ADT Act (NSW ) s 3(b)–(c). The AAT is required by s 33 of the AAT Act (Cth) to conduct proceedings with: … as little formality and technicality, and as much expedition, as the requirements of the Administrative Appeals Tribunal Act 1975 and of every other relevant enactment, and a proper consideration of the matters before the tribunal, permit.

See too ACAT Act (ACT) ss 6, 7; QCAT Act (Qld) s 3; SACAT Act (SA) s 8; VCAT Act (Vic) s 98; SAT Act (W A) s 9.

2.3.3 What should the objectives be? The ARC’s review of the system of Commonwealth Merits Review Tribunals, Better Decisions: Review of Commonwealth Merits Review Tribunals , Report No 39, AGPS, Canberra, 1995, p 11 identifies the following objectives of the merits review system: • providing review applicants with the correct and preferable decision in individual cases; • improving the quality and consistency of agency decision making: — by ensuring that the decisions of review tribunals are, where appropriate, reflected by agencies in other similar decisions (known as the ‘normative effect’); — by taking into account review decisions in the development of agency policy and legislation; • providing a mechanism for merits review that is accessible (cheap, informal and quick) and responsive to the needs of persons using the system; and • enhancing the openness and accountability of government.

2.3.4 Does merits review achieve these objectives? There is much controversy over whether merits review systems achieve these objectives. Some of the arguments are discussed below: Provides individuals with the correct and preferable decision Individuals are able to challenge a government decision and participate in the process of review which provides an opportunity for the full and open consideration of the facts, evidence, law and policy. However, the availability of merits review does not necessarily provide a higher quality of justice. Individuals may feel defeated [page 35] and exhausted by the review process and suffer ‘litigation fatigue’ which dissuades them from continuing with the review process. Individuals may also not be able to afford the financial and emotional costs of seeking merits review. External review processes also lead to the delay of final decisions, sometimes with damaging consequences. Moreover, if facts are in dispute or the law is unclear, tribunals will sometimes make what an omniscient observer would regard as

mistakes. However, asking whether the system is perfect is misplaced idealism. W hat matters is how well it works, whether it could work better, and whether improvements would justify their cost. These answers are elusive. More accessible than the court system The attraction of tribunals lies partly in the assumption that they can do what the courts do, but more efficiently, faster and more comprehensibly. An answer to this question is ultimately dependent on knowing whether and to what extent courts are more or less likely than tribunals to deliver correct decisions, and if we could determine this, we could probably do the jobs of courts and tribunals better than either body. At most, we can look for surrogates such as litigants’ satisfaction with their treatment, and the degree to which this varies as between those who experience higher courts, lower courts and tribunals, and according to stakes, cost and delay. Some tribunals such as the SSAT deliver fast, cheap decisions. The AAT, by contrast, takes even longer than the Federal Court to reach its decisions, although these are, at least, final (by contrast, a successful judicial review application may not yield fruits until the matter has been reconsidered): see Australian Law Review Commission, Managing Justice: A Review of the Federal Civil Justice System , Report No 89, AGPS, Canberra, 2000, pp 667–8. Surveys of user satisfaction yield equivocal results: the majority of AAT users have reported satisfaction with their treatment, but satisfaction levels seem to have declined over time, and are also not readily interpreted in the absence of similar statistics from users of courts. But there is one respect in which tribunals almost certainly out-perform courts. Tribunals can look at the overall merits of a decision; courts are limited to looking at the legal merits of a decision. For victims of substantively unmeritorious decisions, this makes tribunals particularly attractive. Increases the openness and accountability of government It exposes government decision making to independent and public scrutiny. The openness of the process of review reduces the risk of administrative decisions being subject to improper political pressures, personal biases, sloppiness, institutional isolation or otherwise unlawful or improper. Merits review may increase the accountability of decision makers by increasing the likelihood that legislative requirements are adhered to and that there is consistency in decision making. It may also highlight problems that should be addressed by law reform. However, high settlement rates may limit the extent to which tribunals perform this function. Improving agency decision making Review bodies can provide guidance to primary decision makers on the meaning of legislative provisions, policies and the exercise of discretions. Merits review may also improve the quality [page 36] of primary decision making by ensuring the adequacy of departmental documentation; the quality of reasons for decision; and the accuracy and quality of agency manuals and guidelines. However, it is also argued that review tribunals impose inappropriate legal paradigms upon decision makers which may require administrators to undertake additional record keeping and provide more complex reasons for decision, causing delay to primary decision-making processes. Consequently, administrative efficiency may be reduced as departmental resources are directed away from the bulk of cases to a single dispute. Further, if attention is focused on external review of decisions, there may be comparatively little attention given to other methods of improving administrative decision making such as alternative dispute settlement, the development of codes of conduct and the processes of internal review. This focus on appeals can be a diversion from, rather than a remedy for, problems of primary administration. But is it? It is obviously undesirable for tribunals to impose inappropriate legal paradigms, but legislatures obviously intend that they should take law seriously. Otherwise they would not impose the requirement that tribunal presidents be superior court judges, and would not privilege legal qualifications over other qualifications, which they do. Moreover, even if the rule of law is sometimes undesirable, insisting that tribunals comply rigorously with law reduces the danger that their decisions will provoke further and successful judicial review applications. If administrators want to minimise the degree to which their decisions are overruled in the AAT, they need to be attentive to lower level procedures calculated to minimise error and discontent. Moreover, the fact that merits review, once introduced, is rarely abolished, suggests either that governments find it useful, or that abolishing it would be electorally costly.

4 The jurisdiction of merits review tribunals 2.4.1 Limited review power Administrative review tribunals do not have a general power to review all administrative decisions. They may only review a decision where jurisdiction to do so has been conferred by an enactment. In the case of the AAT, about 400 separate Acts or pieces of delegated legislation confer review jurisdiction on the tribunal. The AAT’s jurisdiction includes a wide range of areas such as veterans’ entitlements, social security, taxation, criminal deportation, civil aviation, freedom of information, bankruptcy, customs, export market development grants and student assistance. It has a high volume workload in the areas of veterans’ entitlements, social security and taxation. The CATs’ administrative jurisdiction includes occupational registration, mental health and, in some states, planning.

2.4.2 Administrative decisions alone? Traditionally, merits review systems have only reviewed administrative decisions, that is, decisions made by the administration which the person disputes. The functions of the CATs, however, are not limited to merits review of administrative decisions. For instance, the jurisdiction of the [page 37] Equal Opportunity Tribunal was conferred on the ART, and later on the CAT. Discrimination disputes are more appropriately described as inter partes matters than administrative disputes as the dispute is between two individuals or groups rather than between the individual and the government. QCAT and VCAT have extensive small claims and tenancy jurisdictions. QCAT hears about as many cases as the Magistrates Court (but a considerable number are heard by a QCAT constituted by a magistrate), and VCAT hears considerably more. The CAT, SACAT and ACAT also have this jurisdiction.

2.4.3 Source of review jurisdiction The legislation establishing the tribunal generally includes a provision which confers jurisdiction on the tribunal to review certain decisions: see AAT Act (Cth) s 25; ACAT Act (ACT) s 9; ADT Act (NSW ) s 38; SACAT Act (SA) ss 33, 34; VCAT Act (Vic) s 42; SAT Act (WA) s 13. Two prerequisites must be satisfied before a tribunal has review jurisdiction: there must be a reviewable decision; and

the decision must be made under an enactment which confers jurisdiction on the tribunal. The enactment that confers jurisdiction is typically the enactment under which the decision is made. By contrast with the Judicial Review Acts, the tribunals’ powers to review administrative decisions depends not on whether (subject to some specified exceptions) the decision is one of an administrative character made under an enactment, but on whether it is made under a particular enactment.

2.4.4 Decisions The term ‘decision’ is generally given a liberal interpretation. The term is defined by the enactment establishing the tribunal and may include a number of administrative actions such as making or refusing to make a determination or order, suspending or revoking a certificate, issuing or refusing to issue a licence, imposing a condition, making a declaration, ‘doing or refusing to do any other act or thing’: AAT Act (Cth) s 3(3); ACAT Act (ACT) s 12; ADR Act (NSW ) s 6; VCAT Act (Vic) s 4. A purported decision which is a legal nullity is nonetheless a ‘decision’ for the purposes of the legislation: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; 41 FLR 338, and see ADR Act (NSW ) s 6(3); VCAT Act (Vic) s 4(2)(b).

2.4.5 Must it be a final or operative decision? In Director-General of Social Services v Hales (1983) 5 ALN N116; 47 ALR 281 at 306, Lockhart J said: … A pronouncement which alters rights or imposes liabilities is readily classified as a ‘decision’, but the word has a wider scope. It may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities …

It is now generally accepted that the term ‘decision’ requires a final and operative decision. This interpretation is consistent with the interpretation given to ‘decision’ under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11: see 4.2.6 . For example, an advisory opinion as to the likely future conduct of a matter is not a ‘decision’ [page 38] within the meaning of the Act: Re Rennie and Defence Forces Retirement and Death Benefits Authority (1979) 2 ALD 424.

2.4.6 Can tribunals make original decisions? Unless specifically provided for by the legislation establishing the tribunal, tribunals do not have jurisdiction to make a decision where the primary decision maker has never actually or purportedly exercised power. The CATs have the power to make original decisions in respect of matters over which they have been given jurisdiction under an enactment to act as a primary decision maker: ACAT Act (ACT) s 9; CAT Act (NSW ) s 29; QCAT Act (Qld) s 9; SACAT Act (SA) s 33; VCAT Act (Vic) s 41; SAT Act (WA) s 15. Tribunals may also make original decisions by default where the primary decision maker has not made a decision. For instance, where a decision maker has failed or refused to do an act or thing within the period prescribed by the enactment, that failure or refusal is deemed to constitute the making of a decision by that person at the end of the prescribed period and the tribunal is able to consider the matter: AAT Act (Cth) ss 3(3)(g), 25(5); ACAT Act (ACT) s 12; ADR Act (NSW ) s 6(5); VCAT Act (Vic) s 4(2); SAT Act (W A) s 4(3).

2.4.7 Reviewable decisions Apart from the default situation discussed above, when a tribunal is exercising its review jurisdiction, it does not have this power to make original decisions. Although it stands in the shoes of the primary decision maker, the tribunal is not a primary administrator: Re Brian Lawlor Automotive Pty Ltd and Collector of Customs, New South Wales (1978) 1 ALD 167. The tribunal cannot review a decision which has not been made by the primary decision maker and which is not the subject of an application to the tribunal: Secretary, Department of Social Security v Riley (1987) 17 FCR 99 at 103; 76 ALR 393. It is only able to exercise the powers and discretions vested in the primary decision maker for the purposes of making the decision under review: Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442; 84 ALR 295. If an issue before the tribunal, integral to the decision under review, has not been the subject of a decision by the primary decision maker, the tribunal itself cannot assume to make a decision on the matter: Re Tradigrain Australia Pty Ltd and Export Development Grants Board (1984) 6 ALD 442. However, where a decision maker has made a decision without having regard to certain matters, the tribunal may take into account these matters as it has all the powers of the decision maker in relation to the decision under review: Re Queensland Mines Ltd and Export Development Grants Board (1983–85) 7 ALD 357.

2.4.8 Under an enactment Tribunals can only review those decisions for which provision is made by separate legislation. Legislation must specifically confer jurisdiction on the tribunal. Some enactments give the general tribunals jurisdiction to review decisions of primary decision makers. Other enactments confer jurisdiction on the tribunal only after there has been compliance with certain conditions: where the decision must be internally reviewed or reconsidered by an officer within the agency. For instance, an application for review may only be made to the ADT after an internal review of the decision has been, or is taken to have been, completed: ADR Act (NSW ) s 55(1)(b); [page 39] where the decision must be externally reviewed by a first tier tribunal. In the social security jurisdiction, the AAT cannot review a primary decision maker’s decision. It may only review the decision of the SSAT: Social Security Administration Act 1997 (Cth) s 179; and where certain formalities must be complied with before an application for review may be made. For instance, in the customs jurisdiction, the AAT can only review determinations of customs duty if the applicant has ‘paid under protest’ in accordance with s 167(3) or (3A) of the Customs Act 1901 (Cth): Re Carey and Collector of Customs, Queensland (1978) 1 ALD 455.

2.4.9 No valid decision Tribunals may review decisions that, if the challenge had been brought before a court, would probably have resulted in the court declaring the decision to be a nullity. A decision may be reviewable even if it is invalid and legally ineffective, provided the decision is made on the basis that the decision maker is exercising powers conferred by the enactment, whether or not on a proper interpretation of the enactment such powers are conferred. For instance, where a decision maker fails to comply with procedures, the tribunal may review the decision even though it may be a

legal nullity: Re Lear and Department of Transport and Communications (1988–89) 16 ALD 604. Similarly, where a primary decision maker lacks the power to make the relevant decision, the tribunal may review the merits of the decision and set the decision aside but it may not affirm the decision: Re Baran and Secretary, Department of Primary Industries and Energy (1988–90) 18 ALD 379. However, as discussed at 2.4.8 , the tribunal does not have jurisdiction to review a decision where its jurisdiction is contingent on certain procedures being followed and those procedures have not been followed. In the following case, the Federal Court considered the meaning of s 25 of the AAT Act (Cth). This interpretation now forms part of the CAT definitions of ‘decision’: see above 2.4.4 . In Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; 41 FLR 338, the Collector purportedly cancelled a warehouse licence granted under the Customs Act 1901 (Cth). The licensee argued that the Collector had exceeded his powers in cancelling the licence. The AAT found in his favour and ordered that the cancellation be set aside. The Collector appealed to the Federal Court on the basis that if the purported decision was beyond the Collector’s power, the decision was a nullity and the AAT lacked the power to review it. The Federal Court adopted a liberal interpretation of ss 25 and 26. It held that although the Collector lacked the power to cancel the licence, the AAT had the jurisdiction to review the decision. The word ‘decision’ in s 25 refers to a decision in fact made, whether or not it is a legally effective decision. The difficulty arose in interpreting the words ‘made in the exercise of powers conferred by that enactment’. Bowen CJ rejected the interpretation that the decision was made ‘in pursuance of a legally effective exercise of powers conferred by the enactment’ or ‘in the honest belief that it was in the exercise of powers conferred by the enactment’. His Honour held that that phrase meant that it must be shown that there was a decision made in the purported exercise of powers conferred by the enactment. This includes the notion that the official may be making the decision on [page 40] the basis that she or he is exercising powers conferred by the enactment, whether or not on a proper interpretation of the enactment such powers are conferred. Smithers J emphasised that any interpretation which excluded invalid and legally ineffective decisions from review would be contrary to parliament’s intention in establishing the AAT and exclude those decisions most in need of review.

2.4.10 The limits of the tribunal’s jurisdiction Tribunals do not have the power to conclusively determine the limits of their jurisdiction or power. Only a court can conclusively resolve a dispute about whether the tribunal has jurisdiction to deal with an application. Although tribunals are required to consider the legal limits of their authority and to act within those limits, if the presiding member is of the opinion that an enactment may be unconstitutional, the tribunal should accept the constitutional validity of the enactment conferring review powers on it: Re Adams and Tax Agents Board (1976) 12 ALR 239; 1 ALD 251. Similarly, it is not considered appropriate for the tribunal to rule on the constitutionality of regulations: Re Sawmillers Exports Pty Ltd and Minister for Resources (1996) 41 ALD 657. W hen constitutional validity is in question, the tribunal may use its power to refer the question for determination by a court: see 3.6.6 .

2.4.11 Functus officio Once the tribunal has validly exercised its decision-making powers, it is functus officio and the application cannot be reopened. This means that the tribunal has no jurisdiction to review a determination made in accordance with its orders: Bogaards v McMahon (1988) 15 ALD 313; 80 ALR 342. If the tribunal makes a decision remitting a matter to the primary decision maker for reconsideration in accordance with directions or recommendations, it may only review the decision made after the remittal if another application for review is made. This review may not reconsider the matters formerly decided by the tribunal. However, it may consider whether the administrator failed to give effect to the tribunal’s direction or dealt with matter additional to that covered by the earlier direction: Re Devine and Commonwealth (1982) 5 ALN N22. If a tribunal’s purported exercise of powers has miscarried such that its ‘decision’ is a legal nullity, it may reconsider the matter: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117.

2.4.12 Can the tribunal review its own decision? There is some dispute on this issue which raises the question whether the doctrines of ‘issue’ and ‘cause of action’ estoppel apply to tribunal decisions. The case law on this matter has addressed the issue in relation to the AAT. Dicta in a number of cases suggest that no issue estoppel arises as a result of anything decided by the AAT: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Commonwealth v Sciacca (1988) 17 FCR 476 (Full Court); Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87 at 96–8 per Hill J. However, in Bogaards v McMahon (1988) 80 ALR 342; 15 ALD 313 Pincus J said that decisions of the AAT, although not made in the constitutional sense, may create estoppels. This means that where the AAT substitutes its decision for that of the primary decision maker, that substituted decision cannot be further appealed to the AAT because a cause of action estoppel arises so as to prevent the AAT from reconsidering a previous decision: Re Nation and Repatriation Commission (1994) 35 ALD 218. Decisions of [page 41] the Federal Court and AAT have acknowledged that a decision of a tribunal may give rise to an estoppel in subsequent proceedings because the policies underpinning these doctrines are of relevance to tribunal proceedings. These policies are that ‘it is for the common good that there should be an end to litigation’ and ‘noone should be harassed twice for the same cause’. However, the Federal Court and the AAT have resisted the rigid operation of the doctrines of cause of action or issue estoppel in the AAT. The composition, process and administrative rather than judicial nature of the AAT have repeatedly been cited as indicating that the application of these doctrines is not appropriate to AAT proceedings: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 359 per Fisher and Lockhart JJ; Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87 at 96–7 per Hill J.

2.4.13 Use of the AAT’s broad procedural powers rather than a strict doctrine Rather than applying the doctrines of estoppel, decisions of the AAT and the Federal Court indicate a preference for reliance on the AAT’s broad procedural powers to do justice between the parties in a fair and expeditious manner after consideration of the facts: Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225; 111 ALR 1; 28 ALD 50 (Full Federal Court). In Comcare Australia v Grimes (1994) 50 FCR 60; 33 ALD 548; 121 ALR 485 at 492, W ilcox J

noted that ‘the AAT which is master of its own procedures, will not allow a finally determined matter to be relitigated’. In Rana v Military Rehabilitation and Compensation Commission (2011) 55 AAR 300; [2011] FCAFC 80, a Full Federal Court concluded that a tribunal might properly have regard to facts found by an earlier tribunal, and that there were circumstances where an applicant would be permitted to re-agitate factual issues which had been the subject of a tribunal decision. Cases where this might be warranted included a situation where the applicant had previously been unrepresented and unable to do full justice to his or her case; and where the applicant could produce evidence not previously available: at [27]–[28]. Failure to follow an earlier finding of fact did not require that the tribunal conclude that the earlier tribunal had erred. It would be enough that an alternative finding be the correct or preferable one: at [28]. But none of these circumstances applied in the case before it: at [29].

2.4.14 Applications dismissed: estoppel? W here an application is dismissed rather than the subject of a determination by the tribunal, the dismissal only results in the termination of the proceedings without addressing the correctness of the original decision: Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 (AAT, O’Connor J presiding). In Re Nicholson and Secretary, Department of Social Security (1991) 21 ALD 537 at 544 Deputy President Forgie said: … the Tribunal may have exercised all of its powers in relation to a particular application when it dismisses it but it does not follow that it has exercised all of its powers in relation to review of a decision.

A new application to review the same decision may be made subject to the AAT’s discretion to extend time: Re Mulheron and Australian Telecommunications [page 42] Corporation (1991) 23 ALD 309. In some jurisdictions, the relevant legislation provides that an application may be reopened if the person affected by the order did not appear and was not represented at the hearing at which the order was made: QCAT Act (Qld) ss 137–138 ; VCAT Act (Vic) s 120(1); SAT Act (W A) s 84.

5 Standing requirements for merits review tribunals 2.5.1 Merits review and judicial review Access to merits review is constrained by the rules of standing applicable to each merits review tribunal, and these may vary, depending on the nature of the legislation which confers jurisdiction on the tribunal. These rules of standing determine who can apply to a tribunal for review of an administrative decision. These criteria are arguably less stringent than those applying to judicial review: see Chapter 5 .

2.5.2 Who may apply for review? The right to apply for review is described by the statutory scheme under which the tribunal is established. For instance, under s 27 of the AAT Act (Cth) an application for review of a decision may be made ‘by or on behalf of any person, including the Commonwealth or an authority of the Commonwealth, whose interests are affected by a decision’. This general provision may be displaced by specific provisions in particular statutes which vary the rule as to who may apply for review. For instance, the right to appeal to the AAT in relation to workers’ compensation decisions is limited to the claimant and to the Commonwealth, Commonwealth authorities and corporations licensed under the Act (insofar as they are affected): Safety, Rehabilitation and Compensation Act 1988 (Cth) s 64. In contrast, CAT Acts do not contain general standing provisions. The ADR Act (NSW ) provides that review applications may be made by an ‘interested person’: s 55. ‘Interested person’ is defined in s 4 to mean a person who is entitled under an enactment to make an application to the ADT. In this way, the ADT leaves it to the legislation conferring jurisdiction on the tribunal to prescribe the standing rules. Similarly, in Victoria, standing depends on the legislation which confers jurisdiction but where legislation confers standing on a person whose interests are affected, the VCAT Act (Vic) defines the term: s 5. Otherwise the CAT Acts make no reference to standing.

2.5.3 ‘Any person or persons whose interests are affected by the decision’ This phrase denotes interests which ‘a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed’: Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74 at 79 per Davies J. The nature of the interest required in a particular case will be influenced by the subject matter and the context of the decision under review: Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67 at 69–70; 18 ALR 154 per Brennan J. In Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67; 18 ALR 154, the customs agent was refused standing. Although the outcome of a successful application might affect a negligence action his client was bringing against him, the customs agent’s interests were too indirectly and remotely affected to enable him to seek review of a decision adverse to his client. [page 43] Brennan J noted that it is crucial that the person’s interests must be affected by the decision to be reviewed. The relevant interests do not have to be pecuniary interests or even specific legal rights but can be familial, personal or other nonmaterial interests. A decision which affects interests of one person directly may affect the interests of others indirectly. The issue is whether the affection of interests is too remote for the purposes of AAT Act (Cth) s 27(1).

2.5.4 Standing of interest groups In the AAT, an organisation or association of persons, whether incorporated or not, is taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association: AAT Act (Cth) s 27(2). This section extends the class of person who may seek review and effectively gives standing to ‘interest groups’. An intellectual or emotional concern may, if this concern is stated in the objects of the organisation, provide the requisite standing to seek review of a decision. The following cases indicate how this provision is applied. In Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74, a case concerning the issue of a television licence, the Australian Journalists Association and Australian Labor Party were both granted standing. The Australian Journalists Association was affected as the representative of its members; it had an interest in maintaining ethical standards in television and the decision under review related to a matter included in its objects. The Australian Labor Party was affected because media interests affect political parties and because its objects included issues relating to

media control. An important issue raised in this case was that the decision under review must relate directly to a matter included in the group’s objects and purposes. In Re Gay Solidarity Group and Minister for Immigration and Ethnic Affairs (1983) 5 ALD 289, the Gay Solidarity Group sought review of a criminal deportation decision against a gay man convicted of offences of indecency with another man, buggery and publishing an indecent article. The Group was refused standing. The Group’s objections included the ending of all forms of prejudice and discrimination against lesbians and gay men in all fields. The Minister claimed that the man, Bright, had not been discriminated against on the grounds that he was a homosexual. The deportation order was based on his conviction for a number of offences.

2.5.5 Application on behalf of persons In the AAT, an application may be made on behalf of persons whose interests are affected by a decision: AAT Act (Cth) s 27(1). This inclusion extends the test of standing. The type of persons who have been granted standing include: the personal representative and father of the deceased applicant for a home savings grant: Re Loschiavo and Secretary, Department of Housing and Construction (1980) 2 ALD 757; and a deportee’s partner: Re Vincent and Minister for Immigration and Ethnic Affairs (1978) 1 ALD 460.

2.5.6 Parties to a proceeding In most review tribunals, the decision maker is automatically made a party to the proceedings. This ensures that the tribunal is fully informed. Unless the legislation conferring jurisdiction modifies the position, the parties to the proceedings are the person who, being entitled to do so, has applied for review, the decision maker, the Attorney-General if she or he intervenes [page 44] and any other person who has been made a party to the proceedings: AAT Act (Cth) s 30; ACAT Act (ACT) s 29; ADR Act (NSW ) s 67(2); QCAT Act (Qld) ss 39–41; SACAT Act (SA) ss 53–55; VCAT Act (Vic) s 59: SAT Act (WA) s 36. In the SSAT, although the Department is a party, it does not have the right to appear.

2.5.7 Joinder Tribunals have the power to join parties: AAT Act (Cth) s 30(1A); ACAT Act (ACT) s 29(5); CAT Act s 44 (NSW ); QCAT Act (Qld) s 42: SACAT Act (SA) s 54; VCAT Act (Vic) s 60; SAT Act (W A) s 38. There are two limbs to this question of joinder: whether a person’s ‘interests are affected’ by the decision; and whether the tribunal should exercise its discretion to join the person or group as a party to proceedings. In several jurisdictions, the CAT legislation also specifically provides for joinder of a person if the tribunal considers that the person ought to be bound by, or have the benefit of, an order of the tribunal: ACAT Act (ACT) s 29(5); CAT Act (NSW ) s 44(1); QCAT Act (Qld) s 32(1)(a); VCAT Act (Vic) s 60(1)(a); SAT Act (W A) s 38(1)(a).

2.5.8 Joinder: interests affected The interpretation of ‘interests affected’ applies to the joinder provisions: see 2.5.3 . The provisions relating to interest groups (such as s 27(2) AAT Act) are taken into account when considering an application for joinder: Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74 at 80 per Davies J.

2.5.9 Joinder: discretion The second limb of the test for joinder is the exercise of the tribunal’s discretion. In the exercise of its discretion, the tribunal may place limitations on the participation in the proceedings of parties joined. The following cases indicate how the AAT has exercised its discretion. In Re Marine World Victoria Ltd and Minister for Arts, Heritage and the Environment (1986) 10 ALD 262 eight groups applied to be made parties to the proceedings. As the interests of all the joined parties were similar and to reduce the cost and length of the proceedings which would result from such joinder, the AAT made an order permitting these groups to be made parties conditional upon them agreeing to be represented jointly with some or all of the parties joined. This discretion was exercised in accordance with the AAT’s obligation under the Act ‘to provide a fair hearing and to carry out the review as expeditiously as the subject matter of the review permits’: at ALD 271. In Re Boyd and Comcare (1991) 23 ALD 392, the AAT refused the Reserve Bank of Australia’s application to be joined as a party because its interest, shared by Comcare, could be adequately represented by Comcare.

2.5.10 Effect of order for joinder The effect of an order for joinder was discussed in Re Sanyo Australia Pty Ltd and Comptroller-General of Customs (Matsushita Electric Co (Aust) Pty Ltd and Akai Pty Ltd; parties joined) (1994) 21 AAR 524 at 529, where the AAT (Deputy President McMahon presiding) said: The effect of an order joining a person as a party is not to displace the applicant from its position as the holder of that role. It could not be said that the applicant

[page 45] becomes somehow bound to the party joined so that they can act only in harness, whether or not their interests were identical or were affected in similar ways.

It follows that where the initial applicant wishes to withdraw the application, the joined party has no capacity to maintain the application or to require that the initial applicant can only withdraw with the agreement of the joined applicant.

Problem It is November 2014. Charlotte Casey is seven years old. Between the ages of two and four, Charlotte was sexually assaulted by an uncle who lived with her family in Canberra. The sexual assaults occurred on a regular basis during this time. Charlotte now suffers from a number of learning and social difficulties. A victim’s compensation application is made on Charlotte’s behalf by her mother, Ms Casey. The assessor has refused the application for compensation. The assessor’s reasons state:

The application for victims compensation has been refused. The alleged assaults occurred when Charlotte was very young. In accordance with the policy that victims should be encouraged to move on from incidents, it is inappropriate to award compensation. By the time Charlotte is 18 she will have forgotten about the incident and the receipt of the money will merely remind her of the pain experienced as a young child many years after the event.

In July 2014, the Federal Minister for Health issued the following press release: The Government is committed to encouraging the emotional health and well-being of all Australians who have been victims of violence. We believe that victims should be encouraged to move on from their pain and put it behind them so that they can live full and rich lives untarnished by previous painful experiences.

Following this press release, the Attorney-General sent the following memorandum to assessors of the Victims Compensation Board: All assessors are directed to exercise their decision-making power in accordance with a commitment to encouraging people to start life afresh and not to live in the pain of the past.

Ms Casey wants to appeal the decision. Advise her of the avenues of appeal and whether she may lodge the appeal on Charlotte’s behalf.

Resolution Introduction This question is directing you to consider the jurisdiction of the general merits review tribunal and the avenues of appeal open to a client. In your introduction, you may choose to discuss the statutory limitations of tribunals’ jurisdiction. However, be careful not to write an essay on merits review and the structure of the system. You are to focus on the practical application of the law to the facts of Charlotte’s case.

What decision has been made? Your first step in considering Charlotte’s situation is to establish what decisions have been made. There is one decision: a decision by an assessor of the Victims [page 46] Compensation Board. You should check the date on which those decisions were made. In the next chapter we will consider the time limits for lodging applications.

Is the decision reviewable? Your next step is to establish whether this decision is reviewable and by which review body. You will need to refer to the enactment under which the decision was made. Note that much merits review involves statutory interpretation so be sure that you have an understanding of the principles and rules of statutory interpretation.

Refusal to pay victim’s compensation The enactment under which the decision was made is the Victims Compensation Act 2008 (Cth) (the VCA). There is no provision for internal review in the legislation. The only available form of review is external review. Note that this is a federal enactment and therefore the appropriate external review tribunal will be a federal body. Section 36 of the VCA provides that an applicant who is aggrieved by a determination may appeal to the tribunal against a determination to refuse her or him compensation. ‘Tribunal’ is further defined in s 4 as the Commonwealth Administrative Appeals Tribunal. The AAT (Cth) has jurisdiction because the enactment, the Victims Compensation Act 2008 (Cth), has conferred jurisdiction upon it: AAT Act (Cth) s 25.

Application must be made An application must be made to the AAT. If Ms Casey makes the application, we will need to ensure that she has standing to make that application.

Standing Section 25(1)(b) of the VCA provides that an application for statutory compensation may be made ‘by any other person, on behalf of such a victim, who has a genuine interest in the welfare of that victim’. This provision has enabled Ms Casey to make application on Charlotte’s behalf. Now she wants to appeal the decision. The Victims Compensation Act 2008 (Cth) states in s 36(1) that an applicant for statutory compensation who is aggrieved by the determination may appeal to the tribunal. Ms Casey is an applicant for statutory compensation by virtue of s 25(1)(b) and is aggrieved by the determination. She may therefore appeal the determination to the AAT.

Decision-making powers In the next chapter we will consider the process which will ensue from application to finalisation of the matter. For now, you need focus only on the AAT’s capacity to make a decision. Ms Casey is concerned that they will merely ‘rubber-stamp’ the assessor’s decision. It is important to emphasise to Ms Casey that the AAT is comprised of members independent of the Victims Compensation Board. You would need to explain to Ms Casey that the AAT’s function is not to determine whether the primary decision was correct. Rather, it is another administrative body required to exercise its decision-making powers anew and to reach the ‘correct or preferable’ decision on the material before it: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577. The AAT has all the powers and discretions of the primary decision maker in relation to this decision: AAT Act (Cth) [page 47] s 43(1). It is said to ‘stand in the shoes of the primary decision maker’ and can exercise all the powers and discretions available to that person. The hearing before the AAT is a fresh hearing, a hearing de novo . This means that the AAT is not confined to the material or submissions that were before the primary decision maker: Drake v Minister for Immigration and Ethnic Affairs (1979). However, the AAT does not have greater powers available to it than the primary decision maker, the assessor, may lawfully exercise. The AAT’s powers are determinative and enable the AAT to affirm, vary, set aside and substitute or remit the matter to the primary decision maker: AAT Act (Cth) s 43.

The major factor which seems to have persuaded the assessor to refuse the application for compensation, is the policy announced by the minister in the July 2009 press release and the memorandum sent to assessors. The crucial issue is whether the AAT, like the assessors, should apply this policy. As a merits review tribunal, the AAT may consider the facts and the policy to be applied to the facts in reaching the decision. There is no indication that this policy has been given the status of delegated legislation by the statutory scheme. In the absence of any legislative force, the AAT, as a body independent of the executive, is not required to reach its decision in conformity with government policy and must not abdicate its review function by merely determining whether or not the decision conforms with government policy. The general rule is that the AAT is to make the ‘correct or preferable decision’ on the material before it and may treat government policy as one of the relevant factors in its determination of an application: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Generally, in the interests of consistency, the AAT adopts a practice of applying lawful ministerial policy, particularly if parliament has scrutinised and approved the policy, unless there are cogent reasons to the contrary. In this case, however, there is no indication that the policy has been scrutinised by parliament. Questions may also arise as to the lawfulness of this policy which may be beyond the power of the legislation. A primary object of the Act is to give effect to a statutory scheme of compensation for certain victims of violence: s 3(a). A reading of the legislation indicates that child victims of sexual assault are one of the groups targeted by the statutory scheme. There is no doubt that Charlotte falls within the group of victims of violence for which the legislation has been established. Even if the policy is a legal one, it would be open to Ms Casey to argue that it is one based on erroneous assumptions, and one which should not be followed by the AAT. This would require expert evidence, and would require overcoming the presumption in favour of ministerial policy, and the arguments in favour of consistency. However, if she could demonstrate that the policy was based on erroneous assumptions, Ms Casey could take comfort from Deane J’s observations in Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 at 647 to the effect that there is no virtue in being consistently wrong. It might, however, be easier to argue that even if the policy is not wrong, it is one which ought not be followed in the circumstances of Charlotte’s case. Reasons for departing from the policy might include the emotional pain which results from abuse at such a young age, the need for counselling and educational support, the value of [page 48] an acknowledgment by the tribunal that the assaults were harmful and unjust and the mistaken notion that the child and her family would have forgotten the abuse by the time she is a teenager. Finally, it is not clear that the compensation of victims of sexual abuse is inconsistent with the policy. It is not self-evident that the provision of compensation would not assist Charlotte ‘move on’ from her pain and ‘put it behind her’. Official acknowledgment of the wrong done to her might assist this process — if not at once, possibly in the future. Establishing whether or not this was the case would require expert evidence. But if this were available it would strengthen the case for compensation still further.

Conclusion It is clear that the AAT has jurisdiction to review a decision of a compensation assessor. It also appears that Ms Casey has standing to appeal the assessor’s decision to the AAT. Having explained the AAT’s function and power to reach an independent decision based on the merits of the case with or without regard to the policy, Ms Casey will be able to assess whether to appeal the decision. An important benefit of appealing the decision to the AAT is its remedial power: it may set aside the decision and substitute a new decision in Charlotte and Ms Casey’s favour.

Further tutorial discussion 1. 2.

W hy do you think the Commonwealth government created specialist tribunals in the migration jurisdiction rather than conferring this power on the generalist AAT? W hat is the value of having specialist tribunals? Jennifer Sharpe in ‘Acting under Dictation and the Administrative Appeals Tribunal’s Policy-Review Powers — How Tight is the Fit?’ (1985) 15(1) Federal Law Review 109 at 110 asks: … if the original decision-maker is required to follow government policy in the exercise of a statutory discretion, will the Tribunal also be obliged to follow that policy, or will it be required to exercise its review powers free from dictation? In other words, when the Tribunal steps into the shoes of the original decision-maker, just how tight is the fit?

3.

Discuss. Julian Disney has suggested that the specialist tribunal system should be retained as the maintenance of three member panels is more likely if the specialist tribunals are not incorporated into a super tribunal. He suggests that the financial and political pressures for rationalisation and economy might predominate in the super tribunals: ‘Reforming the Administrative Review System: For Better or for Worse? For Richer or for Poorer?’ in J McMillan (ed), The AAT — Twenty Years Forward , AIAL, Canberra, 1998. How does this argument sit with the traditional rationalisations offered by governments that seek to amalgamate review tribunals? [page 49]

4.

I n Re Wesseling and Secretary, Department of Social Security (unreported, AAT, Allen, Senior Member, 10 August 1992) the AAT commented (at [14]): The Tribunal, contrary to what some of its critics seem to believe, exists to apply the relevant law to the facts as found and has no jurisdiction to decide matters upon some nebulous or ephemeral basis of equity, good conscience and the substantial merits of the case.

Is this an accurate representation of the function of the AAT and other merits review tribunals? Discuss the appropriateness of this approach.

Further reading

Allars, M, Administrative Law: Cases and Commentary , Butterworths, Sydney, 1997, chs 5 and 7. Allars, M, ‘The Nature of Merits Review: a Bold Vision Realised in the Administrative Appeals Tribunal’ (2013) 41 Federal Law Review 197. Anderson, J, ‘Something Old, Something New, Something Borrowed … The New South Wales Administrative Decisions Tribunal’ (1998) 5 Australian Journal of Administrative Law 97. ARC (Administrative Review Council), Better Decisions: Review of Commonwealth Merits Review Tribunals , Report No 39, AGPS, Canberra, 1995. ARC, What Decisions Should Be Subject to Merits Review? ARC, Canberra, 1999. ARC, Internal Review of Agency Decision Making , Report No 44, ARC, Canberra, 2000. Argument, S (ed), Administrative Law and Public Administration: Happily Married or Living Apart under the Same Roof?, Australian Institute of Administrative Law (AIAL) Forum, AIAL, Canberra, 1993. (See particularly C G de Hoog, ‘Does Administrative Law Expect Too Much? A View from the Administration’, p 67.) Bacon, R, ‘Are the Babies Being Thrown Out with the Bathwater?’ in C Finn (ed), Administrative Law for the New Millennium , Australian Institute of Administrative Law, Canberra, 2000, pp 150–75. Carstairs, M and Anderton, A, ‘The Social Security Appeals Tribunal: 25 Years of Responding to Challenge’ in C Finn (ed), Administrative Law for the New Millennium , Australian Institute of Administrative Law, Canberra, 2000, pp 132–49. Cole, K (ed), Administrative Law & Public Administration: Form vs Substance , Australian Institute of Administrative Law Forum, AIAL, 1995. (See particularly Waters, N ‘Internal Review and Alternative Dispute Resolution: the Hidden Face of Administrative Law — III’ at 179.) Creyke, R (ed), Administrative Tribunals: Taking Stock , Centre for International and Public Law, Canberra, 1992. Creyke, R, The Procedure of the Federal Specialist Tribunals , AGPS, Canberra, 1994. [page 50] Creyke, R, ‘Tribunals — “Carving Out the Philosophy of Their Existence”: The Challenge for the 21st Century’ (2013) 71 AIAL Forum 19. Creyke, R, McMillan, J and Smyth, M, Control of Government Action: Text, Cases and Commentary , LexisNexis Butterworths, Sydney, 2013, pp 127–76, 195–200. Douglas, R and Head, M, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014, ch 7. Kirby, Mr Justice, ‘Administrative Review: Beyond the Frontier Marked “Policy” — Lawyers Keep Out’ (1981) 12 Federal Law Review 121. McMillan, J (ed), Administrative Law: Does the Public Benefit? , Australian Institute of Administrative Law (AIAL) Forum, AIAL, Canberra, 1992. (See particularly W De Maria, ‘The Administrative Appeals Tribunal in Review: On Remaining Seated During the Standing Ovation’, p 96; I Thompson and M Peterson, ‘Public Benefit: The Administrative Appeals Tribunal’, p 81.) McMillan, J (ed), The AAT — Twenty Years Forward , Australian Institute of Administrative Law, Canberra, 1998. McEvoy, T J F, ‘Res Judicata, Issue Estoppel and the Commonwealth Administrative Appeals Tribunal: A Square Peg into a Round Hole?’(1996) 4 Australian Journal of Administrative Law 37. O’Connor, J, ‘Effective Administrative Review: An Analysis of Two-Tier Review’ (1993) 1 Australian Journal of Administrative Law 4. Queensland Parliamentary Committee for Electoral and Administrative Review, Report of Review on Appeals from Administrative Decisions , Report No 25, 1995. Senate Legal and Constitutional Legislation Committee (SLCLC), Inquiry into the Provisions of the Administrative Review Tribunal Bill 2000 and the Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000 , SLCLC, Canberra, 2000. Sharpe, J M, ‘Acting Under Dictation and the Administrative Appeals Tribunal’s Policy-Review Powers: How Tight is the Fit?’(1985) 15(1) Federal Law Review 109. Western Australia, Commission on Government Report No 4 , Perth, 1996, chs 5–7 < www.slp.wa.gov.au/publications/publications.nsf/DocByAgency/A449CC1B4F2DA3BA48256983001307FF/$file/report4.pdf >.

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3 Merits Review: Procedure General In Chapter 2 , you were introduced to the concepts of jurisdiction and standing. Jurisdiction and standing must be established before a merits review tribunal can review a decision. In this chapter, we will consider the other mechanics of the merits review process. We will also consider the various procedures employed by merits review tribunals. Some of these procedures are prescribed by the legislation or regulations. In the Civil and Administrative Tribunals (CATs), procedures that are consistent with the legislation may be prescribed by rules made by Rule Committees constituted by members of the tribunal, and in the Administrative Appeals Tribunal (AAT), Practice Directions issued by the President recommend certain practices. The focus of this chapter will be the federal AAT although features of the CATs and the other tribunals will be discussed by way of comparison.

Objectives After studying this chapter, you will understand: 1. 2. 3. 4. 5. 6.

the procedures required after an administrator makes a decision; the requirements for lodging an application for review; the procedures used by tribunals after an application has been lodged; the tribunal’s power to make decisions without a formal hearing; the tribunal’s hearing procedures; and the availability of appeals from tribunal decisions.

1 What happens after an administrator has made a decision? 3.1.1 Reasons Administrative decision makers do not always give people the reasons for their decisions. However, if a person is entitled to apply to the tribunal for a review of a decision, she or he may request the person who made the decision to furnish a written statement of reasons: 13.3.4 – 13.3.7 . [page 52]

3.1.2 Notification of review rights Review rights are useless unless people are aware of them. The responsibility for telling people about their review rights lies with the agency that made the administrative decision. The obligation only arises where the statute requires the agency to notify people of their review rights. The statutes establishing merits review tribunals may impose an obligation on agency decision makers to notify people affected by reviewable decisions of the making of those decisions and of their review rights: Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) s 27A; Administrative Decisions Review Act 1997 (NSW ) (ADR Act) s 48; Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 157(1); State Administrative Tribunal Act 2004 (WA) (SAT Act) s 20(1) (cf ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act), South Australian Civil and Administrative Tribunal Act 2013 (SA) (SACAT Act) and Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) which have no such requirements). This notification obligation may be displaced: AAT Act (Cth) s 27A(2)(b); ADR Act (NSW ) s 48(2). For instance, it is displaced in the federal system where the decision in question is subject to a specific notification provision in another statute. Examples of such provisions are found in the Social Security (Administration) Act 1999 (Cth) ss 138 and 177. Further, an administrative failure to notify a person of their review rights does not affect the validity of the decision: AAT Act (Cth) s 27A(3); ADR Act (NSW ) s 48(3); QCAT Act (Qld) s 157(4); SAT Act (WA) s 20(4).

3.1.3 Barriers to accessing tribunals Even where a person has been informed of their right to lodge an application for review, there may be reasons why they do not proceed with the application. The process may be too costly, emotionally or financially, or the person may be too afraid to apply for review, believing that the tribunal operates like a court with all the associated barriers. Many of the tribunals have sought to make

themselves more user-friendly and accessible. Materials have been developed which explain how the tribunal process operates. For instance, the AAT has pamphlets in a variety of languages, a video showing a case from application to resolution and details of where legal representation may be obtained. The video is subtitled in eight languages and in English for the hearing impaired. Some tribunals also provide this information on the internet. Tribunals also undertake outreach activities to ensure that potential applicants are aware of the tribunal’s role and function. Tribunal officers provide information about the tribunal’s processes and interpreters are generally provided on request. See < www.aat.gov.au > for further information.

2 What are the requirements for lodging an application for review? 3.2.1 Applications must be made in the prescribed manner Consistent with the objective of informality, most merits review tribunals do not require rigid compliance with formalities when applications are made. In the AAT, the major requirement is that applications must be made in writing: AAT Act (Cth) s 29(1) (a). Applications may be made in accordance with the prescribed form: AAT [page 53] Act (Cth) s 29(1)(b); AAT Regulations reg 5. However, applications by letter are accepted. Although s 29(1)(c) of the AAT Act (Cth) requires applications to contain a statement of reasons for the application, an applicant is not limited to the grounds stated in the application: Re Greenham and Minister for the ACT (1979) 2 ALD 137. The reasons for application may be regarded as of ‘little significance’ because the AAT hears the matter anew and does not treat applications as similar to pleadings in court: Re Knight and Comcare (1995) 36 ALD 417 at 425. The requirements to make application to the CATs vary. Applications must be in a form that complies with the tribunal rules: ADR Act (NSW ) s 55(1); QCAT Act (Qld) s 33(2); VCAT Act (Vic) s 67(1); SAT Act (WA) s 42(1) and (7).

3.2.2 Application fee In most jurisdictions a fee prescribed by regulation may be payable and an application may not be duly lodged until the prescribed fee is paid or waived: AAT Act (Cth) s 29A; ACAT Act (ACT) s 10 (if the rules require payment of a fee); ADR Act (NSW ) s 56; QCAT Act (Qld) s 38; SACAT Act (SA) s 95(2)(c); VCAT Act (Vic) s 68; SAT Act (WA) s 43. However, regulations may and do prescribe that a fee is not payable in respect of certain decisions: AAT Regulations reg 19(6), Sch 3; Court Procedures Act 2004 (ACT) ss 12–16; Civil and Administrative Tribunal (CAT) Regulation 2013 (NSW ) reg 6: QCAT Regulations (Qld) Pt 3; SACAT Act (SA) s 95(2) (c) (none yet made); VCAT (Fees) Regulations 2013 regs 6 and 7; SAT Regulations 2004 (WA) Pt 3. For example, fees do not have to be paid to the AAT in respect of ‘income maintenance’ matters such as decisions under the Social Security Act 1991 (Cth). W here fees are payable, the Registrar has the power to waive the fees where payment has caused or is likely to cause financial hardship to the applicant: AAT Regulations reg 19(6)(c); VCAT Act (Vic) s 132. In Victoria, the Registrar may reduce fees if permitted by the regulations: VCAT Act (Vic) s 132. (The VCAT (Fees) Regulations permit this to be done only in very limited circumstances: reg 4(4).)

3.2.3 Time limits Applications must be lodged within the ‘prescribed time’: AAT Act s 29(1)(d); and see ACAT Act (ACT) s 10(2); ADR Act (NSW ) s 55(2) and (4); QCAT Act (Qld) s 33(3); VCAT Act (Vic) s 67(1)(b) (time prescribed by the enabling legislation); SAT Rules (WA) r 9. Generally, applications to the AAT must be lodged within 28 days of the decision being delivered to the applicant by the decision maker, or of reasons being given: for example, AAT Act (Cth) s 29(2). In some instances the time limits may be varied by the statutes under which particular decisions are made. For example, under the Veterans’ Entitlements Act 1986 (Cth) applications must be made to the AAT within three months of the applicant being notified of the relevant decision. The ADR Act (NSW ) provides that the rules of the tribunal may prescribe the time within which an application must be made: s 55(1). In Victoria, time limits are regulated by the enabling enactment and the rules of the VCAT: VCAT Act (Vic) s 67.

3.2.4 Extension of time Tribunals have a general power to extend the time for the making of an application: AAT Act (Cth) s 29(7); ACAT Rules (ACT) r 7; ADR Act (NSW ) s 57; QCAT Act (Qld) s 61(1)(a); SACAT Act (SA) s 66; VCAT Act (Vic) s 126; SAT Rules (WA) r 10. The general approach taken by the AAT accords with that taken by the Federal Court in relation to similar applications under the Administrative [page 54] Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act (Cth)). The basic principle is that limitation periods are not to be ignored, and proceedings commenced outside the period will generally not be entertained: Hunter Developments Pty Ltd v Cohen (1984) 7 ALD 315 at 320; 58 ALR 305 per W ilcox J: see 4.5.1 .

3.2.5 Administrator’s obligation Once an application has been made to a tribunal, the administrator has an obligation to lodge the decision, statement of reasons and any other material documents with the tribunal: see 13.3.8 . In the absence of a statutory obligation to provide the agency documentation, an applicant can lodge a Freedom of Information application to gain access to the agency file: see 14.3.7 .

3 What happens after an application has been lodged? 3.3.1 Operation of decision after application: stay orders Except in the ACT, legislation provides that the making

of an application for review does not affect the operation of the decision or prevent the taking of action to implement the decision: AAT Act (Cth) s 41(1); ADR Act (NSW ) s 60(1); QCAT Act (Qld) s 22(1); SACAT Act (SA) s 36(1); VCAT Act (Vic) s 50(1); SAT Act (WA) s 25(1). However, the tribunals have the power to make an order staying or otherwise affecting the operation or implementation of the decision or part of the decision: AAT Act (Cth) s 41(2); ADR Act (NSW ) s 60(2); QCAT Act (Qld) s 22(2); SACAT Act (SA) s 36(2); VCAT Act (Vic) s 50(3); SAT Act (WA) s 25(2); and see ACAT Act s 53 (power to make interim orders). In deciding whether to stay a decision involving the payment of money to a respondent, the AAT has generally had regard to three main factors: hardship, the likely recoverability of money paid to the applicant should the application for review ultimately be unsuccessful and the prospects of success of the application for review: Re Repatriation Commission and Delkou (1985) 8 ALD 454. In many cases the possibility that the money may not be recoverable has persuaded the AAT to refuse the application for a stay: Re Secretary, Department of Social Security and Glanville (1994) 35 ALD 151. W here a stay is refused, the AAT may recommend an expedited hearing: Re Wang and Migration Agents’ Board (unreported, AAT, Cahppell DP, 1 March 1996).

3.3.2 Assisted dispute resolution program The pre-hearing or assisted dispute resolution (ADR) process is an essential aspect of tribunal process. The AAT’s assisted dispute resolution program involves the use of a variety of ADR techniques. By far the most important are conferences (7,606 in 2012–13, which represents more than one per application). Conciliations (which are conducted by tribunal members) are far less frequent (485) and mediations (42), neutral evaluations (32) and case appraisals by tribunal members (3) played only a limited role in the resolution of cases: AAT Annual Report 2012–13, table 4.7. A large proportion of decisions are finalised without a hearing. For instance, in 2012–13, 79% of AAT applications were finalised without a hearing, a figure which has been remarkably stable over the last few years. The benefit of settlement of proceedings [page 55]

Notes: 1. Where necessary. 2. Explore possibility of using another ADR process.

by agreement was discussed by the AAT (Gray J presiding) in Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority (No 3) (1992) 28 ALD 368 at 374: There is a definite public interest in settlement of proceedings. It ought to be open to an applicant in this Tribunal to settle the claim the subject of the proceeding at any time up to the decision. Settlement, by mediation or otherwise, should be encouraged. In the vast bulk of cases, it saves the parties and the public money. Parties should not be discouraged from settlement by fearing that, even if they settle, the Tribunal will proceed with the case, or by being subjected to financial or other penalties when they have settled.

However there are countervailing arguments against reliance on settlements as a basis for case-disposition: settlements may deprive the public of authoritative statements about the relevant law and its proper administration; negotiations may work in favour of the powerful at the expense of the weak; settlements are not subject to public scrutiny and its concomitant accountability; and [page 56] in relation to the exercise of public power, parties should receive no more and no less than their legal due, and settlements are unlikely to be consistent with this principle.

See J Disney, ‘Reforming the Administrative Review System: For Better or for Worse? For Richer or for Poorer?’ in J McMillan (ed), The AAT — Twenty Years Forward , Australian Institute of Administrative Law, Canberra, 1998, pp 330–1. The flow chart above, extracted from the AAT’s Annual Report 2012–2013 , Canberra, 2013, fig 2.4 outlines the progress of an application through the AAT from application to resolution.

3.3.3 Case management Case management refers to the application of management principles to the progress of matters through the court or tribunal system. It aims to enhance public confidence in the system by improving efficiency and reducing delay without interfering with each case being resolved on its individual merits. The case management system of the AAT seeks to encourage parties to: … play an active part in identifying legal and factual issues early in the pre-hearing process. This encourages early resolution of disputes or, where that is not possible, a clear framework within which the parties can prepare for hearing: AAT, Annual Report 1995–1996 , AGPS, Canberra, 1996, p 11.

The court or tribunal takes an active role in each case: setting timetables, monitoring progress, setting meaningful hearing dates and limiting adjournments. For instance, the AAT’s case management system monitors cases actively. It aims to have matters resolved within 12 months of lodgment, with some success in the social security jurisdiction where it meets this target in more than 90% of cases, but less in other jurisdictions where 30% of cases remain unfinalised after 12 months: AAT, Annual Report 2012–13 , table 3.10. The AAT’s General Practice Direction, issued on 26 March 2007, sets out the procedures to be followed for applications lodged in the AAT where the applicant is represented, subject to specific directions being given in a particular case: see AAT, Annual Report 1995–1996 , ibid, Appendix 7. As with civil procedure in the courts, the procedures of the CATs are governed by a mixture of legislation, rules, practice directions and directions.

3.3.4 Preliminary/compulsory conferences Tribunals have the power to direct that a preliminary conference is to be held: AAT Act (Cth) s 34; ACAT Act (ACT) s 33; CAT Act (NSW ) s 37 (no specific power, but tribunal to use resolution processes); QCAT Act (Qld) s 67; SACAT Act (SA) s 50; VCAT Act (Vic) s 83; SAT Act (WA) s 52. Conferences are presided over by Conference Registrars, members or Deputy Registrars. Conferences are held in private and nothing said or done at them can be used at a subsequent hearing unless the parties agree: AAT Act (Cth) s 34(3); CAT Regulation 2013 Sch 1 cl 10(4); QCAT Act (Qld) s 74; SACAT Act (SA) s 50(10); VCAT Act (Vic) s 85; SAT Act (WA) s 52(5). The aim of the conference process is to bring the parties together with a view to identifying and clarifying legal and factual issues, narrowing the issues on which they disagree, promoting settlement of the matter; identifying questions to be decided by the tribunal; and facilitating the conduct of the matter. This purpose is set out in the CAT legislation. [page 57] To facilitate this process, the AAT’s General Practice Direction requires parties to lodge a statement setting out the issues in dispute, to lodge and exchange copies of all relevant material and documents they intend to rely on at any further hearing and to lodge a statement setting out the facts upon which the parties intend to rely and any contentions to be drawn from those facts. In practice, conferences are held in almost every matter coming before the AAT except where all the evidence for the hearing is in existence and has been exchanged between parties or can be exchanged quickly. Many of these conferences are conducted by telephone.

3.3.5 Other pre-hearing processes Several of the tribunals occasionally use ‘neutral evaluation’, but the CAT legislation no longer makes express provision for it. Several CATs have the express power to refer matters to empower special referees and experts who may decide or give their opinions with respect to questions referred to them: SACAT Act (SA) s 65; VCAT Act (Vic) ss 94 and 95; SAT Act (WA) s 65. In Victoria, parties are required to pay the costs of the referee or expert, but there is no such provision elsewhere.

3.3.6 Mediation The general review tribunals also offer mediation. Mediation is a process in which the mediator, a neutral and independent party, assists the parties to a dispute to resolve their dispute by, inter alia, clarifying the issues and exploring whether settlement on particular terms might be possible. W here the AAT considers it appropriate and both parties voluntarily consent, a matter may be referred to a mediator for mediation: AAT Act (Cth) s 34A. In the CATs, however, mediation may be ordered by the Tribunal without the consent of the parties. Confidentiality governs anything said or done at the mediation. If the matter is not resolved at mediation, the mediator cannot preside at a hearing of the matter.

3.3.7 Directions hearings The Act, Regulations, Rules and Practice Notes or Practice Directions of the tribunals generally prescribe the tribunal’s procedure: AAT Act (Cth) s 20(1A); ACAT Act (ACT) ss 23–25 (no reference to directions hearings); CAT Act (NSW ) ss 24, 25 (rules), 26 (procedural directions); QCAT Act (Qld) ss 62, 222, 223, 226; SACAT Act (SA) ss 44, 94; VCAT Act (Vic) ss 80, 157, 158; SAT Act (WA) ss 32–34. Directions Hearings may be held by the tribunal of its own motion or at the request of one of the parties. Directions Hearings generally deal with procedural matters such as exchange of affidavits, statements or documents, the timetabling of a matter, clarification of issues or determination of the venue for a hearing.

4 Can the tribunal make a decision without a formal hearing? 3.4.1 Decision-making powers where parties reach agreement As we have seen, one of the distinguishing features of tribunals is the commitment to assisted dispute resolution processes which encourage resolution without a hearing. Apart from a tribunal’s powers to formally determine a matter, the tribunal may also have other

[page 58] decision-making powers to deal with applications. In Re Buckfield and Repatriation Commission (1993) 29 ALD 884, Deputy President McMahon held that once parties have reached agreement, the AAT is obliged to give effect to that agreement provided it is within power whether or not it considers the agreed decision to be appropriate. In these situations, the AAT’s decision simply gives effect to an agreement between the parties and does not reflect an inquiry and any findings of fact: see 2.2.7 . The position in the CATs is slightly different. New South Wales and Queensland law is similar: ss 59 (NSW ), 87 (Qld (non-ADR orders)) (requirement is only that the consent order be such that the decisionmaker could have made the relevant decision). In other jurisdictions, the power to make orders to give effect to settlements is slightly more constrained. In the Australian Capital Territory, South Australia and Western Australia, the legislation requires that settlements be consistent with relevant legislation; the Australian Capital Territory also requires that it be one ‘appropriate for the tribunal to make’ and South Australia provides that the CAT may not give an order in the terms of a settlement if this would prejudice the interests of non-participants: ACAT Act (ACT) s 55; SACAT Act (SA) s 51; SAT Act (WA) s 56(2). Victoria and Western Australia use the threat of costs as an incentive to parties to make reasonable settlement offers: SAT Act (W A) ss 41–43; VCAT Act (Vic) ss 112–115.

3.4.2 Benefits and disadvantages of decisions made without a formal hearing W hen a tribunal makes a decision based on the parties’ agreement, parties have the benefit of an immediate outcome and are spared the expense and delay of pursuing the matter to a hearing. The disadvantage of such an outcome is that important issues of general law or policy are not resolved in a public forum. There are also concerns about the appropriateness of mediation as a process where the unassisted applicant’s position is unequal to that of the government agency. Conversely, settlement may be an inappropriate way of resolving disputes where the public interest is at stake. There may also be a conflict between the educative role of tribunal proceedings, and the relative secrecy that surrounds settlement. However, given the importance of settlement as a basis for resolving applications, it is clear that tribunals are able to function within their resources only because most applicants and respondents are willing to forego their ‘day in court’.

3.4.3 Powers to dismiss applications Tribunals also have the power to dismiss applications: at the request of the applicant: AAT Act (Cth) s 42A(1A); ACAT Act (ACT) s 56(d); CAT Act (NSW ) s 55(1) (a); QCAT Act (Qld) s 46 (permits withdrawal); SACAT Act (SA) s 47(1); VCAT Act (Vic) s 74; SAT Act (W A) s 46(1); where both parties consent: AAT Act (Cth) s 42A(1); ACAT Act (ACT) s 56(a); SACAT Act (SA) s 47(1); SAT Act (WA) s 46(2). There is no express provision for this in New South Wales and Victoria, but the general power to make orders giving effect to settlements would permit consensual dismissal; when the matter would be more appropriately dealt with by another body: ACAT Act (ACT) s 83; QCAT Act (Qld) s 52; SACAT Act (SA) s 46; VCAT Act (Vic) s 77; SAT Act (W A) s 50; [page 59] where a party to the proceedings is conducting the proceedings in a way that unnecessarily disadvantages another party to the proceedings, for instance, by causing adjournments or failing to comply with an order of the tribunal: AAT Act (Cth) s 42A(2), 42A(5); ACAT Act (ACT) s 74(2)(b); CAT Act (NSW ) s 55(1) (c); QCAT Act (Qld) s 48; SACAT Act (SA) s 49; VCAT Act (Vic) ss 76, 78, and 87 (failure to attend compulsory conference); SAT Act (W A) s 48 and see s 53(b) (ii) (failure to attend compulsory conference); and. which are frivolous or vexatious: AAT Act (Cth) s 42B; ACAT Act (ACT) s 32(2)(b); CAT Act (NSW ) s 55(1) (b); QCAT Act (Qld) s 47; SACAT Act (SA) s 48; VCAT Act (Vic) s 75(2); SAT Act (WA) s 47. A proceeding may be considered vexatious if it is ‘manifestly untenable’, ‘futile’ or being pursued for a collateral purpose: Re Williams and Australian Electoral Commission (and The Greens as party joined) (1995) 38 ALD 366 (Mathews, Beaumont and Hill JJ). The AAT in Williams also noted (at 372) that this power should be exercised ‘cautiously and sparingly’.

3.4.4 Power to review decision on the papers Tribunals may review decisions on the basis of written documents, subject to the obligation to accord parties procedural fairness, that is, to give parties an opportunity to present their cases: see 3.5.8 . Generally, tribunals can determine the matter on the papers without holding a hearing if the decision can be adequately determined in the absence of the parties: AAT Act (Cth) s 34B; ACAT Act (ACT) s 54; QCAT Act (Qld) s 32(2); SACAT Act (SA) s 67(2) (if appropriate); VCAT Act (Vic) s 100(2); SAT Act (WA) s 60(2) (if appropriate). This may occur where the only issue is a question of law.

5 What happens at a tribunal hearing? 3.5.1 Informal and inquisitorial Tribunals have a statutory obligation to conduct proceedings with as little formality as the circumstances of the case permit: AAT Act (Cth) s 33; ACAT Act (ACT) s 7(c); CAT Act (NSW ) ss 3(d), 38(4); QCAT Act (Qld) s 29(3); SACAT Act (SA) ss 8(f), 39(1)(a); VCAT Act (Vic) s 98; SAT Act (WA) s 9(c). Generally, the atmosphere of the hearing should be as informal as the case allows and members are to explain matters of procedure. Further, unlike courts, merits review tribunals have certain ‘inquisitorial’ powers. This inquisitorial function is highlighted by the requirement that the tribunal ‘stand in the shoes of the primary decision maker’: see 2.2.2 . If a tribunal merely exercises a supervisory function, it may fail to fulfil its statutory

function: see 2.2.7 . Because of this different function, tribunals may take a more active role than a court in defining the issues to be resolved and suggesting evidence that may be of assistance. For instance, the AAT may ‘inform itself on any matter in such manner as it thinks appropriate’: AAT Act (Cth) s 33(1)(c). The CATs’ interventionist and inquisitorial powers are clearly set out in the legislation. They are not bound by the rules of evidence and are ‘to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms’. They have an obligation to ensure that all relevant material is disclosed to them so as to enable them to determine all of the relevant facts in issue in any proceedings and the power to call their own witnesses: [page 60] ACAT Act (ACT) s 26; CAT Act (NSW ) s 46(1); QCAT Act (Qld) s 98(1)(a); SACAT Act (SA) s 43; VCAT Act (Vic) s 104; SAT Act (WA) s 32. Provision, in most jurisidictions, for the use of assessors, experts and referees strengthens the inquisitorial function of the CATs: ACAT Act (ACT) s 108; QCAT Act (Qld) s 111; SACAT Act (SA) s 22; VCAT Act (Vic) s 95, Sch 3, cl 7; SAT Act (W A) s 65.

Self-represented applicants All merits review tribunals, consistent with their obligation to decide applications in a manner that is ‘fair, just, economical and quick’ assist self-represented applicants by providing assistance about tribunal procedures and powers and where to get advice. In Victoria, the principal registrar is required to give reasonable assistance on request to a person in formulating an application: VCAT Act (Vic) s 67(4). In Re Galea and Secretary, Department of Social Security (1994) 34 ALD 673 at 688, the AAT noted that the AAT: 3.5.2

… encourages unrepresented applicants to feel free to come before it and does what it can to assist those applicants in presenting their cases. It is only fair to say that respondents’ representatives, particularly those from the Department, also do what they can to assist unrepresented applicants.

Some of the CATs are under a statutory obligation to explain tribunal procedures and decisions of the tribunal that relate to the proceedings and to ensure that parties understand the nature of assertions and the legal implications of those assertions: CAT Act (NSW ) s 38(5); QCAT Act (Qld) s 29; SACAT Act (SA) s 43(1)(b) and (c); SAT Act (WA) s 32(6). Despite the efforts of some tribunal members, many applicants continue to face significant burdens. The legal requirements associated with tribunal procedures, the judicial detachment of many of the members, the courtlike layout of some of the hearing rooms and the complexity of many cases can present a barrier to access for self-represented applicants. For a detailed discussion of the implications of being unrepresented, see Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System , Report No 89, AGPS, Canberra, 2000, pp 645–66.

3.5.3 Role of representative of primary decision maker The function of the agency’s representative in tribunal proceedings reinforces the non-adversarial nature of these proceedings. In proceedings before the Refugee Review Tribunal or Social Security Appeals Tribunal the administrator is not represented in person. However, in the general tribunals, the agency is entitled to a reasonable opportunity to present its case: AAT Act (Cth) s 39; ACAT Act (ACT) s 44(1) and (4); CAT Act (NSW ) s 44(1) and (4); QCAT Act (Qld) ss 40–41; SACAT Act (SA) s 56(1)(b); VCAT Act (Vic) s 59(1)(b); SAT Act (WA) ss 36(4), 37. The agency representative has the task of putting the case for upholding the decision. However, the representative’s duty is not to defend the agency decision but to provide the necessary information to assist the tribunal to ensure that the correct or preferable decision is made: McDonald v Director-General of Social Security (1984) 6 ALD 6 at 18; 1 FCR 354. In Re Cinkovic and Repatriation Commission (1990) 20 ALD 131 the AAT was critical of the Repatriation Commission representative who failed to disclose the existence of a medical report favourable to the applicant. In LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90 (a decision allowing an [page 61] appeal against a judgment dismissing an appeal against an AAT decision), the Full Federal Court observed that the Commonwealth was bound to act as a model litigant both under the Legal Services Direction 2005 and independently of it, and these obligations went beyond the ethical standards owed by lawyers in general: at [42] per North, Logan and Robertson JJ. In that case, the duty meant that counsel for the Commonwealth should have drawn the primary judge’s attention to the fact that tribunal reasons appeared to have been copied almost entirely from the government’s submissions and suggested that the tribunal had failed to consider an affidavit from the applicant appellant. There is express provision for the duty to assist in some of the CAT legislation: SAT Act (W A) s 30.

3.5.4 Onus of proof This non-adversarial nature is further reinforced by the fact that there is no legal onus or burden of proof on an applicant in merits review proceedings. In some cases, the legislation may impose an onus of proof. In Bushell v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30 at 43, the High Court noted that: Each of the Commission, the Board and the AAT is an administrative decisionmaker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in factfinding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.

W ithout any formal onus, the only onus is a commonsense one in that parties who fail to ensure that evidence

in their favour is before the tribunal, may lose if the tribunal does not request production of further material: McDonald v Director General of Social Security (1984) 6 ALD 6; 1 FCR 354. In situations where the tribunal cannot be satisfied on the balance of probabilities that the facts exist which warrant the exercise of the power, then the power should not be exercised as the tribunal has failed to achieve the statutory requirement of reaching a particular state of mind: McDonald v Director General of Social Security (1984) 6 ALD 6; 1 FCR 354. See too J Dwyer, ‘The Impact of the AAT: A View from the Tribunal’ in J McMillan (ed), The AAT — Twenty Years Forward , Australian Institute of Administrative Law, Canberra, 1998, pp 86–90.

3.5.5 Limitations on non-adversarial and informal nature of tribunal process? Despite these inquisitorial powers, courts have been reluctant to impose any obligations on the AAT to use these powers and have imposed strict limits on the capacity of AAT members to become actively involved in proceedings. Deane J, with whom Fisher J agreed, in Sullivan v Department of Transport (1978) 1 ALD 383 at 402–3; 20 ALR 323 warned that: … undue interference in the manner in which a party conducts his case may, no matter how well intentioned, be counterproductive and, indeed, even overawe and distract a party appearing in person to the extent that it leads to a failure to extend to him an adequate opportunity of presenting his case.

[page 62] The case law suggests that the AAT is best advised to be guided by the parties in identifying the issues and to permit them to present their cases particularly ‘where both parties are represented by apparently competent legal practitioners’: Perring v Australian Postal Corporation (1993) 31 ALD 693 at 697 per Einfeld J. In the case of selfrepresented applicants, the Full Federal Court has suggested that the AAT should avoid possible injustice by inquiring why a self-represented person has failed to properly prepare a case. However, such an approach would be ‘a matter of discretion limited by the necessity that the tribunal be, and appear to be, impartial as between the parties’: Titan v Babic (1994) 49 FCR 546; 126 ALR 455 at 464. In proceedings before the Victorian Civil and Administrative Tribunal, if a party is unrepresented, the tribunal may appoint a person to represent that party: VCAT Act (Vic) s 62(6).

3.5.6 Representation There is much debate as to whether legal representation should be allowed in tribunals. It can help ensure that applicants are given a proper hearing and that the tribunal follows fair practices. It may also equalise the applicant’s position with that of the agency representative who, in most cases, will have greater experience and knowledge of the tribunal process and area of law. However, the danger is that lawyers influence the formality, legalism and cost of tribunal proceedings. The first tier tribunals have limited the capacity for parties to be represented. For instance, in Veterans’ Review Board matters, a person may not be represented by anyone holding a law degree or otherwise qualified for admission as a barrister or a solicitor: Veterans’ Entitlements Act 1986 (Cth) s 147. In the Migration Review Tribunal jurisdiction, an applicant may only be represented by leave of the tribunal: Migration Act 1958 (Cth) s 366A. The Refugee Review Tribunal states that a person is not entitled to be represented (Migration Act 1958 (Cth) s 427(6)), but this has been interpreted as not precluding the tribunal from permitting representation. In the New South Wales and Queensland CATs, a party may be represented by a legally qualified person or otherwise only in limited circumstances or by leave of the tribunal: CAT Act (NSW ) s 45; QCAT Act (Qld) s 43. In contrast, legal representation is allowed in the AAT, and most CAT proceedings; non-legal representation is permitted in the AAT, but generally permitted in the CATs only by leave of the tribunal and only if the representative does not act for reward: ACAT Act (ACT) s 30 (non-legal representation permitted except where rules provide otherwise); SACAT Act (SA) s 56; VCAT Act (Vic) s 62 (some exceptions, including government as of right, others where another party is represented or by leave); SAT Act (W A) s 39.

3.5.7 Limited by the empowering legislation The procedural regime governing the AAT and the CATs makes it clear that tribunals should act on the basis that procedure is a means to an end, and that procedures should be calculated to yield correct decisions as efficiently as possible. Applying the legislation is potentially complicated by the reluctance of drafters to give guidance in relation to what to do when different goals are in conflict. For instance, consider CAT Act (NSW ) s 38(4) (whose language is replicated in the AAT and CAT Acts): ‘The Tribunal is to act with as little formality as the circumstances of the case permit and according to [page 63] equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’. The section requires some formality (that which is required by the circumstances, but what do the circumstances require?). Insofar as ‘equity, good conscience and the substantial merits of the case’ is a phrase with which lawyers may be familiar, it implies that legal forms and technicalities are not to be totally disregarded. It is to inform itself ‘on any matter in such manner as it thinks fit, subject to the rules of natural justice’: s 38(2). This implies that what it might think fit might be contrary to the rules of natural justice. Demands that tribunals inform themselves so that they can determine all relevant issues may be hard to reconcile with demands that tribunal hearings be cheap and quick. And if tribunals can do what courts can do, only better, what is the rationale for a legal system in which tribunals enjoy far less constitutional protection than courts? Many of the problems disappear once one recognises that the task of the tribunal is to do its best to balance occasionally inconsistent demands and to recognise that legal institutions tend to work reasonably well, notiwthstanding that they are sometimes tempted to be over-formal and over-inclined to apply evidence law rigorously. However, the Federal Court has examined the relevance of the fact that, while constituted as a

tribunal subject to legislation requiring informal procedures, the AAT also possesses court-like features. In Sullivan v Department of Transport (1978) 20 ALR 323, the Full Court emphasised that tribunals, like courts, are under a duty to act judicially. Features of the AAT which reinforce the tribunal’s duty to act judicially include the structure of the membership; the judicial qualifications of some of the membership; the ability to give directions and issue summonses; the requirement to hold public hearings; the power to take evidence on oath or affirmation; and the provision for parties to be legally represented. Tribunals may reduce formality and are required to do so by their enabling Acts. However, they must ensure that judicial fairness and detachment is not compromised. This is a significant limitation on the tribunals’ capacity to reduce the formality of hearings.

3.5.8 Procedural fairness Procedural fairness (or natural justice) requires that applicants and respondents must be given an opportunity to be heard by an unbiased decision maker: see Chapter 11 . Section 39 of the AAT Act (Cth) imposes a duty on the tribunal to ensure that every party to a proceeding is given ‘a reasonable opportunity to present his case and, in particular, to inspect any documents to which the tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents’. Similar provisions are found in relation to the CATs, and in addition, some CAT legislation expressly subordinates procedures and rules to natural justice or procedural fairness: see ACAT Act (ACT) s 7; CAT Act (NSW ) ss 38(5) (c) and (2) (in informing itself, and CAT is not bound by rules of evidence but must comply with rules of procedural fairness); QCAT Act (Qld) ss 28(3)(c) (must afford natural justice) and 29 (duty to assist parties); SACAT Act (SA) s 43(1) (duty to assist parties, no express right to natural justice); VCAT Act (Vic) ss 97 and 98(1)(a); SAT Act (WA) s 32(1), (6) (duty to afford natural justice, duty to assist). These provisions constitute statutory recognition of the duty to accord procedural fairness. The content of this duty for a tribunal with some inquisitorial powers was discussed in the following case. [page 64] I n Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323, the applicant had sought review of decisions refusing to renew his commercial pilot’s licence and radio telephone operator’s licence on medical grounds. The applicant represented himself at the tribunal hearing and sought to call a medical witness. The medical witness was not present and without his evidence the applicant was not able to proceed with his submissions regarding the medical standard which had been applied to him. The applicant did not request an adjournment and the AAT did not offer one. The AAT affirmed the decision under review. Sullivan appealed the AAT’s decision. The Full Federal Court noted that at the conclusion of the applicant’s evidence, the AAT had invited him to adduce further evidence. Further, there was no indication from the applicant that he desired the proceedings to be adjourned. The court held that the AAT’s failure to adjourn the matter or to inform the applicant of his right to apply for such an adjournment did not amount to a denial of procedural fairness. The AAT’s obligation to accord procedural fairness is to give a party a reasonable opportunity to present a case, and not the ‘impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled’: at ALD 402; ALR 342 per Deane J. However, in other proceedings, the Federal Court has been critical of the AAT for its failure to adjourn proceedings and obtain further evidence where the evidence presented failed to provide a proper basis for the conclusion: Adamou v Director-General of Social Security (1985) 7 ALD 203; and when an application has been made for an adjournment, its refusal may result in an adverse substantive decision being quashed for unreasonableness in circumstances where refusal would seriously prejudice important interests: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; [2013] HCA 18. Arguably, this problem will not arise in the CATs as in addition to the obligation to take measures to ensure that a party has the fullest opportunity to be heard, it also has an obligation to ensure that all relevant material is disclosed to the tribunal. This obligation sits uneasily with expectations that tribunal justice be quick, but this obligation has proved an often unrealised aspiration rather than a practically enforceable right. On the facts in Sullivan , the CAT would have to have adjourned the proceedings on its own motion to ensure that it heard the evidence of the crucial witness.

3.5.9 Content of procedural fairness: surprise video evidence In a number of cases before the AAT, the respondent has sought to introduce video evidence to take the applicant by surprise during cross-examination. This scenario has squarely raised the issue of balancing the AAT’s obligation to accord procedural fairness with the s 33 statutory objectives of limited formality, technicality and expedition. The following cases show how the AAT and Federal Court have dealt with these issues. Australian Postal Commission v Hayes (1989) 18 ALD 135; 23 FCR 320; 87 ALR 283 raised the issue whether an applicant employee should have access to video evidence collected by the Australian Postal Commission (APC) before giving evidence concerning the termination of workers’ compensation. Senior Member Hayes of the AAT had ruled that the applicant should have access. Fairness required that where something is alleged against the applicant, [page 65] she should not be taken by surprise but should have the opportunity of giving an explanation for the allegations. Hayes based these reasons on the non-court like nature of the AAT, its commitment to openness in government decision making and that if the openness should disadvantage anyone, then ‘it is fairer that the Commonwealth and its agencies carry the burden of the disadvantage, they being so much more powerful than the person who is

attempting to have their decisionmaking reviewed’: at ALD 136; ALR 285. The APC sought review of Hayes’ decision to grant access. W ilcox J held that the direction amounted to a denial of procedural fairness. The direction had the effect of ‘so fettering cross-examination’ that the applicant’s evidence could not be properly tested by confronting her with the video during cross-examination after she had committed herself to a particular version of the relevant matters: at ALD 140; ALR 288. Further, W ilcox J did not see any prejudice to the applicant being taken by surprise: either her credit would be enhanced or any falsehood would be exposed. Although openness is an important feature of the AAT’s procedures, and in most cases there should be full and early disclosure of all material documents, W ilcox J noted (at ALD 142–3; ALR 291) that: … in an exceptional case in which a party can demonstrate that the temporary suppression of a document is necessary for the proper presentation of its case, the ideal of openness must give way to the Tribunal’s statutory obligation to give to all parties a reasonable opportunity to present their cases.

In Re Taxation Appeals NT 94/281–NT94/29 (1995) 21 AAR 275, although acknowledging that the AAT is bound by the 1989 decision in Hayes , Mathews J (AAT President) rejected the forensic devices of adversarial proceedings in normal AAT processes (at AAR 280): The intervening years [since Hayes] have seen increased openness in the litigation process, together with a move away from the traditionally adversarial ‘ambush’ method of conducting trials. This in my view is to be applauded. Little is to be gained in my experience by adopting a confrontationist approach to litigation. This approach very frequently leads to an approach which is welcome to no-one, at least to none of the parties. On the other hand, openness and cooperation can often serve to produce agreement where agreement had been thought to be impossible, and at the very least to isolate and focus upon the major issues in a case, thus containing what can sometimes be prohibitively expensive both in human and financial terms. This ‘cards on the table’ approach has recently led the English courts to conclude that, in all but very rare personal injury cases, video films should be disclosed to the plaintiffs (Khan v Armaguard Ltd [1994] 1 WLR 1204).

In Re Prica and Comcare (1996) 44 ALD 46, the AAT characterised the respondent’s action as ‘an aggressive assertion of a right to surprise a witness for the other party’. W hen decision makers employ such tactics they are acting contrary to the spirit of the s 37 obligation to provide the documents upon which the decision is based. The AAT noted that although s 37 does not impose a continuing obligation on respondents, the General Practice Direction may now form part of the statutory context and shape the content of the obligation in s 39. The combination of the [page 66] General Practice Direction, the s 33 requirements and s 37 may empower the AAT to exclude evidence if a party will be unfairly caught by surprise by the late production of evidence.

3.5.10 Procedural fairness and specialist members Members of tribunals are generally appointed for their special expertise, for example, in accounting, medicine, military service, taxation or social welfare. This specialist expertise enhances the quality of tribunal decisions and may improve the accessibility of tribunals. However, members’ contributions to the hearing and the ultimate decision must accord with the rules of procedural fairness which apply to that tribunal. This means that if members intend to reject evidence presented by any of the parties on the grounds that it is inconsistent with their expert understanding, they should warn the party of their intention to do so: see below 11.1.9 .

3.5.11 Not bound by the rules of evidence Merits review tribunals generally have powers to take evidence on oath or affirmation: AAT Act (Cth) s 40; ACAT Act (ACT) s 41(4)(b); CAT Act (NSW ) s 46(1)(b); QCAT Act (Qld) s 28(3)(b); SACAT Act (SA) s 40(3)(b); VCAT Act (Vic) s 102(3); SAT Act (WA) s 70. However, they are not bound by the rules of evidence and may inform themselves on any matter in such manner as they think fit: AAT Act (Cth) s 33(1)(c); ACAT Act (ACT) s 26; and CAT Act (NSW ) s 38(2); QCAT Act (Qld) s 57(1); SACAT Act (SA) s 39(1)(b); VCAT Act (Vic) s 98(1)(b)(c); SAT Act (WA) s 32(2) and (5). For instance, tribunals are not precluded from considering hearsay evidence, although the weight which may properly be attached to such evidence will generally be less than that given to first-hand evidence. In Re Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1, the AAT admitted into evidence a Royal Commission Report which made findings in relation to Barbaro and his relatives’ involvement in criminal activities. Barbaro had not been called to give evidence at the Royal Commission hearing, did not give evidence and was not represented. The Full Federal Court in Barbaro v Minister for Immigration and Ethnic Affairs (1982) 44 ALR 690 held that Barbaro had not been denied procedural fairness and that admission of an adverse hearsay report pursuant to s 33(1)(c) of the AAT Act (Cth), without an opportunity to crossexamine the author, was not in itself a breach of procedural fairness.

3.5.12 Observance of the rules of evidence Although tribunals are not bound by the rules of evidence, the rules are frequently observed. Their observance may depend on the nature of the issue and the implicit agreement of the legally trained parties appearing. However, as indicated by the following cases, the observance may be required by other principles such as legal professional privilege, procedural fairness and by the requirement that the evidence must have probative value. In Re Lindsey and Australian Postal Commission (1989) 18 ALD 340, the respondent sought to have a video of a compensation claimant suppressed until cross-examination. The AAT (Gray J presiding) decided that because the video was created for the purpose of litigation, legal professional privilege did not require its production. It could be used to test the applicant’s credibility and was a valuable tool for that purpose. [page 67]

In Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; 26 ALR 247, the minister had ordered Pochi’s deportation after he was convicted of supplying Indian hemp. The AAT (Brennan J presiding) recommended that the deportation order be revoked. Brennan J did not accept the evidence led by the minister suggesting that Pochi had played a major role in illegal drug activities. Brennan J noted that although the AAT was not bound by the formal rules of evidence and the technical rules of evidence do not form part of the rules of procedural fairness, the decision maker must base the decision on evidence which has rational probative force and tends logically to show the existence or nonexistence of facts relevant to the issue to be determined. The minister appealed to the Federal Court arguing that the AAT was not bound by the rules of evidence and was entitled to consider hearsay, suspicion and other evidence which was not rationally probative. In Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; 31 ALR 666, the Full Federal Court J dismissed the Minister’s appeal. Deane J stated (at ALR 685) that: … the Tribunal was bound, as a matter of law, to act on the basis that any conduct alleged against Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised as a matter of suspicion or speculation …

3.5.13 Confidentiality Generally, proceedings are held in public in the interests of maintaining public confidence in the fairness and integrity of the system. However, because applications before merits review tribunals may reveal personal information, these tribunals have a power to protect confidential evidence by directing that a hearing be held in private or suppressing parts of the oral or documentary evidence: AAT Act (Cth) s 35; ACAT Act (ACT) s 39; CAT Act (NSW ) s 49; SACAT Act (SA) s 60; QCAT Act (Qld) s 90; VCAT Act (Vic) s 101(1); SAT Act (WA) s 61. In exercising this discretion, the tribunals balance public considerations such as the public nature of justice and confidence in the system against private considerations such as witness credibility, safety and procedural fairness. As suggested by the following case, the AAT only departs from this commitment to openness if it is satisfied that there are proper and cogent reasons for doing so. In Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, an order was sought to exclude the applicant from the proceedings when evidence was given by a police officer that other immigrants from Pochi’s village in Italy were involved in large-scale marijuana cultivation in Australia. Brennan J held that Pochi should be excluded and provided a test (at ALD 56) for determining the appropriateness of excluding a party: As it must appear that the exclusion of the party is essential to preserve the proper confidentiality of the information needed to determine the application, it is necessary to show that the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence, and denying the party access to it, than by refusing an order to exclude the party. This criterion is not easy to satisfy because an applicant’s interest in a hearing fair to him can be over-ridden

[page 68] only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears.

3.5.14 Power to award costs In merits review tribunals parties are generally expected to bear their own costs, regardless of the outcome of the case. There are some exceptions, in particular AAT jurisdictions where the AAT can order one party to pay the costs of the other party, for example, the Safety Rehabilitation and Compensation Act 1988 (Cth) s 67. Generally, however, the AAT cannot, in the absence of an order for costs under the relevant enactment, provide a remedy in the form of a taxation of costs: Re Knight and Comcare (1994) 36 ALD 417. The CAT legislation is generally to similar effect, which is consistent with making access to remedies more accessible: costs can be awarded to successful parties, but only in very limited circumstances (including causing unreasonable delay): ACAT Act (ACT) s 48; CAT Act (NSW ) s 60; QCAT Act (Qld) s 100; SACAT Act (SA) s 57; VCAT Act (Vic) s 109; SAT Act (WA) s 87. The VCAT and SAT legislation also provide for offers of compromise, backed by costs penalties for those who fail to accept generous offers, and corresponding rewards for those who make them: VCAT Act (Vic) ss 109, 113–115; SAT Act (W A) ss 87–88; SAT Rules (W A) rr 40–41.

3.5.15 Procedural flexibility The crucial issue in merits review matters is how the tribunal can reach the ‘correct or preferable’ decision. It must adhere to the requirements of the Act which include informality, inquisitorial functions, and procedural fairness. As we have seen, these requirements may be in conflict. Further, resource constraints often preclude the tribunal from actively seeking out evidence. Tribunals attempt to balance these conflicting obligations by means of the range of procedures discussed above. For instance, assisted dispute resolution programs are a means by which tribunals seek to address these problems: issues are raised during this process and the tribunal may actively suggest further evidence before the matter goes to a hearing. If a matter goes to a hearing, tribunal procedures are sufficiently flexible to be adapted to different situations.

6 Appeals from decisions 3.6.1 Further review on the merits There is no further right of review on the merits of decisions of the AAT, nor of CAT decisions which have themselves involved the review of a primary decision. There is a further right of review to the AAT of decisions of the Veterans’ Review Board and the Social Security Appeals Tribunal, and a right to appeal to an appeal panel against primary decisions by a CAT.

3.6.2 Appeal on a question of law After a matter has been reviewed on the merits by a ‘final’ merits review body such as the AAT, the migration tribunals, or the Administrative Decisions Tribunal or the Victorian Civil and Administrative Tribunal, an appeal lies from the decision to a court. Appeals from federal tribunals lie to the

Federal Court (which may transfer certain appeals to the Federal Circuit Court). In Queensland, an appeal against the outcome of an appeal to the Queensland Civil and [page 69] Administrative Tribunal may be heard either by an appeal panel or by the Court of Appeal, provided the chosen appeal body gives leave: QCAT Act (Qld) ss 142 and 149 (subject to leave requirements in some cases). Appeals to the Court of Appeal may involve mixed questions of fact and law but are by way of re-hearing. Appeals from review decisions by other state tribunals lie to the Supreme Court of the relevant jurisdiction, for example, ACAT Act (ACT) s 86; SACAT Act (SA) s 71 (by leave); VCAT Act (Vic) s 148; SAT Act (WA) s 105 (by leave). These appeals are limited to a question of law. The court does not consider the correctness of the administrator’s assessment of the facts, the comparative importance or weight attributed to the facts or whether a discretion should have been exercised differently. On appeal, the court does not stand in the shoes of the decision maker and its review jurisdiction is not the occasion of a fresh exercise of administrative power. Lockhart J in Hamblin v Duffy (1981) 3 ALD 153 at 157; 34 ALR 333 described the question for the court as: … whether the action is lawful in the sense that it is within the power conferred on the relevant Minister, official, or statutory body; or that the prescribed procedures have been followed; or that the general rules of law, including adherence to the principles of natural justice, have been observed.

The function of the court is to determine whether the tribunal has exercised its power lawfully both when it stands in the shoes of the primary decision maker, and in respect of its own statutory and common law obligations as a review tribunal. For instance, the failure to provide reasons as required by AAT Act (Cth) s 43(2B) involves a breach of a statutory obligation and therefore may ground an appeal: AAT Act (Cth) s 44. Questions of law arising from the common law obligations include: whether the tribunal failed to take into account relevant considerations or considered irrelevant considerations; and whether the facts as found by the tribunal fall within the statutory provision, properly construed.

3.6.3 What decisions may be appealed to the court? Courts do not possess a general appellate jurisdiction over the decisions of merits review tribunals. For instance, the jurisdiction conferred on the Federal Court by s 44(1) of the AAT Act (Cth) is to hear and determine in its original jurisdiction ‘an appeal on a question of law from any decision of the Tribunal’: see also Adminstrative Decisions Tribunal Act 1997 Act (NSW ) s 119(1). This precludes appeals on questions of fact: see G Hill, ‘The Impact of Federal Court Appeals: A View from the Court’ in J McMillan (ed), The AAT — Twenty Years Forward , Australian Institute of Administrative Law, Canberra, 1998, pp 110–13, 116–18, and for discussion of the problems this creates, see B McMahon, ‘The Impact of Federal Court Appeals: A View from the Tribunal’ in McMillan, pp 127–30. In a 1997 report the Administrative Review Council (ARC) generally recommended against broadening the Federal Court’s appellate powers: ARC, Appeals from the Administrative Appeals Tribunal to the Federal Court , Report No 41, ARC, Canberra, 1997. ‘Decision’ is given a restricted meaning and refers to a final decision or determination which finally and effectively disposes of the application for review and not actions taken during the course of the hearing: DirectorGeneral of Social Services v Chaney (1980) 3 ALD 161 at 180; 31 ALR 571 at 592 per Deane J. In [page 70] Chaney , a preliminary ruling as to whether the AAT had jurisdiction and an interim order made under s 41(2) did not effectively dispose of the proceedings or any independent part thereof, and therefore was not a ‘decision’ for the purposes of s 44(1). An interlocutory procedural direction, such as a stay, is not a ‘decision’ from which an appeal lies: Australian Postal Corporation v Nguyen (1996) 71 FCR 516; 142 ALR 170. Similarly, an appeal does not lie from a decision dismissing an application for being frivolous or vexatious: Australian Postal Corporation v Matusko (unreported, FC 960353, Olney J 14 May 1996). An application for judicial review may, however, be brought pursuant to the Judiciary Act 1903 (Cth) s 39B: see 4.2.12 . The tribunal’s conduct may also be reviewable under s 6 of the ADJR Act (Cth): Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11: see 4.2.6 . In contrast, appeals may be brought against ‘orders’ or ‘decisions’ of the CATs.

3.6.4 Implementation of decision or order pending outcome of appeal Appeals to a court do not affect the implementation of an AAT or CAT decision unless a relevant court (or the tribunal, in Queensland or Victoria) issues an order staying or otherwise affecting the decision: AAT Act (Cth) s 44A; ACAT Act (ACT) s 53; CAT Act (NSW ) s 83(5); QCAT Act (Qld) ss 145 and 149; SACAT Act (SA) s 71(5) (court’s power to make interim orders); VCAT Act (Vic) ss 149 and 118(2); SAT Act (W A) s 106.

3.6.5 Orders of the court A court is required to make such orders as it thinks appropriate including orders affirming or setting aside the decision and orders remitting the matter to the tribunal to be heard and decided again: AAT Act (Cth) ss 44(4) and (5); ACAT Act (ACT) s 69; CAT Act (NSW ) s 83(3); QCAT Act (Qld) s 69; VCAT Act (Vic) s 148(7); SAT Act (WA) s 105(9). However, if there is only one decision reasonably open to the AAT, the court may decide that remission will be futile and substitute a decision: Morales v Minister for Immigration and Ethnic Affairs (unreported, FC, Sackville J, 24 November 1995).

3.6.6 Referral of questions of law Tribunals generally have the power to refer questions of law to the court for decision: AAT Act (Cth) s 45(1); ACAT Act (ACT) s 84; CAT Act (NSW ) s 54; QCAT Act (Qld) s 118; SACAT Act (SA) s 72; VCAT Act (Vic) s 96; SAT Act (WA) s 59(1)(b). On referral, either the parties must tender an agreed statement of facts together with any relevant documents or the tribunal must find the primary facts and tender its findings together with any documents to the court. W here a matter is referred to the Federal Court, the

parties face the risk of incurring costs: Harrigan v Department of Health (1986) 72 ALR 293.

Problem In Chapter 2 we establish that Ms Casey has standing to appeal the assessor’s decision to the AAT. You have explained the jurisdiction, and decision-making powers of the AAT to your client. You are now to explain to Ms Casey the procedure for seeking review by the AAT. [page 71]

Resolution Introduction To prepare Ms Casey for the review process, you should explain the AAT’s powers and its procedures. In this answer, we will focus on the procedural aspects.

Access issues When Ms Casey receives the decision from the assessor, the covering letter will advise her that she may appeal the decision to the AAT. The Victims Compensation Board has the responsibility for telling Ms Casey that she can appeal the decision: AAT Act s 27A. Although Ms Casey may represent herself in the proceedings, the complexity of the issues and the sensitivity of the case would suggest that she should obtain legal advice. Section 32 of the AAT Act (Cth) entitles Ms Casey to be legally represented in proceedings before the AAT. Legal Aid may provide this representation or she could contact a community legal centre which specialises in victims compensation matters. Ms Casey can also ask AAT officers to explain the proceedings, provide an information pamphlet in her own language and have access to the video portraying the AAT’s procedures. Access to this information will help prepare Ms Casey for her experience of the AAT.

Application Ms Casey will have to lodge a written application with the AAT in which she states the reasons for the application: AAT Act (Cth) s 29. She may use the form prescribed by reg 5 or write a letter stating her wish to have the assessor’s decision reviewed. The reasons for the application could include that the assessor’s decision is wrong; that it is based on a policy which conflicts with the purposes of the legislation; that the policy has been incorrectly interpreted to apply to survivors of child sexual abuse; and that the assessor has applied the policy without considering the merits of the case. Ms Casey will have to pay the application fee (which is regularly adjusted to keep pace with inflation) unless the regulations prescribe that fees are not payable in respect of victims compensation decisions: AAT Regulations reg 19(6) Sch 3. Even if the fee is payable, Ms Casey may seek to have it waived by the Registrar of the AAT on the ground that it will cause financial hardship: AAT Regulations reg 19(6)(c). Ms Casey must lodge the application within 28 days of receiving notification of the assessor’s decision. If she fails to lodge the application within time, she will have to seek an extension of time from the AAT: AAT Act (Cth) s 29(7).

Documentation Once Ms Casey lodges her application for review, the Victims Compensation Board will be required to lodge the s 37 statement with the AAT. This statement will provide the reasons for decision and include all the documents which were relied upon in reaching the decision. During the assisted dispute resolution program, Ms Casey and the Victims Compensation Board will both be encouraged to produce any other documents upon which they choose to rely. Parties are generally encouraged to disclose material rather than suppress documents in the ‘ambush’ manner of adversarial proceedings: [page 72] Re Taxation Appeals NT 94/281–NT94/29 (1995) 21 AAR 275. The kind of documents Ms Casey may wish to produce are medical reports, psychologists’ reports, school teachers’ reports, police statements concerning the alleged offence, evidence of charges laid against the uncle and any other statements concerning the assaults.

Procedure from application to hearing Ms Casey will not have her matter heard by a tribunal for some time. Before the hearing, the AAT’s assisted dispute resolution program encourages the applicant and respondent to narrow the issues and resolve the dispute. This process is governed by a General Practice Direction. If Ms Casey is not represented she will not be required to follow this Direction. Ms Casey will be required to attend a preliminary conference held pursuant to s 34. If she is represented, at this first conference, both she and the Victims Compensation Board will be required to lodge a ‘Statement of Issues’ setting out the issues in dispute. They will also be advised of the option of mediation which would be conducted by a tribunal officer who is an accredited mediator. If either party refuses the mediation option, a second conference will be held where both parties will lodge a ‘Statement of Facts and Contentions’. If agreement is reached during this process, the AAT may reduce the agreement to writing and make a decision under s 42C of the AAT Act (Cth).

The hearing If agreement is not reached during a conference or at mediation, the matter will proceed to hearing. On the hearing of the

matter, the AAT will be constituted by a single or a multi-member tribunal. Ideally, the tribunal should consist of three members who bring diverse experience to the decision-making process and have legal and social work skills, but the trend has been towards single-member tribunals. An advantage of having the matter reviewed by the AAT is that a member may have professional expertise particularly relevant to victims compensation matters. In addition, AAT proceedings are more informal than court proceedings. AAT members are required by s 33 of the Act to ensure that the atmosphere of the hearing is as informal as the case and the requirements of the legislation allow. The informality and inquisitorial nature of the proceedings may enable the matter to be conducted with lesser emotional cost to Ms Casey and Charlotte. Ms Casey would like to protect her daughter from legal proceedings as much as possible. The AAT may not require Charlotte to give evidence in person or if it does so require, it may arrange for that evidence to be given in an informal and non-threatening environment. Because s 33(1)(c) provides that the AAT is not bound by the rules of evidence and may inform itself as it sees fit, Charlotte may not be required to give evidence at all. Ms Casey may also wish to have her name and her daughter’s name suppressed and seek an order from the AAT for the proceedings to be held in private: AAT Act (Cth) s 35. The AAT has to balance the informal and inquisitorial functions with the duty to ensure that both parties are accorded procedural fairness: AAT Act (Cth) s 39. It must ensure that it maintains judicial detachment and fairness and that neither party is favoured. The AAT does not act in a supervisory role but must reach the ‘correct or preferable’ decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD [page 73] 60; 24 ALR 577. Further, the Victims Compensation Board representative is not to defend the agency decision but rather to help the AAT reach the correct or preferable decision: McDonald v Director-General of Social Security (1984) 6 ALD 6; 1 FCR 354. It follows that in these proceedings, the Victims Compensation Board representative should not act as Ms Casey’s adversary.

Conclusion If the AAT affirms the decision under review by applying the policy, Ms Casey may appeal the decision to the Federal Court on a question of law pursuant to s 44 AAT Act (Cth). The grounds of appeal may include that the tribunal erred in applying an unlawful policy, failed to consider the merits of the application, took into account irrelevant considerations and failed to consider relevant considerations. Can you think of any other grounds of appeal?

Further tutorial discussion 1. W De Maria has stated: The colonisation of the AAT by the legal culture was detected in: the formality of its procedures (mystified behind informal language); the dependency it has on government (again mystified by cheap talk about judicial independence); the ready embracement of mediation — the new model for State authoritarianism (mystified behind the presentation of mediation as a user friendly low energy dispute resolver); the indifference of the AAT to the social potential of grouped proceedings (when it inevitably comes to the AAT, like mediation, grouped proceedings will be neutralised by the legal culture); and finally, by the uncritical, deferential attitude the AAT has to government: ‘The Administrative Appeals Tribunal in Review: On Remaining Seated During the Standing Ovation’ in J McMillan (ed), Administrative Law: Does the Public Benefit? , Australian Institute of Administrative Law (AIAL) Forum, AIAL, Canberra, 1992, pp 120–1.

Do you agree with De Maria’s comments? Substantiate your answer by reference to the legislation, case law and practice of the AAT. 2. A Kendall has suggested that lay advocates ‘present a healthy antidote [to the influence of lawyers who import a legal education imbued with the values of an adversarial system] by providing a perspective that is essentially concerned with identification of a “correct and preferable decision” rather than exclusively defining the law’: A Kendall, ‘Non-Lawyers and Administrative Law II’ in K Cole (ed), Administrative Law and Public Administration: Form vs Substance , Australian Institute of Administrative Law (AIAL) Forum, AIAL, Canberra, 1995, p 313. Would it be preferable for lawyers to be excluded from merits review tribunal proceedings? Do the provisions of the New South W ales and Victorian CATs overcome these problems? Discuss whether the membership of tribunals impacts on their accessibility. [page 74]

Further reading Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System , Report No 89, AGPS, Canberra, 2000, ch 9 (‘Practice, Procedure and Case Management in Federal Merits Review Tribunals’). Cole, K (ed), Administrative Law and Public Administration: Form vs Substance , Australian Institute of Administrative Law (AIAL) Forum, AIAL, Canberra, 1995; see particularly J Handley, ‘The Hidden Face of Administrative Law — Internal Review and Alternative Dispute Resolution’, p 170; A Kendall, ‘Non-Lawyers and

Administrative Law II’, p 313. Creyke, R, The Procedure of the Federal Specialist Tribunals , AGPS, Canberra, 1994. Creyke, R, McMillan, J and Smyth, M, Control of Government Action: Text, Cases and Commentary , LexisNexis Butterworths, Sydney, 2013, pp 176–95. Disney, J, ‘Reforming the Administrative Review System: For Better or for Worse? For Richer or for Poorer?’ in J McMillan (ed), The AAT — Twenty Years Forward , Australian Institute of Administrative Law, Canberra, 1998, pp 325–58. Douglas, R and Head, M, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014, ch 7. McMillan, J (ed), Administrative Law: Does the Public Benefit? , Australian Institute of Administrative Law (AIAL) Forum, AIAL, Canberra, 1992. (See particularly articles by The Hon Justice D F O’Connor, p 194; J Budgen, p 122; W De Maria, p 96; L Rodopoulos, p 138; F Esparraga, p 386; S Kneebone, p 400.) Preston, B, ‘The Use of Alternative Dispute Resolution in Administrative Disputes’ (2011) 22 Australian Dispute Resolution Journal 144. Thawley, T, ‘Adversarial and Inquisitorial Procedure in the Administrative Appeals Tribunal’ (1997) 4(2) Australian Journal of Administrative Law 61.

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PART 3 Challenging Administrative Decisions — Judicial Review

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4 The Judicial Reviewability of Administrative Action General I n Chapters 2 and 3 , we examined the procedures whereby the merits of administrative decisions could be reviewed. In Chapters 4 – 10 , we examine review on the grounds of legal error. In this chapter we consider the circumstances in which courts can examine the legality of administrative decisions. In general a person who is aggrieved by administrative unlawfulness may apply to a court for orders in relation to the activity in question. However, such applications can only be made to certain courts. Applications in relation to federal administrative irregularities must normally be made to a federal court; applications in relation to state irregularities must normally be made to a state superior court. In both federal and state cases, the procedures for applying for judicial review may vary according to the type of review procedure and even according to the type of order being sought.

Objectives After studying this chapter, you will understand: 1. the jurisdiction of courts to hear and make orders in relation to administrative unlawfulness, and especially: the jurisdiction of State Supreme Courts and the lack of jurisdiction of state inferior courts; the jurisdiction of the Federal Circuit, Federal and High Courts; 2. the jurisdiction of courts to summarily dismiss cases; 3. the limited circumstances in which legislatures can deprive courts of the power to hear challenges to the lawfulness of administrative activities; and 4. constitutional limits to the degree to which courts can hear challenges to the lawfulness of administrative activities.

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1 Reviewing the lawfulness of administrative activities 4.1.1 Introduction As you will recall from 1.2.7 – 1.2.8 , there is a distinction between merits review and judicial review. W hereas merits review is concerned with whether a decision was the correct or preferable decision, judicial review is concerned only with the legality of administrative behaviour. A tribunal engaged in merits review may affirm a decision, notwithstanding that it considers that the primary decision maker committed a number of legal errors in stumbling towards the decision: for an example, see Re Lear and Department of Transport and Communications (1988) 9 AAR 579. A court may quash a decision which is legally flawed, even if it strongly suspects that the decision was in fact the substantively correct one, and it must affirm a legally impeccable decision even if it thinks that the decision was substantively poor.

4.1.2 Applications for judicial review Courts may act only when someone initiates legal proceedings by seeking the making of an order or orders. (We shall describe those who seek the relief as applicants and the originating process as an application, although readers should note that terminology varies across jurisdictions.) The application must provide the grounds on which the orders are sought and give some details of the orders sought. The nature of the application varies depending on whether the applicant is seeking a ‘prerogative’ or ‘constitutional’ writ (or similar order); a declaration and/or an injunction; or relief pursuant to a Judicial Review Act. These forms of relief are discussed in more detail below: see Chapter 12 . Most administrative law cases have their origins in such applications. Occasionally, however, administrative law issues may arise in criminal trials or in the course of ‘private law’ cases such as actions in tort or contract.

2 Jurisdiction

4.2.1 The need for jurisdiction An application is a necessary condition for the exercise of jurisdiction, but not a sufficient condition. A court can hear a matter only if it has jurisdiction to do so. The mere fact that a body is a court does not mean that it has jurisdiction to hear administrative law matters. Courts may derive their administrative law jurisdiction from three sources: constitutions, statutes, and common law in relation to administrators.

4.2.2 State Supreme Courts Prior to federation, the Supreme Courts derived their jurisdiction from imperial and domestic legislation investing them with the jurisdiction which the Court of Queen’s Bench had in England, and from colonial legislation which modified their original jurisdiction: Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1 at [97], fn 131. The Queen’s Bench in turn exercised a supervisory jurisdiction by virtue of its ‘inherent’ jurisdiction. This jurisdiction was exercised in relation to the activities of ‘inferior’ courts and in relation both to ‘inferior’ courts, and ‘tribunals’, and now potentially extends [page 79] to most administrative decisions. Federation meant that the jurisdiction of what became the State Supreme Courts became subject to Commonwealth law insofar as it potentially related to Commonwealth decisions. The Judiciary Act 1903 (Cth) s 38 effectively stripped the state courts of jurisdiction in relation to administrative law claims against the Commonwealth, by making the High Court’s orginal jurisdiction under Constitution s 75(iii) and (v) exclusive of the state courts. The Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) s 9 also excluded the states from the exercise of the relevant review powers. The jurisdictional effects of these Acts have been changed by the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) which empowers state and territory Supreme Courts to exercise the powers of the Federal Court in certain circumstances: s 4(1). However, the Supreme Courts may exercise the Federal Court’s administrative law jurisdiction only in very limited circumstances. Matters arising under the ADJR Act, on appeal from a Commonwealth tribunal, or forming part of the Federal Court’s original jurisdiction under s 39B of the Judiciary Act, are ‘special federal matters’: s 3(1). Under s 6 of the state and territory cross-vesting Acts, such special matters must be transferred to the Federal Court unless the Supreme Court orders otherwise, on the basis that special circumstances exist. The convenience of the parties is not a special circumstance. In making such a decision, the court is to take account of any submission that a state, territory or Commonwealth Attorney-General may make. In matters where the cause of action lies in tort or contract and where the administrative law issue is a purely collateral one, it might be appropriate that a Supreme Court should continue to handle the matter. In cases where the administrative law issue was central, a Supreme Court would be obliged to transfer the matter to the Federal Court. But if it failed to do so, and none of the parties objected, its decision would not be flawed on jurisdictional grounds. For most of their history, state legislatures have assumed that they had the power to further limit the review jurisdiction of state courts. In this respect, state parliaments were constrained by state constitutions, but these constraints were feeble, given the ease with which state constitutions can be amended. W hat protected the courts from these attacks on their jurisdiction was the common law courts’ creativity in relation to the interpretation of clauses purporting to protect the exercise of particular state powers from judicial supervision. A common judicial strategy was to interpret references to ‘decisions’ as references to valid decisions, which meant that while valid decisions could not be challenged, invalid ones could be. The distinction survives, but the High Court’s recent decision in Kirk has transformed the de facto protection of the courts’ jurisdiction into a constitutionally based protection. State legislatures can, if so inclined, confer a review jurisdiction on lower state courts or specialist courts, provided that their decisions are reviewable by a Supreme Court. W hile they have sometimes created specialist courts, the current tendency has been to rely on merits tribunals rather than review by lower courts as an avenue for those aggrieved by low and moderate stakes administrative decisions.

4.2.3 High Court The High Court’s constitutional jurisdiction derives from the Constitution which confers jurisdiction on the High Court in all matters in which [page 80] the Commonwealth or a person suing on behalf of the Commonwealth is a party (Constitution s 75(iii)) and in which an injunction or a writ of mandamus or prohibition is being sought against an officer of the Commonwealth (s 75(v)). The two sections overlap. The importance of s 75(v) is that it protects rights to particular remedies. Section 75(v) makes no reference to writs of certiorari or habeas corpus; nor does it make reference to declarations. W hile this might suggest that these orders are not constitutionally entrenched, such an argument would carry little weight with the current High Court: the judicial power is interpreted as including the power to make such orders as are necessary for the court to be able to exercise its jurisdiction effectively. Legislation which purported to strip the High Court of its power to make declaratory orders or to grant certiorari for jurisdictional error would therefore fail.

4.2.4 Federal Court: introduction Initially, the Federal Court’s original administrative law jurisdiction derived from and was confined to applications under the ADJR Act 1977 (Cth). Since then, the court’s jurisdiction has expanded. It now enjoys a similar jurisdiction to that conferred on the High Court by s 75(v) (Judiciary Act 1903 s 39B(1)), and where the High Court enjoys jurisdiction under s 75(v), it may refer the matter to the Federal Court: Judiciary Act 1903 (Cth) s 44(2A). Under a recent amendment to the Judiciary Act, the Federal Court also enjoys original jurisdiction in matters arising under Commonwealth legislation generally: Judiciary Act 1903 s

39B(1A). The Federal Court also enjoys an appellate jurisdiction in relation to decisions by a number of federal administrative tribunals: see 3.6.3 .

4.2.5 Federal Court jurisdiction under the ADJR Act The jurisdiction conferred by the ADJR Act is a broad one. It confers a power of review in relation to: decisions; conduct in relation to the making of decisions; and the failure to make a decision. However, the decision must be ‘of an administrative character’ and made ‘under an enactment’: s 3. Decisions of the Governor-General are not reviewable. The most complicated of these requirements is that the behaviour in question constitute — or be related to — a ‘decision’, or amount to ‘conduct’.

4.2.6 Decisions I n Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the High Court drew a distinction between two types of decision. All members of the court held that some ‘decisions’ were reviewable and some were not. The reviewable decisions were variously described as ‘final or operative decisions’ and decisions for the making of which there was specific statutory provision. They were distinguished from ‘decisions’ which were simply steps taken in the process of reaching a reviewable decision and which were not of a substantive character. The legality of these could be examined only insofar as it bore on the validity of a reviewable decision. Moreover, while the court could comment on the legality of interim findings, it could not set them aside or make formal declarations in relation to their validity. Thus, in Bond , a decision that the Bond companies were not fit and proper ‘people’ to hold broadcasting licences was a reviewable one. Under the Act, there was provision for the tribunal to make a decision in relation to whether a licensee was a ‘fit and proper person’. Decisions on Bond’s character [page 81] were not reviewable as such. W hile they might bear on the companies’ fitness and propriety as licensees, they were not final or operative decisions and they were not decisions for which the Act made express provision. Their legality could be the subject of authoritative adjudication only if and insofar as it bore on the validity of the reviewable questions. In many situations, it will not matter whether or not a decision is a final or operative decision. Even if it is not directly reviewable, it may be indirectly reviewable. Even if a court may not set aside, or make a formal declaration in relation to a ‘decision’ which is not final or operative, a statement in a judgment that such a ‘decision’ was legally flawed would be functionally equivalent to a formal court order. There are, however, some situations in which the distinction does matter. A statement of reasons under the ADJR Act s 13 is available only in relation to decisions as interpreted in Bond . Applications for review of ‘decisions’ can be made only when a final or operative decision has been made (or where there has been some form of procedural error). If, for some reason, a final decision is never made, a person aggrieved by an interim decision may never be in a position to seek review of that ‘decision’ under the ADJR Act.

4.2.7 Conduct In Bond , the respondents argued that even if the impugned findings did not amount to findings, they could be reviewed as ‘conduct’. The court rejected this argument: In its setting in s 6 [of the ADJR Act], the word ‘conduct’ points to action taken, rather than a decision made, for the purposes of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than to decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character: per Mason CJ at 341–2.

4.2.8 Administrative character The requirement that the decision be of an administrative character excludes ‘legislative’ decisions. The distinction between administrative and legislative decisions is not always easy to draw. In Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, Gummow J noted that legislation was sometimes distinguished from administration on the grounds that legislation involved making general rules, while administration involved making decisions in particular cases. He rejected this criterion, noting that Acts of parliament do not cease to be an exercise of legislative power simply because they apply only to a particular case. In Blewett , he considered that the decision in question was legislative, on the basis that it involved ‘changing the content of a law as a rule of conduct or declaration of power, right or duty’ (at 635). However, a decision by the minister not to change the law would have been an administrative decision. This analysis contrasts somewhat with Minister for Industry and Commerce v Tooheys Ltd (1982) 4 ALD 661 where the court favoured a definition based on whether the decision was to have general application. In this case, however, the decision had been not to exercise the power. In SAT FM v Australian Broadcasting Authority (1997) 46 ALD 305, Sundberg J regarded the generality of a broadcasting plan, the procedures for making it, and other factors as all relevant to whether it was [page 82] legislative. The failure to exercise the power (which was classed as administrative) would have been similarly classified by Gummow J.

4.2.9 Under an enactment The requirement that the decision be one made under an enactment excludes from review decisions made under constitutionally conferred powers, and decisions which involve the exercise of common law powers. Thus, in Australian National University v Burns (1982) 64 FLR 166, the Act was held not to apply to decisions which had been taken pursuant to a contract between the former Professor Burns, and the university. The High Court (by majority) subsequently approved this test insofar as it represented a necessary

condition for a decision being under an enactment, but concluded that it was not a sufficient condition. There was a further requirement that the decision at issue must ‘confer, alter or otherwise affect legal rights and obligations’. This condition did not require that existing rights be affected; it would suffice that the enactment required or authorised the creation of rights. Nor need the affected rights be rights created by the enactment: Griffith University v Tang (2005) 221 CLR 221; [2005] HCA 7 at [78]–[89] per Gummow, Callinan and Heydon JJ, with whom Gleeson CJ agreed. In an earlier case, NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35, the court had considered the effect of a statute whose practical effect was to give a corporation which engaged in wheat marketing a veto over whether any other corporation should be allowed to export wheat. The legislation imposed no obligations on the corporation in relation to how it might exercise its veto power. The High Court majority held that the corporation’s decision to refuse to permit other corporations to export was not made under the enactment but by the decision-making powers it possessed by virtue of its corporate status.

4.2.10 Decisions of the Governor-General and other excluded decisions The exclusion of decisions by the Governor-General from the ambit of review under the ADJR Act (s 3(1)) reflects the state of administrative law at the time the Act was passed. Such decisions were once regarded as lying outside the jurisdiction of the courts. This view is no longer accepted, but the legislation has yet to be amended to recognise this, notwithstanding a recommendation to this effect from the Administrative Review Council (ARC, 1989). The Queensland and Tasmanian Judicial Review Acts (which are modelled on the ADJR Act) extend to decisions of the GovernorGeneral, and in a 2012 report the Administrative Review Council recommended that, subject to some specified exemptions, decisions of the Governor-General should be reviewable: Administrative Review Council, Federal Judicial Review in Australia (2012) (ARC 2012), pp 12, 108–11. The ADJR Act also excludes decisions under specified pieces of legislation from review. Specified migration decisions are excluded from the Federal Court’s jurisdictiion, and lie within the jurisdiction of the High Court (under the Constitution), and the Federal Circuit Court (under legislation).

4.2.11 Impact of ADJR Act requirements On the whole, these requirements do not give rise to difficulties. However, the law is complex and sometimes far from clear. The Federal Court Rules mean that applicants who are in doubt as to whether a matter falls within the ADJR Act may combine an ADJR Act application [page 83] with a s 39B application: Federal Court Rules O 54A r 3. This is inelegant, adds a little to costs, but means that cases will rarely fail simply because an applicant has proceeded under the wrong Act. The availability of the alternative procedure does, however, suggest that there is no obvious rationale for the maintenance of the restrictive ADJR Act requirements. They serve one potentially useful function, namely, restricting the range of decisions in relation to which decision makers can be required to give reasons: ADJR Act s 13. This, however, could be achieved by making reasons rather than reviewability dependent on the nature of the ‘decision’. Otherwise, nothing is achieved by the restricted definition. An inquiry by the Administrative Review Council (ARC) recommended that the ADJR Act be amended so that the decisions otherwise unreviewable under the Act would be reviewable if they fell within s 39B: ARC 2012, pp 11–12.

4.2.12 Federal Court jurisdiction under s 39B The Federal Court’s jurisdiction under the Judiciary Act 1903 (Cth) s 39B is extensive. Its jurisdiction under s 39B(1A) gives it jurisdiction in virtually all federal matters, other than in relation to ‘privative clause decisions’ under the Migration Act 1958 (Cth).

4.2.13 Federal Court’s appellate jurisdiction The Federal Court also has a statutory jurisdiction to hear ‘appeals’ from a number of administrative and other tribunals. W here such a jurisdiction has been conferred, parties aggrieved by decisions of the tribunal are expected to use the appeal process rather than rely on the normal judicial review procedures: Szajntop v Gerber (1992) 28 ALD 187; Tuite v Allen (1993) 29 ALD 647. The conduct of a tribunal may be reviewed under the ADJR Act s 6: Pancontinental Mining v Barns (1994) 124 ALR 471; 34 ALD 239, but this jurisdiction will be sparingly exercised, although not as sparingly as in relation to attempts to use judicial review to interfere with criminal proceedings: ALR at 483.

4.2.14 Federal Circuit Court The Federal Magistrates Court was created by the Federal Magistrates Court Act 1999 (Cth), and has jurisdiction to hear administrative law cases under the ADJR Act 1977 (Cth). It was renamed the Federal Circuit Court in 2012. Unlike the Federal Court, the Federal Circuit Court does not have jurisdiction under the Judiciary Act 1903. This means that applicants who are not sure whether matters fall within the ambit of the ADJR Act should initiate proceedings in the Federal Court where they can take advantage of O 54A r 3. If the Federal Court considers that the matter falls within the ADJR Act 1977, and if the matter is otherwise one more appropriately dealt with by the Federal Circuit Court, the Federal Court can then transfer the ADJR proceedings to the Federal Circuit Court. The Federal Court may also transfer an appeal made to it from the AAT to the Federal Circuit Court.

4.2.15 State inferior courts State courts of limited jurisdiction do not enjoy a general statutory jurisdiction to hear administrative law matters. This does not necessarily mean that they may not inquire into the lawfulness of administrative behaviour should this be relevant to the outcome of a civil or criminal case which lies within their jurisdiction. However, if the ‘collateral’ administrative law issue is a difficult one, the case may be transferred, or the administrative law issue may be referred, to the Supreme Court. [page 84]

3 Justiciability 4.3.1 A term with multiple meanings Jurisdiction may also be dependent on whether the dispute lends itself to adjudication by a court. A cynic might suggest that, given the controversy surrounding the High Court’s recent activism, there are no disputes which the court would not regard as appropriate for resolution by a court. Given the paucity of relevant case law, there may be some justification for this view. Yet the idea persists that there are disputes which do not lie within the jurisdiction of a court, notwithstanding that they raise the question of whether an administrator has acted within powers. These disputes are said to be ‘nonjusticiable’. Complicating discussions of justiciability is the fact that the term tends to be used in a number of different senses.

4.3.2 Meaning No 1: not reviewable under the ADJR Act (or the Judiciary Act) Disputes over whether a matter can be heard under the ADJR Act are sometimes described as involving justiciability issues. Matters which do not fall within the Act are sometimes said to be non-justiciable. However, it should be noted that matters which are non-justiciable (or non-reviewable) under the Act may nonetheless be justiciable under the Judiciary Act 1903 (Cth) or by state courts.

4.3.3 Meaning No 2: disputes about the exercise of prerogative powers There have been claims that there are some areas of government decision making which are non-justiciable. English cases have suggested that there are some nonjusticiable decisions in this sense, notably those made pursuant to the exercise of prerogative powers: notably in Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 ( CCSU ). These include decisions in relation to declarations of war and in relation to the conduct of international relations. Decisions in relation to royal honours are said to be non-justiciable. Decisions by the Attorney-General in relation to criminal prosecutions and in relation to requests that the Attorney-General sanction administrative litigation have been treated as non-justiciable. Courts have a limited jurisdiction even in relation to such decisions. In particular, courts are not required to accept the executive’s classification of a decision. They may inquire into the preliminary question of whether a decision falls within one of the protected categories. Their right to inquire ends only at the point where the court decides that the decision is non-reviewable: CCSU .

4.3.4 Is Australia different? Gummow J has pointed out that English decisions must be regarded with care. In Australia, Commonwealth powers are derived from and subject to the Commonwealth Constitution. W hile some executive powers may be extremely broad, they cannot be treated as unbounded. If a person is able to show an arguable case for the proposition that the executive has exceeded its powers, and has standing to do so, the courts normally have jurisdiction to hear the matter, regardless of whether it falls within one of the traditionally privileged categories: Re Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347; 83 ALR 265; FCR at 369. If people with standing to challenge an executive decision are able to make an arguable case that the executive has exceeded its [page 85] powers, they will be able to seek judicial review of that decision. W here a power derives from statute, it is limited by statute. Thus even in traditionally privileged areas such as security, the exercise of power is limited by the enabling statute, and can be reviewed if an application establishes that there is an arguable case that the repository of a relevant power has exceeded that power. The fact that a matter is justiciable may mean no more than that an applicant is able to pursue what may well be a hopeless case. As the majority in Church of Scientology v Woodward (1982) 154 CLR 25; 43 ALR 587 pointed out, the reviewability of ASIO’s conduct meant only that ASIO’s behaviour was potentially reviewable. In order for applicants to succeed, they would have to overcome the problems posed by the breadth of a statutory power conferred on ASIO, and in cases where security issues are involved, applicants have the further problems of proving the breaches they allege. Indeed, in that case, the statutory majority (Gibbs CJ and Mason J, Murphy and Brennan JJ dissenting) struck out the application on the grounds that the matters alleged failed to disclose legal error. There have, however, been cases where the applicants have failed on the grounds of non-justiciability. Examples include South Australia v Commonwealth (1962) 108 CLR 130; [1962] ALR 547 and Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274; 75 ALR 218. In the first case, a state government’s attempt to enforce an agreement with the Commonwealth failed: the agreement was not a contract but an agreement entered into on the basis that its enforcement depended on political sanctions alone. In the second case, a corporation’s attempt to seek review of a Commonwealth decision to list land for entry on the World Heritage list was dismissed on the grounds that once a decision could be so conceptualised, its legality was not reviewable. In the latter case, justiciability was explicitly related to jurisdiction. The approach is difficult to reconcile with the Church of Scientology decision. However, as that case makes clear, little normally turns on whether a matter is justiciable. The discretion that surrounds the traditionally non-justiciable decisions is so great that even if those decisions could be judicially reviewed, it is almost impossible to conceive of grounds on which such an application could succeed. But if an apparently inconceivable state of affairs came to pass, it might well be the case that courts would intervene.

4.3.5 Meaning No 3: ‘matters’ Federal courts have jurisdiction only in relation to ‘matters’. One implication of this is that Federal Courts do not have and cannot be given the power to give advisory opinions on application by the government: Re Judiciary and Navigation Acts (1921) 29 CLR 257. It also follows that applications in relation to hypothetical issues are not ‘matters’ even if the applicant is a non-governmental entity. There is, however, a difference between a case which raises questions in relation to law which has not been made, and a case which raises questions in relation to the implications of an extant law in circumstances which might never eventuate. Questions of the former type are not ‘matters’. Questions of the latter type are regarded as ‘matters’. If, however, the matter is ‘too’ hypothetical, courts will exercise their jurisdiction to decline to exercise their

jurisdiction. [page 86] A second implication is disputes may not amount to matters if their resolution calls not for legal, but political judgments: see, for example, Thorpe v Commonwealth (No 3) (1997) 144 ALR 677; 57 ALJR 767, and Community and Public Sector Union v Woodward (1997) 48 ALD 230 at 240 where Branson J doubted whether the Federal Court possessed jurisdiction to make declarations in relation to whether government behaviour constituted a violation of international covenants which had not been incorporated into Australian law.

4.3.6 Meaning No 4: Issues courts will not consider There is a final class of nonjusticiable questions, and that consists of questions which courts will not adjudicate. The range of such questions is extremely narrow, but it includes cases where foreign states are seeking to enforce their public rights or interests in Australia, and cases where courts are being asked to consider the validity of acts of foreign states performed outside Australia. Pursuant to these principles, the High Court has held that courts could not adjudicate on a claim by the British government against a former spy who had published his memoirs in Australia (and elsewhere): Attorney-General (UK) v Heinemann Publishers (Australia) Pty Ltd (1988) 165 CLR 30; 78 ALR 449. More recently, the Full Federal Court held that it could not adjudicate claims predicated on the validity of concessions allegedly granted by the Portuguese government, and involving questions in relation to the validity of subsequent acts by the Indonesian and East Timor governments: Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 197 ALR 461; [2003] FCAFC 3 (where the relevant principles are extensively canvassed).

4.3.7 State Supreme Courts The jurisdiction of State Supreme Courts is not explicitly limited to the handling of ‘matters’. However, any attempt by a state parliament to confer a general jurisdiction to give advisory opinions would probably fall foul of Kable v Director of Public Prosecutions (1996) 189 CLR 51; 138 ALR 577. A ‘political’ dispute which would not constitute a ‘matter’ under federal law would normally fail to overcome the ‘prima facie case’ hurdle in jurisdictions in which applicants for review must establish such a case as a condition for being able to proceed. In any event, such proceedings could normally be summarily dismissed as lacking in substance.

4 Ouster clauses 4.4.1 Introduction Parliaments have a long history of conferring limited powers on tribunals and even administrators, while simultaneously seeking to restrict the circumstances in which the exercise of those powers can be reviewed. The relevant clauses are variously called ‘ouster’ clauses, ‘privative clauses’ or ‘exclusionary clauses’. One reading of these clauses is that they are intended to oust the courts’ review jurisdiction in relation to decisions and conduct under the relevant enactment. From a formal, legal perspective, such restrictions are incomprehensible. How can parliament both define the limits to an administrator’s powers, and simultaneously allow the administrator to exceed those powers with impunity? There is a cynical answer: parliament wants to conceal its true intentions [page 87] which are that the administrator enjoys far broader powers than those which it is willing to admit that it is intending to confer. There is, however, a far more reasonable answer, and that is that parliament may have decided that allowing judicial review of an administrator’s decision will do more harm than allowing administrators to exceed their powers with the knowledge that their decisions will not be reviewable in the courts. Parliament may consider that the gains occasioned by making administrators legally accountable are outweighed by the costs that can be occasioned by judicial review. It may consider that specialists charged with administering a particular statute should be free to adopt their own interpretations of the statute even if a court might decide to interpret the statute differently. It may prefer finality to perfection. (For judicial acknowledgment of such considerations see Kirby P in Svecova v Industrial Commission of New South Wales (1991) 33 AILR 409; 39 IR 328.)

4.4.2 Constitutional limits on ouster clauses In general, ouster clauses have always been met with fierce resistance by the courts. At Commonwealth level, there is considerable constitutional justification for this: the High Court’s jurisdiction is clearly protected by s 75 of the Constitution. Any attempt to strip the High Court of its constitutionally conferred jurisdiction would clearly be unconstitutional. The Federal Court’s jurisdiction enjoys no such protection. Since this jurisdiction is statutory, parliament is free to extend or limit it. At state level, the position was uncertain. The ease with which they can be amended means that state constitutions imposed limited constraints over state parliaments. Courts, however, have employed two strategies to deal with ouster clauses: traditionally, interpreting them so as sharply to limit their operation; and — recently — relying on the Commonwealth Constitution as a basis for striking them down.

4.4.3 Restrictive interpretations to defeat ouster clauses Even in the apparent absence of constitutional limits, the judiciary managed to emasculate most attempts to oust its jurisdiction. (For an excellent discussion, see M Aronson and M Groves, Judicial Review of Administrative Action , 5th ed, Thomson Reuters, Sydney, 2013, ch 17.) In some cases, its successes are attributable to sloppy drafting. Clauses which forbid appeals are usually meaningless: rights to appeal can arise only by statute, and applications for judicial review are not appeals. Provisions which make decisions final cannot preclude review. ‘Final’ has never been taken to mean incapable of being reviewed. In relation to bodies acting within jurisdiction, it means simply that the body has completed

its task: Calvin v Carr [1977] NSW LR 308 at 338 per Rath J. In order to overcome such problems, legislatures have sometimes resorted to tougher provisions, and in particular have specifically sought to oust or restrict the courts’ jurisdiction to review the legality of decisions. The attempts almost invariably failed. Ouster clauses were typically read down to catch ‘non-jurisdictional’ errors but not ‘jurisdictional’ ones. One rationale for this restriction was that where a decision maker made a jurisdictional error, its effect would normally be that the consequent decision would be a legal nullity: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Walker v Industrial Court [page 88] of New South Wales at 137 per Kirby P. It would therefore have no legal effect. It would not, as far as the law is concerned, be a decision (except in a limited sense to be discussed below). W hat was being challenged was therefore not a decision, but something masquerading as a decision. The ‘false’ decision would not enjoy the protection afforded to ‘decisions’. The effect of would-be ouster clauses was further restricted by the fact that the boundaries between jurisdictional error and errors within jurisdiction has always been a fine one. Effectively, then, a court could almost always circumvent a ‘no certiorari’ clause by defining the error as jurisdictional: see, for example, Lord Denning’s frank acknowledgment of this in Pearlman v Keepers and Governors of Harrow School [1971] QB 56 at 70. Moreover, while most errors by courts are treated as intra-jurisdictional, virtually all reviewable errors by administrators are now classed as jurisdictional: Craig v South Australia (1995) 184 CLR 163; 131 ALR 595. Thus, even the most generously drafted ouster clauses ousted the courts’ jurisdiction only in relation to a virtually empty class of administrative decisions.

4.4.4 The Hickman compromise One problem with this approach was that it left ouster clauses with virtually no work to perform, which raised the question of why legislatures should bother including them. In R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, Dixon J noted the contradiction between a statutory provision which conferred limited powers, and ouster clauses which apparently permitted decision makers to exceed those powers. He suggested (at 615, 616) that this contradiction could be resolved by interpreting ouster clauses in a particular way: Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body. In my opinion … every decision … which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid.

The apparent contradiction was resolved by interpreting the ouster clause as impliedly expanding the decision maker’s powers. Hickman thereby saved federal ouster clauses from invalidity by transforming them into clauses which conferred powers. It also enabled some effect to be given to state ouster clauses, thereby partly fulfilling the intentions of the legislators. Moreover, it made some allowance for the considerations which underlie ouster clauses. It rested on something of a fiction — namely that no legislature could ever consider that there were some matters which courts could simply not be relied on to handle effectively and economically, but it did legislatures the honour of attaching some weight to their concerns. How ever, Hickman has rarely operated to save decisions which would otherwise be invalid. In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2, the High Court made it clear that satisfaction of the three Hickman conditions [page 89] was a necessary condition for validity, and not a sufficient one, and that Hickman clauses will not operate to permit what might otherwise constitute breaches of international law, or interference with fundamental common law rights. At most the clause in question might mean that ‘some procedural or other requirements laid down by the [Migration] Act are to be construed as not essential to the validity of a decision’: S157 at [69] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

4.4.5 Expanding decision makers’ powers T h e Hickman compromise points to a related solution, namely legislation which expands decision makers’ powers. One superficially attractive solution would be to permit people to make the relevant decisions so long as they complied with the three original Hickman requirements. The majority in S157 adverted to this strategy and warned that it would involve an unconstitutional conferral of power in that the exercise of power would not be conditioned upon the existence of such facts as were necessary to ensure that exercises of power under the relevant legislation were exercises of powers which the Commonwealth legislature was empowered to authorise: at [102]. Alternatively, and more acceptably, legislation may deal with procedural irregularities by providing that these shall not affect the validity of the decision. (We shall see some examples of such legislation in 6.6.1 – 6.6.3 .) It may provide that the decision maker may disregard the rules of natural justice. (Examples exist: for example, Corrections Act 1986 (Vic) s 69(2).) It must be noted, however, that such provisions do not affect the courts’ jurisdiction, only the degree to which judicial review can avail those aggrieved by some form of administrative behaviour.

4.4.6 Limits imposed by the Commonwealth Constitution Government lawyers can finally abandon the quest for a court-proof clause which would protect decisions even if flawed by jurisdictional error. Kirk v Industrial

Relations Commission of New South Wales (2010) 239 CLR 139; [2010] HCA 1 could have been resolved on the grounds that the decision in question was not protected by the clause, but the High Court chose instead to base its decision on the constitutional invalidity of clauses which purport to protect such decisions. Its rationale was that the Constitution envisaged the continued existence of bodies fitting the description of ‘the Supreme court of a State’, since the constitutional right to appeal from such bodies to the High Court depended on their continued existence: To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. … And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics: at [99] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

The decision avoids the need to use strained interpretations to avoid giving effect to ouster clauses, and suggests that insofar as ouster clauses have survived judicial scrutiny, they may continue to do so: see in particular the joint judgment at [100]. But the notoriously vague boundaries between jurisdictional and nonjurisdictional error will continue to bedevil administrative law. [page 90]

4.4.7 Conclusions Ouster clauses and courts’ reactions thereto are therefore of little more than historic interest, reminders of an era in which courts were regarded with profound suspicion by trade unions and their political representatives, and evidence to suggest that the mistrust was not altogether misplaced. Constitutionalising protections for state courts’ jurisdiction has made little practical difference, but it is probably to be welcomed, and provides a more convincing rationale for the treatment of ouster clauses than the strained statutory interpretions that preceded Kirk .

5 Time limits 4.5.1 Time limits and jurisdiction Section 75(v) of the Constitution precludes the legislative prescription of rigid time limits within which an applicant for judicial review must make an application for review. However, state legislation may set limits on the time within which applications may be brought, and it is likely that federal legislation can set limits in relation to courts other than the High Court, and possibly even presumptive limits in relation to High Court applications. It is rare for legislatures to set rigid limits. The Commonwealth Parliament probably thought it was doing so when it amended the Migration Act 1958 (Cth) to provide that applications for review of certain decisions were to be made within 35 days of the decision, but the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 held that this did not apply to ‘decisions’ which involved jurisdictional error (that is, virtually all migration decisions except those in which an application for judicial review would fail). Even in Victoria where the Administrative Law Act 1978 (Vic) s 4 has generally been held to require that actions must be initiated within a prescribed time, those who fail to meet the time limit may apply under Supreme Court (General Civil Procedure) Rules (Vic) O 56, which itself sets a time limit, but allows dispensation in exceptional cases. The normal approach is to prescribe tight deadlines for bringing actions, but to allow extensions by leave of the court. This is the approach taken in the ADJR Act s 11. It is also typically the case under the state and territory Rules of Court (which, however, combine strict time limits for applications for prerogative writs with open-ended rules in relation to applications for declarations and injunctions). The Federal Court Rules do not even include express limits in relation to applications for prohibition and mandamus. There appear to be no time limits for applications for declarations and injunctions in public law cases — although a long delay in seeking an injunction may well mean that, in the exercise of their discretion, courts will refuse injunctive relief. Collateral attack is also largely governed by private law limitation periods. W here short time limits coexist with the power to extend time, there is authority to the effect that the short time limits imply that leave to apply out of time should be granted only if it is fair and equitable in the circumstances, and normally only when there is some explanation for the delay: Hunter Valley Developments Pty Ltd v Cohen (1984) 7 ALD 315; 58 ALR 305; Comcare v A’Hearn (1993) 119 ALR 85. The discretionary nature of the decision to permit an extension of time means that judges must weigh the interests of the applicant, the state, and any private respondents. Finality does not necessarily trump legality. [page 91]

Problem In 2010 a terrorist group launched a number of attacks on Australian military installations, killing six civilian employees and injuring many more. The Defence Employees’ Union was therefore dismayed to learn that the minister was planning to introduce regulations to reduce the amounts payable to victims of terrorist attacks. Concerned by this, the Union wants your advice as to whether it could challenge the validity of these regulations and how. Because the Union’s headquarters are in Hobart, it would like to initiate proceedings in the Supreme Court of Tasmania.

Resolution Issues

It is not clear from the question whether you are being asked to consider attacks on the proposed regulations, or attacks on the regulations in the event of their being made. In such a situation, you would normally ask your client. Since this is not possible here, you should advise in relation both to attacks on the proposed legislation, and on the regulation, in the event of its being made. You should also advise your client as to how the regulation might be attacked. You should note that there are several different avenues for reviewing Commonwealth administrative decisions. It is important to choose the right one. You also need to explain the problems posed by initiating proceedings in the Tasmanian Supreme Court. Disputes about the proposal: a non-matter A mere proposal to amend the regulations does not in any way affect anyone’s legal position. Until the regulations are actually made, they do not in any way affect anyone’s legal rights or interests. The question of whether the proposed regulation would be valid is therefore not a ‘matter’ and therefore not within the jurisdiction of a Federal Court: see Re Judiciary and Navigation Act (1921) 29 CLR 257 at 265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ who said: In our opinion there can be no matter within the meaning of the section [Constitution, s 75] unless there is some immediate right, duty or liability to be established by the determination of the Court.

Even if the minister were happy to allow the court to make an authoritative pronouncement as to the validity of the proposed regulation, this would not permit the court to make a declaration in relation to the validity of the proposed regulation. Lack of jurisdiction cannot be cured by an agreement by the parties to waive any objections to the court’s exceeding its jurisdiction. If the Union wants an authoritative pronouncement as to the validity of the proposed regulation, the best it can do is take the advice of counsel. Challenging the regulation after its making If the regulation is made, the position changes. Once made, the regulation affects rights and obligations, and an application for a declaration as to their invalidity would be a ‘matter’. That said, it should be noted that the Union could not apply for a declaration to this effect under the ADJR Act. For one thing, decisions of the Governor-General are not reviewable: s 3(1). Regulations are formally made by the Governor-General. Assuming that Australia still has a Governor-General at the relevant time, and that the [page 92] ADJR Act has not been amended, this would be fatal to ADJR Act review. In any case, regulations appear not to be decisions of an administrative character. This seems to follow from the fact that they involve an exercise of delegated legislative power: Queensland Medical Laboratory v Blewett (1988) 84 ALR 615. They would operate to change the content of the law, and if, contrary to Blewett , the test were to be whether they were general in their application, the regulations would satisfy this test too. A decision made under the regulation would be reviewable, and if the validity of the decision depended on the validity of the regulation, the court could and would consider the validity of the regulation in that context. A person who sought to challenge a decision to award compensation of a given sum could argue that the regulation on the basis of which the compensation was determined was invalid and that, in consequence, compensation should be determined on the basis of what the law would be, assuming the purported regulation to be a legal nullity. Even then, however, the court would not have the power to make a formal declaration in relation to the regulation. This, however, would scarcely matter. Its judgment would have the same substantive effect as a formal declaration. Challenges to the validity of administrative decisions may also be made pursuant to the Judiciary Act 1903 (Cth) and the Constitution. Section 39B(1A) provides a straightforward basis for Federal Court jurisdiction. Section 39B(1A)(c) gives the Federal Court jurisdiction in relation to any matter arising under any laws made by the parliament. Since a challenge to the validity of the regulations would involve such a matter, the Federal Court clearly possesses jurisdiction in relation to the matter, and it could grant a declaration under s 21 of the Federal Court of Australia Act 1976. The High Court also has the jurisdiction to hear the matter. Its jurisdiction is constitutional rather than statutory, s 75(v) of the Constitution corresponding to s 39B(1) of the Judiciary Act, and could be invoked if the applicants sought an injunction restraining the Commonwealth from acting on the basis of the regulation or mandamus requiring the Commonwealth to consider applications according to law. Declaratory relief could also be sought as incidental to the application. Section 75(iii) would also ground jurisdiction since the Commonwealth would be a party to the litigation. The High Court would exercise its power under s 44(2A) of the Judiciary Act, and remit the matter to the Federal Court. There is, however, no statutory or constitutional basis for directly challenging the validity of a regulation in a proceeding in the Federal Circuit Court. Since that court’s administrative law jurisdiction is limited to the jurisdiction conferred by the ADJR Act, it could examine in the validity of the regulation only in the context of a dispute to which this issue was material, that is, in relation to the validity of a decision made under the regulation. State and territory courts State and territory courts have only such federal jurisdiction as is conferred on them. In relation to the proposed regulation, there is no relevant federal jurisdiction which could be conferred on a state court. The Supreme Court of Tasmania would therefore not have jurisdiction to examine the question. If [page 93] the regulation had been made, there would be a relevant federal jurisdiction with which the Supreme Court of Tasmania could be invested. There is no relevant jurisdiction conferred by the Judiciary Act. The Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) confers jurisdiction, but because the question is a ‘special federal matter’ the Supreme Court would be required to transfer it to the Federal Court unless persuaded that there were special reasons for not doing so. The convenience of the parties is not a special reason, and in any case, what would suit the Union would not necessarily suit the Commonwealth. This is not a case where there is a strong (or indeed any obvious) state issue. The Supreme Court would be obliged to transfer the matter, and would almost certainly do so. But if it didn’t, and proceeded to deliver an otherwise well-founded judgment, its decision would be valid and an appeal against it would almost certainly fail.

Conclusion

Once the regulation was made, its validity would be reviewable in the Federal Court. The application should be made under the Judiciary Act rather than under the ADJR Act. The validity of the regulation could be canvassed if relevant to the outcome of ADJR Act proceedings in relation to particular payouts, and Judiciary Act and ADJR Act proceedings could be combined if the Union was anxious to secure a declaration, as well as the quashing of decisions adverse to its members. There would be no point in initiating proceedings in the High Court (and in any case, the Federal Court is cheaper). The Federal Circuit Court could consider the question only under the ADJR Act, and therefore only in the context of a challenge to a decision made under the regulation. An action could be initiated in the Supreme Court of Tasmania, but since that court would be obliged to transfer the case to the Federal Court, issuing out of Hobart would achieve nothing, except needless costs and possible delay.

Further tutorial discussion 1. Cases are almost never dismissed on the grounds that they are ‘premature’. W hy might this be so? 2. I n Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767; 144 ALR 677, Kirby J ruled that the High Court lacked jurisdiction to consider an application. In the course of his judgment, he said at ALR 779: Is the question formulated, of its nature, such as is apt to a court performing courtlike functions? If it is not, it matters little in practical terms whether the court, facing an objection, rules that it lacks jurisdiction for want of a ‘matter’ engaging its powers, or that it says that any such ‘matter’ would be non-justiciable. In such event, the court’s duty is plain. It should stop the proceedings forthwith. … Logically, the determination of the existence of a ‘matter’ might properly come first because upon the resolution of that question will depend the jurisdiction of the court. That is a question which a court should always establish at the threshold if jurisdiction is challenged or in doubt.

[page 94]

3.

4.

5. 6.

Is this what the Federal Court did in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274; 75 ALR 218? If not, what approach did it take? Are there any circumstances where it might be appropriate for a court to find against an applicant on jurisdictional grounds, and then proceed to consider a matter on its legal merits? A state government establishes a Small Claims Tribunal. It is aware that the tribunal will sometimes make mistakes. It will occasionally make decisions in relation to matters which do not fall within its ostensible jurisdiction. It will sometimes make errors of law. The quid pro quo is that the tribunal will deliver rough justice relatively cheaply. The government is concerned that judicial review might be used by wealthy parties to defeat the purpose of the tribunal and decides that this cannot be tolerated even when the tribunal makes mistakes. Is there any way in which its decisions could be protected from judicial review? In its review of the scope of the ADJR Act ( Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act , Report No 32, AGPS, Canberra, 1989) the Administrative Review Council suggested that the criteria for reviewability be modified so as to be less restrictive. (One recommendation included making administrative decisions by the Governor-General reviewable.) It suggested, however, that a justiciability requirement be added. W hat, if anything, would the addition of this requirement achieve? W hy do some litigants in the public law area make applications for review which are so totally devoid of legal merit as to justify their being summarily dismissed? (Consider, for example, Thorpe (No 3) .) W hile parties who wish to challenge the legality of administrative decisions will normally resort to the cheapest and most expeditious review forum available, there will be cases where parties will prefer to resort to relatively expensive, slower moving tribunals. W hy? Do courts seek to discourage such behaviour? How? Insofar as they currently do not, why don’t they? Should they?

Further reading Administrative Review Council (ARC), Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act , Report No 32, AGPS, Canberra, 1989. ARC, Federal Judicial Review in Australia , Report No 50, ARC, Canberra, 2012. Allars, M, Administrative Law: Cases and Commentary , Butterworths, Sydney, 1997, chs 8, 10, Pts 3, 4, 7. Aronson, M and Groves, M, Judicial Review of Administrative Action , 5th ed, Thomson Reuters, Sydney, 2013, chs 2, 17. Beaton-Wells, C, ‘Restoring the Rule of Law — Plaintiff S157/2002 v Commonwealth of Australia ’ (2003) 10 Australian Journal of Administrative Law 125. [page 95] Bennett, D, ‘Privative Clauses — An Update on the Latest Developments’ (2003) 37 AIAL Forum 20.

Campbell, E, ‘Appeals to Courts from Administrative Decisions: Restrictions on Further Review’ (1997) 4 Australian Journal of Administrative Law 164 (analyses the effects of ‘final and conclusive’ clauses in restricting appeals to state courts and to the High Court). Creyke, R, McMillan, J and Smyth, M, Control of Government Action: Text, Cases and Commentary , LexisNexis Butterworths, Sydney, 2013, ch 2. Douglas, R and Head, M, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014, chs 18, 19. Kerr, D, ‘Deflating the Hickman Myth: Judicial Review after Plaintiff S157/2002 v The Commonwealth ’ (2003) 37 AIAL Forum 1. Sackville, R, ‘An Age of Judicial Hegemony’ (2013) 87 Australian Law Journal 105. Twomey, A, ‘The Defining Characteristics of Constitutional Expressions and the Nationalisation of the State Court System’ (2013) 11(2) The Judicial Review 233.

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5 Access to Judicial Review General The common law doctrine of standing or locus standi (a place to stand) determines whether an applicant is the appropriate person to initiate legal proceedings to challenge the exercise of administrative power. Standing is concerned with the relationship between the instigating party and the subject matter of the proceedings, rather than with the issues of fact and law raised by the proceedings. Standing is one of the hurdles to be overcome by a party seeking to obtain an administrative remedy. In this chapter, we will consider the common law and statutory rules which determine who may be involved in litigation: who has standing to bring proceedings and who may be joined.

Objectives After studying this chapter, you will understand: 1. 2. 3. 4. 5. 6.

the development of the doctrine of standing; the standing requirements at common law; the statutory formula for standing; the law in relation to joinder; the law in relation to intervention; and the law in relation to amici curiae or friends of the court.

1 The development of the doctrine of standing 5.1.1 Public and private rights People may initiate and take part in litigation only if they have the ‘standing’ to do so. Standing normally requires that the person have a special interest in the subject matter of the litigation. In private law litigation, standing is rarely a problem. Litigation is expensive, and people embark on litigation only because they have a real interest in its outcome. Indeed, if they lack a real interest in the litigation, they will normally be hard-pressed to establish the elements of a [page 97] cause of action. This is usually the case for public law litigation too. Litigation is an expensive and hazardous activity, and most administrative law litigation is initiated by people with a direct interest in the relevant decision. If a person’s concerns about the legality of a decision stem not from the fact that it directly impinges on them, but from the fact that, like thousands of others, they object to the decision on political grounds, they may be tempted to leave litigation to others, and to freeload off such altruists who might be prepared to sacrifice their personal interests for collective gains. Questions of standing arise only in those exceptional cases where an altruist is prepared to use administrative law litigation to advance collective interests or, more usually, where an interest group considers that litigation might represent an effective strategy for the achievement of its political goals. Traditionally, administrative law drew a distinction between ‘public rights’ and ‘private rights’. Public rights were rights enjoyed by people as members of a group. Private rights were rights created under a statute and intended to benefit particular people. These might include the right to practice a particular trade, or to erect a large and ugly house in a hitherto pleasant residential area. Public rights were to be protected by the AttorneyGeneral. Private rights could be protected by actions initiated by the relevant right-holders or by those who claimed to be right-holders. Reference to the distinction between public and private rights underlies traditional standing rules. By analogy with private rights, it is uncontroversial that people also have standing when their ‘private’ interests are affected by administrative decisions. But while courts have become increasingly liberal in relation to the circumstances where private individuals and organisations will be allowed to litigate in relation to public rights, courts continue to insist that there are limits to the circumstances in which people without a distinctive interest in a decision can challenge it simply because they care about the decision or — less plausibly

— about administrative illegality.

5.1.2 Attorney-General protects the public interest The rights of the public are vested in the Crown and can be asserted by Commonwealth and state Attorneys-General. Attorneys-General may protect those rights by bringing the action on their own initiative or at the instance of a private individual, known as the relator. Conversely, Gibbs CJ noted in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 526; 28 ALR 257 that: … an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty.

However, the High Court has subsequently expressed doubts about the degree to which Attorneys-General can be relied on to protect public rights, given their membership of Cabinet and the concomitant possibility that they will be reluctant to facilitate challenges to the legality of government policies and practices: Bateman’s Bay Local Aboriginal Land Council v Aboriginal Benefit Fund Ltd (1998) 194 CLR 247 at 262–3 per Gaudron, Gummow and Toohey JJ.

5.1.3 When can a private party bring proceedings? On occasion, a statute may expressly permit a private party to bring proceedings to protect the public interest. Legislation which does so is not inconsistent with the rule that Federal [page 98] Courts may hear cases only if they are ‘matters’: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 616. In addition, courts have long recognised that there are cases where people other than the Attorney-General can — in certain circumstances — represent the public interest. In Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114, Buckley J acknowledged that there are two exceptions to the common law rule that the Attorney-General is the only person who can protect public rights: A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with …; and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right. [emphasis added]

The first exception allows private parties to vindicate their private rights even when a public right is also affected. It is the second exception which provides that private parties can have standing to protect purely public interests if they can show ‘special damage’. In 5.2 and 5.3 , we will consider this common law test of standing, as broadened by subsequent cases, and the more relaxed statutory tests. There is another exception. W hen a decision-making body is exceeding, or has exceeded its powers, there are some circumstances in which anyone may seek an order restraining the body from proceeding further, or quashing the relevant decision, whichever is appropriate. Given that legal errors by administrators typically involve an excess of powers, it is arguable that the standing rules pose few problems for those who wish to object to administrative conduct and decisions, so long as they seek the relevant orders. It is unclear whether the broad standing rules in relation to applications for the relevant orders apply to all cases where there has been an excess of powers (as opposed to the cases where the error is ‘patent’). This in turn reflects the fact that there have been few attempts to take advantage of these relatively broad standing rules. However, the High Court has noted their existence, and ‘altruists’ wishing to challenge the validity of administrative decisions might be able to use them to considerable effect: see, generally, Bateman’s Bay Local Aboriginal Land Council v Aboriginal Benefit Fund Ltd (1998) 194 CLR 247 at 263 per Gaudron, Gummow and Toohey JJ.

5.1.4 No golden rules There are no golden rules which can be mechanically applied to determine whether a private person has standing. Although some general rules and principles can be stated, whether a person or group has standing will depend on the court’s assessment of the circumstances of the case, the nature of the relief sought and the subject matter of the litigation. In Robinson v Western Australian Museum (1977) 138 CLR 283; 16 ALR 623 at 661 Mason J noted that: … cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is sufficient interest in one case may be less than sufficient in another.

This increases the uncertainty as to whether standing will be granted as views may differ when determining whether a ‘special interest’ has been established. As a result of this discretionary nature of standing decisions, the law is not entirely [page 99] coherent. In the discussion below, we have tried to extract some general principles. These general principles are, however, always subject to curial discretion.

5.1.5 Function of the doctrine Standing acts as a filter by defining who may initiate actions and become parties to litigation and who may speak for the public. A number of arguments have been raised in support of the need for a doctrine of standing: It protects the courts from busybodies and meddlers: R v Inland Revenue Commissioners; Ex parte National

Federation of Self-Employed and Small Businesses Ltd [1980] 2 W LR 579. It protects people from interference with their interests from those with no personal stake in the actual decision. For instance, trade competitors have generally been denied standing to challenge decisions to allow competitors to set up businesses where the motivation for the challenge is purely their own commercial interest: Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250; 121 ALR 373. It safeguards the system’s efficiency and economy by ensuring that the courts are not swamped by an unmanageable proliferation of cases. This is known as the ‘floodgates argument’: It ensures that issues are adequately presented to the court. If the applicant does not have at risk a legal right or some material interest, the issues will not be adequately presented to the court. In the context of public law, this avoids the danger of collusive litigation, designed to create precedents favourable to the colluding parties. In the context of s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), the standing restriction ensures that excessive burdens are not imposed on government agencies to provide a statement of reasons. In the absence of the restriction, these added costs may flow on as increased costs to the public purse.

5.1.6 Criticism of the doctrine The narrow judicial interpretation of the standing rules has been much criticised. The rules are said to conflict with the notion of participatory democracy and public accountability by precluding ordinary interested individuals and groups from using the courts to challenge administrative action. By giving primacy to legal and proprietary interests, the standing rules fail to acknowledge the wider range of public interests which may be affected. Further, the enforcement of public rights by or with the consent of the AttorneyGeneral is unreliable due to a range of political, financial and bureaucratic factors: see Australian Law Reform Commission, Standing in Public Interest Litigation , Report No 27, AGPS, Canberra, 1985, para 167. A broader view suggests that the function of standing rules should be to: ensure that only parties with a legitimate cause of action have access to the courts; ensure that the validity of government decisions and legislation can be tested and ‘public rights’ can be protected; and [page 100] enhance the nature of the information courts have when making a decision that has implications beyond the parties to the proceedings. In 1985, the Australian Law Reform Commission (ALRC) recommended that the law of standing in public interest litigation should be amended: ALRC, Standing in Public Interest Litigation , Report No 27, AGPS, Canberra, 1985. In 1995 the ALRC confirmed most of the 1985 recommendations: ALRC, Beyond the DoorKeeper: Standing to Sue for Public Remedies , Report No 78, AGPS, Canberra, 1996. This report rejected the ‘floodgates argument’, noting that the courts’ general powers to dismiss proceedings or strike out proceedings if they are frivolous, vexatious or an abuse of process provide an adequate safeguard against spurious claims: ALRC Report No 78, para 4.32. It recommended the introduction of a single open test with as few threshold criteria as possible, to replace the wide range of tests. The test should facilitate public law proceedings. The test would provide that any person may commence public law proceedings unless any relevant legislation provides otherwise or the litigation would unreasonably interfere with a party’s private interest.

5.1.7 Broaden the standing requirements: the judicial view W here the traditional criteria are not met, English courts have a discretion to allow standing if they consider that the case is of sufficient importance: Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617. W hen invited to broaden the standing rules some Australian judges have refused, considering it inappropriate for the unelected and unrepresentative judiciary to amend the settled law on standing: Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; 28 ALR 257 at 269 per Gibbs J. More recent dicta suggest that the High Court is now receptive to the adoption of broader standing rules: Bateman’s Bay Local Aboriginal Land Council v Aboriginal Benefit Fund Ltd (1998) 194 CLR 247 at 263 per Gaudron, Gummow and Toohey JJ. However, the court has also made it clear that not everyone who wishes to challenge the legality of an administrative decision will be allowed to do so: Allan v Transurban City Link Ltd (2001) 208 CLR 167; 183 ALR 380.

5.1.8 The link between standing and remedies At common law, the test for standing varies depending on the remedy sought and therefore is closely associated with the rules relating to the availability of remedies: see Chapter 12 . However, standing may be more closely linked to justiciability. Justiciability and standing are often intertwined where standing depends on the connection between the applicant’s interests and the issues in dispute. For instance, under the ADJR Act, standing, the justiciability of the decision and a ground of review must be established before the court can exercise its discretionary power to make orders. Arguably, even in common law matters, the test for justiciability may perform the functions performed by the standing rules.

5.1.9 When is the issue determined? Courts have a discretion as to whether to determine the question of standing as a preliminary matter or when they deal with the merits of the case: Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 38 per [page 101]

Gibbs CJ, 57 per Aickin J, 76 per Brennan J; 36 ALR 425 at 433, 463, 448. As stated by Ellicott J in Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79; 4 ALD 277: The question whether an applicant is a person aggrieved is one of mixed law and fact and in many cases would best be determined at a final hearing when all the facts are before the court and the court has the benefit of a full argument on the matter.

In theory, this means that a court could find that the applicant had demonstrated an error of law by the administrator, but lacked the standing required for an application. Significantly, there is no case where an Australian court has done so.

5.1.10 W hich test: statute or common law? W here relief is sought under a general administrative law procedural statute, such as the ADJR Act, the statutory test for standing must be applied: see 5.3.1 – 5.3.9 . However, where the statute exists but it does not apply to the decision for which review is sought, the common law principles continue to apply: see 5.3.1 – 5.3.3 . In New South Wales, the Northern Territory, South Australia and Western Australia, where a general administrative law procedural statute does not exist, the common law principles apply: see 5.2.1 .

2 Standing requirements at common law 5.2.1 Different rules for different common law remedies? Traditionally, different rules of standing applied to the different common law remedies: 12.1.2 . For instance, a person seeking the remedy of injunction had to satisfy the ‘special damage’ test. This test differed from the ‘person aggrieved’ test for applications for a writ of certiorari. However, in more recent times, courts have applied the ‘special interest in the subject matter’ test where writs are sought: Helena Valley/Boya Association (Inc) v State Planning Commission (1990) 2 W AR 422; see also dicta in Kioa v West (1985) 159 CLR 550; 62 ALR 321 particularly per Brennan J at CLR 621. This is also the test for injunctions and declarations as formulated in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; 28 ALR 257 and reaffirmed by the High Court in Shop, Distributive and Allied Employers Association v Minister for Industrial Affairs (1995) 183 CLR 552; 129 ALR 191. Our discussion will focus on this ‘special interest’ test. In some circumstances, the standing rules for applicants for writs are far more generous than those governing applicants for other forms of relief. W here it is apparent that a body is exceeding its jurisdiction, a ‘stranger’ to the proceedings may apply for prohibition or certiorari to restrain the decision maker or to quash the decision. Strangers may also apply for habeas corpus , and, where the writ is still available, quo warranto . There is some doubt as to the applicability of these rules, especially in relation to whether ‘strangers’ include any member of the public. But it is clear that there are some circumstances where people not directly involved in proceedings may object to the fact that the relevant tribunal is exceeding or has exceeded its powers: John Fairfax and Sons Ltd v Police Tribunal of New South Wales [page 102] (1986) 5 NSW LR 465; Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Ltd (2000) 200 CLR 591.

5.2.2 The special interest test As noted at 5.1.3 , there are two exceptions to the general rule that the AttorneyGeneral is the only person who may protect the public interest: A private party will have standing if interference with a public right also interferes with their private right. W here no private right is interfered with, a private party will have standing if there is ‘special damage’ peculiar to that party as a result of interference with a public right. This special damage test was considered misleading as it implied that actual pecuniary loss was required and that the plaintiff alone must have suffered the damage. In the following case, Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 527 per Gibbs J; 28 ALR 257 at 268, this reference to ‘special damage’ was reformulated as ‘a special interest in the subject matter of the action’. In Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; 28 ALR 257, the Australian Conservation Foundation (ACF), an incorporated association whose objects included conservation of the environment, submitted written comments on an Environmental Impact Statement concerning the proposed establishment of a tourist area. Before the final impact statement was issued, the minister advised that the proposed development would proceed. The ACF sought declarations and injunctions in relation to the proposed development and the departure from the requirements of the Environment Protection (Impact of Proposals) Act 1974 (Cth) and the Administrative Procedures under that Act. The majority of the High Court held that the ACF did not have standing to sue for equitable relief to prevent the violation of the public right or enforce the performance of a public duty. These tasks are the responsibility of the Attorney- General. Neither the legislation nor the Administrative Procedures created private rights enforceable by private individuals. Although the ACF’s objects concerned the preservation of the environment and it was formed to promote these values, it did not have a ‘special interest in the subject matter of the action’ necessary to give it standing to bring an application for relief. The ACF’s belief or concern, however genuine, did not constitute a sufficient locus standi : at CLR 548; ALR 284. Gibbs J stated (at CLR 330; ALR 270) that: … a person might have a special interest in the preservation of a particular environment. However, an interest, for present

purposes, does not mean a mere intellectual or emotional concern . A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi . If that were not so, the rule requiring special interest would be meaningless. [emphasis added]

[page 103] Mason J suggested (at CLR 547; ALR 284) that a plaintiff will generally have standing: … when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests … and perhaps to his social or political interests.

Murphy J (dissenting) considered that the ACF should be granted standing. The Act disclosed a legislative intention to give standing to groups interested in the environment who allege that factors affecting them are not being properly considered by decision makers. Second, he considered that even where it is necessary to show that a particular interest is involved, the interest need not be peculiar to the plaintiff and political and environmental interests represented by reputable organisations can be recognised.

5.2.3 Development of the ‘special interest’ test The ‘special interest’ test was further elaborated in the following case which indicates a liberalising trend away from ‘interests’ to the connection with the subject matter. After consideration of the interpretation of ‘person aggrieved’ under the ADJR Act, we will consider situations in which a ‘special interest’ has been argued in subsequent cases: see 5.3.5 – 5.3.10 . I n Onus v Alcoa of Australia Ltd (1981) 36 ALR 425; 149 CLR 27, two women from the Gournditch-jmara people sued for declaratory and injunctive relief to prevent further allegedly criminal interference by the respondent company with tribal relics protected by the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic). The High Court held that the legislation did not confer any private rights on Aboriginal people, viewed as a class. However, the women who brought the application had a special interest in the subject matter as the relics were of cultural and historical importance to the tribe, aided the preservation of the tribe’s separate identity and were used in the education of their children. Further, the Gournditchjmara people were the custodians of the relics. The Gournditch-jmara people would be more particularly affected than other members of the Australian community by the destruction of the relics. The High Court held that a ‘special interest’ will be established if: the person or group will suffer actual or apprehended injury or damage to non-material interests such as cultural, spiritual or historical interests; the person or group has been specially affected: ‘in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner’: at ALR 462 per Brennan J; and there is sufficient proximity between the interest and the person or group. The court must assess the importance of the plaintiff’s concern with, and the closeness of their relationship to, the subject matter. Stephen J (at ALR 436) distinguished the Aboriginal women’s special interest ‘both in terms of weight and, in particular, in terms of proximity’ from the ACF’s concern for the environment and its protection. Moreover, as we shall see, the Federal Court has generally given a generous construction to the standing rules under the ADJR Act. Insofar as the standing [page 104] criteria for ADJR Act applications are effectively the same as those for applications for declarations and injunctions, these must be treated as authority for the giving of a generous application to the ‘common law’ standing rules.

3 Statutory formula for standing 5.3.1 Statutory formula A variety of expressions are used in statutes, both the general administrative law statutes and other specific statutes. For example, ‘person aggrieved’, ‘person interested’, and ‘person with affected interest’. The formulae used in the general administrative law statutes will be discussed below. A few statutes dispense with the standing requirements altogether. For instance, under s 11 of the Freedom of Information Act 1982 (Cth), there is a general right of access to specified classes of documents: see 14.3.23 .

5.3.2 Statutory context controls the formula In addition to the highly discretionary nature of standing decisions discussed at 5.1.4 , it is also widely accepted that these formulae: … should not be given a rigid or inflexible meaning. They are flexible words which derive their meaning and take their colour from the context in which they appear and the nature of the particular statute concerned: Ogle v Strickland (1987) 13 FCR 306; 71 ALR 41 at 44 per Lockhart J.

It follows that words such as ‘aggrieved’ are not to be interpreted by reference to other statutes which involve different subject matter and objects. The crucial question is the word in the particular statute.

5.3.3 ‘Person aggrieved’ ‘Person aggrieved’ is the formula used in the federal, ACT, Queensland and Tasmanian Judicial Review Acts: ADJR Act 1977 (Cth) ss 5, 6, 7; Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 5, 6, 7; Judicial Review Act 1991 (Qld) ss 20(1), 21(1), 22(1); Judicial Review Act 2000 (Tas) ss 17(1), 18(1), 19(1). This term is further defined in the legislation: ADJR Act (Cth) s 3(4)(a); ADJR Act (ACT) s 3(4); Judicial Review Act 1991 (Qld) s 7; Judicial Review Act 2000 (Tas) s 7. For instance, in the ADJR Act (Cth): s 5(1) provides that ‘a person who is aggrieved’ by a decision to which this Act applies may apply to the court for review of the decision; s 3(4)(a)(i) defines ‘a person who is aggrieved’ to include ‘a person whose interests are adversely affected by the decision’.

5.3.4 Interpretation of the provision W hen determining whether a person is ‘aggrieved’ for the purposes of the Act, some courts have referred to the common law ‘special interest’ test. To be a ‘person aggrieved’ the applicant must ‘show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public’: Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 4 ALD 277 at 290; 36 ALR 64. Ellicott J (at ALD 290) suggested that consistent with the legislative intention to simplify the [page 105] complex prerogative writ procedures, the term ‘person aggrieved’ should be given a wider meaning than the common law test. Allars and Spry (see ‘Further reading ’) have suggested that the case law bears out a developing trend that the test has a more liberal interpretation than the common law test. The breadth of the statutory test is evidenced by the decision in Ogle v Strickland (1987) 13 FCR 306; 71 ALR 4. In that case, although the Full Federal Court seemed to have assumed that the ‘person aggrieved’ test is similar to the test for applications for equitable relief, Lockhart J commented (at FCR 318; ALR 52) that: It is true that the appellants have no special interests in the subject matter of the decision in the sense of legal or equitable rights or proprietary or pecuniary interests; but they are persons aggrieved because to repel blasphemy is a necessary incident of their vocation.

After examining the cases discussed below, consider whether you think the term has a wider scope than the common law test.

5.3.5 Factors considered relevant A number of factors have been used by the courts to determine who has standing: what interests are affected by the wrong? see 5.3.6 ; proximity: the individual or group’s closeness of relationship to the subject matter: see 5.3.7 ; who is able to represent those interests: see 5.3.8 ; and whether the applicant participated in the prior proceedings: see 5.3.9 . W hen applying these factors, it is important that you remember the highly discretionary nature of standing decisions and the consequent incoherence of the law. Use these factors to guide your reading of the cases but be aware of how the particular law and the facts of the case impact on the court’s interpretation of the requirements to gain standing.

5.3.6 What interests are affected by the wrong? Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; 28 ALR 257 and Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; 36 ALR 425 indicate the type of interests which must be affected for standing to be granted. The following cases provide examples of how courts have dealt with different interests: Although business, trade or commercial interests are sufficient to confer standing, the mere opportunity to negotiate in a commercial transaction does not confer a ‘special interest’ on a company: Oatmont Pty Ltd v Australian Agricultural Co Ltd (1991) 23 ALD 461; 75 NTR 1. Standing has been denied where the argument is that Aboriginality alone is sufficient qualification to gain standing. In Davis v Commonwealth (1986) 68 ALR 18, three Aboriginal people sought to challenge the Commonwealth legislation concerning the bicentenary. Gibbs CJ found that the interest was emotional or intellectual. [page 106] Membership of a community does not automatically confer standing if the resident objects to an activity occurring in the area. In Australian Conservation Foundation Inc v Minister for Resources (1989) 19 ALD 70, the owner of property adjoining an area which was proposed to be logged was denied standing. The evidence did not show that the logging would adversely affect his property interests which were outside the area to be logged. Davies J held that the property owner’s concern with the effects of logging were no greater than that of an ordinary member of the community. This decision has been criticised: Yates v Keating (1990) 98 ALR 21.

Vocational and professional interests may ground standing. In Ogle v Strickland (1987) 13 FCR 306; 71 ALR 41, two priests were granted standing in relation to a decision relating to importation of a film Je Vous Salue Marie (Hail Mary ) which they considered to be blasphemous. Lockhart and Fisher JJ considered that as priests and teachers, the decision had a greater effect on them than it had upon ordinary members of the public because to repel blasphemy ‘is a necessary incident of their vocation’: at ALR 52. Because their vocation and professional calling was ‘more than an intellectual or emotional concern’ their interest was to be given greater weight. Fisher J noted (at ALR 43) that: ‘They have … a “closer proximity” to this subject matter than other members of the community.’

5.3.7 Proximity: closeness of relationship to subject matter As suggested in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; 36 ALR 425 there must be sufficient proximity between the interest group and the subject matter. Although this issue is determined in the context of the relevant public statutory duty, the special interest need not relate to the scope and purpose of the statute under which the duty arises. To impose such a requirement would unnecessarily qualify the interest group’s closeness to the subject matter by reference to the statutory criteria: Allan v Development Allowance Authority [1998] 112 FCA. The following case considered whether there was a sufficiently close relationship: see also Tasmanian Conservation Trust Inc v Minister For Resources and Gunns (1995) 55 FCR 516; 127 ALR 580. In North Coast Environmental Council Inc v Minister for Resources (No 2) (1994) 55 FCR 492; 127 ALR 61 the North Coast Environmental Council (NCEC) sought reasons under s 13 of the ADJR Act (Cth) for the minister’s decision to grant a woodchip export licence. Sackville J held that the NCEC was ‘a person aggrieved’ and entitled to reasons. The NCEC could not rely solely on its objects, its role as commentator in the environmental impact statement or any complaint made about possible noncompliance with statutory procedures. However, a number of factors demonstrated its specific concern with the preservation of forests and the closeness of its relationship to the subject matter: it was the peak environmental organisation in the region and its activities related to areas affected by the woodchip operations; its significant and responsible role in advocating environmental values had been recognised by both the federal and New South Wales governments in the form of financial support and participation in government decisionmaking processes; [page 107] it had a long history of coordinating projects and conferences on matters of environmental concern including activities involving opposition to woodchip operations; and it had made submissions on forestry management and funded a study on old growth forests in the area. Although the NCEC received less funding than the Australian Conservation Foundation and was a regional not a national organisation, it had a particular interest in the subject matter of the decision which concerned woodchips sourced from state forests and private lands. Indeed, its regional focus assisted in showing its closer concern with the decision. This case is not easily reconciled with the ACF decision, but the sentiments underlying it were evidently shared by the Commonwealth Parliament which has liberalised the standing requirements for groups seeking to challenge decisions under Commonwealth environmental legislation. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 487 expands the term ‘person aggrieved’ in the ADJR Act for the purposes of applications for orders of review of a decision under the Act so that it includes: Australian citizens and residents who have engaged in activities for the protection or conservation of, or research into, the environment, provided that the activities have been conducted in Australia within two years prior to the decision; and bodies incorporated or established in Australia, subject to the additional requirement that their objects at the time of the relevant decision include protection or conservation of, or research into, the environment. New South Wales environmental law permits ‘anyone’ to challenge a range of environmental decisions: see generally A Edgar, ‘Extended Standing — Enhanced Accountability? Judicial Review of Commonwealth Environmental Decisions’ (2011) 39(3) Federal Law Review 435. To date, Australian legislatures have been disinclined to broaden the general rules. The ‘objects’ criterion had a precedent in the standing requirements of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), s 27(2) of which provided that organisations are ‘taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association’. In its 2012 report on the ADJR Act, the Administrative Review Council (ARC) recommended amending the ADJR Act so that its standing requirements corresponded with those under the AAT Act, in which case, the standing requirements for organisations and even environmental organisations would be relaxed considerably: ARC, Federal Judicial Review in Australia , Report No 50, ARC, Canberra, 2012, pp 146–51. The 1999 environmental legislation means that pre-1999 decisions in Commonwealth environment cases are of little contemporary relevance to standing in such cases, but pending reforms such as those recommended by the ARC, they are of continuing relevance to standing in other contexts in which groups seek to use litigation to further organisational objectives.

[page 108] The Federal Court has been reluctant to recognise the standing of groups whose objection to the relevant decision stems from a desire to use the law for an ‘ulterior’ purpose. In Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1994) 56 FCR 50; 128 ALR 238 the association objected to a decision to permit clinical trials of a post-conception abortion drug under the Therapeutic Goods Act 1989 (Cth). Among the Federal Court’s reasons for finding that the association lacked standing was the fact that its objectives had little to do with the achievement of the purposes of the Therapeutic Goods Act. It was not concerned by the danger that unlawful clinical trials would result in the release of a dangerous drug, but by the possibility that the drug would achieve its ostensible purpose. Bodies have also been held to lack standing where the purpose of their application has been to achieve a competitive advantage over competitors, or where unions have sought to challenge decisions in order to weaken the economic position of employers of non-union labour.

5.3.8 Who is able to represent those interests? In determining who is able to represent the public interest, courts have rejected attempts to distinguish between the views of a section of the public and the public interest as a whole. In Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 481; 5 ALR 513, the decisionmaker was bound to consider the objections of Sinclair and the organisation he represented although the objections only represented the views of a section of the public and not the ‘public as a whole’. The important issue is whether the organisation has the capacity to represent the public interest. In the following case, Australian Conservation Foundation Inc v Minister for Resources (1989) 19 ALD 70, Davies J developed a test for determining an organisation’s capacity to represent the public interest. In Australian Conservation Foundation Inc v Minister for Resources (1989) 19 ALD 70, the ACF sought review of the minister’s decision to grant an export licence in respect of woodchips to be obtained by logging areas of the South East Forest in New South W ales. Davies J held that while the ACF did not have standing to challenge all decisions which affect the environment, it had standing in this case. Davies J developed a test to determine the applicant’s capacity to represent the public interest. This test requires that the applicant is not a mere busybody but must be a responsible and representative body capable of representing the public interest and must be recognised by ‘current community perceptions and values’ as capable of representing the public interest: at 74. Davies J noted that since the High Court’s decision in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; 28 ALR 257, public perception of the need to protect the natural environment had increased: the community expects there to be a body such as the ACF to concern itself with the issues and to present the conservation viewpoint. Further, the ACF’s receipt of government funding indicated that it was regarded as having a ‘special interest’ in the South East Forests. Some decisions have emphasised government funding, consultation and research as a means by which the court can assess whether the organisation represents community values. One of the factors which influenced the final decision to deny standing in the Right to Life Association [page 109] case was that the Australian Government had not recognised the appellant as representing a particular public interest in the subject matter of the decision, nor had the appellant undertaken any research or other activities in the area.

5.3.9 Was the applicant involved in the prior proceedings? A statutory right to make representations to a decision maker and to have those representations taken into account, may ground standing to seek judicial review in relation to the decision: Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473; 5 ALR 513. Much depends on whether the statute reveals an intention to give those who comment a further right over and above a right to make submissions. The following cases indicate how this issue is approached. In Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; 28 ALR 257, the majority held that although the Administrative Procedures permitted the ACF to make submissions, they did not give the ACF further legal rights sufficient to ground their standing. Gibbs J noted (at CLR 524) that there was no clear parliamentary intention ‘to confer on any private citizen the right to enforce the observance of the proper procedures of administration in the conduct of governmental activities over so wide an area’. Unlike the right relied upon in Sinclair v Maryborough Mining Warden , the Administrative Procedures did not reveal an intention that a person who has submitted written comments thereby acquired further rights. In United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520; 83 ALR 79, the Full Federal Court held that the Australian Federation of Consumer Organisations was entitled to be joined as a party to the action. By its admission and participation in a prior conference following a direction by the Trade Practices Commission the Federation had acquired a ‘special position’ different from the interests of members of the public.

5.3.10 ‘Person affected’ Section 11 of the Administrative Law Act 1978 (Vic) provides that a ‘person affected’ by the decision of a tribunal or inferior court shall have standing to bring an action for prohibition, certiorari, mandamus , a declaration of invalidity or an injunction. The test mirrors the ‘special interest’ test discussed above. A ‘person affected’ is defined by s 2 as: … a person whether or not a party to the proceedings, whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision which has been made or is to be made or ought to have been made by the tribunal.

The interest must be substantial, that is, it must be significant, more than trifling: Chelfco Ninety-Four Pty Ltd v

Road Traffic Authority [1985] VR 1. W here a decision will have significant economic and social consequences for the residents of a particular area they may be granted standing: Shire of Beechworth v Attorney-General (Vic) [1991] 1 VR 325. This phrase ‘person affected’ is also used in the Judicial Review Act 1991 (Qld) and the Judicial Review Act 2000 (Tas). An application for a prerogative order or a prerogative injunction may be made by a person whose ‘interests are, or would be, adversely affected in or by the matter to which the application relates’: Judicial Review Act 1991 (Qld) s 44. [page 110]

5.3.11 ‘Personally interested’ A number of jurisdictions provide for a remedy of ‘statutory mandamus ’: see, for example, Supreme Court Act 1970 (NSW ) s 65. The test of standing for statutory mandamus is whether the plaintiff is ‘personally interested’. In Bilbao v Farquhar [1974] 1 NSW LR 377, mandamus was issued to direct a magistrate to resume an inquest into the death of Bilbao’s brother. Bilbao’s familial interest and the fact that the circumstances of the death could reflect upon the family was sufficient interest for standing. Participation as a party in proceedings before a tribunal may also satisfy the test: Dickinson v Perrignon [1973] 1 NSW LR 72.

4 Joinder 5.4.1 Joinder defined Joinder involves joining additional parties with the applicant or respondent to resolve claims simultaneously. In most cases, people joined as parties were involved in the events which gave rise to the proceedings. Their interests may be similar to those of the applicant or respondent.

5.4.2 Source of power to join Under Rules of Court, courts may direct the joinder of parties in a variety of circumstances. In addition, various general administrative law procedural statutes provide for joinder. For instance, s 12 of the ADJR Act (Cth) provides that: … a person interested in a decision, conduct or failure to make a decision may apply to the court to be made a party to the application.

This section does not confer a right to joinder but rather a right to the exercise of the court’s discretionary judgment whether to grant the application unconditionally, grant the application subject to conditions or refuse the application: ADJR Act (Cth) s 12(2). Similar provisions are found in ADJR Act (ACT) s 12; Judicial Review Act 1991 (Qld) s 28; and Judicial Review Act 2000 (Tas) s 25.

5.4.3 Interpretation of ‘person interested’ The same considerations apply to the interpretation of the phrase ‘a person interested in a decision’ as apply to the phrase ‘a person aggrieved by a decision’: Fordham v Evans (1987) 14 FCR 474 at 476; 72 ALR 529. The formula requires involvement with the case which is greater than the concern of a person who is a mere intermeddler or busybody: United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520; 83 ALR 79.

5.4.4 Discretion The court has a discretion to join a party who is a ‘person interested’. It is unlikely to exercise its discretion if the joinder may be inconvenient or unnecessary: Telecasters North Queensland Ltd v Australian Broadcasting Tribunal (1988) 15 ALD 765; 82 ALR 90. W hen considering whether to exercise the discretion the court will consider the extent of the applicant’s interest, the attitude of the original parties and whether intervention will result in the court having the benefit of submissions or evidence which none of the other parties would advance: Fordham and Victoria v Evans (1987) 14 FCR 474; 72 ALR 529; United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520; 83 ALR 79. [page 111]

5.4.5 Notice to parties who may wish to seek joinder I n Telecasters North Queensland Ltd v Australian Broadcasting Tribunal (1988) 15 ALD 765; 82 ALR 90 the Townsville Aboriginal and Islander Media Association Ltd had initiated an inquiry by the Australian Broadcasting Tribunal concerning a remote television licence. The Association had remained ignorant of review proceedings brought by the licensee in relation to the inquiry. Pincus J noted in obiter (at ALR 99) that as the initiator of the inquiry, the Association had a ‘special interest’ in the proceedings. As such it would be a sound course for the applicant to make that organisation a respondent or at least to notify it of the institution of proceedings so that it may apply for joinder: at ALR 99. The court may direct that notice be given, and even decline to determine the case if injustice would be caused to the absent party.

5 Intervention 5.5.1 What is intervention? Intervention involves participation by a third party in an action in which that person’s interests may be affected. Generally, the action is already under way. In R v Ludeke (1985) 155 CLR 513; 59 ALR 417 at 426, Mason J referred to ‘the principal object of intervention (being) to ensure that all interested parties will participate in a single resolution of a controversy’. An intervenor seeks to present arguments to protect interests which may be different from those of the parties.

5.5.2 Rights and responsibilities of the intervenor A person accepted as an intervenor becomes a party with all the rights, duties and liabilities of a party: they can appeal, tender evidence and cross-examine witnesses: Corporate Affairs Commission v Bradley [1974] 1 NSW LR 391; O’Keeffe Nominees Pty Ltd v BP Australia Ltd And

Trade Practices Commission (Intervener) (1995) 55 FCR 591; 128 ALR 718. The court may, however, limit the intervention to certain issues: Owens v Australian Building Construction Employees and Builders Labourers Federation (1978) 19 ALR 569 at 576 per the Full Court.

5.5.3 Source of the power It has been said that Australian superior courts have no inherent jurisdiction to allow interveners: Corporate Affairs Commission v Bradley (1974) 1 NSW LR 391 at 398 per Hutley J. However nonparties who would be bound by a decision have a right to intervene by virtue of courts’ duty to afford procedural fairness. Moreover, especially in the High Court, those whose legal interests might be substantially affected by the court’s development of the law may be permitted to intervene: Levy v Victoria (1997) 189 CLR 579; 146 ALR 248. In Roadshow Films Pty Ltd v iiNet Ltd (No 1) (2011) 248 CLR 37 at [2]–[3], French CJ, giving judgment for the court, set out the circumstances in which intervention would be permitted: A non-party whose interests would be directly affected by a decision in the proceeding, that is one who would be bound by the decision, is entitled to intervene to protect the interest likely to be affected. A non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the

[page 112] outcome of the proceedings in this Court will satisfy a precondition for leave to intervene. Intervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court or their effect upon future litigation. Where a person having the necessary legal interst can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene, albeit subject to such limitations and conditions as to costs as between all parties as it sees fit to impose.

Intervention may be sought under the general administrative law procedural statutes: ADJR Act (Cth) s 12; ADJR Act (ACT) s 12; Judicial Review Act 1991 (Qld) s 28; Judicial Review Act 2000 (Tas) s 25.

5.5.4 Attorney-General The Attorney-General always has the capacity to intervene to protect the public interest either on his or her own motion or at the instance of a private individual known as the relator: see 5.1.2 . Further, the intervention of the states and the Commonwealth as persons interested has been permitted by the discretion of the court in matters which arise under the Constitution: Australian Railways Union v Victorian Railway Commissioners (1930) 44 CLR 319 at 331 per Dixon J. The state and federal Attorneys-General also have a statutory right to intervene in constitutional matters: Judiciary Act 1903 (Cth) s 78A. Further, the general administrative law statutes provide for intervention by the Attorney-General: ADJR Act (Cth) s 18(1); ADJR Act (ACT) s 19; Judicial Review Act 1991 (Qld) s 51(1); Judicial Review Act 2000 (Tas) s 39. W here the AttorneyGeneral intervenes, he or she is deemed to be a party to the proceeding and the court may make orders for costs against the Commonwealth.

5.5.5 Government bodies Certain statutes allow particular government bodies to intervene in proceedings. For instance, the Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 11(1)(o) provides for intervention by the Human Rights and Equal Opportunity Commission. Some statutes provide that a tribunal may intervene. In these situations, the tribunal is taken to represent the interests of the public. W hen it intervenes, the tribunal’s role is limited to making submissions on practice, procedure and questions of law: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; 29 ALR 289.

6 ‘Amicus curiae ’ or ‘friend of the court’ 5.6.1 What is an amicus curiae ? A person, even if he or she is not permitted to participate as a party, may be granted appearance as amicus curiae or ‘friend of the court’. Originally the scope of a friend of the court was limited to points of law: Johnson v Sammon (1974) 7 SASR 431; 23 FLR 46 at 48. The role of the friend has expanded. The friend assists the ‘court in its task of resolving the issues tendered by the parties by drawing attention to some aspect of the case which might otherwise [page 113] be overlooked’: Bropho v Tickner (1993) 40 FCR 165 at 172 per W ilcox J. W hile the ‘interest’ threshold is less exacting for amici than for interveners: The Court will need to be satisfied, however, that it will be significantly assisted by the submissions of the amicus and that any costs to the parties or any delay consequent on agreeing to hear the amicus is not disproporationate to the expected assistance: Roadshow Films Pty Ltd v iiNet Ltd (No 1) (2011) 248 CLR 37 at [4].

5.6.2 Rights and responsibilities of the friend The friend is not a party to the proceedings and their involvement is controlled by the court: Breen v Williams (1994) 35 NSW LR 522 at 533 per Kirby P. Unlike the intervenor, the friend is generally not permitted to adduce evidence, seek discovery, examine witnesses, lodge an appeal or file pleadings, nor can it recover costs: Bropho v Tickner (1993) 40 FCR 165; United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520; 83 ALR 79. In most Australian cases the friend’s participation is usually limited to a written brief, although on occasion the court may permit oral argument.

5.6.3 Use of the friend in Australia Unlike the United States where friends of the court are given statutory recognition, intervention by a friend is relatively rare in Australia. Further, the role of the friend has been limited

in Australian proceedings and there is no prescription of the circumstances in which it is proper for the court to hear a friend: United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520; 83 ALR 79. Government representatives or established public interest groups have been granted friend of the court status on few occasions: R v Murphy (1986) 5 NSW LR 18; 64 ALR 498 (President of the Senate); Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301; 118 ALR 80 (Public Interest Advocacy Centre); Lange v Australian Broadcasting Commission (1997) 189 CLR 520 (Media, Entertainment and Arts Alliance; Australian Press Council); Garcia v National Australia Bank Ltd (1998) 194 CLR 395 (Consumer Credit Legal Centre). In United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520; 83 ALR 79 at 98, the court suggested that there may be a role for a friend in situations where the interests of a disadvantaged person are otherwise insufficiently protected, or where the court would otherwise be without submissions on what appears to be an important question of law arising in the proceedings. In Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; 127 ALR 1 (see 1.2.6 ), the High Court denied the Public Interest Advocacy Centre leave to intervene as a friend of the court. Reasons were not given for the court’s decision. However, it has been suggested that the Attorney-General as represented by the Solicitor-General was seen by the court as representing the public interest: ALRC Report No 69, para 7.21. Amici curiae appear to play an extremely marginal role in High Court litigation. In the period June 2009–June 2014, there were only seven High Court cases in which amici made a submission, and in none of them did the judges’ reasons make any reference to the merits or otherwise of submissions by them. The Federal Court reports yield only 18 cases in which there was any reference to amici .

5.6.4 Expanding role of the friend The traditional view of friends of the court is that they appear solely to assist the court where a party or interest in the case is wholly [page 114] unrepresented. More recently, there has been a shift in the conception of the role and in some public interest cases a friend has been permitted to appear solely on the basis that an interest group has wanted to assert views and the court has considered it appropriate to hear these views. The ALRC (in Equality Before the Law: Women’s Equality , Report No 69, 1994, para 7.22 and Beyond the Door-keeper: Standing to Sue for Public Remedies , Report No 78, 1996, para 6.31) encouraged this latter role of the friend as an interest advocate. In each of the recent High Court cases where the court gave leave to amici to make submissions, the parties were represented.

Problem Ms Leng’s legs were broken as a result of a domestic violence incident which took place in Canberra. Her application for compensation was rejected by the compensation assessor on two grounds: in accordance with s 30(1)(a) of the Victims Compensation Act 2008 (Cth), that her behaviour and attitude had directly contributed to the injury she sustained. The assessor stated that although Ms Leng had the protection of an Apprehended Violence Order, she continued to have contact with Mr Leng and to engage in sexual relations with him contrary to the terms of the order; in accordance with s 30(1)(d) of the Victims Compensation Act 2008 (Cth), that Ms Leng had failed to provide reasonable assistance to the police in their investigation and arrest of Mr Leng. Although the police had applied for the order, Ms Leng continued to have contact with Mr Leng and only reported his breach of the order when she did not wish to see him. Ms Leng appealed the decision of the compensation assessor to the Administrative Appeals Tribunal (AAT) in accordance with s 36(1) of the Victims Compensation Act 2008 (Cth). The Tribunal affirmed the decision of the compensation assessor noting in the reasons for decision that: Women who knowingly and willingly breach apprehended violence orders should not then expect to obtain statutory compensation. To allow such women to receive compensation makes a mockery of the efforts of the police and the courts to protect women from domestic violence.

Ms Leng was unable to obtain legal aid to fund an appeal. She is exhausted by the process and has decided, on the recommendation of her medical doctor and psychologist, not to appeal the decision to the Federal Court. Consider whether either of the following applicants would have standing to test the legality of the decision under the ADJR Act (Cth). Provide reasons in each case: Ms Leng’s mother, Ms Elder, is outraged by the decisions and by her daughter’s refusal to pursue the matter further. Ms Elder has paid for much of her daughter’s medical treatment and wishes to be reimbursed for the significant amount of money spent. She paid the medical bills on the understanding that her daughter would seek compensation and repay her. Further, Ms Leng and her two daughters are now living with Ms Elder. Ms Elder is engaged in the full-time care of her daughter and providing much of the care for the two children. [page 115] The National Women’s Justice Coalition (NWJC) is concerned by the decision’s capacity to set a precedent which disentitles women living in domestic violence situations from obtaining compensation. The NWJC, established in February 1995, aims to promote women’s equality before the law. Its constitution notes that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men and the legal system’s tolerance of violence against women is a key issue in women’s legal subordination. The NWJC is an umbrella organisation which provides a forum for other women’s organisations with the same objectives. It coordinates national and international research in the area, operates a web site, regularly makes submissions to government and is currently

awaiting a decision from the Office of the Status of Women on its application for funding.

Resolution Introduction The decision for which review is sought is the decision of the AAT to refuse compensation. There is no doubt that had Ms Leng been able to continue with her matter, she would have standing to appeal the decision pursuant to s 44 of the AAT Act (Cth) as ‘a party to the proceedings’. The question asks you only to consider the issue of standing under the ADJR Act (Cth) as it relates to the NWJC and Ms Elder. A preliminary issue arises as to whether the court would hear the matter under the ADJR Act (Cth). Generally, appeals from AAT decisions are made pursuant to s 44 of the AAT Act (Cth). If an application is made under the ADJR Act, the court may exercise its s 10(2)(b) discretion not to hear the matter under the ADJR Act (Cth). However, s 44 of the AAT Act (Cth) provides a mechanism for appeal by ‘parties to the proceeding’ only. Neither Ms Elder nor the NWJC were parties to the proceedings before the AAT. They are therefore not entitled to appeal under s 44 of the AAT Act (Cth). It follows that the only avenue by which Ms Elder and the NWJC could seek judicial review of the AAT’s decision would be pursuant to the ADJR Act (Cth) or under the Judiciary Act 1903 (Cth). You should note that you are not asked about standing under the Judiciary Act, nor are you asked to consider what would happen if the court found that it could hear the application. As neither Ms Elder nor the NWJC have any statutory private rights in relation to the matter, you will need to illustrate how this legislation, governing the exercise of administrative powers in relation to compensation, is enacted to protect the public interest. Does the case involve private rather than public rights? The issues raised by this case may not be as unambiguously public as those raised by the environmental cases. Arguably, however, the decision made under this legislation has public implications as the denial of compensation to victims of domestic violence undermines the state and the public’s censure of this kind of violence. If we assume that the Attorney-General has refused to bring the action at the instance of Ms Elder or the NWJC, we will need to determine if either party is a ‘person aggrieved’. You will need to describe the statutory test for standing. Note that s 5 of the ADJR Act (Cth) provides that a person or organisation may have standing to challenge a decision to which the Act applies if they are a ‘person aggrieved’. This term is further [page 116] defined by s 3(4)(a)(i) as including ‘a person whose interests are adversely affected by the decision’. You should not write an essay on the law of standing but rather ensure that you identify the particular issues raised by the question and which parts of the law are relevant. You may choose to write an introductory paragraph which explains the discretionary nature of decisions on standing and how much of the case law under the ADJR Act (Cth) refers to the common law test reformulated in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; 28 ALR 257, that is, that the applicant has a ‘special interest in the subject matter of the action over and above that enjoyed by the public generally’. Despite some comments that the test under the ADJR Act (Cth) has broadened the standing requirements, the case law generally draws on the common law requirements. To be a ‘person aggrieved’, the applicant must ‘show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public’: Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64; 4 ALD 277.

Dealing with each applicant You should then deal with each applicant’s standing to bring the action. You will need to do more than merely apply the test of ‘person aggrieved’. Use the case law which is relevant to the issues raised by the question. Do not use cases indiscriminately. Your task is to explain why the given problem situation is analogous or distinguishable from the case authority. Do not cite a principle without citing its authority. a) Ms Elder

What is Ms Elder’s interest? Ms Elder’s only interest relates to the amount of money she has spent on her daughter’s health and the time, effort and money she is now expending on Ms Leng and her children as a consequence of the assault. Arguably Ms Elder’s interests are affected differently from other members of the public as she, unlike most members of the public, has suffered and will continue to suffer financial detriment as a consequence of the AAT’s decision. Ms Elder may be able to argue on the basis of the first exception derived from Boyce v Paddington Borough Council [1903] 1 Ch 109 that her private right has been interfered with at the same time as the public right of compensating victims of violence. Ms Elder may also rely on comments by Mason J in Australian Conservation Foundation Inc v Commonwealth (1980) at CLR 547; ALR 284 that a plaintiff will generally have standing ‘when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests … and perhaps to his social or political interests’. Ms Elder can indeed show damage to her economic and social interests as a result of this decision. Ms Elder would have to overcome the Australian Conservation Foundation Inc v Commonwealth (1980) hurdle and establish that her interest travels beyond the ‘mere intellectual or emotional concern’ which any person has as a member of the public. Ms Elder may be able to rely on her extensive financial expenditure as well as the time and effort involved in the care of Ms Leng and the children, as a means [page 117] of indicating that her claim is beyond a mere emotional interest. She may rely on comments by Gibbs J in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 530–1; 28 ALR 257 at 270: A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of

righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.

Indeed, should the action fail, Ms Elder will suffer further disadvantage as she will not be able to recoup the money spent on her daughter’s health nor will she receive any financial assistance to aid her in the care of her daughter.

Is there sufficient proximity between Ms Elder’s interest and the subject matter? As suggested in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; 36 ALR 425 there must be sufficient proximity between the applicant and the subject matter. The case law on this issue has considered the proximity between a group and the subject matter: North Coast Environmental Council Inc v Minister for Resources (No 2) (1994) 55 FCR 492; 127 ALR 61. This factor could be applied to Ms Elder by arguing that her financial and emotional expenditure demonstrate her specific concern with the assessor’s decision and the closeness of her relationship to the subject matter. Possibly counting in favour of Ms Elder’s claim to standing is the fact that the Victims Compensation Act 2008 (Cth) envisages the possibility that applications for compensation may be brought either by victims of crime or by others with ‘a genuine interest in the welfare of that victim’: s 25(1)(b). The implications of this are not altogether clear. On one hand it might be argued that since the application was made not by Ms Elder but by Ms Leng, Ms Elder no longer had a sufficient interest in the outcome of the case. On the other, it shows that her interest is one which the legislature regards as a special interest. Moreover at the very least, Ms Elder’s case can be distinguished from cases where people have been denied standing because the purposes they are attempting to achieve are inconsistent with, or unrelated to, the purposes of the Act. This is a case where Ms Elder is attempting to achieve a result which is directly consistent with the Act, namely the payment of benefits to a person who (she claims) is entitled to those benefits. This is not a case where Ms Elder’s purpose involves attempt to use the law to interfere with others’ common law rights (cf Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1994) 56 FCR 50 at 85; 128 ALR 238 per Gummow). Ms Elder would also need to be advised that if she were to succeed on the standing issue, the government would probably apply to have Ms Leng joined as a party in order to ensure that she be bound by any order the court might make. This application would succeed. If Ms Leng is psychologically incapable of participating in the litigation in any way, success in relation to the standing issue would be a pyrrhic victory. b) The National Women’s Justice Coalition (NWJC)

What is the NWJC’s interest? This organisation would have to overcome the Australian Conservation Foundation Inc v Commonwealth (1980) hurdle that their interest be more than a ‘mere intellectual [page 118] or emotional concern’. They may argue that, like the priests and teachers in Ogle v Strickland (1987) 13 FCR 306; 71 ALR 41, to repel decisions disadvantaging women who have experienced violence is a necessary incident of their vocation and professional calling and is therefore more than a ‘mere intellectual or emotional concern’. Although their objects of incorporation involve the promotion of equality for women and an awareness of the effects of violence on women’s inequality, Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1994) 56 FCR 50; 128 ALR 238 suggests that this on its own will not be sufficient to confer standing on the NWJC. The breadth of the goals of the NWJC may raise further difficulties. Commitment to equality may not be considered by the courts to be a ‘special interest’ distinct from the interests of ordinary members of the public.

The NWJC’s proximity to the subject matter? As the national umbrella organisation advocating the equality of women under the law, the NWJC may be able to argue that like the priests in Ogle v Strickland , they have a ‘closer proximity’ to the subject matter than other members of the community. The NWJC is dedicated to promoting women’s equality before the law and eradicating violence against women. They are concerned that this decision made under the Victims Compensation Act 2008 (Cth) has the propensity to further force women into a subordinate position compared with men and indicates the legal system’s tolerance of violence against women. In fact, in this instance, the legal system appears to be further punishing and subordinating women as it fails to acknowledge the complex experiences of domestic violence survivors. However, the question may arise whether the NWJC’s specific concern is violence against women or rather the more general concern for women’s equality before the law. The NWJC would have to argue that the two concerns are inextricably linked.

NWJC’s capacity to represent the public interest? The NWJC could argue, on the basis of the more recent and more generous cases of North Coast Environmental Council Inc v Minister for Resources (No 2) (1994) 36 ALD 533; 55 FCR 492; 127 ALR 61 and Australian Conservation Foundation Inc v Minister for Resources (1989) 19 ALD 70, that as the peak representative group undertaking the responsible role of advocating for women’s equality before the law, they have the capacity to represent the public interest and are recognised by ‘current community perceptions and values’ as capable of representing the public interest in this area. Their position is supported by their coordination of Australian and international research in the area and the many submissions submitted to government. Further, their website reveals numerous ‘hits’ indicating that they are responsible for collecting, maintaining and providing information to the public on this issue. It appears that they do not as yet have government funding, but the relevance of this has been doubted. At this stage, their position is similar to that of the Association in the Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1994) 56 FCR 50; 128 ALR 238. They are not seeking to intervene in a situation where no-one has standing, but in a situation where they are seeking a decision that the person with the strongest claim to standing does not seem to want pursued. This is a factor which the court may use to refute the NWJC’S capacity to represent the public interest. [page 119]

If standing is refused, would joinder be an appropriate approach for the NWJC? Section 12 of the ADJR Act (Cth) provides that ‘a person interested’ may apply to the court to be made a party to the application. This section does not confer a right to joinder but rather a right to the exercise of the court’s discretionary judgment: ADJR Act (Cth) s 12(2). But if the NWJC lacks standing, it can scarcely claim to have the interest needed for standing.

Conclusion Ms Elder appears more likely to be regarded as a ‘person aggrieved’ as she will clearly suffer financial detriment as a result of the assessor’s decision. On the existing case law, it seems unlikely that the NWJC would be regarded as a ‘person aggrieved’ or a ‘person interested’. Although their concerns are consistent with the scope and purpose of the legislation, their lack of government funding and the breadth of their goals may affect the court’s view of their capacity to represent the public interest on this issue. NWJC may seek appearance as a friend of the court. From the limited facts provided, NWJC would be presenting views as an interest advocate rather than on questions of law. The court will need to be persuaded that the arguments they wish to present would not otherwise be presented and would assist the court. Although friend of the court status is generally conferred on parties who are able to assist the court on a question of law arising in the proceedings, the court may decide to hear them or receive a written brief if it acts on the recommendation of the ALRC reference, Equality Before the Law: Women’s Equality , Report No 69, 1994, concerning the usefulness of the friend as an interest advocate.

Further tutorial discussion 1. In Report No 78 the ALRC recommended that any person should have standing to commence proceedings that have a public element subject only to two limitations: the provisions of any relevant legislation which provide otherwise; and where such litigation would unreasonably interfere with the ability of a person having a private interest in the matter to deal with it as he or she wishes. How can this recommendation be reconciled with the concerns noted by those who favour the narrow view of standing as discussed at 5.1.5 ? 2. A principal objective of the ‘New Administrative Law’ was to minimise the technical obstacles to review. How effective were the amendments to the laws of standing in achieving this objective? 3. Apart from the doctrine of standing, what are the barriers to public interest litigation and how can they be reduced? [page 120] 4. In Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1994) 56 FCR 50; 128 ALR 238 one of the factors which influenced the final decision was that the Australian government had not recognised the appellant as representing a particular public interest in the subject matter of the decision, nor had the appellant undertaken any research or other activities in the area. Do you think it is appropriate that the right to sue depends on whether an organisation receives government largesse? 5. W hat would be the effect of ‘open standing’ rules on the distribution of political power in Australia? 6. If Australian standing rules sometimes seem to be a mess, the same has been said of the United States rules: H W Perry, ‘Access to Justice: Procedure, Politiy, and Politics’ (2010) 22(3) Bond Law Review 191, 199–207. Is there something about standing rules which makes for messiness, and if so, what might it be?

Further reading Allars, M, ‘Standing: The Role and Evolution of the Test’ (1991) 20 Federal Law Review 83. Allars, M, Australian Administrative Law: Cases and Commentary , Butterworths, Sydney, 1997. Aronson, M and Dyer, B, Judicial Review of Administrative Action , 5th ed, Thomson Reuters, Sydney, 2013, ch 12. Australian Law Reform Commission, Beyond the Door-keeper: Standing to Sue for Public Remedies , Report No 78, AGPS, Canberra, 1996. Australian Law Reform Commission, Standing in Public Interest Litigation , Report No 27, AGPS, Canberra, 1985. Blokland, J, ‘A Feminist Amicus Brief in the Stolen Generations (NT) Litigation’ (1997) 3(89) Aboriginal Law Bulletin 10. Creyke, R, McMillan, J and Smyth, M, Control of Government Action: Text, Cases and Commentary , LexisNexis Butterworths, Sydney, 2013, ch 17. Douglas, R, ‘Uses of Standing Rules’ (2006) 14 Australian Journal of Administrative Law 22.

Douglas, R and Head, M, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014, ch 22. Edgar, A, ‘Extended Standing — Enhancing Accountability? Judicial Review of Commonwealth Environmental Decisions’ 39 Federal Law Review 435. Hounslow, B, ‘Limitations on the Public Use of Administrative Law: The Law of Standing’ in J McMillan (ed), Administrative Law: Does the Public Benefit? , Australian Institute of Administrative Law, Canberra, 1992, p 160. Mason, Sir A, ‘Future Directions in Australian Law’ (1987) 13(3) Monash University Law Review 149. [page 121] Maxwell, C, ‘In the Line of Fire: Re McBain and the Role of the Attorney-General as a Party’ (2002) 13 Public Law Review 283. Saunders, C and Rabbat, P, ‘Relator Actions; Practice in Australia and New Zealand’ (2002) 13 Australian Journal of Administrative Law 292. Spry, M, ‘A “Person Aggrieved” Under the ADJR Act: Three Recent Cases on Standing’ (1996) 3(2) Australian Journal of Administrative Law 120. W illheim, E, ‘Amici Curiae and Access to Constitutional Justice in the High Court of Australia’ (2010) 22 Bond Law Review 126.

[page 122]

6 Rule-making and Administrative Powers General In this chapter, we begin our examination of the grounds on which administrative activities can be reviewed. We begin with an overview of the topic. Somewhat artificially, we distinguish between review on the grounds that the administrator lacks the power to act in relation to a particular subject matter, and review on the grounds that the administrator has erred in exercising a discretionary power. In this chapter, we focus on the sources of discretionary powers. In later chapters, we focus on limits in relation to their exercise.

Objectives After studying this chapter, you will understand: 1. 2. 3. 4. 5. 6.

the grounds on which the exercise of bureaucratic power can be reviewed; the sources of bureaucratic rule-making powers; the sources of bureaucratic decision-making powers; the limitations on power imposed by statute and statutory interpretation; the importance of statutory interpretation; and the degree to which the exercise of power is predicated on compliance with procedures associated with its exercise.

1 Grounds for review: An introduction 6.1.1 Grounds for review Administrative law has come to recognise a number of circumstances which will constitute grounds for overturning administrative decisions. The Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR [page 123] Act) (which in many ways is a codification of the rules of administrative law) lists about 20 grounds for attacking the validity of an administrative decision. In addition, administrative law allows applications to be made in relation to decisionmaking processes, regardless of whether a decision has been made. Applications may also be made where administrators who are under a duty to act have failed to perform their duties. Most administrative law applications rely on a relatively small number of these grounds: error of law; taking irrelevant considerations into account, or not taking account of relevant ones; denial of procedural fairness; unreasonableness; and acting on the basis of inadequate evidence. Occasionally, challenges to the validity of administrative activity are based on the claim that the administrator had no power in relation to the subject matter of the activity or failed to comply with prescribed procedures; on the grounds of rigid application of policy or acting at the behest of another; or on the grounds that the decision maker acted for an improper purpose. Other grounds are rarely relied on. One rarely encounters cases where fraud is relied on or where it is claimed that the decision is void on the grounds of uncertainty. Cases based on the catch-all grounds ‘otherwise contrary to law’ or ‘otherwise an abuse of power’ are also rare and almost invariably unsuccessful. Most administrative law cases are based on flawed decisions or failure to follow prescribed procedures. Occasionally, however, the complaint is that an administrator has failed to perform a statutory duty.

6.1.2 Relationship between grounds If the grounds were clearly distinct, one could usefully examine them one by one. In fact, they are far from distinct. This stems partly from the fact that they all tend to be referable to an underlying ground rule: administrators may do only what they have been authorised to do and must do what they are required to do. A second reason is that, analytically, the grounds are closely related. For instance, if ‘mandatory’ procedures have not been complied with, an administrator does not have power to make the relevant decision. If an administrator acts on the basis of an erroneous interpretation of the law, the administrator is very likely to act either on the basis of irrelevant considerations or without regard to relevant ones, and may well

make decisions which no reasonable decision maker acting according to law would have made. In addition, the administrator will almost certainly have exceeded its statutory authority, since the statutes will not be construed as conferring a power to act on the basis of erroneous interpretations of law. An administrator who uses powers for private purposes is probably biased, and has certainly taken account of an irrelevant consideration. A failure to observe the rules of natural justice (or procedural fairness) may also constitute a failure to observe legislatively prescribed procedures.

6.1.3 Applications for review are therefore usually based on multiple grounds Indeed, it is common for applications for orders of review to be based on a number of grounds, each supported by similar facts. Overlap may also result from the fact that where an application is based on a number of grounds, applicants need normally succeed only on a single ground in order to achieve the order they seek. In cases [page 124] where the applicant succeeds, judges are usually careful to consider whether each ground has been made out, but if this does not matter, judges can become careless: see, for example, Buksh v Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 433 where Einfeld J, without real analysis, concluded in one sentence that eight different grounds had been made out. Judges may confuse the ingredients of one ground with those of another. Rather than discussing whether particular grounds have been made out, they may simply discuss whether there has been ‘legal error’, leaving it up to the avid readers of their judgments to guess the precise ground(s) on which the final order was based. In the individual case, this does not matter. Insofar as judgments constitute precedents, it can contribute to blurring of differences.

6.1.4 Classifying grounds Faced with large numbers of overlapping grounds, textbook writers can proceed in a variety of ways. One is to examine them doggedly, ground by ground, beginning with s 5(1)(a) of the ADJR Act (denial of natural justice) and ending with s 7 (refusal to perform a legal duty). (This is the standard practice for compilers of looseleaf services.) A second is to classify grounds. The ADJR Act includes at least one classification: grounds which amount to improper exercise of power (ss 5(1)(e), 6(1)(e)), and the other grounds listed in ss 5(1) and 6(1). Lord Diplock has distinguished between illegality, irrationality, and denial of natural justice: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410–11. Aronson and Dyer (Judicial Review of Administrative Action , 2nd ed, LBC Information Services, Sydney, 2000) distinguish between errors of law, errors of fact, irrationality, illegal outcomes and acting without power, and failing to afford procedural fairness. (They also use ‘irrationality’ in a different sense to Lord Diplock’s.) None of these categorisations is completely satisfactory. One reason is that the classificatory exercise necessarily involves a trade-offbetween simplicity and precision. A second is that a classification which is useful for some purposes may be of little use for others.

6.1.5 Our classification We shall divide the grounds into five categories: lack of power; failure to exercise discretionary powers; failure otherwise to act according to law and legally prescribed criteria; acting unreasonably and on the basis of inadequate evidence; and last, acting without having afforded procedural fairness. Our discussion is not exhaustive. Space limitations preclude the discussion of such rarely used grounds as uncertainty, fraud and the catch-all grounds. The distinction between lack of power and the other grounds is somewhat artificial, since the other grounds for review also amount to limits on administrators’ power. Broadly the lack of power issue involves the question of whether the administrator possessed power in relation to the subject matter to which they were acting. (It is covered by ss 5(1)(b), (c) and 6(1)(b), (c) in the ADJR Act and the analogous sections in the Australian Capital Territory, Queensland and Tasmanian Judicial Review Acts.) The other grounds relate to whether the power or duty was exercised properly. In terms of administrative law litigation, the ‘no power’ ground is rarely relied on and in this sense it is relatively unimportant. From the standpoint of administrative law and administrative practice, however, it is central. [page 125]

2 Sources of administrative powers 6.2.1 Types of powers From a political science perspective, administrators possess both legal and non-legal powers. Their legal powers are conditioned on their being able to point to some legal foundation for their claim to be entitled to exercise those powers. If they cannot point to a legal basis for their claim, they will not be able to rely on legal procedures to achieve compliance with their decisions. Nor will they have a legal defence when an aggrieved individual challenges their exercise of a particular power. Legal powers are not, however, the only source of administrative power. The use that can be made of a legal power may also depend on ‘political’ skills, such as the capacity to threaten, entice and persuade. This does not mean that legal definitions of power are unimportant: the scope for the exercise of political skills will increase with the degree of discretion conferred on administrators, and this will vary according to the legal definition of the administrator’s powers. Administrative powers may also, however, involve extra-legal elements (see, for example, P Bayne (generally) and J Bruer (public service recruitment) in J Halligan and R Wettenhall (eds), Hawke’s Third Government: Australian Commonwealth Administration 1987–1990 , University of Canberra and Royal Australian Institute of Public Administration (ACT), Canberra, 1992, pp 104, 290–91). Extra-legal exercises of power are vulnerable to legal challenge, and their vulnerability will be influenced, inter alia, by the degree to which the legal structure facilitates proof of administrative misbehaviour, and supports sanctions for those who exceed their legal powers. The law is therefore of considerable potential importance whether one is concerned with the nature of an

administrator’s legal powers, or with the administrator’s broader powers. In this chapter, we examine the structures whereby powers are allocated to administrators. For convenience, we distinguish between rule making and decision making in particular cases. W hile this distinction is a somewhat arbitrary one, it is one which is reflected in law and procedure, and, provided one recognises its weaknesses, it can constitute a useful distinction. We examine the statutory regimes which govern rule making and the legal recognition of less formal types of rule making. We also examine the way in which the law allocates decisionmaking powers in particular cases.

3 Bureaucratic rule making 6.3.1 Reasons for bureaucratic rule making The reasons why bureaucracies make rules are several-fold and contradictory. Bureaucratic rule making is a condition for effective parliamentary control of bureaucracy, while simultaneously threatening such control. It is needed for flexibility, but also to achieve predictability. The reason parliament depends on bureaucratic rule making is that parliament is simply not able to make all the rules needed to order bureaucratic behaviour. Were it to try to do so, it would have to find the time and resources thereby required. Resources [page 126] might be available. Time, however, is finite and modern politicians have pitifully little spare time. More time spent considering rules would almost certainly mean less time available for considering more important issues. This implies a trade-off. For the legislature to be effective, it must use its scarce resources where they will do most good. Sacrificing a degree of control is a condition for maximising overall control. The problem is, of course, to devise methods whereby proposed rules can be sifted so that parliament’s resources are well spent. This problem is aggravated by governments’ ambivalence towards parliamentary supervision of bureaucratic rule making.

6.3.2 Flexibility The need for flexibility stems from the fact that the implications of a given law may change according to the external environment. Court decisions may mean that legislation does not have the effects which law makers and administrators thought it did. Problems may arise which were not anticipated by law makers. If parliament could move quickly to fill the gaps in question, this would not matter. However, parliament is often not in session and, even when it is, its capacity to handle new legislation is limited. Gap-filling legislation may have to wait until more urgent legislation is passed. W hile retrospective legislation may overcome delay problems, this can be an unsatisfactory solution, given the uncertainty which will exist between the time when the legislation is announced, and the time (if any) at which it is passed. Flexibility can, of course, be achieved by the conferral of broad decision-making powers on decision makers. However, broad discretions can be unsatisfactory. They can create uncertainty and insecurity. Open-ended power complicates decision making, and complicates the giving of reasons for decisions. It can arouse discontent on the part of those affected by discretionary decisions insofar as they may become aware that others affected by the exercise of the same power have apparently and for no good reasons been treated differently. Rules therefore tend to help both administrators and those affected by their decisions.

6.3.3 Source of rule-making power: Statute The most formal recognition of the need to permit bureaucratic rule making is found in statutory provisions permitting the making of rules which, if properly made, enjoy a similar legal status to statutes. These are summarised below ( Table 6.1 ). In each Australian jurisdiction, there are procedures whereby such rules can be formally made. Rule making is normally regulated by a number of statutes. The power to make rules in relation to a particular piece of legislation will be conferred in the relevant statute (usually, but not invariably, towards the end). The relevant section(s) will specify who may make what kind of rules in relation to what. Other legislation may specify the procedure for the making, and effect of, these rules. In some jurisdictions there is a single piece of legislation which covers these matters. In others, there are several. In Tasmania, one Act covers consultation, a second covers publication, and a third covers disallowance of rules by parliament. Terminology used in such legislation varies across jurisdictions. Key terms include ‘legislative instruments’, ‘regulations’, ‘subordinate laws’, ‘subordinate legislation’, ‘statutory rules’ and ‘subsidiary legislation’. These terms are themselves defined in a variety of ways. W e shall use the term ‘subordinate laws’ to describe rules [page 127]

Table 6.1: General rules with respect to subordinate legislation

[page 128]

[page 129]

[page 130] made pursuant to a statutory rule-making power. Some jurisdictions use a variety of terms to describe rules which fall within the rubric of subordinate laws. In some cases, these reflect the nature of the rule maker. The laws made by courts to govern their procedures are described as ‘rules’. The laws made by local governments are described by terms such as ‘by-laws’ or ‘local laws’. However, the power to make ‘rules’ and ‘by-laws’ may also be conferred on non-judicial and unelected bodies, and courts and councils may be given powers to make laws other than rules and by-laws/local laws. And repositories of executive power may be given the power to make subordinate laws which go under a variety of labels. The importance of categories lies in the fact that the categorisation of a rule determines the procedures which must be followed in making that rule. The rulemaking process is largely regulated by general pieces of legislation: see Table 6.1 above). These specify procedures for making certain kinds of rules and the rigour of the standards is normally determined by the label used for the rules in question. This has traditionally meant that the making of ‘regulations’ is subject to more rigorous procedures than those governing the making of ‘statutory rules’. Conceptually this is unsatisfactory since it means that the government might be able to increase its lawmaking powers by describing the subordinate laws as, say, ‘statutory rules’ rather than regulations, notwithstanding that their impact warranted strict supervision. There are two solutions to this problem. The first is to condition rulemaking procedures on substantive criteria rather than arbitrarily chosen labels. The second is to rely on parliament to ensure that labels are used to ensure that the rules in question are subject to procedures which reflect the importance of the interests which the rule could affect. Until 2003, Australian jurisdictions all relied on parliament to ensure that rules are labelled in such a way as to condition their making and publicity on proportionate procedures. However, in 2003, the Commonwealth abaondoned this model. The Legislative Instruments Act 2003 (Cth) conditioned the procedures for review and publicity not on the label used for the subordinate instrument, but on whether it was ‘of a legislative character’. Section 5(2) of the Legislative Instruments Bill 2003 (Cth) states that an instrument is taken to be of a legislative character if: (a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and (b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right. This is conceptually elegant, but it is not always easy to apply. The Act therefore contains further provisions stating that particular measures are or are not legislative in character for the purposes of the Act, and it provides a procedure whereby a ‘rule’ maker can seek an authoritative ruling as to the nature of a proposed ‘rule’. The substantive importance of the provision is qualified by the fact that legislation can provide that instruments made pursuant to it are or are not ‘legislative’: ss 16 and 17. Victoria has followed the Commonwealth’s example, but its legislation provides little guidance as to what is meant by ‘legislative character’. Queensland achieves a [page 131] somewhat similar result by defining ‘subordinate legislation’ to include ‘a statutory rule that is a regulation, rule, by-law, ordinance or statute’ and in addition, ‘a statutory rule that is an order in council or proclamation of a legislative character’: Statutory Instruments Act 1992 (Qld) s 9. The Australian Capital Territory makes reference to ‘legislative instruments’, but defines this term on the basis of the instrument’s label rather than its ‘legislative character’: Legislation Act 2001 (ACT) s 12. Otherwise the states and territories have been reluctant to follow the

Commonwealth’s example.

6.3.4 Publication Subordinate laws come into effective operation only after they have been ‘published’. The publication demand is easily satisfied (see Table 6.1 above). In relation to much subordinate legislation, the publication requirement is satisfied by publication of a notice stating that the legislation has been made, and where copies of it may be obtained. Exceptionally (and in relation to all New South Wales statutory rules), the legislation should be set out in full. In Tasmania, failure to publish subordinate legislation makes that legislation void. Elsewhere subordinate legislation operates to impose liabilities or to defeat prior rights only after its publication.

6.3.5 Disallowance by parliament Parliament’s power to disallow subordinate legislation derives from legislation, and in the early years of the Commonwealth, there was still debate about whether Ministerial rules should be subject to disallowance, and while the parliament determined that they should, the disallowance power under the Customs Act 1901 (Cth) required a resolution to that effect from each, rather than one, House: G S Reid and Martyn Forrest, Australia’s Commonwealth Parliament 1901–1988 , Melbourne University Press, Carlton, 1988, pp 222–3. Initially, disallowance procedures were prescribed by the Act under which the rules were made. They are now governed by general legislation, but this does not preclude special regimes under particular Acts. See, for example, the subsequently repealed Firearms Amendment Act 1987 (Vic) s 17(2), and Firearms (Amendment) Act 1988 (Vic) s 17, each of which provided that regulations made under the Act were to be subject to special and more onerous provisions than those then applying to regulations in general. W hen a subordinate law is subject to disallowance by parliament, it must be laid before each House of parliament within a specified number of days from the time it is made. (For details, see Table 6.1 above.) W ithin a specified number of sitting days after that day, a member of either house may move that the law be disallowed. If, following the expiry of that period, there has been no motion of disallowance, the rule ceases to be liable to disallowance. If there has been a motion for disallowance, the implications vary across jurisdictions. Under Commonwealth and Australian Capital Territory law, once the prescribed number of sitting days has elapsed, the rule is disallowed unless the motion is either withdrawn or defeated. For examples of cases where instruments have been disallowed by effluxion of time, following notice to disallow, see Odgers’ Australian Senate Practice , 13th ed, < www.aph.gov.au/About_Parliament/Powers_practice_n_procedures > para 15.6. Elsewhere the rule is liable to disallowance only if the disallowance motion is passed. In [page 132] Victoria the Scrutiny Committee may recommend that the operation of a regulation be suspended. Such recommendations take effect seven days from its communication to the Governor, unless the Governor declares otherwise: Subordinate Legislation Act 1994 (Vic) s 22 (SLA). Disallowance and suspension have prospective effects only. Acts done under the rule prior to its disallowance continue to have legal effect. Failure to lay a regulation before a House of parliament does not invalidate the regulation, but in most jurisdictions, it means that it ceases to have effect after the prescribed number of sitting days has elapsed: Thorpe v Minister for Aboriginal Affairs (1990) 26 FCR 325; 97 ALR 543. In New South Wales, South Australia and Victoria, untabled subordinate laws continue to have effect even after the deadline for tabling has passed. Such laws may nonetheless be disallowed. In Victoria, the Scrutiny Committee may report the failure to table to each house: SLA s 15(2).

6.3.6 Supervisory arrangements The effectiveness of these procedures depends in the first instance on the degree to which enabling legislation makes subordinate legislation disallowable. It is also heavily dependent on the degree to which parliamentarians become aware of rules which they might find distasteful. Crucial therefore are the institutional arrangements which parliaments have devised for minimising the likelihood that unpalatable rules will sneak through the system unnoticed. Cynics might expect governments to use their numbers to discourage the establishment of such arrangements. However, while governments may be wary of empowering oppositions, they may also be aware that powers which they can use can also be used by oppositions in the event of their coming to power. They may also be aware that arrangements which strengthen the powers of parliament can strengthen the powers not only of oppositions against government, but of politicians as against administrators. In any case, they may have no choice: recalcitrant upper houses may use their powers to establish such arrangements. One form of supervision involves supervision by a specialist house or parliamentary committee, the longest established of which is the Senate Regulations and Ordinances Standing Committee established by Standing Order to review regulations. In several jurisdictions, legislation makes specific provision for such supervision (see Table 6.1 above). Even in the absence of such provision, review committees play an important role in the review process in all jurisdictions. The Senate Standing Committee on Regulations and Ordinances is required to scrutinise each instrument to ensure: (a) that it is in accordance with the statute; (b) that it does not trespass unduly on personal rights and liberties; (c) that it does not unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of the merits by a judicial or other independent tribunal; and (d) that it does not contain matter more appropriate for parliamentary enactment: Senate Standing Orders 23(3). Other committees operate under similar rules. To operate effectively, such committees treat their task as technical rather than political. Given their terms

[page 133] of reference, their task must necessarily involve an element of politics. However, the committees have achieved a reputation for non-partisanship, and have enjoyed bipartisan support: see, for example, G S Reid and M Forrest, Australia’s Commmonwealth Parliament 1901–1988 , Melbourne University Press, Parkville, 1989, p 228. Disallowance motions from the Senate Committee have without exception been adopted by the Senate: Odgers’ Australian Senate Practice , 13th ed, Department of Senate, Canberra para 15.6 < www.aph.gov.au/About_Parliament/Powers_practice_n_procedures > .

6.3.7 Community/interest group consultation Three states (New South Wales, Tasmania and Victoria) have gone further. In addition to institutionalising committee supervision, they have established procedures for soliciting public input in relation to proposed rules. The relevant process first involves notification being given of an intent to make a rule, coupled with the making of a ‘Regulatory Impact Statement’. This is to be followed by a period during which the relevant minister is to consult and consider the public’s reaction to the proposed rule. Rule makers are not always required to comply with these procedures. Provisions exist whereby proposed subordinate legislation can be made without complying with the normal notification and consultation procedures. Those who avail themselves of these procedures will normally have to account for their decision by notifying the relevant parliamentary committee. A fourth, Queensland, made provision for consultation, but subsequently repealed the relevant provisions (which in any case came close to making the provisions no more than exhortatory). Australian Capital Territory law provides for Regulatory Impact Statements, but does not require consultation: Legislation Act 2001 (ACT). The original Commonwealth Legislative Instruments Bill provided for an elaborate consultation regime. This was watered down in successive drafts, and the Act does not require the preparation of Regulatory Impact Statements. It requires consultation to the rule maker’s satisfaction, but only if the instrument affects business, or weakens competition: s17. But failure to consult does not affect the validty or enforceability of the instrument: s 19. The sanctions for failure to consult are to be political rather than legal. In any case, even where consultation requirements are more explicit, they coexist with rules which state that the validity of subordinate laws is not dependent on whether prescribed consultation procedures have been observed. This might seem odd. However, consultation requirements may nonetheless guide rule makers. They create duties which are — at least theoretically — enforceable. The reason for not conditioning validity on consultation seems to be as follows. If inadequate consultation meant that subordinate rules were invalid, people wishing to rely on the validity of the rules would need to inquire into the nature of the relevant consultation procedures. For most people, this would be impractical. It is better that certainty should surround the rules than that there should have been adequate consultation, and in any case, there are normally good political reasons for consulting.

6.3.8 Death at dusk A further safeguard involves the use of sunset clauses. These provide that subordinate legislation expires after the expiry of a specified period [page 134] from its making. (For more details, see Table 6.1 .) If subordinate legislation is to continue to have effect, the government must make a conscious decision that it be renewed prior to the expiry of that period. The effectiveness of such clauses will obviously depend on the degree to which the reactivation process involves real consideration being given to the rules in question. Even when the general law relating to the making of subordinate legislation does not provide for the automatic repeal of subordinate laws after a particular time, specific pieces of legislation may do so. For example, the Criminal Code Act 1995 (Cth) provides that regulations declaring particular organisations to be ‘terrorist organisations’ cease to have effect two years after their making: s 102.1. Sunset clauses have one possibly unanticipated effect. They mean that a government with a majority in only the lower House may effectively be able to repeal rules which are not to its liking by simply doing nothing as the rules reach their 10th birthday. In this manner it may be able to ensure that legislation which is not to its liking becomes effectively inoperative.

6.3.9 Accessibility One of the major problems with subordinate legislation used to be that tracking it down can be an extremely tedious and complex activity. Even when it could be tracked down, it was often available only in unreprinted, userhostile forms. Sunset clauses alleviate the position a little (since it is no longer necessary to browse through more than 10 years of regulations). More importantly, however, the internet has revolutionised access to subordinate laws, which can now be accessed at official sites. At the better sites, it is possible to access not only current versions, but earlier versions, which can be important for those whose rights, duties and interests may be governed by older versions of the law. Laws on these sites do not necessarily have official status, but recent legislation has made electronic versions of the law authoritative. The Legislative Instruments Act 2003 (Cth), the Legislation Act 2001 (ACT) and the Subordinate Legislation Act 1989 (NSW ) make express provision for this.

6.3.10 Hybrids The effect of this legislation is to provide mechanisms whereby statute can be supplemented by a subsidiary form of legislation. However, rules made pursuant to these powers represent only one of the forms that bureaucratic rule making can take. First, there are powers to make quasi-laws, free from the constraints which govern regulation making and even from those which govern the making of subordinate laws in general. Commonwealth legislation provides some examples of these hybrids. Hundreds of provisions in Commonwealth Acts make provision for the giving of guidelines or directions, or for the setting out of principles. Sometimes there are disallowable instruments, but this is not the case for the guidelines which govern the exercise of

discretion in relation to some of the Commonwealth’s most important functions. See, for instance, the Migration Act 1958 (Cth) s 499 which gives the minister the power to give general policy directions to those exercising powers under the Act. Under the Social Security (Administration) Act 1999 (Cth) s 9, the minister may prepare a written statement of government policy relating to the administration of the social security law, and officers and the Social Security Appeals Tribunal must have regard to these [page 135] in the exercise of their powers. The Australian Security Intelligence Organisation Act 1979 (Cth) s 8A empowers the making of non-disallowable guidelines. Each of the above instruments must be tabled (subject to an exception in relation to ASIO guidelines where security might be threatened), but none is disallowable. The Taxation Administration Act 1953 (Cth) Sch 1 Div 358 permits the making of public rulings in relation to taxation law. In several states the Civil and Administrative Tribunals are required to apply written ministerial policies or at least to take them into account: see above 2.2.8 – 2.2.9 . And it is not only the executive which possesses guideline making powers. Courts may and do supplement their procedural rules with practice directions.

6.3.11 Informal policy Second, bureaucratic rule making is not restricted to the making of rules which have the force of law. Legal rules enjoy obvious authority. They will tend to be taken seriously by bureaucrats, both because bureaucrats tend to respect law, and because the legal status of a rule means that it can be relied on as ammunition in the event of litigation to which it is material. However, rules with full legal authority are not the only form of rule to enjoy ‘authority’. Bureaucracies’ functioning is facilitated by systems of bureaucratic rules and quasi-rules which operate simultaneously with rules which enjoy full legal authority. These ‘nonlegal’ rules take a variety of forms: see, for instance, D Clark, ‘Informal Policy and Administrative Law’ (1997) 12 AIAL Forum 30 at 31. They may be embodied in written form in departmental manuals. They may be embodied in formal pronouncements about how administrators intend to apply particular pieces of legislation. They may take the form of policy: general statements about how it is intended that powers and discretions will normally be exercised. Policies may be drawn up by ministers or administrators. Their importance has increased with the advent of Freedom of Information legislation which requires that they be available to those who might wish to examine them, and that people are not to be disadvantaged by the application to their matters of unpublished guidelines or practices: see, for example, Freedom of Information Act 1982 (Vic) s 9. Supplementing these rules may be cultural norms which evolve within a branch of the bureaucracy and which govern administrators’ behaviour by subtly influencing administrators’ concepts about ways of doing things. We might term this ‘administrative lore’. These ‘non-legal’ rules enjoy varying degrees of legal authority. There may be an explicit conferral of the power to make ‘non-legal’ rules. As noted above, legislation may confer explicit powers to make guidelines or to give general directions. Law may also attach consequences to the fact that these rules have been made, especially when they have been made pursuant to an express rule-making power. For instance, consider policy. As we shall see later, administrators must not assume they are rigidly bound by policy. They may apply it, but in applying it, they must be willing to depart from it if this is what circumstances require. In general, however, they should take it into account, for policy makes for consistency, and consistency is an element of good administration (just, of course, as it is an element of good adjudication): see, for example, Brennan J’s decision in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Some policies are more equal than others. Statutes privilege some policies. In some circumstances, statutes require that ministerial [page 136] policies be applied by administrators. Judges have also developed rules in relation to policies, especially in the context of Administrative Appeals Tribunal decision making. Ministerial policy is to be accorded considerable respect, since ministers are politically answerable for such policies. Policy which is formally proclaimed is entitled to considerable weight for the same reason, and also because it is more likely to produce consistency. It is even possible that failure by a decision maker to have regard to a relevant policy or failure to interpret the policy ‘correctly’ may amount to legal error: Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1987) 14 ALD 351 at 363 per Davies J; New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 38 ALD 573; 59 FCR 369 at 387, 388 per Hill J. This, however, involves the questionable assumption that the relevant decision makers are legally obliged to take account of policy. If they are not, it is hard to see why failure to do so properly of itself involves an error of law or a failure to take account of a legally relevant consideration. Non-legal rules may lend legal legitimacy to administrative behaviour. Moreover, policies may also be relied on by the citizen. The effects of reliance are unclear. They cannot bind a decision maker to act outside powers, nor can they require a decision maker to make a decision that would not be the correct and preferable one. There was a period during which ministerial undertakings to act fairly were held to give rise to a right to procedural fairness. The relevant decisions have largely been whittled away, but not to the point where a person entitled to procedural fairness in the context of a given decision would have no redress if government policy wrongly led to his or her failure to address certain issues, having concluded that there would be no need to do so. However, while those who rely on policies may have some redress, policies may be changed without advance notice to those adversely affected: Peninsula Anglican Boys’ School v Ryan (1985) 8 ALD 418; 7 FCR 415.

6.3.12 ‘Illegal’ policies Insofar as informal rules enjoy legal status, they do so only insofar as they are within the

rule maker’s powers. Insofar as there is conflict between what the law and the informal rule require, the law will prevail — if the matter goes to trial. Green v Daniels (1977) 51 ALJR 463; 13 ALR 1 provides an example of an unlawful policy. At the relevant time, people were entitled to unemployment benefits if the Director-General was satisfied that specified conditions were satisfied. Under the legislation, a person who was intending to return to study at the end of the Christmas vacation was not eligible for benefits. The department’s manual provided that as a general rule, no unemployment benefits were to be paid to school leavers until the commencement of the following school year. Stephen J held that this policy was inconsistent with the Act, insofar as it meant the denial of benefits to many people who would have been entitled to benefits under the Act. The fact that it dealt with the problem of people who claimed benefits and subsequently returned to school did not justify the policy. There were other methods to deal with such people, and abuse of the system by those not entitled to benefits did not justify the denial of benefits to those with legitimate claims. In that case, the relevant discretion was one which was closely confined by statute. Entitlement arose once the Director-General or delegate was satisfied that [page 137] conditions had been met. Thus, the only discretion that existed was in relation to the decisions as to whether the conditions were met. The Director-General might formulate a policy in relation to the kind of circumstances to be taken into account in determining whether a condition was met, but not one which could entail the denial of benefits in cases where delegates were or should have been satisfied that the statutory conditions were met. A government cannot therefore rely on a manual or a policy to justify its having done things which are beyond its powers. Indeed, a policy of acting extra-legally only makes things worse. However, it is important to note that even ‘unlawful’ rules may nonetheless enjoy considerable extra-legal authority. For ‘authority’ does not come from law alone. In reality the authority of rules is derived from the degree to which people are willing to accord them authority. Administrators may be willing to afford rules authority even where those rules are, in some respects, unlawful, especially if this is not apparent, but even when there are grounds for suspecting that the rule might be unlawful: Carney (1989, p 128). Moreover those who deal with administrators may be willing to take administrative rules for granted, or sufficiently willing to do so to ensure that even among an agency’s clients, the rules enjoy a form of authority.

4 Repositories of power 6.4.1 The need to delegate Rule-making power is not the only form of power to be delegated. Most modern legislation also delegates the power to make decisions in relation to particular matters. Statutes frequently confer powers on relatively senior officials: the governor in council, ministers, or senior administrators. Such conferrals are in the best traditions of responsible government, but in the absence of some delegation they would normally not be practical. Repositories of power may not be in a position to exercise powers at a particular time: they may be ill, overseas, or otherwise occupied. Nor may repositories of power have the time to exercise particular powers. The Minister for Immigration will not be in a position to make informed decisions in relation to each application for residency status in Australia, nor possibly even in relation to such potentially life and death matters as refugee applications. For this reason, legislation normally permits the formal repository of decisionmaking powers to delegate that power to others. Such provisions serve several functions. First they pay lipservice to the doctrine of ministerial responsibility: while the minister may no longer be the decision maker, the minister is at least formally responsible for selecting the decision makers. Second, they make bureaucracy workable.

6.4.2 Delegation Delegation is normally governed both by particular pieces of legislation which confer a power to delegate in relation to specified decisions under the particular Act, along with general provisions which govern the procedures for delegating in the absence of specific provisions in an Act conferring a power to delegate. General provisions are to be found in Acts Interpretation Acts and their equivalents: see, for example, Acts Interpretation Act 1901 (Cth) ss 34AA, 34AB, [page 138] 34A; Interpretation Act 1987 (NSW ) s 49; Interpretation of Legislation Act 1984 (Vic) ss 42 and 42A. Practices vary somewhat from jurisdiction to jurisdiction. As a general rule, the following principles apply. Delegation may be to a particular person or to the incumbent of a particular office in which case it is to the person holding that office from time to time. A delegation remains effective even after the delegator has ceased to hold office. A delegation may be revoked. Valid delegation shall be presumed in the absence of proof to the contrary. Delegation does not deprive the delegator of the power to perform the delegated function. W here the exercise of a power is conditioned on the repository’s beliefs, the relevant beliefs when a delegate performs that function are the delegate’s. Delegation is always subject to statute. Under the Migration Act 1958 (Cth) s 496, for example, delegates are, in the exercise of their power, subject to directions from the minister.

6.4.3 Sub-delegation Those to whom power is delegated are presumed not to be empowered to delegate their power to a sub-delegate, but this presumption is rebuttable. In some jurisdictions, interpretation legislation includes provisions to this effect which operate in the absence of an indication to the contrary in any particular

piece of legislation: for example, Acts Interpretation Act 1901 (Cth) s 34AB; Legislation Act 2001 (ACT) s 236; Interpretation Act 1987 (NSW ) s 49(10); Acts Interpretation Act 1954 (Qld) s 27A(12). A similar result is achieved by the practice of using formulae whereby the power delegated is expressed to exclude the power to delegate. Northern Territory, South Australian, Tasmanian, Victorian and Western Australian Acts employ this practice.

6.4.4 Agents An alternative to delegation is the appointment of a person as an agent of the formal decision maker. The difference between a delegate and an agent lies in the fact that delegates act in their own name as delegates. Agents act in the name of the person who appoints them as agents: Re Reference under Ombudsman Act; Ex parte Director-General of Social Services (1979) 2 ALD 86 at 94 per Brennan J. A person who appoints delegates is not legally responsible for their acts unless the relevant provision states otherwise. The person who appoints an agent is liable. The practical importance of this difference is slight. The power to appoint an agent, like the power to delegate, is one which could be expressly conferred. In practice, such powers are not expressly conferred, and their existence is a matter for inference. If the power is such as to warrant an inference that it must be exercised personally, the repository may not act through an agent. If it is such that it is not reasonable to expect the repository of the power to exercise it personally, a power to act through agents may be inferred: Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; Ex parte Forster; Re University of Sydney (1963) 63 SR (NSW ) 723. W here statutes confer powers of delegation, they will normally be treated as impliedly not conferring powers to appoint agents: the power to delegate is taken as implying that there is no need for an additional power to appoint agents: O’Reilly v Commissioners of State Bank of Victoria (1982) 153 CLR 1; 44 ALR 27. Since most statutes confer powers of delegation where a function is such that administrative exigencies require that it be exercised by a delegate or agent, it is rarely necessary for courts to decide whether there is an implied power to act through agents. The [page 139] issue did, however, arise in O’Reilly . In that case, the issue was whether a Deputy Commissioner of Taxation could authorise officers occupying or performing the duties of Chief Investigating Officer to perform certain functions. The authorisation permitted the officers in question to act in the Deputy Commissioner’s name, and sign documents with a rubber stamp facsimile of his signature. Legislation conferred on the Commissioner the power to delegate powers to other officers including the Deputy Commissioners, but expressly provided that the power to delegate could not itself be delegated. It was not therefore possible for the Deputy Commissioner to delegate his powers. Mason J held that the legislation precluded delegates from authorising others to act on their behalf. If it was appropriate that particular officers exercise powers, the solution was for the Commissioner to delegate powers to those officials as provided by the Act. Moreover, while it might be appropriate for a delegate to authorise another officer to perform a purely mechanical function, it was not appropriate that there be an authorisation to perform a function which required the exercise of an important discretion. The majority (Gibbs CJ, Murphy and W ilson JJ) rejected this reasoning. The tasks to be performed by the Deputy Commissioner were such that they could be performed only if the Deputy Commissioner could act through agents. It was not appropriate to require that the Deputy Commissioner’s tasks be performed only by him and those to whom the Commissioner might delegate powers. The Act envisaged that its administration be decentralised, with Deputy Commissioners being responsible for particular geographical areas. This was inconsistent with an interpretation of the legislation which meant that the powers of the Deputy Commissioner could be exercised by other persons only if they had been conferred on that other person by the Commissioner. This is a striking example of a court’s willingness to find that a repository of a power possessed an implied power to authorise an agent to exercise the repository’s powers. W hile its status was obviously weakened by the fact that it is a decision of a four-person court (a fifth judge heard the case but died before giving judgment), its authority was subsequently accepted by one of the dissentients, Mason J, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 38. Moreover, the case averted the confusion that might have resulted from a finding otherwise: for millions of notices had gone out over Deputy Commissioners’ rubber stamped signatures.

6.4.5 Multi-person decision making The power to act through an agent is particularly important in cases where the formal decision maker is partly dependent on other administrators. Bureaucratic decision making may, in reality, be a collective enterprise. There will be a formal decision maker, but the formal decision maker may well be someone who works from a file, the contents of which have been compiled by others. Those others may have displayed varying degrees of competence and integrity in gathering the material together. In the process of doing so, they may have exercised various discretions, the effect of which is such that the formal decision maker’s decision differs from what it would have been had the formal decision maker conducted the whole inquiry. Decisions may, in practice, be made by a number of administrators, notwithstanding that they are formally the decision of a particular official. By treating these unofficial power exercisers [page 140] as agents of the formal repository, administrative law is able to accommodate the complexity of many decisionmaking processes. Material errors of unofficial delegates who assist in the decision-making process can be treated as those of the repository. The degree to which formal repositories of power can rely on others will turn on a general assessment of the

degree to which it is appropriate for the formal decision maker to rely on others. If the power is one which it is appropriate that the formal repository of the power exercise personally, then the repository must make the decision. Even then, the repository may well be entitled to act on the basis of information which has been gathered and processed by others, so long as the material is presented in a manner which means that the repository is making a properly informed decision. However, courts will have to decide whether the nature of the function is such that it might be performed other than by the repository of the power, and if so, whether the function has been performed in such a way that the formal decision maker can make an informed choice. This calls for judgment, both as to the nature of the decision, and as to the degree to which the information presented accurately embodies the material before the decision-making collectivity. Cases where the decision has been held to be one for the formal repository of the power include Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299 (decision in relation to land claim flawed because minister not aware of mining company’s relevant interests); and Tickner v Chapman (1995) 57 FCR 451; 133 ALR 226 (minister could not effectively delegate a decision in relation to alleged ‘secret women’s business’ to a female agent). On the other hand, implicit in O’Reilly v Commissioners of State Bank of Victoria (1982) 153 CLR 1; 44 ALR 27 is the existence of some cases where a decision might be valid notwithstanding that the formal repository of the relevant power is not even aware that it has been made.

5 Determining whether powers have been exceeded 6.5.1 Introduction In order to determine whether an administrator possesses a particular power, it is normally necessary to examine the statutory foundations of the power in question. This involves attention to the nature of the power that has been conferred; the repository of the power; and the procedures prescribed in relation to the exercise of the power. The nature of the power is determined by reference to the relevant legislation. It will often be clear from the wording of the legislation that a particular act lies within (or less frequently beyond) the powers conferred. Occasionally, however, it will not be sufficient to rely on the language by which the power is conferred. The statute may be ambiguous on its face, and in any case, must be interpreted on the basis of a variety of presumptions. The most important of these are the presumption in favour of a meaning which gives effect to the statute, and the presumption that in the absence of clear language indicating otherwise, statutes are not intended to abridge common law rights and principles. Applying these principles can be difficult: see, for example, Paull v Munday (1976) 50 ALJR 551; 9 ALR 245 (where a divided High Court allowed an appeal against a [page 141] divided Full Court); Foley v Padley (1984) 154 CLR 349; 54 ALR 609 (where the High Court majority seemed uncharacteristically indifferent to civil liberties issues). A more recent example is Plaintiff M47/2012 v DirectorGeneral of Security [2012] HCA 46; 292 ALR 243, a case where the validity of a regulation governing the criteria for visas turned on whether it could be justified in terms of a broadly stated power to make regulations with respect to the criteria for visas, or whether the exercise of that power was to be read down on the basis that a broad interpretation of the visa power would enable the government to bypass the Act’s safeguards governing the issue of visas to, and the deportation of, applicants for protection visas. The High Court split 4–3 on the issue, holding that the regulation was invalid on the grounds of its inconsistency with the Migration Act 1958 (Cth). Decisions on the visa issue cannot be explained simply in terms of the value attached to civil liberties: of the three dissenters on the visa issue, two held that the plaintiff’s detention was unconstitutional.

6 Complying with procedures 6.6.1 Mandatory and directory procedural requirements W hile administrative law normally requires that administrators act strictly within their statutory powers, it is not quite so insistent that they comply strictly with prescribed procedures. Historically a distinction was drawn between ‘mandatory’ and ‘directory’ requirements. Conceptually, the distinction between mandatory and directory requirements was simple. The former were requirements whose satisfaction is a legal precondition for the subsequent exercise of the relevant power. The latter were not, at least when there had been substantial compliance, and possibly even where there had not. The High Court has dismissed this distinction as unhelpful, since its historic use was tautological, the classification in effect being inferred from the outcome it was used to explain. W hat matters is whether there is a legislative intention that compliance with procedural prescriptions be a condition precedent to the exercise of a power. If so, failure to comply renders the decision a nullity. Otherwise, the decision survives: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490 at CLR 374–75 per Brennan CJ, 368–9 per McHugh, Gummow, Kirby and Hayne JJ. However, even when a failure to comply with a procedural requirement does not make a decision invalid, it may warrant orders requiring compliance (if this is still possible) or — as in Project Blue Sky Inc — declaring that the decision maker acted unlawfully. Legislation sometimes states whether procedural requirements are mandatory. For example, prior to the decision in Watson v Lee (1979) 144 CLR 374; 26 ALR 461 (see 6.6.3 ), the Commonwealth Parliament had amended (and renamed) the Rules Publication Act 1903 so that regulations would be operative notwithstanding that their notification in the Gazette incorrectly stated that they were available for purchase at nominated outlets. The Income Tax Assessment Act 1936 (Cth) s 175 provides that: ‘The validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with.’ Legislation providing for the making of Regulatory Impact Statements and for consultation

[page 142] typically provides that failure to comply with this requirement does not invalidate otherwise valid statutory rules: see, for example, Legislation Act 1903 (Cth) s 19; Subordinate Legislation Act 1989 (NSW ) s 9; cf Subordinate Legislation Act 1994 (Vic) which is silent on the effect of non-compliance with requirements to prepare a Regulatory Impact Statement and a human rights certificate and to consult, but which provides that failure to give notice of intended instruments or to table prescribed material does not invalidate the instrument: ss 12(4), 12J(5) 15(2), 16A(3), 16B(3), 16C(3), 16F(4).

6.6.2 Where legislation is silent Difficulties arise from the fact that legislation may be silent in relation to the consequences of failure to comply with a particular procedural requirement. In the absence of express statutory guidance, courts will be guided by such inferences as can be drawn from the overall statutory scheme, the purposes of the legislation, and the nature of the breach. A test suggested by four members of the High Court in Project Blue Sky Inc was ‘to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid’: per McHugh, Gummow, Kirby and Hayne JJ at CLR 390. W here a procedural provision is clearly calculated to improve the quality of the decision and the decision-making process, compliance is likely to be treated as a condition for validity. W here the breach is minor and insubstantial, it will be far less likely that it will be regarded as fatal to the decision.

6.6.3 An example Illustrative of the courts’ approach to the categorisation of procedural requirements is Watson v Lee (1979) 144 CLR 374; 26 ALR 461. Under the then operative law, when a regulation was made, there was a requirement that there be notification in the Gazette. The details to be notified included details relating to where the regulation might be purchased. A regulation was made, and the notification included details of places where it was allegedly available. The High Court case turned on the question of whether the regulation was available at nominated outlets, and if not, whether this affected the operation of the regulation. The majority (Barwick CJ, Stephen and Aickin JJ) considered that the publication requirement was mandatory (that is, one such that compliance with it was a condition precedent to validity) and would be satisfied only if the regulation was in fact available for purchase at the nominated places: the requirement reflected the fundamental right of citizens to know the content of laws which affected them. Gibbs J on the other hand considered that the requirement was directory in the sense that substantial compliance would suffice: if the regulation were available shortly after the time of notification of its alleged availability, that would suffice to make it operative at least from the time it became available. He noted the inconvenience that could result if a day’s delay in making regulations available meant that they did not become operative, especially if no-one in authority were to become aware of the delay. (Mason J considered that the relevant provision related to the contents of the notification, not to its truth. W hile this meant that a regulation might be operative notwithstanding that it had not been adequately communicated, the reality was that even a requirement of accurate notification would constitute a largely formal requirement of no substantive significance.) [page 143]

Problem In 2014, the minister was warned that total payments under the Victims Compensation Act 2008 (Cth) were exceeding expectations. Accordingly, he asked a consultancy firm to draft new regulations with a view to reducing payments to budgeted levels. The firm produced a set of draft regulations which it estimated would reduce payments by 40%. The minister decided that there was no need for any public consultations, saying: ‘We all know what the issues are. The bleeding hearts will say our changes are a devastating assault on an already vulnerable group. The dries will say that if you don’t like the idea of being victimised you should either take out insurance or learn karate. I don’t need a time-wasting consultation to know this.’ On 1 August 2014, the minister accordingly made a regulation to give effect to the recommendations. Two days later he died in a boating accident, and nothing was done about the regulation until his widow rang his successor to ask whether she would qualify for compensation on the old basis. The new minister’s office told her that all would be well, and lodged the regulation with the Office of Parliamentary Counsel for registration on 1 September 2014. On 2 September 2014, the Governor- General dissolved both houses of parliament pursuant to a request from the Prime Minister. The Senate had been sitting on 2 September. The relevant provisions of the regulations were as follows: 1. The standard amounts of compensation are amended as follows:

Former amount $2,400–$4,999 $5,000–$9,999 $10,000–$14,999 $15,000–$24,999 $25,000–$50,000 2. 3.

New amount $2,000 $6,000 $11,250 $17,500 $30,000

Clause 3 of Sch 1 of the Act is amended by the deletion of sub-cll (b) and (c). Following cl 6, the following clause is inserted:

6A Terrorist Attacks

(1) Where compensable injury arises out of a terrorist attack, the total compensation payable to primary victims of the attack shall not exceed $1,000,000; (2) When the total statutory compensation awarded to victims of a terrorist attack exceeds $1,000,000, no payments shall be made to any other victim of the attacks; (3) If the total compensation awarded to victims of terrorist attack exceeds $750,000, the Registrar must refuse any applications submitted out of time. On 3 September 2014, Alice Dicey was injured while resisting a person who was attempting to steal her purse at a Canberra shopping centre. She believes that the minister was not empowered to make the regulation, having heard somewhere that regulations cannot be used to amend Acts of parliament, and that they must be laid before both Houses of parliament for 15 days. She has searched the Canberra Times [page 144] and found no reference to consultations about whether the regulation should be made. She wants your advice about these matters, and about whether the regulation might be challenged on any other ground. What advice would you give her? What further information would you need?

Resolution Since Ms Dicey wants your advice on several specific questions, you should address these, notwithstanding that you might otherwise consider them not worth discussing. You should also, of course, address the general question. You have not been given all the facts you need to answer this question, and your answer should demonstrate recognition of this and how your answer would be affected by different versions of ‘the facts’. The issues to consider are: 1. 2. 3. 4. 5.

Does the fact that the regulation amends an Act of parliament mean it is beyond parliament’s power? What is the relevance of the failure to consult? Would it matter that the regulation had not been before each House of parliament for 15 sitting days? Are there other grounds on which the regulation might be attacked? If reg 3 is invalid, would this mean that the whole of the new regulations would be invalid?

Is reg 1 invalid because it amends an Act? While it is unusual to confer the power to amend Acts of parliament, a statute can provide otherwise, provided that it does so in clear and unambiguous language, and provided that if — as here — it is a Commonwealth statute, it does not purport to confer a general legislative power on the repository of the regulation-making power. Here the Victims Compensation Act 2008 (Cth) (the Act) expressly provides that the regulations may amend Sch 1: s 12. It confers only a restricted regulation-making power. (This means that it does not give rise to the constitutional problems that would attend a grant of a hypothetical power to make regulations ‘with respect to any matter with respect to which the Parliament of Australia possesses legislative power’). The regulation therefore does not fail on the grounds that it amends an Act.

What is the significance of the failure to consult? On its face, s 17 of the Legislative Instruments Act 2003 (Cth) seems to require some consultation but it does not condition the validity of regulations on consultation having occurred. Its requirement is that the rule maker be satisfied that all consultation considered to be appropriate has been carried out. Here, the minister seems to have been satisfied that no consultation is sufficient consultation. This is not conclusive. Satisfaction must also be reasonable, and it is arguable that the minister’s satisfaction was not reasonable, esepcially given s 17(2), which specifies two possible criteria for satisfaction, neither of which seems to have been seriously considered by the minister. But s 17(2) is permissive rather than directive, and s 17(1) is weakened by the phrase ‘particularly where the proposed instrument is likely to have … an … effect on business or to restrict competition’. This condition [page 145] is not satisfied, and the use of the word ‘particularly’ implies that the requirement is weaker and perhaps even non-existent in other cases. Moreover even if s 17 required consultation, it would not follow that it also conditioned the validity of regulations on there having been adequate consultation. The looseness of the language of s 17 suggests that its requirements are more in the nature of exhortation than demand. Moreover, even if the duty to consult is one that could be enforced, it does not follow that its non-performance would be fatal to a subsequent decision, and in any case s 19 removes all ambiguity: faiure to consult ‘does not affect the validity or enforceability of a legislative instrument’.

Does it matter that the regulations have not been laid before both Houses? We are not told whether and when the regulations were laid before both Houses of parliament, and, assuming they were, we do not know how many sitting days have elapsed. What matters is not when the regulation is made, but when it is registered. So, assuming that it is registered on or about 2 September, time starts running from then. Since parliament has been dissolved, the six sitting days requirement will not be met in September. The most one can say is that it is likely that before the end of the year, at last one House will have sat on more than six days. Even if the glories of the Hare Clark system mean that it is months before the new Senate can sit, this will be irrelevant if six House sitting days have elapsed. But since the Senate seems to have sat for one sitting day after the registration of the regulation prior to dissolution, the six-day requirement will be satisfied after five post-dissolution sitting days.

If neither House has sat for six sitting days, the regulations remain in force and will stay in force unless (a) the six sitting days subsequently elapse or (b) at least one House passes a disallowance resolution. The effect of the regulation’s ceasing to operate is the same as that of an amendment restoring the regulation to its earlier state, but only from the time at which the regulation ceased to operate: Legislative Instruments Act 2003 (Cth) s 45(2). This means that at the time of her injury, Ms Dicey’s entitlements would be governed by the regulation as amended, but that as from the time the sitting days or disallowance requirements were met, compensation would depend on the regulation as it stood prior to the amendment. Ms Dicey’s entitlements would therefore depend on whether her compensation depended on the compensation scale in force at (a) the date of her injury; (b) the date of her claim; or (c) if there was an appeal, the date on which her claim was adjudicated. The Act is of limited assistance. The restored regulations would operate retrospectively and there are arguments supporting each of these formulae.

Are the regulations nonetheless for reasons other than those related to publication and tabling? Even if the six days for tabling had not elapsed at the relevant time, the regulation will not be valid unless it falls within the Act. The regulation-making power permits the making of regulations only if they are not inconsistent with the Act, and if they are ‘for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act’: s 88. [page 146]

Is reg 1 inconsistent with the Act? While it is clearly within the minister’s power to make regulations altering the compensation payable under Sch 1, there are grounds for arguing that reg 1 is invalid. The effect of the regulation is that victims are no longer eligible to claim compensation for certain kinds of injuries. Injuries for which $2,400–$4,999 is currently the standard compensation attract standard compensation of only $2,000. Since the threshold level of compensation is $2,400 (in the absence of a proclamation otherwise) (Act, s 20), the effect of the regulation is to render noncompensable, injuries which would previously have been compensable. The Act makes specific provision for the making of amendments to the Schedule which make provision for injuries not specifically described: s 13(2). It does not make express provision for amendments which remove injuries from the range of injuries for which there is standard compensation. On the expressio unius est exclusio alterius principle, such amendments are not permitted. While this regulation does not, on its face, remove an entitlement to compensation for particular injuries, this is its effect. There are two counter-arguments to this, one weak, the other strong. First, the regulation does not automatically operate to ensure that victims who suffer particular injuries cease to be eligible for compensation. It amends standard levels of compensation only. Given, however, that there would be an expectation that the standard amount would be the amount in fact awarded, the effect of reg 1 would be to ensure that at least some victims no longer received amounts greater than the current threshold. Second, even were reg 1 to be treated as taking away current rights to compensation, this would not be inconsistent with the Act. The Act envisages that the threshold level for compensation can be altered by proclamation: s 20(2). The effect of a proclamation increasing the figure would be similar to the effect of reducing standard payments. Moreover, unlike regulations, proclamations appear not to be subject to the possibility of disallowance. This suggests that the regulation is not inconsistent with the Act simply because its practical effect is to ensure that some injuries will no longer be compensable. The Act envisages that some victims will not be eligible for compensation, and that the range of injuries for which victims will be entitled to standard compensation will vary.

Assuming reg 1 to be invalid, should Ms Dicey seek to challenge its validity? Ms Dicey should recognise that the wisdom of challenging the validity of the regulation may depend on the nature of her injuries. Under the regulation, some payments have been increased. If her injuries fall into this category, it is not in her interests to have this clause struck down. She should, however, be aware that it would be possible that someone else would take action to have the regulation declared invalid.

Is reg 2 invalid? Section 13(1) clearly permits the amendment of the Schedule to exclude the payment for some injuries in cases where a victim has suffered more than one compensable injury. [page 147]

Is reg 3 of the amending regulations (new cl 6A) invalid?: differential treatment of victims of terrorism There is a weak argument to the effect that the limitation on the level of compensation payable to victims of terrorist attacks is invalid. The scheme of the Act envisages that payments will be based on the injuries suffered, except where the victim has somehow been at fault: s 30(1). The regulations effectively discriminate against a particular class of victim on grounds which have nothing to do with those grounds on which discrimination is permitted under the Act. They are therefore not consistent with the Act and are, accordingly, invalid. But the Act itself includes examples of different treatment for different victims: consider, for example, s 20(2)(a). Section 20(1) provides that compensation is not payable unless the total compensation payable exceeds a certain level. This may be altered by proclamation. Section 20(2)(a) permits the fixing by proclamation of a single amount or of ‘different amounts in different cases’. Section 19 limits compensation to $50,000, an amount far smaller than that needed to fully compensate victims of some crimes, and this means that unless a terrorist attack causes serious injuries to more than 20 people, reg 3 makes no difference to compensation rights for victims of terrorist attacks. The most troubling aspect of the ‘terrorism’ exception lies in the fact that it potentially conditions pay-outs for terrorism victims on a criterion that has nothing to do with seriousness of injuries. The mere fact that victims are treated differently does not mean that such treatment is inconsistent with the Act. This, however, is not conclusive. It is likely that the exercise of the s

20(2)(a) power is itself subject to implied constraints, and in particular, to the requirement that there be some reasonable basis for the differentiation between different cases. There may be an argument to the effect that it is appropriate to distinguish terrorist from other attacks, since the costs of making pay-outs to the victims of a serious terrorist attack could completely exhaust the fund. The same might, however, be said of other categories of crime, and in any case, it is not clear that the Act contemplates that a single category of victims should have to bear the costs of a discrepancy between prima facie entitlements, and the capacity of the fund to meet those entitlements. It is arguable, therefore, that reg 3 is invalid.

Defeating the registrar’s discretion to grant an extension of time Insofar as the regulation purports to deprive the registrar of a discretion to permit out-of-time applications (new cl 6A(2)), they are inconstent with s 26 of the Act.

Severance Regulation 3 does not apply directly to Ms Dicey’s situation, since we can assume that the attack was not a terrorist attack. Its invalidity would assist her case only if it was not possible to ‘sever’ this regulation from the others. Valid regulations can be severed if ‘an inference that the provisions are not to be interdependent can be positively drawn from the nature of the provisions, from the manner in which they are expressed or from the fact that they independently affect the persons or things within power in the same way and with the same results as if the full intended operation of [page 148] the legislation had been valid’: Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 370 per Dixon J. This test may be unduly strict, but that would not matter in this case. The requisite inference can be drawn. The operation of regs 1 and 2 is not dependent on the validity of reg 3. Moreover, the intent underlying these regulations is clearly to reduce payments under the Act. Given this intention, the regulation maker must be taken as intending that if reg 3 were found to be invalid, regs 1 and 2 would nonetheless continue to operate. For similar reasons, reg 2 would survive a finding that reg 1 was invalid. It is not quite so clear that new subcl 6A(2) can be severed from the rest of cl 6A(1), but this issue has no bearing on the severability of reg 3 from the other two regulations..

Conclusion Regulation 3 appears to be invalid insofar as it purports to strip the registrar of powers to grant extensions of time, but is otherwise valid, and in any case, irrelevant to the validity of regs 1 and 2. While these have the potential to produce anomalies, the Act itself includes similar anomalies. We do not have enough information to know whether the Regulations fall foul of the tabling requirements nor of whether they have been disallowed, but even if they have, this is unlikely to be of much assistance to Ms Dicey. Given the costs and stress associated with litigation, and the limited impact of the regulations on Ms Dicey’s entitlement, Ms Dicey should not initiate judicial review proceedings.

Further tutorial discussion 1. W hat are the advantages and disadvantages of attempting to classify administrative activities as involving either ‘rule making’ or decision ‘Reillmaking’ in particular cases? 2. W hose reasoning do you prefer in O’Reilly v Commissioners of State Bank of Victoria (1982) 153 CLR 1; 44 ALR 27? If the views of Mason J had prevailed, what courses of action could and should the Commonwealth have taken? 3. W hat kinds of consideration would you expect courts to take into account in determining whether the repositories of power were entitled to base decisions on material gathered and analysed by others? 4. W hat is the point of prescribing procedures while allowing decisions to be valid notwithstanding that the procedures are not followed? 5. After having considered the issues canvassed in Chapter 9 , do you think that the minister’s decision on the need for consultation was unreasonable or flawed on some other ground? Suppose the minister had approved consultation based on a one-page issues paper, notification in two newspapers of its on-line availability, and an annoucment that responses would be received, with a closing date five working days after the announcement. W ould that be reasonable? [page 149]

Further reading Administrative Review Council, Rule-Making by Commonwealth Agencies , Report No 35, AGPS, Canberra, 1992. (Discusses the advantages of a system requiring consultation prior to the making of regulations; examines the Victorian experience.) Allen, C K, Law and Orders , 3rd ed, Stevens & Sons, London, 1965, ch 2. (Provides a comprehensive history of the use of delegated legislation in England.)

Argument, S, ‘Legislative Scrutiny in Australia: W isdom to Export?’ (2011) 32 Statute Law Review 116. Aronson, M and Dyer, B, Judicial Review of Administrative Action , 4th ed, Thomson Reuters, Sydney, 2009, ch 3, Pts 10, 11, ch 7, Pts 1–5. Carney, T, ‘Cloaking the Bureaucratic Dagger? Administrative Law in the Welfare State’ (1989) 58 Canberra Bulletin of Public Administration 123. Clark, D, ‘Informal Policy and Administrative Law’ (1997) 12 AIAL Forum 30. (An excellent review of the variety of policies; their uses; the problems to which they can give rise; and their legal status.) Creyke, R, McMillan, J and Smyth, M, Control of Government Action: Text, Cases and Commentary , LexisNexis Butterworths, Sydney, 2013, ch 6. Douglas, R, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014, chs 8, 11. Halligan, J and Wettenhall, R (eds), Hawke’s Third Government: Australian Commonwealth Administration 1987–1990 , University of Canberra and Royal Australian Institute of Public Administration (ACT), Canberra, 1992. Pearce, D C and Argument, S, Delegated Legislation in Australia , 4th ed, LexisNexis Butterworths, Sydney, 2012. Reid, G S and Forrest, M, Australia’s Commonwealth Parliament 1901–1988 , Melbourne University Press, Parkville, 1989, pp 219–36. (Discusses Commonwealth rule making.)

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7 Discretionary Powers General In this chapter we examine the issues surrounding the conferral of discretionary powers on administrators, and one of the paradoxical principles of administrative law, namely that where discretionary powers are conferred, the repositories of those powers must not fetter the exercise of their discretion.

Objectives After studying this chapter, you will understand: 1. the role of discretionary powers in modern administration; 2. the duty to exercise a discretion; and 3. the relationship between the duty not to fetter one’s discretions, and duties which arise out of undertakings.

1 Discretionary powers 7.1.1 Administrative discretion Administrators’ powers frequently include a discretionary element. In general, the more senior the administrator, the wider the discretions typically conferred on the administrator. Such discretions once aroused considerable anguish (see, for example, the sources cited by K C Davis, Discretionary Justice: A Preliminary Inquiry , University of Illinois Press, Urbana, Ill, 1971, ch 2). Administration was supposed to be a purely mechanical activity, and one which would ideally involve no more than the mechanical execution of legislative decisions. Discretions were seen as incompatible with the rule of law. They were criticised on the grounds that they expanded bureaucratic power, which was a decidedly bad thing. Modern legal and administrative theory accepts both the inevitability and desirability of discretionary decision making: see, for example, K Hawkins (ed), The Uses of Discretion , Clarendon Press, Oxford, 1994. [page 151]

7.1.2 The inevitability of discretion Even if minimising discretion were desirable, there would be limits to the degree to which this was possible. Like law, administration will invariably give rise to grey areas: is an educational certificate from the University of Uzbekistan equivalent to a given Australian qualification? Are two people who live together three days a week to be treated as being involved in a de facto relationship for the purposes of (a) determining pension entitlements and (b) entitlements to spouse rebates? Was a particular injury ‘war-related’? Ambiguity being built into language and perception, decision makers must inevitably exercise a degree of discretion.

7.1.3 Reduced discretion and its costs It is possible to envisage rules which would minimise the degree to which administrators needed to exercise discretion. Legislation might relate eligibility to immigrate to relatively unambiguous criteria: gender; height; age (as evidenced by birth certificate); and — inspired by vague memories of R v Wilson; Ex parte Kirsch (1934) 52 CLR 234 — the ability to memorise 300 gazetted words of Scots Gaelic. De facto status could be treated as irrelevant to entitlement to benefits. Eligibility for veterans’ benefits could be predicated upon length and place of service and nothing else. The problem with such rules is that they achieve certainty at the price of quality of decision. Just as the uncertainty implicit in equity was necessary to compensate for the injustice which could flow from the undue rigidity of traditional common law, so a degree of uncertainty is needed to enable fairer and more rational administrative decision making. This is not to say that discretions should be unconfined. As Davis has noted, there are cases where discretions can be and are abused: Davis (1971, pp 9–14). The advantages and disadvantages of predictability and uniformity need to be balanced against those of flexibility and variety. The balance drawn by law makers is not necessarily the optimal balance, but it is inevitable that law makers will confer a degree of discretion on administrators. The general law draws a balance by defining the outer limits of administrators’ discretions, sometimes limiting them to a greater degree than judges regard as appropriate. Administrative law seeks to maximise the advantages —

and minimise the disadvantages — of discretionary powers by two slightly contradictory requirements: the first, which is the basis for the remainder of this chapter, is that repositories of discretions must exercise these discretions; they must not act at anyone’s behest — even if the relevant person is their hierarchical superior in a system of responsible government. Nor may they fetter their discretion — even if people might reasonably expect that they would exercise it in a particular manner. The second is that they must exercise their powers according to express and implied legal constraints. These are discussed in Chapters 6 , 8 and 9 .

2 Discretionary powers must be exercised by the repository 7.2.1 Exercising discretions to the full W hile lawyers once bemoaned the conferral of discretionary powers on administrators, a major concern of administrative law has been with administrators’ failure to exercise those discretions to the full. Sir Anthony Mason, while Chief Justice of the High Court, noted the irony that administrators [page 152] took the doctrine of precedent far more seriously than did courts, and one source of conflict between administrators and the Administrative Appeals Tribunal (AAT) has lain in the AAT’s greater willingness to depart from policy: Sir A Mason, ‘That Twentieth Century Growth Industry, Judicial or Tribunal Review’ (1989) 58 Canberra Bulletin of Public Administration 26 at 26. Administrative law proceeds on the basis that the repositories of discretionary powers must normally exercise those powers on the basis that the repository of the power should exercise it to the full. This is reflected in several overlapping rules. First, repositories of discretionary powers must not ‘act under dictation’ or at the behest of others. Second, repositories of discretionary powers must not ‘fetter’ the exercise of their discretion. Infringing these requirements is a ground for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) (ss 5(1)(e), 5(2)(e) and (f), 6(1)(e), 6(2) (e), (f)), the Queensland Judicial Review Act 1991 (ss 20(2)(e), 21(2)(e), 23(e), (f)) and the Tasmanian Judicial Review Act 2000 (ss 17(2)(e), 19(2)(e), 21(e) and (f)). However, these general principles are complicated by the fact that maximising the exercise of discretion may conflict with other ideals including reaching the best decision, and minimising the danger of inconsistent decisions. These competing considerations are sometimes reflected in laws which give powers to direct (see above 6.3 ), and sometimes in judicial tolerance of deference to superiors and fellow decision makers.

7.2.2 Acting under dictation W here statutory powers are conferred on a particular official, that official must normally exercise those powers. The official must not blindly follow anyone else’s instructions. These rules seem unsurprising and have given rise to relatively little litigation. Administrators evidently understand that if powers are bestowed on them, it is they and only they who must exercise them. There have, however, been circumstances where the rule against acting under dictation clashes with the normal principles of responsible government, and difficulties arise when the repository of a power exercises it independently, but taking account of government policy. Moreover, as noted above ( 6.4 ), statutes may permit delegation, and in the absence of statutes, decision makers may be permitted to act through agents. The existence and scope of the taboo on dictating or acting under dictation is contextual.

7.2.3 ‘No dictation’ and Cabinet government W here powers are conferred on the Governor-General or the Governor, a stranger to Australian constitutional traditions might assume that the Governor would be obliged to exercise an independent discretion, and indeed (in relation to decisions involving members of the Executive Council) that members of the Executive Council would be obliged to act on the basis of their beliefs rather than those of Cabinet. Australian courts are familiar with Australian constitutional traditions and treat Governors, Governors-General and Executive Councils as purely nominal decision makers, the real and legitimate decision makers being members of the Cabinet or relevant ministers. So deeply entrenched is this understanding that the only relevant authority comes not from cases in which attempts have been made to challenge Governors’ decisions as having been dictated, but from cases where courts have been successfully urged [page 153] to recognise that it is Cabinet or ministers who really make and should be held responsible for such decisions: see, for example, the way in which the powers of an administrator and a Governor were interpreted in R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981) 151 CLR 170; 38 ALR 439; F AI Insurances Ltd v Winneke (1982) 151 CLR 342. W here powers are conferred on a minister, the reality may be that the minister will determine how that power is exercised, but ministers are ultimately bound by the principle of collective Cabinet responsibility. If Cabinet requires that a decision be made in a particular way, the minister must either agree or resign. In such cases, it is possible that a minister may nonetheless be required to consider a case on its merits, albeit in the context of government policy: Adams v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 280; 70 FCR 591. There is, however, no conclusive authority to the effect that a minister errs if he or she bows to the Cabinet consensus rather than resign, notwithstanding his or her belief that the Cabinet is wrong. There appear to be no subsequent cases in which this issue has been addressed, which suggests that its importance is theoretical rather than substantive.

7.2.4 No dictation and responsible government where powers are conferred on administrators There are some cases where powers are conferred not on ministers or Gubernatorial rubber stamps, but on specified officials. W hile one might perhaps expect that these officials would also be bound to act on the basis of such orders as

their ministers might give, there are at least two considerations which might suggest otherwise. First, legislation may specifically provide for some powers to be exercised by ministers and others by officials. W hile this could simply reflect sloppy drafting, it could also suggest that the legislature intended that there should be some decisions which should in reality be those of the official. Second, there are some decisions which the legislature might well consider best made other than on political grounds. This would provide a reason why legislatures might seek to differentiate between decisions to be made by ministers and decisions to be made by officials. This issue is raised in the following two cases.

7.2.5 R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; [1965] ALR 1067 was a case where powers to issue charter licences and import permits were conferred on the Director-General of Aviation. Ipec-Air had sought to import aircraft so that it could carry air freight, and a charter licence permitting it to do so. The DirectorGeneral considered that Ipec-Air had established its fitness to carry freight and would have issued the requisite permissions, but for government policy — which was hostile to attempts to establish airlines which might compete with the two established national airlines. Given that policy, the Director-General refused to issue the permissions. Ipec- Air sought orders directing the Director-General to issue the charter licence and to reconsider the application for an import licence according to law. In the High Court, the case turned on two issues. The first was whether the Director-General had in fact acted under dictation. The second was whether in the circumstances, the Director-General had erred. Kitto and Menzies JJ considered that he had acted under dictation in relation to the licence and permission to import decisions. W indeyer J considered that he had acted under dictation in relation to [page 154] the licence decision, and for the sake of argument was willing to accept that he had also done so in relation to the permission to import decision. Taylor and Owen JJ considered that he had taken government policy into account, but had made independent decisions. Kitto and Menzies JJ found that the Director-General had thereby erred in relation to both decisions. W indeyer J considered that where the repository of a power was required to exercise it ‘according to defined criteria or guided by defined considerations’, the repository was required to make an independent decision. The decision in relation to the charter licence being such a decision, the Director-General had erred. The decision in relation to the importation of aircraft was not such a decision, and could stand even if the Director-General had acted under dictation. It was not only permissible, but proper that the Director-General act on the basis of government policy. Taylor and Owen JJ held that the Director-General had not erred by taking government policy into account in relation to the permission to import and that he had not erred by declining to issue a charter licence in circumstances where it would have been futile to do so.

Ansett Transport Industries Operations Ltd v Commonwealth (1977) 139 CLR 54; 17 ALR 513. Subsequently, permission was granted to two transport companies to import aircraft. In litigation challenging the legality of this decision, the High Court adverted once more to the duties of official repositories of discretionary powers. All held that in such cases ministers might draw the official’s attention to government policy, and that the official might legitimately take it into account and afford it considerable weight. Barwick CJ and Murphy J considered that the official would be bound to carry out the policy and Aicken J inclined to the view that in many circumstances this would be so. Gibbs J considered that the official could give conclusive weight to the policy. Mason J rejected the view that an official in whom a discretionary power had been reposed was obliged to exercise it in such a manner as to give effect to government policy. 7.2.6

3 Self-fettering 7.3.1 Self-fettering There are two related ways in which administrators may purport to fetter their exercise of discretionary powers. They may take account of the opinions of others. They may treat themselves as so bound by policy that they fail to consider whether the policy should be applied in a particular case. Alternatively, they may give an undertaking in relation to the exercise of their discretion and feel constrained by that undertaking regardless of what is appropriate when the time comes for them to exercise that discretion. In either case, the administrator’s purported exercise of discretion will fail.

7.3.2 Acting on others’ opinions In making decisions the repository of a power is typically expected to exercise it personally, but this is subject to exceptions. Delegation may be permitted by statute. Acting through others may be permitted if the power is clearly one whose exercise clearly requires that it be exercised by [page 155] people other than the nominal repository. And the logic of bureaucratic decision making is that its quality may be enhanced if the decision maker consults others and takes their views into account. In Troughton v Deputy Commissioner of Taxation [2008] FCA 18, for example, an administrator who had decided to issue a departure prohibition order, had consulted with others (including superiors) in order to assess whether he was making the right decision. The Federal Court held that this did not constitute acting under dictation. The New South Wales Supreme Court held that although Mining Registrars were independent of the department responsible for mines, they were nonetheless entitled to take the department’s policy into account: Wetzel v District Court of New South Wales (1998) 43 NSW LR 687.

7.3.3 Administrators and policy In making decisions, administrators ought both to take policy into account, and to consider whether the circumstances of a particular case warrant their departing from the policy in that case. They do not err by attaching considerable weight to policy; policy after all is a means of achieving consistency, and good government demands a high level of consistency: see Brennan J’s decision in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Indeed, Brennan J considered that if a policy existed, ‘cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny’ (at 645). However, administrators must be open to arguments to the effect that cogent reasons do exist. They therefore err if they refuse to take a matter into account on the grounds that the policy does not provide for this. This was the case in Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150; 101 ALR 151. The policy in question was that fishing licences were not to be transferred except (in some circumstances) to a child or spouse of a licensee. Perder acquired a fishing vessel and sought the transfer of its licence. This was refused on the grounds of the policy against permitting transfers other than to members of a licensee’s family. The decision to refuse was set aside: applying the policy without regard to whether it could be justified in the light of Perder’s circumstances involved inflexible exercise of the power without regard to the merits of the case.

7.3.4 The right to change policies W hile the rule against the fettering of discretions is typically one which can be used against governments, it is also one which can be used by government. If governments are obliged to consider whether the circumstances of a particular case justify the non-application of policy, it follows that they are also entitled to consider whether to continue to apply a particular policy, and indeed that they should abandon a policy if they consider that it is no longer desirable. Thus, a government which had had a policy of automatically appointing members of a disbanded court to a newly created court was entitled to introduce a new policy whereby appointments were to be made solely on the basis of the quality of those seeking appointment to the new court: Attorney-General (NSW) v Quin (1990) 170 CLR 1; 93 ALR 1. This was the case notwithstanding that the change of policy impaired the prospects of several former members whose appointment to the new court would have been considered prior to the policy change but for the fact that they had earlier been denied procedural fairness. [page 156]

7.3.5 ‘No fettering’ and estoppel The fettering rule also means that administrators may not bind themselves by undertakings in relation to the future exercise of discretion in relation to particular matters. Thus an undertaking not to deport a person so long as he behaved himself did not preclude a subsequent decision to renege on the undertaking: Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; 92 ALR 93, and see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502; [2003] HCA 6, where McHugh and Gummow JJ (at [81]–[83]) and Callinan J (at [148]) reaffirmed this principle, rejecting English developments in this area as inapplicable to the Australian constitutional system. Contracts to exercise discretionary powers in a particular way are invalid: Cudgen Rutile (No 2) Pty Ltd v Chalk (1974) 49 ALJR 22; [1975] AC 520. The decisions in Quin and Kurtovic are harsh. They highlight the degree to which the non-fettering principle is able to trump claims based on expectations. Indeed, so powerful is the non-fettering principle that it can even trump the private law principles of estoppel. The harshness which can result from this is alleviated by two provisos to the non-fettering rule. First, expectations arising from policy, practice and undertakings can give rise to a duty on the part of the administrator to afford procedural fairness. The circumstances in which this is so will be discussed below: see 10.3.8 – 10.3.10 . Second, in relation to estoppel by undertaking a distinction has been drawn between policy and operational decisions, the suggestion being that non-fettering trumps estoppel only in relation to policy decisions. It is unclear whether and how far this is the case. The distinction was tentatively drawn by Gummow J in Kurtovic (at FCR 215–16), but its meaning is clouded by the fact that in that case, his Honour considered that no fettering trumped estoppel in relation to a decision to deport. If so, the decision to deport must be a policy decision rather than an operational decision — which raises the question of what distinguishes these two classes of decision. Allars’ analysis of the distinction casts doubt on its coherence and utility: M Allars, ‘Tort and Equity Claims Against the Government’ in P D Finn (ed), Essays on Law and Government Vol 2: The Citizen and the State in the Courts , LBC Information Services, Sydney, 1996, pp 64–9, 88–90. In Eastman v Commissioner for Social Housing [2010] ACTSC 71, the Australian Capital Territory Surpeme Court concluded that an undertaking in relation to the exercise of a statutory power was potentially enforceable, but that given the facts of the case, there had not been reliance, which meant that the decision maker was free to depart from the undertaking. In other cases, courts have assumed that undertakings in relation to the exercise of stautory powers do not give rise to estoppel, even when the undertakings are given in the context of a particular decision. Third, it is important to distinguish reneging on an undertaking and seeking to reverse a decision which has already been made. Once a decision has actually been made, the administrators’ powers in relation to the matter may be exhausted: per Gummow J in Kurtovic (at FCR 211–12). Even if with hindsight the administrator considers the wrong decision was made, there may be no residual power to reconsider the matter. W hether this is so will depend on the wording of the statute and what can reasonably be implied in relation to the power in question. It will also depend on whether the ‘decision’ is flawed by jurisdictional error, that is, by [page 157]

flaws whose legal effect is such that the ‘decision’ is invalid. W hen ‘decisions’ are flawed in this way, the relevant decision maker is treated as not having made a ‘decision’, and therefore as free to change his or her mind: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117.

Problem Following criticisms of alleged inconsistencies surrounding the granting of extensions for applying for compensation, the office of the Minister responsible for the administration of the Victims Compensation Act 2008 (Cth) issued the following press release: Minister Moves to Assure Public on Crimes Compensation Sloppiness The Minister today announced that he had recommended that the Director of Victims Compensation adopt a new set of policies in relation to the acceptance of late applications for criminal injuries compensation. He said that after lengthy discussions, the Director had agreed that these should govern future applications for compensation. The Minister stated that he was confident that these directions would satisfy those who had recently accused the Director of being far too tolerant of people who failed to make prompt applications, and failed to recognise the public interest in closure and in the timely resolution of compensation claims. The Director declined to comment except to say that he hoped that his willingness to adopt the new policy would mean that he could get on with the job of ensuring that victims of crime were adequately compensated. Key features of the policy are: (a) Leave will not be granted unless the applicant establishes that there is good reason to do so. In cases of sexual assault, domestic violence or child abuse, however, leave will be refused only if the Director is satisfied that there are good grounds for doing so. (b) Leave will not be granted merely because the applicant was not aware of the time within which applications should be lodged. (c) Leave will not be granted in any case in which the applicant can claim under workers’ compensation legislation, under an insurance policy, or against the person who caused the injury. (d) Leave will not be granted in any case in which the victim did not notify the police of the offence within six months of the injury.

Alexis Andropov was injured while resisting an attempted hold-up of a governmentowned post office. At the time he was earning a large income and decided not to make a claim for compensation, considering that the government could better use its scarce resources dealing with those in greater need. Two years later, his economic circumstances had changed and his wife persuaded him to seek compensation. He wrote to the Director of Victims Compensation seeking leave to make a late application, pointing out that the whole incident had been videoed in high resolution colour, and that his medical claims could be substantiated by reference to his wellkept records, a hangover from the time when he paid tax. He had not notified the police, because it had not been necessary. Someone else had called the police, and they had interviewed him at the Abbott Flats police station several days later. [page 158] The Director replied: After taking account of the matters raised in your letter, I have decided to refuse your application: 1. The relevant crime (not being a crime invoking sexual assault, domestic abuse or child abuse) was a crime for which extensions are granted only in exceptional circumstances. No relevant circumstances exist in your case. 2. Until the expiry of the relevant limitations period, you had and have a cause of action against the person who had caused the injury. The identity and place of residence of the offender are both public knowledge. The fact that the person has no resources is immaterial: this is almost invariably the case among convicted criminals. It is a usual rather than an exceptional circumstance. 3. You did not make a complaint to any Australian police force either within the 6 months period or at all. There are therefore no relevant exceptional circumstances, and in any case, granting an extension to a person who had not made a complaint to the police within the prescribed period would be contrary to policy. The leave application must therefore be refused.

What arguments could Mr Andropov raise in support of an application to set aside the decision to refuse an extension of time? What arguments might the Director use in reply? Whose arguments would be likely to prevail?

Resolution The question requires reviewing this issue from the standpoint of both Mr Andropov and the Director.

Mr Andropov’s arguments 1. Even if there are cases where ministers may give directions to the ostensible repositories of discretionary powers, this is not such a case. The legislation carefully apportions responsibility for different tasks among different officials. The fact that some powers are conferred on the Minister, some on the Director and others on the assessors implies a legislative intent that the powers be exercised by and only by the relevant officials. Moreover, in contrast to the power to permit the importation of aircraft which was the basis for the Ansett litigation, the power to grant leave to apply out of time is best regarded as quasi-judicial rather than political. Like the decision in relation to the charter licence in Ipec-Air , decisions on applications out of time are decisions to be made by the statutory repository of the power. Ansett is not applicable here, and is in any case not adverse to the applicant’s case. It was a decision in relation to a ‘political’ matter. 2. Here the Minister has in effect directed that the Director comply with a particular policy. The language of the press release should not be taken at face value. A recommendation by a Minister to a Director employed on a short-term contract is not a mere piece of advice, especially when the political context makes it clear that the Minister was recommending the change for political reasons rather than as a helpful piece of advice in relation to the Director’s administration of the program. The Director’s reported comments (assuming them to embody what he actually said) indicate that the ‘agreement’ took place in the context of a relationship which had been far from amicable. [page 159]

3. Even if the Director is not acting at the Minister’s behest, the Director is applying the policy in an inflexible manner. There is no reference to any aspects of Alexis’ case which might constitute exceptional circumstances. The Director’s reasons suggest that his attention was limited to the three matters raised by the policy. Moreover, the policy has been treated as if it were binding rather than of merely presumptive force. The Director appears not to have considered whether the policy is to apply even when victims’ causes of action are rendered futile by the offender’s lack of resources, or to cases where the ends of the criminal justice system have not been in any way defeated by the victim’s failure to make a formal complaint. 4. The policy is also unlawful insofar as it purports to preclude the exercise of a discretion in favour of most applicants for an extension of time. The ‘alternative relief’ criterion effectively means that the only people who may seek compensation are those who are injured by unidentified assailants. The Victims Compensation Act 2008 (Cth) provides no authority for limiting access to compensation in this way. 5. Alexis might also argue that the Director had failed to take account of relevant considerations, that he had taken account of irrelevant considerations, and that his decision was so unreasonable that no reasonable Director, acting according to law, could have made that decision.

The Director’s arguments 1. The Minister is ultimately responsible for the administration of the Act, both as a matter of law (see ss 88, 93), and as a matter of politics. (The policy was suggested following questions in parliament in relation to inconsistencies in the granting of leave to apply.) 2. While the Minister initiated the process which resulted in the adoption of the new policy, the Director adopted the policy only because he was persuaded that it was a sound policy. In this respect, the case is to be contrasted with Ipec-Air where there was considerable evidence to suggest that the policy was the government’s rather than the DirectorGeneral’s. Even if the Director’s willingness to adopt the policy was in part influenced by the fact that the suggested policy was favoured by the Minister, this would not be fatal to his decision. In both Ipec-Air and Ansett , it was accepted that officials on whom discretions are conferred might nonetheless choose to be guided in part by government policy. Indeed, in some cases, officials may and should treat government policy as conclusive. 3. The Director specifically states that he has taken the applicant’s special circumstances into account. The mere fact that he does not regard them as sufficiently cogent to warrant a departure from policy does not mean that the policy has been applied inflexibly. While the last two paragraphs of the Director’s letter could arguably be taken to imply that he has inflexibly applied government policy, these should be construed in the light of the earlier affirmation to the contrary, and in the light of the High Court’s warnings that officials’ language should be interpreted in the light of the fact that they do not always express themselves with the precision one might expect of a legally trained person. [page 160] 4. The policy is not illegal. The Act itself recognises that alternative sources of compensation are relevant to entitlements to relief. Section 18(5) limits the right to compensation for ‘financial’ loss in cases similar to those covered by the ‘alternative remedies’ provision of the policy. The policy should be read as implying that it operates as a general rule rather than absolutely. Read thus, it is defensible. The limitation is intended to limit out of time applications in such a way as to allow for the legitimate interests of those without alternative recourse. Even in relation to claims for non-financial injury, this is consistent with the spirit of the Act.

Whose arguments would prevail? 1. The ‘policies’ come close to being directions (and indeed are described as such in the press release). They seem predicated on the assumption that the Minister may dictate. There is no provision in the Act empowering the Minister to give directions, so the purported directions have no legal status. But if the Director had treated the ‘policies’ as mere suggestions, but suggestions which he adopted on the basis that they seemed meritorious, the dictation problem would not arise since there would be no causal nexus between the attempt to dictate and the Director’s decision: the Minister does not need to have a statutory power to advise. Anyone can give advice. 2. The lack of dictation does not mean that the policies are lawful. This depends on their content. But on their face, key features of the policy announced by the Minister, namely points (c) and (d) (and probably (b)) are unlawful. They require refusal of leave in specified circumstances regardless of whether there are good reasons for granting leave. In this respect, they resemble the policy which the High Court found to be unlawful in Green v Daniels (1977) 13 ALR 1 (on which, see 6.3.12 . There would be no problem if the Director had decided not to apply them, but the Director chose to apply them: see reply, paras 2, 3. This may be conceptualised (depending on the facts) as acting under dictation, or inflexible application of a policy. In either event, the refusal decision is flawed. 3. Para 1 of the reply also discloses error: the Director has misinterpreted policy (a), which requires only that there be ‘good reason’ for the relevant extension. Misinterpreting an unlawful policy will not, of itself, provide grounds for review. Whether it does so will depend on whether it leads the decision maker to ask the wrong questions. In the circumstances of this case, it will do so. 4. The decision may also fail on other grounds. These include the considerations grounds (below 8.2 ), and possibly unreasonableness (below 9.1 ).

Further tutorial discussion 1. Administrative Appeals Tribunal cases are more likely than judicial review cases to give rise to disputes in relation to the role of policy in decision making. W hy? 2. How often do administrative law cases turn on the use of discretionary powers for private or political

purposes? W hy are such cases so rare? [page 161] 3. W hy should administrators be permitted to renege on undertakings made in relation to the exercise of their powers?

Further reading Aronson, M and Groves, M, Judicial Review of Administrative Action , 5th ed, Thomson Reuters, Sydney, 2013, ch 5, Pts 5, 6. Creyke, R, McMillan, J and Smyth, M, Control of Government Action: Text, Cases and Commentary , LexisNexis Butterworths, Sydney, 2013, ch 11. Davis, K C, Discretionary Justice: A Preliminary Inquiry , University of Illinois Press, Urbana, Ill, 1971. Douglas, R and Head, M, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014, chs 12, 20, Pt 2. Hawkins, K (ed), The Uses of Discretion , Clarendon Press, Oxford, 1994. Sykes, E I, Lanham, D I, Tracey, R R S and Esser, K W, General Principles of Administrative Law , 4th ed, Butterworths, Sydney, 1997, ch 8.

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8 Legality General While administrators often enjoy considerable discretion, the exercise of that discretion is limited by law. First, it almost goes without saying that where administrators’ powers are to be exercised on the basis of an interpretation of the law, they must interpret the law correctly. Second, where the law requires that administrators take account of certain matters, or that they not take account of certain matters, administrators err if they fail to take account of relevant matters or if they take account of legally irrelevant matters. Third, and closely related to the preceding consideration, powers may be exercised only for the purposes for which they have been conferred.

Objectives After studying this chapter, you will understand: 1. when decisions can be successfully reviewed on the grounds that the administrator has made an error of law; 2. what constitute relevant and irrelevant considerations, what constitutes failure to take account of relevant considerations, and what constitutes taking account of irrelevant considerations; and 3. what constitute improper purposes and when a decision will be flawed on the grounds of its having been made for an improper purpose.

1 No errors of law 8.1.1 Introduction Administrative decision making involves interpreting relevant laws. In many cases, this poses few problems, the relevant laws being so clear that those who apply them scarcely even think of their activities as involving interpretation. At times, however, administrators make mistakes. Statutes can be complicated documents, and administrators will sometimes make mistaken [page 163] assessments as to the content of the relevant law: they may be unaware that a particular law has been proclaimed; they may not realise that a particular provision is qualified by another provision elsewhere in the Act; they may not realise that a word used in a statute is given a particular meaning for the purposes of the statute in question. And they may not have read the law at all. In general, error of law constitutes grounds for judicial review. (In the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), it is covered by ss 5(1)(f) and 6(1)(f); in Queensland’s Judicial Review Act 1991 it falls under ss 20(2)(f) and 21(2)(f); and in Tasmania’s Judicial Review Act 2000, under ss 17(2)(f) and 18(2)(f).)

8.1.2 What is an error of law? Errors of law include both errors that result from mistaken assumptions about the content of particular rules and failure to act in accordance with laws, whether by design or ignorance. W hile the Judicial Review Acts list ‘error of law’ as a ground of review, errors of law will almost invariably constitute at least one other ground. Material mistakes of law will almost invariably result in failing to take account of relevant factors, taking account of irrelevant factors, or both; they may involve the purported exercise of powers which the actor does not possess. They may involve acting in a manner so unreasonable that no reasonable person acting according to law could have exercised their powers accordingly. Errors of law can be contrasted with errors of fact. The legal system tends to assume that non-lawyers are far better at finding facts than they are at knowing, interpreting and applying the law. The legal system has often left curial fact finding to non-lawyers (justices of the peace, juries), and it does not lightly revisit bureaucratic fact finding. Errors of law are also to be contrasted with misconceived policies. The separation of powers seems to mean limits to the degree to which courts will interfere with policies simply on the grounds that they are ethically deplorable or likely to fail. The boundaries between errors of law, fact and value can be blurred, but they are pronounced enough to influence the structure of law in general and administrative law in particular. Formulae for distinguishing law, fact and values should be treated with care: they are often contextual.

8.1.3 Intra-jurisdictional errors of law? Traditionally, a distinction was drawn between ‘jurisdictional’ and ‘intrajurisdictional’ errors of law. This distinction is still recognised in the context of inferior courts: Craig v South Australia (1995) 184 CLR 163; 131 ALR 595 ( Craig ). Courts have such jurisdiction as is vested in them by constitutions, statutes and common law. The same is the case for administrators. But there are differences. One is that some courts (‘superior courts of record’) have a jurisdiction which extends to determining whether or not they have jurisdiction over particular matters. The logic of this power is that superior courts of record also have the power to make erroneous decisions about their jurisdiction which have legal force until they are quashed, and this is the case even if the legislation conferring the power is unconstitutional. The High Court’s decisions are not even subject to being set aside intra-legally (except where appeal lies to the Full Court), but the court is ultimately constrained by judges’ commitment to law, and, ultimately, politics. Inferior courts do not have the power to make erroneous [page 164] decisions in relation to the extent of their jurisdiction, but even if their decisions on questions of law are legally flawed, they are binding unless overruled on appeal or review: New South Wales v Kable [2013] HCA 26; 298 ALR 144 at [24]–[41] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. Similar principles once applied in relation to tribunals, but the general position is that neither tribunals nor administrators possess a power to make errors of law: Craig CLR at 179. This is partly the result of legislative developments: each of the statutory administrative law Acts makes error of law a ground for review, abandoning the old distinction between intrajurisdictional errors of law on the face of the record (which were reviewable) and intra-jurisdictional errors of law not on the face of the record (which were not). (The meaning of ‘face of the record’ is discussed in Craig CLR at 180–3.) At the same time, courts have largely abandoned the distinction between jurisdictional and nonjurisdictional errors of law insofar as it once applied to tribunals and administrators. Courts continue to possess a jurisdiction to make errors of law, its scope varying according to their status. Administrators typically do not, the exceptional cases being those where courts find that there has been error, but that there are special circumstances warranting the refusal of an order quashing the decision ab initio .

8.1.4 Irrelevant errors Not all errors of law are fatal to the validity of a decision. The error must be ‘material to the decision in the sense that it contributes to it so that, but for the alleged error of law on which the [party relies] the decision might have been different’: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 353. Sometimes both the correct and the incorrect interpretation will yield the same result in a particular case. Sometimes, there may be several different sufficient grounds for a decision. The mere fact that the existence of one of those grounds is inferred on the basis of an erroneous interpretation of relevant law would not affect the validity of the decision so long as there are other sufficient grounds to support it. In these cases, the decision will be allowed to stand. In Bond it was accepted that the tribunal may have erred in law in ruling that it could not make a finding in relation to whether a Queensland premier had intended to extort a bribe. If it had so erred, this would not, however, have been a material error of law since the applicants’ case had been based on the footing that no such attempt had been made.

2 Relevant and irrelevant considerations 8.2.1 The general rule Administrators must take account of legally relevant matters and must not take account of legally irrelevant considerations. W hether matters are relevant or irrelevant considerations is to be inferred from relevant law. This is recognised in the Judicial Review Acts: ADJR Act (Cth) ss 5(1)(e), 5(2)(a) and (b); 6(1) (e), 6(2)(a), (b); Judicial Review Act 1991 (Qld) ss 20(2)(e), 21(2)(e), 23(a) and (b); Judicial Review Act 2000 (Tas) ss 17(2)(e), 18(2)(e), 20(a) and (b). Sometimes it will be clear from the legislation that a particular consideration is relevant or irrelevant. Legislation frequently specifies the matters to be taken into account in reaching [page 165] decisions, and sometimes specifies matters which are not to be taken into account. Failure to refer to a particular matter does not mean that it is neither legally relevant nor legally irrelevant. Even in the absence of express statutory provisions, it may be clear from the statutory scheme that certain matters must or must not be taken into account.

8.2.2 Applying the principle Difficulties arise where the status of the consideration is less self-evident. Judicial practice varies. There have been cases where curial inferences as to what are and are not relevant considerations have been the basis for something approaching merits review. There have also been cases where courts have favoured a far less interventionist approach.

8.2.3 An English cautionary tale Roberts v Hopwood [1925] AC 578 provides an example of the former approach. This case arose from a decision by a London borough to pay its employees relatively generously. Under English legislation, councillors could be made personally liable if they approved the making of ultra vires payments. A district auditor made a finding that the wages paid to both its male and female employees exceeded those which the council was permitted to pay, and required the councillors to pay a sum of £5,000. The council had the power to pay ‘such wages as [it] may see fit’. The House of Lords held that ‘wages’ meant remuneration calculated according to some rational economic criteria. Anything else was philanthropy at the expense of the ratepayers. The council had not made the requisite calculations, having both failed to take account of relevant

considerations, and having taken irrelevant considerations into account. Relevant considerations which had been disregarded included: the declining cost of living; the different duties performed by different employees; and wages paid elsewhere. Irrelevant considerations included ‘eccentric principles of socialistic philanthropy’ and a ‘feminist ambition to secure the equality of the sexes in the matter of wages’ (Lord Atkinson at 594, but cf in relation to feminism, Lord Buckmaster at 590; Lord Sumner at 610).

8.2.4 A contemporary Australian approach The High Court appears to favour a less interventionist approach. The leading Australian case is Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299. Peko-Wallsend had applied for mineral leases over land which was also the subject of an Aboriginal land claim. A commissioner made a report favourable to the claimants. The minister made a decision to grant the land, but in doing so failed to take account of a submission by Peko-Wallsend which had not found its way into the relevant departmental brief. On its face the legislation did not require that the minister take particular matters into account before making land claim decisions. Peko-Wallsend nonetheless argued that the minister had been obliged to take its commercial interests into account before making his decision. The judgment of Mason J includes a concise summary of the principles to be applied in determining whether there has been a failure to take account of a relevant consideration. He made five points (at CLR 39–43): A relevant consideration is a consideration which the decision maker is bound to take into account. [page 166] The matters which the decision maker is bound to take into account are to be found by reference to the legislation. W here a discretion is, in terms, unconfined, it may nonetheless be possible to infer that a matter is a relevant consideration on the basis of the ‘subject matter, scope and purpose’ of the legislation. Decisions may be set aside only if the consideration not taken into account was not only relevant, but also material. The court’s function is to set outer limits to the decision maker’s powers and not to substitute its own decision for that of the administrator. Accordingly, it is necessary to distinguish between taking account of a consideration and giving adequate weight to the consideration. So long as the administrator gives some weight to a relevant consideration, that will suffice, except where the weight given is clearly unreasonable. Ministers, like other administrators, are bound to take account of relevant considerations, but in determining what is relevant, allowance may have to be made for the fact that it is a minister who is the repository of the relevant discretion. The High Court held that the minister was bound to have regard to detriment which Peko-Wallsend might suffer as a result of land rights being granted. Its decision was based on the fact that the statute listed detriment among the matters on which the commissioner was obliged to comment. It had previously found that detriment was not a matter which the commissioner was neither bound nor entitled to consider in making a recommendation: Re Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327; 44 ALR 69. It followed therefore that the purpose of the commissioner’s comments was to guide the minister. From this it was reasonable to conclude that it was the legislature’s intention that the minister was bound to have regard to those comments. If detriment was legally relevant, it also followed that the minister was bound to take into account the most up-to-date available evidence. His failure to take account of evidence provided to his office subsequent to the commissioner’s report therefore involved a failure to take account of a relevant consideration.

8.2.5 Considerations which are neither relevant nor irrelevant Similar considerations apply in relation to the question of whether a consideration is an irrelevant consideration. Some considerations may be neither relevant nor irrelevant. W here a minister is exercising a broad discretion, the minister may take account of the political implications of a particular decision, but is not required to do so. Even in relation to less open-ended decisions, there will usually be considerations which are neither legally relevant nor legally irrelevant. International legal obligations represent an example of such considerations. Since they do not directly create rights and duties under domestic law, they cannot constitute a matter which decision makers are obliged to take into account: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. Conversely, it would take extremely clear language to demonstrate an intention to treat them as legally irrelevant. [page 167]

8.2.6 Applying the principles In cases where statutes do not provide a list of relevant and irrelevant considerations, it can be difficult to know whether or not a given consideration is relevant. Sometimes, where discretions appear to be relatively unstructured, courts may move to fill the gaps left by the legislature, justifying their decisions by reference to the subject matter, scope and purposes of the legislation in question. This exercise necessarily involves a kind of judicial policy making. Indeed, it can involve the de facto formulation of guidelines — an activity which legislation often confers on ministers. This can sit rather awkwardly with doctrines of separation of powers, and in particular with the modern judicial horror at being contaminated through the exercise of non-judicial powers. On the whole, this does not give rise to difficulties. W here judicial conceptions of relevance coincide with administrative conceptions, judicial interpretations will appear relatively non-problematic. Sometimes, too, judges may defer to administrative conceptions of relevance, so long as those conceptions appear to be

defensible. Sometimes, however, judicial conceptions of relevance can result in relatively visible judicial policy making: K W heelwright, J Barnes and B Gaze provide one salutary case study: ‘The Avoidance of Judicial Review: Lessons for Health Policy Implementation’ (1996) 3 Australian Journal of Administrative Law 145, 145– 55. There, the writers argue that in quashing decisions by the Pharmaceutical Benefits Tribunal, on the grounds of failure to take account of relevant considerations, Federal Court judges were defining relevance from the standpoint of their individualistic social philosophies rather than by reference to standards self-evidently linked to the purposes of the statute. Migration law has also been a fertile source of cases turning on relevant considerations. One legislative response to the Federal Court’s behaviour in this area was to deprive the court of the power to review on ‘considerations’ grounds other than those expressly enumerated in the legislation. This, too, suggests that the Federal Court has been doing more than simply giving effect to the legislation in question. Thus, while the ‘considerations’ grounds are sometimes presented as if they involve no more than simple statutory interpretation, the reality is that they can also reflect judicial beliefs about the kinds of matters decision makers should, and should not, take into account. It is for this reason that M Aronson and M Groves, in Judicial Review of Administrative Action , 5th ed, LBC Information Services, Sydney, 2013, pp 274–86, discuss the ‘considerations’ grounds under the heading of irrationality rather than legality.

8.2.7 Limits to the duty The duty to take account of relevant considerations is limited to those considerations which are actually or constructively before the decision maker. Decision makers are not under a duty to act on the basis of matters of which they are not aware. If their lack of awareness reflects an unreasonable failure to make inquiries, their decision may be quashed — but on the grounds of unreasonableness: see 9.1.4 . A matter is not an irrelevant consideration simply because it does not in reality exist, but it may be an irrelevant consideration if belief in its existence is based on a clear misinterpretation of the material before the decision maker or if there is no reasonable basis for the belief. [page 168]

3 Improper purposes 8.3.1 The general principle Powers may not be used for purposes other than those for which they have been conferred. (See ADJR Act (Cth) ss 5(1)(e), 6(1) (e), 5(2)(c), 6(2)(c) and 5(2)(d), 6(2)(d) (decisions in bad faith); the corresponding Queensland provisions (Judicial Review Act 1991) are ss 20(2)(e), 21(2)(e), and 23(c), (d); and Tasmanian provisions (Judicial Review Act 2000) ss 17(2)(e), 18(2)(e), 20(c) and (d).) In some cases, this follows simply from the wording of the relevant statute. Some powers are expressly conferred for particular purposes. It therefore follows that the validity of the exercise of such powers is conditional upon their being used for such purposes. There is therefore no warrant for their being exercised for some other purpose. Even when powers are not expressly conditioned upon their being exercised for a particular purpose, their exercise may be conditioned on their being exercised for proper purposes only, these purposes being inferred on the basis of the legislation. Examples of exercises of power for improper purposes are not particularly common. Thompson v Randwick Municipal Council (1950) 81 CLR 87; [1950] ALR 711 arose from a council’s decision to resume land, some of which was to be used to build a new road and pathway. The council intended to re-subdivide and sell the remainder of the land. By re-subdividing the land, it would be possible to close two existing roads. By selling the re-subdivided land, the council expected to make a profit which would defray the overall costs of the redevelopment. The High Court held that the council had exceeded its powers. W hile it was entitled to resume land for road-building purposes, it was not empowered to do so to enable it to close existing roads or to make profits which could otherwise have been enjoyed by the land owners. In Re Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981) 151 CLR 170; 38 ALR 439, the High Court accepted that powers conferred under a Planning Act could be used for planning purposes only, and not for the purpose of defeating an Aboriginal land claim.

8.3.2 Applying the principle The principle is straightforward. Applying it is not. First, it may be difficult to assess whether a power has been conferred for a particular purpose and if so for what purpose or purposes. Second, it may be difficult to prove that the powers have been exercised for an improper purpose. In Thompson , this was a reasonable inference given the nature of the scheme, and the documentary evidence. The planning scheme which gave rise to Re Toohey was found by Olney J, the Aboriginal Land Rights Commissioner, to have been made for an improper purpose on the basis of its implausibility as a town planning scheme, and on the basis of evidence as to its proponents’ intentions. In other cases evidence of improper purpose may be harder to gather. Indeed, those affected by a decision may not even be aware of the improper purpose. A third difficulty arises where the improper purpose coexists with proper purposes. In some cases, courts have held that an improper purpose vitiates a decision only if the decision was made only for the improper purpose. In Thompson , the High Court held that the improper purpose vitiated the decision so long as the decision would not have been made but for that purpose. [page 169] More recently, members of the New South Wales Court of Appeal expressed some doubts as to whether the ‘but for’ test was the appropriate test. In Warringah Shire Council v Pittwater Provisional Council (1992) 26 NSW LR 491 at 509, Kirby adverted to problems posed by the Thompson test ; and Mahoney JA seemed to accept that a matter might be both an improper sole or substantial purpose, and a consideration which might nonetheless be taken into account, along with others (at 516–17). It is certainly not always easy to apply the test.

In Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678; 41 ALR 467, the High Court considered the position where a board with power to acquire land for its purposes sought to compulsorily acquire land to build new premises which would be used both by it, and by the Government Insurance Office (GIO). In exchange for this arrangement, the GIO was prepared to provide finance. The board could have erected a smaller building which would not have required any resumption of land, but there was evidence that it would have been preferable to resume the land even if the board had elected to erect a smaller building for its sole occupancy. The High Court held that the acquisition was for a proper purpose. The appellants had no right to require that a smaller or different building be constructed. It was absurd to suggest that the board should have constructed a building which would involve underdevelopment of a reasonable city site. It was also legitimate for the board to make allowance for its future office needs. The High Court had no problem reaching its decision, but it left unanswered a number of awkward questions: how should the board’s purpose or purposes have been characterised (building an office (the purpose attributed to the board by the High Court); developing land properly; passing on the costs of achieving optimal land use from itself to the person whose land was to be resumed, while enjoying the benefits)? The first purpose was clearly not an improper one, but could one be confident that the last one would not be an improper purpose, and if so, on what grounds? In Thompson and in relation to Olney J’s eventual decision in relation to the validity of the Northern Territory planning regulations, the evidence strongly suggested that the decisions would not have been made but for the improper purpose. In cases where the decision is inspired both by proper and improper purposes, it may be far more difficult to assess whether the same decision would have been made if improper purposes had been disregarded. Even the decision maker might not know. Finally, problems may arise where decisions are made by collective bodies. W hat is the position where some members are influenced by improper purposes, and others are not, or where both supporters and opponents of a decision are influenced by improper purposes? One approach would be to count heads. A second approach would be to take account of who effectively makes the decision. A third approach would be to treat as vitiated any decision made by a collectivity any of whose members acted for an improper purpose. In Thompson , it was not necessary to consider the issue. In relation to the Kembi claim (Kembi (Cox Peninsula) Land Claim (unreported, Aboriginal Land Commissioner, 8 December 1988), Olney J took account of the agreed fact that in the Northern Territory Cabinet the minister directly responsible for the decision normally carried the day in relation to matters within the minister’s [page 170] portfolio. In IW v City of Perth (1997) 191 CLR 1; 146 ALR 696, where the High Court was considering when a purpose could be attributed to a city council (for the purposes of an anti-discrimination action), Toohey and Kirby JJ were content to consider that a collective decision was invalid if there would not have been a majority for the decision but for the votes of those actuated by the improper purpose. Gummow J, however, on the analogy of the position where there is a biased member of a collectivity, concluded that the decision was invalid if any member supporting it had acted for the improper purpose.

8.3.3 Improper purposes and irrelevant/relevant considerations The improper purpose ground overlaps closely with the irrelevant consideration ground. Indeed, it is hard to imagine situations in which a decision was made for an improper purpose but where the improper purpose was not an irrelevant consideration. However, one case which suggests that an improper purpose is not necessarily an irrelevant consideration is Warringah Shire Council v Pittwater Provisional Council . In that case Mahoney JA considered that the minimisation of redundancy payouts would be an improper purpose if it had been the reason for the decision, but not an irrelevant consideration if it had merely been one of the matters taken into account in reaching the decision. However, if an improper purpose was not the reason for the decision, taking account of that purpose would not vitiate the decision even if the purpose were to be classed as an irrelevant consideration.

Problem Aidan Achilles, a Canberra grocer, was driving home and had stopped at traffic lights when a pedestrian suddenly wrenched open his car door, shouted at him: ‘You’re the … Minister for Industrial Relations’, and punched him in the face, causing him severe injuries. He was traumatised by the event and is now reluctant to travel anywhere except by bus. (This is just as well because, three weeks before the incident, his driving licence had expired, and he had not got round to renewing it.) He was also unable to work for 20 weeks. On a friend’s recommendation, he visited Dr Sigmund Prude, a listed counsellor, having three sessions with him. Because of an industrial campaign by assessors, it was not possible for him to gain approval for this prior to commencing counselling. He applied for compensation and his case was handled by Henry Galton, an assessor. Mr Galton based his decision on Mr Achilles’ average weekly earnings on his tax returns for the two years ending 30 June prior to the date of his determination, rejecting Mr Achilles’ claim that his earnings in recent months had been considerably higher. Mr Achilles says that had recent earnings been taken into account, his immediate prior average weekly income would have been $750 per week, rather than the $500 which had been the assessor’s estimate. In all, Mr Galton decided to award him a total of $10,000 to cover financial loss. He also awarded an amount for compensable injuries as prescribed under the Victims Compensation Act 2008 (Cth) and Regulations made [page 171] under the Act. He awarded $55 to cover two hours of counselling by Dr Prude. Dr Prude’s charge for counselling is $190 per 50-minute session. Mr Galton refused to permit further counselling with Dr Prude, notwithstanding a report in which Dr Prude had concluded that Mr Achilles would benefit from further counselling. He told Aidan: ‘Sigmund is far too expensive, and

anyway he’s no good. It’s clear from his report that he doesn’t know what he’s doing. If you’re to have counselling, you must agree to counselling that works. My general practice is not to approve anyone except a practitioner of the Hitachi method. It’s the only method that works. Otherwise I won’t have you wasting the taxpayer’s money.’ Mr Galton’s assessment of Dr Prude is in fact correct. A study of victims counselled by Dr Prude shows that 12% of them committed suicide within three years of beginning treatment, and another 53% were subsequently treated for severe mental illness. The averages for other registered counsellors are 2% and 17 per cent. Based on this study — of which Mr Galton is completely unaware — the Director is proposing to remove Dr Prude from the list of designated counsellors. Mr Galton is married to one of the three practitioners of the Hitachi method who have been approved by the director. Mr Achilles is incensed at what he regards as the assessor’s errors and is adamant that he wants to apply for judicial review. Would he be likely to succeed if he applied on the grounds of error of law, exercising his discretion on the basis of the wrong considerations, and acting for an improper purpose? Of those grounds considered in previous chapters, are any applicable to this case? Advise Mr Achilles.

Discussion Normally, you would consider all the possible avenues of review, and you would recommend an application for judicial review only if this was preferable to the alternative avenues of review: see Chapter 17 . You would have advised Mr Achilles that he can appeal to the AAT in relation to the assessments of financial loss and to the director against decisions in relation to additional counselling. You would also have advised him that there is no provision for internal or external review of the decision to provide limited reimbursement for the counselling which Mr Achilles has already received. But the question assumes that this advice has been rejected. Mr Achilles wants judicial review, and your job is to advise him as to the likely success of such an application. Moreover, you are not asked to address all the possible grounds for review which might be open.

What is being reviewed? First, you should note that there may be four different ‘decisions’: the ‘financial loss’ decision; the decision to award only partial compensation for Mr Achilles’ first two counselling sessions (the ‘counselling compensation decision’); the decision to refuse to fund further counselling by Dr Prude (the ‘further counselling decision’); and the ‘decision’ to condition funding for any further counselling on Mr Achilles’ agreeing to undergo counselling with a ‘Hitachi’ counsellor (the ‘Hitachi decision’). The ‘Hitachi decision’ may not constitute a reviewable decision under the ADJR Act, since it may be more in the nature of an indication of intent than a final or operative decision. It is not reviewable ‘conduct’. It is, however, behaviour which must be taken into account in determining the validity of the further counselling decision and, as we [page 172] shall see, the legality of Mr Galton’s conduct in relation to the making of reviewable decisions. Its validity might also be reviewable under the Judiciary Act 1903 (Cth) s 39B.

The financial loss decision The assessor has clearly erred in his interpretation of ‘immediate prior average weekly earnings’: see Victims Compensation Act 2008 (Cth) s 5. This error is not, however, fatal to the validity of the compensation decision (the only decision to which it could be relevant), since the maximum that can be paid for financial loss is $10,000 (s 18(4)). The error did not therefore affect the validity of the final decision.

The counselling compensation decision Mr Galton erred in refusing full compensation for the costs of Mr Achilles’ first two counselling sessions with Dr Prude. Section 21(2) gives a right to an initial period of two hours of counselling. Section 21(7) provides for payments ‘by way of reimbursement’ — which implies a right to full compensation. These payments ‘may’ be made, but the word ‘may’ is used in a context which suggests that ‘may’ confers not a discretion as to whether to make the payments, but a power to make them by reimbursement rather than by payment to the provider. Further, the entitlement under s 21(2) would be defeated if decisions could be made as to what was an appropriate amount for counsellors to charge. If the Act failed to include provisions to deal with overcharging, it might be arguable that entitlements would be to ‘reasonable’ compensation (however determined) and no more. The requirement that counsellors be approved (subss 21(1) and (10)) provides a mechanism for ensuring that counsellors’ charges are not excessive. The approval of Dr Prude must arguably be taken as involving willingness to meet whatever amounts he charges, or — at least — whatever he charged at the time he was approved. In awarding only $55 per hour Mr Galton can arguably be treated as having: (a) erred in law; and (b) taken account of an irrelevant consideration (his own assessment of what constitutes a reasonable rate of payment to a counsellor).

The Hitachi decision If Mr Galton’s purpose in putting pressure on Mr Achilles to use a ‘Hitachi method’ counsellor was to divert business to his wife, this would clearly involve abuse of power or the use of a power for a purpose other than that for which it was conferred. Here there is an alternative explanation, namely that he genuinely believed the Hitachi method to be the only effective method, and mandated it for that reason alone. A third possibility is that he was influenced by both beliefs and familial interest. In this event, the question would be whether the purported decision would have been different had there been no familial interest. If beliefs were persuasive, but familial interests tipped the balance, the decision would be flawed under the ‘but for test’ as involving an abuse of power and the exercise of a power for a purpose other than that for which it was conferred. Moreover, while there is some doubt as to whether the ‘but for’ test applies in relation to improper purposes, it is clear that it does apply in relation to cases where it is contended that irrelevant considerations were taken into account. Even if improper purposes are not necessarily irrelevant [page 173]

considerations, this would seem to be a case where the improper purpose would also be an irrelevant consideration, since it seems reasonable to conclude that decisions not be influenced by whether they would be to the decision maker’s family’s advantage. If the decision would have been the same regardless of Mr Galton’s familial interests, it would not amount to an exercise of a power for an improper purpose. (Even then, however, the decision could be flawed on the grounds of reasonable apprehension of bias: see 11.2.1 – 11.2.22 .) Assuming the restrictive requirement would have been imposed quite apart from familial interests, it is arguable that it does not amount to an exercise of a power for a purpose other than that for which it was conferred, since it can be assumed that decisions in relation to the financing of counselling are to be based on assessments as to whether counselling will be effective. It is also arguable that Mr Galton’s conduct indicates that he has adopted a policy which is inconsistent with the Victims Compensation Act 2008 (Cth). The Act envisages that counselling may be appropriate if provided by a ‘professional counsellor chosen from a list of counsellors designated by the Director’: s 21(10). Mr Galton’s ‘policy’ is analogous to the policy adopted by the Director in Green v Daniels (1977) 13 ALR 1, the practical effect of which was to deny benefits to people who would have been entitled to benefits under the Act. It is therefore an illegal policy. The fact that he envisages circumstances in which he might depart from the policy does not alter the fact that he intends to act on the basis of an illegal policy. For this reason, too, his conduct is unlawful.

The further counselling decision The further counselling decision seems to have been based on two grounds: Dr Prude’s incompetence; and the inadequacy of any counselling other than Hitachi counselling. If the further counselling decision was influenced both by Mr Galton’s assessment of Dr Prude and by his belief that only the Hitachi method was satisfactory, it would be flawed if the ‘Hitachi decision’ was flawed. If Mr Galton’s assessment of Dr Prude’s competence constituted a sufficient reason for the ‘further counselling’ decision, this decision could probably withstand attack on the error of law and considerations grounds even if the Hitachi decision were found to be flawed. In the circumstances of the case, it is unlikely that the court would find that Mr Galton’s preference for the Hitachi method was not a reason for the further counselling decision. This, however, would be a question of fact for the court. Even assuming the decision turned solely on Mr Galton’s assessment of Dr Prude, the decision may be flawed. It could also be characterised as a failure to take account of a relevant consideration (namely the contents of a report from an approved counsellor). Section 21(1) implies that one purpose of initial counselling sessions is to assist in applications for continued counselling, and therefore that reports made following such sessions should be relevant to decisions in relation to the financing of further counselling. Here, however, Mr Galton might claim to have considered the report. (He makes reference to its content, albeit disparagingly.) The weight to be attached to a consideration is a matter for the decision maker (subject to the ‘reasonableness’ requirement — on which, see below, 9.1.1 – 9.1.5 ). We have too little [page 174] evidence to know whether the decision is unreasonable. The statistics suggsting that Mr Galton’s suspicions are wellfounded are not themselves relevant to this issue since Mr Galton was not aware of them. But it might be said that the attention given to Dr Prude’s report is so perfunctory as not to amount to taking it into consideration. This would at least be arguable. The foregoing arguments do not preclude the possibility that the decisions are flawed on other grounds. In conditioning approval of future counselling on Mr Achilles’ willingness to agree to a particular form of counselling, the assessor appears to be applying a rule or policy without regard to the merits of the particular case. The argument that he had had regard to the merits, but was of the view that there were none may be no answer: in Khan v Minister for Immigration and Ethnic Affairs (1988) 14 ALD 291, Gummow J said that what was required was that the decision maker ‘give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy’. This formula has subsequently commanded general acceptance. See, for example, MIEA v Wu Shan Liang (1996) 185 CLR 259 at 266; 136 ALR 481 per Brennan CJ, Toohey, McHugh and Gummow JJ. In addition, there may be other grounds on which the decisions might be successfully attacked. We shall consider some of these in the next chapter. As you read it, consider whether any of those grounds might be applicable to this case.

Further tutorial discussion 1. 2.

3. 4. 5.

If their Lordships in Roberts v Hopwood [1925] AC 578 had been applying the principles laid down by Mason J in Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299, would their decision have been different? In what circumstances might an administrator make an error of law without either taking account of irrelevant considerations or failing to take account of relevant considerations? Are there cases where the absence of an error of law could coexist with a decision flawed on relevant/irrelevant considerations grounds? W hat problems could arise from the invalidity of a regulation or local law which has been made for an improper purpose? Does the fact that a purpose is a necessary condition for a result mean that the cause is a substantial cause of the result? Is it meaningful to talk of something being a ‘substantial’ cause? A council votes 9–4 to approve a development. Of the nine, three were inspired by improper purposes. Is and should the decision be a legal nullity? Suppose it voted 9–4 to defeat a motion to approve a development with three councillors actuated by some improper purpose. W hat would and should be the status of the council’s decision?

[page 175]

Further reading Aronson, M and Groves, M, Judicial Review of Administrative Action , 5th ed, Thomson Reuters, Sydney, 2013, ch 4.7–4.12, 5.1–5.2 and 5.6. Douglas, R and Head, M, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014, chs 10 and 11. W heelwright, K, Barnes, J and Gaze, B, ‘The Avoidance of Judicial Review: Lessons for Health Policy Implementation’ (1996) 3 Australian Journal of Administrative Law 145.

[page 176]

9 Judicial Review of the Merits? General In this chapter we discuss review on the grounds of ‘unreasonableness’ and review based on the inadequacy of evidence. The former ground overlaps with the grounds considered in previous chapters (see Chapters 7 – 8 ), but there are cases where it constitutes an independent ground for review. Review based on the inadequacy of evidence is normally justified on the basis that decisions made on the basis of inadequate evidence involve errors of law, but it may also be based on the ground of unreasonableness, and in exceptional cases, it will be possible to review a finding of fact on the grounds that it was wrong. Review on the grounds of unreasonableness and review on the grounds of inadequate evidence can come close to merits review, and an activist judiciary could use these grounds as a basis for a considerable expansion in the scope for judicial review. Australian judges have, however, generally resisted this temptation.

Objectives After studying this chapter, you will understand: 1. review on the grounds of unreasonableness; and 2. the circumstances in which an administrative decision can be successfully challenged on the basis that it is not supported by evidence, or on the basis that it is wrong.

1 Unreasonableness 9.1.1 Introduction Self-evidently outrageous administrative decisions will usually fall foul of one or more of the standard grounds of review, but there remains a residual ground: unreasonableness. The rationale for the ‘unreasonableness’ [page 177] ground is that it can reasonably be assumed that when powers are conferred on administrators, they are conferred on the basis that they will not be exercised in an undeniably unreasonable manner nor so as to produce undeniably unreasonable results. This does not, however, mean that they are conferred on the basis that they shall only be exercised in a manner and with results which a court regards as optimal in the circumstances. This would transform judicial review into merits review, a result desired neither by governments nor (one suspects) by courts. Courts have therefore favoured a relatively restrictive interpretation of ‘unreasonable’. To fall foul of the ‘unreasonableness’ ground, an administrator’s behaviour must have been so unreasonable that no reasonable decision maker acting according to law could have acted as the administrator did in the case in question. This test, known as the Wednesbury test (in honour of the test enunciated by Lord Green MR in Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230), also appears as a ground in the Judicial Review Acts: Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) ss 5(1)(e), 6(1)(e), 5(2)(g) and 6(2)(g); Judicial Review Act 1991 (Qld) ss 20(2)(e), 21(2)(e) and 23(g); Judicial Review Act 2000 (Tas) ss 17(2) (e), 18(2)(e) and 20(g). Framed thus, the logic of the test is that if an act is found to be unreasonable, either the administrator must be an unreasonable administrator, or the administrator must have acted other than according to law. The former finding would be a damning indictment of the hapless administrator. The latter is less damning. Even reasonable administrators may not always act according to law. If, however, the act is unreasonable because the administrator acted unlawfully, it would not, in principle, be necessary to rely on the unreasonableness ground. The act could be challenged on the basis of the unlawfulness which was the basis for its unreasonableness. In practice, there are cases where it is nonetheless necessary to rely on the unreasonableness ground even when the unreasonableness is in fact based on some kind of legal error. First, in the absence of access to the relevant documents and in the absence of access to reasons, it may be difficult to identify which particular legal error the administrator has committed. In these cases, the decisionmaking process is the classic psychologist’s black box. Unlawfulness must be inferred from its fruits rather than from more direct signs of its existence. Second, even when there is relevant material, this may not provide evidence of relevant errors. Reasons for decisions are not always recorded on file, and when formulated

following (say) a request for reasons under s 13 of the ADJR Act, may well be provided with a view to their being an ex post facto justification of the decision rather than a frank description of the decision-making process. That said, cases where the unreasonableness ground has been upheld are almost invariably cases where the act has also been found to fall foul of some other criterion. The unreasonableness ground has recently been considered by the High Court: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; [2013] HCA 18. The respondent had appealed to the Migration Review Tribunal (MRT) against a decision by the minister’s delegate to refuse an application for a visa. At issue was whether Ms Li satisfied the requirements. The relevant agency, [page 178] Trades Recognition Australia (TRA), decided that she did, but on the basis of incorrect information. The visa application was refused. A subsequent application was made, but refused on the basis of an adverse TRA finding, but the respondent’s agent had asked TRA to reconsider. The MRT refused an application for an adjournment pending the TRA’s decision and affirmed the delegate’s decision. Ms Li appealed successfully to the Federal Magistrates Court and the Commonwealth appealed unsuccessfully to the Full Federal Court and then to the High Court, arguing that in refusing the adjournment, the MRT had complied with the legislation governing its deliberations and that the refusal was not ‘unreasonable’. The correct standard was Wednesbury unreasonableness and that this standard had not been met. The High Court resolved the case on the basis that the power was a discretionary power and therefore subject to a presumption that it be exercised reasonably. Three of the five justices rejected a strict application of the Wednesbury test, inclining towards the test governing the review of judicial discretions: at [68] and [75] per Hayne, Kiefel and Bell JJ. French CJ concluded that if unreasonableness constituted the only grounds for challenging the decision, the Wednesbury test applied, but that if the unreasonableness also constituted another ground for review, the unreasonable decision could be quashed even if it was not Wednesbury unreasonable: at [24]–[28]. Gageler J agreed that unreasonableness of itself could not constitute grounds for review unless it favoured the Wednesbury standard. The Court also emphasised that the standard depended on the construction of the statute which conferred the relevant power: [29] per French CJ; [85] per Hayne, Kiefel and Bell JJ; [90]–[92] per Gageler J. The case did not turn on whether the strict test should be applied: Gageler J concluded that this was a ‘rare case’ where it was satisfied (at [113]) and French CJ thought likewise: at [31].

9.1.2 Defining unreasonableness There is, therefore, a residual role for the unreasonableness ground. It deals with the black-box problem. It also deals with the ‘unreasonable’ administrator. Unreasonableness is, however, a slippery term. Moreover, since the classification of administrative behaviour as unreasonable is regarded as a question of law, it is not one which could be disposed of by handing the issue over to a jury of administrators — even in the unlikely event that anyone would want to. Unreasonableness is almost indefinable, except in the circular sense that one can say that behaviour is unreasonable if it would be treated as such by a court. This definition is not altogether unhelpful. One way of assessing how behaviour is likely to be regarded by a court is to see how courts have handled allegations of unreasonableness in similar cases. Margaret Allars, in Introduction to Australian Administrative Law (Butterworths, Sydney, 1990, [5.53]–[5.57]) has suggested that one can go further and extrapolate from previous decisions a number of ‘paradigm’ cases where courts may be particularly willing to make findings of unreasonableness. Moreover, familiarity with the case law may also provide a feel for underlying judicial beliefs, and these will provide clues as to whether courts — or particular judges — are likely to treat administrative behaviour as ‘unreasonable’. Here — and subject to the caveat that the categories of unreasonableness are never closed — we set out a number of categories of case in which unreasonableness has been successfully relied on. [page 179]

9.1.3 Irrationality Several cases have suggested that decisions are unreasonable if they have been reached as a result of an irrational reasoning process. In Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381; 112 ALR 211, the Federal Court declared a decision void on the grounds that it had been based on statistically fallacious reasoning. The judgments in the case throw virtually no light on the nature of the fallacy, and the court’s assessment that the reasoning was fallacious seems to have been based on the existence of uncontested evidence to this effect rather than on the court’s understanding of that evidence. In a subsequent case where the statistician’s evidence was contested, Gummow J found that the decision was not unreasonable. It appears that for irrationality to amount to unreasonableness, its irrationality must be self-evident or uncontested. It may be for this reason that successful challenges based on alleged irrationality are so rare. There is another difficulty with the irrationality ground: Mason CJ’s dictum in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355; 94 ALR 11 to the effect that want of logic does not affect the validity of an inference so long as that inference is open on the evidence. Even if this is law (and Deane J at CLR 367 considered it was not), it applies only where there are also grounds for an inference. In Li , French CJ saw reasonableness and rationality as closely related, and was agnostic as to whether decisions could be rational but not reasonable: (2003) 249 CLR 332; 297 ALR 225; [2013] HCA 18 at [23]–[30].

9.1.4 Disproportionality? Disproportionality between the benefits to be gained by the exercise of a power and the costs imposed through its exercise has been recognised as a ground for invalidating administrative acts in Europe, and for invalidating subordinate legislation in Australia. Kirby P has argued that the disproportionality ground is to be distinguished from the unreasonableness ground, but the passage he cites in support suggests the

opposite (see New South Wales v Macquarie Bank Ltd (1992) 30 NSW LR 307 at 321–4), and it is tempting to conclude that invalidation of a regulation on the grounds of disproportionality rather than unreasonableness is little more than a polite verbal sleight of hand, whose effect is to exempt ministers and members of the parliaments which ratify their decisions from the charge of being unreasonable persons. The appeal of the disproportionality ground may also lie in the fact that in contrast to the unreasonableness ground, it has a (quite spurious) appearance of precision. To date, the only Australian cases in which (reasonable) proportionality has been recognised as a ground for review have been cases dealing with subordinate legislation: see, for example, South Australia v Tanner (1989) 166 CLR 161; 83 ALR 631 (where disproportionality was not made out). There is, however, no reason to assume that disproportion between powers and administrative exercises of those powers would not amount to unreasonableness. Indeed, the case of Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; 65 ALR 549 can be seen as an example of an unreasonableness case where unreasonableness was inferred on the basis of disproportionality between the costs of taking a course of action and the costs of failing to do so. There, W ilcox J found that an administrator had acted unreasonably when it was or should have been obvious that material centrally relevant to the decision was readily available but where the decision maker had made no attempt to obtain that information. [page 180] The decision in Li turned partly on disproportionality: the costs to Ms Li of the adjournament being refused were far greater than such limited benefits as might flow from procedural rigour. But French CJ concluded that mere disproportion could not be enough unless ‘it exceeds what, on any view, is necessary for the purpose it serves’: (2003) 249 CLR 332; 297 ALR 225; [2013] HCA 18 at [30].

9.1.5 Other paradigm cases? Allars has suggested other circumstances in which behaviour or decisions might be unreasonable, and in particular suggests that unequal or inconsistent treatment might fall within that rubric unless decision makers could give good grounds for this different treatment. There is little illustrative case law. Parramatta City Council v Pestell (1972) 128 CLR 305; 46 ALJR 662; [1972] ALR 811 provides one example. A council carried out improvements which benefited premises in a particular area. To pay for those improvements, it levied a special rate, but only on some premises within that area. Broadly, it imposed the special rate on industrial premises, but not on an ‘island’ of lots which contained dilapidated cottages. These lots also benefited by the scheme. The High Court held by majority that the criterion for determining liability to pay the special rate was so unreasonable as to render it invalid. Like cases were not treated alike. Twenty years of ADJR Act litigation has generated scant additional authority. Inconsistency (but as a ground in its own right) was recognised as a ground for review in Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121; 15 ALD 525, but does not appear to have been recognised as such or as indicative of unreasonableness in any other case. New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 51 FCR 369; 131 ALR 559; 38 ALD 573 provides a rare example of unreasonableness based on unequal treatment, but highlights the difficulties that can arise from this equation. Two bodies, the Aboriginal and Torres Strait Islander Commission (ATSIC) and the Indigenous Land Corporation (ILC) received grants to purchase land for Aboriginal people. ATSIC could provide money for the purchase of land anywhere in Australia. The ILC was not permitted to finance purchases of land in the Northern Territory under land rights legislation which operated there, which was due to expire in 1997. The reason for the restriction on the ILC was to limit the degree to which alienated Northern Territory Crown land could be converted to inalienable title. W ith a view to overcoming this limitation, ATSIC decided to use virtually all the funds it had been given to acquire alienated Northern Territory land to which the land rights legislation applied, hoping to reach an arrangement with the ILC whereby it would subsequently make a correspondingly greater share of its grants for acquisitions elsewhere. ATSIC’s decision was challenged by Aboriginal groups from New South Wales, Tasmania and Queensland. Hill J held that the decision was unreasonable since it involved a decision by ATSIC to spend virtually all land purchases funds in a way which would benefit only those residing in a particular area. (He also considered that it was flawed on the grounds that it failed to take account of a relevant consideration — government policy — or alternatively that it took account of an irrelevant consideration — a quite erroneous view of the nature of that policy.) The absence of cases in point may reflect the integrity of Australian administrators. It may reflect the fact that unequal treatment may be manifested [page 181] in forms which mean that decisions are reviewable on other grounds. It may also reflect the conceptual problems associated with the concept of inequality. In what sense does Pestell involve unequal treatment of like cases? Could an argument be made out that ATSIC was in fact intending to achieve equal treatment in the long run? And, should one have pity for the hapless administrator whose decisions may be challenged both on the basis of too much (see Chapter 7 ) and too little consistency?

2 Evidence 9.2.1 Introduction Even where a decision must be based on findings of fact administrators may be empowered to make erroneous findings of fact provided that they have some justification for their findings. It is rare for administrators’ decisions to be set aside on the basis that the finding lacks justification, but there are several different grounds on which findings of fact can be challenged. These include error of law, unreasonableness, the

grounds set out in s 5(1)(h) and 5(3) of the ADJR Act, and possibly denial of procedural fairness. The existence of these different grounds has caused some confusion — especially insofar as they appear to imply somewhat different tests.

9.2.2 The need for probative evidence The minimal legal requirement is that factual decisions must be based on some evidence, and this means some probative evidence. Probative evidence is evidence which is sufficient to justify the decision in question. W hat makes evidence sufficient is by no means clear, and has rarely been discussed in the context of administrative decision making. W hat constitutes probative evidence appears to vary sharply depending on whether what is involved is a ‘social fact’ or a fact which is relevant to a matter involving a particular party. In cases where social facts are in issue, a judge’s beliefs suffice: for example, the High Court sees no problem in making decisions about community values or about the effect of particular laws or practices on the authority of the judiciary without any reference to any empirical material which might bear on the issue. W here decisions turn on the particulars of a single case, evidentiary standards increase sharply. But what matters is the existence of probative evidence, not how it is processed by the decision maker. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11, Mason CJ (at CLR 356–7) explicitly rejected the proposition that a finding of fact could also be challenged on the basis of a flaw in the logic linking the finding with the evidence on which it was based: At common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference — in other words the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

Deane J (at CLR 367), however, favoured a stricter test. There should be probative evidence, and the decision maker’s reasoning should link this evidence logically with the facts which it supposedly supports. [page 182] The requirement that findings of fact be based on probative evidence is subject to one quasi-exception. Administrators may sometimes act on the basis of their knowledge and experience. This is a quasi-exception because one way of conceptualising knowledge and experience may be to treat it as a form of evidence.

9.2.3 Unreasonableness I n Australian Broadcasting Tribunal v Bond , Mason CJ adverted only briefly (at CLR 356, 359–60) to the question of whether findings of fact could be challenged on the basis of their unreasonableness. He agreed that if a finding of fact amounted to a decision, it could be reviewed on the grounds of unreasonableness. Inferences could be reviewed on the basis that they were not reasonably open on the facts. Davies and Einfeld JJ in Szelagowicz v Stocker (1994) 35 ALD 16 at 21 agreed, but more lucidly: All the traditional ‘no evidence’ grounds, namely that the decision was ‘perverse’, ‘arbitrary’, ‘capricious’ or ‘unreasonable’ in the Wednesbury sense fall equally well within s 5(1)(e) and s 5(1)(f), for at their heart is the contention that no reasonable decision-maker would have so exercised the power.

9.2.4 Jurisdictional facts A third and rather different ground on which findings of fact may sometimes be reviewed is that the exercise of a power is conditioned on the actual existence of a fact. Examples of such powers are rare and even when the exercise of a power appears to be conditional upon the actual existence of a particular fact, courts will be reluctant to interpret the legislation in this way: see, for example, the observations of Dixon J in the context of decisions by inferior courts in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] ALR 119. The alternative is that unbeknownst to anyone involved in a decision-making process, an apparently impeccable decision may turn out to be void. Moreover, any decision as to whether the particular fact existed will necessarily be based on a standard of proof which logically implies that the finding as to whether the fact existed may itself be incorrect. W hile a legislature could by appropriate words oust the presumption in favour of common sense, it is hard to see why any legislature would want to. If it did, however, the validity of relevant decisions would depend on whether the factual prerequisites for the decision actually existed. Few cases turn on whether ‘jurisdictional facts’ exist. One group of exceptional cases involved immigrants who made materially false statements in their visa applications and who were deemed thereby to become illegal entrants. W here officials sought to act on the person’s status, review courts considered that the question was whether the applicant had in fact lied, rather than whether the official reasonably concluded that this was so: Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 107. The effect of this approach was to make the Federal Court a potential merits review tribunal in all cases involving deportation on the grounds of alleged false statements in applications, a result which it is hard to imagine that the legislature ever intended, and one which its subsequent amendment of the Migration Act 1958 (Cth) (by the Migration Reform Act 1992 (Cth)) suggests that it did not desire. An even odder decision was that of [page 183] the Full Federal Court in Australian Heritage Commission v Mount Isa Mines Ltd (1995) 39 ALD 262; 60 FCR 456; 133 ALR 353. There, by majority, the Full Federal Court held (at FCR 482) that: The status of a particular place as one having significance or other special value for future generations as well as for the present generation, as provided in s 4 (of the Australian Heritage Act 1975 (Cth)) is an objective fact, ascertainable by reference to its qualities. In ascertaining whether a particular place has those qualities, the AHC is bound to make an evaluation of the particular place which will involve matters of judgment and degree.

How one objectively assesses the special value of a particular site to future generations is a mystery to us, and it evidently was to the High Court which unanimously overturned the decision: Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; 142 ALR 622. In that decision, the High Court also discussed where review on the basis of error of jurisdictional fact fitted into the ADJR Act’s categories of grounds of review, concluding that s 5(1)(c) could be the only relevant ground, assuming (as there was in this case) some evidence for the existence for the disputed jurisdictional fact. However, in City of Enfield v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400 the High Court upheld an objection grounded in the claim that a decision maker’s erroneous finding of fact meant that it lacked jurisdiction to hear the matter. The legislation in question provided that if a proposed use of land was for ‘special industry’, it was a ‘non-complying development’. Non-complying developments required the approval of the minister and the local council. In relation to other developments, the approval of the Development Assessment Commission (the DAC) sufficed. The DAC, on deciding that a proposed development was not for a ‘special industry’, approved the development. The council argued that it had erred and sought to produce evidence to the Supreme Court that the development was indeed for a special industry. The High Court rejected the respondents’ contentions that the nature of the development was a matter for the DAC, finding that under the legislation, the DAC’s powers were conditioned on the nature of the development, and that the DAC could not, by its findings, give itself a jurisdiction which it objectively lacked. The decision means that there are cases where courts will inquire into matters which are arguably better handled by specialised bodies. However, legislatures which are concerned by this possibility can deal with it by conditioning the exercise of jurisdiction, not on the existence of particular facts, but on the decision maker’s (reasonable) belief that particular facts exist: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [54] per McHugh and Gummow JJ. This is what parliament typically does. (The fact that the South Australian Parliament did not relevantly amend its legislation following the Enfield decision suggests that it agreed with the High court’s decision.)

9.2.5 Procedural fairness There have also been suggestions that decisions based on inadequate evidence amount to a form of denial of procedural fairness: Minister [page 184] for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; 31 ALR 666; 44 FLR 41 at 67–8 per Deane J. There are undoubtedly cases where that will be the case. Decisions made in the absence of probative evidence are likely to be decisions where the affected party has not been put on notice as to all the matters he or she needs to address in submissions to the decision maker. More controversial is the implication that the duty to act on the basis of probative evidence forms a third rule of procedural fairness. (As to the other two, see Chapter 11 .) Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11 contended that this proposition had not so far been accepted by the High Court and implied that this was all to the good. It is doubtful whether much turns on this issue. One advantage of treating the rule as an element of the procedural fairness rules is that this would highlight the fact that there are some decisions which do not attract the ‘probative evidence’ rule and possibly provide a coherent basis for distinguishing those decisions which must be based on evidence and those for which evidence is not needed. On the other hand, this assimilation could also produce odd results. In particular it would mean that when bodies are specifically exempted from the requirement to comply with the rules of natural justice, they would also be exempt from the requirement to act on the basis of probative evidence.

9.2.6 Section 5(1)(h) Some confusion has been occasioned by s 5(1)(h) of the ADJR Act. This provides that a decision may be reviewed on the basis that there was no evidence or other material to justify the making of the decision. It is a ground which can be relied on only if at least one further condition is satisfied: s 5(3). The two conditions are (a) that the decision maker was entitled to reach the decision only if a particular matter was established, and there was no evidence on which the decision maker could reasonably conclude that the matter had been established; and (b) that the decision was based on the existence of a fact which did not exist. There has been some dispute in relation to the meaning of the section, and in particular in relation to whether the ground requires that there be (a) no evidence and satisfaction of one or both of the s 5(3) criteria, or (b) satisfaction of one or both of the criteria, this being both a sufficient and necessary condition for satisfaction of the s 5(1)(h) ground. The former interpretation would mean that there would be little point to s 5(1)(h). It would not achieve anything that could not be achieved by ss 5(1)(c), 5(1)(f) and 5(2)(g), and possibly even s 5(1)(a). Indeed in ‘no evidence’ cases, it would be easier to rely on error of law or even unreasonableness than on s 5(1)(h) as qualified by s 5(3). Attempts to carve out a role for the narrow version of s 5(1)(h) were not particularly successful. Mason CJ’s attempt in Australian Broadcasting Tribunal v Bond (CLR at 358) is unconvincing. The attempt by Davies and Einfeld JJ in Szelagowicz v Stocker (1994) 35 ALD 16 seems strained. On the other hand, the alternative interpretation could mean that s 5(1)(h) would so expand the grounds for judicial review as to ensure that courts would be able to engage in de facto merits review by enquiring into the factual foundation for any administrative decision. Nonetheless, there have been numerous Federal Court decisions favouring this interpretation. It prevailed in Curragh Queensland [page 185] Mining Ltd v Daniel (1992) 34 FCR 212; 27 ALD 181, where the Full Federal Court found that there was no evidence of a fact ‘critical’ to the decision and where the court found that the applicant had proved to the

requisite standard (balance of probabilities) that the fact did not exist. There is no reason why the applicant could not have challenged the decision simply on the basis of error of law. However, a challenge based on s 5(1)(h) may have served a strategic purpose, insofar as it yielded an authoritative finding by the Federal Court that a ‘fact’ which had worked to the applicant’s disadvantage did not exist. If s 5(3) meant that the ground was made out so long as one of the two conditions was satisfied, this would give it some operation, but it is clear from s 5(3) that satisfaction of a condition is a necessary but not a sufficient condition for an application based on s 5(1) (h). In 2002, the High Court examined the meaning to be given to a similar provision in the Migration Act 1958 (Cth). By majority, it rejected the narrow interpretation, while opting for a relatively strict interpretation of the s 5(3) requirements. In Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; 190 ALR 402; [2002] HCA 32, it rejected an appeal based on the ‘no evidence’ ground in a case where the Refugee Review Tribunal had based its decision on a number of findings of fact, two of which had been shown to be without foundation. The case is authority for the following propositions: Satisfaction of the s 5(1)(h) ground does not require that there be both no evidence to justify the decision and satisfaction of at least one of the two s 5(3) requirements. To succeed on the no evidence ground, an applicant has to show that the error was such that, but for the error, the decision maker would have made a different decision. It is not enough that the decision maker might have made a different decision. However, while rejecting the argument that the s 5(1)(h) and 5(3) requirements must both be met, Kirby J’s judgment contains passages which suggest that the s 5(3)(b) ground is not made out unless the decision that the fact existed was also ‘without any foundation in evidence or other material’ (at [113]), and see [104] where his Honour refers to a concession by the respondent that the no evidence and non-existent fact requirements were cumulative was ‘proper’. Callinan J seems to have favoured the view that s 5(1)(h) and 5(3) imposes cumulative requirements: at [151]. Gleeson CJ certainly did so. It is therefore unclear how far, and in what respects, the High Court has rejected the cumulation requirement. One thing is clear from the decision, however, and that is that regardless of what it entails, the ground is not easily made out. In a 2013 report, the Administrative Review Council addressed the question of whether and how s 5(1)(h) should be rewritten. The Council favoured making satisfaction of either limb of s 5(3) a sufficient condition for challenging a decision and amending s 5(3)(b) so that the relevant fact had to be a ‘critical’ fact: Administrative Review Council, Federal Judicial Review in Australia , Report No 50, 2012, pp 139–42. [page 186]

Problem Refer to the facts set out in the preceding chapter. Could the assessor’s decision be challenged on the basis of unreasonableness or lack of evidence?

Discussion The decisions You will recall that the case involved a number of decisions. The ‘financial loss’ decision appears to be correct, and will not be discussed here. Problems do, however, arise in relation to the compensation decision, the no further counselling decision, and the Hitachi decision.

Unreasonableness and the three decisions There are several bases on which Mr Achilles might argue that Mr Galton’s decisions are flawed by unreasonableness. One argument would take as its starting point the fact that Mr Achilles’ treatment was inconsistent with the treatment of other applicants for compensation. This assumes that other assessors are relatively open-minded in relation to the merits of different counselling strategies. Should that be so, Mr Achilles might argue either that he had been treated inconsistently or unreasonably, the unreasonableness being represented by unjustifiably inconsistent treatment.

Unreasonableness — inconsistency? While there is authority recognising that inconsistent treatment may amount to unreasonableness or constitute an independent ground for review, these all relate to cases where a single decision maker has treated similar cases differently. Here the problem is that different decision makers are treating similar cases differently. (Indeed, it is disturbingly possible that Mr Galton is consistent in his treatment of all applicants for compensation.) Is this a relevant distinction? Arguably it is: different decision makers will bring different values and approaches to particular problems. It is therefore inevitable that where decisions are made by numerous decision makers, there will be different decisions in relation to similar cases. Whereas it is not reasonable for one decision maker to apply different criteria to different decisions, it is not necessarily unreasonable for different decision makers to apply slightly different criteria. Good administration requires arrangements to ensure that interdecision-maker inconsistency is kept to a minimum. Failure to act on the basis of such arrangements may amount to reviewable error. However, insofar as statute, policy and other arrangements permit inconsistency, inconsistency between administrators may be tolerable where inconsistency on the part of a single decision maker would not be. Indeed,

inconsistency may be the price that is to be paid for willingness to exercise discretions to the full. In determining whether the decision is void on the basis of inconsistency-based unreasonableness, it is necessary to consider whether this inconsistency can be justified, after making allowance for the inevitability of a degree of inconsistency. Given Mr Galton’s beliefs, his behaviour was probably reasonable: if everyone else is wrong, it is reasonable to be deviant in order to be right. Indeed, to do otherwise might involve falling foul of the acting under dictation ground. From the standpoint of the reasonable observer, however, Mr Galton’s beliefs are almost certainly not sufficient justification for the inconsistency in this case. For one thing, a degree [page 187] of consistency has administrative merit; for another, entertaining beliefs in face of the fact that they are accepted by no other administrators itself comes close to constituting unreasonableness. However, it may be important to separate out inconsistency based on different assessments of Dr Prude, and inconsistency based on different assessments of the selfevident superiority of the Hitachi method. It is possible that Mr Galton might in fact have good grounds for believing in Dr Prude’s incompetence, but not for his beliefs about the Hitachi method (or vice versa). If this were so, inconsistent treatment based on his knowledge of Dr Prude might well not constitute unreasonable inconsistency.

Unreasonableness — irrationality? Mr Galton’s behaviour would arguably be unreasonable even if it did not produce inconsistency and inequality. It seems that his behaviour could be characterised as irrationality-unreasonableness. Since unreasonableness is a question of law and not of fact, the actual superiority (or otherwise) of the Hitachi method is largely irrelevant except in the sense that if it were the subject of common knowledge, it would affect judges’ willingness to characterise the assessor’s behaviour as unreasonable. If Mr Galton possessed expertise in relation to counselling techniques, the decision in relation to counselling methods might not be classed as unreasonable. If, as may be the case here, his beliefs are based primarily on what he has learned from his spouse, and if this learning has not been particularly systematic, his reliance on those beliefs is almost certainly unreasonable in the irrationality sense. His behaviour is analogous to that of the delegate in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 who based a decision on assumptions about the origins of the applicant’s depression, and who was found to lack any relevant qualifications. This was held to constitute unreasonableness. One suspects that the same would be said of the assessor’s behaviour. Similar considerations apply to Mr Galton’s assessment of Dr Prude’s competence, which is likely to be heavily coloured by his preference for the Hitachi method. However, if Mr Galton were an experienced assessor, his experience might provide him with good grounds for concluding that Dr Prude was incompetent. If so, this case could be distinguished from Fuduche.

Unreasonableness — general considerations? In any case, and quite apart from precisely how it is classified, Mr Galton’s behaviour involves such a departure from law, bureaucratic norms, and conventional cannons of reasoning that at least some of his decisions would be almost certain to be classed as unreasonable. Assuming, however, that his assessment of Dr Prude was reasonably based, the compensation decision would not be flawed on the grounds of unreasonableness (as opposed to error of law). The further counselling decision might not be flawed on the grounds of unreasonableness: that would depend on whether it was unreasonable in the light of both the considerations which influenced it. The Hitachi decision would, however, be flawed on unreasonableness grounds.

Evidence In relation to the Hitachi decision there appears to be no probative evidence. The position in relation to the counselling issue is less clear. The finding that the Hitachi [page 188] method was the only method likely to prove of assistance is one for which there appears to have been no probative evidence. The only grounds that Mr Galton had for his belief seems to have been such knowledge of the relative merits of this and other methods as he acquired from his wife. The position might be different if his conclusions had been based on his experience as an assessor, but there is nothing to suggest that this was the case, and it seems unlikely that his experiences would lead him to this conclusion. (They had not apparently led any other assessors to that conclusion.) If, as seems to be the case, there was no evidence for the Hitachi finding, then it would be flawed. A decision based on the finding would be flawed, the relevant error constituting an error of law. Insofar as the finding was based on Galton’s experience, and grounded a decision, that decision might not involve an error of law, but it would be unreasonable. If a decision was based on the finding, it might also be possible to challenge the decision on the grounds that it was based on a particular fact which did not exist: ADJR Act s 5(1)(h), 5(3)(b). This would depend on two issues. The first is whether the superiority or otherwise of a particular method can be called a ‘particular fact’. In some ways it seems that it is better classed as a conclusion than as a ‘fact’. However, assuming otherwise, it would be open to Mr Achilles to produce evidence to demonstrate that the ‘fact’ did not exist. This would require expert evidence in relation to the relative merits of different techniques. One would hope that the proponents of methods other than the Hitachi method could demonstrate that those methods were at least as promising as the Hitachi method. (It is not known whether they are.) But even if the Hitachi finding is flawed, the counselling decision may nonetheless be valid. As noted earlier, the only operative decision is the decision to refuse to finance further counselling by Dr Prude. While this may have been prompted by a belief in the superiority of the Hitachi method, it might also be one prompted by Galton’s assessment of Dr Prude. If so, errors in relation to the Hitachi issue would not be material. There are grounds for arguing that there has been an error of law in that there was no probative evidence that Dr Prude was not competent. Alternatively (and this amounts to much the same), the decision may not have been reasonable in the light of the evidence and material before the decision maker. But whether the further counselling decision is flawed through lack of evidence is by no means clear. On one hand, it might be argued that the assessor has acted on probative evidence: Dr Prude’s report. If that was the only

material before him in relation to the counselling issue and if it was clear from the report that Dr Prude did not indeed know what he was doing, then a decision to refuse funding would not be flawed on the no probative evidence ground. If, on the other hand, the report did not show that Dr Prude was incompetent, and if it suggested that further counselling would ‘work’, the decision to refuse to finance further counselling would be flawed, since there would be no probative evidence. There is a third possibility: it might not be clear from the report that Dr Prude did not know what he was doing, but the material in the report might be capable of sustaining the conclusion that Mr Achilles would not benefit from further counselling. If this were the case, the further counselling decision could not be attacked on the traditional no evidence ground. If Mr Galton’s opinion of Dr Prude was based on information acquired in the course of his career as assessor, this might [page 189] further save the no further counselling decision from attack on the basis of there being no evidence to support it. Evidence does not need to be the kind of evidence which would be admissible in a formal trial — but it must be probative. Mason CJ’s dictum in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11 might suggest that the position would be similar even if the assessor’s decision had been based in part on the assessor’s scepticism as to the merits of any method other than the Hitachi method. If the probative evidence could sustain a conclusion, it does not matter that the same conclusion is reached by a different and logically defective route. Deane J rejected this contention, and there are cogent grounds for doing so, especially where the decision maker might have made a different decision had he approached the evidence properly. Even assuming Mason CJ to be correct, the position would turn on whether the decision might have been different but for Mr Galton’s beliefs about the Hitachi method, assuming there to be no probative evidence to support these beliefs. An alternative basis for attacking the no counselling decision insofar as it was based on an erroneous assessment of Dr Prude’s competence would involve reliance on s 5(1)(h) and 5(3)(b) of the ADJR Act. These provisions are relevant only if a decision is based on a particular fact which does not exist. It seems clear that the decision was based on a finding that Dr Prude’s treatment would not work. Mr Achilles could therefore succeed if he could establish that this finding was a particular fact which did not exist. He would face two problems. First, it is not clear whether one can describe Dr Prude’s level of competence as a ‘particular fact’. Rather, it appears to represent an assessment (which, ideally, should be based on particular facts). Second, even assuming that it was a ‘particular fact’, Mr Achilles would need to demonstrate that it ‘did not exist’, and this would require proving that it was not correct to find that his treatment did not work. The fact that Dr Prude was an approved counsellor would be beside the point: it would represent an assessment of Dr Prude’s competence, but it would be for the court to determine whether the assessment was correct or not. On the basis of the known evidence, it appears that Dr Prude’s treatment does indeed ‘not work’. Perhaps Dr Prude’s clientele is confined to patients who are particularly disposed to suicide and severe mental illness. (The semi-random way in which Mr Achilles chose him seems to suggest otherwise.) Perhaps, too, Mr Achilles might be one of those unusual patients for whom Dr Prude’s treatment might be demonstrably likely to prove beneficial. But proof of this would be likely to be difficult, and the burden of proof would lie with Mr Achilles. There is authority to the effect that if a decision is based on a fact for which there is no evidence, the taking account of that fact can amount to the taking into account of an irrelevant consideration: Akers v Minister for Immigration, Local Government and Ethnic Affairs (1988) 16 ALD 688; 98 ALR 261. Assuming that this is indeed the case, it adds nothing to Mr Achilles’ case. If there is indeed no evidence, the decision is flawed anyway, and if the ‘fact’ does not exist, Mr Achilles can rely on s 5(1)(h). Mr Achilles would not succeed on any of the various ‘no evidence’ grounds. While the Hitachi finding is probably flawed, it also appears to be non-material. The counselling decision would almost certainly have been the same even if Mr Galton believed that there were methods other than the Hitachi method which also worked. Because the competence decision seems to be both factually correct, and based on evidence, it [page 190] would survive attack. Because the Hitachi finding does not represent a decision or conduct, its validity cannot be challenged under the ADJR Act. Insofar as it could be challenged, the expanded no evidence ground in the ADJR Act would not be available.

The irrelevance of Dr Prude’s incompetence The ‘fact’ that Dr Prude is incompetent has no bearing on the validity of Mr Galton’s decisions (except insofar as it bears on a challenge under s 5(1)(h)). It might, however, have a psychological effect on a court’s willingness to find that Mr Galton’s grounds for his belief in that ‘fact’ were not unreasonable. If a counsellor’s objective competence were a condition precedent to a decision being made to permit payment for continued treatment by that counsellor, this fact would be relevant. It would mean that no assessor could authorise continued payments to Dr Prude and that the assessor had made the only possible decision in relation to continued payments. There is, however, no reason to believe that Dr Prude’s objective competence is a condition precedent to approving continued payments. Quite apart from the strong reasons for construing statutes on the basis that they do not condition the exercise of powers on jurisdictional facts (on which see the judgment of Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] ALR 119), there is good reason to conclude that the statute is not intended to condition powers on ‘objective competence’. There is no express statement to this effect that objective competence is a condition precedent to such approvals. Indeed, there is not even an express provision to the effect that approved counsellors must be competent. It is no doubt envisaged that they will be, but the machinery for achieving this involves reliance on a prior process whereby counsellors are approved by the director, and possibly (putting the position as favourably as possible in favour of Mr Galton) a second process whereby assessors make decisions in relation to whether counselling is appropriate for particular victims of crime. Objective incompetence might be relevant to the exercise of discretion in relation to remedies (on which, see 12.2.2 ). It does not cure decisions based on facts for which there was no probative evidence.

Further tutorial discussion 1. W hat are the problems with treating unequal treatment as a ground for holding that administrative decisions are invalid? 2. Consider New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 51 FCR 369; 131 ALR 559; 38 ALD 573. Could it not be argued that the Commission’s decision was a reasonable one? Suppose ATSIC had gone ahead with its plans and worked out an arrangement with the ILC whereby the aggregate funds for land acquisition would have been distributed in a way which achieved rough equity across jurisdictions. Would the behaviour of both ATSIC and the ILC have been unreasonable? W hy is government policy a ‘relevant consideration’ for a body such as ATSIC? [page 191]

Further reading Aronson, M, ‘The Resurgence of Jurisdictional Facts’ (2001) 12 Public Law Review 17. Aronson, M and Groves, M, Judicial Review of Administrative Action , 5th ed, Thomson Reuters, Sydney, 2013, Pts 4.1–4.6, 4.13–4.17, 5.3–5.4, 6.8–6.10. Douglas, R and Head, M, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014, chs 12 and 13. Johnston, P, ‘Proportionality in Administrative Law: Wunderkind or Problem Child?’ (1996) 26 University of Western Australia Law Review 138. (Johnston argues that proportionality has a role to play in judicial review, where it overlaps with, but is not a mere subspecies of, unreasonableness. It has a more important role to play in merits review.) McEvoy, T J F, ‘New Flesh on Old Bones: Recent Developments in Jurisprudence Relating to Wednesbury Unreasonableness’ (1995) 3 Australian Journal of Administrative Law 36. Panetta, R, ‘Wednesbury Unreasonableness: Judicial or Merits Review?’ (2002) 9 Australian Journal of Administrative Law 77.

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10 Grounds of Review: The Implication of Procedural Fairness General The rules of natural justice, or procedural fairness as they are commonly known today, are principles developed to ensure that a fair decision-making procedure is followed and to enhance the substantive quality of decision making by ensuring that decision makers are well informed. In this way, procedural fairness protects the individual from arbitrary government action and ensures the legitimacy and integrity of decision making by administrators, tribunals and the courts. The failure to accord procedural fairness provides an important ground of review and basis for a remedy. In this chapter, we will consider when an administrator is required to afford procedural fairness. In the next chapter, we will examine the content of the duty in terms of the hearing rule and the no bias rule.

Objectives After studying this chapter, you will understand: 1. 2. 3. 4.

procedural fairness; the implication of the duty to afford procedural fairness; the historical development of the implication principle; and factors which qualify the operation of the presumption of procedural fairness: the construction of the statute; the decision-making framework; the nature of the interest; the requirements of good administration; the manner in which the interest is likely to be affected.

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1 Introduction 10.1.1 Origins The ancient rules of natural justice required that people were given an adequate opportunity to present their case to an unbiased authority before decisions, which affect them, were made. Initially these rules applied only to courts of law. They were later extended to quasi-judicial tribunals with functions similar to courts. More recently, with the growth of administrative decision making and the significant impact of these decisions, courts have extended the operation of natural justice principles to control the exercise of power by administrators.

10.1.2 Terminology The association of ‘natural justice’ with the procedures of the courts of law led many judges to use the term ‘procedural fairness’ in relation to the exercise of power by administrative decision makers: Kioa v West (1985) 159 CLR 550 at 583 per Mason J. Although there has been debate as to whether these terms embody different standards, the prevailing view in Australia is that the term procedural fairness now reflects the logical development of natural justice principles in their application to a wider range of decision makers, with an emphasis on the notion of fairness in administration. The terms ‘natural justice’ and ‘procedural fairness’ are often used interchangeably in relation to administrative law. To avoid confusion we will use the term ‘procedural fairness’, although in some of the cited cases, the judges have used the term natural justice.

10.1.3 Source The source of the obligation to accord procedural fairness is the common law. However, the rules of procedural fairness generally operate in a statutory context. Legislation may exclude the rules of procedural fairness expressly or by implication or it may prescribe relevant procedures: see 10.4.2 – 10.4.3 .

2 Implication of the duty to observe procedural fairness 10.2.1 Implication of procedural fairness W here legislation does not require observance of procedural fairness and the context suggests that it is unlikely that the rules were intended to be excluded: ‘the justice of the common law will supply the omission of the legislature’: Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 at 194; 143 ER 414 per Byles J. It is in these situations that procedural fairness is said to be implied by the common law. As a product of the common law, these rules are flexible and can be adapted to different factual situations. First, we will consider the historical development of the doctrine from the rigid rules to the current presumption that procedural fairness is implied. In 10.4.1 – 10.4.11 we will consider factors which affect the implication of procedural fairness.

3 Historical development of the implication principle 10.3.1 Two issues Before the growth of administrative decision making, as we now know it, any authority with the power to interfere with established rights was said to have a quasi-judicial function and therefore had to act in accordance with [page 194] the rules of procedural fairness. The following case identified two issues which dominated the application of these rules. In Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180; 143 ER 414, the Board of Works ordered demolition of Cooper’s partially completed house, at his expense, because he had failed to give notice of his intention to build. The legislation provided that the Board could demolish a house, which had been built without permission. Cooper was not given an opportunity to show cause why his house should not be demolished. Cooper sued successfully for trespass. The Court of Common Pleas identified two issues, which dominated the application of the rules of natural justice: the rules attached to decisions affecting fundamental rights , in particular rights to property, liberty and reputation. Consistent with the principle that statutes should be construed, so as not to interfere with fundamental rights, the court considered that the Board ‘should hear the party before they inflict upon him such a heavy loss’: at CB (NS) 189 per Erle CJ; and if the decision-making body was judicial or quasi-judicial, it was required to accord procedural fairness. In this case, the Board was subject to the duty as it possessed some of the characteristics of a judicial tribunal.

10.3.2 The nature of the decision-making body Until the 1970s, the right to procedural fairness was normally implied only if, in addition to having the power to affect rights, the decision-making body was judicial or quasijudicial. This approach, which sought to classify functions according to whether they were judicial or administrative, was entrenched by the interpretation given to the dictum of Lord Atkin in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171 at 205 that writs of prohibition and certiorari would lie: … [w]henever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority … [emphasis added]

In Testro Bros Pty Ltd v Tait (1963) 109 CLR 353, the High Court ruled that an inspector was not required to observe the principles of procedural fairness, as he was not required to act in a judicial capacity. However, the rationale for the super-added duty to act judicially was never clear. Bodies could be found to be under a duty to act judicially, even if not expressly required to do so, and even if they lacked many of the attributes of judicial officers as, indeed, was the case in R v Electricity Commissioners .

10.3.3 Demise of the duty-to-act-judicially requirement The landmark case of Ridge v Baldwin [1964] AC 40 introduced the notion that both the content of procedural fairness and the circumstances in which the obligation can be inferred are flexible. This case discarded the requirement that there must be a statutory duty to act judicially before the rules of procedural fairness would be implied. Lord Reid rejected the classificatory approach and explained how wartime legislation and a misinterpretation of Atkin LJ’s decision in R v Electricity Commissioners; Ex [page 195] parte London Electricity Joint Committee Co had led to the inappropriate imposition of this additional requirement to act judicially. In Ridge v Baldwin , the watch committee, exercising power under a statute to dismiss constables, had a duty to afford a hearing to a constable before dismissal. All that was necessary was that the administrator had a duty to determine the rights of individuals. The obligation on the watch committee to observe procedural fairness was inferred from the nature of the power (dismissal from employment) and its affect on the individual (future job prospects and loss of pension entitlements). In Australia, however, the duty-to-actjudicially requirement lingered on until 1977 when the High Court ruled in Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 that procedural fairness could be required even though there was no

expressly super-added requirement to act judicially. This issue was finally put to rest in FAI Insurances Ltd v Winneke (1982) 151 CLR 342 where the issue was whether the Governor in Council was required to accord procedural fairness. I n FAI Insurances Ltd v Winneke , the plaintiff insurer had applied for a renewal of its licence to provide workers’ compensation. FAI’s application referred to criteria set by the minister and requested an opportunity to make further submissions concerning any matter, which might prejudice approval. The Governor in Council, acting on the minister’s recommendation, refused the renewal without giving FAI a hearing. One of the issues was whether the choice of the Governor in Council, as the nominal decision maker, indicated a legislative intention to reserve the decision to the political realm, thereby excluding the right to procedural fairness. The High Court (Murphy J dissenting) held that an obligation to accord procedural fairness should be implied. The fact that the discretionary power was vested in the Governor in Council was not sufficient to exclude a right to be heard. The nature of the decision must be considered. The duty to act fairly would not attach where the community as a whole or large sections of it are affected by the decision, or where a decision affecting an individual is dictated by government policy. In policy decisions, considerations personal to the individual do not and cannot influence the outcome. All that is required in these situations is that the person be informed of the overriding policy considerations. In this case, however, procedural fairness should be implied, as ‘considerations personal to the individual’ could influence the outcome: per W ilson J at 398. The difference in the nature and character of the decision maker could be reflected in the content of the duty, and the manner in which the duty is discharged. The Governor in Council could, without inconvenience, give the appellant a hearing by delegating this function to a committee of its members or the minister.

10.3.4 Presumption of application of procedural fairness As the common law developed, a range of diverse administrative decision makers have been required to provide procedural fairness. The wide spectrum of decisionmaking powers to which the doctrine applies has led to a flexible approach, which favours a generalised assessment of the case rather than strict rules. The following case significantly relaxed the implication test for procedural fairness. It now appears that in the absence of a contrary statutory intention, there is a presumption that procedural fairness applies. [page 196] In Kioa v West (1985) 159 CLR 550 a deportation order was issued against the Kioas, who were citizens of Tonga, because they overstayed their temporary entry permit. The delegate’s report noted two allegations: that the Kioas had moved addresses, without informing the department, and Mr Kioa’s concern for other Tongan illegal immigrants together with his active involvement with those seeking to circumvent immigration laws was a ‘source of concern’. The Kioas sought review on the ground that they had been denied procedural fairness. The High Court (Gibbs CJ dissenting) allowed the appeal. The rules of procedural fairness applied to the exercise of this power to deport the Kioas. The Kioas were denied procedural fairness, as they were not given an opportunity to respond to the prejudicial comments in the deportation submission. The High Court accepted that there is generally a presumption that procedural fairness conditions the exercise of statutory power. Mason J noted (at 584) that: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

In general, the critical question is not whether procedural fairness applies, but what does the duty to act fairly require in the circumstances of the particular case. It is the content of procedural fairness that is the critical question. Procedural fairness is a flexible obligation. It requires procedures that are appropriate and adapted to the circumstances of the particular case. As Mason J noted (at 585): What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter and the rules under which the decision-maker is acting.

W here the decision is made in accordance with a statute, the threshold question is whether the legislature intended to condition the exercise of the power on the observance of the principles of procedural fairness. This question is answered by considering the statute’s subject matter, the interests which the power affects and the administrative framework created by the statute. In some situations, the content of the principles may be reduced to nothingness to avoid frustrating the purpose of the power. For instance, for reasons of security, a deportation order may be made without affording procedural fairness, as to give notice may facilitate evasion of the order. However, if the reason for the making of the order goes beyond the fact that the person is a prohibited immigrant and takes account of reasons personal to the person, such as conduct, health or associations, then as a matter of fairness, the person should have a chance to respond. In the Kioas’ case, adverse allegations had been made against the Kioas without giving them an opportunity to respond. These allegations concerned considerations personal to the Kioas based on information obtained from another source, which had not been dealt with by the Kioas in their application. It was these circumstances, rather than the nature of the Kioas’ interest, that led the court to hold that procedural fairness meant that the Kioas should have been given a hearing in relation to the prejudicial matters. [page 197]

Following FAI and Kioa there could be no doubt that the duty to afford procedural fairness did not depend on the existence of a duty to act judicially. Rather, the duty to afford procedural fairness implied, to an important degree, the existence of that duty.

The nature of the interest 10.3.5 Fundamental rights The nature of the interest is relevant to the implication of procedural fairness. We have seen, or will see, how the following rights have attracted the obligation: property: see 10.3.1 ; employment: see 10.3.3 ; financial: see 10.3.3 ; reputation: see 10.4.2 – 10.4.5 ; and status and personal liberty: see 10.3.4 .

10.3.6 Licences Historically, in determining whether there existed a right to natural justice, courts drew a distinction between rights and interests. In some of the earlier cases, it was held that licences amounted to a privilege rather than a right and therefore procedural fairness was not required: R v Metropolitan Police Commissioner; Ex parte Parker [1953] 1 W LR 1150. This distinction was eroded by Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222, where it was held that a taxi cab driver’s licence could not be revoked without according procedural fairness, as the licence is property, not a mere privilege and the holder has a legal right. Note that this distinction was based on the treatment of the licence in question as a form of property. (Taxi licences could be, and were, sold for considerable amounts of money.) The following table introduces you to three different categories of licence and indicates when these various categories have attracted the obligation to accord procedural fairness:

Forfeiture cases An existing licence cannot be revoked or cancelled without according procedural fairness, as the licence gives its holder a legal right.

Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222 (taxi cab licence)

Expectation cases Applicants for renewal of licences generally have a legitimate expectation of a renewal, particularly where an adverse decision would impact on their livelihood, career, business interests and reputation. In these situations, it will be inferred that at least the interests of the existing licensee will be considered before the renewal is refused.

FAI Insurances Ltd v Winneke (1982) 151 CLR 342 (workers’ compensation insurer’s licence)

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Application cases An initial application for a licence does not, on its own, attract the obligation. In these situations, the statutory and factual context must be examined first to determine whether procedural fairness should apply.

Kioa v West (1985) 159 CLR 550 (prohibited immigrants’ application to remain in Australia did not require procedural fairness, unless it is refused on grounds personal to the applicant, without their being notified and given an opportunity to respond)

10.3.7 Legitimate expectation The shortcomings of an approach which required classification of ‘rights’ led to the creation of the concept of ‘legitimate expectation’ by Lord Denning in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149. The main use of the concept was to indicate that beyond enforceable legal rights, there are interests, which nevertheless will attract procedural fairness, provided they are reasonably based: Kioa v West (1985) 159 CLR 550. The legitimate expectation ‘may serve to reveal whether the subject matter of the decision is such that the decision-making process is attended with the requirement that the person affected be given an opportunity to put his or her case’: Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 672 per Gaudron J. In Schmidt , the expectation of an alien holding an entry permit that he or she would be allowed to stay for the permitted time, was sufficient to give rise to the implication of procedural fairness. Despite the imprecise ambit of ‘legitimate expectation’, it was adopted by the High Court in the following case. In Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 Heatley was given a ‘warningoff notice’ by the Tasmanian Racing and Gaming Commission. The notice required him to refrain from entering any racecourse during the currency of the notice. Heatley was not given any advance notice, was not told of the grounds upon which the notice was issued and was denied an opportunity to present his case.

The High Court held that procedural fairness had been denied: any member of the public has a legitimate expectation, protected by procedural fairness, upon payment of the racecourse’s admission fee, of admission to the course. It is only an opportunity or an expectation, not a legal right: a member of the public cannot insist upon remaining at the racecourse contrary to the owner’s will. The only potentially enforceable right they may have is an entitlement to damages for breach of contract. Aickin J (at 509) described a legitimate expectation as: … an expectation that some form of right or liberty will be available, or will not be taken away without an opportunity for the subject to put his case.

10.3.8 Expectations of what? Expectations could take a variety of forms. They could relate to the continued availability of rights, liberties and opportunities, as was the case in Heatley and later in FAI Insurances and Kioa . They could also relate to the matters which would be considered and the type of procedure which would be followed, prior to any interference with a person’s interests: see Aickin J, cited [page 199] above. For a quarter of a century, courts have examined the circumstances in which relevant expectations might arise. Matters which have been held to give rise to legitimate expectations have included: Consultative practices: for example, in Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; [1984] 3 All ER 935, the House of Lords held that the existence of a prior practice of consultation between governments and unions in relation to working conditions would normally give rise to a legitimate expectation that these practices would continue, and would be discontinued only after the union had been consulted in relation to the proposed change in practice. (For other reasons, however, the union was held not be have a right to be consulted, given the circumstances of the case.) A minister’s statement to parliament that he would only depart from the Administrative Appeals Tribunal’s (AAT) recommendations in relation to deportation decisions, in exceptional circumstances, was held to give rise to a legitimate expectation that these recommendations would be followed. Consequently, the minister was obliged to consult any deportee, if he planned not to follow the AAT’s recommendation against deportation: Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 682 per McHugh J. A minister’s promise that a matter would be the subject of an ‘impartial’ assessment was held to give rise to a legitimate expectation that a decision-making process would be impartial, notwithstanding that otherwise there would have been no requirement that the process be impartial: Century Metals and Mining NL v Yeomans (1989) 40 FCR 564. Undertakings pursuant to a treaty were held to give rise to a legitimate expectation that a potential deportee be heard in relation to the question of whether his deportation would involve Australia’s being in breach of relevant treaty obligations, if it were to deport him: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

10.3.9 Expectation in fact not required? The language of legitimate expectations is ambiguous. In particular, it has not been clear whether the existence of such an expectation was to be determined on the basis of whether it was actually entertained by the person to whom it was attributed, or whether it was an expectation, which might reasonably have been entertained by the relevant person. In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 301 Toohey J said: Legitimate expectation in this context does not depend upon the knowledge and state of mind of the individual concerned. The matter is to be assessed objectively, in terms of what expectation might reasonably be engendered by any undertaking that the authority in question has given.

Thus, Teoh was found to have a legitimate expectation that the Australian government would comply with the provisions of international treaties, notwithstanding that, like [page 200] most Australians, he had no idea of either the existence or contents of the relevant treaties. As we shall see, however, the status of this decision is now questionable.

10.3.10 Legitimate expectation abandoned? The term ‘legitimate expectation’ has proved confusing and, over time, the relevance of whether a legitimate expectation exists has become increasingly unclear. Initially, the term constituted a useful basis for classifying substantive interests which fell short of legal rights, but which nonetheless warranted the attribution of a decision to act in a procedurally fair manner. However, implicit in the duty to act in a procedurally fair manner is that it is a duty which is largely independent of whether a substantive legitimate expectation exists. In practice, the existence of a duty to act in a procedurally fair manner was not usually grounded on the existence of a legitimate expectation. Rather, the legitimate expectation was a reflection of circumstances which gave rise to the duty. It was normally enough that the decision maker was in a position to affect another person directly and significantly. W hat typically mattered were not legitimate expectations, but interests. The one case where legitimate expectations might matter was where there would normally not have been a duty to afford procedural fairness, but where the decision maker’s conduct was such as to give rise to such a duty. Most of the recent cases where courts have relied on legitimate expectations have been cases where there otherwise might not have been a duty to act fairly, or where the duty to act fairly might otherwise have been less

demanding. Even in these cases, references to legitimate expectations were not always necessary. The duty to observe the relevant standards of procedural fairness could be grounded either in the expectation or independently in the requirement that procedures be fair. Typically, it did not matter whether one made reference to expectations or fairness, although parsimony would point to concern with fairness. Thus in Kioa , it was not necessary to show that expectations were created. It was enough to show that the delegate proposed to make a decision which would seriously affect the Kioas’ interests, and that this was based on serious allegations which had not been put to the Kioas for their comments. The Kioas may have been able to rebut some or all of the prejudicial allegations made against them, had they been given the opportunity to do so. However, there are occasions when it matters whether one examines legitimate expectations rather than fairness. There may be circumstances when legitimate expectations exist but where fairness does not require a hearing any different from that which would have been required in the absence of the relevant expectations. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 the High Court considered such a case. There, the minister intended to deport an Australian resident on ‘character’ grounds, following his conviction on a charge of importing heroin. The applicant was asked to comment on a number of matters, including the way in which his deportation might affect the best interests of his children (the department had implemented procedures to ensure that its decisions could not be challenged on the grounds successfully used in Teoh ). He was also asked to provide details of the address and phone number of the children’s mother and carers, so that the department could contact them. He did so, stating [page 201] that the mother, who had already written to the department, was the sole carer. The department failed to contact the mother, and the applicant argued that the minister’s decision that he be deported was flawed. He had a legitimate expectation that the carers would be consulted, and the department had not done so, nor advised him that they had not done so. The High Court unanimously dismissed the application. It did so on three grounds. First, it doubted whether the facts were such as to give rise to an expectation that the department would consult the mother. Second, four members of the court rejected the view, which had prevailed in Teoh , that a legitimate expectation could arise, even if the person relying on the expectation did not in fact entertain it. (Hayne J treated the question as still open.) Third, even if there had been an expectation that the mother be consulted, this was not necessarily relevant. W hat mattered was whether the applicant had relied to his detriment on the expectation. If he had not disclosed relevant matters, believing that the mother would do so, this would have meant that the department had used unfair procedures. But there was no evidence that this was so. Gleeson CJ stated (at 13): Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.

The practical significance of the case is limited, but it comes close to treating legitimate expectations as neither a necessary nor a sufficient condition for requiring that particular procedures be respected. If fairness is consistent with defeating objective and even subjective legitimate expectations, then it does not matter that those expectations are defeated: procedural fairness will have been done. Such cases will be rare, but Lam demonstrates that they can exist.

10.3.11 Procedural protection only One of the problems arising from reference to ‘legitimate expectations’ is that the existence of a legitimate expectation of a substantive outcome can be treated as giving rise to some kind of right to that outcome. This is illogical, since the reason the concept was imported into administrative law was to provide a basis for grounding a right to procedural fairness in cases where a person’s rights were not affected. However, this has not prevented attempts to convert expectations into enforceable rights. There is ample authority for the proposition that a legitimate expectation is no more than a reasonable expectation that a legal right or a legal liberty will not be interfered with, or will be conferred, by the administrator: Attorney-General (HK) v Ng Yuen Shiu [1983] 2 AC 629; [1983] 2 All ER 346. The protection given on the basis of a legitimate expectation is procedural only. A legitimate expectation does not compel a decision maker to act in a particular way, except insofar as it gives rise to an entitlement to procedural fairness. A representation in advance of the exercise of the power cannot hinder the administrator in performing a statutory duty or [page 202] exercising a statutory discretion: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17 per Mason CJ; see 7.3.3 . Quin was one of a small number of magistrates who were not reappointed when New South Wales abolished its system of Courts of Petty Sessions and replaced it with a system of ‘Local Courts’. The New South Wales Court of Appeal held that the magistrates had a reasonable expectation based on previous practice that they would be reappointed and that they should therefore have been given a hearing before the decision not to reappoint them was made. After the Court of Appeal’s decision, the Attorney-General decided that Petty Sessions magistrates should be appointed as Local Court magistrates in competition with other applicants on a merits

basis. The magistrates argued that they should have their cases considered under the old policy, which was to reappoint someone unless the magistrate was unsuitable, because, had they originally been afforded the procedural fairness to which the New South Wales Court of Appeal had held them to be entitled, their cases would have been considered under the old policy. Mason CJ noted (at 24): The case fails because it would require the court to compel the Attorney-General to depart from a method of appointing judicial officers which conforms to the relevant statutory provision, is within the discretionary power of the Executive and is calculated to advance the administration of justice.

I n Quin , Mason CJ did not completely rule out the possibility that an undertaking which gave rise to a legitimate expectation might also ground a substantive right, but he made it clear that, if so, this would be exceptional. In England, courts have been more willing to treat expectations as giving rise to rights, but, in Lam , after considering these cases, McHugh and Gummow JJ (with whom Callinan J agreed) firmly rejected any suggestion that this was the case under Australian law: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 21–26, 48. Gleeson CJ (at CLR 9–10) also rejected the proposition that a legitimate expectation could give rise to substantive rights, and Hayne J’s judgment suggests that he agrees: at CLR 37.

4 Factors which affect the operation of the presumption 10.4.1 How does the presumption operate in the circumstances of the case? As indicated by Kioa , the crucial question is usually not whether procedural fairness is implied but what the duty to act fairly requires in the circumstances of the particular case. These circumstances may include the nature of the inquiry, the subject matter and the rules under which the decision maker is acting. It is these circumstances which qualify the operation of the presumption that procedural fairness is always implied. We will now consider these circumstances under the following headings: the construction of the statute; the decision-making framework; the nature of the interest; the requirements of good administration; and the manner in which the interest is likely to be affected. [page 203]

Construction of the statute 10.4.2 Does the statute require procedural fairness? The legislation may make explicit provision for decision makers to accord procedural fairness in some form. For instance, s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that a person must be given a reasonable opportunity to present their case: see 3.5.8 . W here legislation lays down such rules, these are generally treated as governing the process, even where these standards are less rigorous than might have been implied by the courts: Queensland Medical Laboratory v Blewett (1988) 16 ALD 440 at 459–60 per Gummow J. However, as suggested by the following case, it cannot be inferred that the legislature intended to exclude the common law rules of procedural fairness, simply because it explicitly prescribes particular procedures. In Annetts v McCann (1990) 170 CLR 596 a provision of the Coroners Act 1920 (WA) provided for personal attendance and cross-examination of witnesses, if the coroner considered the person to have sufficient interest in the inquest. The coroner refused to hear submissions from counsel representing the parents of the deceased child. The question arose whether the procedural provision had the effect of excluding the common law rules of procedural fairness, particularly the right of the appellants to be heard in opposition to any potential finding prejudicial to their interests. The court held that procedural fairness had been denied. The legislation did not expressly exclude their common law right to be heard. The purpose behind the legislative provision was to abolish the coroner’s unfettered discretion concerning participation in inquests and to give interested parties the absolute right to attend the inquest, to examine or cross-examine witnesses and to be represented by counsel. The interests which the appellants represented included the protection of their deceased son’s reputation. Further, because they had been granted representation to the inquiry, they had a legitimate expectation that the coroner would not make findings adverse to their interests, without first giving them an opportunity to be heard in opposition to any such finding. However, the content of the rules of procedural fairness were reduced. The appellants were confined to making submissions in respect of matters which were the subject of adverse findings against them personally or against the deceased. They were not entitled to make general submissions.

10.4.3 Does the statute exclude procedural fairness? As required by Kioa v West (1985) 159 CLR 550, the construction of the statute is the starting point for determining the application of procedural fairness. Legislation can explicitly exclude the rules of procedural fairness. It can also limit procedural rights which might otherwise exist: see, for instance, Migration Act 1958 (Cth) ss 51A, 97A, 118A, 127A, which provide that the procedural requirements set out in specific parts of the Act constitute exhaustive statements of the natural justice hearing rule in relation to the relevant decisions. However, courts generally require express words, evincing a ‘clear manifestation’ of the intention to exclude procedural fairness: Kioa v West (1985) 159 CLR 550 at 585; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. The intention ‘is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations’: Commissioner of Police v Tanos (1958) 98 CLR 383 at 396. If the exclusion is not express, it becomes

[page 204] necessary to determine whether it is excluded by implication. In some cases a public interest in secrecy may indicate an intention to exclude procedural fairness, for example, in the interests of national security: Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; [1984] 3 All ER 935.

The decision-making framework 10.4.4 Multi-stage decision making The presumption that a decision maker is obliged to accord procedural fairness may be qualified where there are multiple stages of decision making. In dual or ‘pyramidal’ systems, a preliminary decision maker makes recommendations, based on an investigation, and a final decision maker makes the operative decision based on the reported recommendations. The general rule is that the decisionmaking process must be viewed in its entirety. W here there is provision for procedural fairness to be accorded at a subsequent stage, it may not need to be accorded at the preliminary stage: see 10.4.6 – 10.4.7 . Similarly, if the preliminary decision maker affords procedural fairness, the final decision maker may accept or reject the earlier decision maker’s recommendations without hearing the applicant anew, provided fresh material is not considered: see 10.4.10 . However, if the applicant’s credibility is of critical importance, the final decision maker will generally have to give the applicant an oral hearing to comply with the requirements of procedural fairness: Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 557 at 569 per Drummond J. Similarly, when a final decision maker indicates an intent to follow recommendations by a subordinate decision maker, except in exceptional circumstances, then that decision maker may be obliged to grant a hearing on the question of whether those exceptional circumstances exist: Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648.

10.4.5 Investigations The presumption of procedural fairness may also be qualified in the context of an investigation. The issue is whether there appears to be a legislative intention to exclude procedural fairness. Generally, the investigator has a duty to accord procedural fairness at the initial stages of the hearing to a person against whom specific charges or allegations are made or in respect of matters which may adversely affect the person’s legal right or interest. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, the Ainsworth group, which supplied poker machines, was not given notice of the Criminal Justice Commission’s intention to make a report recommending that they not be permitted to participate in the gaming machine industry. The High Court held that they were denied procedural fairness, as their business reputation was adversely affected by this report. However, where there are no specific allegations and the report of the investigation cannot of its own force prejudicially affect interests, the requirements of procedural fairness may only arise later on in the inquiry. In these situations, although there is a general duty to afford procedural fairness, the content may be reduced in an effort to avoid alerting ‘the suspect to the progress of the investigation [and closing] off other sources of inquiry’: National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; 52 ALR 417 at 437 per Mason, W ilson and Dawson JJ. This issue was [page 205] considered in Saraceni v Australian Securities and Investments Commission (2013) 211 FCR 298 by the Full Federal Court. The appellant had sought judicial review of the decision by the Australian Securities and Investment Commission (ASIC) to authorise the company’s receivers to apply to the court to issue an examination summons. The court was required to issue a summons if the applicant was an ‘eligible applicant’ and it was to be issued to an officer or a provisional liquidator of the company. The applicant argued that ASIC should have provided him with a hearing in relation to the authorisation process decision, as it exposed him to the inconvenience of being examined. Jacobson and Gilmour JJ concluded (at [102]): [T]he overriding question will always be whether the exercise of the investigative power carries with it the capacity to destroy or prejudice the rights or interests of the person affected by the exercise of the power. That was why the exercise of the power by the Commission in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 and by the delegate in Johns v Australian Securities Commission (1993) 178 CLR 408 were each attended by an obligation of procedural fairness.

10.4.6 Effect of an unrestricted appeal on the facts and law The cases discussed below, Twist, Marine Hull and Miah , indicate that courts have been reluctant to conclude that a statutory right of appeal displaces the duty to afford procedural fairness. This is the case even when the appeal is de novo , that is, one in which there is a full oral hearing at which the parties can canvass all relevant issues and are unrestrained in the presentation of their case by the way in which it was presented before the primary decision maker. (AAT hearings are de novo .) However, the existence of a right of appeal may affect the obligation to afford procedural fairness: if the appeal right is exercised, it may ‘cure’ the denial of procedural fairness; and even if the appeal right does not cure the denial of procedural fairness, the existence of the right may mean that a court may exercise its discretion to refuse relief, as the appeal is considered the appropriate remedy. These issues arose in the following cases. Twist v Council of the Municipality of Randwick (1976) 136 CLR 106 related to a demolition decision. The Local Government Act 1919 (NSW ) empowered a local council to demolish potentially harmful buildings. A de novo appeal from such an order lay to the District Court. Twist’s property was condemned by the council. He was not given a hearing by council, did not appeal within the prescribed time and was refused an extension of time. Having unsuccessfully applied to the Supreme Court for declaratory relief, he appealed to the High Court.

The issue was whether the existence of the right of appeal indicated a legislative intention to exclude procedural fairness from the council’s decision-making process. The High Court dismissed the appeal. Barwick CJ considered that the rules of procedural fairness may be displaced by an unambiguously clear legislative intention. An unrestricted appeal may indicate such an intention, as it would suggest that the legislature has addressed itself to the question whether the party has been given an opportunity to be heard. However, the existence of a full appeal does not necessarily displace the obligation on the primary decision maker to comply with [page 206] the rules of procedural fairness. Each statutory provision must be considered in the circumstances of the case. In this case, the council was under a duty to act fairly and in some circumstances this could involve a duty to afford procedural fairness. The other judges, Mason and Jacobs JJ, were also reluctant to infer a legislative intention to displace the presumption in favour of a first instance right to a hearing. That did not end the matter, however. All three judges considered that the implications of the right were to be understood on the basis of the statutory scheme and the right to appeal de novo to the District Court. These considerations evidenced a legislative intention that failure to afford procedural fairness would not render the decision void. Rather, it was the legislature’s intention that a person aggrieved by a council’s failure to afford natural justice should use the statutory avenue of appeal, and this should constitute the sum total of the aggrieved party’s rights in the event of there being a denial of procedural fairness. Twist had not availed himself of this remedy in time, and should not be allowed to achieve indirectly that which he could no longer achieve directly. It was relevant that the issue was one which needed to be resolved quickly. Jacob J also regarded it as relevant that an appeal lay to a court rather than a less august body. In Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 62 ALR 253, the applicant insurance company was under investigation. The treasurer gave a direction, without affording procedural fairness, to the applicant not to issue or renew policies. An appeal lay to the AAT. At first instance, W ilcox J held that in making the direction, the treasurer was bound to accord procedural fairness. However, this power may on occasion need to be exercised urgently. In the absence of a clear legislative intention to exclude procedural fairness, the content of procedural fairness could only be limited to the extent that urgency required it in the particular circumstances of the case. The provision for review by the AAT, however, indicated a legislative intention that in the event that the treasurer fails to afford procedural fairness, the directions are not to be regarded as invalid in law. They are merely susceptible to challenge by the AAT. The Full Federal Court dismissed the appeal. The court noted that the existence of an appeal does not exclude the operation of procedural fairness, although it may affect the nature of the procedures which ought to be adopted in complying with the rules of procedural fairness: Marine Hull and Liability Insurance Co Ltd v Hurford (1986) 67 ALR 77. The existence of a right to an appeal de novo does not necessarily mean that a person who is denied procedural fairness at first instance must rely on the de novo appeal system and only on that system. In Courtney v Peters (1990) 27 FCR 404; 98 ALR 645 at 654, the Federal Court held that the existence of an unrestricted appeal to the AAT did not mean that a person could not seek judicial review of a decision by the Veterans’ Review Board on the grounds that it had failed to accord procedural fairness. It was obliged to accord procedural fairness, as the aim of the statute is ‘to avoid involving parties in unnecessary expense’, such as an appeal to a higher tribunal. Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 involved a case where the High Court majority found that the delegate had failed to afford procedural fairness in relation to an application for a protection [page 207] visa. Appeal de novo lay to the Refugee Review Tribunal, but appeals had to be made within 28 days and Miah’s solicitor had failed to make an appeal in time. The majority held that the effect of a provision for de novo appeal to the Refugee Review Tribunal was neither to oust Miah’s first instance entitlement to procedural fairness nor to convert what would normally be a jurisdictional error into an error within jurisdiction, curable by and only by an appeal to the Tribunal. Twist could be distinguished on the grounds that the primary decision in that case was attended by few formalities, by the fact that in that case it was particularly desirable that finality be achieved quickly, and by the fact that the appeal body in Miah’s case was a tribunal rather than a court.

10.4.7 Appeals may ‘cure’ a defect at the first instance Different issues arise when a person exercises a right of appeal. This is sometimes said to ‘cure’ a denial of procedural fairness (and indeed it may ‘cure’ a variety of other procedural errors). There are several reasons why this may be so. First, if the appeal body hands down a decision, this may supersede the flawed decision. If, for instance, the AAT hears an appeal, it stands in the shoes of the primary decision maker. Once it has made a decision, this replaces the primary decision, so that the legality of the primary decision is no longer of legal relevance. Second, the aggregate effect of the procedures may be such that, by the time the appeal body has heard the matter, the person affected can be said to have received a fair hearing, even if prior to the completion of the appeal, this was not the case. Third, even if the appeal body did not make a decision, a court may consider it an abuse of process for a person first to appeal, and then to seek judicial review. One of the matters taken into account in Twist , for instance, was that Twist had

attempted to appeal, and had sought review only after the appeal had failed (albeit on procedural grounds). The fact that people have availed themselves of their appeal rights does not necessarily preclude an application to review a decision on the grounds of procedural fairness, nor the exercise of remedial discretions in the person’s favour. Unless the appeal procedure provides for an appeal de novo , it is unlikely to be capable of curing the defect: Calvin v Carr [1980] AC 574 (where there was a de novo appeal); Ackroyd v Whitehouse (1985) 2 NSW LR 239 (where there was not). This is the case, a fortiori , if the person has not yet exhausted ‘imperfect’ appeal avenues, (as was the case in Ackroyd . If a person who has initiated an appeal de novo seeks to have the primary decision quashed before an outcome in the de novo appeal, a court might in the exercise of its discretion refuse relief, but even in this case, it would not necessarily do so. Much would depend on the person’s interest, on the status of the appeal body, and on the degree to which the appeal had been heard. If the appeal process has begun, but is not completed, the defect may not have been cured and a court may be of the view that the defendant has not acted improperly.

10.4.8 Decisions which are secret, urgent or involve issues of national security ‘Good administration’ not only requires that individuals affected by decisions are heard, but that the exercise of an administrator’s powers are not frustrated. W here issues of national security or secrecy arise, these considerations may outweigh considerations of fairness. Similarly, where urgent action is required, the implication of [page 208] procedural fairness may be qualified. For instance, in Kioa v West (1985) 159 CLR 550 at 615, Brennan J accepted that ordinarily the power to deport a prohibited immigrant could be exercised without prior notice, if notice would frustrate the purpose for which the power is conferred: see 10.3.4 . Perhaps, if there was a real chance of the illegal entrant absconding, the appropriate procedure would be arrest and detention, rather than immediate deportation, but the relevance of this consideration is whether urgency is relevant to such decisions and not to the relevance of urgency to the existence and implications of a duty to afford procedural fairness. A distinction needs to be drawn between powers which by their very nature are inconsistent with an obligation to accord procedural fairness, such as the powers to arrest and seize, and powers which may sometimes need to be exercised urgently. Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 62 ALR 253 (discussed at 10.4.6 ) falls into the latter category. The content of procedural fairness was limited because of the urgency required in the particular circumstances of the case. Einfeld J in the case of Edelsten v Federal Commissioner of Taxation (1989) 85 ALR 226 at 233 held that the making of a departure prohibition order against Dr Edelsten without giving him advance warning of such notice was not a denial of procedural fairness: … I cannot believe that natural justice would intervene to prevent or forestall the making of a duly reviewable order designed to stop a possible fraud on the revenue, thus effectively frustrating the whole procedure.

I n Francis v Attorney-General (Qld) (2008) 100 ALD 600; [2008] QSC 62; the applicant argued that he had been denied procedural fairness, as he had been denied the opportunity to make submissions regarding the breach of the conditions of his supervision order, before an arrest warrant was issued. McMurdo J dismissed the application. The legisaltion was silent on the issue and therefore, if there was a right to procedural fairness, it would be through implication. Here the judge held there was no right to procedural fairness, as sometimes for practical reasons arrest warrants need to be issued urgently. Further, a person affected by the warrant, if provided with prior notice, may attempt to escape arrest. Additionally, as an arrest would be followed by a court appearance, the affected person would then have an opportunity to be orally heard on the issue as to why the supervision order should not have been cancelled. Consequently, in these circumstances, it was held that the right to procedural fairness was rebutted by the necessary implications, which arose within the context of the decision.

Manner in which the interest is affected 10.4.9 Effect of decision Procedural fairness will be more rigorously applied where the decision is capable of having profound effects on those affected by the decision. Brennan J in Kioa v West (1985) 159 CLR 550 at 619 stated that: The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation. It is not the kind of

[page 209] individual interest but the manner in which it is apt to be affected that is important in determining whether the presumption is attracted. [emphasis added]

The interest must be affected in a direct, immediate and personal way, in a manner substantially different from the manner in which its exercise will affect the public in general: Kioa v West (1985) 159 CLR 550 at 584 per Mason J; at 619 per Brennan J. In the Kioa case, most of the material that the Kioas complained about consisted of policy, comment and undisputed statements of fact, which did not call for a chance to reply. It was only the two allegations which were personal to the applicants which affected their interests in a direct manner.

Insofar as references to matters personal to the applicants imply a duty to afford a hearing, this only applies to matters which the applicants are in a special position to comment on, as they are misleading. If an applicant could argue that the decision maker is mistaken in relation to a ‘social fact’, procedural fairness demands that the person be given an opportunity to comment on that ‘fact’: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. In this case the relevant matter related to the effects of a change of government in Bangladesh which took place after the date of an application for a protection visa.

10.4.10 Decisions with a political element ‘Political’ decisions are less likely to attract the obligation to accord procedural fairness. However, where they do, the duty may be weaker than it is for a decision which turns more on the facts and less on values. An illustrative case is South Australia v O’Shea (1987) 163 CLR 378. O’Shea had received an indeterminate sentence following conviction on two counts of indecent assault against children. After hearing submissions on O’Shea’s behalf, the Parole Board recommended his conditional release on licence to the Governor in Council. The Governor in Council, acting as the Cabinet’s decision, decided not to act on the Board’s recommendation. O’Shea was not given an opportunity to make submissions to Cabinet or the Governor in Council. The High Court (Deane J dissenting) held that provided the Board accorded O’Shea procedural fairness, and the Governor in Council’s decision was not influenced by ‘fresh material relating to Mr O’Shea personally which was not known to the Board at the time when it held the hearing in his presence’, then there was no requirement that he be heard anew: at 405 per W ilson and Toohey JJ. The court noted that decisions with a political or policy judgment do not always exclude a duty to act fairly. Mason CJ stated (at 389): Although it is unrealistic and impractical to insist on a person having the opportunity to present submissions on matters of high level general policy, the same considerations do not apply to the impact of policy on the individual and to those aspects of policy which are closely related to the circumstances of the particular case and that is the case here.

Although practical circumstances, such as the secrecy of Cabinet discussions, would make it difficult for O’Shea to be heard by the Governor in Council, written submissions could be provided to Cabinet. [page 210] Once it was accepted that the rules of procedural fairness were not necessarily excluded, the question became whether O’Shea had had an adequate opportunity to present submissions on the question of public interest. The majority of the High Court considered that procedural fairness had been accorded at the first stage of decision making. The relevant legislation provided for two levels of decision making: the Board made its recommendation based on experts’ reports, and the Governor in Council made its decision, in the light of the Board’s report, based on public policy factors such as deterrence, retribution and public confidence in the system. W hen O’Shea presented his case to the Board, he could have made submissions on public interest factors. The rules of procedural fairness were satisfied provided O’Shea had been given procedural fairness by the Board. As the Governor in Council did not consider any fresh material relating to O’Shea personally and the decision was made on the basis of public policy factors alone, then there had not been any breach of procedural fairness.

10.4.11 The making of delegated legislation and policy The making of policy and delegated legislation generally involves political considerations, which are of general application, rather than affecting ‘the action of particular persons on particular occasions’: Queensland Medical Laboratory v Blewett (1988) 16 ALD 440 at 459 per Gummow J. As indicated by O’Shea’s case, it may be ‘unrealistic and impractical’ for procedural fairness to be implied on matters of ‘high level general policy’. Consequently, procedural fairness will not be implied to the exercise of a delegated legislative power unless there is a mandatory requirement which provides for input into the making of subordinate legislation: see 6.3.7 . Similarly, procedural fairness will not be required in the making of a policy unless there is a requirement that the effect on particular individuals must be taken into account or people with particular interests must be consulted. For instance, in Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404, the Prices Commission was not required to afford procedural fairness in the fixing of the price of hamburger buns which affected all consumers and sellers of bread.

Problem Ms Sammler claimed that she had been sexually assaulted by her step-brother over a two-month period in late 2000. She was 12 years of age and her step-brother was 17 years of age. The assaults included forced fellatio and digital vaginal penetration. The assaults were committed while the family was on holiday on Christmas Island. In January 2014, Ms Sammler lodged an application for compensation with the Director of Victims Compensation. She sought compensation for compensable injuries, financial loss and counselling. The application was lodged on the form required by the rules and accompanied by a police statement dated 8 September 2012 setting out the offences; a statement provided to the police by the claimant’s sister dated 8 October 2012; a report of Ms Bellow, a counsellor with the Northern Rivers Health Service dated 16 March 2011; [page 211] and a report of Ms Lyn, a psychiatrist, dated 15 April 2013. Ms Sammler alleged that as a consequence of these sexual offences, she has suffered trauma and related psychological dysfunction. The application further stated that Ms Sammler had not spoken of the assaults until she attended counselling with Ms Bellow. Ms Bellow advised her of the availability of victims

compensation and that in general the Victim Compensation Board’s (the Board) policy was to award compensation to child sexual abuse victims even when they lodged their applications many years after the alleged offences were committed. Ms Bellow helped Ms Sammler obtain the relevant forms and suggested evidence she could provide to substantiate her claim. Ms Sammler lodged the application without obtaining legal assistance. The application did not state why time should be extended. The Board’s policy stated: Extensions of time should not be given merely because the applicant is unaware of the time in which applications should be lodged. However, leave will be granted in cases involving child sexual abuse except in exceptional circumstances where the Director is satisfied that there is no good reason to extend time.

In May 2014, Ms Sammler received a letter from the Director of Victims Compensation stating: Your application for compensation has been lodged out of time. In your application you claim that you did not speak of these assaults until you attended counselling with Ms Bellow in March 2011. Nevertheless, you failed to report the assaults to the police until September 2012 and failed to lodge your application until January 2014. Furthermore, your sister’s statement to the police describes your relationship with your step-brother during this period as ‘close and friendly’. Because your behaviour appears to me to have contributed to the injuries sustained, I cannot find any reason to exercise the discretion to extend time and accept your application.

Ms Sammler comes to see you for advice as to whether she can seek judicial review on the grounds of denial of procedural fairness.

Resolution Your client needs information on whether the Director has lawfully reached his conclusion. The primary issue is whether Ms Sammler has been denied procedural fairness by the Director in relation to his handling of her application for the extension.

The basis of the Director’s decision The Director’s refusal to extend time makes specific reference to two factors: first, the fact that a significant time period has lapsed between Ms Sammler’s acknowledgment of the abuse, her report to the police and the lodgment of the application; and second, the suggestion that her ‘close and friendly’ relationship with the perpetrator appears to have contributed to the assaults. These factors appear to have persuaded the Director that there were exceptional circumstances indicating no good reason to extend time.

Is the Director’s decision-making power conditioned on the observance of the principles of procedural fairness? The current flexible approach to the implication of procedural fairness requires a generalised assessment of the case, rather than the mechanical application of [page 212] strict rules. As suggested by Kioa v West (1985) 159 CLR 550, and confirmed in numerous subsequent cases, in the absence of a contrary statutory intention, there is a presumption that procedural fairness applies. The threshold question is whether the legislature intended to condition the Director’s exercise of the power to accept a late application on the observance of the principles of procedural fairness. This question is answered by considering the statute’s subject matter, the interests which the power affects, the statutory scheme and administrative framework created by the statute and the manner in which the interest is affected.

The statutory scheme T he Victims Compensation Act 2008 (Cth) establishes a scheme of compensation for victims of crimes of violence. In general, applications are considered on the papers by compensation assessors, subject to guidelines issued by the Board. A time limit of two years is placed on the lodgment of applications: s 26(1). The Director may, however, extend this time and accept a late application: s 26(2). The announced policy states that leave will be granted for child sexual abuse survivors ‘except in exceptional circumstances where the Director is satisfied that there is no good reason to extend time’.

The administrative framework The administrative framework established by the legislation provides that applicants are required to submit documentary evidence to support their applications: s 25(2). Applications are dealt with by a compensation assessor without conducting a hearing: s 27(2). It is arguable, therefore, that the scheme evinces a legislative intention to reduce the content of procedural fairness, but this conclusion depends on the assumption that in the absence of the relevant provision, applicants would have had a right to an oral hearing. If not, and this would probably be the case, then the section cannot be taken as evincing an intention to abridge the scope of the entitlement to procedural fairness. The Act does not specify, however, whether applications for leave to lodge a late application are considered without conducting an oral hearing, nor is any reference made to the need for the applicant to justify the extension of time for lodgment of the application by providing documentary evidence. The legislation does not contain express words indicating that the Director’s obligation to afford procedural fairness in relation to decisions to extend time is limited to the duty to consider written submissions. Courts generally require express words, evincing a ‘clear manifestation’ of the intention to exclude procedural fairness: Kioa v West (1985) 159 CLR 550 at 584. In the absence of express provisions, the issue is whether the same limited right to procedural fairness should be imputed to the Director’s decision-making process, as that which applies to entitlement decisions.

The circumstances of the case The examination of the statute and administrative framework does not provide us with a conclusive answer as to whether procedural fairness is excluded and, if not, as to what it entails. Kioa v West (1985) 159 CLR 550 indicates that there is

generally a presumption that procedural fairness is implied, and there is no reason to believe that the presumption is rebutted in relation to extension decisions. We need to [page 213] determine what the Director’s duty to act fairly requires in the circumstances of the particular case. It is the content of procedural fairness that is the critical question. We need to consider the circumstances of the case, including the interest and the manner in which the interest is affected. It is unlikely that the Director is under a duty to conduct oral hearings in relation to extension decisions. Doing so might involve an administrative burden inconsistent with the proper discharge of the Director’s other duties. Moreover, it is unlikely that a decision which involves what amounts to a concession should be attended by stricter hearing requirements than entitlement decisions which are tantamount to decisions in relation to the existence of a right. Moreover, this was not a case where the applicant sought an oral hearing. The Director’s decision to handle the matter on the papers does not of itself appear to constitute a denial of procedural fairness.

Departure from policy? Ms Sammler may be able to argue that because the policy provides that extensions of time will generally be granted to victims of child sexual abuse, procedural fairness requires that she be warned if the Director is intending to depart from the policy. One argument proceeds on the basis that she has a legitimate expectation that the policy be applied and if there is an intention to depart from the policy, she must be put on notice. On the basis of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, it could be argued that Ms Sammler’s expectation is reasonably based and objectively justifiable, as the policy makes provision for applications for statutory compensation by child sexual abuse survivors who lodge applications some time after the alleged abuse occurred. The express reference in the policy to applications lodged out of time by child sexual abuse survivors amounts to a representation as to how the discretion to extend time will be exercised. Based on the decision in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 it is arguable that the existence of this announced policy requires a hearing where there is a departure from this policy. Arguably, before the Director could find the exceptional circumstances suggesting that there was ‘no good reason’ to extend the time, Ms Sammler should have been heard. This duty to afford a hearing is further reinforced by the fact that the Director’s conclusion is based on assumptions about which Ms Sammler had no warning. There are, however, several problems with this argument. First, it is not clear that the Director has departed from the policy. If the Director treated the matters referred to in his reasons as exceptional circumstances, then it is arguable that he has in fact applied his policy. If so, procedural fairness rights cannot be grounded on his failure to do so. It is not, however, clear whether or not the decision involves application or non-application of the policy. The reasons do not expressly state that exceptional circumstances exist, only that the circumstances did not warrant an extension of time. Second, the High Court now appears to have rejected Teoh insofar as the case stood for the proposition that legitimate expectations exist when there is an objective basis for their existence, regardless of whether the person affected actually entertained the expectation in question. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam 214 CLR 1, McHugh and Gummow JJ considered that expectations could ground a right to procedural fairness only where they were actually entertained, and [page 214] Callinan J agreed. In a separate judgment, Gleeson CJ expressed a similar opinion. Hayne J was the only member of the relevant court to treat the issue as open. While the observations in Lam could be dismissed as mere obiter dicta, they suggest that a majority of the members of the High Court have now rejected the ‘objective’ test. If Lam is good law, what matters is not so much whether the expectations do or do not exist, but what, in the circumstances, is fair. Here, in contrast to the position in Lam , Ms Sammler was aware of the policy, having been told of its existence by Ms Bellow. What is less clear is whether she has relied on it to her detriment, and after Lam , this appears to be a necessary condition for attempts to ground an entitlement to procedural fairness on the existence of practices, policies and undertakings. The mere fact that her hopes may have been disappointed is not enough to mean that she has been denied procedural fairness. However, if she could show that in reliance on the policy she presented a less powerful case than she otherwise would have, she might be able to rely on the Director’s departure from policy, assuming that there was such a departure, as grounds for a claim that his handling of her case was procedurally unfair. On the basis of the material before us, it is at least possible that her submission was aimed at meeting the low threshold requirements for extension of time, and that she would have presented a stronger case had she realised that the policy would not be applied in her case.

Taking Ms Sammler by surprise If the Director in fact applied the policy, different considerations apply. If the Director took account of material prejudicial to Ms Sammler, he would be in breach of his duty if he had not warned her of this material. It is not, however, clear whether this is the position here. The Director appears to have relied only on material submitted by Ms Sammler. This is not a case of reliance on allegations of which the affected person is completely unaware: cf Kioa . Nor is the Director’s interpretation such that the Director should have realised that it would take Ms Sammler by surprise. It is arguable that Ms Sammler should have realised that her sister’s statement could and possibly would receive the interpretation that the Director placed on it, and that she could scarcely claim to have been taken by surprise by that interpretation. If, on the other hand, the material presented was such that Ms Sammler would have had no reason to believe that the sister’s statement would receive the interpretation placed on it by the Director, she would have grounds for arguing that, in failing to warn her of his suspicions, the Director had denied her procedural fairness. It would be necessary to see the material submitted to the Director before more definite advice could be given.

What is the effect of the existence of the unrestricted appeal? In this case, an appeal lies from the Director’s determination to the AAT: s 36(2). This appeal is a full de novo appeal on the facts and the law. In accordance with s 43 of the AAT Act (Cth), the AAT exercises all the powers and discretions of the

Director. As there is no express exclusion of procedural fairness in relation to the Director’s decision-making power, it becomes necessary to determine whether it is excluded by implication. Twist v Council of the Municipality of Randwick (1976) 136 CLR 106 [page 215] at 109–12 indicates that the existence of an unrestricted appeal does not necessarily satisfy the requirements of procedural fairness, nor does it indicate a manifestly clear legislative intention to exclude procedural fairness in relation to the initial decision. Indeed, the existence of a right to appeal may be taken as indicative of an intention that the primary decision maker should also afford procedural fairness. Twist does, however, suggest that in certain cases, a person who is denied procedural fairness, and who fails to appeal within the prescribed time, may forfeit their right to object to a denial of procedural fairness by the primary decision maker. In such cases, failure to afford procedural fairness is legislatively treated as not going to the validity of the primary decision. Alternatively, in the exercise of its discretion, a court may decide that even if denial of procedural fairness is a jurisdictional error, it may be appropriate for the court to exercise its discretion to stay the matter pending an appeal to the body with the power to hear the matter again, or to refuse to grant relief, if the application is flawed by undue delay. These issues were canvassed in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, where the High Court rejected a contention that a right to appeal to the Refugee Review Tribunal within 28 days of notification of a decision meant that after the expiry of that period, decisions flawed by denial of procedural fairness could no longer be attacked. Twist was distinguished on a number of grounds which are relevant here. First, the appeal in Miah was not, as in Twist , to a court, but to a non-judicial tribunal. Second, whereas the decision in Twist was one which needed to be made with speed and finality, this was not the case in relation to the Miah decision. In any case, until Ms Sammler is out of time in relation to an AAT appeal, nothing in Twist would preclude her from seeking an order in relation to the primary decision.

Is the appropriate remedy an appeal to the AAT? Even if Ms Sammler has the right to procedural fairness, it does not necessarily follow that she should exercise it rather than appeal to the AAT. One reason why it might make sense to appeal to the AAT is that a court might decide in the exercise of its discretion that this was a matter which would be better handled by the AAT, given that it involves mixed questions of fact and law. A second reason is that an appeal to the AAT might mean that the case was concluded more rapidly than if the matter was heard by a court. There is, however, a countervailing argument. If, improbably, time and expense were no object, a successful application for judicial review would mean that Ms Sammler would have two chances to have time extended: first, when her matter was reconsidered by the Director, and second, if the Director stood by his earlier decision, by the AAT on appeal.

Conclusion The absence of a clear intention to exclude procedural fairness from the Director’s decision-making process led us to consider the statute in the context of the circumstances of the case to determine whether the obligation was impliedly excluded. There are a number of factors which may suggest that the Director was obliged to afford Ms Sammler procedural fairness, and that he had acted in breach [page 216] of that duty: the nature of Ms Sammler’s interest, the fact that the Director’s decision was based on an assumption to which Ms Sammler had arguably not been given an opportunity to respond, and the fact that she had been disadvantaged by her reliance on the policy undertaking. The fact that there is provision for a de novo appeal does not oust the presumption in favour of there being an entitlement to procedural fairness, and does not transform breach of that right from a jurisdictional to an intra-jurisdictional error. And even if it did, she would not be precluded from seeking judicial review for as long as she enjoyed the right to seek an AAT review. In the alternative, it may be argued that the Director’s willingness to receive such material as Ms Sammler submitted satisfied the requirements of procedural fairness. It is Ms Sammler who has failed to provide material sufficient to convince the Director of the need to extend time. Further, it may be argued that even if the Director should have afforded Ms Sammler procedural fairness, the best course of action for her would be to appeal to the AAT rather than embark on long, costly and not necessarily profitable litigation in the Federal Circuit Court or the Federal Court.

Further tutorial discussion On 25 February 1997 the Minister for Foreign Affairs and the Attorney-General and Minister for Justice issued a joint news release addressing the consequences of the April 1995 High Court decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. It notes: This Statement is an indication on behalf of the Government that the act of entering into a treaty does not give rise to a legitimate expectation in administrative law which could form the basis for challenging any administrative decision from today. This is a clear expression by the Executive Government of the Commonwealth of a contrary indication referred to by the majority of the High Court in the Teoh case.

W hat is the effect of this joint statement? Critically evaluate from a legal and political perspective the relationship between the executive branch and the judicial branch of government as reflected by these events. W hat is its practical significance in the aftermath of Re Minister for Immigration and Multicultural Affairs; Ex

parte Lam (2003) 214 CLR 1?

Further reading Allars, M, Administrative Law: Cases and Commentary , Butterworths, Sydney, 1997, ch 11. Allars, M, ‘Fairness: W rit Large or Small?’ (1987) 11 Sydney Law Review 306. Aronson, M, Dyer, B and Groves, M, Judicial Review of Administrative Action , 5th ed, Thomson Reuters, Sydney, 2013. [page 217] Bayne, P, ‘Natural Justice, Public Policy and Justiciability’ (1988) 62 Australian Law Journal 225. Douglas, R and Head, M, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014, chs 14, 15. Grant, H, ‘Administrative Law — Natural Justice and Prerogative Relief’ (1994) 14 Queensland Lawyer 174. Sykes, E I, Lanham, D J, Tracey, R S and Esser, K W, General Principles of Administrative Law , 4th ed, Butterworths, Sydney, 1997, ch 15.

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11 Grounds of Review: The Rules of Procedural Fairness General I n Chapter 10 , we considered the implication of procedural fairness. We noted how there is generally a presumption of procedural fairness. The crucial question is what does the duty to act fairly require in the circumstances of the particular case? In this chapter we consider the substance of the duty to accord procedural fairness. This duty is given its content by the two rules of procedural fairness: the hearing rule and the no bias rule. We will now examine these rules.

Objectives After studying this chapter, you will understand: 1. the content of procedural fairness: what is required by the rules in the circumstances of the particular case: the hearing rule; the no bias rule; and 2. the consequences of a denial of procedural fairness.

1 The hearing rule 11.1.1 The hearing rule A decision is more likely to be a ‘bad decision’ if the individuals or organisations most affected by the decision, are not given an [page 219] opportunity to provide information to the decision maker. This is the hearing rule. It is based on the maxim audi alteram partem , which means ‘hear the other side’. This rule requires a decision maker to give an opportunity to be heard to a person whose interests will be adversely affected by the decision. ‘Hearing’ the other side does not necessarily mean listening to an oral submission. For many, but not all, purposes, ‘hearing’ effectively means ‘attentive reading’.

11.1.2 Flexibility of the rule The content of the hearing rule can vary greatly. The requirements of the hearing rule are determined by what is fair in the circumstances of the case: Kioa (1985) 159 CLR 550. It is the circumstances known to the decision-making authority ‘at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would then have known’: Kioa at 627 per Brennan J. The flexibility of the concept of fairness means that the content of the duty can change according to changing community attitudes. However, it also presents a real problem to administrators, who have little guidance as to what is required in the circumstances of different cases. The factors discussed in 10.4 are important in determining the implication of procedural fairness. After Kioa, they are also of relevance in determining the content of procedural fairness. These factors need to be balanced against administrative efficiency and cost. For instance, in South Australia v O’Shea (1987) 163 CLR 378 (see 10.4.10 ), the efficacy of Cabinet processes was a consideration that could reduce the content of the duty. In Johns v Release on Licence Board (1987) 9 NSW LR 103, Kirby P considered the financial costs of increasing the content of the hearing rule for the Release on Licence Board and noted that the impact was likely to be negligible.

Requirement of prior notice 11.1.3 Prior notice of hearing and its purpose The minimum content requires that the person affected will be given notice of the place, time and purpose of a hearing, if the matter is to be decided by an oral hearing. W here the ‘hearing’ involves a consideration of documentary evidence only, all that is required is that the person knows

the purpose of the inquiry, where to deliver the documents and by when. The motivation for this requirement is that without knowledge of the matters to be considered by a decision maker, a party cannot prepare an appropriate response. A further aspect of this notice requirement is that a party has a reasonable opportunity to prepare their case. It is unlikely that the hearing rule will be satisfied if prior notice is not given, until shortly before the person is called to present their case: R v Thames Magistrate’s Court; Ex parte Polemis [1974] 1 W LR 1371.

11.1.4 Prior notice of specific allegations In proceedings where specific allegations are made, a person is entitled to know the adverse allegations in order to be able to controvert them: Re Macquarie University; Ex parte Ong (1989) 17 NSW LR 113; 17 ALD 664. For instance, in Kioa v West (1985) 159 CLR 550, the deportation order could have been made without giving notice but for the fact that some of the reasons for making the deportation order were personal to the Kioas and went beyond their prohibited immigrant status. In Applicant VEAL of 2002 v Minister for Immigration [page 220] and Multicultural and Indigenous Affairs (2005) 225 CLR 88 the Refugee Review Tribunal (RRT) had received a letter which, if correct, could have adversely affected the appellant’s claim. The RRT did not inform the applicant about the letter or the allegations made by the author. The appellant claimed that he had been denied procedural fairness. The High Court held that the RRT was obliged to evaluate the contents of the letter before reaching its decision and was required to afford the appellant the opportunity to respond to the allegations made in the letter. Although the author had requested that their identity should not be disclosed, this did not absolve the RRT of its duty to afford procedural fairness. However, the duty did not extend to disclosing the identity of the author of the letter. The public interest in proper administration and the provision of confidental information to a public authority and the duty to afford procedural fairness could be accommodated by ‘the tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations’ (at 105). In some cases the duty to inform people of the allegations made against them may be reduced to almost nothing. In Leghaei v Director-General of Security [2005] FCA 1576, which involved judicial review of a security assessment, Madgwick J held (at [88]) that although the Director-General owed the applicant a duty of procedural fairness, in the circumstances of the case this did not require the disclosure of confidential information or even the gist of such information: …the potential prejudice to the interests of national security involved in such disclosure appears to be such that the content of procedural fairness is reduced, in practical terms, to nothingness.

11.1.5 Prior notice in general inquiries However, in general investigative inquiries where at the beginning of the hearing it is not possible to specify the matters that may eventually form the focus of the report, detailed allegations or particulars need not be provided. It is sufficient for persons appearing before inquiries to be informed of the ‘general scope and purpose of the hearing’: Dainford Ltd v Independent Commission Against Corruption (1990) 20 ALD 207 at 208 per Young J. To require an investigator to supply detailed particulars may frustrate the inquiry: see 10.4.5 . In the following case, this notice requirement was considered. In Bond v Australian Broadcasting Tribunal (No 2) (1988) 19 FCR 494, the Australian Broadcasting Tribunal (ABT) conducted an inquiry into the question as to whether Bond was a fit and proper person to hold a broadcasting licence. Particulars were provided in response to a request from Bond’s solicitors. However, Bond’s representatives claimed that they were inadequate, given the adversarial nature of the inquiry. The court held that procedural fairness had not been denied. The inquiry was a general investigation of an inquisitorial, not an adversarial, nature. The critical question is whether an investigator has left a party ‘in the dark’ as to the risk of an adverse finding being made upon a particular subject. The duty of the tribunal (in this case the ABT) is limited to ensuring that licensees are made aware of the material before it which is relevant to the exercise of any power in a manner adverse to their interests, together with a full opportunity to put to the tribunal additional relevant material. The tribunal should generally ensure that provisional [page 221] views on relevant matters of fact are disclosed, where omission to do so might expose the person to an adverse finding on an unforeseen issue. W ilcox J noted (at 510) that different standards apply to proceedings in which specific allegations are made: The existence of an obligation to cause the supply of particulars of allegations depends upon the question whether the subject proceeding is one in which specific allegations are being made — in which case considerations of both fairness and efficiency would support the particularisation of those allegations — or whether it is a general inquiry into a particular topic without precise allegations as to conduct — in which case particulars are both impractical and potentially embarrassing to the proper conduct of the inquiry.

The supply of particulars in this general inquiry was impractical. The tribunal must follow the evidence wherever it leads. It may be difficult to determine which party is potentially adversely affected. Further, the inquiry would become unmanageable if the tribunal had an obligation to supply particulars to each party potentially disadvantaged by the possible result. The suggestion that the tribunal has an obligation to supply particulars before witnesses are called treats those witnesses as being witnesses for that party, whereas they are really called in aid of the general investigation.

11.1.6 Notice of potential adverse findings The essence of the hearing rule is that a party should be made aware of the case alleged against her or him. If the case is not known, the party cannot be in a position to answer it. The issue then arises as to whether a decision maker is required to notify the parties before the completion of the hearing, as to what conclusion they are likely to reach based on the findings presented up to that point. Generally, where a party has had an opportunity to present a case, procedural fairness does not require a decision maker, before reaching the decision, to expose their conclusion that the material is insufficiently persuasive to warrant a decision in that person’s favour: Kioa v West (1985) 159 CLR 550 at 588 per Mason J. W here the subject matter of potential criticism has been flagged as an issue and has been the subject of evidence, procedural fairness will not require that tentative adverse findings be disclosed before the decision maker makes the final decision: Bond v Australian Broadcasting Tribunal (No 2) (1988) 19 FCR 494 at 512 per W ilcox J: see 11.1.5 . However, if new material or a new issue arises during the decision-making process, the party affected should be given an opportunity to comment.

11.1.7 Limitations on the requirement: defeat the purpose of the power If the provision of notice may defeat the purpose of the inquiry or the exercise of the power, notice may not be required. As indicated by Kioa’s case, it might be permissible not to give prohibited immigrants notice of an intention to make deportation orders, as to do so would ‘facilitate evasion and frustrate the objects of the statute’: see 10.4.8 . W hile this conclusion may be questionable, the principle remains. Indeed, the principle is one which applies in relation to judicial as well as administrative decision making, and underlies the issuing of ex parte injunctions and orders in cases where notice would defeat the purpose of the relevant application. [page 222]

11.1.8 Limitations on the requirement: evaluative process A distinction is also drawn between an allegation or a process of fact finding, and an evaluation or making of a value judgment. Merely because an opportunity is not given to put a case forward in a way so that the facts should be evaluated in a particular way does not involve a breach of procedural fairness: Haoucher v Minister for Immigration, Local Government and Ethnic Affairs (1990) 169 CLR 648; 93 ALR 51 at 64 per Toohey J. In Haoucher, the minister was free to take a different view of recidivism, a matter which had been before the tribunal, without being obliged to give the applicant an opportunity to be heard. In Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502; 10 ALN N86, the material prejudicial to the appellant had been provided by the appellant herself. Fox J noted (at ALR 506): In the circumstances, I consider that the decision-maker was not required to give the appellant a chance to comment on the view that he had taken of it; to do so would amount to a general requirement that a decision-maker make known in each case his view or evaluation of the material that an applicant puts forward … His thought processes, if not unreasonably based on evidence, or other material, are a matter for him.

However, in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1990) 21 ALD 104 and Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 123 ( Heshmati’s case) the adminstrator was asked to make a favourable decision based on material provided by the applicants themselves. The adminstrator viewed the material supplied by the applicants adversely to their case. The issue arose as to whether the administrator had a duty to warn the applicant of this viewpoint prior to making their final decision. At first instance, in Heshmati’s case, Lockart J did not consider that this constituted a denial of procedural fairness. However, the Full Federal Court (Jenkinson and Gummow JJ, Keely J dissenting) ruled differently. Gummow J (at (1991) 31 FCR 123 at 132) stated that generally an administrator is not required to disclose their reasoning processes for comment by the applicant. However, disclosure may be necessary where the administrator is likely to draw an adverse response to material submitted by the applicant, which the applicant has provided to support their application. They should be permitted to make representations to this adverse finding prior to a final determination being made: at 132.

11.1.9 Limitations on the requirement: disclosure of knowledge of the decision maker Decision makers who use their accumulated background of experience, skill and specialised knowledge, to evaluate the evidence presented, are not required to disclose this background as it is considered inseparable from the ‘equipment of the tribunal’: R v Milk Board; Ex parte Tomkins [1944] VLR 187 at 197. However, where material has been raised by either party and the decision-making body rejects relevant evidence based on its accumulated knowledge, the evidence should be disclosed to parties to provide them with the opportunity to rebut it. Similarly, when a decision maker seeks out particular information relevant to the issue, the content and source of the material must be disclosed to provide the parties with an opportunity to comment on the material, particularly if it relates to a contentious matter: Gordon M [page 223] Jenkins and Associates Pty Ltd v Coleman (1989) 23 FCR 38; 87 ALR 477; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205; 60 ALR 717. However, where a decision-making body consists of expert members, a party should have recognised that the body would have relied on facts within its own personal knowledge. The collective knowledge of the ‘committee of experts’ and any tentative views need not be disclosed: Minister for Health v Thomson (1985) 8 FCR 213; 60 ALR 701 at 712 per Beaumont J. This approach was followed by Mathews J in Pfizer Pty Ltd v Birkett (2000) 171 ALR 427, which related to the question: to what degree is the Pharmaceutical Benefits Advisory Committee under a duty to warn applicants that it would be relying on its members’ knowledge ‘of the actions of drugs, understanding of clinical trial evaluations and

economic analysis and of the functions and operation of the Pharmaceutical Benefits Scheme’: at [136]. The court held (at [139]) that no objection could be made to the committee members relying upon their own expertise when making a determination in this matter.

11.1.10 Limitations on the requirement: public policy Public policy grounds, such as confidentiality, may also reduce the notice requirement. W here confidentiality must be preserved, no general rules can be prescribed. Lockhart J in Ansett Transport Industries (Operations) Pty Ltd v Department of Aviation (1987) 73 ALR 205 at 218 noted that the fact that confidential material is involved in the decision-making process ‘does not negate the application of the rules of natural justice; rather it narrows the field of their operation’. The spirit of procedural fairness may be observed by informal discussion, which communicates the gist of the information without revealing the confidential material, while enabling the other party to sufficiently comprehend and respond to the matter: Ansett Transport Industries at 498–9 per Lockhart J. In Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; 92 ALR 93 the obligation to give prior notice of matters to be considered by the decision maker required that Parole Board reports, which were to be kept confidential to protect some of the officers, should have been made available subject to appropriate undertakings as to confidentiality. This was also the outcome in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, where the Refugee Review Tribunal, to discharge its duty of procedural fairness to the applicant, was required to provide the applicant with the allegations made in the letter supplied to them in confidence, although the actual letter or the author’s name did not have to be provided to the applicant in the performance of its duty.

Who should hear? 11.1.11 Must the authority who makes the operative decision conduct the hearing? This issue arises in relation to multiple stages of decision making: 10.4.4 . As a general proposition, the authority that makes the decision, must hear. However, it may be sufficient if the authority views and considers the evidence and submissions of those entitled to be heard. It will depend on the circumstances of the case and the nature of the statutory power. For the sake of convenience, where [page 224] decisions are made in multiple stages, a preliminary investigating authority has a duty to observe procedural fairness before making its report and recommendations to the final decision maker. Provided fresh material is not considered by the final decision maker, the recommendations may be accepted or rejected without an obligation for the applicant to be heard anew: see 10.4.10 . However, the decision-making authority must be ‘apprised of all the relevant material in order to evaluate the recommendations’: White v Ryde Municipal Council [1977] 2 NSW LR 909 at 924 per Reynolds JA. If the decision-making authority only views a summary of the submissions, procedural fairness will only be satisfied if the ‘summary adequately discloses the evidence and submissions’: Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551 at 569. Further, if the applicant’s credibility is of critical importance, the final decision maker may have to hear the applicant: Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 557. In situations where the final decision maker delegates the power to collect the evidence and make findings, the decision maker may rely on those findings without considering the evidence: Re Macquarie University: Ex parte Ong (1989) 17 NSW LR 113 at 132; 17 ALD 664. In Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis [2012] NSWCA 436 the licensee sought an injunction to stop the Director-General from approving an accord to its premises, submitting that the Director-General had failed to afford him procedural fairness by failing to provide the source material used to generate a report, which was used by the DirectorGeneral to make his decision. The decision-making process under the relevant legislation did not require the Director-General to view the source material but only the report and any materials produced in response to the report. The New South Wales Court of Appeal held that after a consideration of a number of factors, the DirectorGeneral’s refusal to provide the licensee with the source material did not involve any ’practical injustice’ (at [155]), citing in support Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ. The Court of Appeal held that the respondents had been granted a fair opportunity to ‘put any arguments they wish in opposition to the Proposed Variations’: at [155].

The hearing 11.1.12 Form of the hearing ‘The hearing’ procedure varies depending on the context in which the decision is made; the extent to which proceedings are inquisitorial or adversarial and the circumstances of the case. The maximum content of the hearing rule is equivalent to the procedures followed in a court. However, the practicalities of administration have tempered the hearing rule, so that this maximum content is not required of every decision maker: Kioa v West (1985) 159 CLR 550 at 584 and 585 per Brennan J. The factors we considered at 10.4.1 –10.4.11 , which determine the implication of procedural fairness, will help to determine the degree to which there is a right to something close to a full judicial trial.

11.1.13 Oral hearing? An oral hearing is not an essential requirement of procedural fairness in every case. If the circumstances of the case require the decision maker [page 225]

to comply with rigorous standards of procedural fairness, an oral hearing may be required. For instance, an oral hearing is normally required where rights to property in land are affected: Cooper v Wandsworth Board of Works (1863) 14 CBNS 180; 143 ER 414. The issue is determined by a consideration of the circumstances of the case. It is ultimately for the decision-making authority to determine its own procedures in the ‘light of its obligation to act fairly’: Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; 14 ALR 519 at 541–2 per Aikin J. In high-volume administrative decision-making jurisdictions, practical considerations may negate the requirement to afford an oral hearing. In Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591; 33 ALD 441, the Full Federal Court held that an oral hearing was not a requirement of procedural fairness in the determination of every application for refugee status. The court noted (at ALD 450): … although in particular cases, for example where a real issue of credibility is involved or it is otherwise apparent that an applicant is disadvantaged by being limited to submissions or responses to the decision-maker in writing, it may be that observance of the fundamental requirements of natural justice can only be satisfied by a determination made upon an oral hearing.

11.1.14 Written submissions adequate W here the only question is whether the facts stated by the party persuade the administrative decision maker, a written submission may be adequate. Courts have recognised numerous situations where procedural fairness is satisfied by acceptance of written submissions: Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; 14 ALR 519 (disbarring from racecourse); FAI Insurances Ltd v Winneke (1981) 151 CLR 342; 41 ALR 1 (refusal of licence renewal). Similarly, written submissions may be adequate where a person is not facing a charge, there are no witnesses and the issues are simply factual: White v Ryde Municipal Council [1977] 2 NSW LR 909.

11.1.15 A right to cross-examine? There is no general entitlement to cross-examination and no clear rules in relation to this issue, other than a requirement that a hearing is ‘fair’: O’Rourke v Miller (1985) 156 CLR 342; 58 ALR 269. In each particular case, the decision maker is to determine its own procedures ‘depending on all the circumstances, including the gravity of any allegations made by or against any party’: Ansell v Wells (1982) 43 ALR 41 at 63 per Lockhart J. The nature, constitution and powers of the tribunal and whether it followed procedures analogous to a court should also be considered: Hurt v Rossall (1982) 4 ALD N255; 43 ALR 252. W here the reliability or veracity of a witness is tested, generally cross-examination will be required: Australian Postal Commission v Hayes (1989) 23 FCR 320; 87 ALR 283 at 289–90 per W ilcox J. However, practical considerations may temper the requirement. In National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; 52 ALR 417 at 429 Gibbs CJ noted that if cross-examination were to be permitted, ‘the hearing might become so protracted as to render it practically futile’. In Hall v University of New South Wales [2003] NSW SC 669 the University of New South Wales established a formal inquiry following adverse allegations made against one of the professors. The professor sought judicial review in relation to the inquiry’s findings, and one of the grounds [page 226] on which he based his challenge was that he had been denied procedural fairness by not being permitted to cross-examine witnesses. He argued that their credibility could not be assumed and he considered it was part of his defence to be able to ascertain the witnesses’ understanding of some of the relevant facts. The university argued that as the witnesses could not be compelled to provide evidence to the inquiry, evidently they could not be compelled to be cross-examined. Further, it was noted that the professor himself had declined to be crossexamined. McClellan J found against the plaintiff on this issue (at [167]): It is apparent that the Inquiry could not require cross-examination. Accordingly, for there to be a fair hearing it was necessary for the Inquiry to recognise the problems of making findings in relation to credibility and other matters where the evidence had not been tested by cross-examination.

Although a court hearing will usually provide an opportunity for cross-examination, it is not an essential requirement for a fair hearing: see R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; O’Rourke v Miller (1985) 156 CLR 342 at 353–4. W here it is not provided, the findings made by the tribunal must be made with appropriate caution. This occurred in the present case (at [168]).

11.1.16 Evidential basis of decisions Although administrators are not bound by the rules of evidence, there is a danger that where administrators rely on inaccurate information, a decision is more likely to be a ‘bad’ decision. Attempts have been made to develop a third rule of procedural fairness, which requires that a decision must be based upon logically probative evidence. The rule was accepted by the Privy Council in Mahon v Air New Zealand Ltd [1984] AC 808 and has the support of some Australian judges. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366; 94 ALR 11, Deane J noted that: A duty to act judicially (or to accord procedural fairness or natural justice) extends to the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made. As I pointed out in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; 4 ALD 139; 31 ALR 666, it would be both surprising and illogical if such a duty involved mere surface formalities and left the decision-maker free to make a completely arbitrary decision. If the actual decision could be based on considerations which were irrelevant or irrational or on findings or inferences of fact which were not supported by some probative material or logical grounds, the common law’s insistence upon the observance of such a duty would represent a guarantee of little more than a potentially futile and misleading facade. If the decision were determined by the toss of a coin or some other arbitrary procedure, the ‘right’ to a hearing would be illusory.

Despite Deane J’s arguments, the High Court has not endorsed this approach: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357; 94 ALR 11 per Mason CJ. In any case, decisions not based on probative evidence can be challenged on other grounds: see 9.2.1 –9.2.4 , 9.2.6 .

11.1.17 Assistance at the hearing — legal representation Some statutes provide that parties to proceedings may not be legally represented: Veterans’ Entitlements [page 227] Act 1986 (Cth) s 147(2). In the absence of a clear statutory provision about representation, courts have been reluctant to treat a right to representation as a necessary part of procedural fairness. Courts have generally considered that decision makers have a discretion as to whether to allow representation: X v McDermott (1994) 123 ALR 226. W here the procedure is within the tribunal’s discretion and the tribunal is required to proceed informally, a tribunal’s refusal to allow lawyers to appear does not constitute a denial of procedural fairness: Krstic v Australian Telecommunications Commission (1988) 20 FCR 486; 16 ALD 751. In Cains v Jenkins (1979) 28 ALR 219, the Full Federal Court held that there is no absolute right to representation, even where livelihood is at stake. However, administrative decision makers are required to exercise their discretion according to the capacity of the individual to present their own case, the seriousness of the matter and the complexity of the legal and factual issues involved. Given the applicant’s capacity to present his case without reliance on legal representation, he had not been denied procedural fairness. The court suggested the position might have been different if the applicant had been ‘a deaf mute or a migrant with no English’: at ALR 230.

11.1.18 Should representation be publicly funded? In Dietrich v R (1992) 177 CLR 292; 109 ALR 385 the High Court recognised that in order to protect a defendant’s right to a ‘fair trial’, a criminal trial may be permanently stayed or adjourned until legal representation is provided. However, in New South Wales v Canellis (1994) 181 CLR 309; 124 ALR 513, Mason CJ and McHugh J held that the rules of procedural fairness do not extend to a requirement that legal representation be provided to a party at a trial, let alone a witness at an inquiry. In Elliott v Australian Securities and Investments Commission (2004) 185 FLR 245 at 288, the court held that: It is obviously unfortunate that legal aid funding, for a civil proceeding such as the present, could not be made available. But as the law presently stands, the lack of legal representation did not make the trial unfair insofar as [the appellant] was concerned.

The rule is different if the decision maker is under a statutory obligation to provide assistance. In Majar v Northern Land Council (1991) 37 FCR 117 legislation provided that Land Councils should assist Aboriginal people claiming to have a traditional land claim, ‘in particular, by arranging for legal assistance for them at the expense of the Land Council’. The Council’s refusal to fund representation constituted a breach of procedural fairness.

11.1.19 Assistance at the hearing — non-legal representation The question whether an applicant can have a person other than a lawyer to assist or represent them also depends on the person’s ability to present their own case. In Krstic v Australian Telecommunications Commission (1988) 20 FCR 486; 16 ALD 751, Woodward J suggested that an informal tribunal would be well advised to grant such a request, unless there was a good reason for rejecting it. Although the applicant in this case was considered able to represent herself, in view of her age and educational qualifications, it was sensible to allow the union organiser to be present.

11.1.20 Assistance at the hearing — decision maker Decision makers, particularly in an adversarial context, should not intervene in an oral hearing [page 228] to assist a person to present their case. In Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323, the tribunal was required to provide the person with a reasonable opportunity to present their case, and not ‘the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled’ (at ALR 343); see 3.5.8 . If the proceedings are inquisitorial, the decision maker must adopt a non-partisan approach and the proceedings must be conducted in accordance with the statutory framework having regard to the institution’s case load. However, the tribunal may, in certain circumstances, be required to raise issues and make known its view ‘in a moderate way’: Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 18 ALD 782 at 787; 90 ALR 310 per the Full Federal Court: see 11.1.6 .

11.1.21 Assistance at the hearing — interpreter At common law, the provision of an interpreter in curial proceedings is a matter within the trial judge’s discretion. Some English authority suggests that procedural fairness requires that a person be permitted to use an interpreter: R v Merthyr Tydfil Justices; Ex parte Jenkins [1967] 2 QB 21 at 23 per Lord Parker CJ. Further, the International Covenant on Civil and Political Rights contains a guarantee in Article 14 clause 3(f) of ‘the free assistance of an interpreter if he [sic] cannot understand or speak the language used in court’. Although Australia has ratified this Covenant, there is limited Australian case law which refers to the right to an interpreter as an aspect of procedural fairness. In Singh (Heer) v Minister for Immigration and Ethnic Affairs (unreported, FC(SA), Foster J, 12 June 1987), Foster J set aside a decision to deport the applicant on the ground that the absence of an interpreter for part of the interview and a failure to provide the applicant with a copy of the record of interview amounted to a breach of procedural fairness.

11.1.22 The effect of delay In NAIS v Minister for Immigration and Multicultural and Indigneous Affairs (2005) 228 CLR 470 the applicants sought judicial review of a decision by the Refugee Review Tribunal on the basis of jurisdictional error, in that the delays associated with the processing of their applications resulted in them not obtaining a fair hearing. The High Court held that there had been jurisdictional error. Gleeson CJ stated (at 476): The fact that the impairment resulted from the default of the Tribunal is important. Many events, outside the control and

influence of the Tribunal, might occur to make it more difficult to evaluate the claims of an applicant. That does not make the procedure unfair. On the other hand, when the Tribunal, exercising the control over its own procedures given to it by the Act, without explanation or justification, and without any fault of an applicant for review, draws out those procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, and there is nothing in the Tribunal’s reasons to displace that likelihood, then a case of procedural unfairness arises.

Further on this point Kirby J (at 503) held: It can reasonably be inferred from the serious delay in this case that there was a real risk that the Tribunal’s capacity to assess the appellants’ evidence was impaired. As such, the decision was flawed for want of procedural fairness.

[page 229]

2 The rule against bias 11.2.1 The neutral decision maker The rule against bias is based on the maxim nemo debet esse judex in propria sua causa , which means ‘no one should be a judge in their own cause’. This rule requires a decision maker to be neutral and unbiased. However, there are inherent difficulties in this concept of neutrality. W hat is ‘neutral’ will have different meanings for a white, Anglo-Saxon, middle class, heterosexual male and an Indigenous person, a woman, a lesbian or gay man, a person with a disability or a person from a non-English-speaking background. For further information on this area see Australian Law Reform Commission, Equality Before the Law: Justice for Women , Discussion Paper 54, Sydney, July 1993; Equality Before the Law: Women’s Equality , Report No 69, Pt II, AGPS, Canberra, 1994.

11.2.2 The basic test: reasonable apprehension It is not necessary to show actual bias: R v Watson; Ex parte Armstrong (1976) 136 CLR 248. A breach of procedural fairness on the ground of bias occurs if a fair-minded and objective bystander would entertain a reasonable apprehension that the administrative decision maker would not bring an impartial and unprejudiced mind to the resolution of the question involved: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.

11.2.3 The unprejudiced mind A fair and unprejudiced mind is not an empty mind. The High Court in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554 noted that a fair mind is not necessarily ‘a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it’. In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; 93 ALR 435, Gaudron and McHugh JJ noted (at ALR 457) that: … what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.

The test is whether the reasonable observer would believe that the decision maker would bring an unprejudiced and impartial mind to the resolution of the issues: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344. In this case the majority of the High Court (at 344) held that where judges are concerned, there is no special test but rather: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

11.2.4 Rationale of the rule The test is stated in terms of an apprehension on the part of the parties or the public. It is framed in such a way to reflect its rationale: it is of fundamental importance that the parties to litigation and the general public [page 230] have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; 9 ALR 551 at 565–6. Public confidence in the administration of justice is more likely to be maintained if the test reflects the reaction of the ordinary reasonable member of the public. Mason CJ and McHugh J said in Webb v R (1994) 181 CLR 41 at 51–2 that: … it is the court’s view of the public’s view, not the court’s own view, which is determinative. If public confidence in the administration of justice is to be maintained, the approach that is taken by fair-minded and informed members of the public cannot be ignored.

11.2.5 The reasonable observer The test requires that the hypothetical ‘reasonable observer’ with knowledge of the material objective facts would apprehend bias. It can be difficult to know precisely what knowledge is to be attributed to the observer. The reasonable observer is credited with the knowledge that it is legitimate for decision makers to expose their provisional views during the proceedings, particularly in complex and lengthy proceedings: Glynn v Independent Commission Against Corruption (1990) 20 ALD 214. However, the reasonable observer is not credited with knowledge of the law or administrative process: Webb v R (1994) 181 CLR 41 at 52. Nor is the reasonable observer credited with knowledge of the personal characteristics or ability of the decision maker: Livesey v New South Wales Bar Association (1983) 151 CLR 288. In the following case, the High Court considered the knowledge attributed to this hypothetical reasonable observer.

I n Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; 93 ALR 435, Laws instituted defamation action against the Australian Broadcasting Tribunal and its employee, the Director of the Program Division. On radio, the Director had discussed the Tribunal’s public inquiry, which was to determine whether Laws had breached Radio Program Standards, when he made comments critical of federal expenditure on Aboriginal welfare on talk-back radio. The Tribunal filed a defence in the defamation proceedings in which it claimed that the statements made by its officer were true. Laws sought to prevent the Tribunal’s inquiry on the basis that by filing the defence, the Tribunal had prejudged the issues in the inquiry. Mason CJ and Brennan J (with whom Gaudron and McHugh JJ agreed) held that a fair-minded observer would not conclude that the members of the Tribunal, other than the three members who participated in the earlier decision, would bring other than an unprejudiced and impartial mind to the resolution of the issues, which would arise during the inquiry. Mason CJ and Brennan J noted (at CLR 87–8): In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case … which led to the bringing of the defamation action and the filing of the defences. While it would not be proper to attribute to the fair-minded observer the understanding that a lawyer would have of the capacity of the members of the tribunal to make an independent decision uninfluenced by previously expressed opinions and conflicting interests …, such an observer must be taken to appreciate that the defences filed by the tribunal do not amount to assertions of belief or

[page 231] admissions … He or she would understand that the corporate action of the tribunal in filing defences … did not involve a judgment of the issues in the action by the individual members of the tribunal.

To find bias, it must be established that there is a reasonable fear that the decision maker’s mind is so prejudiced in favour of a conclusion already formed that the conclusion will not be altered irrespective of the evidence presented. The most that can be said of those members who were parties to the filing of the defamation defences was that they believed that, on the evidence known to them, the assertions in the defences were true and that on that evidence they would probably decide adversely to the applicant.

The form of bias 11.2.6 Standard varies according to form of bias In the following paragraphs, we will consider different forms of bias, both pecuniary and non-pecuniary. Non-pecuniary bias includes bias by association, conduct or prejudgment.

11.2.7 Pecuniary interests The rule against bias has traditionally been most strictly applied in the case of pecuniary or proprietary interests. Some statutory schemes require that decision makers who have a pecuniary interest in the matter disqualify themselves from hearing that matter: Administrative Appeals Tribunal Act 1975 (Cth) s 14. Indeed, some statutes make it a criminal offence for a decision maker with a pecuniary interest to decide a matter in which a conflict of interest has arisen. It had long been accepted that where a decision maker has a direct pecuniary interest, no matter how small, there is a conclusive presumption of bias and the decision maker is automatically disqualified: Webb v R (1994) 181 CLR 41. It was irrelevant whether this interest, influenced the decision maker: Dimes v Proprietors of Grand Junction Canal Pty (1852) 3 HL Cas 759; 10 ER 301. However, for the presumption to arise, this interest had to be personal to the decision maker and not too tenuous or remote. I n Ebner v Official Trustee in Bankruptcy (2001) 176 ALR 644; [2000] HCA 63 the High Court rejected the special ‘pecuniary interest’ rule, holding that a pecuniary interest was relevant only insofar as it indicated actual bias or was such as to give rise to a reasonable apprehension of bias. If a judge’s shareholding in a defendant bank was such that a decision in favour of the bank would, at most, make a few cents difference to the dividends received by the judge, that would clearly not be enough to give rise to the requisite degree of apprehension.

11.2.8 Association: judges Personal involvement including improper contacts can lead to an apprehension of bias. The important question is whether the decision maker’s personal involvement means that the decision is prejudged and the decision maker cannot be persuaded otherwise. W here a judge or magistrate has contact with one party in the absence of the other, this may give rise to an apprehension of bias. Such an apprehension arose in R v Magistrate’s Court at Lilydale; Ex parte Ciccone [1973] VR 122 where the magistrate had been driven by counsel for one side to view a site. This issue also arises when judges are listed to hear cases in which they were involved before their appointment to the Bench. Such involvement [page 232] does not generally disqualify the former adviser from sitting in proceedings where the former client is a party. However, if the correctness or appropriateness of advice given to the client is a live issue for determination or the quality of the advice is an issue, the decision maker should not sit: Re Polites; Ex parte Hoyts Corp Pty Ltd (No 2) (1991) 173 CLR 78 at 87–8; 101 ALR 698.

11.2.9 Association: non-judicial decision makers These requirements may be less stringent in the case of administrative decision makers provided the other party is given an opportunity to respond. In Re Polites; Ex parte Hoyts Corp Pty Ltd (No 2) (1991) 173 CLR 78; 101 ALR 698, the High Court issued mandamus to compel a

Deputy President of the Industrial Relations Commission to hear the matter. The Deputy President had disqualified himself because of his former role as legal adviser to one of the parties. The court noted that a prior association with parties who frequently appear before the Commission cannot be sufficient by itself to amount to a disqualification from sitting in a particular case. However, in the following case, a reasonable apprehension of bias arose in respect of a non-judicial decision maker. I n Koppen v Commissioner for Community Relations (1986) 11 FCR 360; 67 ALR 215 during a compulsory conciliation conference, it was alleged that Koppen had refused Aboriginal people entry to his nightclub on the basis of their race. The conciliator, who was an Aboriginal woman, commented that her daughters had also been denied entry into Koppen’s nightclub. The court held that the comments gave rise to a reasonable apprehension of bias, as the parties or the public might reasonably suspect that the conciliator was not unprejudiced and impartial. Although the value of using local community members in the conciliation process was acknowledged, it carried with it the risk that the conciliator would have ‘actively entered the controversy between the parties’: at ALR 229.

11.2.10 Conduct A decision maker’s conduct or published statement on a matter may also give rise to a reasonable apprehension of bias. In Webb v R (1994) 181 CLR 41, a juror in a murder trial gave flowers to the victim’s mother. The High Court considered that where a juror exhibits sympathy for a relative of a victim, an accused person or the public could reasonably apprehend that the juror was unable to perform her task in a detached manner. However, the majority decided that the apprehension of bias had been wiped away when the juror apologised, the matter was publicly ventilated and the judge warned the jury that the evidence must be weighed dispassionately and objectively.

Prejudgment 11.2.11 The basic test The expression of opinions during the hearing or outside of the hearing does not necessarily mean that a decision maker might not bring to their work an unprejudiced mind. The crucial question is whether a decision maker with known beliefs has prejudged the case or whether the decision maker has merely expressed a general tendency of mind and is open to persuasion by the evidence and submissions. The test applied is that the mind is not so foreclosed as [page 233] to preclude genuine consideration . Further, when bias arising from preconceptions, as distinguished from bias arising from interest, is in question, there must be strong grounds for finding it: Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633 at 637–8 per Dawson J. In R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116; [1953] ALR 46, the High Court noted that when bias by prejudgment arises: Bias must be ‘real’. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that ‘preconceived opinions — though it is unfortunate that a judge should have any — do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded’, per Charles J, R v London County Council; Ex parte Empire Theatre (1894) 71 LT 638 at 639.

11.2.12 Provisional views expressed during a case A distinction is drawn between prejudgment and a decision maker’s expression of useful comments indicating their developing opinion. It is widely accepted that judicial silence may be counterproductive: Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633 at 634–5. In Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 317, the court held that a tribunal is ‘entitled to form provisional views, of various strengths, as it progresses through an inquiry and to express such views in a moderate way is conventional and helpful’. In fact, critical comments, particularly at the outset, can be useful to parties by providing insight into developing opinions so that submissions can be targeted to those aspects of the case which trouble the decision maker. However, the beliefs or opinion must be provisional and the decision maker’s ‘readiness to listen and be persuaded is the critical matter’: Richmond River Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1992) 34 FCR 385; 106 ALR 671 at 681 per W ilcox J.

11.2.13 Preconceived opinions evidenced by public statements It is difficult to establish bias unless the decision maker’s public statement is so vehement on a question of policy or opinion, which is also a live issue in the case before him or her, that substantial distrust of the outcome of the case may be generated. This may be a matter of degree. I n Re Maurice: Ex parte Attorney-General (NT) (1987) 17 FCR 422; 12 ALD 317, the Aboriginal Land Commissioner had made comments critical of the government including that ‘It has pretensions to be a government for all the people in the Northern Territory … yet its actions consistently betray an underlying hostility to the basic principle of land rights for a dispossessed people’. The Commissioner had to make a decision as to the good faith of the government. The remarks objected to related closely to the question of good faith raised by the claim. The Full Federal Court held that the Commissioner was precluded from further investigating the Kenbi land claim, as the remarks created a reasonable apprehension that the Commissioner would not resolve this issue with a fair and unprejudiced mind. The remarks related to politically sensitive issues and were made at a time [page 234]

when a political campaign was being fought for the election of the Northern Territory government. Further, the public’s awareness of the Commissioner’s comments was heightened by the publicity necessarily attached to the election. In R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (No 2) (1978) 18 SASR 65, it was argued that the Commissioner should disqualify himself from holding a hearing into the variation of an award as he had previously, as a member of a Committee, submitted a report concerning the issues raised. Bray CJ refused to disqualify the Commissioner. Parliament had contemplated that Commissioners would be persons with experience of industrial affairs, who would have previously considered and come to tentative views on certain issues. Further, it must be firmly established that the member would not bring a fair and unprejudiced mind to the matter. Difficulties arise where the public statements are made subsequent to a decision, so that while there may have been no appearance of bias at the time of the decision, people may subsequently come to entertain a reasonable apprehension that the decision maker was biased. This issue arose in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 179 ALR 296; [2001] HCA 23. The applicant, who had been denied a protection visa, sought review on the grounds of material presented by a member of the Refugee Review Tribunal, on his personal website. The High Court unanimously agreed that conduct following a decision could give rise to a reasonable apprehension of bias, but concluded that its capacity to do so would depend on the circumstances, and in particular, on the time that had elapsed between the decision and the public statement. Kirby J (at [75]) pointed out that where a person occupied a quasi-judicial office, more weight was to be attached to statements made while the person held the office than to statements made before or after holding the office.

11.2.14 Preconceived opinions evidenced by former decisions The fact that a decision maker decided an issue of fact or law in a particular way and may decide it in the same way if it arises again, does not indicate prejudgment amounting to bias. To find bias it is necessary to show that the decision maker’s mind was so prejudiced in favour of a conclusion despite the evidence presented that the party will not be afforded a proper hearing. The principle applied in most cases is that the listing of cases before decision makers is a matter for the institution: ‘judge shopping’ is not allowed. Kirby P in Rajski v Wood (1989) 18 NSW LR 512 at 519 noted that: If parties could pick and choose judges according to their perception of the way in which their choice could advantage them, or disadvantage their opponents and then render judges answerable for sitting arrangements, great damage would be done to the integrity of the judicial process and to community confidence in the neutrality and impartiality of the judiciary. … Courts are vigilant to adopt procedures to guard against forum shopping and judge selection by parties to litigation.

In Vietnam Veterans’ Association of Australia New South Wales Branch Inc v Gallagher (1994) 52 FCR 34; 34 ALD 205 at 213–14 it was argued that past decisions showed that Member Marsh was biased against Vietnam veterans seeking pensions. [page 235] Heerey J dismissed the application. Although statistical evidence may indicate that because Marsh had decided cases in a particular way in the past, he was likely to decide a case of the same nature in the same way in the future, that did not amount to apparent bias. Further, it would be an abdication of duty for decision makers to disqualify themselves on request. The procedure adopted for the allocation of cases to Veterans’ Review Board members ensured that applicants cannot pick a panel of their choice. In Ewatt v Lonie [1972] VR 308, an objection was taken to the constitution of the tribunal based on the fact that two of the three members had heard the earlier appeal and disallowed three grounds of appeal raised again in the new appeal. Lush J acknowledged that the appellants would fear that the tribunal would follow or be persuaded by the reasons given in the earlier decision. However, his Honour considered that the tribunal was entitled to refer to the reasons in the first appeal and noted (at 311): Every reasonable man knows that consistency in decisions is one of the aims of judicial or quasi-judicial institutions, but if he is exercising his quality of reasonableness he does not suppose that a tribunal will refuse to entertain or will fail to give proper attention to a submission opposed to its former decision merely because it is so opposed. In this case, the reasonable onlooker might have thought that the appellants would not have much chance of succeeding, but this is not the same thing as feeling or believing that they would not get a proper hearing.

11.2.15 Predisposed attitudes assumed by virtue of decision maker’s identity The legitimacy of the administration and courts is based on neutrality and the public confidence which it engenders. Consequently, courts generally show great respect to decision makers and seem reluctant to impugn them on the ground of attitudinal bias. The bias rule has not impacted on complaints about systemic gender or race bias despite changes in community perceptions and the development of anti-discrimination laws. Generally, the bias rule is focused on biased attitudes towards individuals rather than biased attitudes towards a group. As evidenced by the following cases, bias cannot be attributed to a decision maker by virtue of their membership of a group. The underlying principle is that parties should not be able to ‘judge shop’: Rajski v Wood (1989) 18 NSW LR 512; see 11.2.14 . I n Bird v Minister for Schools, Vocational Education and Training (1994) 35 ALD 552, the male applicant sought to have a female Jewish judge disqualified on the basis that because of her gender and ethnic origin she was likely to be predisposed to find against the interests he sought to advance. Drummond J held that the grounds relied upon to justify disqualification were ‘such that no person, acting reasonably, could possibly think that there was any substance in any of them’: at 556. I n R v Judge of District Courts and Shelley; Ex parte Attorney-General [1991] 1 Qd R 170, the issue arose

whether the trial judge had appropriately allowed the accused to challenge jurors for cause on the ground that the juror was a woman. The accused had argued that as a Christian man, it was against his religious beliefs to be judged by women. The court held that provided the juror is qualified by law to sit, an accused could not object to a juror in relation to whom, on religious or any other grounds, he has an objection. [page 236]

11.2.16 Predisposed attitudes to sociopolitical issues or groups To substantiate an apprehension of bias by attitudinal predisposition, it would be necessary to establish that the decision maker’s mind was so foreclosed that persuasion is not a genuine possibility. The issue is whether the person will get a proper hearing. Attitudinal bias in a particular case is difficult to prove as there are rarely objective circumstances on which to rely. The following case provides an example of how a court deals with objective evidence. I n R v Rankine River Justices; Ex parte Sydney (1962) 3 FLR 215, a Northern Territory justice of the peace made racist comments outside the court where two Aboriginal men were being tried for assault. Among other comments, the justice had remarked that ‘natives must be kept under the thumb’. The court held that the convictions should not be allowed to stand. Bridge J noted (at 224–5): It could well have led any reasonable person hearing it and attending the trial to suppose that [the justice] was making a disciplinary rather than a judicial approach to the summary proceedings. Such an approach would be a serious departure from the proper course of justice … I am satisfied that he unconsciously, but effectively, allowed discriminatory and disciplinary leanings against the two accused before him to displace judicial impartiality in his mental process.

11.2.17 Known attitudes to witnesses The rule appears to be applied differently where a decision maker has preconceived views about witnesses, as opposed to where the decision maker has a predisposition, conscious or unconscious, to deciding sociopolitical or legal issues in a particular way. The following cases consider the impact of a decision maker’s preconceived views about a witness. Livesey v New South Wales Bar Association (1983) 151 CLR 288 concerns preconceived views about the credibility of a non-expert witness whose evidence is of significance to a live issue. Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633 concerns preconceived views as to the expertise or reliability of an expert witness. I n Livesey v New South Wales Bar Association (1983) 151 CLR 288, Livesey appealed against a decision to strike him from the roll of barristers on the ground that he was not a fit and proper person. In another case, two of the judges had expressed views concerning Livesey’s participation in an arrangement involving the lodgment of surety to procure the release of Livesey’s client from custody. The two judges refused to disqualify themselves. The court sustained the charges and held that Livesey’s name should be struck off the roll. The High Court allowed the appeal. A fair-minded observer might entertain a reasonable apprehension that the views expressed by the two members in the earlier case might result in the proceedings against Livesey being affected by bias by reason of prejudgment. The court noted (at CLR 300) that bias by reason of prejudgment may arise: … if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.

[page 237] In Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633, the trial judge had referred to the defendant insurance company’s medical witnesses as an ‘unholy trinity’ whose views were generally slanted in favour of the Government Insurance Office. He made further comments critical of the witnesses in his reserved judgment. The defendant appealed on a number of grounds, which included bias on the part of the trial judge. The High Court allowed the appeal. It acknowledged the reality that decision makers who regularly see certain medical witnesses appear for plaintiffs or defendants are likely to form views about the reliability and impartiality of those witnesses. For instance, ‘plaintiffs’ doctors’ are likely to be less sceptical of plaintiffs’ claims than ‘defendants’ doctors’. However, such views would not necessarily disqualify a judge from hearing the proceedings. The no bias rule must operate in the real world of personal injury litigation. Further, the expression of such a view does not necessarily infringe the appearance of impartial justice. However, the court suggested (at CLR 572) that the appearance of impartial justice could be threatened: … if the words or actions of a trial judge conveyed the impression that preconceived adverse views about a particular medical witness were influencing the judge’s approach to the case to an extent that the judge was entering the arena to denigrate the witness or to oppose the witness’ views or that the judge was biased against the party who had called that particular witness or that the judge was likely to be concerned, in the judgment actually deciding the case, to vindicate the preconceived adverse views about the witness by findings contrary to whatever views that witness might express.

In this case, the trial judge’s remarks gave rise to a reasonable apprehension of bias. The comments indicated that the trial judge was ‘concerned to vindicate his preconceived views and very strong adverse views about the reliability of the witness and had allowed those views to prejudice his whole approach to the case to the detriment of the defendant’: at CLR 573. I n Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 18 ALD 782 at 787, Lockhart, Pincus and Gummow JJ stated in relation to caustic remarks made by the Tribunal during the proceedings concerning alleged irregularities by Mr Skase:

[T]he weight of authority supports the conclusion that parties such as the appellants must raise quite a substantial case in order to succeed; only in unusual cases will an expression of opinion about an issue, given before the end of the hearing, be held to disqualify.

The decision makers 11.2.18 Courts and statutory bodies The test for bias is generally the same for judges, tribunal members and even jurors. However, its application will vary depending on the decision maker’s function and the particular circumstances of the case. In Webb v R (1994) 181 CLR 41 (see 11.2.10 ), the test was applied to a juror. The difference between the role of the juror and a judge did not warrant a different test. The following case indicates how the application of the test to a statutory body with a policy-making function, will depend on somewhat different considerations from those which apply in legal proceedings. [page 238] In R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, counsel for Angliss argued that the members of the Commission had prejudged the issue whether any move in the direction of equal pay was desirable. The previous year, in delivering the National Wage Case decision, the President had expressed a general view that wage differentials between men and women should be eliminated. The High Court held that the no bias rule had not been breached. In considering the question of fairness in relation to a tribunal, the whole of the circumstances must be considered including the nature of the jurisdiction exercised and the statutory provisions governing its exercise. The Commission’s function is not to enforce existing private rights but rather to ‘develop and apply broad lines of action in matters of public concern resulting in the creation of new rights and the modification of existing rights’: at 553. On occasion, it may be appropriate for the Commission to express tentative views on matters of policy. The question is whether the expression of the attitude ‘would justify a reasonable apprehension that a member of the Commission might not bring or be able to bring to the work of the Commission involving the question of equal pay a fair and unprejudiced mind able with judicial propriety to decide the matter placed before it’: at 555.

11.2.19 Domestic bodies Some Australian decisions suggest that the test applied in relation to consensual domestic bodies differs from that applied to statutory bodies. Actual bias rather than a suspicion of bias is required: Cains v Jenkins (1979) 28 ALR 219; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSW LR 161. The different standard is attributed to the fact that a domestic tribunal is established in different circumstances to statutory bodies. Members generally agree to abide by a set of rules and the authority of the committee to enforce them. Further, the adjudicative and executive functions of the committee are not separated and the members of the tribunals may participate in the matters upon which they are called to adjudicate. However, Sweeney and St John JJ in Cains suggested that this modified standard applies only when a quorum of the committee cannot be formed from members with no knowledge of the matter: at 230.

11.2.20 Political decision makers Political decisions are rarely challenged on the grounds of bias, as such decisions are inherently likely to reflect preconceived views and it is considered practically impossible for political decision makers ‘to bring an open mind to a decision’ pertaining to a known issue or person: Century Metals an d Mining NL v Yeomans (1989) 40 FCR 564 at 596; 100 ALR 383 at 417 per the Full Court. Such decisions are usually attacked using ultra vires grounds: failure to exercise discretionary power or abuse of discretionary power: see 7.2.1 –7.3.1 . In many political decisions there is no requirement to accord procedural fairness, so the no bias rule does not apply. In other decisions the rule may operate in an attenuated form. However, in Century Metals and Mining NL v Yeomans the rule operated in its most rigorous form, as the minister’s statement that proposals would be evaluated by an independent person in an impartial manner was said to have created a form of estoppel: ‘members of the public are entitled to expect that the person who will [page 239] make the assessment will bring to the task a mind which is both uncommitted in fact and which appears to be uncommitted’: at ALR 417. A similar analysis was adopted by the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421; [2001] HCA 17, where a challenge to the validity of the minister’s decision to cancel a visa on ‘character’ grounds was challenged on the basis of comments the minister had made about the case in a radio interview. The High Court majority found that there was neither actual bias nor the basis for a reasonable apprehension of bias. The decision was one for which the minister was politically accountable, and one in relation to the making of which the minister might well be drawn into public debate. Gleeson CJ and Gummow J observed (at [102]) that: The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. There is no reason to conclude that the legislature intended to impose such standards upon the Minister, and every reason to conclude otherwise.

In Hot Holdings Pty Ltd v Creasey (2002) 210 CLR 438 at 460, McHugh J, relying on Minister for Immigration and Multicultural Affairs v Jia , held: [S]ubject to any contrary indication in the legislative grant of power, a minister would be entitled to act in accordance with

governmental policy when making a decision. Thus, it will ordinarily be very difficult to impute bias or the reasonable apprehension of bias to the decision of a minister who has considered all applications on their merits but made it clear that preference would be given to applicants who complied with government policy.

11.2.21 Biased members of a decision-making authority The appearance of bias is more easily established in situations where the person who makes the complaint or brings the charge, ‘the accuser’, participates in the decision-making process. The appearance of bias will also be established where the accuser does not participate in the deliberations but is present during the decision-making process because a reasonable bystander would infer in such situations that the accuser would at least influence the result of the deliberations adversely to the appellant: Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; [1972–1973] ALR 645. However, participation does not even require physical presence at the time the decision is made. In Re Macquarie University; Ex parte Ong (1989) 17 NSW LR 113; 17 ALD 664, the Vice-Chancellor participated by her letter.

11.2.22 Necessity In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 88 (see 11.2.5 ), the High Court rejected the argument that loyalty to biased members of the decision-making authority leads to institutionalised bias, such that all members of the tribunal would be disqualified on the grounds of reasonable apprehension of bias from hearing the complaint against Laws. The fair-minded observer should attribute to tribunal members sufficient independence and propriety to make their own judgment despite any embarrassment to colleagues. However, in the absence of the power to delegate the decision-making function, if there were to be a reasonable apprehension of institutional bias, the operation of [page 240] the rule of necessity would ensure that the tribunal is not disabled from performing its statutory functions: CLR at 88 per Mason CJ and Brennan J. In the Laws case, Deane J applied the rule of necessity in a more restricted sense: it only applies to the extent that necessity justifies. It was applicable only to the extent that the tribunal could be constituted by members other than the three who made the original decision.

3 The consequences of a breach of procedural fairness 11.3.1 Void or voidable The standard view is that the effect of a breach of procedural fairness renders the decision void and the decision maker is required to reconsider the matter: Ridge v Baldwin [1964] AC 40; [1963] 2 All ER 66; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. It is now generally accepted that the decision is void although it continues to have practical and limited legal effect prior to the court’s declaration. As to the void/voidable distinction, see Chapter 12 . There may, however, be cases where flawed decisions may be treated either as voidable or as if they were voidable. In Twist v Randwick Municipal Council (1976) 136 CLR 106, the High Court appears to have accepted that the right to apply to have the primary decision set aside on the grounds of denial of procedural fairness lapsed once it was too late to use the statutory processes provided for appeals against the decision. Also, in the exercise of their discretion to deny relief in exceptional circumstances, courts may refuse to make any order in relation to a decison flawed by denial of procedural fairness if the person affected fails to prosecute the case with sufficient diligence: Hodgens v Gunn; Ex parte Hodgens [1990] 1 Qd R 1; (1989) 18 ALD 536, and see generally 12.2.2 .

11.3.2 Breach of the hearing rule In some cases, a decision maker would have reached the same result even if a hearing had been granted. In such situations, court intervention would be futile. The law is not clear on whether the effect of the breach has any bearing on the court’s discretion to grant relief. In Kioa , it was stated that it was not for the courts to provide a decision in place of that of the repository of power, as that would require the court to assess the merits of the matter, which is not open to the courts: Kioa v West (1985) 159 CLR 550 at 604 per W ilson and Brennan JJ. However, other authorities suggest that a court may decline relief if procedural fairness would not have produced a different result: Glynn v Keele University [1971] 1 W LR 487. In Stead v State Government Insurance Commission (1986) 161 CLR 141; 67 ALR 21 at 23–4, the High Court held that if a party is denied an opportunity to make submissions on a question of law, then it would be futile to order a new trial if the question of law would obviously be answered unfavourably to the applicant. However if a party is denied an opportunity to make submissions on a question of fact, then it would be more difficult to conclude that compliance with the requirements of procedural fairness would have made no difference. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 the High Court’s decision as to whether there had been a denial of [page 241] procedural fairness considered whether the alleged error had made a difference to the applicant’s capacity to present his case. The court found that it did not. However, in this case the applicant had not attempted to argue that he had been disadvantaged. W here there is a possibility that the alleged denial might have affected the decision, then such at failure to afford a proper hearing appears to be fatal to the validity of the decision. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 the High Court judges expressed different views as to whether a denial of procedural fairness is fatal to the validity of a tribunal’s decision if it would not have affected the tribunal’s decision. Gummow and Gaudron JJ stated (at 109) that a denial of procedural fairness was a jurisdictional error, irrespective of whether the failure to afford procedural fairness would not have affected the outcome of the decision. Kirby, Callinan and Hayne JJ also were of that view. However, McHugh J

(at 122) considered that the decision could stand, if the failure to deny procedural fairness does not affect the outcome of the decision. I n SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 Hayne J considered that the denial of procedural fairness may constitute a jurisdictional error.

11.3.3 Breach of the bias rule W here there is a breach of the bias rule, it is not necessary to show that a breach of the rule actually affected the decision. The reason for this difference in approach is that the rule against apparent bias is concerned with the appearance of justice. However, if a party knowingly waives its right to an unbiased (or an apparently unbiased) decision maker, the party may not subsequently challenge the decision on the grounds of the relevant bias.

11.3.4 Does an appeal amount to waiver of a breach of the hearing rule? W here the party has chosen to appeal against the decision, they may be having ‘a bet each way’: happy to accept the outcome of the appeal, if it is in their favour; intending to argue that the primary decision was a nullity, and should be reconsidered, if they lose. It is sometimes argued that by appealing a decision, the party is disqualified from relief because by the appeal, they have affirmed the validity of the decision or must be taken to have waived the objection. They can scarcely be taken to have affirmed the decision’s validity, since the right to appeal is rarely conditioned on the validity of the decision, and the fact that they have appealed scarcely suggests that they are committed to the proposition that it is a valid one. The argument that they have waived their right to object is a stronger one, but it is not conclusive. In Ackroyd v Whitehouse (Director of National Parks and Wildlife Service) (1985) 2 NSW LR 239, Kirby P held that the appellant had not lost the entitlement to challenge a decision made in breach of the rules of procedural fairness because he had elected to appeal against the decision. The statutory appeal did not provide a ‘code’ excluding judicial review. In particular, the appeal was not a de novo hearing by an independent judicial officer. Also Ackroyd had challenged the primary decision before the appeal had been heard. The case is to be contrasted with Calvin v Carr [1980] AC 574; (1979) 22 ALR 417 where the appeal was fully heard and where the Privy Council found that it had afforded the appellant the procedural fairness he [page 242] had been denied at first instance. Having availed himself of his appeal rights, he had received the procedural fairness which was his due.

11.3.5 Does a failure to object amount to waiver of a breach of the no bias rule? This ‘bet each way’ issue also arises in relation to the rule against bias. A party may be afraid to call bias in case it makes the decision maker more hostile; or the party may wait opportunistically to see if the final decision is in their favour. Generally, an objection must be made as soon as possible after the person affected becomes aware of the bias. A failure to make the objection early may amount to a waiver of the right to complain: Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633 at 639 per Dawson J. In Vakauta , the appellant did not object to the comments, and was thereby held to have waived his right to object to apprehended bias insofar as the objection was based on the judge’s in-court statements. However, the High Court held that the appellant had not waived the right to complain, as the trial judge’s comments were revived in his reserved judgment.

Problem In Chapter 10 we met Ms Sammler. The Director of Victims Compensation refused Ms Sammler’s request for leave to apply for compensation out of time. In accordance with s 36 of the Victims Compensation Act 2008 (Cth), Ms Sammler appealed this decision to the Administrative Appeals Tribunal (AAT). The tribunal member, Mr Schmidt, a clinical psychologist, had before him a copy of the applicant’s file, which had been before the Director. The claimant was represented by a friend before the tribunal but there was no appearance on behalf of the Victims Compensation Board. In accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Board had filed the relevant documents, which were before the Director, but had not made any further written submissions. The transcript reveals that Mr Schmidt stated that he had read all the material placed before him by the claimant on the previous day. Ms Sammler’s representative suggested that if Mr Schmidt did not wish to ask any questions of the applicant, they would proceed by tendering further written evidence. The following additional material was tendered at the hearing: comprehensive written submissions from the claimant; and a report of a forensic psychiatrist together with an additional report of the psychologist. These medical reports indicated that the claimant was suffering from a severe case of posttraumatic stress disorder and lingering depression arising from repressed memory syndrome. The transcript reveals the following exchange between Mr Schmidt and Ms Sammler’s representative: Ms Sammler’s representative: There were three acts of violence committed against the appellant by her stepbrother, when she was aged nine. The appellant is behind me in the blue shirt. Mr Schmidt: Are you telling me that the person sitting behind you is the appellant and that she is female? Ms Sammler’s representative: Yes, Mr Schmidt.

[page 243] Ms Sammler was seated behind her representative, dressed in a plain shirt and trousers. Ms Sammler has short hair. Oral evidence was not presented. After a short adjournment, Mr Schmidt delivered his reasons: I have decided to affirm the decision under review and not to extend time. The policy provides that leave should be given to lodge applications out of time in cases of child sexual abuse except in exceptional circumstances where the Director is satisfied that there is

no good reason to do so. I am not sure whether it is an ‘exceptional circumstance’ that an application is doomed to failure. If it is, then I shall apply the policy and refuse an extension of time. If not, I will exercise my discretion and depart from the policy, since I do not consider that it is in anyone’s interest that an extension of time be given to enable the consideration of a hopeless case. The facts here disclose that more than sixteen years have passed since the alleged acts of violence were committed. I am prepared to accept that Ms Sammler honestly believes that she was assaulted. I am fortified in this opinion by the fact that she has produced both evidence in support of her case and evidence — such as her sister’s — which casts some doubt on it. I am prepared to accept that she may have been assaulted either as claimed or at some other time. However, given the well-known problems associated with the repressed memory syndrome — none of which are addressed in the material before me — I am not satisfied that it is more likely than not that the alleged events took place. I was not impressed by the report of the psychiatrist who, as always, has based her report on repressed memory syndrome, and whose reports of recovered memories suggest that they are more likely to have been drawn from a standard form on a word processor than from the actual memories of the person alleged to have suffered from the relevant experience. I am concerned by the rush of claimants who use this psychiatrist and the similarities of his reports for different claimants. Moreover, even if the acts alleged did take place, they were minor ones which did not extend over a long period. Only one of them involved physical injury, and this was minimal. I am satisfied that having regard to the minimal physical injury sustained and the reliance on repressed memory syndrome, that leave should not be granted. I would add that given the passage of time, I can attach little weight to the sister’s claim to be able to recall the state of the relationship between the applicant and her stepbrother at a precisely defined period twelve years ago.

Ms Sammler is distressed by the reasons for decision. She thinks that Mr Schmidt was biased against her because she is a lesbian and because her psychiatrist has based her case on repressed memory syndrome. Advise Ms Sammler whether she may seek judicial review on the ground of a breach of procedural fairness.

Resolution In this question you have been asked to ‘advise’ Ms Sammler. This instruction means that you should adopt an openly partisan position. ‘A dvise’ in this context means advise Ms Sammler on all the legal issues she will be able to raise in her favour and all those to which she will have to respond. You have been directed by the question to deal only with the issue of procedural fairness. In your introduction to the question you would need to discuss the doctrine of procedural fairness and whether Mr Schmidt, a tribunal member, is obliged to accord procedural fairness to Ms Sammler. It would seem that there is no dispute that Mr Schmidt is obliged to accord Ms Sammler procedural fairness. Section 39 of the AAT Act provides that a party must be given a reasonable opportunity to present their case. [page 244] The implication of procedural fairness is not the focus of the question. The real issue is the content of procedural fairness in the circumstances of the case. One way of effectively dealing with key issues is to frame headings in the form of a question. This not only signals the key issue for your marker, but also prompts you to formulate your answer in a way which demonstrates how the law can be applied in Ms Sammler’s case.

Has Mr Schmidt breached the hearing rule? The minimum content The content of the hearing rule is flexible and is determined by what is fair in the circumstances of the case: Kioa v West (1985) 159 CLR 550. It would seem that the minimum content of the hearing rule has been satisfied, as Ms Sammler has been given notice of the time of the hearing and its subject matter. In accordance with the procedure of the AAT, Ms Sammler had been provided with a copy of the documents before Mr Schmidt, including the Director’s decision. There appears to be no need to provide her with further notice, as no additional adverse allegations have been made prior to the proceedings. Further, there is no suggestion that Ms Sammler was not given ample opportunity to prepare her case: R v Thames Magistrates Court; Ex parte Polemis [1974] 1 WLR 1371.

What is the basis of Mr Schmidt’s decision? The matters upon which Mr Schmidt based his decision were that the incidents did not extend over a long period and involved only ‘minimal’ physical injury and that he rejects repressed memory syndrome.

Did procedural fairness require Mr Schmidt to give Ms Sammler notice of potential adverse findings? The essence of the hearing rule is that a party should be made aware of the case alleged against her or him. If the case is not known, the party cannot be in a position to answer it. The issue that arises in this case is whether Mr Schmidt is required to notify Ms Sammler before the completion of the hearing of findings, which he is minded to reach. Although cases such as Vakauta v Kelly (1989) 167 CLR 568 indicate disapproval of the model of the silent judge, procedural fairness does not impose any general obligation to indicate tentative adverse findings in advance of the decision: Bond v Australian Broadcasting Tribunal (No 2) (1988) 19 FCR 494 at 512 per Wilcox J. Where a party has had an opportunity to present their case, procedural fairness does not require a decision maker, before reaching the decision, to expose their conclusion that the material is insufficiently persuasive to warrant a decision in that person’s favour: Kioa v West (1985) 159 CLR 550 at 588 per Mason J. It is only where new material or a new issue arises during the decision-making process, that the party affected should be given an opportunity to comment. The question then becomes whether a new issue has arisen during the hearing or whether Ms Sammler should have anticipated these matters and had sufficient warning that such findings could be made. It is arguable that Mr Schmidt’s conclusion that the injuries were ‘minor’ is an unusual conclusion and unrelated to the evidence. Ms Sammler could not have anticipated that the injuries would be viewed in this light. [page 245] Alternatively, it could be argued that Ms Sammler should have anticipated that in considering whether to extend the time, Mr

Schmidt would consider the seriousness of the injuries as a factor affecting his discretion, and indeed that she had presented evidence of the seriousness of the injuries. Consequently, no new issue or new material arose during the decision-making process. The problem here seems to be not that Ms Sammler was deprived of the chance to present evidence, but that the evidence was wrongly interpreted. Arguably, Mr Schmidt should have warned Ms Sammler of his intention to rely on his understandings in relation to repressed memory, and in relation to the reliability of the psychiatrist’s evidence. Where an ‘expert’ intends to reject material on the basis of their expertise or accumulated knowledge, they should warn parties so that they can produce material relevant to the validity and generalisability of the expert’s assumptions or experience. There is nothing to suggest that Ms Sammler and her representative should have anticipated that the repressed memory evidence would be treated as worthless. This was not, after all, one of the grounds on which the Director refused to extend time for the hearing of the case, and it does not seem to have been mentioned in the course of exchanges between Mr Schmidt and Ms Sammler and her representative. Ms Sammler should have been given notice so that she could tender evidence in support of the medical reports or invite her medical witness to attend for cross-examination. It is also possible that Ms Sammler should have been warned by Mr Schmidt that he was intending to base his finding on an assessment of the merits of her substantive case, rather than on whether exceptional circumstances existed for departing from the policy of allowing out of time applications. While the material she presented to the Tribunal clearly related to the merits of her case, she could argue that she had been denied a fair hearing, if her misunderstanding of the parameters of the decision-making process had led her to underestimate the degree to which she had to show that she had a strong as distinct from an arguable case.

Was Mr Schmidt required to give Ms Sammler an opportunity to call witnesses to support her case? Mr Schmidt was under no obligation to advise Ms Sammler that she could seek an adjournment in order to call witnesses. In Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 343, the tribunal’s failure to inform the appellant of his right to seek an adjournment or to adjourn the proceedings was not a denial of procedural fairness. The tribunal was required to provide the person with a reasonable opportunity to present their case, and not ‘the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled’: ALR 323 at 343. However, if as here, the need for an adjournment arises from the way in which the tribunal is conducting its inquiry, procedural fairness would seem to require that Ms Sammler be asked whether she would like an adjournment so that she could reply effectively to the matters taken into account against her.

Should Mr Schmidt have given notice of how he planned to evaluate the material? Merely because an opportunity is not given to put a case so that the facts should be evaluated in a particular way, does not amount to a breach of the hearing rule. [page 246] As was stated in Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 a decision maker is not required to give notice of ‘his view or evaluation of the material that an applicant puts forward … His thought processes, if not unreasonably based on evidence, or other material, are a matter for him’. The only question that then arises in Ms Sammler’s case is whether Mr Schmidt’s thought processes could reasonably have been based on the evidence.

Did Mr Schmidt base the decision on logically probative evidence? In our consideration of the application of the hearing rule, the question arises whether the decision could reasonably be based on the evidence before Mr Schmidt. Relying on Deane J’s approach, the hearing rule requires that a decision be based upon logically probative evidence: Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666. Arguably, Mr Schmidt’s findings that the injuries sustained by the 12-year-old Ms Sammler were ‘minor’ could not be based on logically probative evidence. However, the better view appears that errors of this nature do not amount to denials of procedural fairness.

Did Mr Schmidt breach the no bias rule? Ms Sammler, who is a lesbian, considers that the question, ‘A re you telling me that the person sitting behind you is the appellant and that she is female?’ gave rise to a reasonable apprehension of bias because the question was a gratuitous insult by drawing attention to what the member considered to be her ‘masculine appearance’. She argues that her name ‘Susie Sammler’ is clearly the name of a woman and that Mr Schmidt had her file before him. Ms Sammler further considers that Mr Schmidt showed a biased attitude to repressed memory syndrome and the psychiatrist who provided the report.

Application of the reasonable apprehension test The question in this case would be whether a fair-minded and objective bystander would entertain a reasonable apprehension that Mr Schmidt would not bring an impartial and unprejudiced mind to the resolution of the applicant’s claim for compensation: Livesey v New South Wales Bar Association (1983) 151 CLR 288. It is not necessary to show actual bias: R v Watson; Ex parte Armstrong (1976) 136 CLR 248. The issue is not whether Ms Sammler was offended by the member’s conduct but whether a fair-minded observer might reasonably suspect prejudice. In this instance, you are not faced with a claim of bias arising from pecuniary or other interests; you need to consider whether there is bias arising from prejudgment.

Has Mr Schmidt prejudged the case because of Ms Sammler’s sexuality? To substantiate an apprehension of bias by attitudinal predisposition, it would be necessary to establish that Mr Schmidt’s mind appeared to be so foreclosed because of Ms Sammler’s sexuality that he would not alter his conclusion irrespective of the evidence or arguments presented to him: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70. Preconceptions do not necessarily mean bias on the part of Mr Schmidt: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546. The issue is whether Ms Sammler will apparently get a proper hearing. Attitudinal bias in a particular case is difficult to prove, as there

[page 247] are rarely objective circumstances to rely on to support these claims. In this situation the only objective evidence we have available is the question. Relying upon R v Rankine River Justices; Ex parte Sydney (1962) 3 FLR 215, we could argue that Mr Schmidt’s question is analogous to the justice of the peace’s remark that ‘natives must be kept under the thumb’. As such the comment had ‘discriminatory leanings’ which displaced judicial impartiality in his mental process. To support this argument, we would have to establish that the question as to Ms Sammler’s sex was insulting and degrading, indicated an awareness of her lesbianism and a consequent bias against her. Ms Sammler would have to argue that despite the nature of the medical evidence, the factual evidence concerning the incidents of assault and the consequences of such assault, Mr Schmidt would apparently not give her a fair hearing. This prejudgment might be indicated by his question. Further, Mr Schmidt’s question as to whether Ms Sammler is female could not be regarded as a legitimate question in the context of the evidence before Mr Schmidt which indicated that when aged 12, the applicant had been sexually assaulted by her stepbrother and such assaults included digital vaginal penetration. Alternatively, it could be argued that the question was innocuous and merely a passing remark. If the comment is directed to the style of Ms Sammler’s dress, it cannot be concluded that it was a lesbophobic comment, as many women dress in trousers and shirts. Mr Schmidt merely sought clarification as to the appellant’s identity, which was appropriate in the context. There is, moreover, some evidence that he was not totally prejudiced against Ms Sammler. His scepticism about ancient memories was reflected not only in his dismissal of the ‘repressed memory’ evidence, but in his disinclination to attach weight to the evidence from the sister in relation to the closeness of the relationship between Ms Sammler and her stepbrother. This would not be relevant to whether the question evidenced apparent bias, when asked. It would, however, bear on whether apparent bias existed later in the proceedings.

Did Mr Schmidt’s preconceived views about the psychiatric witness indicate prejudgment? Mr Schmidt has made disparaging remarks about this particular psychiatrist, who has previously provided reports based on repressed memory syndrome. His comments indicate that he has a preconceived view about the reliability or expertise of the professional opinions of an expert witness. The facts of the case are analogous to Vakauta v Kelly (1989) 167 CLR 568 where the trial judge had made comments critical of the medical witnesses. However, as suggested by Vakauta , a trial judge who regularly sees certain medical witnesses appear for particular parties may form views about the reliability and impartiality of those witnesses. Those views do not necessarily disqualify the judge from hearing the proceedings. The question is whether the expression of preconceived views about the reliability of the witness threatens the appearance of impartial justice. In Vakauta , the trial judge had entered the arena to denigrate the witnesses and vindicate his preconceived views about the witness. Arguably, Mr Schmidt’s reasons indicate that he too has reached his decision adverse to Ms Sammler in order to vindicate his preconceived views about the psychiatric witness. His dismissal of the witness’s evidence is intemperate. However, if the witness did indeed give standard-form testimony, the problem would not be bias, but failure to warn Ms Sammler. [page 248]

Was Mr Schmidt biased because of his attitudes to repressed memory syndrome? If Mr Schmidt does indeed have a predisposition to rejecting reports based on repressed memory syndrome, his approach in this matter is not biased simply because, based on his past decisions, he is likely to decide an issue against a child sexual assault survivor who relies on repressed memory syndrome, in a particular way: Vietnam Veterans’ Association of Australia New South Wales Branch Inc v Gallagher (1994) 52 FCR 34; 34 ALD 205. We would still need to establish bias in this case, namely that Mr Schmidt would not approach the issue of extension of time with an impartial and unprejudiced mind. On one hand, it is clear that he is profoundly sceptical as to the reliability of evidence of repressed memories. On the other hand, his reference to the lack of evidence raises the possibility that, presented with evidence, he might be prepared to change his mind. This might mitigate against a finding of a reasonable apprehension of bias. This is a case where a court might well find that in the circumstances, Mr Schmidt’s behaviour was such as to give rise to a reasonable apprehension of bias. However, it is possible that it might not.

Has there been a denial of procedural fairness? Once you have identified and expounded the relevant legal arguments, you need to discuss the strengths and weaknesses of the arguments and offer a tentative conclusion as to the likely outcome of the dispute. Whatever conclusion you reach, the important issue is whether you have been able to resolve a dispute through a reasoned evaluation of the merits of the various arguments. In this case, on balance, it seems that it would be difficult for Ms Sammler to substantiate a breach of the hearing rule. Mr Schmidt is not required to inform the parties of his evaluation of the facts during the hearing and arguably no unanticipated new issue arose during the proceedings. However, a case may be made out for breach of the hearing rule on the basis that the decision was not made on logically probative evidence, if it could be established that Mr Schmidt’s conclusion as to the minor nature of the assaults was inconsistent with all the evidence. Ms Sammler’s capacity to establish these matters is dependent upon the nature of the evidence before the tribunal and the limited oral statements made during the course of the hearing. Despite the nature of Mr Schmidt’s question, it appears difficult to establish that there has been a breach of the no bias rule on the ground of lesbophobia. We may be able to argue that the question was not a legitimate question on the evidence before Mr Schmidt and gave rise to a reasonable apprehension of bias. However, this example highlights the difficulties associated with the rule against bias: the inherent difficulties in the concept of neutrality and the difficulty in producing objective and admissible evidence to substantiate gender or sexuality bias. What is neutral for Ms Sammler may not be what is neutral for Mr Schmidt. The law, however, has generally adopted Mr Schmidt’s version of ‘neutral’. However, Mr Schmidt’s comments about the psychiatrist may indicate that there has been a breach of the no bias rule. It may be argued that he has a particular attitude to repressed memory syndrome and to the psychiatrist who provided the report and that he was determined to vindicate his own views about the syndrome and his strong adverse views about the

reliability of the psychiatric evidence. It would have [page 249] to be shown that a reasonable observer would suspect that he had allowed these views to prejudice his whole approach to the case to the detriment of Ms Sammler.

Consequence of breach of procedural fairness As part of your advice to Ms Sammler, you would need to establish that there is some benefit to be gained from challenging the decision, that is, that if successful Ms Sammler might eventually achieve an extension of time. In this case, even if a breach of procedural fairness were to be established, this would not necessarily ensure a favourable outcome for Ms Sammler, unless the denial of procedural fairness might have resulted in an erroneous finding of fact: Stead v State Government Insurance Commission (1986) 161 CLR 141; 67 ALR 21. It seems here that if there was denial of procedural fairness, it may have resulted in factual error. If so, the AAT would be ordered to reconsider the matter. Insofar as Ms Sammler’s case was based solely on apprehended bias, she might have problems. Her representative did not object or complain or ask Mr Schmidt to disqualify himself. The representative’s silence could suggest that the challenge on the basis of bias is an after thought and that she has waived any right to object: Vakauta v Kelly (1989) 167 CLR 568. However, her representative was not legally qualified, and for this reason may have lacked sufficient awareness of the existence of bias for her to be said to have waived that objection: see R v Magistrate’s Court at Lilydale; Ex parte Ciccone [1973] VR 122. Insofar as bias against the witness was evidenced by the reasons for decision, as distinct from the gratuitous questioning, it is arguable that as in Vakauta , Ms Sammler never had the opportunity to object. One distinction is that the decision in Vakauta was a reserved judgment. Here, Ms Sammler could theoretically have raised the bias issue before a final order was made. It would not, however, have been reasonable to expect her to do so. It is unlikely that she can be taken to have waived her right to an unbiased decision maker. Since Ms Sammler could probably show that she had not been afforded an adequate hearing, the bias question might not appear to be particularly important. However, if Ms Sammler were to succeed only on the ‘hearing’ issue, the matter might be reheard by Mr Schmidt. If she were to succeed on the bias issue, the court would order that her matter be considered by a tribunal constituted by someone other than Mr Schmidt. Such an outcome would almost certainly increase the likelihood that the rehearing would yield a favourable result.

Further tutorial discussion 1. In the Commonwealth Hindmarsh Island Report, Adelaide, 1996, Justice Mathews wrote at p 205: In light of all this one might well ask why should Aboriginal applicants be required to disclose the details of their traditions — particularly confidential traditions — in order to establish their entitlement to a declaration. The answer is that the law [page 250] requires that those who oppose a declaration must be given an opportunity to respond to the ‘case’ against them. And if the case depends on ‘embargoes’ or ‘rules’ which are associated with a particular tradition, then the law says that the opponents of a declaration must be told of the details of that tradition. Consider whether there is any way that the flexible rules of procedural fairness can accommodate and respect this indigenous law.

Further reading Allars, M, Administrative Law: Cases and Commentary , Butterworths, Sydney, 1997, ch 12. Aronson, M and Dyer, B, Judicial Review of Administrative Action , 5th ed, Thomson Reuters, Sydney, 2013. Australian Law Reform Commission, Equality Before the Law: Women’s Equality Report No 69, Pt II, AGPS, Canberra, 1994. Charlesworth, H, ‘“Little Boxes”: A Review of the Commonwealth Hindmarsh Island Report’ (1997) 3(90) Aboriginal Law Bulletin 19. Douglas, R, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014, chs 15, 16. Naylor, B, ‘Pregnant Tribunals’ (1989) 14 Legal Services Bulletin 41. Sykes, E I, Lanham, D J, Tracey, R R S and Esser, K W, General Principles of Administrative Law , 4th ed, Butterworths, Sydney, 1997, chs 16, 17.

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12 Relief for Unlawful Action General A finding that an administrator has behaved unlawfully normally means that the court will make an order in favour of the applicant or plaintiff in the matter. Orders may take various forms. In situations where the objection is to an administrative decision, the order will typically involve a declaration to the effect that the decision lacked legal validity. If the objection is to the conduct of the administrator, the order will relate to that conduct. If the complaint relates to an administrator’s failure to perform a duty, the order will require the performance of the duty. Administrative law litigation almost never results in awards of damages. There are, however, certain circumstances in which unlawful behaviour by administrators can give rise to entitlements to damages and it may be possible to join these with applications for judicial review. Alternatively, administrative law issues can sometimes be canvassed in what is essentially private law litigation. In exceptional circumstances, the validity of administrative decisions may be raised in criminal cases, where it has bearing on the admissibility of evidence, the propriety of a step of an administrative nature taken in the course of a criminal prosecution, or where the validity of an administrative act is an ingredient of an alleged offence. Orders will not necessarily give successful applicants everything that they want, especially where a party’s complaint has been that a discretion has not been exercised in its favour. While courts can set aside unlawful decisions, and thereby satisfy those who merely want decisions set aside, they can normally do no more than require that a discretion be exercised. They cannot normally require that discretions be exercised in a particular way.

Objectives After studying this chapter, you will understand: 1. the types of orders that can be made in relation to administrative unlawfulness; and 2. the discretionary nature of administrative law remedies.

[page 252]

1 Types of orders 12.1.1 Introduction Administrative law remedies can be classified in two ways. First, they can be divided according to the procedures whereby they are sought. Second, they can be divided according to the results they produce. Each classification is important. The procedural classification is vital for those embarking on administrative law litigation, and understanding it is vital to being able to understand the development — and lack of development — of administrative law. The substantive classification is what interests the users of administrative law, who naturally want to know what kind of orders they can expect if they win their case.

12.1.2 Four kinds of procedure The oldest of the administrative law remedies are the ‘prerogative writs’, the most important of which are the writs of prohibition, certiorari, and mandamus. The High Court prefers to use the term ‘constitutional writs’ to describe the relevant orders, thereby highlighting the fact that the power to issue them derives from the Constitution, rather than from executive bounty: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. In some jurisdictions, applicants must specify the writ they are seeking: see, for example, the High Court Rules r 25.3. The Rules of the Supreme Court of Western Australia O 56 r 2 allows the applicant to specify one or more writs, injunctive and/or declaratory relief and/or a remedy that has the same effect as one of the writs. In New South Wales under the Uniform Civil Procedure Rules 2005 r 59.4, the applicant must state the relief sought and the grounds on which relief is sought. Elsewhere, parties do not apply for a writ, but an order in the nature of one of the writs: see, for example, Supreme Court Rules (Tas) r 623. These applications are attended by slightly fewer technicalities. A second set of remedies consists of the injunction and the declaration. These remedies are available in both public law and private law litigation. The use of the declaration in administrative law proceedings is a relatively recent development. Its use dates only from 1911: Dyson v Attorney-General [1911] 1 KB 411. It rapidly became the most widely sought and flexible of all the administrative law orders. A person may apply for an injunction or a declaration in relation to a public law matter, using the same procedure that would be used to initiate proceedings in a ‘private law’ matter: Corporation of City of Enfield v Development Assessment Commission (2000) 199 CLR 135. A third category consists of the statutory orders,

which are those made under the Judicial Review Statutes . In addition, in exceptional circumstances, the validity of administrative behaviour may be attacked collaterally. Collateral attack involves raising the alleged invalidity of an administrative act as the basis for, or as an element in a defence to a civil or criminal case. The most famous example of such a case is probably Cooper v Wandsworth Board of Works (1863) 14 CBNS 180. There is some Australian authority suggesting that collateral attack may not be open when a person asserts a latent defect in a decision or that the decision is at worst flawed by a procedural, as opposed to a substantive, defect: Flynn v Director of Public Prosecutions [1998] 1 VR 322. However, this view is inconsistent with other authority, and has been rejected in the Federal Court: Elliott v Knott [2002] FCA 1030 at [11]. [page 253] One might wonder why four different administrative review procedures should sometimes coexist in the one jurisdiction. The answer may lie partly in the fact that the Commonwealth Constitution entrenches the jurisdiction to apply for prohibition, mandamus and injunctions. It may lie partly in lawyers’ recognition of the fact that the development of Commonwealth administrative law has been facilitated by the coexistence of the traditional and statutory schemes, each of which can sometimes be drawn on when the other scheme fails to yield a desired outcome. It is partly explicable in terms of the fact that, for all its messiness, it rarely gives rise to problems. W hatever the reasons, it is a fact of life for administrative law.

12.1.3 Four kinds of orders An order may quash a decision, declare legal rights, restrain an administrator, or require the administrator to perform a duty.

12.1.4 Orders ‘quashing’ decisions Most administrative law litigation involves challenges to the validity of administrative decisions. Traditionally, a challenge to a decision involved an application for a writ of certiorari. If the application was successful, the decision was quashed. Certiorari is available only in limited circumstances. In particular, it is limited to decisions which, if valid, would operate in law to affect a party’s legal rights, interests, powers or privileges. Therefore, a report which recommends that action be taken against a person cannot be quashed, unless the making of the report is a necessary legal prerequisite to the taking of the action in question: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. In relation to intra-jurisdictional errors of law by inferior courts, certiorari requires that the error be an error of law on the face of the record. The meaning of this requirement was discussed in Craig v South Australia (1995) 184 CLR 163. Since errors of law by tribunals and administrators will almost invariably be jurisdictional, certiorari is available to quash administrative decisions flawed by error of law regardless of whether the error appears on the face of any record: see 8.1.3 . Under the Judicial Review Statutes, there is also a power to set decisions aside: for example, Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) s 16(1)(a); Judicial Review Act 1991 (Qld) (JRA (Qld)) s 30(1) (a); Judicial Review Act 2000 (Tas) (JRA (Tas)) s 27(1)(a). As with certiorari, this power is available only when there has been an application to review a decision. The reason for this is that if there is no decision, there is nothing to set aside. The Victorian Administrative Law Act 1978 (Vic) achieves a similar result: s 5. As administrative law now classes virtually all decisions as either valid or void, there is rarely any need for orders quashing flawed decisions. It is enough that the decision be declared void. However, courts continue to supplement declarations with orders quashing or setting aside decisions. Quashing and setting aside will normally be retrospective to the date of the making of the decision, but courts possess a discretion, both at common law and under the Judicial Review Acts, to make the setting aside operate only from a particular date. ‘Void’ decisions may thus be allowed limited operation.

12.1.5 Declaratory orders Declaratory ‘orders’ resemble a form of order made by courts in their equitable jurisdiction. However, the power to make a declaration [page 254] without granting other forms of relief may be based in statute: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 but cf Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581 per Mason CJ, Dawson, Toohey and Gaudron JJ. The statutory schemes create a similar power to make declaratory orders. These are available in relation both to decisions and conduct: for example, ADJR (Cth) s 16(1)(c), 16(2)(a), 16(3)(b); JRA (Qld) s 30(1)(c), 30(2)(a), 30(3)(b); JRA (Tas) s 27(1)(c), 27(2)(a), 27(3)(b). The declaration has proved to be an extraordinarily flexible form of order. Formally, a declaration does not require that anyone do anything. In practice, a declaration will normally prove effective. First, administrators take laws seriously. A declaration will be complied with simply because it represents an authoritative statement of the law. Second, in the event of noncompliance, an administrator would face the prospect of further enforcement procedures. As declarations constitute a statement of the legal implications of the administrator’s behaviour, they constitute an extremely flexible order. They can, for instance, be used where a person believes a decision is invalid, but does not want to run the risk of being prosecuted and convicted if their belief is unfounded. They can be used where a party considers that there has been an administrative irregularity, but where this has not yet resulted in a decision. They can be used, as they were in Ainsworth , where a report cannot be set aside, as it does not affect legal rights or interests, but where it may nonetheless be important that the flawed nature of the report be the subject of an authoritative order. They are not subject to the kinds of technicalities which can occasionally bedevil applications for the prerogative writs. Courts are, however, reluctant to grant declarations in circumstances where the issue is a largely hypothetical issue and where there is not a ‘proper contradictor’: see Jododex . Even when these issues arise, however, they are treated as bearing on whether the court should

exercise its discretion to grant a declaration, and not on whether the court has the power to do so. For examples of cases where declaratory relief was granted see Green v Daniels (1977) 13 ALR 1; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Other examples of where the relief was sought include: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; Watson v Lee (1979) 144 CLR 374; Calvin v Carr [1980] AC 574; Attorney-General (NSW) v Quin (1990) 170 CLR 1.

12.1.6 ‘Merits’ declarations The power to make a declaration is limited to the power to make declarations about a person’s legal position. Thus, when a report is flawed because there has been denial of procedural fairness to a person named in the report, a court may make a declaration to the effect that there has been a denial of procedural fairness, but not that the report is wrong: Ainsworth at 598 per Brennan J. Thus, the Federal Court erred when it made a declaration that a person was a refugee, this being a matter which ultimately turns on the minister’s beliefs: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 578–9 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; at 598–600 per Kirby J.

12.1.7 Orders restraining administrators The writ of prohibition is available to restrain bodies which exercise statutory powers or perform statutory functions [page 255] in excess of their jurisdiction. There are corresponding orders under the Judicial Review Acts: for example, ADJR (Cth) s 16(1)(d), 16(2)(b), 16(3)(c); JRA (Qld) s 30(1)(d), 30(2)(b), 30(3)(c). Since denial of procedural fairness is a ‘jurisdictional’ error, it is available when a body is not affording procedural fairness. This is the case even when the result of the body’s deliberations is a non-binding report, which, if made, cannot be quashed: Ainsworth at 581 per Mason CJ, Dawson, Toohey and Gaudron JJ; 595 per Brennan J. It lies as long as the body has not finally disposed of the matter. However, if a body is not under a duty to afford procedural fairness then prohibition does not apply. Prohibition may lie against an inferior court which has delivered judgment but where the judgment has not been executed. In such cases, a person may seek both certiorari and prohibition. Prohibition is a negative order, in that it requires the administrator to stop acting. However, a prohibitory order may be framed so that prohibition operates until the administrator fulfils certain conditions, such as the affording of procedural fairness: Ainsworth at 581, 594–5. In such cases, if administrators want to proceed they will have to take what steps they can to regularise their conduct. If, however, the aggrieved party wants the administrator to proceed, but properly, prohibition will not necessarily suffice.

12.1.8 Injunctive relief A similar result could be achieved by injunctive relief. Under the Judicial Review Acts, the one order covers both situations in which prohibition would lie and situations in which injunctions would be issued. Moreover, there are situations where injunctive relief may be available, even though prohibition is not. Interlocutory injunctive relief may be available to restrain respondents, pending a final decision. Prohibition is available only when the court has decided that applicants have made out their case. The need for interlocutory relief is probably less acute in public law than in private law cases, but there may nonetheless be cases where applicants will be reassured by the existence of an injunction restraining an administrator from taking action which might imperil the applicant’s position. Injunctive relief is also available in both private law and public law matters. This means that in a case with public and private law elements, an applicant for an injunction will not lose simply through having sought the wrong remedy. Injunctive relief is available against repositories of power, even though they are not under any duty to afford procedural fairness in relation to the making of the decision: see Bateman’s Bay Local Aboriginal Land Council v Aboriginal Benefit Fund Pty Ltd (1998) 194 CLR 247. The ADJR Act (Cth) and other Judicial Review Acts permit injunctive relief for reviewable administrative decisions, conduct and failure to act. Under this legislation, injunctive relief may be granted, even though the decision was not one which attracted procedural fairness, or that a ‘decision’ was in fact made. Further, there is no requirement that there was a jurisdictional error, for a statutory injunction to be granted.

12.1.9 Mandatory orders The writ of mandamus and its equivalents are available to compel the performance of a public duty. Doubts have been expressed as to whether mandamus lies against the Crown, but High Court dicta suggest that even [page 256] if this was once the case, it is no longer so: see, for example, Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 81 per Mason CJ. Before a court makes a mandatory order, it must be satisfied of two things: that the administrator was under a duty to perform a particular act, and that, despite a demand, the administrator failed to perform that duty.

12.1.10 Does a duty exist? Even where there appears to be a duty, difficulties can arise. If the duty is cast in very broad terms, and requires compliance with vague standards such as reasonableness or efficiency, the duty may not be treated as a legally enforceable duty, although it may be treated as giving rise to a duty to comply with minimal standards of performance: Yarmirr v Australian Telecommunications Corporation (1990) 20 ALD 562. Difficulties also arise where administrators possess powers which are not coupled with express duties. In such cases, the duty is at most a duty to exercise the discretion. It amounts to a duty to exercise the power in a particular way only if there is only one way in which that discretion could be exercised. Moreover, the existence of a power does not necessarily imply a duty to exercise that power or to consider

exercising that power. This is illustrated by Western Australian Field and Game Association Inc v Pearce (1992) 8 WAR 64. A minister had the power to declare open seasons in respect of any fauna. There had been a tradition of declaring such seasons in relation to certain game, and after consultations with the plaintiff (inter alia). In 1992, the minister made no decision. The plaintiff sought an order requiring him to consider whether to declare an open season. By majority the court held that the Act created a power but not a duty. Mandamus did not lie. Cases where an order for mandamus has been granted are quite rare. However, R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 is an example of a case where mandamus was granted. Here, the Director-General was ordered to issue a charter licence to the applicants. Often mandamus is sought in conjunction with one of the other writs: R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981) 151 CLR 170. Mandamus does not apply where the person only has a ‘private’ duty, rather than a public duty to act. Therefore, where a person is seeking relief against the behaviour of bodies, such as trade unions, the appropriate relief is either an injunction or a declaration, not mandamus.

12.1.11 Failure to perform a duty It may also be unclear whether there has been a failure to perform a duty — especially where there has not been an explicit refusal to perform the duty, and where there are no express requirements that the discretion be exercised within a specified period. In such cases, the best that courts can do is decide whether the delay in acting is so unreasonable as to amount to a constructive refusal: Re O’Reilly; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577. In practice, the problem rarely arises: refusal to act cases will usually turn on the question of whether there was an obligation to act, rather than on whether there has been a failure to act. If administrators acknowledge their obligation to act, they will normally act, rather than risk judicial admonitions. [page 257] As a matter of courtesy, mandamus may be refused where the administrator has indicated their willingness to act as required. It would be a rash administrator who reneged on such an undertaking. W here there is a duty to act within a prescribed time and where this time has elapsed, mandamus will lie, even in the absence of a demand: R v Revising Barrister for Borough of Henley [1912] 3 KB 518. In the absence of a court order, there might be no authority for performing the prescribed act outside the time prescribed.

12.1.12 Mandatory injunctions An alternative to mandamus is the mandatory injunction. These are rarely issued when mandamus is available. Interlocutory mandatory injunctions may be issued when this is necessary to protect a party’s interests, pending a final decision. As an injunction is both a public law and a private law remedy, it will lie against bodies which turn out not to be public bodies: see generally John Fairfax and Sons Ltd v Australian Telecommunications Commission [1977] 2 NSW LR 400.

12.1.13 Judicial Review Act orders Equivalent orders to mandamus may be made under the Judicial Review Acts. W hen decisions are quashed and set aside, the court may order that the matter be reconsidered, subject to such directions as it may give: for example, ADJR Act (Cth) s 16(1)(b); JRA (Qld) s 30(1)(b). In addition, mandatory orders may be given under the ADJR Act (Cth) s 16(1)(d), 16(2)(b), 16(3)(a)–(c); JRA (Qld) s 30(1)(d), 30(2) (b), 30(3)(a)–(c). In situations where review has been sought on the grounds of the decision maker’s failure to perform a duty, the court may order the making of a decision, make a declaration of rights, or grant injunctive relief: ADJR Act (Cth) s 16(3); JRA (Qld) s 30(3).

12.1.14 What may be mandated? Just as declarations may not involve trespassing into merits territory, so mandatory orders may require only that administrators perform their duties. This normally requires that they exercise a discretion, not that they exercise it in a particular way. Only if the administrator has no discretion, can a mandatory order require that an administrator make a particular decision. Similar restrictions apply to the relevant Judicial Review Act provisions: Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528.

12.1.15 Damages Unlawful administrative behaviour does not, of itself, constitute grounds for the award of damages, even in cases where people have been disadvantaged by the unlawfulness. Unlawful behaviour may, however, give rise to civil liability. The classic natural justice case, Cooper v Wandsworth Board of Works (1863) 14 CBNS 180, was a trespass action, based on the defendant’s having demolished a house belonging to the plaintiff. The case turned on the question of whether, prior to demolishing the house, the defendant was obliged to give the plaintiff a chance to show cause why the house should not be demolished. If the unlawfulness also constitutes negligence, damages may be sought, just as they can in any other case of negligence. However, cases involving public law and tort issues can give rise to relatively complex procedural and jurisdictional issues, given the different originating processes which characterise the different proceedings, and the differing jurisdictions of courts in relation to public law [page 258] and private law matters: see, for example Chan v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 29. Administrative remedies are discretionary; damages awards are not. Public law remedies must normally be sought shortly after the date of the behaviour complained of. Private law remedies are subject to long and generous limitation periods. Does this mean that private law remedies are conditional on relevant administrative law remedies being available, or can people bypass administrative law procedures by suing in tort

and asserting the unlawfulness of an administrative act as an ingredient of their claim? In Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582 the Full Federal Court handled a case where airline companies sought to recover money paid pursuant to an allegedly invalid regulation. Issues included whether the validity question had to be resolved before the right to recover question, and, if not, whether the right to recover could be relied on if, on discretionary grounds, declaratory relief would have been refused. Lehane J (with whom Beaumont and W hitlam JJ agreed) held that there was no reason to assume that the validity question had to be resolved as a prior issue, there being no requirement to this effect in the ADJR Act, and given that the Act was expressed not to be in derogation of other rights. He held further that there were no discretionary matters, such as undue delay, to bar the action, noting that to hold otherwise would mean that an airline seeking for the first time to fly into Australia could seek a declaration, whereas an established airline could not. The decision appears to contemplate the possibility that the position might be different if the case was one where in the exercise of its discretion, the court might refuse administrative relief. W hile this may be so, in considering whether the discretion should be exercised, the court would be obliged to attach considerable weight to the importance of the common law rights at stake.

2 Orders are discretionary 12.2.1 Introduction Parties who establish that administrators have behaved unlawfully are not entitled as of right to orders in their favour. This is the case for equitable orders, which are of their nature discretionary: see Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; and (with some minor exceptions) for prerogative or constitutional orders, see Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 in relation to the constitutional writs. The Judicial Review Acts also embody this principle. In practice, orders are made in favour of successful parties almost as a matter of course, but in exceptional circumstances discretions may be exercised against an otherwise successful party. Among the reasons for refusing relief are the ‘successful’ party’s conduct, futility, and the effects of orders on third parties. Courts may also exercise their discretion in the context of the formulation of an order, especially where the order involves declaratory relief. Discretion may also be exercised in relation to the setting of a date from which the order is to operate. Lamb v Moss (1983) 76 FLR 296 at 313 held that the statutory remedies under the ADJR Act (Cth) were also discretionary. [page 259]

12.2.2 Refusal of relief Courts occasionally take account of the way in which the plaintiff handled the litigation. Plaintiffs, who have attempted to deceive the court, may find that relief is refused, even if the plaintiff has made out a prima facie case for relief: R v Galvin; Ex parte Bowditch (1979) 39 FLR 231; 2 NTR 9. Parties who delay proceedings may be refused relief, especially if their delay has occasioned inconvenience to third parties. An illustrative case is Hodgens v Gunn; Ex parte Hodgens [1990] 1 Qd R 1; (1989) 18 ALD 536 where dogs were seized in circumstances where the owner was not given an adequate hearing. The owner did not press his case vigorously and by the time the court had decided the matter, it was of the view that the dogs having long since been dispersed, in circumstances where they and their new owners might well be aggrieved at their return, certiorari would be refused. Futility will rarely be grounds for refusing relief — if only because of the fact that a case is fought to the point of judgment suggests that the plaintiff does not regard victory as futile. Moreover, insofar as futility constitutes a ground for refusing orders, it is not enough that there are good grounds for suspecting that a proposed order will make no difference to the plaintiff’s position. There have, however, been several cases where orders have been refused on the grounds that it would be futile to make them: see, for example, Thomas v Appleton (1994) 35 ALD 481. The interests of innocent third parties carry some weight, especially if there are additional grounds for refusing relief. W here others have acted on the basis of the assumed validity of an administrative decision, courts will take account of their interests, especially if they could not reasonably have been expected to realise that the decision was flawed: R v Liquor Commission of the Northern Territory; Ex parte Pitjantjatjara Council Inc (1984) 73 FLR 193; 31 NTR 13, and Hodgens (above). Also see Ruhani v Director of Police (No 2) (2005) 222 CLR 580, where the majority of the High Court dismissed an appeal against the Supreme Court of Nauru’s decision to reject an application for habeas corpus. The majority dismissed the appeal because they held the detention was lawful but also because if the applicant had succeeded, he could have faced imprisonment and possible deportation. Kirby J (at 602) in dissent, considered the detention ‘unlawful’ and upheld the appeal. His Honour stated that despite the issue being moot, as the applicant had since the appeal been granted an Australian visa, as a test case, it could have implications for other detainees in Nauru.

12.2.3 Tailoring of relief Discretionary tailoring of relief is normally a response to a perceived need to balance conflicting considerations. It may be that on one hand, a plaintiff has established a prima facie claim to some form of relief, while at the same time the granting of the normal relief would cause hardship to innocent third parties who had relied on the validity of the act in question. Form may dictate one type of order, while administrative realities may suggest another: examples include Styles v Secretary, Department of Foreign Affairs and Trade (1988) 84 ALR 408. Here the date of the operation of the order was determined on the basis of allowing time for reconsideration of a flawed employment decision to ensure that if the substantive decision was affirmed, the initially successful applicant would not be inconvenienced. [page 260]

Problem Consider Mr Achilles’ problem ( Chapter 8 above). In his application, Aidan had sought the following orders in both his ADJR Act (Cth) application and in his s 39B application: 1. A declaration that the applicant is entitled to reimbursement for the fees paid to Dr Sigmund Prude, for counselling sessions on 1 April 2014 and 15 April 2014. 2. An order quashing the decision of Henry Galton dated 23 May 2014 to refuse to approve further counselling by Dr Sigmund Prude. 3. A declaration that the applicant is entitled to receive counselling by Dr Sigmund Prude, such counselling to be paid for by the Board. 4. An order that the Board reconsider the applicant’s application, such reconsideration to be conducted by an assessor other than Henry Galton. 5. A declaration that in conditioning approval of any subsequent counselling on the use of a Hitachi counsellor, Henry Galton erred in law, as he based his condition on a fact for which there was and is no evidence. 6. Damages. Would the Federal Court be likely to make some or all of these orders?

Discussion If the matter has reached the stage where the court must consider the relief it should grant, we must assume that it has exercised its discretion to hear the case, rather than decline jurisdiction in favour of some other body. (This issue is discussed in more detail in Chapter 17 .)

Declaration in relation to compensation for counselling The court clearly possesses a power to make declarations, and could make a declaration in relation to this matter under s 16(1)(d) of the ADJR Act. The question is whether it could or would make one in the form sought. This may be one of those rare cases where a declaration may effectively impose a duty on an administrator to act in a particular way. Whether the court could make such a declaration would depend on whether the duty to pay compensation is dependent on any further exercise of discretion on the part of the Director. If, as argued earlier, there is a duty to make full reimbursement, the Director has no alternative but to approve compensation, once persuaded that Mr Achilles is eligible. The Director might argue that Mr Achilles’ eligibility will be a matter to be reconsidered afresh in the light of the court’s decision, and that this reconsideration might involve a reassessment of whether Mr Achilles had really been injured, and whether it was not reasonably practicable for him to obtain approval for payment prior to undertaking the counselling. While this seems unfair, there is High Court authority suggesting that a person who objects to a flawed decision, is not entitled to procedures which preserve those parts of the flawed decision, which were favourable to the applicant: Minister for Immigration and Multicultural Affairs v Wang (2003) 77 ALJR 786; [2003] HCA 11. That case is distinguishable. It related to an application for a protection visa, and eligibility for a protection visa can vary over time, whereas Aidan’s having been injured was a fact [page 261] which, if it existed at all, was one which would continue to exist. Moreover, it was one where the relevant findings of fact were made in the context of the consideration of an erroneous definition of the legal issues. Here, there is no such entanglement. Moreover, the legislation seems to envisage that the right to reimbursement is ‘objective’ in the sense that it depends on the existence of the conditions precedent and not on the assessor’s reasonable belief in the existence of those conditions. Consistent with this is the contrast between the language of s 21(2) and 21(7), which make no reference to the assessor’s opinion, and s 21(3), which refers to what the assessor ‘considers appropriate’. If the court concluded that the test for entitlement was objective, and if, on the evidence, it concluded that Aidan satisfied the relevant conditions, it would be appropriate to make a declaration accordingly. If, however, the court concluded that entitlement was dependent on the assessor’s conclusions, the question of entitlement would be one for the assessor, and any declaration it made would have to be correspondingly limited.

Order quashing the further counselling decision Given the errors associated with the making of this decision, it would almost certainly be set aside pursuant to s 16(1)(a) of the ADJR Act. It would not be necessary for the court to make an order in the exercise of its s 39B jurisdiction. It would be irrelevant that on reconsideration, a further decision might well be made not to approve counselling by Dr Prude. First, the setting aside might enable Mr Achilles to seek counselling by someone other than Dr Prude. It is not clear from the legislation whether a decision by a counsellor to refuse counselling by one counsellor means that a victim is thereby deprived of the right to make a subsequent application for funding for treatment by some other counsellor. If, however, this were the case, the setting aside of the assessor’s opinion would mean that Mr Achilles could reapply for counselling. Even if counselling by Dr Prude would not be approved, counselling by someone else acceptable to Aidan might be. If refusal in relation to one counsellor did not preclude a second application in relation to another counsellor, the setting aside of the assessor’s decision would not be necessary to enable the second application. Even then, however, setting aside would not necessarily be futile. While the court might suspect that Dr Prude was incompetent, it would not follow that it would take the view that no reasonable assessor could take any other view. Given that it would have decided that Dr Prude’s actual competence was not relevant to the validity of the decision, it would not have heard much, if any, evidence on this subject. It would take the view that this was a matter for the person assessing the reapplication.

Order to decide the further counselling matter in a particular way

The court would refuse to make the requested declaration in relation to Mr Achilles’ rights. This would remain a matter for the assessor. If, in view of the court’s findings, the assessor would have no choice but to make a decision that Aidan receive counselling from Dr Prude, it might be appropriate for the court to declare accordingly. Here there is no basis for this conclusion. The assessor’s decision is one which must be made on the basis of an assessment of whatever evidence is available at the relevant time. There would have been nothing before the court to sustain the conclusion that that evidence would be such that the assessor could not reach any other conclusion than [page 262] to approve counselling by Dr Prude. There is another reason the court would not make the declaration sought. It is open ended. There are no limits placed on the intensity or duration of the counselling. Declarations, like injunctions, must be clear. Otherwise they cannot guide those whom they are intended to guide. It is even more flawed than the Federal Court’s declaration in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and that declaration was criticised for its imprecision.

Order for reconsideration The court would make an order that the matter be reconsidered and in the circumstances would also order that it be reconsidered by an assessor other than Mr Galton. It possesses the power to do so: ADJR Act (Cth) s 16(1)(b). One reason for this order would be that Aidan might reasonably doubt whether he could expect a fair hearing if the matter was reconsidered by Mr Galton. Reasons why he might reasonably doubt this include Mr Galton’s prior assessment, along with his wife’s status as a Hitachi counsellor. The only circumstance in which such an order might not be made would be a situation in which Mr Galton was the only assessor. If that were so, the order would mean that there was no-one who could order that Aidan’s counselling be funded. This circumstance would not apply here. In some cases, orders for reconsideration are accompanied by orders that the matter be reconsidered according to law or according to the reasons set out in the judgment or by a particular date. While it would be open for the court to so order in this case, the court might take the view that it was unnecessary to so order, there being no reason to believe that the matter would not be reconsidered according to law or that it would not be reconsidered within a reasonable time.

Declaration in relation to Hitachi method The effect of this order would be that there would be no need for any order in relation to the Hitachi decision. There would be no power to make such an order under the ADJR Act, it not being a decision. Nor would the court exercise its s 39B jurisdiction to make the order requested. The issue of whether there is any evidence for the unique superiority of the Hitachi method would not have been canvassed before the court. The court would therefore err if it made a declaration in relation to this matter. As to whether it might make an order in relation to the insufficiency of the evidence, the position is less clear. It almost certainly enjoys the jurisdiction to make such an order, but it would almost probably decline to exercise that jurisdiction. The making of the order would achieve nothing. An order that the reconsideration of the ‘further counselling decision’ take account of the matters set out in the judgment could achieve the same result.

Damages Damages are not available under s 16 of the ADJR Act. Damages could be awarded only if the court’s jurisdiction had been invoked in such a way as to enable it to consider both the private law issues, on which the claim for damages was based, and the public law issues discussed above. In any case it is not apparent that Aidan actually has suffered damages as a result of any behaviour which might give rise to a cause of action. Even if he has been tortiously deprived of counselling by Sigmund Prude, which seems unlikely, he may actually be better off in consequence!

[page 263]

Further tutorial discussion 1. Ought governments be liable for negligently acting in excess of their powers or after having denied people procedural fairness?

Further reading Allars, M, Administrative Law: Cases and Commentary , Butterworths, Sydney, 1997, 13.6–13.8. Allars, M, ‘Tort and Equity Claims Against the Government’ in P D Finn (ed), Essays on Law and Government: Vol 2 The Citizen and the State in the Courts , LBC Information Services, Sydney, 1996, ch 3. Aronson, M and Groves, M, Judicial Review of Administrative Action , 5th ed, Thomson Reuters, Sydney, 2013. Douglas, R and Head, M, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014, chs 20, 21. McCarthy, G, ‘Mengel: A Limited Remedy in Damages for Wrongful Administrative Action’ (1996) 4 Australian Journal of Administrative Law 5. Sykes, E I, Lanham, D I, Tracey, R R S and Esser, K W, General Principles of Administrative Law , 4th ed,

Butterworths, Sydney, 1997, Pt V.

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PART 4 Access to Information

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13 Understanding Decisions: The Right to Reasons General Without knowledge of the reasons for the decision, it is difficult to determine whether the decision was fair and lawful, whether it was based on an accurate interpretation of the facts or whether a fair policy was applied appropriately.

Objectives After studying this chapter, you will understand: 1. the duty to give reasons: at common law; under statute; 2. the extent of the duty to give reasons; and 3. other ways of understanding decisions: evidence: public interest immunity; interrogatories/discovery.

1 The value of reasons 13.1.1 The value of reasons The provision of reasons benefits the parties concerned, the judiciary or appeal body considering the decision, the administration and the wider community. Purposes served by the provision of reasons include: A safeguard of sound administration Provision of reasons ensures a high standard of decision making and helps to promote internal consistency of decisions. The statement of reasons disciplines decision makers, as they are obliged to provide the [page 268] real reasons for their decisions: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 242; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465. It ensures that administrators discharge the statutory function and that the decision is justifiable. A statement of bare conclusions, without reasons, exposes the decision maker to the suggestion that it ‘has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration’: Commonwealth v Pharmacy Guild of Australia (1989) 19 ALD 510; 91 ALR 65 at 88 per Sheppard J. The provision of reasons also has a normative effect as ‘they provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made’: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme at 242. Benefit to the parties The parties are given an explanation of why a decision has been made, which helps them to understand the basis for the decision. The provision of a statement of reasons enables the parties to assess whether the decision was made in accordance with the law and then make an informed decision as to whether to apply for review and what further evidence they should provide: Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 49 ALR 500. The parties can see the extent to which their arguments have been understood and accepted: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW LR 247 at 279. W here a decision was not in the party’s favour, the reasons should satisfy the party as to why the claim was unsuccessful, thereby assuaging the party’s sense of justice. By giving reasons, the repository of public power increases ‘public confidence in, and the legitimacy of, the administrative process’: Re Minister for Immigration and Multicultural and Indigenous

Affairs; Ex parte Palme (2003) 216 CLR 212 at 242. Facilitates review court’s function W here the reasons for the decision are provided, this allows the tribunal or court on review to know the matters which the decision maker took into account: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 242. This enables the court to determine whether the decision maker erred in law; whether it discharged its functions; whether the decision is based on findings of material fact and not on mere suspicion or speculation; and whether the parties were accorded procedural fairness. This ‘error-correction’ role benefits the administration, the parties and the public. Benefits wider community In addition to ensuring the lawfulness of administrators’ actions, the availability of reasons provides the wider community with examples of how the law is applied to factual situations and provides guidance for future cases. This, however, is the case only insofar as the reasons are made publicly available, as may be the case where the decision is made by a tribunal rather than by an administrator.

13.1.2 Arguments against provision of reasons Criticism has also been levelled at the requirement to provide reasons: Over-formalism: The requirement may appear over-formalistic and ‘unnecessarily intrusive into the proper functions of primary administrators’: The Hon Justice Michael Kirby, ‘Reasons for Judgment: Always Permissible, Usually Desirable and Often Obligatory’ (1994) 12(2) Australian Bar Review 121 at 133. [page 269] Cost and time: There is an expectation from the public and government that administrators should make decisions quickly and in a cost-effective manner. The additional burden of providing reasons may increase cost and delay: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 668 per Gibbs CJ; and see S Tongue, ‘The Immigration Review Tribunal’ in J McMillan (ed), The AAT — Twenty Years Forward , Australian Institute of Administrative Law, Canberra, 1998, pp 258–9 (who notes, however, that 73% of respondents to a survey of Immigration Review Tribunal (IRT) applicants said they fully understood the IRT’s decision, which suggests that the expense is not wasted). Such constraints inevitably lead to some selectivity as to what inquiries will be undertaken to meet those demands: Kees de Hoog, ‘A View from the Administration’ in S Argument (ed), Administrative Law and Public Administration: Happily Married or Living Apart Under the Same Roof , 1993 Administrative Law Forum, Australian Institute of Administrative Law, Canberra, 1994, p 75. Candour: Clients rarely complain about favourable decisions. Consequently, in preference to giving lengthy and complex reasons for an administrative decision and possibly to avoid the interference of administrative law processes, administrators may make difficult decisions in favour of clients: Kees de Hoog, ‘A View from the Administration’ in S Argument (ed), p 77. The provision of reasons may induce a ‘lack of candour on the part of the administrative officers concerned’: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 668 per Gibbs CJ. Reasons may also require administrators to articulate ‘inexpressible value judgments’: R v Higher Education Funding Council; Ex parte Institute of Dental Surgery [1994] 1 W LR 242 at 256–7; [1994] 1 All ER 651. Form reasons: The obligation may lead to the development of institutionalised processes for producing reasons. The production and use of institutionalised precedents may encourage reliance on formulaic justifications and detract from the administrator’s consideration of the merits: Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 122 per W ilcox J. However, a statement of reasons is not invalid merely because it employs a routinely used verbal formula. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 266, Brennan CJ, Toohey, McHugh and Gummow JJ noted that: … if a decision-maker uses the formula to cloak the decision with the appearance of conformity with the law when the decision is infected by one of the grounds of invalidity prescribed by the Act, the incantation of the formula will not save the decision from invalidity. In such a case, the use of the formula may even be evidence of an actionable abuse of power by the decision-maker.

For a discussion on the arguments both ‘for’ and ‘against’ the provision of reasons, see Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act 1977 (Cth): Statements of Reasons for Decisions , Report No 33, AGPS, Canberra, 1991. [page 270]

2 Common law 13.2.1 No general duty At common law, courts and administrators have no general duty to give reasons for their decisions. In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 662 Gibbs CJ stated: There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of statutory discretion and which may adversely affect the interest, or defeat the legitimate or reasonable expectations, of other persons.

Although there is no general obligation to give reasons, courts have often encouraged decision makers to give reasons. Indeed, where an administrator gives no reasons, the court may infer that there is ‘no good reason’ for the decision: Public Service Board of New South Wales v Osmond at 663–4 per Gibbs CJ. Even if the provision of

reasons might be beneficial, Gibbs CJ suggested in Osmond that such amendment to the common law should be decided by the legislature and not by the courts, as it involves a departure from the settled rules on grounds of policy: at 669.

13.2.2 Basis of obligation: appeals It has been held that inferior courts must give reasons where a right of appeal exists: Pettitt v Dunkley [1971] 1 NSW LR 376 at 388 per Cussen ACJ; Fleming v R (1998) 197 CLR 250. However, this is not an invariable rule: the obligation arises only to the extent necessary to enable the appellate court to determine whether an error of law has been made: Pettitt v Dunkley at 387–8 per Cussen ACJ. In Osmond v Public Service Board of New South Wales [1984] 3 NSW LR 447 at 467, Kirby P, in the interests of fairness, sought to impose a similar obligation on administrators: … where the absence of stated reasons would diminish a facility to have the decision otherwise tested by judicial review to ensure that it complies with the law and to ensure that matters have been taken into account which should have been taken into account or that matters have not been taken into account which ought not to have been taken into account.

However, the High Court overturned this decision: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666 where Gibbs CJ commented that there is ‘no justification for regarding rules which govern the exercise of judicial functions as necessarily applicable to administrative functions, which are different in kind’. In Hancock v Executive Director of Public Health [2008] WASC 224, it was stated that the right of an appeal may be sufficient to infer a right to reasons to ensure the appeal process is not ‘illusory’.

13.2.3 Basis of obligation: procedural fairness English courts have required reasons as an aspect of procedural fairness in certain cases. For instance, something peculiar to the particular decision may trigger the obligation: R v Civil Service Appeal Boards; Ex parte Cunningham [1991] 4 All ER 310 (excessively low compensation award). In Osmond v Public Service Board of New South Wales [1984] 3 NSW LR [page 271] 447 Priestley JA in the New South Wales Court of Appeal held that in the particular circumstances of the case, procedural fairness required that the Board give its reasons for the decision. On appeal, Deane J suggested (at (1986) 159 CLR 656 at 676) that consistent with contemporary standards of procedural fairness, there may be exceptional circumstances where: … statutory provisions conferring the relevant decision-making power should, in the absence of a clear intention to the contrary, be construed so as to impose upon the decision-maker an implied statutory duty to provide reasons.

The High Court, however, has not accepted that in every case the doctrine of procedural fairness requires the provision of reasons: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 662 per Gibbs CJ, Deane J. Gibbs CJ noted (at 670) that the rules of procedural fairness: … are designed to ensure fairness in the making of a decision and it is difficult to see how the fairness of an administrative decision can be affected by what is done after the decision has been made.

Gibbs CJ’s judgment suggested that there may be future cases where procedural fairness in the special circumstances of the case might require that reasons be given, and Deane J endorsed this view. Osmond , however, was not such a case. There have been some cases in which decision makers have been found to be under a duty to give reasons, even in the absence of statutory provisions to this effect: McIlraith v Institute of Chartered Accountants in Australia [2003] NSW SC 208 (professional disciplinary tribunal, and appeal committee); Attorney-General (NSW) v Kennedy Miller Television Pty Ltd [1998] NSW SC 256 (costs assessor). There have also been cases where judges have been prepared to discount Osborn on the grounds that the law has moved on since it was decided: Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 475 per Fitzgerald P. However, in general, courts have been reluctant to recognise that administrators are under a general common law duty to give reasons: Whalley v Commissioner of Police [2003] NSW SC 273 at [8].

3 Statute 13.3.1 Motivation A key element of the New Administrative Law package of the 1970s was the statutory requirement for reasons which challenged the common law tradition of secrecy: see 1.3.6 ; Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41. The extensive statutory provisions for reasons in some jurisdictions to some extent rectifies the common law’s deficiency.

13.3.2 Special statutory provisions Increasingly, statutes have introduced a particular duty on administrators with decision-making power to provide reasons for that decision. For these decisions, reasons must be provided when a decision is notified. In these situations, the substantive and procedural matters are determined by the statute. Section 25D of the Acts Interpretation Act 1901 (Cth) states that where an Act requires a decision maker to provide reasons for the decision, the [page 272] reasons must set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. The effect of this provision is to make reasons under specific statutory provisions the same as those under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act (Cth)) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act (Cth)). There is a suggestion that trends

indicate that requests for reasons under s 13 of the ADJR Act (Cth) have decreased over the last 10 years. D O’Brien suggests that ‘potential applicants are finding it unnecessary to resort to s 13 because adequate reasons for decisions are being given by decision-makers at the time when the decisions are made’: D O’Brien, ‘The Impact of Administrative Review on Commonwealth Public Administration’ in M Harris and V Waye (eds), Administrative Law , Federation Press, Sydney, 1991, p 111. Also see Administrative Review Council, Practical Guidelines for Preparing Statements of Reasons (revised in November 2002) and the booklet Decision Making: Reasons , which is in the Best Practice Guide Series (August 2007).

13.3.3 General statutory provisions The administrative law statutes in a number of jurisdictions impose an obligation on administrators to provide reasons and provide a forum to enforce the obligation if the administrator refuses to provide reasons: for example, AAT Act (Cth) s 28; Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act (Vic)) s 45(1); Civil and Administrative Tribunal Act 2013 (NSW ) (CAT Act (NSW )) s 30; ADJR Act (Cth) s 13; Administrative Law Act 1978 (Vic) s 8(1); Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act (ACT)) s13; Judicial Review Act 1991 (Qld) s 32(1); Judicial Review Act 2000 (Tas) s 29; State Administrative Tribunal Act 2004 (WA) (SAT Act (WA)) s 24(1). A Practice Note issued by the Supreme Court of New South Wales provides that in relation to cases in the administrative law list, the court may, at a directions hearing, make an order that reasons for a decision be given: Practice Note 119 (2003). Also see Whalley v Commissioner of Police [2003] NSW SC 273 (affirming the power to give such orders). We will now consider the manner in which the statutes regulate the obligation to provide reasons. Although the following discussion uses the federal provisions to explain the obligations, similar obligations are found in the statutes of other jurisdictions within Australia.

13.3.4 For what decisions are reasons provided? W here a decision is reviewable by a tribunal, a person may request reasons and a decision maker has a duty to supply reasons within 28 days of the request: AAT Act (Cth) s 28. It is not necessary for an application to have been made to the tribunal. The important question is whether the tribunal would have jurisdiction to review the decision if an application was made to it. The tribunal itself is under a duty to give reasons if requested to do so: AAT Act (Cth) s 43(2). Similarly, the judicial review statutes provide that reasons may be requested for decisions reviewable pursuant to the statute: ADJR Act (Cth) s 13(1). The judicial review statutes provide for the making of regulations which exempt certain classes of decisions from this obligation to provide reasons: ADJR Act (Cth) s 13(8)–(11). A Schedule to the Act lists the decisions exempt from this obligation. [page 273]

13.3.5 Who may apply for reasons? Generally an applicant who has standing to apply for review of an administrative decision by a tribunal or court may apply for a statement of reasons. For instance, where the application is made to the federal AAT, the requirement is that the person’s interests are affected (AAT Act (Cth) s 28) or that the person was a party to the AAT’s proceedings and requests the AAT’s reasons for its decsion: s 43(2A). W here the application is made to a court pursuant to a judicial review statute, the requirement is that the person is ‘aggrieved’: see ADJR Act (Cth) ss 5 and 13. W here a decision has been made and the applicant is entitled to seek review by the tribunal, the applicant may request in writing a written statement of reasons be provided to the applicant, which must be complied with as soon as practicable or otherwise within 28 days: AAT Act (Cth) s 28(1); ADJR Act (Cth) s 13(2).

13.3.6 May the decision maker refuse to give reasons? W here the decision maker considers the applicant is not entitled to reasons, they may refuse to provide them but must advise the applicant of their refusal within 28 days: AAT Act (Cth) s 28(1AA). The decision maker may refuse to give reasons if the request is made 28 days after the decision was made or where the request was not made within a reasonable time after a decision was made: AAT Act (Cth) s 28(1A). Some statutes seek to protect the confidential information of other persons or organisations: ADJR Act (Cth) s 13A. Most statutes provide that a matter need not be disclosed if disclosure might prejudice the public interest: AAT Act (Cth) ss 28(2) and 43(2); ADJR (Cth) s 14. The administrative tribunals and the courts have the statutory power to review a decision maker’s refusal to provide reasons: AAT Act (Cth) s 28(1AC); ADJR Act (Cth) s 13(4A). The tribunal or court may declare that the reasons are inadequate or ought to have been provided and order that further and better reasons be provided: AAT Act (Cth) s 28(5); ADJR Act (Cth) s 13(7).

13.3.7 What is required of the content of an administrator’s reasons? Following a request for reasons, the AAT Act (Cth) s 28(1) and the ADJR Act (Cth) s 13(1) require administrators to provide a written statement setting out: the findings on material questions of fact; the evidence or other material on which those findings were based; and the reasons for decision. Materiality depends on the administrator’s assessment of what is material. A statement of reasons complies with the statutory requirements, providing it sets out the decision maker’s reasoning properly. If it thereby discloses defects in the administrator’s reasoning, the problem is not that the reasons fail to comply with the statute, but that they disclose what may be a reviewable error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

13.3.8 Administrator’s obligation when application for review is made After an application has been made to a tribunal, the administrator is required to lodge a written statement of reasons and to provide all the other

documents in their possession considered relevant to the review of the decision by the tribunal: AAT [page 274] Act (Cth) s 37(1)(a) and (b). Difficulties arise in explaining to administrators what is required by the legal terms contained in the statutory obligations. To this end the Administrative Review Council issued a memorandum in 2000, which was revised in November 2002, entitled Practical Guidelines for Preparing Statements of Reasons (see D C Pearce and M Allars, Administrative Law Service , LexisNexis, [7050]). Also various departments have issued guidelines to assist the decision makers. In Re Palmer and Minister for the Australian Capital Territory (1978) 1 ALD 183; 23 ALR 196, the AAT found the statement supplied was inadequate and suggested that the legislation required that: the statement should reflect the material facts taken into account at the time of the reconsideration and the views formed at that time; and where the decision maker relies on reports, recommendations or results of investigations carried out by experts or subordinate officers, the statement should refer to the procedures adopted, the information obtained and used, the material facts on which the person has relied and any recommendations. ‘Section 37 Practice Direction’ issued by the President of the AAT on 30 April 2007 sets out the requirements with respect to statements and documents lodged with the AAT under s 37 and indicates what must be supplied by the decision maker.

13.3.9 Reasons and the judicial review jurisdiction Courts supervise the provision of reasons by administrators and by tribunals. Tribunals are required to provide reasons for their decisions, either orally or in writing: AAT Act (Cth) s 43(2)–(2B). The statutory schemes which establish the tribunals, lay down the requirements for compliance with the obligation to give reasons. For instance, when the AAT makes a decision and provides written reasons, s 43(2B) states that the reasons must include: findings on material questions of fact; and the evidence or other material on which those findings were based. The NCAT Act, for example, also requires tribunal decision makers to set out their understanding of the applicable law and their reasoning process: s 62(3).

13.3.10 Can the reasons be judicially reviewed? The courts are prevented from undertaking review on the merits and determining what weight should be attached to any relevant consideration: Sordini v Wilcox (1983) 70 FLR 326. Judgments warn that dissatisfaction with the finding of fact must not lead the courts to hold that the reasons are inadequate: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW LR 247 at 281; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. Despite these warnings, the statements of reasons have on occasion led the courts to consider whether the decision maker has properly considered and weighed relevant factors in the exercise of the discretion. The provision of reasons has impacted on the grounds of review and the inadequacy of the reasons themselves has provided a ground of review. [page 275] Reasons may be inadequate in a number of ways. They may fail, on their face, to disclose the decision maker’s reasoning process. In Dornan v Riordan (1990) 24 FCR 564 the Pharmaceutical Benefits Remuneration Tribunal’s reasons for a determination referred to material which had been the basis for its decision, but did not explain why it had decided to adopt one determination in preference to another. It was not apparent from its reasons whether its decision was flawed or not, and the trial judge referred the matter back to the Tribunal with instructions that it prepare further reasons. On appeal, the Full Court held that the provision of inadequate reasons was itself an error of law, and that the decision should therefore be quashed. The decision in Riordan related to a statutory scheme where there was a statutory provision for the provision of reasons. The Full Court of Appeal stated (at 575): The major flaw in the Tribunal’s decision was that the Tribunal did not state reasons adequate to enable the Court to determine whether or not any other error had occurred in the reasoning process. In these circumstances, the proper order was in our view that the Tribunal’s determination be set aside ab initio.

In the Commissioner of State Revenue v Anderson [2004] VSC 152; (2004) 22 VAR 181 at [33] Nettle J of the Victorian Supreme Court made a similar finding to that in Dornan’s case in relation to an appeal from a decision by the Victorian Civil and Administrative Tribunal. These cases should be compared to Re Minister for Immigration and Multicultural Affairs; Ex parte Palme (2003) 216 CLR 212. In this case the minister cancelled the applicant’s visa on the basis that he failed the ‘character test’ under s 501(2) of the Migration Act 1958 (Cth). The legislation required that where the minister made such a decision, the minister must provide in writing the terms and the reasons for the decision: s 501G(1). However, s 501G(4) stated that the failure of the minster to comply with s 501G(1) did not affect the validity of the decision. Gleeson CJ, Gummow and Heydon JJ stated that the failure to provide informative reasons could be the basis for an order for mandamus requiring proper reasons but was not a jurisdictional error. Their Honours stated (at 225):

[T]he question is whether the step under s 501G which logically and temporally succeeds the making of a decision in exercise of a power is a condition precedent to that exercise. The possibility that this is so may be conceded. But, as [Project Blue Sky In v Australian Broadcasting Authority (1998) 194 CLR 355 at 390–1] emphasised, the answer depends upon the construction of the Act to determine whether it was a purpose of the Act that an act done or not done, in breach of the provision, should be invalid. This gives rise to several immediate difficulties for the prosecutor. First, ‘the act’ upon which the prosecutor fixes for relief by way of certiorari and prohibition is not the failure to give the written notice required by s 501G, but the exercise of the power of visa cancellation conferred by s 501(2). Secondly, the Act deals expressly in s 501G(4) with the interrelation between cancellation and notification. The stipulation it makes is that a failure in notification does not of itself affect the validity of the cancellation.

[page 276] Reasons may also be inadequate in the sense that they suggest that the decision is legally flawed. The problem here, however, is not that the decisions fail to comply with the statute; it is that they show that the reasoning process was defective. They may, for example, show that ‘the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide’: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375. Some authorities suggest that a mere misstatement of the law or an error which would not have affected the decision are not enough to find that the decision maker has made an error of law: BTR Plc v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 34 FCR 246 at 253–4 per Lockhart and Hill JJ; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. If the reasons are impeccable, both formally and as a justification for the decision, the decision may nonetheless be open to challenge if it can be shown, for example, by relying on discovered documents, or the fruits of an Freedom of Information inquiry that the ostensible reasons were not the real reasons. It is less clear what follows if the ostensible reasons disclose an error which the decision maker did not in fact make. Under the ‘slip rule’, the AAT can correct minor errors in its reasons: AAT Act (Cth) s 43AB. If the ‘slip rule’ is not applicable, Dornan would suggest that, the reasons being defective, there has been an error of law. The merit of this approach is that it requires care in the drafting of reasons; the problem is that it elevates formalism over efficiency. It would seem preferable that if the decision maker had not erred, and if this could be proved to be the case, the decision should stand. This would not preclude treating the statement of reasons as evidence against the proposition that the decision maker had not in fact erred.

13.3.11 Inadequacy of reasons in the judicial review jurisdiction Further guidance as to the adequacy of the decision maker’s reasons is supplied by the case law considering the obligation under s 13 of the ADJR Act (Cth) and also by the Administrative Review Council’s report, Review of the Administrative Decisions (Judicial Review) Act 1977 (Cth): Statement of Reasons for Decisions , Report No 33, AGPS, Canberra, 1991. The case law suggests that: Courts, aware of the pressures associated with administrative responsibilities in high-volume and urgent decision making, exercise restraint and discourage examination of reasons with an ‘unduly critical or technical eye’: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. However, such statements are made only because other courts are unduly critical and technical in their approach to reasons: see B McMahon, ‘The Impact of Federal Court Appeals: A View from the Tribunal’ in J McMillan (ed), The AAT — Twenty Years Forward , Australian Institute of Administrative Law, Canberra, 1998, p 124. (McMahon, a Deputy President of the AAT, argues that AAT reasons must be prepared on the basis that they will be examined with undue rigour by the Federal Court.) Courts require substantial compliance, not perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 59 FLR 132. [page 277] Courts must ‘beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision’: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per the High Court; and see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. Courts generally look at the reasons as a whole rather than any isolated part of them. If the decision as a whole discloses sufficient consideration of the important facts, evidence and the law, then the court will usually not uphold the appeal: O’Brien v Repatriation Commission (1984) 1 FCR 472; 53 ALR 477 at 510 per Kealy and Fitzgerald JJ; McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284. Failure to refer to every possible matter will not lead to a finding of inadequacy: Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126; 37 ALR 620. However, failure to refer to issues of a jurisdictional nature may lead to a conclusion that the decision maker has failed to consider the issue: ARM Constructions Pty Ltd v Deputy Federal Commissioner of Taxation (NSW) (1986) 10 FCR 197 at 205; 17 ATR 459 per Burchett J. Courts encourage the expression of reasons in ‘clear and unambiguous language, not in vague generalities of the formal language of legislation’: Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507 per Woodward J. However, ‘a loose or unhappy way of phrasing a thought’ will not lead the court to find an error of law: Repatriation Commission v Bushell (1991) 23 ALD 13 at 19 per Morling and Neaves JJ.

The detail required in the written statement will vary according to the circumstances of the case. In some cases, the court will accept a brief statement as being sufficient for the purposes of s 13.

13.3.12 The bottom line There is a limit to the court’s generous reading of the reasons: Findings of fact on material issues must be presented. The court ‘should not be left to speculate from collateral observations as to the basis of a particular finding’: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW LR 247 at 280. Findings must be supported by evidence: Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666; 4 ALD 139. The process of reasoning must show the mental process by which the decision maker reached the ultimate decision, made findings on material or ultimate facts and treated evidence: Dornan v Riordan (1990) 24 FCR 564. The reasons must be sufficient to enable the appeal court to determine whether the decision was made for a proper purpose, whether the decision involved an error of law, and whether the decision maker acted only on relevant considerations: Soldatow v Australia Council (1991) 22 ALD 750 at 751; 103 ALR 723 per Davies J. [page 278]

4 Evidence: public interest immunity 13.4.1 Confidential information: common law The general rule is that a court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to do so. This public interest has two potentially conflicting aspects: the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done; harm should not be done to the nation or the public service by disclosure of certain documents because it would be against the public interest to disclose either: — its contents; or — because it belongs to a class of documents which in the public interest should not be produced, such as Cabinet documents or ‘state papers’, that is, documents related to the framing of high level government policy.

13.4.2 Motivation for the protection The motivation for this protection is ‘to ensure the proper working of Government’, as it is said that ‘it is inherent in the nature of things that government at a high level cannot function without some degree of secrecy’: Sankey v Whitlam (1978) 142 CLR 1 at 40 per Gibbs ACJ. The protection enables ‘members of Cabinet to exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made’: Commonwealth v Northern Land Council (1993) 176 CLR 604; 112 ALR 409 at 412 per the High Court.

13.4.3 Is it an absolute protection? This protection is not absolute and does not cover all documents irrespective of their subject matter for all time: Sankey v Whitlam (1978) 142 CLR 1 at 40. In Sankey , the court held that a government could not make claims against disclosure based on the class of document to which particular documents belong. It is ultimately for the court to prevent the disclosure of a document whose production would be contrary to the public interest. The court has the power to inspect the document privately. It must weigh up the competing factors, considering the reasons for preserving the secrecy of the documents, whether the documents have already been published and hear the case of the government concerned. In Commonwealth v Northern Land Council (1993) 176 CLR 604; 112 ALR 409 at 415, the majority recommended that production would only be ordered in exceptional circumstances, such as where the materials are crucial to the proper determination of the proceedings.

13.4.4 Confidential information: statute This common law public interest immunity has been embodied in all the general administrative law statutes. In matters where there is confidential government information, reasons can be refused entirely or may be given but with privileged information deleted: AAT Act (Cth) s 28(2); ADJR Act (Cth) s 14. Information may be withheld if disclosure would be [page 279] contrary to the public interest. The concept of public interest immunity has also been embodied in Freedom of Information legislation: see Chapter 14 .

5 Discovery and interrogatories Other means of obtaining information The information-gathering mechanisms of discovery and interrogatories are available in every jurisdiction where court proceedings are underway: 13.5.1

Interrogatories are written questions directed to the decision maker, which must be answered on oath. Discovery involves provision by the parties of details of all documents which are or have been in their possession and which relate to the case, following which parties may elect to inspect documents, other than those which are privileged, or no longer within the other party’s control. Administrative law proceedings generally do not involve conflicts over the facts and accordingly, interrogatories are not widely used. Discovery may sometimes provide fruitful, although those challenging government decisions may also now be able to gain access to relevant documents under Freedom of Information legislation.

13.5.2 Availability under statute Generally, the Judicial Review Statutes intend that information to which a person is entitled under the Act shall be obtained in the manner prescribed by the Act. For example, under the ADJR Act (Cth) an order should be sought pursuant to s 13(7) for further and better particulars in relation to the s 13 statement: Lloyd v Costigan (1985) 62 ALR 284; (1983–1985) 7 ALN 383. Despite this preference, the common law right to discovery and interrogatories applies to applications made under the ADJR Act (Cth): Australian Securities Commission v Somerville (1994) 33 ALD 405; 51 FCR 38; 128 ALR 132. The proper exercise of the court’s power depends on the nature of the case, and the stage of proceedings at which discovery is sought: WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 567 per Brennan J. The rule against ‘fishing expeditions’ has been applied to applications under the ADJR Act (Cth): WA Pines Pty Ltd v Bannerman at 567 per Brennan J. This means that a party who can show nothing to support an allegation cannot have access to the documents of the opposing party in the hope of discovering some support. The court will require the applicant to define the issues sufficiently to enable it to be seen that the documents sought relate to a ‘live issue’ and also to show a ‘good case’, proof of which will be aided by discovery: Reid v Nairn (1985) 6 FCR 261; 60 ALR 209. In both Canwest Global Communications Corp v Australian Broadcasting Authority [1998] FCA 4 and Adams v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 280 the court considered there would be some cases for judicial review that it would be appropriate for the applicants to interrogate. The Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Wong [2002] FCAFC 327 at [23] stated that it was now too late ‘to argue that discovery cannot be ordered in procceedings for judicial review’. [page 280]

Problems 1.

Would the following statements of reasons be considered adequate? Give reasons for your answers. (a) The compensation assessor, in determing an application for compensation, in his reasons stated that ‘the application was not considered to have sufficient merit to be awarded compensation under the Victims Compensation Act 2008 (Cth)’. (b) The compensation assessor of the Victims Compensation Board, in refusing an application for compensation, stated that the report of Dr Faustus led to the conclusion that the applicant was not entitled to compensation. Dr Faustus’ report merely stated that the applicant was not suffering from posttraumatic stress disorder. (c) In its statement of reasons, the AAT listed a number of documents it had considered in reaching its decision that the applicant’s injury was not the direct result of an act of violence. Although the documents before the AAT expressed differing views as to the material fact, whether the applicant had been injured as a direct result of the act of violence and the AAT made no reference to these inconsistent views. (d) The AAT concluded, after considering a victim’s compensation claim, that: Having considered all the evidence in the light of the authorities to which we have been referred, we are satisfied that on the balance of probabilities the act of violence caused the compensable injury.

2.

Vladimir Milosevic claimed that he was assaulted in Civic in the Australian Capital Territory while waiting for a bus. The police concluded that he had provoked the assault. The assessor decided that he did not qualify for compensation, and Milosevic appealed to the AAT. At the AAT hearing, the police referred to Mr Milosevic as having been born in Slovenia, a fact which he strenuously denied. He insisted that he had been born in Kosovo. Eventually the presiding member asked Milosevic: ‘What does it matter where you were born? It’s clear that you were, and about 50 years ago.’ Milosevic explained that there was a question of honour at stake. His appeal was unsuccessful, and when he sought reasons, they made no reference to the debate about where he had been born. He wants to know whether he can have the decision reviewed on the grounds that the reasons are defective.

Resolution 1.

(a) There is no common law obligation to provide reasons: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. The obligation to provide reasons and the requirements for the content of those reasons are determined by statute. Although this statement appears not to satisfy the requirements, you must establish whether there is any legislation which imposes an obligation to provide reasons on the compensation assessor and what the content of the obligation is. The Victims Compensation Act 2008 (Cth) does not impose an obligation to provide reasons. However, since an appeal lies to the AAT from an assessor’s decision, there is a right to reasons under s 28 of the AAT Act (Cth). Due to this, there is no right to reasons under the ADJR Act (Cth): s 13(11)(a). [page 281]

In this example, there are no findings on material questions of fact nor has reference been made to the evidence on which the decision is based. Further, there is no indication of the compensation assessor’s reasoning process. Note that in a situation where similarly brief reasons were provided, the Federal Court ordered that fuller and more specific reasons must be given: Soldatow v Australia Council (1991) 28 FCR 1. (b) In accordance with s 28 of the AAT Act (Cth), primary decision makers are required to state the relevant findings of fact, the material upon which those findings were based and the process of reasoning. These reasons fail to fulfil this legislative obligation and would therefore be considered inadequate. These reasons merely refer to the medical officer’s conclusion. They do not contain the relevant findings of fact, the material evidence, nor do they provide the reasons for the decision. If the departmental delegate wishes to adopt the report, the report itself must satisfy the requirements of adequate reasons. Accordingly, it must refer to the evidence, set out the material findings of fact and state the reasons for decision. As stated in Re Palmer and Minister for the Australian Capital Territory (1978) 1 ALD 183 at 192: If it were permissible for the decision-maker merely to indicate that he had relied upon the advice of a named expert, the intent of the section would be by-passed.

(c) Section 43(2B) of the AAT Act (Cth) imposes an obligation on the AAT to provide reasons which set out the findings of fact, refer to the material on which those findings were based and give reasons for the decision. In this example, the AAT has merely referred to the documents. Where the AAT is dealing with an issue which is material to the final decision, it is not sufficient to merely refer to the documents; it must specifically refer to the evidence contained in these documents: Re Palmer and Minister for the Australian Capital Territory (1978) 1 ALD 183. Further, because the conflicting evidence relates to a material fact, the differing bodies of evidence must be referred to. Findings of fact on material issues must be presented: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. (d) The question raised by this statement is whether it adequately reveals the AAT’s reasoning process as required by s 43(2B) of the AAT Act (Cth). In Australian Postal Corporation v Lucas (1991) 13 FCR 101 a similar statement was rejected as failing to enunciate any reasoning process at all. 2. A decision maker is obliged to refer to a finding of fact, only if the decision maker has actually made the finding of fact, and only if the decision maker believes the fact is material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. Here there is no evidence that the AAT did make a finding in relation to the fact at issue, nor that it regarded it as relevant. Indeed, it appears from the reported exchange that the decision maker regarded the issue as irrelevant. Failure to refer in reasons to a matter which is legally relevant gives rise to a presumption that the decision maker did not take that matter into account. If the matter is legally relevant and could have influenced the decision, the reasons would disclose a legal error. Since Mr Milosevic’s place of birth could not be relevant to his entitlement to compensation, the lack of any reference to it does [page 282] not disclose a legal error. The mere fact that the appellant might have hoped that a question of subjective importance to himself would have been resolved in his favour is irrelevant.

Further tutorial discussion 1.

Tom Thawley, in ‘An Adequate Statement of Reasons for an Administrative Decision’ (1996) 3(4) Australian Journal of Administrative Law 189 at 197, after considering Mason CJ’s views in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, notes that: … decision-making is inherently a practical political activity in the wider sense and the choice of one decision over another will often not be sustainable on grounds of reason; it is a matter of choice sometimes guided by government policy, sometimes by perceptions of societal norms and almost always to some extent by personal bias.

2.

Discuss this statement with reference to the case law on adequacy of reasons. W hy is the provision of reasons important to those affected by administrative decisions?

Further reading Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act 1977 (Cth): Statement of Reasons for Decisions , Report No 33, AGPS, Canberra, 1991. Administrative Review Council (ARC), Commentary on the Practical Guidelines for Preparing Statements of Reasons , ARC, Canberra, 2000. Aronson, M and Dyer, B, Judicial Review of Administrative Action , 4th ed, Thomson Reuters, Sydney, 2009. Bayne, P, ‘The Inadequacy of Reasons as an Error of Law’ (1992) 66 Australian Law Journal 302. de Hoog, K, ‘A View from the Administration’ in S Argument (ed), Administrative Law and Public Administration: Happily Married or Living Apart Under the Same Roof? , 1993 Administrative Law Forum, Australian Institute of Administrative Law, Canberra, 1994. Douglas, R and Head, M, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014, ch 4. Kirby, The Hon Justice Michael, ‘Reasons for Judgment: Always Permissible, Usually Desirable and Often Obligatory’ (1994) 12(2) Australian Bar Review 121.

Thawley, T, ‘An Adequate Statement of Reasons for an Administrative Decision’ (1996) 3(4) Australian Journal of Administrative Law 189.

[page 283]

14 Access to Information General In Chapter 13 we considered the benefits of obtaining reasons for decisions. In this chapter we consider how the public can get access to information about government’s actions, policies and decisions.

Objectives After studying this chapter, you will understand: 1. the capacity of Freedom of Information (FOI) to ensure open and accountable government; and 2. the operation of the Freedom of Information Act 1982 (Cth) including: the general right of access; limitations on this right of access; the procedure involved in obtaining access; the public entity’s decision-making powers; and enforcement of this right of access.

1 Access to government information 14.1.1 The philosophy behind access to information I n 1.2.4 , we introduced the notion of representative democracy, which involves elements of both open and accountable government. Access to information is an essential aspect of both these components. It has been argued that the right to information embodied in the Freedom of Information Act 1982 (Cth) (FOI Act) is ‘premised on the same considerations of democracy and representative government which underpin the constitutional right’: Re Cleary and Department of Treasury (1993) 31 ALD 214 at 218. [page 284]

14.1.2 Access to what information? In order to ensure open and accountable government, individuals need to have a right of access to various forms of information held by government. This information includes: laws, which affect individuals, including Acts of parliament and delegated, or subordinate, legislation: see Chapter 6 ; non-legislative information, including: — policies, which govern the exercise of statutory discretions: see 14.3.4 –14.3.5 ; — information relied upon in reaching decisions concerning individuals: see 14.3.7 ; and — the administrator’s reasons for decision: see Chapter 13 .

14.1.3 Restraints on access to government information Perhaps contrary to the notion of representative democracy, the administrative and legal traditions of a Westminster-style government embody conventions of maintaining the confidentiality of government information to protect the integrity and viability of decisionmaking processes: see 13.4.2 . The motivations for this confidentiality are connected with the notion of ministerial responsibility: see 1.2.3 . A number of factors lead to government information being kept secret and include the following: government documents are the Crown’s personal property, which the Crown can disclose or withhold at will. The Crown also has copyright in documents prepared by Crown servants; common law public policy restrictions on access to information: as embodied in the notion of public interest

immunity: see 13.4 ; at common law, if an administrator handed over documents to another person, there could be an action based on defamation or breach of confidence; and statutory provisions that forbid disclosure of the content of government documents without authorisation: see Crimes Act 1914 (Cth) s 70. Legislation, which creates an office or a body, that protects the operation of the office or body by secrecy provisions: see Ombudsman Act 1976 (Cth) s 35, and 15.2.16 . On the relationship between such legislation and FOI legislation see Kavvadias v Commonwealth Ombudsman (1984) 2 FCR 64; 54 ALR 285.

14.1.4 The ‘public interest’ Access to non-legislative information is facilitated by FOI legislation, which was an essential element of the New Administrative Law package of the 1970s: see 1.3.6 . This involved abandonment of the idea that the interests of governments can be equated with the interests of the state and the interests of the public. It also involved recognition that there is a public interest in citizens being informed of the processes of government. In Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] 1 QAR 60 at 74 it was noted that: Notions of the public interest constitute the basic rationale for the enactment of, as well as the unifying thread running through the provision of, the FOI Act.

The ‘public interest’ is not defined in the FOI Act (Cth) or any other statute. It is essentially non-justiciable and dependent on the application of subjective rather than [page 285] ascertainable criteria: R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Ltd (1971) 123 CLR 361 at 400. In Sinclair v Mining Warden of Maryborough (1975) 132 CLR 473 at 480, ‘public interest’ was described as something that is of serious concern or benefit to the public and not merely of individual interest. The concept of the ‘public interest’ in the context of FOI legislation attempts to balance the public interest in the preservation of government secrecy against the public interest in open and accountable government: see 13.4 .

2 Access to non-legislative information 14.2.1 Laws governing access to non-legislative information Three types of laws govern access to non-legislative information: Freedom of Information legislation, which has now been enacted in all jurisdictions: FOI Act (Cth); Freedom of Information Act 1989 (ACT); Government Information (Public Access) Act 2009 (NSW ); Information Act (NT); Right to Information Act 2009 (Qld); Freedom of Information Act 1991 (SA); Right to Information Act 2009 (Tas); Freedom of Information Act 1982 (Vic); Freedom of Information Act 1992 (WA). As a starting point you must determine which legislation applies to your client’s case. If the public entity is a federal body, you must use the FOI Act (Cth). However, if the entity is, for example, a New South Wales body, you must then use the Government Information (Public Access) Act 2009 (NSW ). In this chapter we will focus on the FOI Act (Cth). State and territory legislation was closely modelled on this legislation, but there are a number of respects in which, having learned from the Commonwealth experience, state and territory laws allow greater access to information. However, it should be noted that the FOI Act (Cth) itself has been amended since it was first enacted, due to the original Act being seen as not fully achieving its objectives; legislation which preserves and conserves archival materials and provides access to documents that are more than 30 years old: see Archives Act 1983 (Cth) (we will not examine this legislation); and privacy legislation which protects the privacy of personal information and provides for the collection, storage, security, access, use, disclosure and amendment of personal information, for example, the Privacy Act 1988 (Cth). Note that this Act does not prevent disclosure of information if disclosure is required by the FOI Act: Information Privacy Principle (we will not examine this legislation). As Terrill has pointed out, these do not exhaust the mechanisms whereby information can be extracted from governments, and he points to W hitlam’s success, when in opposition, in using parliamentary questions to extract information. Terrill also highlights the importance of government efforts to communicate information to people who would not normally attempt to access government information. These may sometimes be prompted by a desire by governments and their agencies to advance their own particular interests, but they may also reflect a genuine commitment to the principle that it is desirable that the public be well informed: see G Terrill, Secrecy and Openness: The Federal Government from Menzies to Whitlam and Beyond , Melbourne University Press, Melbourne, 2000. [page 286]

14.2.2 Benefits of FOI legislation Freedom of Information legislation has generally increased the trend to open government. The benefits experienced by agencies are greater public awareness of agency roles and operations, and greater openness about agencies’ procedures, which in turn improves communication between the public and agencies

and flows on to improve agency decision making: Attorney-General’s Department, Freedom of Information Act 1982 Annual Report 1985–1986 , AGPS, Canberra, 1986. The FOI Act (Cth) prior to the 2010 amemdments was said to have had a positive impact on agency decision making and information recording, as the knowledge that decisions and decision-making processes were open to scrutiny imposed a ‘constant discipline on the public sector’. However, despite wide support for the legislation, there was concern that the legislation was not achieving its objectives of open and accountable government, and that the legislation could more accurately be described as ‘Freedom From Information’: For further information, please see Australian Law Reform Commission (ALRC) and Administrative Review Council, Open Government: A Review of the Federal Freedom of Information Act 1982 , ALRC Report 77, 1996, [2.8], Ch 6 and recommended reading at pp 18–27. Subsequently, the Freedom of Information Amendment (Reform) Act 2010 (Cth) and the Australian Information Commissioner Act 2010 (Cth) were enacted to address these concerns.

14.2.3 Rationale and outline of the FOI changes in response to the previous criticisms of the FOI schemes The reforms implemented in 2010 to address the problems of the FOI Act (Cth) can be summarised as follows : a new Objects Clause that explains clearly the underlying rationale for the FOI Act and its significance for the proper working of representative democracy: ss 3 and 3A; the establishment of a dedicated Information Commissioner; see s 68 as to the functions and role of the Information Commissioner. The Information Commissioner is supported by the Freedom of Information Commissioner and the Privacy Commissioner: Australian Information Commissioner Act 2010 (Cth) ss 4 and 5; the expansion of the Information Publication Scheme (IPS), which applies to all Australian Government agencies that are subject to the FOI Act 1982 (FOI Act Pt II); also see s 7A of the FOI Act for the guidelines as to the role and functions of the IPS. The IPS expressly states the information that agencies must publish online. Agencies may elect to publish more than what is required under the IPS. The Office of the Australian Information Commissioner (OAIC) will work with agencies as part of a compliance program to review the agencies’ performance every five years. The OIAC can issue guidelines about the IPS (see s 9A of the FOI Act) and make a determination about what information should not be published under the IPS. Anyone can complain to the Australian Information Commissioner about how an agency manages its IPS; the FOI Act now extends to documents held by a contracted service provider delivering services to the public on behalf of the agency. All contracts entered into after 1 November 2010 require agencies to implement contractual measures to ensure that if the agency receives an FOI request, the agency can obtain the documents that relate to the performance of the contract: FOI Act s 6C; [page 287] the abolition of application fees for access requests under Pt III of the FOI Act: FOI (Fees and Charges) Regulations r 5, which states that there are no charges when a person is seeking access to their personal information; the reformulation of a public interest test weighted in favour of disclosure of documents and openness. Agencies should provide access to information unless there is an overriding reason not to do so. Agencies cannot refuse to grant access on the basis of a possible loss of confidence or embarrassment to the government or that the information will cause confusion: FOI Act s 11B; the amendment of the Cabinet documents exemption to ensure that it only covers documents at the core of the Cabinet process: FOI Act s 34; the amendment of the internal working documents exemption to relate to deliberative processes. This is now ‘conditionally exempt’: (FOI Act s 47C) and as such is subject to ss 11A(5) and 11B. Consequently, such access must be granted unless it would be contrary to the public interest; the repeal of exemptions for Executive Council documents, documents arising out of companies and securities legislation and documents relating to the conduct of an agency of industrial relations; and the amendment of the exemption provision for documents subject to legal professional privilege so that the exemption cannot be claimed in circumstances where the privilege has been waived: FOI Act s 42(2). Some states and territories have also amended their FOI legislation, for example, New South Wales, Queensland and Tasmania: Government Information (Public Access Act) 2009 (NSW ); Right to Information Act 2009 (Qld); Right to Information Act 2009 (Tas). The Freedom of Information Amendment (New Arrangements) Bill 2014 (the Bill) was introduced into the Australian Parliament on 2 October 2014. The Bill proposes to repeal the Australian Information Commissioner Act 2010 and to abolish the Office of the Australian Information Commissioner (OAIC). It also seeks to amend the Freedom of Information Act 1982 (FOI Act), the Privacy Act 1988 (Privacy Act) and related laws. If the Bill is passed by Parliament, then as of 1 January 2015, the Australian Privacy Commissioner will perform the functions of the Privacy Act and provide to individuals, organisations and agencies, advice and guidelines pertaining to privacy. The Attorney-General’s Department (AGD) will perform the relevant functions of the FOI Act, such as provision of guidelines, advice and annual reporting. Reviews will be conducted by the AAT and complaints will be handled by the Commonwealth Ombudsman. The Information Commissioner may receive applications for review up until the 31st December 2014. Any IC reviews still open on the 31st December will be transferred to the AAT. All records and documents pertaining to the IC review will also be transferred to the AAT and any such

transferred IC reviews will not be charged an application fee to be heard before the AAT. Similarly any FOI complaints made to the Office of the Information Commissioner, which have not been finalised by the 31 December 2014, will be transferred to the Commonwealth Ombudsman. [page 288]

3 The FOI Act 1982 (Cth) 14.3.1 Statutory objects Section 3(1) of the FOI Act 1982 (Cth) provides: The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island …

Section 3(3) states: The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.

Section 3(4) further states that: The Parliament also intends that the functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

Section 3(1)(a)–(b) further notes that this broad objective is to be achieved by: publication of information by government agencies relating to their operations, particularly rules and practices, which affect members of the public in their dealings with departments and public authorities: s 3(1)(a): see 14.3.4 –14.3.5 ; providing a right of access to documents in the possession of governments: s 3(1)(b); see 14.3.7 –14.3.22 . Section 3A expands the objects of the Act by making it clear that where information or documents (including exempt documents) would otherwise be accessible apart from under this Act, then publication and access should not be limited as: (2) The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power: (a) in the case of the power to publish the information or document — despite any restriction on the publication of the information or document under this Act; and (b) in the case of the power to give access to the information or document — whether or not access to the information or document has been requested under section 15.

In this chapter, we will focus on the general right of access.

14.3.2 Wide interpretation The Act’s provisions are to be interpreted so as to facilitate and promote the disclosure of information: FOI Act (Cth) ss 3 and 3A. Agencies and ministers retain a discretion to disclose any information whether or not the Act requires disclosure, subject to provisions of other legislation which prohibit disclosure or where release may be a breach of a common law rule, such as legal professional privilege: s 42. Note that if the privilege has been waived, then the documents are no longer conditionally exempt under the Act. This wide interpretation applies even to class exemptions such as Cabinet documents: s 34. [page 289]

14.3.3 A presumption in favour of disclosure? Sections 3, 3A and 11A provide that the purpose of the Act is not to limit access to documents or information held by the government. Section 11A states that as a general rule access is ‘mandatory’, unless the document is an ‘exempt’ document. However, access may be given to an ‘exempt’ document under the Act if, apart from the Act, access would be granted: ss 3A and 31B (exempt documents for the purposes of Pt IV). Further, the agency or minister must give access to a document which is ‘conditionally exempt’, unless at the time, on balance, it would be contrary to the public interest: s 31B. Division 3 of Pt IV provides for when a document is conditionally exempt. Section 11B deals with when it is contrary to the public interest to give a person access to the document.

14.3.4 Publication of information A significant feature of the Act is the duty imposed on the responsible minister of an agency to document and publish up-to-date information about an agency’s administrative structure: FOI Act (Cth) Pt II. Section 7A provides an information publication scheme guide as to what information should be published: – –

– – –

Each agency must publish a plan showing how it proposes to implement this Part. An agency must publish a range of information including information about what the agency does and the way it does it, as well as information dealt with or used in the course of its operations, some of which is called operational information. In addition, an agency may publish other information held by the agency. Information published by an agency must be kept accurate, up-to-date and complete. An agency is not required to publish exempt matter. An agency is also not required to publish information if prohibited by another enactment.

– – – –

The information (or details of how to access the information) must be published on a website. If there is a charge for accessing the information, the agency must publish details of the charge. An agency must, in conjunction with the Information Commissioner, review the operation of the scheme in the agency every 5 years (if not earlier). An agency must have regard to the objects of this Act, and guidelines issued by the Information Commissioner, in doing anything for the purposes of this Part. If operational information is not published in accordance with this Part, a person must not be subjected to any prejudice as a result of not having access to the information.

Inclusion of particular information is not required where it relates to personal information about an individual, or information about the business, commercial, professional or financial affairs of an individual, which in the circumstances would be ‘unreasonable’ to publish, or any information that the Information Commissioner determines should not be published: s 8(2)(g). Anything that would be an ‘exempt’ document under the Act need not be published: s 8C. Arrangements for people to participate in policy making and agency administration must also be published: s 8(1) (f). This obligation contributes to public participation in government processes: see 1.2.4 . [page 290]

14.3.5 Documents available for inspection and purchase Under the common law there is no obligation on administrators to disclose administrative policy: South Australia v O’Shea (1987) 163 CLR 378. The FOI Act (Cth) reverses this position, as agencies are obliged to make available copies of policy documents for public inspection and purchase: s 8D. The type of information which must be made available is the agencies’ ‘operational information’, which is defined under s 8A: (1) An agency’s operational information is information held by the agency to assist the agency to perform or exercise the agency’s functions or powers in making decisions or recommendations affecting members of the public (or any particular person or entity, or class of persons or entities).

It does not include: (2) … information that is available to members of the public otherwise than by being published by (or on behalf of) the agency.

For example, the agency’s rules, guidelines, practices and precedents relating to those decisions and recommendations must be published. At common law, individuals are not protected from prejudice arising from a lack of knowledge of the policy applied to them. The FOI Act (Cth) provides some protection to a person where the agency has failed to publish its operational information in accordance with Pt II of the Act. The Act provides that a person must not be subject to any prejudice only because of the application to that conduct of any rule, guideline or practice in the unpublished information, if the person could lawfully have avoided that prejudice had he or she been aware of the unpublished information: FOI Act (Cth) s 10.

14.3.6 Amendment of personal records W here information relating to a person’s affairs is incomplete, incorrect, out-of-date or misleading, Pt V makes provision for a person to apply to the agency to correct that information by amendment or annotation: FOI Act (Cth) s 48. There is no right to have the information corrected and no duty is imposed on the administrator, only an opportunity to request that it be rectified: ss 48 and 50(1). W here a person requests amendment and the agency is satisfied that the document is deficient, it may alter the document to make the information accurate: s 50(2)(a) and (3). Alternatively, it may add to the document a note that specifies the respects in which the agency is satisfied that the personal information is deficient: s 50(2)(b). If the agency is not satisfied that a ground for amendment exists, it must give the applicant an opportunity to add to the document a statement that sets out his or her concerns: s 51. The process of annotation of documents does not involve concession by the agency that there is any deficiency in the document.

The general right of access 14.3.7 A right to information The object of the FOI Act (Cth) is ‘to extend as far as possible the right of the Australian community’ to gain access to all government information. This prima facie right is both defined and limited by s 11, which gives a legally enforceable right to ‘every person’ to: ‘a document of an agency, other than an exempt document’; and ‘an official document of a Minister, other than an exempt document’. [page 291] The access is further limited by: provisions which exclude categories of documents from the scope of the Act: see 14.3.14 –14.3.22 ; and provisions which permit an agency or minister to deny access where to grant access would involve unreasonable diversion of agency resources.

Use the outline below to guide you through the FOI Act (Cth) in relation to this general right of access. Is this general right of access limited?

is is is is is is

there a document? there an agency? the document in the agency’s possession? it an official document of a minister? the document excluded from the Act? the document exempt?

Procedure

who may seek access? the application charges

Public entity’s decision

decision to grant access form of access decision not to grant access access refused reasons

Enforcing the duty to provide access

mandamus internal review Review by Australian Information Commissioner external Administrative Appeals Tribunal review Administrative Decisions (Judicial Review) application Ombudsman parliamentary supervision of annual report

[page 292]

Limitations on the right of access 14.3.8 What are documents? The public only has access to information contained in documentary form created by government agencies and documents that are sent to the agencies by third parties or documents that are in the possession of contract providers to the government agency with whom the government agency has contractual relations to obtain such documentation: FOI Act (Cth) s 6C. The term ‘document’ is given a wide meaning by s 4(1), which is intended to be inclusive rather than to exhaustively define its meaning. It extends to written material, maps, photographs, any thing which contains a sound or visual image, any article on which information has been stored mechanically or electronically, and ‘any other record of information’.

14.3.9 What is an agency? The term ‘agency’ is defined in the FOI Act (Cth) by s 4(1) as a department or a prescribed authority. These terms are then the subject of further definition. Almost all public service departments fall within the scope of the Act, provided they correspond to a department of state of the Commonwealth: s 4(1). This means that parliamentary departments such as the Department of the Senate, are excluded. Prescribed authorities are bodies established for a public purpose, such as the Commonwealth Ombudsman. In Re Brennan and the Law Society of the Australian Capital Territory (1984) 6 ALD 428, the Administrative Appeals Tribunal (AAT) held that if a body has functions or objects which are clearly intended to be exercised for the benefit of the public or a section of the public, then it was established for a public purpose. The definition of ‘prescribed authority’ includes statutory bodies corporate or unincorporated and statutory offices, as well as other bodies declared by the regulations to be a prescribed authority for the purposes of the Act: s 4(1). Courts and tribunals are deemed to be prescribed authorities in respect of administrative matters: ss 5 and 6. However, certain bodies, such as Royal Commissions, are excluded from this definition: s 4(1). Also bodies listed in Pt I of Sch 2 of the Act are deemed not to be prescribed authorities for the purposes of the Act: s 7(1).

14.3.10 Documents of an agency A document must be in the possession or under the control of the agency and received or created by an officer of the agency in the performance of his or her duties: Bleicher v Australian Capital Territory Health Authority (1990) 24 FCR 497; 96 ALR 732. Custody is distinguished from possession. For instance, a document physically on the premises of an agency is not necessarily in its possession. Further, a document can be in the possession of an employee or independent contractor of an agency, but not in the agency’s possession.

14.3.11 Documents created by government business enterprises Government business enterprises (GBEs) are wholly or partly government owned and undertake commercial activities: see 1.1.3 . There is no general rule concerning the application of the FOI Act to these entities. Some GBEs are not subject to the Act because they do not fall within the definition of ‘prescribed authority’. Other GBEs, such as the Australian Postal Corporation and the ABC, are exempt in respect of particular documents: FOI Act (Cth) Sch 2 Pts II and III. [page 293]

14.3.12 Documents created by private sector bodies contracting with government The public has no general legal right of access to documents in the possession of a private sector body. For instance, patients have no right of access, at common law or under the FOI Act, to their medical records held by their general practitioner: Breen v Williams (1996) 186 CLR 71. However, where the government contracts out for the provision of services, the private contractor will have to provide the agency with information to enable it to determine whether the contract is being fulfilled. Once the information is in the hands of the agency, it will be subject to the FOI Act. Section 6C requires that where an agency is provided a service under a Commonwealth contract in connection to the performance of its functions or the exercise of its powers, the agency must take contractual measures to ensure that it receives a document created by or in the possession of a contract service provider for the Commonwealth contract or a subcontractor for the Commonwealth contract, where access to the document is sought by an FOI application. Some documents may be exempt if they satisfy the elements of s 47, which relates to the disclosure of trade secrets or valuable commercial information. However, this has certain exceptions where the information sought is in relation to an undertaking: see 14.3.15 .

14.3.13 Official documents of a minister To be covered by this definition, documents must be in the possession of a minister in that person’s capacity as a minister but do not relate to the affairs of the agency: FOI Act (Cth) s 4(1). Section 31B in Note 1(c) states that where an official document of a minister contains some matter that does not relate to the affairs of the agency or a department of the state, then such document is ‘exempt’. This means that any part of a document which relates, for example, to matters of a political party or of a personal kind is excluded.

14.3.14 Documents excluded from the Act In addition, certain items are specifically excluded from access under the FOI Act (Cth). Some documents are excluded by the definition in s 4(1), such as library material maintained for reference purposes and Cabinet notebooks. Documents available under another statutory provision or administrative arrangement are also excluded: s 12. For instance, a document that is available for purchase by the public in accordance with the arrangements made by an agency is excluded. Other provisions expressly exclude documents deposited by private individuals in collections such as the National Library of Australia collection: s 13(1).

14.3.15 Exempt documents Sections 3 and 3A of the FOI Act (Cth) provide for a general right of access, subject to certain exemptions. Section 11 creates a legally enforceable right for every person to obtain access to information other than an ‘exempt document’. The term ‘exempt documents’ is defined by s 4(1). These include: documents exempted by Pt IV of the FOI Act (Cth). There are two groups: — documents which relate to the responsibilities and operations of government: ss 33, 34, 37, 38, 45A and 46; [page 294] — documents where the main purpose is to safeguard the interests of third parties that deal with government agencies: ss 42, 45 and 47A; particular documents in respect of which an agency is exempted by virtue of s 7 of the FOI Act (Cth). This includes bodies specified in Sch 2 Pt III in relation to documents in respect of their commercial activities (s 7(2AA)), where commercial activities is defined under s 7(3) and bodies specified in Sch 2 Pt II in respect of particular categories of documents: s 7(2); an official document of a minister that contains some matter that does not relate to the affairs of an agency or a department of state: s 31B; and see 14.3.13 ; and certain documents in the possession of a minister, where the document is an intelligence agency document, a defence intelligence document or a document relating to child sexual abuse generated by a Child Sexual Abuse Royal Commission: s 7(2B), (2D) and (2E).

14.3.16 Interpretation of exemptions Each exemption is to be construed independently of the others and there is no presumption against the overlapping of grounds: FOI Act (Cth) s 32.

14.3.17 Effect of disclosure Some documents fall into a particular class, which means that they should not be disclosed irrespective of the effects: FOI Act (Cth) ss 35, 45A and 47A. Other exemptions depend on the consequences flowing from disclosure of the particular document: Re Dyrenfurth and Department of Social Security (1987) 12 ALD 577 at 584. The effects might follow either from the mere fact of disclosure of the

document or from the disclosure of the contents of the document. The current exemption provisions under the FOI Act can be categorised as follows: In ss 33, 37 the agency must determine whether a specified harm ‘would or could reasonably be expected to’ result from disclosure. The agency or minister will have to show that actual and significant damage will occur: Re Maher and Attorney-General’s Department (1985) 7 ALD 731. This damage need not be of a monetary kind but includes damage to intangibles such as trust and confidence. In ss 34, 38, 45A and 47A all that needs to be shown is that the document falls within the definition of a Cabinet document, or that it is a document that is prohibited from disclosure under another enactment, or that it is a parliamentary Budget Office document or electoral roll or related document. In these cases, the documents are exempt, irrespective of the effects of disclosure. In ss 42, 45 and 46 the documents are exempt if they would found an action for breach of legal professional privilege, breach of confidence, contempt of court, would be contrary to an order by a tribunal or Commission, or would breach parliamentary privilege.

14.3.18 The public interest test A single public interest test applies to each of the conditional exemptions. The test specifically states which factors ‘must’ be considered, if relevant, and those factors that ‘must not’ be considered, when making a determination. Ministers can no longer issue conclusive certificates [page 295] declaring that certain documents are exempt, on the basis that they are contrary to the public interest. Prior to the reforms in 2010 this was possible: McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423. Section 11A(5) of the FOI Act states: The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.

Also see s 31B.

14.3.19 Public interest exemption factors: s 11B These factors only apply to documents that fall within the ‘conditionally exempt’ provisions: Pt IV Div 3 ss 47B–47J inclusive. These factors do not apply to exempt documents under Pt IV Div 2 ss 33–47A. The FOI Act’s objects as stated in ss 3 and 3A support disclosure, which again is expressed in the public interest test contained in s 11B. Access and disclosure will be favoured if such access and disclosure would: promote the Act’s objectives: ss 3 and 3A; inform debate on a matter of public importance; promote effective oversight of public expenditure; and allow a person to access his or her personal information: s 11B(3). Section 11B(4) then states that certain factors must not be considered when making a determination that a document is conditionally exempt, where on balance its disclosure would be contrary to the national interest. These are: access to the document could result in embarrassment to the Commonwealth government, or cause a loss of confidence in the Commonwealth government; access to the document could result in any person misinterpreting or misunderstanding the document; the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made; or access to the document could result in confusion or unnecessary debate. Further, when an agency or a minister is making a decision as to whether disclosure would on balance be contrary to the national interest, they must consider the guidelines published by the Information Commissioner under s 93A. By making the above factors ‘irrelevant’, this in effect makes some of the previous case law on the ‘national interest’ somewhat irrelevant. For example, in Re Howard and Treasurer of Commonwealth [1985] AATA 100, three of the five factors considered to support a decision for not disclosing a document on the basis of it being contrary to the national interest are now, under s 11B(4), irrelevant. The other two factors in the case are under the Guidelines issued by the Information Commissioner considered [page 296] to be contrary to the objects of the Act under ss 3 and 3A and the factors favouring disclosure under s 11B(3). The term ‘public interest’ is not defined under the FOI Act. According to the High Court in O’Sullivan v Farrer (1989) 168 CLR 210 at 216, when the term is used in legislation it ‘imports a discretionary value judgment to be made in reference to undefined factual matters’ limited only by the scope and purpose of the Act. The term remains broad and what it entails depends on the context and the facts. The matter need not be in the interest of the public as a whole but may be satisfied where a substantial proportion of the public derives a benefit.

The AAT has also rejected the possible inhibition of candour and frankness as a consideration weighing against disclosure, unless concrete evidence indicates that the work of departmental officers deteriorates as a result of this requirement to disclose: Re Kamminga and Australian National University (1992) 26 ALD 585 per AAT (O’Connor J presiding) and see 14.3.22 ; Re Sutherland Shire Council and Department of Industry, Science and Resource s (2001) 33 AAR 508. The importance of evidence is also reflected in a Full Federal Court decision upholding an appeal against an AAT ‘public interest’ decision on the grounds, inter alia, that there was no evidence to support a finding of fact which the Tribunal made, on the basis of which it found that disclosure was in the public interest: Secretary, Department of Workplace Relations and Small Business v Staff Development and Training Centre Pty Ltd (2001) 114 FCR 301.

14.3.20 Interpretation of public interest test The principles of openness and accountability and the fact that the FOI Act (Cth) confers upon every person a legally enforceable right to obtain access to non-exempt documents are also relevant to the interpretation of this test: Re James and Australian National University (1984) 6 ALD 687. The courts have also held that, in the application of a public interest test, it is relevant to take account of the interest of an applicant: ‘if the citizen’s “need to know” should in a particular case be large, the public interest in his being permitted to know would be commensurately enlarged’: Re Burns and Australian National University (1984) 6 ALD 193 at 197 per AAT (Deputy President Todd presiding).

14.3.21 Illustrations The following cases illustrate the role the public interest tests play in deciding whether documents should be disclosed. Please note that some of these cases may refer to sections of the FOI Act prior to the 2010 reforms. However, the court’s view as to how to define ‘national interest’ remains important but must be considered in light of s 11B. In Re Prosser and Australian Telecommunications Corporation (1989) 17 ALD 389, a paper prepared by senior Telecom officers for consideration at a meeting of the Board of Commissioners of Telecom was held to be exempt under s 36. Disclosure of the document could cause public confusion, as the document had been prepared at short notice and it contained estimates that were later reviewed. (Note that s 36 no longer exists under the current Act.) Also, the factor of causing ‘confusion’ according to s 11B(4)(d) must not be a consideration, when determining whether on balance a ‘conditionally exempt’ document should be disclosed. In Re Kamminga and Australian National University (1992) 26 ALD 585, access was sought to referees’ reports which related to unsuccessful applications for [page 297] positions of research fellow. The agency refused access under ss 36, 40 and 45 of the FOI Act (Cth). (Note that ss 36 and 40 have since been repealed. Section 45 relates to documents received in confidence, which if disclosed would expose the agency to legal proceedings for breach of confidence.) The AAT (O’Connor J presiding) found that even if the documents fell within the class of documents exempted by s 36, their disclosure was not contrary to the public interest as required by s 36(1)(b). Although maintenance of a high standard of scholarship and appointment of the best staff is in the public interest, the AAT was not able to find that if such reports were to be disclosed, referees would provide reports which were less frank and consequently poorer quality staff would be selected. Concrete evidence was needed to support such an argument: at 589. The AAT also rejected the claim that communications within agencies are in confidence regardless of content. Although in some situations confidentiality could be a ground for claiming the s 36 exemption, special circumstances should exist to found such a claim. Further, confidentiality is the subject of express provision under s 45. However, the AAT found that the material was exempt from disclosure under s 45. Disclosure of the reports could found an action for breach of confidence because of the convention that referees’ reports are given and received in confidence. In Re Kamminga and Australian National University the sections relied on under the FOI Act were prior to the Act’s amendment. The sections all fell within the ‘exempt’ provisions which, however, were also subject to a ‘national interest’ test. A case with similar facts today would possibly rely on s 45, which succeeded in Re Kamminga and Australian National University . Possibly, they could also argue under ss 47C, 47E and 47F, which are all ‘conditionally exempt’ provisions under the Act and thereby subject to the national interest test: see ss 11A and 11B. Given the reasoning by the court above, it is submitted that it would be unlikely to succeed on those provisions and disclosure would be required.

Procedure 14.3.22 Who has access? Consistent with the democratic accountability rationale of the legislation, ‘every person’ has a legally enforceable right to obtain access: FOI Act (Cth) s 11. ‘Person’ includes a body politic or corporate, as well as an individual: Acts Interpretation Act 1901 (Cth) s 22(a). A person does not have to show a special interest or any ground or reason to seek a document: FOI Act (Cth) s 11(2).

14.3.23 Relevance of applicant’s interest for exemptions Although a reason or special interest for seeking a document is not required, the person’s interest may be relevant to how the exemption applies in a particular case, particularly where it turns on the effect of disclosure of the relevant document (see 14.3.17 ) : Re Lander and Australian Taxation Office (1985) 9 ALN N25 (applicant entitled to access document recording conversation, which applicant knew about, between the Australian Taxation Office and his stockbroker). For instance, some provisions, consistent with the protection of privacy rationale underlying the Act, give access to the person if the documents contain personal information: FOI Act (Cth) s 38(2), Pt V. For provisions, such as the FOI Act (Cth) s 45 breach of confidence exemption,

[page 298] it makes no sense to apply the provision against the confider in the case: see also s 42 (legal professional privilege). W here the exemption turns on the nature of the document, the applicant’s interest may be of no relevance.

14.3.24 Application A person who wishes to obtain access to a document under the Act must apply in writing to the agency or the minister: FOI Act (Cth) s 15(1) and 15(2)(a). The application must include sufficient information to enable the document to be identified: s 15(2)(b). Agencies are obliged to assist individuals to make valid applications, which adequately identify documents, to determine whether a document with deletions would be acceptable and to narrow requests: ss 15(3) and 22(1). Further, if a person’s request should have been directed to another agency, it is the agency’s duty to assist the person to direct the request to the appropriate agency: s 15(4).

14.3.25 Charges The FOI Act (Cth) authorises the making of regulations concerning the charging of fees for access to documents including application fees, charges for the time taken in locating the documents and making copies and time spent deciding whether an exemption applies: s 94(1). The fees are set out in the Freedom of Information (Fees and Charges) Regulations. There are no charges imposed where a person is seeking to access their personal information: reg 5.

Public entity’s decision 14.3.26 Decision to grant access Provided the document is not an exempt document and the applicant has complied with all procedural requirements, the decision maker must grant access: FOI Act (Cth) s 11A. W here a document is disclosed and access was required by the Act, no action for defamation, breach of confidence or infringement of copyright can be taken against an officer who gave the access: s 91. Further, a person is not guilty of a criminal offence by reason only of giving access to non-exempt information under the FOI Act (Cth): s 92.

14.3.27 Form of access The forms of access which satisfy the duty to provide access include a reasonable opportunity to inspect the documents, provision of a copy of the document, an opportunity for the person to hear or view sounds or visual images or a written transcript of words recorded or contained in a document: FOI Act (Cth) s 20. Access should be given to the applicant in the requested form, unless it would interfere unreasonably with the operations of the agency or minister, or would be detrimental to the preservation of the document or would involve infringement of copyright, in which case access will be given in another form: s 20(3). Notification of the decision in relation to access must be given within 30 days, unless consultation with third parties is required: s 15(5) and (6).

14.3.28 Decision not to grant access Decision makers may also: defer access in specified situations for specified periods: FOI Act (Cth) s 21. However, this power should only be exercised in the public interest and for the public benefit: Harris v Australian Broadcasting Corporation (1983) 5 ALD 545; 50 ALR 551; [page 299] delete exempt matter and give the applicant a copy of the document without the exempt matter: s 22(2); refuse access: s 24; neither confirm nor deny the existence of a document, where information as to the existence or non-existence of the document would, if included in another document, make the other document exempt under s 25.

14.3.29 Access refused In deciding whether to refuse access, the decision maker must not consider any reasons the person gives for the request or the decision maker’s belief as to why the person is seeking access: FOI Act (Cth) s 24(6); see 14.3.23 . Access can be refused where: provision of access would ‘substantially and unreasonably’ divert the agency’s resources from its other operations (FOI Act (Cth) ss 17(2) and 24(1)(a)) or interfere with the minister’s performance of her or his functions: s 24(1)(b). In determining whether a request would unreasonably divert the agency’s resources, the agency may consider: the number of documents requested; the amount of work potentially involved in scrutinising the documents for exempt matter; the time potentially involved in complying with the request; the resources, including money, facilities, number and qualifications of staff available to the agency to deal with requests; and the other operations of the agency: Re Shewcroft and Australian Broadcasting Corporation (1985) 7 ALN N307; the documents are exempt (s 24(5)) or would become exempt as a result of ss 33, 33A or 37(1), if information as to the existence of the document were included: s 25. It must also be apparent that no obligation would arise under s 22 to grant access to an edited copy of any of the documents; all reasonable steps have been taken to find the document and the minister or agency is satisfied that the document does not exist or cannot be found: s 24A. The agency is not required to, but may, seek copies of documents from outside the agency: Re Anti-Fluoridation Association of Victoria and Secretary, Department of Health (1985) 8 ALD 163.

14.3.30 Reasons must be provided where access is not granted Section 26 of the FOI Act (Cth) imposes a duty on the administrator to give notice in writing stating the findings on any material questions of fact, referring to the material on which those findings were based and stating the reasons for the decision: see 13.3.7 . However, the statement of reasons need not contain any matter which, by its inclusion, would cause that document to be exempt: s 26(2).

Enforcing the duty to provide access 14.3.31 Procedural fairness required The FOI Guidelines (Office of the Australian Information Commissioner, Guidelines Issued by the Australian Information [page 300] Commissioner Under s 93A of the Freedom of Information Act 1982 , rev January 2013) state at [8.15] that the bias rule is relevant to all decision making under the FOI Act (Cth). Examples of where caution is needed are: It is recommended that an authorised FOI decision maker, who knows an FOI applicant personally, should consider passing the matter to another officer for decision, especially if there is a close or social relationship. Generally, a decision maker is not prevented from making a decision by reason only of former contact with an FOI applicant, which may be a regular occurrence in some agencies. An FOI decision maker must approach each decision with an open mind and, for example, consider any submission by an applicant as to why a document is not exempt or a charge should be reduced. Generally, a decision maker is not prevented from making a decision by reason of having dealt previously with a similar issue or applicant, or having expressed a view about FOI Act principles or requirements. Paragraphs [8.17]–[8.18] of the Guidelines refer to the specific procedural requirements under the FOI Act (Cth) which, if correctly followed, would discharge the decision maker’s obligation to observe natural justice. However, decision makers should bear in mind, when implementing the FOI Act, that natural justice is an important, highly regarded and far-reaching legal obligation that is designed to ensure procedural fairness in administrative decision making. Further the Guidelines state [at 8.19] that a person who disagrees with a decision on access to documents, or amendment or annotation of personal records, has the right to apply for internal review by the agency and review by the Information Commissioner (see Pts 9 and 10 of the Guidelines). This review process provides a fuller opportunity for an affected person to be heard, and to that extent, for natural justice to be observed. The general principle as to the giving of reasons is referred to in the Guidelines in [8.26]–[8.29]. As FOI decision makers must provide reasons for their decisions under s 26 of the Act, the stated reasons should be meaningful and accurate, setting out what the decision maker considered and why, including addressing arguments put to the decision maker. Section 26 itself specifies the matters that must be included in the statement of reasons, including the findings on material questions of fact, the public interest factors taken into account in applying a conditional exemption, the name and designation of the agency officer making a decision, and information about the applicant’s review rights (also see [8.55] of the Guidelines). The FOI Act also requires the Information Commissioner to provide reasons for a decision on a complaint or investigation (ss 75(4) and 86(2)) and an application for Information Commissioner review (s 55K(4)).

14.3.32 Internal review Part IV of the FOI Act (Cth) provides for internal review of agency decisions. Decisions made by an agency to deny access to a document wholly or partly, or impose charges for the production of that document can be [page 301] internally reviewed. An application must be made within 30 days of the decision being made (access refusal decision) and the agency must provide an alternative person to the original decision maker to review the decision and make it anew: ss 54B, 54C. Internal review is not available if the decision was made by the minister or the principal officer of an agency: ss 54(1) and 54A(1). A guide to internal review is found under s 52.

14.3.33 Review by the Information Commissioner A person may request the Information Commissioner to review a decision made under internal review or by the original decision made by the agency. Internal review is not a prerequisite for review by the Information Commissioner: FOI Act (Cth) ss 54L and 54M. No fees are charged for review by the Information Commissioner. Under s 54W the Information Commissioner has a discretion not to review. A guide to review by the Information Commissioner is found under s 54F. Review by the Information Commissioner is a merits review. He or she has the power to make a new decision, vary it or affirm it. The Information Commissioner can consider new material not before the original decision maker, even if that material only became available after the original decision was made. Information Commissioner reviews generally are on the documents rather than through an oral hearing: s 55. A party may, however, apply for a formal hearing and it is in the discretion of the Information Commissioner whether the circumstances warrant such a hearing: s 55B. If a hearing is granted, the person may represent themselves or be represented by another

person: s 55C.

14.3.34 External review by AAT The FOI Act (Cth) provides for external review by the AAT, subject to the requirement of an internal review under s 54: see 2.4.8 . According to ss 57A and 58, the AAT can review the following: the Information Commissioner’s decision to confirm, vary or set aside a decision: ss 55K and s 57A(1)(a); the agency’s or minister’s decision: s 58; and the Information Commissioner’s decision that a person is a vexatious applicant: s 89N. Review cannot be sought of the Information Commissioner’s determination not to review a matter. This could be taken to the Ombudsman.

14.3.35 Modifications of the AAT Act Some procedural aspects of AAT review are modified by the FOI Act (Cth). For instance, in an application for review to the AAT of the Information Commissioner’s decision not to review a reviewable decision (FOI Act s 54W ), the time frames for the application are governed by s 57A(2) of the FOI Act and not by s 29(2) of the AAT Act: see 3.2.3 . Further, s 37 of the AAT Act does not apply to a document that is a reviewable decision of the Information Commissioner under s 54 of the FOI Act. The agency or minister is held to have complied with s 37 providing they have given the AAT copies of their decision in compliance with the regulations under s 55K: FOI Act s 61A. Section 37 of the AAT Act also does not apply to exempt documents under the FOI Act. The AAT members may inspect the document to determine whether it is an exempt document: FOI Act [page 302] s 64(1), (2), (5), (6). W here an applicant is substantially successful under s 57A of the FOI Act, the AAT may recommend to the Attorney-General that the costs of the application be paid by the Commonwealth: FOI Act s 66; see 3.5.14 . Although there is generally no legal onus in AAT proceedings, the agency or minister usually bears the burden of proving their case to the satisfaction of the AAT, unless a consultative process applies under ss 26, 26A, 27 and 27A, in which case it may be that the ‘affected party’ bears the onus: FOI Act s 61. Nevertheless, in some situations where the public interest is raised, the applicant may bear a tactical onus to adduce evidence that there is a public interest in the disclosure of the subject matter to which the document relates: Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111; 108 ALR 163.

14.3.36 Judicial review A decision of the AAT can be appealed to the Federal Court on a question of law: AAT Act (Cth) s 44; see 3.6.2 . An applicant can seek judicial review by the Federal Court: on questions of law referred to it by the Information Commissioner: s 55H; or on a question of law concerning the decision of the Information Commissioner: s 56.

Problem Dr Bartolo, an experienced public servant, applied for appointment as Director of the Victims Compensation Board. He was interviewed by a selection committee appointed by the Attorney-General’s Department. Dr Bartolo was not appointed. Advise Dr Bartolo as to how he can access information concerning the selection process.

Resolution Introduction You have been asked to advise Dr Bartolo. To fulfil this instruction, you will need to assist him to identify the documents that may be of assistance and give him information on the availability of this information under Freedom of Information legislation. You should describe to Dr Bartolo all the legal issues he will be able to raise in his favour and all those to which he will have to respond. This advice should also include the avenues of review available to Dr Bartolo and the powers of those review bodies.

What documents will assist Dr Bartolo? Dr Bartolo may wish to view documents relating to the selection of appointees to the position of Director and the decision not to appoint him as Director. Documents to which Dr Bartolo may wish to have access include: the successful applicant’s application for appointment to the position of Director; documents submitted in support of the successful application including the statement addressing the selection criteria; curriculum vitae; lists of referees; referee reports; references; [page 303] documents containing expressions of opinion or indicating opinions formed in the course of the work of the selection

committee including short-listings of applicants, pre-interview summaries of applicants’ qualifications and experience; documents upon which members of the selection committee have written notes and rankings in relation to applicants; aidememoires, that is, notes made by members of the selection committee as to their assessment of applicants.

What is the relevant legislation? The federal Attorney-General’s Department is responsible for the selection and appointment of the Director of the Victims Compensation Board. As this agency is a federal agency, the appropriate legislation is the FOI Act (Cth).

The general right of access Dr Bartolo may apply under the FOI Act (Cth) for access to ‘documents’ that are in the possession of an ‘agency’ other than an exempt document: s 11. It would seem that the written information sought by Dr Bartolo is covered by the wide definition of ‘document’ found in s 4(1). Further, there does not appear to be a dispute that the documents are under the control of the agency, the Attorney-General’s Department. There may, however, be some doubt as to whether aide-memoires made by members of the selection committee would be documents of an agency. The issue would be whether these documents are under the control of the agency.

How does Dr Bartolo apply for the documents? Dr Bartolo will need to apply in writing to the Attorney-General’s Department in accordance with s 15 of the FOI Act (Cth). His application must state clearly which documents are sought and include sufficient information to enable the documents to be identified. There are no fees charged for accessing personal information but in relation to other material, a charge may apply. These fees are set out in the Freedom of Information (Fees and Charges) Regulations.

Are the documents exempt? Although the documents appear to be covered by the Act, the ss 3, 3A general right of access is limited if the document is exempt under Pt IV Div 2 of the Act. If the documents sought are ‘conditionally exempt’ under Pt IV Div 3, then according to s 31A access should be granted, unless on balance this would be contrary to the national interest: s 11A(5). When making a determination as to whether access should be granted, the Attorney-General’s Department must consider s 11B and the Information Commissioner’s Guidelines, which are authorised by s 93 of the Act. The most relevant provisions in this case seem to be the public interest conditional exemption — deliberative processes under s 47C and the personal privacy conditional exemption in s 47F. The interpretation of these exemption provisions, particularly the notion of the public interest, is likely to determine whether access is granted. The Act promotes disclosure of documents unless they are exempt (see News Corporation Ltd v National Companies and Securities Commission (1984) 5 FCR 88. The pro-disclosure dimensions of the objects clauses and the High Court’s reinforcement in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; 108 ALR 577 of [page 304] the openness and accountability of Australia’s representative democracy, should persuade decision makers to take a narrow view of the exemption provisions: Kavvadias v Commonwealth Ombudsman (1984) 2 FCR 64; 54 ALR 285. The reforms to the FOI Act, which came into operation after these cases were decided, is more strongly worded in terms of pro-disclosure. Arguably, an agency now would have to present a fairly strong case as to why a conditionally exempt document should not be disclosed.

Applications for appointment and supporting documentation Dr Bartolo may wish to have access to the documents that make up the application of the successful candidate. Many of these documents contain personal information supplied by the applicant. Clearly the applicant’s ‘identity is apparent or may reasonably be ascertained from the document’: see FOI Act (Cth) s 4(1). These documents may be conditionally exempt in accordance with the personal privacy exemption in s 47F. Documents which are conditionally exempt are subject to the national interest test. In s 47F it also expressly states that the conditional exemption is only attracted if disclosure would involve the unreasonable disclosure of personal information of another person. When determining whether this would be the case, the agency should consider the extent to which the information is well known, whether the information could be publicly accessed elsewhere, whether the person is known to be associated with the matters in the document and any other factor the agency deems relevant. Documents which are conditionally exempt, such as under s 47 F, should be provided, unless on balance it would be contrary to the national interest to do so. The public interest in disclosure, recognised by the object of the Act, must be weighed against the public interest in protecting the personal privacy of a third party whose personal information may be unreasonably disclosed by granting access to the documents: Re Chandra and Department of Immigration and Ethnic Affairs (1984) 6 ALN N257; Re Actors Equity Association of Australia and Australian Broadcasting Tribunal (No 2) (1985) 7 ALD 584. Factors which would support the public interest in disclosure would include the preservation and maintenance of public confidence in the administration of justice. It is in the public interest that appointments to the position of Director of the Victims Compensation Board must be appropriately qualified and must be seen to be well chosen and appropriate. Applications are generally made with an expectation that they will be held in confidence and used only for the selection process. Arguably, the disclosure of such applications and supporting information may deter applicants for senior positions, such as the Director of the Board, by the knowledge that their successful applications may be made available to unsuccessful applicants. The public interest which this exemption seeks to protect is the public interest in the protection of privacy. Given this purpose, it would seem that any reference to applicants’ names and addresses should be protected. It may be possible for the documents to be disclosed with this information deleted in accordance with s 22 of the FOI Act (Cth). However, given the seniority of the position, it is likely that relevant information about other short-listed applicants would also disclose who they

were. Moreover, while it might be possible to prepare a summary of relevant [page 305] information which would not disclose this information, the Act does not require that new documents be brought into existence. The curriculum vitae of the successful applicant and the statements supporting the application, with the exception of purely personal information such as phone numbers and addresses, may be disclosed, if the public interest in knowing the background and attitude of the Director of the Victims Compensation Board outweighs the potential appointee’s privacy interests. Arguably, there is also a public interest in the availability of the information indicating the appropriateness of the appointment which would outweigh the privacy interests. This disclosure will depend on how the public interest in disclosure is weighed against the public interest in the protection of the successful applicant’s privacy. It is doubtful whether the referees’ reports will be disclosed. The possibility of affecting referees’ candour would not be relevant to s 47F of the FOI Act (Cth): see Re Kamminga and Australian National University (1992) 26 ALD 585 where this issue was considered in relation to ss 36 and 40(1). However, the referees’ reports may be exempt from disclosure under s 45. Disclosure of the referees’ reports might found an action for breach of confidence because of the convention that referees’ reports are confidential: Re Kamminga and Australian National University . This would not be the case where referees had waived their right to confidentiality.

Advisory Committee documents Apart from aide memoires made by the members of the selection committee, which may not be ‘documents of an agency’, the documents appear to be internal working documents, also known as deliberative process documents. It follows that they may be considered conditionally exempt under s 47C of the FOI Act (Cth). These documents would disclose the committee’s opinions about the various candidates. Release of these documents, which contain personal information, may also involve the unreasonable disclosure of personal information and be conditionally exempt under s 47F. Further, under s 27A, the agency must allow the person whose personal information is being considered to be disclosed an opportunity to be heard as to why it would not be in the national interest for the document to be disclosed. The decision to grant access is a reviewable decision by internal review, review by the Information Commissioner and by the AAT. Section 47C requires that once a document falls within the class of deliberative processes documents, the agency must also show that disclosing the document would be contrary to the public interest. The question then becomes whether the public interest in the availability of information concerning the selection process outweighs the public interest in the proper workings of government which may require the protection of this information from disclosure. The public interest for and against disclosure will need to be weighed. Dr Bartolo’s access to these documents depends on the decision maker’s and the review body’s approach to this public interest test. The application for a high-level public office, the senior nature of the selection panel and the sensitivity of the appointment process, due to s 11B, should not be considered as factors weighing against disclosure. It may be argued that disclosure of information about the selection process would stifle frank discussion and the free flow of debate and deliberation if members of a selection committee were [page 306] to become accountable for the views formed at the early stages of a deliberative process. However, in Harris v Australian Broadcasting Corporation (1983) 5 ALD 545; 50 ALR 551 and in Re Kamminga , the candour and frankness argument was questioned. The fact that the documents were created at a high level is not of itself sufficient to establish that disclosure is contrary to the public interest: Re Kamminga . Further, confidentiality in itself cannot be the basis for the s 47C. There would need to be ‘special circumstances’ justifying the claim or concrete evidence would be required indicating that the work of selection committees deteriorates as a result of disclosure: Re Kamminga . They need to be weighed in the circumstances of the case against competing considerations. It may be argued that disclosure of the selection committee’s attitudes to the background, qualifications and views of the potential Director is in the public interest because of the Director’s role in increasing ‘access to justice’ and administering the victims compensation scheme. This appointment has social significance and it is important for the public to have knowledge that the government has dealt properly with the matter and appointed the appropriate person. It is also in the public interest to discover whether the selection committee has acted with propriety. Although a confidential process, there do not appear to be any ‘special circumstances’, as required by Re Kamminga , that warrant the preservation of the committee’s confidential process. The most persuasive argument against disclosure seems to be that the documents were created at an early stage. The release of such opinions at early stages of the selection process may be considered unreasonable and of no public benefit. However, confusion and unnecessary debate under s 11B are not to be considered by the agency when working out on balance whether disclosure is in the national interest. Further, the agency must, when considering the national interest in disclosing documents, consult the Information Commissioner guidelines. Arguably, however, the public will have an opportunity to judge for themselves the appropriateness of the appointment since they will be able to read decisions and policy directions made by the Director. If the curriculum vitae of the successful applicant is disclosed with appropriate deletions, it would satisfy the public interest in knowing the nature of the successful applicant. With this restriction, the public interest test may be satisfied without causing confusion by the release of documents revealing opinions produced at an early stage and without affecting the frank and candid nature of highlevel selection committee deliberations.

Agency’s decision Provided the documents are not exempt and Dr Bartolo has complied with all the procedural requirements, the agency must grant access: FOI Act (Cth) s 11. However, under s 22, the agency may choose to delete exempt matter, such as phone numbers and addresses, and give the applicant a copy of the document without the exempt matter. This appears to be the appropriate approach in respect of the successful applicant’s contact details. If the interpretation of the ss 47C and 47F conditional exemptions adopted by the agency weigh against disclosure, the agency may refuse access under s 24. If access is refused, the agency must give reasons for this decision: s 26.

[page 307]

Conclusion If the department refuses Dr Bartolo access to the documents, he may appeal the decision. First, he should apply to the Attorney-General’s Department for internal review of the decision refusing access to the documents (FOI Act (Cth) s 54) or alternatively to the Information Commissioner under s 54L(2)(a). If the decision is affirmed on internal review, Dr Bartolo should apply to the Information Commissioner for review of the decision (ss 26 and 54L(2)(b)). If Dr Bartolo is not satisfied with the decision of the Information Commissioner’s review, he may then apply to the AAT for review: s 57A. The AAT has jurisdiction to review a decision made by the Information Commissioner under s 55K: s 57(1)(a). The AAT must decide whether there are reasonable grounds for claiming the exemption. The AAT can also review a decision by the agency itself or a minister: s 58. If the AAT affirms the decision under review, Dr Bartolo may appeal this decision to the Federal Court on a question of law (AAT Act (Cth) s 44) or make an application for judicial review under the ADJR Act.

Further tutorial discussion 1. Section 15AA of the Acts Interpretation Act 1901 (Cth) provides that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act must be preferred to a construction that would not. Do the objects of the FOI Act accurately reflect the underlying rationale and philosophy of the Act? 2. In Re Kamminga and Australian National University (1992) 26 ALD 585, the AAT stated that it would need concrete evidence before accepting that disclosure of referees’ reports would not be contrary to the public interest. Suppose it was wrong. How would an agency be able to prove this?

Further reading Australian Law Reform Commission and Administrative Review Council, Freedom of Information , Issues Paper 12, September 1994; Discussion Paper 59, June 1995. Australian Law Reform Commission, Report No 77 and Administrative Review Council, Report No 40, Open Government: A Review of the Federal Freedom of Information Act 1982 , AGPS, Canberra, 1995. Bayne, P and Rubinstein, K, ‘Freedom of Information and Democracy: A Return to Basics’ (1994) 1 Australian Journal of Administrative Law 107. Campbell, M, ‘Freedom of Information Legislation in Australia: A Comparison’ in J McMillan (ed), Administrative Law: Does the Public Benefit? , Australian Institute of Administrative Law (AIAL) Forum, AIAL, Canberra, 1992, pp 375–85. [page 308] Cossins, A, ‘Revisiting Open Government: Recent Developments in Shifting the Boundaries of Government Secrecy under Public Interest Immunity and Freedom of Information Law’ (1995) 23 Federal Law Review 226. Douglas, R, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014. Fraser, R, ‘W here to Go Next with the FOI Act? The Need for FOI Renewal — Digging In, Not Giving Up’ (2003) 38 AIAL Forum 57. Terrill, G, Secrecy and Openness: The Federal Government from Menzies to Whitlam and Beyond , Melbourne University Press, Melbourne, 2000. Zifcak, S, ‘Freedom of Information: Back to Basics’ in J McMillan and R Creyke (eds), Administrative Law — The Essentials , Australian Institute of Administrative Law, Canberra, 2002, pp 93–104.

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PART 5 Other Avenues of Accountability

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15 The Ombudsman General In Part 2 we considered the jurisdiction, powers, function, procedure and remedies of merits review bodies. In Part 3 we considered the powers, functions, reviewability, procedure and remedies of courts exercising judicial review. In this part, we consider other investigative bodies. In this chapter, we focus on the Ombudsman’s jurisdiction, investigatory powers, and remedial powers.

Objectives After studying this chapter, you will understand: 1. 2. 3. 4. 5. 6.

the role of an Ombudsman; the jurisdiction of an Ombudsman; the investigatory powers of the Ombudsman; the procedure adopted by the Ombudsman; the scope and purpose of an Ombudsman’s investigation; and the remedial powers available to an Ombudsman.

1 Introduction 15.1.1 Origins The appointment of a special official to hear the grievances of the public has been a feature of different societies for centuries. In Roman society, a ‘tribune’ was appointed to protect the interests and rights of the plebeians from the patricians. In 1809, the office of an Ombudsman, as we know it, was founded in Sweden to receive complaints from the public and inquire into action undertaken by the government. The growth of the welfare state after World War II and a growing awareness of the limitations of the judicial system to redress defective administration, led to the establishment of the office of an Ombudsman [page 312] in various English speaking countries. New Zealand was the first English-speaking country to adopt an Ombudsman. Western Australia adopted an Ombudsman in 1971 and was followed by the other states and then the Commonwealth in 1976. In Western Australia the statutory and formal title is Parliamentary Commissioner for Administrative Investigations.

15.1.2 Definition The Ombudsman Committee of the International Bar Association defines an Ombudsman as: An Office provided for by the Constitution or by action of the Legislature or Parliament and headed by an independent, high-level public official, who is responsible to the Legislature or Parliament, who receives complaints from aggrieved persons against Government agencies, officials and employees, or who acts on [his] own motion, and who has the power to investigate, recommend corrective action and issue reports: [Judge Anand Satyanand, Ombudsman ‘The Role of the Ombudsman’ (1996) New Zealand Law Journal 206 at 206].

15.1.3 Ombudsman’s role Subject to adequate resourcing, a number of functions are associated with the Ombudsman. These include: resolution of complaints by individuals about public agencies; improvement of the overall standard of government administration by stimulating an environment of debate by agencies and consumers as to what standards of service and decision making should be expected in the public sector and recommending changes to the law or to agencies’ policies or procedures: Commonwealth Ombudsman, Annual Report 2012-2013 , AGPS, Canberra, 2013, p 8; identification of systemic problems, as a result of individual complaints and making recommendations for

change; monitoring of the implementation of decisions made by external review bodies, including the implementation of decisions and the implementation of implications of the review findings for public administration: R Creyke ‘Administrative Law: Developments Under a Coalition Government’ in (1997) 48 Administrative Review 13 at 18; monitoring of the implementation and systemic impact of its own decisions: ibid at 18. The complaint resolution role has generally been regarded as the Ombudsman’s essential function. However, individual complaints are often symptomatic of an underlying problem. The Access to Justice Report suggested that if the Ombudsman were to focus more on systemic issues, all people in similar circumstances to the complainant would be advantaged and access to justice could be increased: see Access to Justice Advisory Committee, Access to Justice: An Action Plan , Canberra, AGPS, 1994. Further, these different functions coalesce, if we consider the Ombudsman as a reviewer of the system of administration and a caretaker of rights against defective public administration. [page 313]

15.1.4 Ombudsman in Australia In Australia, the office of Ombudsman is not provided by the Constitution. Instead, legislation establishing the offices of Ombudsman exists at the Federal level and in all states and territories: Ombudsman Act 1976 (Cth) (‘Ombudsman Act’); Ombudsman Act 1989 (ACT); Ombudsman Act 1974 (NSW ); Ombudsman (Northern Territory) Act 1980 (NT); Ombudsman Act 1972 (SA); Ombudsman Act 1978 (Tas); Ombudsman Act 1973 (Vic); Ombudsman Act 2001 (Qld) — originally the Parliamentary Commissioner Act 1974 (Qld); Parliamentary Commissioner Act 1971 (WA). These statutes provide for the establishment, functions, powers and duties of the Ombudsman: see 15.2.1 –15.2.24 for details relating to the Commonwealth Ombudsman.

15.1.5 Public or private authorities? The administrative law remedies we considered in the earlier chapters only apply to persons affected by the activities of government officials. Similarly, the Ombudsman’s jurisdiction is limited to such ‘public’ authorities: see 15.2.5 . This means that the Ombudsman cannot consider the actions of private sector entities. Traditionally, the only accountability mechanisms for private sector bodies are private law remedies and the discipline of the market. Private law remedies are usually prohibitively expensive and may be inadequate. In many cases, there may be no contract between the service provider and the client, so that contract remedies will be unavailable. Remedies under tort law only apply where loss or damage has been suffered and require court proceedings. This issue has been squarely raised by the contracting out of government services and the creation of government business enterprises. The former Commonwealth Ombudsman noted that consumers could not recover losses, caused by the actions of contracted service providers, and further were required to ‘prove it’ before a situation could be remedied or were subjected to the buck-passing of responsibility between various agencies: Commonwealth Ombudsman, Annual Report 1995–96 , AGPS, Canberra, 1996, pp 9–10. Consequently, the former Ombudsman recommended that the Ombudsman’s jurisdiction should be broadened: to receive and investigate complaints in all cases where agencies are spending public money on services for the public. In essence, I should be able to “follow the dollars” from the Commonwealth to the service provider whoever that may be: Annual Report 1995–96 , AGPS, Canberra, 1996, pp 17–18. Under s 3B of the Ombusdsman Act the Commonwealth Ombudsman has jurisdiction over those parties, who provide goods or services to or on behalf of a Commonwealth government department or prescribed authority.

15.1.6 Private industry Ombudsman Recently, complaints review bodies have been created to investigate the activities of certain private sphere bodies, which affect the public interest. Bodies such as the Telecommunications Industry Ombudsman and Banking Industry Ombudsman were established. These schemes are not governed by legislation but by agreement. Since 2010, the Telecommunications and Banking Industry now come under the Financial Ombudsman Service Scheme, as do insurers, financial planners and mortgage brokers, who all agree to be bound by the Ombudsman’s decisions, if the decision is acceptable to the complainant. [page 314] The agreement, and the Terms of Reference under it, set out the Ombudsman’s powers, jurisdiction and procedure: see Financial Ombudsman Service Terms of Reference (available at < www.fos.org.au > ). The Ombudsman generally seeks to promote, by conciliation, a settlement or withdrawal of the complaint by agreement between, for example, the bank and complainant. If agreement is not reached, the Ombudsman may, in certain situations, make a determination, which may include the payment of money, the release of a security for a debt or a variation of the contract.: Terms of Reference, cls 8, 9. In relation to other industry Ombudsmen, see B Barbour, ‘W hat are the Essential Features of an Ombudsman?’ in J McMillan, and R Creyke (eds), Administrative Law — The Essentials , AIAL, Canberra, 2002, 53, 54–56.

15.1.7 Independence of the Ombudsman The essence of the position of the Ombudsman is that they provide independent review and are headed by a person independent of government and industry. In 1994, prompted by the trend to use the name Ombudsman for private complaints review mechanisms, the then Commonwealth Ombudsman and the then Banking Industry Ombudsman released a draft code outlining minimum criteria to ensure the independence, accountability and effectiveness of Ombudsmen. Elements of this code include the

Ombudsman’s independence of the industry; that the jurisdiction should give total industry coverage; that those investigated should be bound by the decisions, whereas the complainant should not be bound and that reasons for the decisions should be provided to the parties: (1994) 39/40 Administrative Review 60–61. In the private sector industry schemes, where the industry pays for the scheme itself, the organisational structure seeks to ensure the independence of the Ombudsman by inclusion of consumer representatives.

15.1.8 Supervision Independence does not obviate the need for oversight of the Office of the Ombudsman. The decisions and conduct of the Ombudsman are subject to judicial review: see 15.2.24 . Further, all special reports of the Commonwealth Ombudsman are automatically referred to the Senate Standing Committee on Constitutional and Legal Affairs for consideration and if necessary, to provide a report. In New South Wales, the Ombudsman is responsible to a Parliamentary Committee: Ombudsman Act 1974 (NSW ) Pt 4A, as is now the case in Queensland under the Ombudsman Act 2001(Qld) Pt 6.

15.1.9 Law or administration? The Ombudsman draws on a range of skills and expertise to fulfil the functions prescribed by the legislation. In the industry schemes, knowledge of the industry itself is useful. For instance, the Financial Ombudsman Service (FOS) attempts to resolve disputes and reach a solution that is fair in all the circumstances, by reference to criteria of ‘law, applicable industry codes or guidance as to practice, good industry practice and previous relevant decisions of the FOS or a Predecessor Scheme’: cl 8.2. Further, the FOS may consult industry and consumer advisors and may obtain expert advice from industry, law, medicine or the building industry: cl 8.3 In the case of government Ombudsmen, there is a growing acknowledgment that the Ombudsman’s main contribution is to administration rather than to law: A Cameron, ‘Future Directions in Administrative Law: the Ombudsman’ [page 315] in J McMillan (ed), Administrative Law: Does the Public Benefit , Australian Institute of Administrative Law Forum, AIAL, Canberra, 1992, 202 at 208.

15.1.10 The Ombudsman contrasted with merits and judicial review There are a number of significant distinctions between the Ombudsman and these other avenues of review. For instance: government Ombudsmen lack determinative powers. Unlike merits review bodies, they cannot substitute a decision for that of an entity. Further, unlike decisions of a court, the Ombudsman’s decisions do not bind the relevant entity. (The position is different in relation to some private and specialised semi-government Ombudsmen: see C Petre, ‘Commentary: W hat are the Essential Features of an Ombudsman’ in McMillan and Creyke (2002, 66–67); the Ombudsman does not have the power to make ‘findings’. Their function is to investigate, report, provide reasons and make suggestions, not make determinations on issues: see 15.2.15 ; in resolving complaints, the Ombudsman often acts as the impartial mediator between an entity and complainant; when the Ombudsman considers a complaint justified, the Ombudsman may recommend systemic changes to ensure that the defective administrative practice is amended. The following discussion of the operation of the Ombudsman will highlight other differences between the Ombudsman and these other avenues of review.

2 The Commonwealth Ombudsman 15.2.1 The pattern of Ombudsman Acts Each of the Acts noted at 15.1.4 provides for a person to be appointed to the office and sets out the jurisdiction, procedures and powers of the Ombudsman. Apart from some differences in wording and scope, most of the statutes follow the same pattern. In this section we will focus on the Commonwealth Ombudsman.

15.2.2 Establishment of office of Ombudsman The office of the Ombudsman is established by the legislation itself: Ombudsman Act, s 4(1). Part II of the Ombudsman Act deals with the Commonwealth Ombudsman and provides that the Ombudsman may be assisted by three Deputy Ombudsmen. One of these Deputy Ombudsmen may be designated as the Deputy Ombudsman for Freedom of Information (FOI) matters. The Ombudsman may also choose to be called the Taxation Ombudsman, when exercising powers in relation to the Australian Taxation Office and has established a Special Adviser on Taxation, who focuses on problems arising between taxpayers and the Australian Taxation Office. Similarily, the Ombudsman may also be called the Immigration Ombudsman, the Law Enforcement Ombudsman or the Norfolk Island Ombudsman: s 4(1). The Commonwealth Ombudsman concurrently also holds the office of Defence Force Ombudsman: Ombudsman Act, s 19B, Pt IIA. [page 316] The Commonwealth Ombudsman is also the Ombudsman for the Australian Capital Territory: see ACT SelfGovernment (Consequential Provisions) Act 1989 (ACT); Ombudsman Act 1989 (ACT).

15.2.3 Function The Ombudsman has a range of functions, and is obliged to investigate complaints made under the Act and to perform other functions conferred by the Ombudsman Act : s 4(2). These functions are further

described by s 5(1). The s 5(1)(a) function relates to the individual complaints role, whereas the s 5(1) (b) function may be seen to cover the other functions discussed at 15.1.3 , which are directed at the improvement of public administration. The diagram below outlines the process undertaken, when a complaint is made to the Ombudsman. You should refer to this diagram and the legislation, as you work through the material below.

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Jurisdiction 15.2.4 Agencies subject to investigation As indicated by s 5, the Ombudsman has power to investigate Commonwealth government departments and ‘prescribed authorities’. All such bodies are within the Ombudsman’s jurisdiction, unless expressly excluded. The Ombudsman Act defines a ‘prescribed authority’ as a person or body established for a public purpose. Generally, such bodies are established by statute, such as Australia Post. A person or body may also be deemed a ‘prescribed authority’ by regulation, or by virtue of the Ombudsman Act itself, as in the case of the Australian Federal Police: Ombudsman Act s 3(9).

15.2.5 Agencies not subject to investigation All departments and prescribed authorities are subject to the Act, unless expressly excluded. Certain bodies are excluded from the definition of ‘prescribed authority’, for example, incorporated companies and associations, persons or bodies specifically excluded by regulation, quasi-judicial bodies, judges, Royal Commissions and ministers: Ombudsman Act ss 3(1), 3(15) and 5(2). Further, as a result of privatisation, corporatisation and the contracting out of services to the private sector, some entities may cease to be subject to the Ombudsman’s scrutiny. This has been somewhat addressed by s 3 BA, which refers to Commonwealth service providers. W here such a provider meets the requirements of the statutory provision, then they will fall within the Ombudsman’s jurisidiction. Also see 15.1.5 . Section 3A (1) of the Ombudsman Act provides that ‘Commonwealth-controlled companies’ (incorporated companies in which the Commonwealth has an interest) are prescribed authorities, unless expressly excluded by the Ombudsman Regulations 1977 (Cth) regs 4–6, Sch 1–3. This means that the Governor-General has the delegated law-making power to determine whether government business enterprises are subject to the Ombudsman’s scrutiny.

15.2.6 ‘Action that relates to a matter of administration’ The Ombudsman’s jurisdiction is further limited by the phrase ‘action, being action that relates to a matter of administration’. ‘Action’ is clearly defined to include both action and inaction. It includes a reference to the making of a decision or recommendation, the formulation of a proposal and also the failure or refusal to take any action, to make a decision or recommendation or to formulate a proposal: Ombudsman Act s 3(7).

15.2.7 ‘Matter of administration’ This phrase has inexact boundaries and has not been the subject of judicial interpretation by the High Court or Federal Court. In the Canadian case, Re British Columbia Development Corp and Friedmann (1984) 14 DLR (4th) 129, Dickson J noted at 149 that: … the phrase “a matter of administration” encompasses everything done by governmental authorities in the implementation of government policy. I would exclude only the activities of the Legislature and the courts from the Ombudsman’s scrutiny.

In contrast, the Victorian Supreme Court in Glennister v Dillon [1976] VR 550 precluded the Victorian Ombudsman from investigating matters of administration [page 318] which were carried out within the executive arm of government but which related to the judicial or legislative arms of government. In that case, the Ombudsman was precluded from investigating complaints about delay by the Crown Solicitor in bringing prisoners to trial. The Commonwealth Ombudsman prefers the Canadian approach and has rejected the Victorian ‘elevation of the doctrine of separation of powers … to restrict the activities of the Ombudsman’: Commonwealth Ombudsman Fifth Annual Report , AGPS, Canberra, 1981–1982, p 24. In preference, the Commonwealth Ombudsman has recommended that decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act (Cth)) concerning the phrase ‘administrative character’ for the purposes of that Act should be considered as persuasive authority on the meaning of the term: Commonwealth Ombudsman Fifth Annual Report , AGPS, Canberra, 1981–1982, p 23. This phrase was discussed at 4.2.8 .

15.2.8 ‘Matter of administration’ and matters of policy In states where a distinction is drawn between matters of policy and matters of administration, the Ombudsman does not have jurisdiction to investigate matters of policy: Booth v Dillon [1976] VR 434; City of Salisbury v Biganovsky (1990) 54 SASR 117. However, the Commonwealth Ombudsman has expressly rejected this distinction and claimed that the term ‘practice’ in s 15 of the Ombudsman Act is wide enough to include administrative policies: Commonwealth Ombudsman, Fifth Annual Report , AGPS, Canberra, 1981–1982, p 24. This approach was rejected in City of Salisbury v Biganovsky (1990) 54 SASR 117 at 123 where Mulligan J noted that ‘practice’ refers to practices, which have developed in the course of administering policies, not the policies themselves. The Commonwealth Ombudsman has, however, distinguished between complaints, which raise policy issues as part of a review of administrative action and those which are directed solely to government or legislative policy: Third Annual Report , AGPS, Canberra, 1980, pp 44–45. The latter policies are unlikely to be investigated at the Ombudsman’s own motion, although they would be investigated in response to a complaint.

15.2.9 ‘Matter of administration’ and commercial decisions Another contentious issue is whether ‘matters of administration’ include commercial decisions made by departments or prescribed authorities. In the Canadian case, Re British Columbia Development Corp and Friedmann (1984) 14 DLR (4th) 129, Dickson J noted at 146 that: There is nothing in the words “administration” or “administrative” which excludes the proprietary or business decisions of governmental organizations. On the contrary, the words are fully broad enough to encompass all conduct engaged in by a governmental authority in furtherance of government policy — business or otherwise.

The Commonwealth Ombudsman appears to adopt the same approach and investigates complaints by unsuccessful tenderers regarding government decisions to award contracts. In one instance the government declined to implement the Ombudsman’s recommendation that an ex gratia award of compensation be made [page 319] on the ground that the precedent should not be consolidated: The Industrial Sugar Mills Case Involving the Department of Defence Special Report No 2 , Parliamentary Paper 144 of 1986. After this case, the Ombudsman Act was amended so that the Ombudsman’s discretion includes a power to decline to investigate a complaint, which relates to a commercial activity of a Department or prescribed authority: s 6(12). The Ombudsman now warns complainant tenderers that although an investigation can be conducted, it will not result in the recall of the tender or compensation, but that compensation for costs in the preparation of the tender can be recommended.

15.2.10 Action excluded from jurisdiction Certain types of action are expressly excluded from jurisdiction: Ombudsman Act s 5(2). For instance, action taken by a minister is excluded by s 5(2)(a), as the doctrine of ministerial responsibility is thought to provide an appropriate mechanism for accountability. However, the actions of departmental officers, who exercise the minister’s statutory powers, as delegates, are not excluded. Action taken in relation to employment in the Australian Public Services is also excluded: 5(2)(d). The rationale for this exclusion is that many of these decisions are reviewable by the Merit Protection Review Agency.

15.2.11 Discretion not to investigate W here the Ombudsman has jurisdiction to investigate a complaint, the Ombudsman may, in her or his discretion, decline to investigate a complaint: s 6. There are three broad categories under which this discretion may be exercised: nature of complaint and conduct of complainant: — where the complainant has delayed in making the complaint for more than 12 months; — where the complaint is considered frivolous, vexatious or not made in good faith: s 6(1)(b)(i); — where the complainant does not have a sufficient interest: s 6(1)(b)(ii); — where the investigation of the action is not warranted in the circumstances: 6(1)(b)(iii); — where the complainant has not complained first to the relevant department or authority, the Ombudsman will delay investigation, until such complaint is made and the department has had adequate time to redress the complaint: ss 6(1A), (1B) and (1C);

where there is an alternative avenue of review: — If the complainant has sought review by a court or tribunal, the Ombudsman will not normally investigate the complaint, unless satisfied that there are ‘special reasons justifying investigation’: s 6(2). For example, if an applicant, who has been unsuccessful in the AAT, has a strong case against an administrator for misleading advice, the Ombudsman may investigate the matter, as it may be unreasonable to expect the complainant [page 320] to commence further legal action for damages for negligence against the administrator; — if the complainant has an unexercised right to seek review by a tribunal or court, the Ombudsman will not investigate the matter, unless she or he considers that the complainant’s failure to exercise the right of review was not ‘unreasonable’: s 6(3). The Ombudsman’s approach to whether the complainant’s action is ‘reasonable’ varies according to the circumstances of the case. However, if the cost of pursuing the legal remedy is disproportionate to the value of the matter in dispute, the Ombudsman is more likely to investigate the matter: Fourth Annual Report , AGPS, Canberra, 1981, p 13. Other factors, which may persuade the Ombudsman to investigate the matter, are the age and health of the complainant and the difficulty of establishing facts. This issue arises most frequently where the alternative avenue of review is the AAT. Administrative arrangements reached between the two organisations provide for the referral of matters. The Ombudsman generally encourages complainants to seek review by the AAT, as it has determinative powers. However, in the case of FOI matters, the Ombudsman’s extensive powers to require production of and inspect documents may resolve the matter more effectively and quickly; — the availability of judicial review under the ADJR Act (Cth) is not, however, a reason for the Ombudsman to decline to investigate: ADJR Act (Cth) s 10(1)(b); — where the Department or authority has an adequate internal review mechanism, the Ombudsman may allow internal review to run its course before intervention: s 6(4); where another mechanism can deal with the complaint more effectively: — where the matters falls within the jurisdiction of another investigatory body, the Ombudsman may decide not to investigate the action and transfer the matter, including all documents in her or his possession or control, to the relevant authority after giving notice in writing to the complainant: s 6(4D)–6(11B). Investigatory bodies specified in the Act include the Australian Public Service Commissioner, the Australian Communications and Media Authority and the Parliamentary Service Commissioner; — where the action relates to a commercial activity of a department or authority and it could be dealt with more effectively by the relevant industry Ombudsman, the Ombudsman may decide not to investigate the action and transfer the matter, including all documents in her or his possession or control, to the relevant authority after giving notice in writing to the complainant: s 6(13)–6(15). Once the Ombudsman decides not to investigate a complaint, she or he must inform the complainant and agency involved of the decision and provide reasons for the decision: s 12: see 13.3.7 . [page 321]

Procedure 15.2.12 Initiating investigations? An investigation may be initiated by complaint or at the Ombudsman’s own motion. This own motion power means that the Ombudsman can investigate matters without receiving a specific complaint. The Ombudsman accepts complaints from citizens, permanent residents, businesses, community groups and people from organisations, who feel they have been disadvantaged by a Commonwealth government agency’s actions or decisions. Although there are no standing requirements for a complaint, the Ombudsman may, in her or his discretion, refuse to investigate a complaint, where the person does not have a ‘sufficient interest’ in the matter: Ombudsman Act s 6(1)(ii). Also see 15.2.11 . However, the Ombudsman may nevertheless decide to investigate the matter at her or his own motion because the Ombudsman’s objective is the betterment of government administration. In contrast to this Commonwealth scheme, the Queensland legislation requires the person to be ‘directly affected’; Ombudsman Act 2001(Qld) s 20(2). The Tasmanian legislation requires a complainant to be ‘personally aggrieved’ by the subject matter of the complaint, before the Ombudsman can investigate the matter. The Victorian legislation requires the complainant to be a ‘person affected’ but also gives the Ombudsman discretion to investigate a complaint, where he or she considers it proper to do so: Ombudsman Act 1973 (Vic) s 14(3). In New South Wales ‘any person’ may make a complaint to the Ombudsman but the Ombudsman may decline to investigate a matter if the Ombudsman is of the opinion that the person does not have a sufficient interest in the matter: Ombudsman Act 1974 (NSW ), ss 12(1) and 13(4)(b)(iv).

15.2.13 Making complaints Complaints can be made orally by telephone or in person, as well as in writing: Ombudsman Act s 7. The Ombudsman may, however, require the complainant to reduce the complaint to writing: Ombudsman Act s 7(2). Once a complainant tells the Ombudsman the facts, their formal role is over, although the Ombudsman will furnish them with particulars of the completed investigation: Ombudsman Act s 12(3).

15.2.14 Access Ombudsman investigations are free of charge and informal. The majority of complaints are

initially made by telephone. Complaints are investigated as quickly and informally as possible. This informal process enables the Ombudsman to deal with a large number of complaints swiftly. In recent years, the Ombudsman has tackled the limited community awareness of the role and implemented various practices to increase accessibility, such as a toll-free telephone line and educational and outreach projects. The Ombudsman also appointed Aboriginal and Torres Strait Islander Liaison Officers to ensure that indigenous issues are handled with cultural sensitivity.

15.2.15 Investigations Formal adversarial hearings, where the complainant and the agency present their cases are rarely held. In preference, the Ombudsman adopts an inquisitorial role and discusses the matter with the complainant and agency or seeks to conciliate the complaint. There are two types of procedures followed by the Ombudsman: [page 322] Preliminary inquiries . After a complaint or at her or his own motion, the Ombudsman may make inquiries of the principal officer of a Department or authority to determine whether the matter is within jurisdiction and whether the Ombudsman may in her or his discretion, decide not to investigate the matter: Ombudsman Act s 7A(1). Most cases are resolved at this point. Formal investigations . Only a small proportion of complaints proceed to formal investigation. Before commencing an investigation, the Ombudsman is obliged to inform the responsible minister and the principal officer of the entity concerned: Ombudsman Act s 8(1). During this formal investigation, the Ombudsman is not bound by the rules of procedural fairness, as the Ombudsman is not obliged to give the complainant or any other person an opportunity to appear: Ombudsman Acts 8(4). However, where the Ombudsman intends to make a report, which is expressly or impliedly critical of a Department, authority or person, that person or body must be given an opportunity to make oral or written submissions: Ombudsman Act s 8(5); Kavvadias v Commonwealth Ombudsman (No 2) (1984) 2 FCR 64 at 80. Further, before forming a final opinion adverse to an agency, the minister may request that the Ombudsman consult with her or him: Ombudsman Act 8(9). The following case considers the Ombudsman’s obligations. I n Chairperson, Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 63 FCR 163, the Chairperson of the Aboriginal and Torres Strait Islander Commission (ATSIC) sought orders prohibiting publication of the Ombudsman’s draft and final report. It was argued that the report was ultra vires , as it contained findings relating to the guilt of criminal and disciplinary offences. It was also argued that procedural fairness was denied and that the reasons were insufficient. Justice Einfeld found that some of the statements in the report amounted to findings and therefore were ultra vires and could not be published in that form. The legislation gives the Ombudsman the express power to report her or his ‘opinions’. However, it does not give the Ombudsman power to make ‘findings’. This is reinforced by the fact that the Ombudsman’s function is investigative and not determinative. Consequently, the Ombudsman could not report findings of individual guilt but could report opinions, which are critical of individuals. Justice Einfeld also found that the Ombudsman had breached the duty to observe procedural fairness. In accordance with s 8(5), before completing an investigation, the Ombudsman must afford the object of the proposed criticism an opportunity to make written or oral submissions. Justice Einfeld considered that the purpose of the provision is to enable the Ombudsman to alter the report with the benefit of submissions. The provision does not require that the exact form of words contemplated for the report be put to the individual concerned but that ‘it is sufficient if the substance of the proposed criticism is put’: at ALR 257. However, Justice Einfeld held that allegations contained in the final report, concerning a deliberate cover-up by ATSIC, which was designed to protect certain individuals, had not been put to the applicant. Consequently s 8(5) had been breached. [page 323]

15.2.16 Confidentiality Unlike the investigative agencies discussed in Chapter 16 , the Ombudsman conducts investigations in private. This confidentiality requirement is the only statutory requirement concerning the conduct of investigations: Ombudsman Act s 8(2). Secrecy provisions protect information communicated during an investigation: Ombudsman Act s 35. This information may, however, be disclosed in the Ombudsman’s final report: Ombudsman Act s 35(4), or if it is otherwise in the public interest: Ombudsman Act s 35A. Further, the disclosure of answers given to questions posed by the Ombudsman, during an investigation, are not admissible as evidence in any legal proceedings against that person, except proceedings for failing to comply with a request from the Ombudsman, or supplying the Ombudsman with misleading or false information or wilfully hindering the Ombudsman in the course of her or his functions: Ombudsman Act s 9(4). The effect of the Freedom of Information Act (Cth) (FOI Act (Cth)) on the Ombudsman’s functions was considered in the following cases. I n Kavvadias v Commonwealth Ombudsman (No 1) (1984) 1 FCR 80; 52 ALR 728, the Ombudsman had refused to release a draft report. The Ombudsman claimed the draft report was exempt under s 38 of the FOI Act (Cth), which provided that a document is exempt, ‘if there is in force an enactment applying specifically to information of a kind contained in the document and prohibiting persons referred to in the enactment from disclosing information of that kind … ’. The Ombudsman argued that s 35 of the Ombudsman Act was the relevant secrecy provision, which precluded officers of the office of Ombudsman from divulging information acquired by virtue of being an officer. The AAT had held that the draft report was exempt under s 38 of the FOI

Act (Cth), as the Ombudsman Act constituted a code for the conduct of private and confidential investigations: Re Lucire and Commonwealth Ombudsman (1983) 5 ALN N223. On appeal to the Full Federal Court, the decision was set aside and remitted to the AAT. The court held that the Ombudsman Act cannot be taken as constituting a code, which brings s 38 of the FOI Act into operation, nor is s 35 of the Ombudsman Act an overriding secrecy provision which protects documents from disclosure under the FOI Act (Cth). Further, s 38 is directed to the nature of information contained in the document and not the capacity of the person who received the information. The Ombudsman’s duty is to investigate ‘and what he may regard as relevant to an investigation cannot sensibly be comprehended as a genus’: at ALR 733–734. I n Kavvadias v Commonwealth Ombudsman (No 2) (1984) 2 FCR 64; 54 ALR 285, the issue was whether information held by the Ombudsman was exempt under the internal working documents exemption contained in s 36 of the FOI Act (Cth). Sheppard J held that draft reports and other information may be exempt from disclosure under this internal working documents exemption. However, the purely factual material, was outside the exemption provided by s 36(5) and was therefore made available. Sheppard J’s decision not to order disclosure of the draft report was based on the following reason (at ALR 302): On balance it would be contrary to the proper working of government for there to have been published an earlier report in which criticism, no longer maintained, was included.

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15.2.17 Powers W hen conducting an investigation, whether initiated by a complainant or at her or his own motion, the Ombudsman has wide investigatory powers. The Ombudsman may obtain information and make such inquiries as she or he thinks fit: Ombudsman Act s 8(3). The Ombudsman also has powers to: compel the production of information and the giving of testimony: s 9; examine witnesses under oath: s 13; and enter and inspect Commonwealth premises: s 14. Failure to comply, without reasonable excuse, with an Ombudsman’s request, the wilful obstruction of an investigation and the furnishing of false or misleading material are all offences under the Act: s 36.

15.2.18 Power to obtain information The Ombudsman’s powers to obtain information are broad and override secrecy provisions in other legislation, Crown privilege and legal professional privilege: s 9(4). However, the Attorney-General may certify that the disclosure of information relating to a particular matter would be contrary to the public interest. In such situations, the Ombudsman is not entitled to require the information be furnished or the documents to be produced: Ombudsman Act s 9(3). W ithout the relevant information, the Ombudsman may be precluded from investigating the complaint. It is rare for the Ombudsman to have to use the s 9 powers, partly, perhaps, because their existence means that agencies will normally provide the information voluntarily. However, the power is occasionally used, partly as a result of agency recalcitrance, and partly because officials may want the protection from defamation, which comes from their compulsorily providing information.

Remedies 15.2.19 Scope of investigation The purpose of the Ombudsman’s investigations is to inquire into defective administration, including whether an administrator has unreasonably delayed the exercise of a power: Ombudsman Act s 10(1). As in the case of merits review by tribunals, which was considered in Part 2 , the investigation canvasses both the merits and the legality of the action. However, the Ombudsman’s function differs from these merits review tribunals, as the Ombudsman does not ‘stand in the shoes’ of the primary decision maker. Consequently, the Ombudsman cannot substitute her or his judgment for that of the primary decision maker. In the Third Annual Report 1979–1980 , the Ombudsman noted (at p 18) that: … I am concerned not to create the impression that I should wish to substitute my own subjective view on how a matter should be dealt with, but at the same time it is obviously open to me to make a finding that an action is unreasonable or unjust even though the official involved is of contrary opinion.

15.2.20 Action assessed against criteria Section 15 of the Ombudsman Act defines the criteria against which the action is assessed. Some of these criteria reflect the grounds of review discussed in Part 3 , such as unreasonableness, relevant and irrelevant considerations and error of law. However, the criteria extend beyond the lawfulness of the action to compliance with notions of good administration. [page 325] For instance, the Ombudsman’s consideration of reasonableness extends beyond the limitations of Wednesbury unreasonableness and is assessed by reference to general community values and prevailing community expectations: E Biganovsky, ‘New Values for Old? Is the Review Genie Trapped inside the Lamp of Scrutiny’ in S Argument (ed), Administrative Law and Public Administration: Happily Married or Living Apart Under the Same Roof? , Australian Institute of Administrative Law Forum, AIAL, Canberra, 1993, 279 at 283; see 9.1.1 . The Ombudsman may form an opinion that the action was ‘unjust, oppressive or improperly discriminatory’, even if it was in accordance with a rule of law, provision of an enactment or a practice: Ombudsman Act s 15(1)(a)(ii) and (iii). The Ombudsman also has the broad power to find that an action was based on a mistake of fact:

Ombudsman Act s 15(1)(a)(iv), or was ‘in all the circumstances, wrong’: Ombudsman Act s 15(1)(a)(v). These criteria appear to cover all facets of the decision-making process, including moral values

15.2.21 Reports to department or prescribed authority The Ombudsman has no determinative power. Their powers are limited to persuasion, reasoning, reports and possible intimidation through the threat of public embarrassment. If the Ombudsman finds a complaint to be justified, in their report of the investigation, the Ombudsman may recommend that the agency take some action to put the matter right: Ombudsman Act s 15. The reasons for this opinion and any recommendations should be included in this report: Ombudsman Act s 15(3). The Ombudsman may recommend that an agency apologise; reconsider or change the decision; alter its rules or procedures; or, in special circumstances, pay compensation for losses caused by the agency’s decision or action. In these reports, the Ombudsman may not express findings of individual guilt but may express opinions on the subject, provided they are supported by evidentiary material: see 15.2.15 . W here the Ombudsman recommends that compensation be paid because defective administration has directly or indirectly been the cause of financial detriment to the complainant, the Commonwealth is rarely under any legal liability. The most convenient mechanism for arranging payment is for the relevant agency to do so by an act of grace. Agencies subject to the Audit Act 1901 (Cth) must obtain approval for an act of grace payment under s 34 A of the Audit Act 1901 (Cth). The Ombudsman may also recommend changes to the law, policies and procedures that caused the problem. Further, where the Ombudsman is of the opinion that there is evidence that an officer of the agency has been guilty of a breach of duty or of misconduct and the evidence is sufficient to justify such an allegation, the Ombudsman shall bring the evidence to the notice of the minister or principal officer: Ombudsman Act s 8(10). The Ombudsman may ask the agency to report within a specified time what actions they plan to take with respect to the recommendations contained in the report: Ombudsman Act s 15(4).

15.2.22 Reports to the Prime Minister and parliament W here the agency fails to take ‘adequate and appropriate’ action, the Ombudsman can report formally to the Prime Minister under s 16. If the agency continues to refuse to comply, a third report, known as a Special Report, may be made to parliament: Ombudsman Act s 17. Such reports are seldom submitted. Commonwealth Ombudsmen have made only 30 notifications to the Prime Minister, and only two reports to parliament: [page 326] R McLeod, ‘Administrative Justice — an Ombudsman’s Perspective on Dealing with the Exceptional’ in R Creyke and J McMillan (eds), Administrative Justice: The Core and The Fringe , AIAL, Canberra, 2001, 58 at 59. This suggests that most Commonwealth government agencies cooperate with the Ombudsman. However, where they have been submitted, they have not always been acted upon: see Commonwealth Ombudsman, The Cotton Case Involving the Australian Broadcasting Corporation, Special Report No 1 , September 1985, Parliamentary Paper No 344 of 1985. Unlike the decisions of tribunals and courts, the results of investigations by the Ombudsman are not published. However, statistics and anonymous case studies may be included in the Annual Report to parliament: Ombudsman Act s 19(1).

15.2.23 Referral to the AAT If the Ombudsman is satisfied that there has been an unreasonable delay in the exercise of a statutory power, the Ombudsman may grant a certificate to the complainant to that effect. This certificate deems the statutory power to have been exercised negatively and thus permits an application to be made to the AAT: Ombudsman Act s 10. The Ombudsman may recommend to the principal officer of a Department or authority that a specified question relating to the exercise of a discretionary power be referred to the AAT for an advisory opinion: Ombudsman Act s 11; Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) s 59. Once such a recommendation is made, the principal officer is obliged to refer the question to the AAT: Ombudsman Act s 11(3). However, the AAT has a discretion whether to give the requested advisory opinion: Ombudsman Act s 11(4). In deciding whether it is appropriate to give the opinion, the AAT has indicated that questions of fact and hypothetical questions should not be the subject of an advisory opinion: Re Reference under Section 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86.

15.2.24 Review of conduct or decisions of the Ombudsman A party dissatisfied with the Ombudsman’s conduct or decision may seek judicial review under the ADJR Act (Cth) or s 39B of the Judiciary Act 1903 (Cth). Further, specific provision is made by the Ombudsman Act for Federal Court review of the ‘exercise or proposed exercise of a power, or the performance or proposed performance of a function’: Ombudsman Act s 11A. For instance, the Ombudsman’s discretion to decline to investigate a complaint may be reviewed by the Federal Court: Shrimpton v Commonwealth (1945) 69 CLR 613. Unlike the legislation in other states, the Federal Court’s power to review conduct or decisions of the Ombudsman extends beyond jurisdictional issues. Further, FOI decisions of the Commonwealth Ombudsman are reviewable by the AAT.

Problem Ms Raphael was detained in the Commonwealth Women’s Prison. The prison is established in accordance with the Women’s Prison Act 2005 (Cth). On 19 January 2008, Ms Raphael was sexually assaulted by wardens transporting her from the prison to court. [page 327]

When she met with her solicitor at court, she told her of the assault. The solicitor tried to arrange a medical examination but the prison authorities refused the request. The solicitor assisted Ms Raphael to lodge a complaint with the Governor of the Commonwealth Women’s Prison. Six months after the lodgment of the complaint, Ms Raphael had not received any reply. She continued to be harassed by some of the prison wardens, although the wardens implicated in the sexual assault had since been transferred to another prison. When the solicitor questioned the prison authorities, she was told that the general prison policy is to let complaints sit for a few months to ‘weed out the frivolous complainants. If they are serious, they will complain again’. In August, Ms Raphael made the complaint again. Ms Raphael has not made an application for victim’s compensation but intends to do so. Advise Ms Raphael whether, and how, she can obtain assistance from the Ombudsman.

Resolution Advise Ms Raphael This instruction means advise Ms Raphael on all the legal issues she may raise in her favour and all those to which she will have to respond. The instruction does not mean that you should adopt an openly partisan position.

Does the complaint come within the Ombudsman’s jurisdiction? Both the Commonwealth Women’s Prison and the complaint come within the Commonwealth Ombudsman’s jurisdiction. The Commonwealth Women’s Prison is subject to investigation as it is a ‘prescribed authority’ within the meaning of s 3(1) of the Ombudsman Act. It was established in accordance with the provisions of the Women’s Prison Act 2005 (Cth) for a public purpose, that is, to provide for the detention of women convicted of criminal offences under federal law. The failure to act on Ms Raphael’s complaint is a form of ‘action’ within the meaning of s 3(7)(c) of the Ombudsman Act. The only questionable aspect of the Ombudsman’s jurisdiction is whether the decision relates to a ‘matter of administration’, as it involves the implementation of a policy. Despite decisions of the South Australian and Victorian courts, which distinguish policy from matters of administration, the Commonwealth Ombudsman appears to favour the view that the word ‘practice’ contained in s 15 is wide enough to include administrative policies: Commonwealth Ombudsman, Fifth Annual Report , AGPS, Canberra, 1981–1982, p 24. Further, Ms Raphael’s complaint raises policy issues, as part of a review of the administrative action of the prison; it is not directed to the questioning of government or legislative policy. In any case, her complaint is partly about her treatment and not only about the policy.

Is the Ombudsman likely, in her or his discretion, to decline to investigate the complaint? The Ombudsman may, in her or his discretion, decline to investigate the complaint at this stage. The Ombudsman expects people to try to resolve the complaint with the prescribed authority directly and to use the Ombudsman’s office only as a last resort: see Ombudsman Act s 6(1A). By lodging a complaint with the Governor of the Prison, Ms Raphael has sought to resolve the complaint directly with the prescribed authority. [page 328] Despite her complaint, no redress was granted. If the Ombudsman considers that a reasonable period has elapsed in which redress could have been granted, the Ombudsman may investigate the inaction: Ombudsman Act s 6(1C). The issue arises as to whether the Ombudsman may decline to investigate the complaint pursuant to s 6(3), as Ms Raphael has an unexercised right to apply for compensation from the Victims Compensation Board. In addition, Ms Raphael might also have a cause of action in tort against both the wardens and the prison. In the circumstances, however, it would probably not be reasonable to expect her to exercise those rights. Arguably, s 6(3) is directed to review of the administrative action rather than the mechanisms, which provide compensation for individuals. Ms Raphael could argue that the nature of the Governor’s policy in dealing with complaints is likely to affect a wide range of people and further the abuse of power by prison wardens is a matter of grave concern to the administration. This factor justifies the investigation. The Ombudsman may decide that even though Ms Raphael should pursue other avenues, the Ombudsman may choose to exercise the ‘own motion’ power and undertake an investigation. An ‘own motion’ investigation is likely to be undertaken, where the complaint raises an important issue concerning public administration. Arguably this case raises such an issue: the conduct of prison wardens and the manner in which the Governor of the Prison deals with such complaints.

What procedure can Ms Raphael expect? Ms Raphael may find the Ombudsman’s office easier to access than some of the other review agencies. She may lodge her complaint by telephone with the assistance of the telephone interpreter service: Ombudsman Act s 7. Once she has made the complaint, if the Ombudsman decides to investigate the matter, the Ombudsman will conduct a preliminary inquiry. This will involve inquiries with the prescribed authority primarily directed to whether the Ombudsman has jurisdiction. The Ombudsman may, at this stage, decide not to investigate the matter: Ombudsman Act s 7A. If the Ombudsman decides to pursue the investigation, the Ombudsman will then undertake a formal investigation in accordance with s 8 of the Ombudsman Act making use of her or his wide powers to obtain information.

What is the scope of the Ombudman’s investigation? The Ombudsman is concerned with whether the prescribed authority’s action amounted to defective administration. The Ombudsman may investigate the complaint to determine whether it was reasonable in all the circumstances, and whether it was ‘unjust, oppressive or improperly discriminatory’, even if it is in accordance with a rule of law, provision of an enactment or a practice: Ombudsman Act s 15(1)(a). Arguably the Governor’s policy is not reasonable and has operated in an oppressive and improperly discriminatory manner. The policy may be described as dangerous, as after Ms Raphael reported the sexual assault, she has not received any protection from the prison authorities. The application of the policy has the effect of further endangering Ms Raphael’s safety.

What can the Ombudsman do? The Ombudsman does not have determinative powers. She or he does not ‘stand in the shoes’ of the primary decision maker and cannot set aside the decision. [page 329] However, the Ombudsman may make a report to the prescribed authority, namely the prison. If this report is adverse to the prescribed authority, the Ombudsman must give the principal officer, namely the Governor, an opportunity to make submissions: Ombudsman Acts 8(5). The Ombudsman may recommend that Ms Raphael’s application be reassessed or that statutory compensation be awarded. If the Ombudsman were to find that the policy works an injustice and operates in a discriminatory manner against inmates, such as Ms Raphael, the Ombudsman may choose to make recommendations to the prison concerning this policy. The Ombudsman must include reasons for this recommendation in the report: Ombudsman Act s 15(3). Particulars of the completed investigation must be given to both Ms Raphael and the prescribed authority: Ombudsman Act s 12(3). The Ombudsman may ask the prescribed authority to report within a reasonable time as to what action they plan to take: Ombudsman Act s 15(4). If the prescribed authority fails to take action, the Ombudsman may report to the Prime Minister (Ombudsman Act s 16) and if action is still not taken, the Ombudsman may present a Special Report to parliament: Ombudsman Act s 17.

Conclusion It would seem that Ms Raphael’s best course of action is to lodge the complaint with the Ombudsman. The advantage of this course is that the Ombudsman can investigate the Governor’s policy and recommend amendment. In addition, Ms Raphael should lodge an application with the Victims Compensation Board. The Ombudsman’s report may be used as evidence in support of her application.

Further tutorial discussion 1. Philippa Smith, a former Commonwealth Ombudsman, in ‘Form vs Substance’ in K Cole (ed) Administrative Law and Public Administration: Form vs Substance , Australian Institute of Administrative Law Forum, AIAL, Canberra, 1995, 339 at 341, suggested that: The public does , and I believe, should , be able to expect a higher level of responsibility from government than the private sector. This is in large part because of the nature of the services provided.

Critically analyse this comment in light of the increasing privatisation, corporatisation and contracting out of government services. 2. Former South Australian Ombudsman Eugene Biganovsky agrees that an Ombudsman considers moral issues but suggests that because this ‘moral judgment is only by way of recommendation, there can be no harm done if his opinion happens to be wrong’: E Biganovsky, ‘New Values for Old? Is the Review Genie Trapped inside the Lamp of Scrutiny’ in S Argument (ed), Administrative Law and Public Administration: Happily Married or Living Apart under the Same Roof? , Australian Institute of Administrative Law Forum, AIAL, Canberra, 1993, 279 at 287. Do you think it is appropriate for the Ombudsman to consider moral issues? [page 330]

Further reading See ‘Ombudsman Recent Activities’ in editions of Administrative Review . Allars, M, ‘A New Morality in Administrative Law’ in S Argument (ed), Administrative Law and Public Administration: Happily Married or Living Apart Under the Same Roof? , Australian Institute of Administrative Law Forum, AIAL, Canberra, 1993, p 250. Barbour, B, ‘W hat are the Essential Features of an Ombudsman?’ in J McMillan, and R Creyke (eds), Administrative Law — The Essentials , AIAL, Canberra, 2002, pp 53–63. Biganovsky, E, ‘New Values for Old? Is the Review Genie Trapped inside the Lamp of Scrutiny?’ in S Argument (ed), Administrative Law and Public Administration: Happily Married or Living Apart Under the Same Roof? , Australian Institute of Administrative Law Forum, AIAL, Canberra, 1993, p 279. Cameron, A, ‘Future Directions in Administrative Law: The Ombudsman’ in J McMillan (ed), Administrative Law: Does the Public Benefit , Australian Institute of Administrative Law Forum, AIAL, Canberra, 1992, p 202. Commonwealth Ombudsman Annual Reports , AGPS, Canberra at < www.ombudsman.gov.au/publications_information/default.htm > . Douglas, R, Douglas and Jones’s Administrative Law , 7th ed, Federation Press, Sydney, 2014, Ch 6. Landa, D, ‘The Ombudsman: Surviving and Thriving in the 2000s’ in S Argument (ed), Administrative Law: Are the States Overtaking the Commonwealth , Australian Institute of Administrative Law Forum, AIAL, Canberra,

1994, p 91. Mullins, J, ‘Handling Complaints Related to Government Services Delivered by Contractors’ in K Cole, (ed), Administrative Law and Public Administration: Form vs Substance , Australian Institute of Administrative Law Forum, AIAL, Canberra, 1995, p 218. Pidgeon, S, ‘The Ombudsman and the Protection of Individual Rights’ in J McMillan (ed), Administrative Law: Does the Public Benefit? , Australian Institute of Administrative Law Forum, AIAL, Canberra, 1992, p 75. Satyanand, Judge Anand, ‘The Role of the Ombudsman’ (June 1996) New Zealand Law Journal 206. Snell, R, ‘Towards an Understanding of a Constitutional Misfit: Four Snapshots of the Ombudsman Enigma’ in C Finn (ed), Administrative Law for the New Millennium , AIAL, Canberra, 2000, pp 188–205. Smith, P, ‘Form vs Substance’ in K Cole (ed), Administrative Law and Public Administration: Form vs Substance , Australian Institute of Administrative Law Forum, AIAL, Canberra, 1995, p 339.

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16 Other Procedures for Controlling Administrative Behaviour General Administrative law is only one of a number of ways of making administrators accountable for their actions. Administrative behaviour is also influenced by a variety of other institutions, procedures and laws. Administrators are subject to a degree of direct and indirect political control, and those who exercise that control may themselves be politically accountable. Administrative behaviour is also subject to a variety of additional institutions, procedures and laws designed to ensure that administration is conducted in an honest and efficient manner. Increasingly, administrators are being subjected to the uncertain discipline of the market. In this chapter we examine these processes, and discuss the implications of multiple avenues of accountability.

Objectives After studying this chapter, you will understand: procedures for making administrators politically responsible; institutions for making administrators and government more accountable, including markets, auditors-general, whistleblowers and commissions of inquiry; and the difficulties posed by the variety of external monitors.

1 Making administrators politically responsible 16.1.1 The problem The rise of the New Administrative Law coincided with more general concern about administrative behaviour. Critics of the public services saw them as insufficiently responsive to elected governments and to parliament. This [page 332] was a somewhat different form of concern to the concern which underlay the introduction of the New Administrative Law. W hereas administrative law might be seen as reflecting responsiveness to the consumers of government policy, these concerns related to administrators’ responsiveness to those who were charged with its production and supervision. In a system of responsible government, administrators are ideally responsible to their ministers and ultimately to Cabinet, and ministers and the Cabinet are responsible to parliament. Developments over the last 20 years have probably increased ministerial control over administrators, and have possibly increased parliamentary control over government. The problem of inadequate ministerial control is probably exaggerated. Australian administrators appear to be sufficiently professional to be willing to serve whatever government happens to be in power and in any case, should not find this too difficult, given that the differences between the major parties are not particularly marked. Indeed, a (now slightly dated) study by P Weller and M Grattan ( Can Ministers Cope? Australian Federal Ministers at Work , Hutchison, Richmond, Victoria, 1981) suggested that administrators preferred strong ministers to weak ones. The same study highlighted the degree to which administrators’ and ministers’ interests overlapped. There is, however, a danger that, left to their own devices, administrators may be over-inclined to attach undue weight to technical considerations, and to discount the importance of politics: see, for example, G Davis in A Kouzmin and N Scott (eds), Dynamics in Australian Public Management: Selected Essays , Macmillan, South Melbourne, 1990 (Kouzmin and Scott), ch 7. Moreover, ministerial influence depends not only on administrators’ willingness to take notice of what ministers want, but on ministers knowing what they want and being able to communicate it.

16.1.2 Empowering ministers and Cabinet Recent developments have probably strengthened the power of

politicians as against administrators and the administration. W ith varying degrees of success, ministers have developed sources of policy advice from outside the permanent civil service: J Halligan and J Power, Political Management in the 1990s , Oxford University Press, Melbourne, 1992, pp 50– 1, 78, 79, 81–7, 133 (Halligan and Power). Resources at the disposal of ministers have been increased, which allows then more time for mastering their portfolios. The success of some of these measures, such as the creation of junior ministers, has been questionable: J Halligan, I Beckett and P Earnshaw, ‘The Australian Public Service Reform Program’ (Halligan et al) in J Halligan and R W eltenhall (eds), Hawke’s Third Government: Australian Commonwealth Administration, 1987–1990 , University of Canberra and RIPA (ACT), Canberra, 1992, pp 16–17, (Halligan and Weltenhall).) The strengthening of central departments, such as the Prime Minister’s and the Cabinet or the Premier’s, may mean that Cabinet policy can prevail, even where the ostensibly responsible minister is unable to monitor its implementation. The creation of larger departments has facilitated policy coordination and implementation, as this becomes the responsibility of a single rather than multiple departments (Halligan and Power, pp 79–80, 125– 30; Halligan et al, pp 17–18). A more radical approach has involved the replacement of ‘permanent heads’ and other senior employees with government appointees, who hold their [page 333] position on contract for what may be relatively short periods. (For more details, see Halligan and Power, pp 87– 93, 134; Halligan et al; Halligan and Power in J Power, Public Administration in Australia: a Watershed , Hale and Iremonger, Sydney, 1990 (Power); Halligan and Wettenhall in Power.) These developments make sense insofar as civil servants seek to obstruct governments. They are likely to reassure governments which might otherwise think that they are being obstructed. These reforms have not, however, led to much lateral recruitment. Commonwealth governments have generally appointed insiders to head departments. The main effect of the new appointment procedures seems to have been that department heads are particularly likely to have been drawn from the Department of the Prime Minister and the Cabinet: Halligan et al, pp 28–33. Recruits to the Senior Executive Service continue to be drawn overwhelmingly from the Commonwealth public service and indeed from within the appointee’s department: Halligan et al, pp 36–37. However, reorganisation meant considerable change, and has enabled governments to change the upper reaches of the public service, to make it more receptive to managerialism and economic rationalism (Halligan and Power, p 93). The position in the states varies: Halligan and Power, pp 49, 63, 134, 143–6.

16.1.3 Parliamentary control The irrelevance of parliament is a late 20th century cliché, moderately firmly grounded in fact. The cliché may, however, be misleading. First, one variant of the cliché refers to the decline of parliament, with the implication that there was once a golden age in which parliament ruled and ministers were truly responsible for everything that went on within their departments. Second, the general truth of the cliché requires some qualification. Parliament exerts some control and indeed may exert more control than the courts and tribunals. If there was a golden colonial age, it was also a corrupt one in which the lack of party politics produced coalitions based on exchanges of public goods for votes. Moreover, as Finn has shown, colonial administrative arrangements were such that it was the collectivity — the Executive Council or the Cabinet — that was responsible rather than the individual minister. Many departments were not even headed by ministers and ministers did not regard themselves as responsible for maladministration within their departments. They might acknowledge it and deplore it, but they didn’t regard themselves as responsible for it, nor were they regarded as responsible. Much administration was conducted by quangos of various kinds, which were tenuously answerable to the government but not to any particular minister (Halligan and Wettenhall, and Finn in Power chs 1, 2; but cf in Queensland: Halligan and Power, pp 162–3, 168–9). There was never a golden post-colonial age, for by then parties had become much more firmly established and, for example in Victoria, where strong coalitions did not emerge, the result was unedifying. Moreover, while the strength of the Australian party system has meant that it is exceptional for ministers to take public responsibility for acts of serious maladministration within their departments, there is a residual sense in which ministers are nonetheless answerable. Parliament can constitute a forum in which ministers may be informally defined as responsible. The price they pay may be neither visible nor immediate, but it may be extracted in the form of loss of reputation, and ultimately, in the form of demotion or being dropped from the [page 334] Ministry. The criteria according to which ministers are held responsible are vague, but this very vagueness may actually facilitate the smooth functioning of the responsibility-allocation process: see, for example, Kellow in Power, p 67. Moreover, while ministerial resignations are exceptional, parliaments have become slightly less impotent over time and probably play a greater role in the supervision of administrative activity than was once the case. This reflects two developments. The advent of proportional representation as the basis for electing upper houses (and the lower, or sole one in Queensland and the Australian Capital Territory respectively) has meant that the governing party rarely enjoys full control of parliament at Commonwealth level, or in the Australian Capital Territory or the various states. Moreover, even where governments control parliament, ministers may sometimes identify with their fellow politicians rather than their fellow members of the executive and tolerate some parliamentary supervision of some executive activity. This is particularly so where the issues at stake do not

involve matters of central partisan concern. The strengthening of parliamentary controls has been further assisted by a tacit willingness on the part of government and opposition members to treat certain issues as non-partisan. As already noted (see Chapter 6 ), one area in which both Commonwealth and state parliaments have become more effective is in relation to the review of delegated legislation. Parliamentary Committees review other aspects of administrative activity. The Senate has developed a particularly luxuriant committee structure, partly, in response to the fact that, since 1949, it was rare for the government to hold a majority in that house. However, parliament’s capacity to supervise is limited by its capacity to process information, and by the informativeness of that information. The Joint Parliamentary Committee of Public Accounts has complained that it simply cannot absorb all the accountability information now available to parliament. W hile Annual Reports are automatically referred to the relevant Senate Committee, reviews of these reports are rare, and generally confined to times, when Committees have nothing else to do: S Argument, ‘Annual Reporting by Commonwealth Departments and Statutory Authorities — The Cornerstone of Executive Accountability to the Parliament’ (1991) 6 Legislative Studies 16 at 18–19. Estimates Committees complain about the lack of useful quantitative measures of the effectiveness and efficiency of programs: see Halligan et al. From a lawyer’s perspective, political processes are appallingly haphazard, and their impact distressingly opaque. By itself, political supervision will tend to be uneven and arbitrary. However, in practice, is it any more so than legal processes? True, judges will manifest a degree of consistency in behaviour, which far exceeds anything that politicians can achieve, but judges’ interventions are heavily dependent on litigants. Administrative law litigants represent only a tiny and a nonrandom proportion of those affected and even aggrieved by administrative decisions.

2 Encouraging honesty and efficiency 16.2.1 Introduction Various institutions exist to encourage honesty and efficiency on the part of administrators and governments. Auditors-General play an understudied role in discouraging theft and even misuse of public funds. Since the 1980s [page 335] there has been increased interest in institutions and arrangements designed to discourage corruption. Governments have also become increasingly interested in the use of markets, ostensibly on the grounds of the capacity of markets to ensure responsiveness and efficiency.

16.2.2 Auditors-General Auditors-General are a familiar feature of the Australian bureaucratic landscape. They enjoy judicial-type tenure. They are formally independent of the executive, although vulnerable to executive attack, and must report to parliament. The six colonies passed audit Acts prior to federation. The Commonwealth passed its first audit Act, which was closely modelled on the colonial Acts, in the first session of parliament: see Audit Act 1901 (Cth). The traditional function of the Auditor-General was the traditional function of auditors generally, which is to ensure that those who spend public money can account for it. Auditors- General are also involved in a more controversial area: efficiency auditing. This activity is concerned with assessing whether public money is being efficiently spent. In the 1970s the Commonwealth Auditor-General’s office was regularly conducting ‘efficiency audits’ or ‘performance audits’. The Audit Act 1901 (Cth) was amended in 1979 to reflect this budgetary change, as does the Auditor-General Act 1997 (Cth). In one sense, Auditors-General appear to enjoy considerable power. In practice, however, the powers of Auditors-General are circumscribed, and arguably, severely circumscribed. Funnell in ‘Executive Encroachments on the Independence of the Commonwealth Auditor-General’ (1996) 55(4) Australian Journal of Public Administration 109 argued that the apparent independence of the Auditor-General is largely illusory. Governments value the Auditor-General’s reputation for independence, providing they can rely on the AuditorGeneral to legitimise their activities. Truly independent Auditors-General can be a major embarrassment, and governments therefore resort to a variety of strategies in order to minimise that embarrassment. These include appointing ‘reliable’ people to the position; restricting the Auditor-General’s capacity to function effectively, by limiting resources; and by using the implicit threat of doing so as a weapon to discourage Auditors-General from venturing into politically sensitive areas. At most, Auditors-General enjoy conditional independence in the sense of enjoying security of tenure and of being free from day-to-day direction in relation to the conduct of audits. W hile spoken of as officers of the parliament, Auditors-General are appointed by the executive, and dependent on the executive for staffing and resources. A former Commonwealth Auditor-General has expressed similar views, noting that threats come not only from the political executive, but from departments, which might be the subject of investigation: J Taylor, ‘W hat Should be the Role of the Auditor-General in the Context of Management?’ (1996) 55(4) Australian Journal of Public Administration 147. However, this position may change. Funnell (p 121) notes developments in other jurisdictions, and argues that managerialism can work only with a strong and substantively effective system of public sector auditing.

16.2.3 Corruption commissions Corruption by public officials is an ever present danger. Opportunities exist insofar as there is a market for government decisions [page 336] and for non-decisions. Corrupt conduct may be almost completely risk-free. One reason being that the parties to corruption are frequently consenting adults. The victim, which is society at large, will usually be unaware that it has been victimised. Moreover, corruption may well be regarded as legitimate by the public officials who engage

in it. Indeed, it may even be regarded as one’s duty. Administrative law means that decisions tainted by corrupt decisions are legal nullities. Equity means that those who profit from misuse of public office must account for their profits to the state. Criminal law imposes penalties on those who abuse public office, who profit by placing their private interests ahead of their public duties, and indeed even on those who place themselves in positions where their interests and duty might conflict. The problem is not lack of law. It is lack of enforcement. To a considerable extent, this reflects the difficulties of enforcing anti-corruption laws. Corruption, especially where it is criminal, will normally take place in private. To some extent, it will reflect a lack of will, as those charged with enforcing laws may themselves be corrupt.

16.2.4 The independent commissions Attempts to combat corruption can take a variety of forms. The past decade has seen two major sets of legal developments. The first has been the establishment of anti-corruption bodies. These take a variety of forms. One involves standing bodies. These include bodies such as the New South Wales Independent Commission Against Corruption (ICAC), the Queensland Crime and Misconduct Commission (CMC) and its predecessor, the Criminal Justice Commission (CJC) and the Western Australian Corruption and Crime Commission. Their operation is governed by the Independent Commission Against Corruption Act 1988 (NSW ) (ICAC Act), the Crime and Misconduct Act 2001 (Qld) (which repealed the Criminal Justice Act 1991 (Qld)), and the Corruption and Crime Commission Act 2003 (WA) respectively. These bodies have somewhat different functions. However, all three bodies are charged with discouraging official corruption. They perform a variety of functions: educating, researching, norm-setting, and exposing. The Commissions were a response to concerns which acquired a high degree of salience in the late 1980s. At that time, however, they were not adopted in South Australia and Victoria, where the most salient problem was incompetence rather than corruption. W hen widespread police corruption and gang warfare began to escalate in Melbourne, active debate arose over the need to establish a commission. The government of the day chose to address these concerns by strengthening the powers of the Ombudsman, rather than establishing a commission. After Labor’s defeat in the 2010 elections, the Liberal-National coalition government legislated for a broad-based corruption commission, although its powers were not as extensive as in other jurisdictions. Prior to Victoria legislating in this area, Tasmania had already enacted legislation. In 2012, South Australia also legislated to establish an independent commissioner. In 2006, the Commonwealth set up the office of the Integrity Commissioner: Law Enforcement Integrity Commissioner Act 2006 (Cth). The Integrity Commissioner has similar powers and functions to those of the state corruption commissions. The Commissioner does not have jurisdiction over public officers in general but is limited to corruption in the area of ‘law enforcement’. Section 5 of the Act defines [page 337] a law enforcement agency to include the Australian Federal Police, the Australian Crime Commission and any other body with a law enforcement function and which is prescribed as such.

16.2.5 Maintaining the commissions’ integrity The bodies are responsible for investigating both criminal official misconduct (and less serious forms of misconduct: ICAC Act ss 7–9; Crime and Misconduct Act 2001 (Qld) ss 15 and 33; Corruption and Crime Commission Act 2003 (WA) s 4. They may therefore investigate behaviour which is outside the jurisdiction of the police. The legislation establishing the bodies includes mechanisms designed to ensure that people of integrity are appointed. Western Australia seeks to achieve this by providing that members of the Commission are to be appointed on the basis of a recommendation of a committee comprised of the Chief Justice, the Chief Judge of the District Court and the Solicitor General: ss 8 and 9. (The constitutionality of such a committee cannot be questioned, due to Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 and Kable v Director of Public Prosecutions (1996) 189 CLR 51.) Queensland procedures effectively require that appointees be acceptable to the opposition, as well as the government: Qld s 228. In New South Wales, the Commissioner must be acceptable to the Joint Parliamentary Committee, while Assistant Commissioners must be acceptable to the Commissioner: NSW ss 5A and 64A. Commissioners are, however, appointed for only relatively short terms of office, for example, five years: NSW Sch 1 cl 4; Qld s 231. In Western Australia the term is also five years but this can be extended once for an additional term: Sch 2 cl 1. Commissioners hold office, subject to such conditions, as continued mental health, solvency, eligibility, and not being convicted of indictable offences: NSW Sch 1 cl 6; Qld s 236(4), Sch 2; WA s 12, Sch 2 cl 7. In New South Wales, the Commissioner can be removed by the Governor on the address of both houses of parliament: Sch 1 cl 6(2). Western Australia has a similar provision: s 12. In Queensland the removal of the Commissioner is effectively subject to the opposition’s veto: s 236(3). Possible conflicts of interest are handled in different ways. In New South Wales, the ICAC Regulation 2010 provides that the Commission may require its officers to provide personal particulars in relation both to themselves and to others with whom they are associated, and to provide a variety of specified personal documents. A Statement of Financial Interest must be provided. Changes in these must be notified, as must any conflict of interest as soon as an officer becomes aware: ss 5, 6, 7–12. In Queensland, the Commission is to maintain a register of pecuniary interests, and a record of personal and political associations, if these might influence the Commissioner’s conduct of an investigation. Commissioners must ensure that any changes are recorded: Qld s 238. Western Australian Commissioners and officers are under a duty to disclose any material interest they might have in a matter in relation to which the Commission is exercising its functions, and must not be involved in such matters: WA ss 152 and 153. A breach of these requirements constitutes an offence.

16.2.6 Inquiries and investigations Commissions are required to be both reactive and proactive. Anyone may notify a commission of possible misconduct (NSW s 10; Qld s 36; WA s 25), although penalties apply for doing

so without justification: [page 338] NSW s 81; Qld ss 216–218; WA s 25(5). ‘Protected disclosures’ legislation (to be discussed below) seeks to encourage such notifications. Other nominated officials, for example, the Ombusdman or the Commissioner of Police, may be required to report suspected serious misconduct: NSW s 11, 73; Qld ss, 37 and 38; WA s 28. Commissions are required to examine allegations and decide whether further action is required: NSW s 10(2); Qld ss 45 and 46; WA ss 32 and 33. There are provisions for notifying informants of the outcomes of investigations: Qld s 47(3); WA s 35; and see 16.2.11 . Commissions may also initiate investigations: NSW ss 20, 20a; Qld s 35(f); WA s 18(c); and refer matters to other authorities for investigation: NSW s 53; Qld s 46(2)(b); W A s 37. The commissions are given considerable coercive powers in relation to inquiries and investigations. They may require any person to provide information within a specified period: NSW s 21; Qld s 75; WA ss 94, 95. They may require the production of documents and things: NSW s 22; Qld s 75; WA s 95. Officers may enter premises used by public authorities or public officers, inspect anything therein and take copies of documents: NSW s 23; Qld s 73; WA s 100. In New South Wales, Queensland and Western Australia, the Commission may apply for warrants, which, if granted, authorise entry and seizure of documents and things: NSW ss 40, 41, 43–47; Qld ss 86-88; WA s 101. The Commissioner may also have the power to call people to give evidence: NSW s 35; Qld s 82(1)(a); WA s 96. The interests of those who are required to provide information, records or things, is protected insofar as privilege may be asserted: NSW ss 24, 25, 37(5); Qld ss 80, 81; WA s 99. In relation to incriminating information, records and things, the legislation varies slightly. Also, if a person, who is required to furnish information, objects that it would tend to incriminate them, evidence of that information is not admissible against the person in civil or criminal proceedings: NSW ss 26(2), 37, 38; Qld s 197; WA s 145 (which appears to be limited to criminal proceedings). Records and things are, however, admissible as are statements, where the maker of the statement did not object: NSW s 26(2) and 37(4); Qld s 188(3). Failure to comply with the requirements to provide evidence, records or things, as required, constitutes an offence, and may constitute contempt: NSW ss 82–84, 86; Qld ss 188(2), 192, 198(1)(c); W A ss 158–161. The commissions are generally not prosecutorial agencies. They cannot make findings of criminal guilt nor recommend prosecutions, but they may report findings of fact and make recommendations in their reports: NSW ss 13(2)–(5), 74–75; WA s 43; and see Qld s 49. They may recommend that prosecutions be considered: NSW s 74A(2); Qld s 49(2)(a); WA s 43(5). In Queensland, if the Commission considers that a prima facie case of official misconduct exists, the Commission may charge the relevant official with a disciplinary charge, which will be heard by a disciplinary tribunal: s 50. The Commissions are required to work with other agencies: NSW ss 14–16; Qld ss 24(e) and 50(4).

16.2.7 Educative functions The functions of at least some of these bodies include devising anti-corruption strategies, as well as uncovering corruption. ICAC’s functions include (s 13(1)(d)–(j)): examination of laws, practices and procedures, which may be conducive to corruption; [page 339] assisting those who seek assistance in controlling corruption; advising authorities of changed practices, which might reduce the incidence of corruption. The responsibilities of the Queensland Commission’s Official Misconduct Division include a ‘preventive function’. This involves activities, which include (s 49): the analysis of intelligence and information; analysing the administrative systems to prevent misconduct; providing information to, and consulting with agencies and the community; reporting on ways to prevent misconduct. The Western Australian Commission’s functions are set out under s 17 and are very similar to those outlined above for Queensland.

16.2.8 Accountability The bodies are accountable in several ways. They are accountable to parliament via the duty to report: NSW ss 74–78; Qld ss 64, 69, 292; WA ss 84–92. There is provision for the commissions to be supervised by a parliamentary committee established for this express purpose: NSW Pt 7; Qld Pt 6; WA Pt 5. The Commissions are accountable to informants insofar as they are required to provide details of their investigations. They are also required both under legislation (for example WA s 86), and the rules of procedural fairness to warn and hear those against whom they propose to make adverse reports. The standing bodies have lived an uneasy existence. W hile they have sometimes shown considerable courage, and investigated high level corruption, this has been at some risk to their survival. Moreover, while committed to fundamental administrative law values, their behaviour has been subject to judicial review and in a number of cases has been found to be wanting. Greiner v ICAC (1992) 28 NSW LR 125 illustrates the complexity of anti-

corruption. The question which gave rise to the litigation is illuminating. Greiner (one of the forces behind ICAC’s establishment) used the offer of a senior public officer to secure the resignation of a politician who had become a political embarrassment to the government. Was this corrupt? Greiner evidently did not think so, as this, after all, was a case where the salient features of the behaviour were relatively visible. The Commissioner concluded that Greiner’s conduct was corrupt and reported accordingly. The New South Wales Court of Appeal concluded that, under the ICAC Act s 9, the conduct was not corrupt. In dissent, Mahoney JA concluded that the behaviour was corrupt for the purposes of the Act, but not in the normal sense of the word. W hat mattered, however, was the Commissioner’s report, and not the judgment. Under pressure from Independent MPs, Greiner was forced to resign as Premier. Ainsworth v Criminal Justice Commission involved a High Court decision to the effect that the Ainsworth group had been denied procedural fairness in relation to an adverse report made about the group’s alleged involvement in crime. The Commissions have also had their successes: see, for example Criminal Justice Commission v [page 340] Connolly [1997] 2 Qd R 586, where the CJC managed to stop an investigation of its operations.

16.2.9 Royal Commissions An alternative to investigations by standing commissions is investigation by ad hoc commissions, and in particular, Royal Commissions. These possess similar coercive powers. They are subject to similar administrative law constraints. They also sometimes inquire into very similar issues. The obvious weakness of the Royal Commission or Commission of Inquiry, as a means of holding governments accountable, is that their establishment requires a government initiative. Those governments, which should be held most accountable, are therefore least likely to cooperate in their establishment. This, of course, is the rationale for the standing commissions. They are also less well-equipped to perform the ongoing public educative role, which forms part of the standing commissions’ role. There are, however, circumstances where governments have opted to use Royal Commissions rather than rely on corruption commissions. This was notably the situation in New South Wales, where the government chose to set up a Royal Commission to inquire into police corruption, rather than rely on ICAC to conduct the inquiry. Royal Commissions are subject to the usual administrative law rules: they may not exceed their jurisdiction; they may not make findings for which there is no evidence; and they must observe the rules of procedural fairness. As their reports do not operate to alter rights and duties, their reports cannot be quashed. They may, however, be the subject of prohibition or injunctive or declaratory relief.

16.2.10 Protecting ‘whistleblowers’ Exposure of corruption often requires someone willing to disclose what has been taking place. The 1990s have seen a number of pieces of legislation aimed at encouraging ‘whistleblowing, which this activity is now referred to’. W histleblowing legislation has now been introduced into six states and territories: Public Interest Disclosures Act 2012 (ACT); Public Interests Disclosures Act 1994 (NSW ); Public Interests Disclosure Act 2010 (Qld); W histleblowers Protection Act 1993 (SA); Protected Disclosures Act 2011 (Vic); Public Interests Disclosure Act 2003; Public Interests Disclosure Act 2002 (Tas). The Commonwealth’s whistleblower protection legislation is provided by the Public Interest Disclosure Act 2013 (Cth).

16.2.11 When are disclosures protected? W hile ‘whistleblower’ legislation varies somewhat across jurisdictions, there are some more or less common features. Above all, not all disclosures are protected. Formulae vary, but in general the disclosure must relate to misbehaviour by public officials, and be generally made by people who are or were public officials: ACT ss 7, 8; NSW Pt 2; SA s 4; Qld s 13 (s 12 protects some disclosures by nonofficials); Vic ss 3, 5 (any person may disclose); WA s 5 (anyone can disclose). (References are to the Acts listed i n 16.2.10 .) There is some variation in the type of misbehaviour which may be the subject of a protected disclosure. Broadly, this must involve unlawfulness, corruption, serious wastage of public money, and in some jurisdictions, behaviour which constitutes a serious danger to public health or the environment: ACT s 8: NSW Pt 2; Qld s 13; SA s 4; Vic s 4; WA s 5. In Western Australia, disclosures are protected if made to the AntiCorruption [page 341] Commission, which may refer the matter to another agency, including the Parliamentary Commissioner or the Auditor General: WA s 5 and 13(1). In other jurisdictions the protection extends to disclosures made to a wider range of officials and investigating authorities: ACT s 15; NSW Pt 2; Qld s 17; SA s 5; Vic s 13. In New South Wales, in special circumstances, the disclosure may be made to a member of parliament or a journalist (s 19) and South Australian legislation seems to contemplate the possibility that communications to non-officials could be protected: s 5(2). An agency to which a disclosure has been made may refer the matter to another agency with jurisdiction over the matter: ACT s 19; NSW ss 25 and 26; Qld s 31; Vic Pt 2; WA s 9. There must be some substance to the disclosure. In some jurisdictions, the discloser must believe, on reasonable grounds, that the disclosure is true: ACT s 7; Qld s 12; Vic s 9; WA s 5. In South Australia, belief on reasonable grounds that the allegation may be true may suffice: s 5(2)(ii). In New South Wales, disclosures to agencies and investigative bodies are protected, providing the disclosure is not made with a view to avoiding disciplinary proceedings: s 18. However, disclosures to members of parliament or to journalists must be both substantially true and reasonably based: s 19. It is an offence to make a wilfully false or misleading disclosure: NSW s 28; Qld s 66; SA s 10; Vic s 72; WA s 24. Australian Capital Territory, Queensland and Victorian agencies are required to report publicly on the incidence of protected disclosures and their responses, and to make progress reports to the discloser: ACT ss 30, 31; Qld ss 29, 30 and 32; Vic Pt 3. Those supplying information are to be provided with information about the

outcome of the investigation, if this is reasonable, although in some jurisdictions, this is only the case, if they request the information: ACT s 23; NSW s 27; Qld ss 30, 32; SA s 8; Vic ss 28, 29, 30; W A s 10.

16.2.12 Effects of protection If a disclosure is protected, no action may be taken against the person making the disclosure in relation to the disclosure: ACT s 35; NSW s 21; Qld ss 36 and 38; SA s 5(1); Vic ss 39, 40, 41; WA s 13. In addition, except in South Australia, it is an offence to take reprisals against a person who makes a protected disclosure. Legislation provides both for ‘official’ reprisals, such as disciplinary proceedings and employment discrimination, and unofficial reprisals, which involve injury or harassment: ACT ss 39 and 40; NSW s 20; Qld ss 40 and 41; Vic ss 43, 45; WA ss 14, 15A,15B, 15. In all of these five jurisdictions, legislation expressly provides that such reprisals are a criminal offence and may also provide for civil remedies and for injunctive relief: ACT ss 39, 41 and 42; Qld ss 40, 41 and 42; Vic ss 45–51; NSW ss 20 and 21; WA ss 14 and 15. Confidentiality attaches to disclosures: ACT s 33; NSW s 22; Qld s 65; SA s 7; Vic s 74; W A s 16.

16.2.13 Markets We are concerned by official corruption because we do not consider that the bureaucratic outputs should be distributed by the market. This view would be shared by most economic rationalists, who would argue that much corruption involves the exercise of monopoly power and involves extortion rather than the kind of free exchange, which should underlie market transactions. That said, bureaucratic conduct is and to an increasing extent influenced by markets. As always, salaries and working conditions affect the capacity of the bureaucracy to [page 342] attract and retain competent and committed employees, and the kind of people, who are attracted to public employment. Moreover, to an increasing extent, governments are relying on markets to do what politics and public authorities once did. This takes two forms: privatisation and outsourcing. Privatisation involves the sale of government enterprises. Outsourcing involves governments purchasing the service from external providers. A variant involves governments requiring in-house providers to compete with external providers. (On out-sourcing see W iltshire in Kouzmin and Scott, pp 243–5 for a list; Halligan and Power, pp 105–7, 109–11, 146–50; Halligan et al, pp 24–7 for discussion.) Even government outputs are sometimes for sale. Broadcasting licences, which were once allocated after lengthy hearings and litigation, are now more or less sold to the highest bidder. These developments involve the creation of different types of markets. Privatisation ultimately means that onetime government services are sold to those, who consume them. Contracting-out entails contracts between what may well be a monopoly purchaser (an unusual phenomenon) and competing ‘producers’, rather than a contract between suppliers of a service and the immediate consumers of that service. Sale of outputs involves contracts between what may well be a monopoly supplier and competing purchasers. Markets can work well, especially where the downside of bad decisions is not catastrophic for those who make them; where the frequency and range of transactions ensures that prices correspond roughly to those which would operate, if purchasers of services were to be well informed, and where sellers cannot pass on the costs of production to third parties. W hether and how far these conditions are satisfied involves empirical and normative issues. At their best, markets encourage entrepreneurs to try to identify what people might want, and how these wants might be satisfied. They encourage innovation and exploration of ways in which products might be provided more efficiently. They also deliver the occasional disaster, notably the United States’ ‘Health Care system’. The problems of reliance on the market are particularly acute in the context of the public sphere. For one thing, the logic of the market is that organisational sellers must be structured in such a way that those who contribute to or detract from the saleability of the organisation’s product must be able to be rewarded or punished. This may require that public organisations be restructured so they become more like private organisations. This too may not be a bad thing, depending on one’s assumptions about how both private and public organisations should be run. Given that public organisations are delivering ‘products’ to non-paying consumers, can one assume that the structures appropriate for production for sale are necessarily those appropriate for production for other purposes?: see, for example, H Stretton, ‘Uses and Misuses of Competition’ (1995) 54 Australian Journal of Public Administration 332. Moreover, while markets may provide a means whereby consumers can control administrative behaviour, the results of that control may be undesirable. N Ryan (‘The Competitive Delivery of Social Services: Implications for Program Delivery’ (1995) 54 Australian Journal of Public Administration 353 (N Ryan)), presents a persuasive argument to this effect. In the case of outsourcing of the provision [page 343] of government services, it may be the wrong consumers (those who pay for the services, rather than those who use them) who count. Undue faith in the market can involve confusing price and value. Reliance on the market to encourage production is likely to yield under-supply of goods, the enjoyment of which cannot be restricted to paying customers, and the assumption that prices charged fully cover production costs may well be misplaced. Markets also encourage the overproduction of goods where producers do not have to pay the full production costs. Because of this, we rely on the state, as well as the market and non-state apparatuses of moral control to organise our society. Like the market and the private moral controllers, the state can make a mess of things, but one cannot assume that it automatically makes less of a mess of things than the market. W hen we talk of the market, we must avoid the seductive image of the market as a non-problematic set of

relationships. Markets (if they work as they’re supposed to) will deliver what those with purchasing capacity want. W hen governments are concerned with the quality of services rather than with crude quantitative goals, and where resources are moderately evenly distributed, markets may be moderately democratic. W ith short-term oriented governments, and unequal distribution of resources, markets will deliver poor quality services combined with limited social justice. W hat this highlights is the fact that what may look like the pathologies of the market may sometimes reflect the imperfections of the state. One reason we have apparently inappropriate reliance on markets is that this may be what the state wants. Conversely, markets can be tamed. One lesson, which governments have learned, is that regardless of what they contract-out, voters may nonetheless hold them rather than contractors, responsible when contractors do not perform to the electorate’s satisfaction. This means that it may be in the interests of governments to establish institutional mechanisms to supplement and structure the market. W hile such arrangements may sometimes involve additional costs, which cancel out such advantages that are derived from reliance on the market, there may be countervailing gains (including greater accountability). Moreover, there are some circumstances where greater accountability involves economies rather than expenses: see, for instance, Seddon’s discussion of the costs entailed in keeping contract information confidential: N Seddon, ‘Is Accountability a Cost of Contracting Out?’ in C Finn (ed), Administrative Law for the New Millennium , Canberra, AIAL, 2000, 37 at 46–47.

3 Control by whom, for what? 16.3.1 Introduction Australian administrators are now potentially accountable in numerous ways: to superiors; to external authorities; and up to a point, to market forces. One of the positive effects of this web of accountability is to reduce the likelihood of administrators’ behaviour being influenced by personal and institutional self-interest. Left to their own devices, there is always a danger that people will look after their own interests in preference to those of others. This [page 344] may be through simple self-interest. However, more probably, it will reflect self-interest, mixed with the belief that what is good for oneself is good for the society at large. (See, for example, Painter (in Power), who argues persuasively that estimable values, such as merit and efficiency, can be drawn on and operationalised in ways which enhance mediocrity and produce no more than ritualistic efficiency. This well-founded cynicism underlies the rule against bias, and it constitutes a major justification for the institutions of administrative law. However, the range of accountability measures can give rise to difficulties. First, different external agents are likely to impose different expectations. Legal institutions value legality; anti-corruption agencies value honesty; Auditors-General seek efficiency; and most politicians want both to do good and to hold on to office. Sometimes these differences do not matter. Legality, honesty and efficiency often imply similar expectations, and these expectations may be consistent with politicians’ expectations. Yet while these different values will often be compatible, this will not always be the case: otherwise they could all be verbally assimilated to a common value. Moreover, the meaning of these values will be the meaning given to them by different bodies, and these meanings will tend to reflect the distinctive cultures of different bodies. Meanings will also be complicated by the problems faced by those who must operationalise them in everyday practice. Faced with conflicting expectations, administrators will sometimes have to decide whose expectations are to prevail, and this will depend on which external agents are most salient. Responding to external expectations will also be complicated by the problem of knowing precisely what any given external agent expects. W hile lawyers expect legality, it may sometimes be difficult for administrators to know what this entails in a particular case. After all, even the courts sometimes make a mess of the law. For the typical administrator, law will be the agency’s translation of administrative law into a form manageable by administrators. This may involve a degree of obsolescence, and is likely to involve a degree of over simplification. The ideal of efficiency is translated into the criteria by which it is measured, and these may prove poor indicators. (For discussions of this issue, see Halligan et al, p 44; B Ryan, ‘Performance Monitoring and Evaluation: Rationality and Realism’ (1993) Australian Journal of Public Administration 52,252–255, for a short, optimistic assessment; Halligan and Power, pp 63–4 (imposition of change as performance indicator), 112, 137 (criticisms of New South Wales indicators); N Ryan, who highlights what can happen when measurement of outputs is difficult). Political expectations may be so blurred by inconsistent expectations as to be capable of being realised only on the basis of imputed goals. Different mechanisms of control empower different groups and interests. Law favours those who can mobilise it (Kellow in Power, p 73); Auditors-General protect collective interests, but arguably a rather economically rational kind of collective interest (Kellow in Power, pp 69–71). Political control favours the interests of the politically influential and at its worst may involve patronage and inefficiency. (This, in the corrupt 19th century, was the rationale for attempts to insulate personnel policy and government enterprises from direct political control: Halligan and W ettenhall, pp 28–30; Painter in Power, p 78; Halligan and Power, pp 21, 34–7, [page 345] 115.) Market control strengthens the influence of those who can afford to go shopping. In seeking to discourage patently improper behaviour on the part of administrators, administrative law

therefore has strong and powerful allies, but in other contexts, it must fight against others who are also involved in the business of controlling administrators. It will be at its most effective when it can appeal to widely shared values, and to a consensus in relation to their implications in the particular case. Its survival to date has illustrated the degree to which it has been able to do this in the past. It remains to be seen how it responds to reductions in the degree to which the system is funded, and to powerful political attacks on the individualist, rights orientation which currently underpins it.

Further tutorial discussion 1. Suppose that you have been asked to design the bureaucracy for a small, well-educated, moderately affluent Western country with a moderately strong liberal-democratic tradition. W hat kind of bureaucracy would you like to establish? W hat kind of institutional arrangements do you think would contribute to this? 2. Halligan et al (pp 25–6) point out that commercialisation may entail commercial approaches to risk management, including the use of less rigorous accounting procedures in cases where the costs of detecting misappropriation are likely to exceed the money saved through such measures. The Ombudsman, the AuditorGeneral and others have all expressed reservations about the adoption of a risk management approach to dealing with fraud and misappropriation. W hat’s wrong with applying a strict risk management approach in relation to the use of government resources? 3. W hat approach would risk management suggest where there is a 70 % probability that a given course of action is judicially reviewable, a 10 % chance that there will be an application to review it, and where taking that course of action will save the department $1,000? 4. Read the latest Annual Report of your favourite department. W hat performance indicators did it use? Are there any and what important considerations were not tapped by these indicators? Is concern with these indicators likely to promote indicator-ritualism?

Further reading ARC, Government Business Enterprises and Commonwealth Administrative Law , Report No 38, ARC, Canberra, 1995. Corbett, D, Australian Public Sector Management , 2nd ed, Allen and Unwin, St Leonards, 1996, chs 9–11. (A concise summary of processes whereby administrators are made accountable to bureaucratic superiors, external stakeholders, and occasionally, even to bureaucratic subordinates.) [page 346] Halligan, J and Power, J, Political Management in the 1990s , Oxford University Press, Melbourne, 1992. (Examines shifts towards managerialism within the Commonwealth and four state public services. Overlaps with, but is more comprehensive than, other references cited here.) Halligan, J and Wettenhall, R (eds), Hawke’s Third Government: Australian Commonwealth Administration, 1987–1990 , University of Canberra and RIPA (ACT), Canberra, 1992. (Halligan et al provide a detailed account of the reform process and its effects, along with a comprehensive bibliography; Davis provides a good clear analysis of the debate about the pros and cons of managerialism, again accompanied by a comprehensive bibliography; Bruer presents a gloomy analysis of the impact on personnel of recent reforms.) Kouzmin, A and Scott, N (eds), Dynamics in Australian Public Management: Selected Essays , Macmillan, South Melbourne, 1990. (Includes some excellent essays. Caiden is very good on changes in Australian public service cultures and organisation. Prasser provides an excellent and comprehensive analysis of organisational reforms and restructurings and their effects. Chapman gives a good discussion of leadership and responsibility. Halligan and Power provide details of reorganisations to the Commonwealth and state public services.) Mulgan, R, ‘The Accountability of Community Sector Agencies: A Comparative Framework’, Graduate Program in Public Policy Discussion Paper No 85, Canberra, 2001. (Examines different accountability structures in government, private and community agencies, noting, inter alia, the different groups to which agents are and are not accountable.) Nethercote, J R (ed), Parliament and Bureaucracy . Parliamentary Scrutiny of Administration: Prospects and Problems in the 1980s , Hale and Iremonger, Sydney, 1982. (Dated, but a useful compendium of papers.) Power, J (ed), Public Administration in Australia: A Watershed , Hale and Iremonger, Sydney, 1990. (Includes several important papers. Halligan and Wettenhall examine the changing nature of public administrations in Australia. Finn discusses Australia’s distinctive colonial administrations. Kellow is good on ‘responsibility’ in government. Painter shows how noble values can be used to legitimate less noble practices.)

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PART 6 Choice of Forum

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17 Choice of Forum General By now it will be apparent that administrative decisions can be challenged in a variety of ways. Decisions may be reviewable by an Ombudsman, by a tribunal or by a court. Tribunal decisions may be both appealable and reviewable. The range of review options varies according to the decision. The first step in determining an appeal strategy is to determine the range of options available in relation to the particular decision. Some decisions are subject to formal internal review, while others are not. Some, but not all, decisions are reviewable by specialist tribunals. The AAT’s jurisdiction is broad but does not extend to most migration decisions. Some decisions are reviewable by the Federal Circuit Court, others only by the Federal Court or the High Court. It may not always be clear where to start when seeking review, nor how one is subsequently to progress. Choice will be partly structured by law, but largely structured by circumstances.

Objectives After studying this chapter, you will understand: 1. legal factors which affect choice of forum; and 2. strategic factors bearing on choice of forum.

1 Law and choice of forum 17.1.1 Ombudsman Choice of forum is partly structured by law. Some laws create mild biases in favour of some procedures rather than others; other laws condition use of some procedures on prior resort to other procedures. Ombudsman legislation typically provides for cases where a matter could be handled both by the Ombudsman and another body. Commonwealth legislation includes detailed provisions with respect to such cases. W here the matter is already being or has been considered by a tribunal or court, the Ombudsman may investigate it, but only if there are special reasons justifying such an investigation: Ombudsman Act [page 350] 1976 (Cth) (Ombudsman Act) s 6(2); Ombudsman Act 1989 (ACT) s 6(5). W here the matter could be considered by a court or tribunal, the Ombudsman may decline jurisdiction if convinced that it would be reasonable for the complainant to seek or to have sought, court or tribunal review: Ombudsman Act s 6(3); Ombudsman Act 1989 (ACT) s 6(6). The Commonwealth Ombudsman may decline jurisdiction if there is adequate provision for departmental review and where complainants are availing themselves of this, or should have done so: Ombudsman Act s 6(4); Ombudsman Act 1989 (ACT) s 6(2), 6(7). The Commonwealth Ombudsman may decline jurisdiction and refer a complaint to a number of other specified bodies, if the Ombudsman considers that the matter could be better handled by those bodies: Ombudsman Act s 6(4), (4D)–(4E), (5)–(8), (9)–(11), (11A)–(11C), (12)– (15), (16)–(19); and see Ombudsman Act 1989 (ACT) ss 6A and 6B. As pressures on the Ombudsman increasingly outstrip resources, the Ombudsman may also be increasingly inclined to decline to exercise its discretionary jurisdiction. State and territory legislation also provides for the Ombusdman to decline to investigate, where alternative avenues for relief exist: Ombudsman Act 1974 (NSW ) s 13(4)(b)(v); Ombudsman Act (NT) s 34; Ombudsman Act 2001 (Qld) s 23(1)(d)–(f) and 23(2); Ombudsman Act 1972 (SA) s 13(3); Ombudsman Act 1978 (Tas) s 20; Ombudsman Act 1973 (Vic) s 15A(1)(d); Parliamentary Commissioner Act 1971 (W A) s 14(4) and (5). There appears to have been no litigation in connection with these provisions. The lack of litigation from disgruntled complainants is not surprising. If complainants dislike being forced by the Ombudsman to seek relief elsewhere, they are scarcely likely to embark on the very kind of litigation they are so anxious to avoid, in the hope that they may thereby force the Ombudsman to handle their case.

17.1.2 Choice of tribunals Commonwealth legislation relating to major review areas effectively provides that where there is provision for review at several levels, lower level review must be exhausted before seeking review

at a higher level. Therefore, Social security decisions reach the AAT only after review by the Secretary or an Authorised Review Officer, and by the Social Security Appeals Tribunal (SSAT): Social Security (Administration) Act 1999 (Cth) ss 142, 179, 181. Veterans’ entitlements legislation limits AAT review to cases which have been reviewed by either the Veterans’ Review Board or by the Commission, but allows veterans to seek review of some primary decisions made by either the Commission or the Board: Veterans’ Entitlements Act 1986, ss 135, 175.

17.1.3 Choice between merits review and judicial review Under s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act (Cth)), the Federal Court and the Federal Circuit Court may decline to exercise jurisdiction, if they consider that the case might more appropriately be heard in another forum. Applications to the court to exercise this power are infrequent, and the burden lies on respondents to convince the court that it should not exercise its jurisdiction. In determining whether to decline jurisdiction, courts will be influenced by a range of considerations. Courts will be more inclined to exercise their jurisdiction if there is a real chance that a judicial decision, in relation to the application, will resolve the [page 351] underlying dispute between the applicants: Mercantile Credits Ltd v FCT (1985) 8 ALN N192. They will be less inclined to exercise their jurisdiction if the alternative forum is satisfactory in the sense of applying fair procedures, and has decisionmaking, rather than recommendatory authority: in Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31; 38 ALD 251 (Davies J at FCR 34 stated that it was the general practice of the Federal Court not to consider at first instance ‘a dispute for the adequate resolution of which a satisfactory administrative remedy has been provided’. For a discussion of the kinds of matters that may be taken into account in determining whether to decline jurisdiction, see Du Pont (Australia) v ComptrollerGeneral of Customs (1993) 30 ALD 829 where the applicant sought review of a decision by the Comptroller to recommend an inquiry into whether the applicant was guilty of dumping. Justice Heerey exercised his powers under s 10(2)(b)(ii) and declined jurisdiction on the following grounds: A decision on the legal issues raised in the application would not be conclusive of the matter. Even if the applicant were successful, it would not follow that the Anti-Dumping Authority could not ultimately find that Du Pont had in fact been guilty of dumping. The questions to be decided by the authority were mixed questions of fact and law. Commercial issues were at stake, and these were best resolved by the alternative procedures, which provided for an inquiry characterised by tight deadlines. Allowing the inquiry to proceed would not involve hardship to Du Pont. Even without sections such as s 10(2)(b)(ii), courts have the discretion to decline to hear a matter, if it would be more appropriately heard in an alternative tribunal. For instance, in Du Pont , Heerey J also exercised his discretion to decline jurisdiction by exercising his power under s 39B of the Judicature Act. Courts have declined to exercise jurisdiction to grant certiorari in cases where appeal rights are restricted, and where resort to judicial review appears to be a back door route to defeating the purpose of the relevant legislation: Meagher v Stevenson (1993) 30 NSW LR 736. They are also reluctant to order mandamus in relation to decisions, where there is also provision for a statutory right of appeal: McBeatty v Gorman [1975] 2 NSW LR 262. They are particularly reluctant to entertain applications which would involve the fragmentation of the criminal justice process, preferring instead that criminal defendants rely on the appeal process to rectify such errors that occur. Indeed, their jurisdiction to do so under the ADJR Act (Cth) has been severely curtailed: s 9A. However, courts will not decline to exercise their discretion simply because alternative redress is available.

2 Strategic considerations 17.2.1 Informal internal review: sometimes cheap and effective Informal internal review is cheap and potentially expeditious. Handled with due regard to the primary decision maker’s interest in saving face, a request for reconsideration [page 352] is likely to be successful, provided the applicant can point to new material, which could justify a different decision, or (tactfully) to an error on the administrator’s part, of the kind that the administrator might prefer to be kept private. Informal internal review is less likely to be successful where the decision is not self-evidently flawed and where the administrator has not made any obvious error. W here this is the case, there is some dispute as to the wisdom of seeking informal review. On one side is the ‘multiple bites at the cherry’ theory: if you seek review often enough, sooner or later, you may strike it lucky: see P Walsh, ‘Equities and Inequities in Administrative Law’ (1989) 58 Canberra Bulletin of Public Administration 29. On the other side is the ‘litigation burn-out’ or ‘review fatigue’ theory: the more reverses a person suffers, the greater the likelihood that the person will see no point in going any further along the review route: J Disney, ‘Access, Equity and the Dominant Paradigm’ in J McMillan (ed), Administrative Law: Does the Public Benefit ?, Canberra, AIAL, 1992, 6–7; S Nevin-Taylor, ‘Access to the Social Security Review and Appeal Process through the Department of Social Security’ (1995) 5 AIAL Forum 44. W here the likelihood of success is high, there is much to be said for the extra

bite, even at the risk of review fatigue. W here the likelihood of success at a particular level is low, there is much to be said for forgoing the bite, in order to conserve one’s psychic energy for more worthwhile applications.

17.2.2 Formal internal review: often necessary, rarely evil Formal internal review is also cheap and expeditious, and in any case, may be a condition precedent to apply for external merits review. Formal internal review frequently results in the primary decision being altered. For example 32% of internal reviews of social security decisions resulted in a change to the decision: see Centrelink Annual Report for 2010–2011. Raw ‘success’ figures must, however, be regarded with care. Success rates may vary considerably according to the type of decision being reviewed, and can also vary considerably from year to year. W here internal review is a prerequisite to tribunal review, choices do not have to be made between these two avenues. The choice between formal internal review and Ombudsman review is more complex. In the Australian Capital Territory and at the Commonwealth level, formal internal review, if available, is a prima facie condition precedent to Ombudsman review. In some other jurisdictions, it is the Ombudsman’s practice to require internal review before formally investigating a complaint. Applied rigorously, these principles could occasion considerable frustration. In practice, ‘premature’ applications will often be handled informally, expeditiously, and from the applicant’s perspective effectively. Matters for which internal review appears appropriate will be referred for review by the Ombudsman, so that the complainant does not have to initiate further proceedings. If internal review is unsuccessful, the matter may then be considered by the Ombudsman without the complainant having to reactivate the matter. Tribunals sometimes enjoy more freedom than internal review officers,who may, by statute, be required to apply government guidelines and, compared to courts, the specialist review tribunals tend to be cheaper, more user-friendly and expeditious. Of those who are unsuccessful at the internal review stage, a substantial percentage appeal to tribunals, and of these a considerable number succeed. In appeals to the Veterans’ Review Board [page 353] against entitlement decisions, 25% succeeded; in appeals against assessments, 47% resulted in changed payments. Almost a third of those, who unsuccessfully sought internal review of social security decisions, and then appealled to the SSAT, almost a third (30% ) resulted in changed decisions: see 2010-2011 Annual Reports of VRB and DSS. Even where internal review officers’ decisions were correct, tribunal review may make sense, partly because tribunals may take into account matters not open to internal review officers, and partly because applicants for review may present additional material to the tribunal.

17.2.3 The appeal of the Ombudsman In general, there is much to be said for resort to the Ombudsman provided the Ombudsman will investigate the matter. The Ombudsman is free, moderately expeditious, although not always as expeditious as some of the specialist tribunals, and user-friendly. Moreover, the Ombudsman has a unique advantage. This being that in cases where the law dictates an unjust outcome in a particular case, the Ombudsman may recommend either a change to the law or an ex gratia payment. Lawyers sometimes object to the fact that decisions by the Ombudsman are not binding, but in practice, recommendations are implemented almost as a matter of course. Indeed, except, perhaps in relation to review by some of the specialist tribunals, the attractions of the Ombudsman are such that it is hard to think of any good reasons for not seeking Ombudsman relief, if this becomes available. Some people dislike the Ombudsman’s procedure and are unhappy about a procedure where they cannot observe how the Ombudsman interacts with relevant officials. It is also possible that particular Ombudsmen will acquire reputations for being less sympathetic towards complainants than tribunals. One drawback to Ombudsman review is that as the Ombudsman is concerned with the quality of administration, the Ombudsman will not recommend a new decision simply because the decision complained of was not the correct or preferable one.

17.2.4 Generalist merits review tribunals Bodies such as the Commonwealth Administrative Appeals Tribunal (which we will call ARTs — Administrative Review Tribunals) tend to be less expensive, and more expeditious than courts, but not to such an extent that ART review is always preferable to judicial review. Filing fees in some cases are high, and while legal costs tend to be lower than in judicial review cases, successful applicants in tribunal matters are often not entitled to costs. However, these rules vary by jurisdiction. In those rare situations where a party’s case is based on a strong legal point, ART review may actually be less economically attractive than judicial review. From the standpoint of most parties, ART review’s greatest advantage lies in the power of the ARTs to engage in (yet more) merits review. Moreover, ART review normally means that parties can introduce additional evidence to bolster their case. Most ART cases appear to turn on questions of fact and on the question of how discretions ought to be exercised rather than on questions of law or mixed questions of fact and law. In the majority of ART cases, there would be little point in seeking judicial review, since there would not have been any reviewable error of law. Even where there have been errors of law, ART review will often be preferable, as the ARTs’ powers include the making of a new decision. W here new decisions are likely to be favourable to the applicant, there is [page 354] much to be said for ART review. The new decision will be made sooner than will be the case following judicial review. Moreover the new decision will be made by an independent tribunal rather than by the person, whose decision has been reviewed. A person with a strong case on the merits would normally be advised to seek ART review, if available, in preference to judicial review.

17.2.5 Judicial review: a last resort, or a source of useful delay but at a price One might therefore wonder why anyone would seek judicial review in preference to other forms of review. One answer is that a party may wish to set a particular legal precedent. ART decisions have far less precedential authority than Federal or Supreme Court decisions. Parties who want authoritative legal rulings should therefore seek judicial review. Such parties will be exceptional. Most litigants are not so publicly spirited, as to be willing to invest large amounts of money in an action designed to benefit not only themselves but others. Those regularly involved in particular transactions may, however, have an interest in clarifying the law, as may interest groups. A second reason for seeking judicial review before exhausting other avenues may be strategic. Applications for review may be used to buy time. Time comes at a cost, but the cost may be worthwhile. The threat of costs may be used to extract concessions from another party, especially where litigation involves both government and a number of non-government parties. Costs can be threatened by the very powerful, and also by the relatively powerless. Finally, judicial review may be more attractive than tribunal review, where the applicant has a strong case on the law, and a weak one on the merits. In such a case, judicial review may well result in the decision being quashed. An appeal may also result in the error being cured, and the decision affirmed. If the primary decision is one which leaves the applicant worse off, (as distinct from one which involves a refusal to make a decision, which would be to the advantage of the applicant, the restoration of the status quo ante will be to the applicant’s advantage. It may be possible, for example, for an unlawfully (but deservedly) dismissed official to retire and qualify for a pension before reconsideration of the matter according to law. An illegal immigrant may have bought time. Reconsiderations can sometimes take years. Dubious entrepreneurs may be able to arrange their financial affairs to the advantage of their families. W here the primary decision involved a failure to confer a benefit, quashing achieves far less, unless the case on the merits is also reasonably good. Even then, however, judicial review may sometimes be advantageous, especially where people are concerned more with the nature of the final outcome than with the speed at which they can achieve it. Success in applications for judicial review can give the applicant a moral edge in negotiating with decision makers. It also indicates that the applicant is a more than usually determined person, and this increases the person’s bargaining power. Decision makers are also likely to be mindful of the fact that courts will not be impressed if, on reconsideration, the decision maker makes further errors. Research by R Creyke, J McMillan and D Pearce demonstrates that successful judicial review applications are normally followed by favourable substantive outcomes, when the matter is reconsidered by the administration: ‘Success at Court — Does the Client W in?’ [page 355] in J McMillan (ed), Administrative Law Under the Coalition Government , AIAL, Canberra, 1997, p230. People with a strong legal case and a borderline merits case might well be advised to seek judicial review in preference to merits review, insofar as they have the choice and the resources. The attractiveness of judicial review may also depend on the court in which the application is to be brought. The Federal Circuit Court was established with a view to it being a more accessible court than the Federal Court. Insofar as it is faithful to its progenitors’ hopes, and those of its initial appointees, unrepresented applicants should find it easier to present their cases before it. Also one would expect that the fees charged by lawyers, who appear before it will be lower than those charged for Federal Court appearances. In practice, applications for judicial review will normally be a strategy of last resort. This is reflected in the rarity of applications to the courts to exercise their discretion under s 10(2)(b)(ii) of the ADJR Act.

17.2.6 Where to stop Applications for review can be costly. Even when review involves minimal financial outlay, it may involve psychological costs. Delays can produce anxiety, and long drawn out litigation can occasionally produce a degree of obsessiveness to the point where concern with the dispute gets in the way of normal activities. Once the financial costs inherent in higher court litigation become relevant, these problems can be exacerbated. At some point, litigation has to stop. It should stop when it’s no longer worthwhile proceeding. This involves attention to the strength of the applicant’s case, the stakes, and whether persistence will payoff. Some applicants may consider that delay is useful. Lawyers, however, should tread carefully before suggesting this.

Problem Re-examine Alexis Andropov’s case: see Chapter 7 . Alexis is impressed by your legal analysis, and wants to know what he should do. Advise him.

Discussion There are, potentially, three courses of action open: 1. A complaint to the Commonwealth Ombudsman; 2. An appeal to the tribunal under s 36(2) of the Victims Compensation Act; 3. An application for judicial review under either the ADJR Act (Cth) or the Judiciary Act 1903 (Cth). You would need to advise on the strengths and weaknesses of each of these courses.

The Ombudsman The Ombudsman might be entitled to decline jurisdiction on the grounds that this is a case where it would be reasonable for Mr Andropov to seek tribunal review: Ombudsman Act s 6(3). However, it would certainly be open to the Ombudsman to take the view that while it was open to him to appeal to the AAT, the case was one for the Ombudsman. [page 356] The Ombudsman might consider that the issues were sufficiently straightforward to warrant informal handling, and that it would be pointless to subject Alexis to the formality of an AAT hearing. If so, being a reasonable person, the Ombudsman would probably try to have the matter resolved quickly and informally, and might well be able to succeed. While the minister’s policy statement poses some problems, it is at least arguable that the Director has misinterpreted it, and on that basis, ministerial face could be saved, if that is relevant to achieving compliance with any favourable recommendation she might make in relation to the matter. If the Ombudsman decides not to handle the matter, Mr Andropov would be informed accordingly, and given details about how to apply to the AAT and about the time limits. He should inform the AAT that he had been advised by the Ombudsman’s office to apply for review: see D C Pearce, ‘Discretion to Decline Jurisdiction’ Australian Administrative Law , LexisNexis [10-3120]. There is, therefore, much to be said for raising the matter with the Ombudsman, whose services are still free, and who often handles matters expeditiously. It is likely that the Ombudsman would be sympathetic to Mr Andropov’s case, and would be able to use persuasion or the threat of a report to encourage the Director to extend time. The only problem with reliance on the Ombudsman is that the Director might choose to stall.

AAT review There is a statutory right to appeal to the AAT against a refusal to grant an extension of the time for lodging an application: Victims Compensation Act s 36(2). The appeal must be made within three months of notification of refusal: s 36(3). An appeal to the tribunal will probably involve payment of a filing fee, but need not involve much more additional expense, unless, of course, Mr Andropov wanted to be legally represented there. The application can be filled out by a layperson and the tribunal’s procedures are sufficiently informal to enable a person of Alexis’ experience to present a case without legal assistance. The tribunal is not bound by government policy, even where that policy is legal. It is prepared to depart from government policy. It is therefore likely to be more sympathetic to Mr Andropov than the Director has been. That said, you should warn that the tribunal is not concerned with whether the Director’s decision was legally flawed, but with what, in all the circumstances, is the correct and preferable decision. It might disagree with the Director’s reasoning, but still make the same decision as he did. If it were to do so, the matter could be taken further, but there would be no point in doing so, unless the AAT had clearly erred in law. A decision to refuse an extension would not necessarily involve such an error. If the Director’s decision involved a legal error, this was not because it was wrong, but because the Director misconceived his duties.

Judicial review It is clear that the High Court, the Federal Court and the Federal Circuit Court would have jurisdiction to entertain an application for judicial review. There is no problem with standing. The decision in question is a decision of an administrative nature made under an enactment. The Federal Court and the Federal Circuit Court would have jurisdiction to entertain an application for an order of review under the ADJR Act. The Federal Court would also have jurisdiction under s 39B . The High Court would have jurisdiction under the Constitution: s 75(iii) and (v). Should an application be made under the ADJR [page 357] Act , the respondent might urge the court to decline to exercise its jurisdiction pursuant to s 10(2)(b)(ii) of the ADJR Act. If the application were made under the Judiciary Act 1903 (Cth), the Federal Court might decline to exercise its jurisdiction pursuant to its implied powers. The Director might, however, be content to have the matter resolved by the court, if only to embarrass the minister. The court might decline to exercise its jurisdiction. Its decision in relation to the legality of the Director’s refusal to extend time would not necessarily resolve the question of whether leave should be granted. Countervailing considerations would include the fact that the issues of legality are not so tightly interwoven with questions of fact to suggest that they would best be handled by the tribunal. Additionally, the legality issue is of general importance. Its resolution would assist both the Director and the tribunal. If an application were to be made for judicial review, it should be made to the Federal Circuit Court rather than to the Federal Court or the High Court. The Federal Circuit Court is designed to be more accessible, and litigation before that court would be cheaper, whether Mr Andropov represented himself or was legally represented. Given that the case is not a particularly complex one, there is no danger that the Court would refer the matter to the Federal Court. It would be pointless to apply to the High Court, since the Court would simply exercise its powers under s 44 of the Judiciary Act 1903 (Cth) and refer the case to the Federal Court.

Conclusion The application would probably succeed, but all that would be achieved would be the quashing of the Director’s decision, coupled by an order that the Director reconsider the matter according to law. It would be open to the Director or to the Director’s delegate, if the Director were to delegate the decision, to decide that the initial refusal was warranted. Even if the outcome of the reconsideration were to be as desired, considerable time would have elapsed. In general, in matters relating to compensation, it is best that the matters be resolved as quickly as possible, especially where, as is the case here, there is no interest payable on the sum awarded. The only circumstances in which delay might be advantageous would be if its effect was that the reconsideration would be done by a new and more sympathetic Director or by a sympathetic delegate or that review of the Director’s decision would be performed by a more sympathetic AAT. If the Director or delegate were again to refuse leave to apply, Mr Andropov might then have no alternative but to appeal to the AAT or to seek further judicial review. If this was the case, then judicial review proceedings would have yielded almost nothing but delay, expense and anxiety. For these reasons, judicial review should not be recommended.

Further tutorial discussion 1. Are there cases where the avoidance of ‘review fatigue’ might encourage parties to seek judicial review rather than tribunal review? 2. Using the judicial process to achieve ends other than legal ends can amount to abuse of process. W hat can courts to do about apparent abuses of process? How far can courts prevent actual abuse of process?

[page 359]

Appendix Victims Compensation Act 2008 Part 1 Preliminary 1 Name of Act This Act is the Victims Compensation Act 2008.

This Act is the Victims Compensation Act 2008. This Act commences on a day or days to be appointed by proclamation.

3 Objects of Act The objects of this Act are as follows: (a) to give effect to a statutory scheme of compensation for certain victims of crimes of violence. …

4 Definitions act of violence has the meaning given to that expression by section 5. compensable injury has the meaning given to that expression by section 10 and Schedule 1. Board means the Victims Compensation Board. compensation assessor means a compensation assessor appointed by or under section 64. Director means the person holding office as Director of Victims Compensation under Part 2 of the Public Sector Contracts Act 2007. exercise a function includes perform a duty. [page 360] function includes a power, authority or duty injury means: (a) actual physical bodily harm, (b) nervous shock, (c) mental illness or disorder (whether or not arising from nervous shock), but does not include injury arising from loss or damage to property. offence means criminal offence. schedule of compensable injuries means the schedule of compensable injuries set out in Schedule 1. statutory compensation means compensation payable under Part 2. tribunal means the Commonwealth Administrative Appeals Tribunal. victim has the meaning given to that expression by section 7.

5 Act of violence (1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons,

(c) that has resulted in injury or death to one or more of those persons and (d) that has taken place on Commonwealth property, in a Common-wealth territory or which is connected with an offence against Commonwealth law. (2) For the purposes of this section, violent conduct extends to sexual assault and apprehended domestic violence. (3) An act is related to another act if: (a) both of the acts were committed against the same person, and (b) in the opinion of the Tribunal or compensation assessor, both of the acts were committed at approximately the same time or were, for any other reason, related to each other. However, an act is not related to any earlier act in respect of which an award of statutory compensation has been made if it occurs after the award was made. (4) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence. [page 361]

Part 2 Statutory compensation scheme Division 1 Victims eligible for statutory compensation

6 Persons eligible for statutory compensation A victim of violence is eligible for statutory compensation, and if a victim dies as a direct result of an act of violence, the victim’s estate is eligible for compensation.

7 Who is a victim? (1) A victim of an act of violence is a person who receives a compensable injury, or dies, as a direct result of that act. (2) A victim of an act of violence extends to a person who receives a compensable injury, or dies, as a direct result of: (a) trying to prevent another person from committing that act, or (b) trying to help or rescue another person against whom that act is being committed or has just been committed, or (c) trying to arrest another person who is committing, or who has just committed, that act.

Division 2 Schedule of compensable injuries

10 Prescription of schedule of compensable injuries (1) The schedule of compensable injuries is set out in Schedule 1. (2) The schedule specifies those injuries that are compensable injuries for the purposes of this Act. (3) The schedule specifies, as the standard amount of compensation for a compensable injury, a specified amount or an amount within a range of specified amounts.

11 Compensable injuries described by reference to act of violence (1) This section applies when the schedule of compensable injuries specifies, as a compensable injury, all injuries received as a direct result of a specified act of violence and specifies a single standard amount or range of compensation for all of those injuries. (2) An applicant for statutory compensation may elect whether to claim compensation of that single standard amount or range or to claim compensation of the total standard amounts for each of the injuries received by the applicant (subject to any discount rates or other provisions in the schedule of compensable injuries). [page 362] (3) In the absence of an election, the person determining the application is to make the election. Note: See injury described in Schedule 1 as sexual assault.

12 Substitution or amendment of schedule

The regulations may amend Schedule 1 by substituting or amending the schedule of compensable injuries.

13 Provisions relating to schedule (1) If more than one compensable injury is received by an eligible victim, the schedule of compensable injuries may exclude the payment of compensation, or discount the rates of compensation payable, for some of those injuries. Note: See paragraph 3 of Schedule 1. (2) The schedule of compensable injuries may make provision for compensable injuries of a kind not specifically described in the schedule and for the standard amount of compensation payable for such an injury. Note: See paragraph 8 of Schedule 1. (3) The schedule may contain provisions relating to the application of the schedule (including provisions relating to the interpretation of the schedule, provisions relating to establishing whether an injury is a compensable injury and provisions of a transitional nature consequent on the amendment of Schedule 1).

Division 3 Statutory compensation payable

14 Compensation payable to victims (1) The statutory compensation for which a victim of an act of violence is eligible comprises: (a) compensation for compensable injuries received by the victim as a direct result of the act of violence, and …

17 Compensation for compensable injuries (1) Compensation for compensable injuries is payable in accordance with the schedule of compensable injuries. (2) Unless the amount of compensation is required or authorised to be reduced by this Act, the amount of compensation payable is the standard amount calculated in accordance with the schedule.

18 Compensation for financial loss (1) Compensation for financial loss is compensation for the following: (a) actual expenses, [page 363]

(2)

(3)

(4) (5)

(b) actual loss of earnings, (c) loss of personal effects. Compensation for loss of personal effects is compensation payable to a victim who has received a compensable injury for the loss of, or for damage to, any personal effects that were worn or carried by the victim at the time of the act of violence and that were lost or damaged as a direct result of that act. The maximum amount payable in respect of an act of violence is $1,000. Compensation for actual loss of earnings shall be: (a) 90 per cent of the victim’s average weekly earnings during the year prior to the first act of victimisation in relation to which compensation is claimed, except that: (i) the payment shall not exceed $345.20 per week, (ii) in the case of a worker who is over 21 years of age at the time of payment — the payment shall not be less than $290 per week, and (iii) in the case of a worker whose average weekly earnings do not exceed $260 per week — the payment shall be 100 per cent of those earnings or $230, whichever is the lesser amount, (b) in addition, $95 per week in respect of: (i) a dependent wife or dependent husband of the worker, or (ii) if there is no dependent wife or dependent husband at any time during which weekly payments are payable — any one dependent de facto spouse or other family member of the worker. The maximum amount of compensation for financial loss to which a person is entitled in respect of an act of violence is $10,000. Compensation for financial loss is not payable to a person to the extent that the person has received, or is entitled to receive, payment for that loss under any insurance or agreement or under any other Act or law.

19 Maximum amount of compensation (1) The maximum amount of statutory compensation payable to a single person in respect of an act of violence

is $50,000 …

20 Threshold amount of compensation (1) Statutory compensation is not payable to a single person unless the total amount of compensation payable to that person, as compensation for compensable injuries, is at least: (a) subject to paragraph (b) $2,400, or (b) such other amount as is fixed by proclamation. (2) Any such proclamation: [page 364] (a) may fix a single amount or different amounts in different cases, and (b) may be revoked or varied from time to time by a further proclamation. (3) This section applies despite any other provision of this Act.

21 Special payments for counselling of victims (1) A victim who is eligible for statutory compensation may apply for payment for approved counselling services for the victim as a consequence of the act of violence. (2) A victim is entitled to an initial period of 2 hours of counselling (including counselling for the purposes of an application for continued counselling or for statutory compensation). (3) The victim is entitled to payment for such further periods of counselling (not exceeding 20 hours) as a compensation assessor considers appropriate. Payment for any further period of counselling exceeding 20 hours may be made only with the approval of the Director. (4) The victim is entitled to payment for approved counselling services even though the victim is entitled to workers compensation in respect of the matter or is awarded compensation by a court under Part 4. (5) The victim is entitled to payment for approved counselling services even though the maximum amount of statutory compensation is payable in respect of the act of violence. (6) The victim is not entitled to payment for approved counselling services if it is unlikely that the victim would qualify for statutory compensation because of the application of the minimum amount of statutory compensation payable under this Act. A determination under this subsection is to be made on the assumption that the victim is the only victim of the act of violence. (7) Payments for approved counselling services are to be made from the Compensation Fund directly to the service provider, except that payments for the initial period of 2 hours may be made from that Fund by way of reimbursement of the victim if it was not reasonably practicable for the victim to obtain approval for the payment before undertaking the counselling. (8) An appeal does not lie to the Tribunal against a decision of a compensation assessor or the Director under this section. However, a decision of a compensation assessor may be reviewed by the Director and, if the period of counselling exceeds 20 hours, by a member of the Tribunal. (9) Compensation rules may be made for or with respect to payments for counselling services, including the application (with or without modification) of the provisions of this Act relating to statutory compensation. (10) For the purposes of this section, approved counselling services are services provided by a professional counsellor chosen by the victim from a list of counsellors designated by the Director. [page 365]

Division 4 Persons not eligible for statutory compensation

24 Other persons not eligible to receive compensation (1) Claimants for court compensation awards A person is not eligible to receive statutory compensation in respect of an act of violence if the person has been paid, or is entitled to be paid, compensation awarded by a court in respect of that act under Part 4 or if the person’s application for such compensation is pending … (2) Offenders A person is not eligible to receive statutory compensation in respect of an act of violence if it occurred while the person was engaged in behaviour constituting an offence.

Division 5 Applications for statutory compensation

25 Lodging of applications (1) An application for statutory compensation may be made: (a) by a victim, or (b) by any other person, on behalf of a victim, who has a genuine interest in the welfare of that victim. (2) An application: (a) must be in the form required by the compensation rules, and (b) must be accompanied by such documentary evidence (such as medical certificates) as may be required by that form, and (c) must be lodged with the Director.

26 Time for lodging applications (1) An application for statutory compensation must be duly lodged within 2 years after the relevant act of violence occurred … (2) An application that is lodged out of time may be accepted with the leave of the Director.

27 Consideration of applications by compensation assessors (1) Each duly lodged application for statutory compensation is to be considered by a compensation assessor. (2) The application is to be dealt with by a compensation assessor without conducting a hearing into the matter. [page 366]

28 Medical examinations (1) A compensation assessor may require an applicant for statutory compensation to undergo an examination (not being an examination that is unreasonable, unnecessarily repetitious or dangerous): (a) by a duly qualified medical practitioner, or duly qualified psychologist, specified by the assessor, or (b) by a duly qualified medical practitioner or duly qualified psychologist belonging to a class of medical practitioners, or class of psychologists, specified by the assessor. (2) The costs of any such examination are to be paid for out of the Compensation Fund.

29 Determination of applications (1) After considering an application for statutory compensation, the compensation assessor must determine the application: (a) by making an award of statutory compensation, or (b) by dismissing the application. (2) An award of statutory compensation must not be made unless the compensation assessor is satisfied, on the balance of probabilities, that the person to whom the application for that compensation relates: (a) is a victim, … (b) is eligible to receive the amount of compensation provided by the award. (3) The compensation assessor must, in determining the application, have regard to the guidelines issued by the Board under section 65. (4) W ritten notice is to be given to the applicant of the determination of the application.

30 Reasons for not making award or for reducing amount of compensation payable (1) In determining whether or not to make an award of statutory compensation and in determining the amount of compensation to award, the compensation assessor must have regard to the following: (a) any behaviour (including past criminal activity), condition, attitude or disposition of the primary or secondary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim, (b) whether the act of violence was reported to a police officer within a reasonable time, (c) whether that victim participated in the commission of the act of violence, encouraged another person to commit the act of violence or otherwise gave assistance to any person by whom the act of violence was committed, [page 367]

(d) whether that victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of any person by whom the act of violence was committed or alleged to have been committed. (2) If the compensation assessor is satisfied that the applicant may be entitled to workers compensation (or payment in the nature of workers compensation) in respect of the act of violence to which the application for statutory compensation relates, the assessor is to postpone the determination of the application until any entitlements to workers compensation have been determined.

34 Compensation may be awarded subject to conditions (1) An award of statutory compensation (including an interim award) may be made subject to such conditions as the compensation assessor thinks fit: (a) as to the notification to the Director of such matters (including matters relating to the financial circumstances of the person to or for whose benefit the award is made) as may be specified in the notice of determination relating to the award, or (b) as to the assignment by the person to or for whose benefit the award is made of that person’s right to any entitlement that the person has by way of damages awarded in civil proceedings, or (c) as to the repayment of the whole or any part of the amount of the award under such circumstances as may be specified in the notice of determination relating to the award, or (d) in the case of an award that is payable to a person for the benefit of some other person: (i) as to the payment of the statutory compensation to or for the benefit of that other person, or (ii) as to the holding of the whole or any part of the statutory compensation on trust for that other person. (2) The compensation rules may prescribe conditions to which an award of statutory compensation is subject.

Division 6 Appeals and references to the Tribunal

36 Appeal to Tribunal by applicant (1) An applicant for statutory compensation who is aggrieved by the determination of a compensation assessor in respect of the application may appeal to the Tribunal against the determination. (2) A person who is aggrieved by a determination of the Director to refuse leave for a late application for statutory compensation may appeal to the Tribunal against the determination. [page 368] (3) An appeal may be made: (a) within the period of 3 months after the day on which the relevant notice of the determination made by the compensation assessor or Director was duly served on the person, or (b) within such further time as the Tribunal may in exceptional circumstances allow.

37 Reference of application to the Tribunal by assessor (1) If the compensation assessor dealing with an application for statutory compensation considers that the determination of the application requires a hearing, the Director may refer the application to the Tribunal for a hearing into and determination of the matter.

Part 3 Administration of statutory scheme Division 1 Director, assessors and other staff

63 Director of Victims Compensation, Registrar of the Board and other staff (1) A Director of Victims Compensation, Registrar of the Board and such other staff as are necessary for the purposes of this Act are to be employed under Part 2 of the Public Sector Contracts Act 2007. (2) The Director may delegate to the Registrar of the Board, a compensation assessor or to any such other staff any of the functions of the Director under this Act, other than this power of delegation.

64 Compensation assessors (1) Compensation assessors are to be employed for the purposes of this Act under Part 2 of the Public Sector Contracts Act 2007. (2) A person ceases to be a compensation assessor if the person ceases to be so employed.

(3) The Director is a compensation assessor.

65 Guidelines and arrangements relating to compensation assessors (1) The Board may issue guidelines, consistent with this Act and the compensation rules, to compensation assessors with respect to the determination of applications for statutory compensation. Compensation assessors must have regard to those guidelines in the exercise of their functions under this Act. [page 369] (2) The Director is (subject to this Act) responsible for making arrangements for the work of compensation assessors (including the allocation of matters to particular assessors). (3) The Director, the appropriate Department Head or any other public servant may not direct, overrule or interfere with the determination of a compensation assessor on a matter allocated to the assessor. However, the Director may, at any time before its determination, reallocate the matter to another compensation assessor. (4) This section does not affect the exercise of functions of the appropriate Department Head under the Public Sector Contracts Act 2007 with respect to compensation assessors.

Part 6 Miscellaneous 88 Regulations The Minister may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Schedule 1 Compensable injuries 1.

2.

3.

Description of compensable injuries The injuries specified in column 1 of the table to this Schedule are compensable injuries for the purposes of this Act. Standard amount of compensation The standard amount of compensation for any such compensable injury is the amount, or an amount within the range of amounts, specified in column 2 of the table to this Schedule opposite the injury. Multiple injuries If 2 or more compensable injuries are received by an eligible victim, the standard amount of compensation for all of those injuries is the total of the following amounts (subject to the other provisions of this Act): (a) The full standard amount for the most serious injury (that is, for the injury that has the largest standard amount payable). (b) 10 per cent of the standard amount for the second most serious injury (that is, for the injury that has the same or the second largest standard amount payable). (c) 5 per cent of the standard amount for the third most serious injury (that is, for the injury that has the same or the third largest standard amount payable). (d) No amount for any further injuries. [page 370]

4.

5.

6.

Reduction of standard amount because of existing condition If the act of violence results in a compensable injury because of the aggravation, acceleration, exacerbation or deterioration of an existing condition of the eligible victim, the standard amount of compensation for the injury is to be reduced by the proportionate amount that the Tribunal or compensation assessor considers is attributable to the existing condition. Shock The following applies to the compensable injury of shock: (a) Compensation is payable only if the symptoms and disability persist for more than 6 weeks … Sexual assault The following applies to the compensable injury of sexual assault: (a) Category 1 sexual assault consists of: indecent assault, or an assault with violence in the course of attempted unlawful sexual intercourse.

7.

(b) Category 2 sexual assault consists of: unlawful sexual intercourse, or the infliction of serious bodily injury in the course of attempted unlawful sexual intercourse. (c) Category 3 sexual assault consists of a pattern of abuse involving category 1 or category 2 sexual assault, or unlawful sexual intercourse in which serious bodily injury is inflicted, or unlawful sexual intercourse in which 2 or more offenders are involved, or unlawful sexual intercourse in which the offender uses an offensive weapon. Injuries not specifically mentioned An injury not specifically mentioned in Column 1 of the table to this Schedule is a compensable injury if, in the opinion of the Tribunal or compensation assessor dealing with the application for statutory compensation the injury is similar to an injury specifically mentioned in the table. The Act then includes a table of maims which sets out dozens of different injuries, along with a sum representing the standard compensation for each injury. They range from: Brain damage serious impairment of social/ intellectual functions ($50,000) to Disease or other recognised medical illness causing disability (not being a disease or illness of the mind) disability lasting 6 to 13 weeks ($2,400). Compensation for sexual assaults is as follows: Category 1: $2,400–10,000; Category 2: $10,000–25,000; Category 3 $25,000– 50,000.

Note This legislation is largely copied from the Victims Compensation Act 1996 (NSW ), and a section of the Workers Compensation Act 1987 (NSW ) but has been modified in several respects.

Index References are to paragraphs

A Access to information see also Freedom of information ; Reasons for decisions discovery and interrogatories … . 13.5.1 common law … . 13.5.2 judicial review … . 13.5.2 government information … . 14.1.3 , 14.2.1 non-legislative information … . 14.1.2 , 14.2.1 archival material … . 14.2.1 privacy legislation … . 14.2.1 overview … . 1.3.3 , 1.3.6 , 14.1.1 public interest immunity … . 13.4.1 , 14.1.3 extent of protection … . 13.4.3 motivation for protection … . 13.4.2 statutory provisions … . 13.4.4 restraints on access … . 14.1.3 states and territories … . 1.4.3 types of information … . 14.1.2 Accountability measures … . 16.3.1 Accountable government … . 1.2.4 , 2.3.4 , 14.1.1 , 16.1.1

Adjournments Administrative Appeals Tribunal … . 3.5.8 unreasonableness … . 3.5.8 , 9.1.1 disproportionality … . 9.1.4

Administrative Appeals Tribunal accessibility … . 2.3.4 , 3.1.2 adjournments … . 3.5.8 appeals from decisions … . 3.6.1 decision, meaning … . 3.6.3 effect on decisions … . 3.6.4 Federal Court … . 3.6.3 orders of court … . 3.6.5 questions of law … . 3.6.2 , 3.6.3 application fees … . 3.2.2 applications for review … . 3.2.1 effect on decisions … . 3.3.1 extensions of time … . 3.2.4 reasons for decision … . 13.3.8 time limits … . 3.2.3 assisted dispute resolution program … . 3.3.2 case management … . 3.3.3 choice of tribunal … . 17.1.2 strategic considerations … . 17.2.4 conduct of hearings … . 3.5.1 agency representatives … . 3.5.3 confidentiality … . 3.5.13

empowering legislation … . 3.5.7 evidence … . 3.5.9 , 3.5.11 , 3.5.12 , 3.5.13 formality … . 3.5.7 inquisitorial powers … . 3.5.1 , 3.5.5 onus of proof … . 3.5.4 procedural fairness … . 3.5.8 , 3.5.9 , 3.5.11 , 3.5.12 , 10.4.2 , 10.4.7 representation … . 3.5.5 , 3.5.6 self-represented applicants … . 3.5.2 , 3.5.5 consideration of issues … . 2.2.7 ‘correct or preferable’ decision … . 2.2.10 consistency in decision-making … . 2.2.11 costs … . 3.5.14 decisions for review … . 2.4.3 decisions under an enactment … . 2.4.8 invalid decisions … . 2.4.9 stay orders … . 3.3.1 determinative powers … . 2.2.1 dismissal of applications … . 2.4.14 , 3.4.3 establishment … . 2.1.7 evidence … . 3.5.11 confidential evidence … . 3.5.13 hearsay evidence … . 3.5.11 rules of evidence … . 3.5.12 surprise video evidence … . 3.5.9 freedom of information … . 14.3.34 modifications to Act … . 14.3.35 government policy, and … . 2.2.9 , 2.2.12 , 6.3.11 absence of legislative guidance … . 2.2.10 application of lawful policy … . 2.2.10 consistency in decision-making … . 2.2.11 weight attributed to policy … . 2.2.12 inquisitorial powers … . 3.5.1 , 3.5.5 interest groups … . 2.5.4 , 2.5.8 joinder of parties … . 2.5.7 discretion to join … . 2.5.9 effect of order … . 2.5.10 ‘interests affected’ … . 2.5.8 jurisdiction … . 1.3.4 , 2.1.9 , 2.4.1 decisions for review … . 2.4.3 , 2.4.8 , 2.4.9 dismissal of applications … . 2.4.14 review of own decisions … . 2.4.12 , 2.4.13 mediation … . 3.3.2 , 3.3.6 notification of review rights … . 3.1.2 objectives … . 2.3.2 accessibility … . 2.3.4 Ombudsman referral … . 15.2.23 overview … . 1.3.4 , 2.1.9 powers … . 1.3.4 , 2.2.1 inquisitorial powers … . 3.5.1 , 3.5.5 procedural powers … . 2.4.13

preliminary conferences … . 3.3.4 procedural fairness … . 3.5.8 , 10.4.2 adjournments … . 3.5.8 appeal rights … . 10.4.7 content of obligation … . 3.5.9 hearsay evidence … . 3.5.11 rules of evidence … . 3.5.12 surprise video evidence … . 3.5.9 questions of law … . 2.2.13 appeals … . 3.6.2 , 3.6.3 reasons for decisions … . 13.3.4 , 13.3.9 provision by administrator … . 13.3.8 review of own decisions … . 2.4.12 estoppel … . 2.4.12 procedural powers … . 2.4.13 settlement of proceedings … . 3.3.2 , 3.4.1 standing … . 2.5.2 applications on behalf … . 2.5.5 interest groups … . 2.5.4 ‘interests affected’ … . 2.5.2 , 2.5.3 nature of interests … . 2.5.3 status of decisions … . 2.2.13 stay orders … . 3.3.1

Administrative law accountability measures … . 16.3.1 balance of interests … . 1.1.2 boundaries of law … . 1.1.2 , 1.1.3 characteristics … . 1.1.2 choice of forum see Choice of forum collective interests … . 1.1.2 , 1.3.3 constitutional framework see Constitution development … . 1.2.1 , 1.3.1 freedom of information see Freedom of information investigative bodies see Investigative bodies judicial review see Judicial review markets and government … . 16.2.13 , 16.3.1 merits review see Merits review Ombudsman see Ombudsman overview … . 1.1.1 , 16.1.1 personal interests … . 1.1.2 , 1.3.3 public law … . 1.1.3 , 5.1.1 private law, distinction … . 1.1.3 , 5.1.1 reform … . 1.3.2 , 1.3.4 , 1.3.5 access to information … . 1.3.6 Ombudsman … . 1.3.7 scope of law … . 1.1.2 separation of powers, and … . 1.2.6 structure of law … . 1.3.3

Administrative powers agents … . 6.4.4 , 6.4.5

implied power to authorise … . 6.4.4 decision making powers see Decision making powers delegation … . 6.4.1 , 6.4.4 discretionary powers … . 7.2.2 effect of delegation … . 6.4.2 function … . 6.4.1 general provisions … . 6.4.2 specific provisions … . 6.4.2 sub-delegation … . 6.4.3 determining scope … . 6.5.1 discretionary powers see Discretionary powers improper exercise of power … . 6.1.4 , 6.1.5 improper purposes … . 8.3.1 application of principle … . 8.3.2 ‘but for’ test … . 8.3.2 collective decisions … . 8.3.2 evidence … . 8.3.2 examples … . 8.3.1 irrelevant considerations, and … . 8.3.3 jurisdictional facts … . 9.2.4 legal powers … . 6.2.1 overview … . 6.1.5 , 6.2.1 , 6.5.1 procedural requirements … . 6.6.1 example of categorisation … . 6.6.3 mandatory/directory requirements … . 6.6.1 silence as to non-compliance … . 6.6.2 proper purposes … . 8.3.1 rule making powers see Rule making powers sources of powers … . 6.2.1 statutory sources … . 6.2.1 , 6.5.1 interpretation … . 6.5.1

Administrative Review Council Administrative Review Tribunal proposal … . 2.1.12 operation of system … . 2.1.13 establishment … . 1.3.2 grounds of review … . 9.2.6 judicial review … . 4.2.11 objectives of merits review … . 2.3.3 reasons for decisions … . 13.1.2 standing … . 5.3.7 Agents … . 6.4.4 , 6.4.5 , 7.2.2

Amicus curiae Australian position … . 5.6.3 expansion of role … . 5.6.4 overview … . 5.6.1 rights and responsibilities … . 5.6.2

Anti-corruption commissions accountability … . 16.2.8 coercive powers … . 16.2.6 Commonwealth … . 16.2.4

developments … . 16.2.4 educative functions … . 16.2.7 inquiries and investigations … . 16.2.6 maintaining integrity … . 16.2.5 overview … . 16.2.4 preventative functions … . 16.2.7 protected disclosures … . 16.2.11 recommendations … . 16.2.6 reports … . 16.2.6

Appeals merits review tribunals … . 3.6.1 Federal Court … . 3.6.3 , 4.2.13 questions of law … . 3.6.2 , 3.6.3 procedural fairness … . 10.4.6 breach of hearing rule … . 11.3.4 ‘cure’ of defect … . 10.4.7 de novo … . 10.4.6 , 10.4.7 existence of rights … . 10.4.6 intention to exclude rules … . 10.4.6 reasons for decisions, and … . 13.2.2

Assisted dispute resolution program … . 3.3.2 Attorney-General intervention … . 5.5.4 party to proceedings … . 2.5.6 public rights, protection … . 5.1.2 , 5.2.2 standing … . 5.1.2 , 5.2.2

Auditors-General independence … . 16.2.2 overview … . 16.2.1 , 16.2.2 powers … . 16.2.2

Australian Law Reform Commission equality before the law … . 11.2.1 standing … . 5.1.6

B Bias application of test … . 11.2.18 domestic bodies … . 11.2.19 function of decision maker … . 11.2.18 necessity … . 11.2.22 participants in decision making … . 11.2.21 policy-making bodies … . 11.2.18 political decision makers … . 11.2.20 statutory bodies … . 11.2.18 , 11.2.19 apprehension of bias … . 11.2.2 application of test … . 11.2.18 –11.2.22 associations … . 11.2.8 , 11.2.9 conduct of decision maker … . 11.2.10 fair and unprejudiced mind … . 11.2.3 known attitudes to witnesses … . 11.2.17

rationale of rule … . 11.2.4 reasonable observer … . 11.2.5 associations … . 11.2.8 administrative decision makers … . 11.2.9 judges … . 11.2.8 prior associations … . 11.2.9 attitudinal predispositions … . 11.2.15 , 11.2.17 group membership … . 11.2.15 objective evidence … . 11.2.16 sociopolitical issues … . 11.2.16 breach of rule … . 11.3.3 failure to object … . 11.3.5 waiver of breach … . 11.3.5 conduct of decision maker … . 11.2.10 forms of bias … . 11.2.6 associations … . 11.2.8 , 11.2.9 conduct of decision maker … . 11.2.10 pecuniary interests … . 11.2.7 freedom of information … . 14.3.31 gender bias … . 11.2.15 nemo debet esse judex in propria sua causa … . 11.2.1 neutrality of decision maker … . 11.2.1 overview … . 11.2.1 pecuniary interests … . 11.2.7 prejudgments … . 11.2.11 attitudinal predispositions … . 11.2.15 , 11.2.16 , 11.2.17 former decisions … . 11.2.14 identity of decision maker … . 11.2.15 known attitudes to witnesses … . 11.2.17 provisional views, distinction … . 11.2.12 public statements … . 11.2.13 test to establish … . 11.2.11 , 11.2.13 race bias … . 11.2.15 , 11.2.16 waiver of right … . 11.3.3 Bland Committee … . 2.1.6 , 2.1.10 Bureaucratic rule making see Rule making powers

C Case management Administrative Appeals Tribunal … . 3.3.3 overview … . 3.3.3

Certiorari jurisdictional errors … . 12.1.4 ‘no certiorari’ clauses … . 4.4.3 overview … . 12.1.2 quashing orders … . 12.1.4

Choice of forum costs, and … . 17.2.6 judicial review … . 17.1.3 , 17.2.5 merits review … . 17.1.3

formal internal review … . 17.2.2 informal internal review … . 17.2.1 merits review tribunals … . 17.1.2 , 17.2.4 Ombudsman … . 17.1.1 , 17.2.3 overview … . 17.1.1 , 17.2.6 strategic considerations … . 17.2.1 formal internal review … . 17.2.2 informal internal review … . 17.2.1 judicial review … . 17.2.5 merits review tribunals … . 17.2.4 Ombudsman … . 17.2.3 Collateral attack … . 12.1.2

Common law confidential information … . 13.4.1 , 14.1.3 public interest immunity … . 13.4.1 –13.4.3 , 14.1.3 disclosure of administrative policy … . 14.3.5 discovery and interrogatories … . 13.5.2 procedural fairness … . 10.1.3 historical development … . 10.3.1 –10.3.4 implication of duty … . 10.2.1 presumption of application … . 10.3.4 public interest immunity … . 13.4.1 , 14.1.3 extent of protection … . 13.4.3 motivation for protection … . 13.4.2 reasons for decisions … . 13.2.1 , 13.3.1 ‘no good reason’ … . 13.2.1 standing … . 5.1.10 , 5.2.1 special damage test … . 5.2.2 ‘special interest’ test … . 5.2.1 , 5.2.2 , 5.2.3 , 5.3.4 strangers … . 5.2.1 type of remedy … . 5.1.8 , 5.2.1 Commonwealth merits review tribunals see Merits review tribunals Confidential information see also Secrecy common law … . 13.4.1 , 14.1.3 public interest immunity … . 13.4.1 –13.4.3 , 14.1.3 government information … . 14.1.3 hearing rule … . 11.1.4 , 11.1.10 merits review tribunals … . 3.5.13 ministerial responsibility … . 14.1.3 Ombudsman … . 15.2.16 public interest immunity … . 13.4.1 , 14.1.3 extent of protection … . 13.4.3 motivation for protection … . 13.4.2 statutory provisions … . 13.4.4

Constitution dismissal of government … . 1.2.3 High Court … . 4.2.2 , 4.2.3 , 12.1.2 injunctions … . 12.1.2 ouster clauses … . 4.4.2 , 4.4.6 overview … . 1.2.1

parliamentary supremacy … . 1.2.2 prerogative writs … . 12.1.2 representative democracy … . 1.2.4 responsible government … . 1.2.3 rule of law … . 1.2.2 separation of powers … . 1.2.5 Human Rights and Equal Opportunity Commission … . 1.2.6 tribunals … . 1.2.6 state and territory courts … . 4.2.2 Constitutional writs … . 12.1.2

Costs merits review tribunals … . 3.5.14

Courts remedial powers … . 1.2.7 status of decisions … . 1.2.7

Cross-examination hearing rule … . 11.1.15

D Damages … . 12.1.15 Decision-makers considerations … . 8.2.1 , 8.2.6 application of principles … . 8.2.2 , 8.2.6 Australian approach … . 8.2.4 discretionary powers, and … . 8.2.4 English approach … . 8.2.3 limits to duty … . 8.2.7 neither relevant or irrelevant … . 8.2.5 irrelevant considerations … . 8.2.5 , 8.3.3 relevance, concept … . 8.2.6 relevant considerations … . 8.2.4 statutory requirement … . 8.2.1 errors of law see Errors of law findings of fact … . 9.2.1 absence of evidence … . 9.2.6 errors of law … . 9.2.6 errors of law, contrast … . 8.1.2 jurisdictional facts … . 9.2.4 knowledge and experience … . 9.2.2 probative evidence … . 9.2.2 , 9.2.5 procedural fairness … . 9.2.5 unreasonableness … . 9.2.3 notification of review rights … . 3.1.2 powers see Administrative powers reasons for decisions see Reasons for decisions Decision-making powers see also Discretionary powers agents … . 6.4.4 , 6.4.5 delegation … . 6.4.1 , 6.4.4 effect of delegation … . 6.4.2 function … . 6.4.1

general provisions … . 6.4.2 specific provisions … . 6.4.2 sub-delegation … . 6.4.3 multi-person decision making … . 6.4.5 overview … . 6.2.1 , 6.3.2 procedural requirements … . 6.6.1 example of categorisation … . 6.6.3 mandatory/directory requirements … . 6.6.1 silence as to non-compliance … . 6.6.2 reconsideration of decisions … . 7.3.5

Declarations case examples … . 12.1.5 equitable jurisdiction … . 12.1.5 merits declarations … . 12.1.6 overview … . 12.1.2 , 12.1.5 statutory schemes … . 12.1.5

Definitions action … . 15.2.6 agency … . 14.3.9 decision … . 2.4.4 exempt document … . 14.3.15 government policy … . 2.2.8 interested person … . 2.5.2 law enforcement agency … . 16.2.4 Ombudsman … . 15.1.2 prescribed authority … . 14.3.9 , 14.3.11 , 15.2.4 unreasonableness … . 9.1.2

Delay hearing rule … . 11.1.22 Delegated legislation see Subordinate legislation Denial of procedural fairness see Procedural fairness

Discovery and interrogatories common law … . 13.5.2 judicial review … . 13.5.2 overview … . 13.5.1

Discretionary powers acting under dictation … . 7.2.2 Cabinet … . 7.2.3 consultation with others … . 7.3.2 government policy … . 7.2.3 , 7.2.5 , 7.2.6 Governor-General … . 7.2.3 ministers … . 7.2.3 , 7.2.4 officials … . 7.2.4 agents … . 7.2.2 considerations, and … . 8.2.4 delegation … . 7.2.2 Executive Council … . 7.2.3 exercise of discretion … . 1.2.8 , 7.1.3 competing considerations … . 7.2.1 exercise in full … . 7.2.1

precedent … . 7.2.1 fettering of discretion … . 7.2.1 , 7.3.1 acting on others’ opinion … . 7.3.2 estoppel … . 7.3.5 government policy … . 7.3.3 , 7.3.4 strength of principle … . 7.3.5 undertakings … . 7.3.5 government policy … . 7.2.3 , 7.2.5 , 7.2.6 , 7.3.3 change of policy … . 7.3.4 departure from policy … . 7.3.3 , 7.3.4 Governor-General … . 7.2.3 legal questions … . 1.2.8 limits to discretions … . 7.1.3 merits questions … . 1.2.8 minimising discretion … . 7.1.3 limits to minimising … . 7.1.2 overview … . 6.1.5 , 6.3.2 , 7.1.1 procedural fairness … . 10.3.3 rule of law, and … . 7.1.1 scope of discretion … . 1.2.8 , 7.1.3 unreasonableness … . 9.1.1 Dismissal of government … . 1.2.3

E Errors of law findings of fact … . 8.1.2 , 9.2.1 , 9.2.6 government policy, and … . 8.1.2 intra-jurisdictional errors … . 8.1.3 , 12.1.4 irrelevant errors … . 8.1.4 jurisdictional errors … . 8.1.3 ‘face of the record’ … . 8.1.3 , 12.1.4 ouster clauses … . 4.4.3 procedural fairness … . 11.3.2 , 12.1.7 quashing orders … . 12.1.4 overview … . 6.1.1 , 6.1.3 , 6.1.5 , 8.1.1 quashing orders … . 12.1.4 reasons for decisions … . 13.3.10 statutory provisions … . 8.1.1 types of errors … . 8.1.2 unreasonableness, and … . 9.1.1

Estoppel Administrative Appeals Tribunal decisions … . 2.4.12 review of own decisions … . 2.4.12 fettering of discretion … . 7.3.5

Evidence confidential information … . 3.5.13 findings of fact … . 9.2.1 absence of evidence … . 9.2.6 errors of law … . 9.2.6 errors of law, contrast … . 8.1.2

jurisdictional facts … . 9.2.4 knowledge and experience … . 9.2.2 probative evidence … . 9.2.2 , 9.2.5 procedural fairness … . 9.2.5 unreasonableness … . 9.2.3 freedom of information … . 14.3.19 improper purposes … . 8.3.2 merits review tribunals … . 3.5.11 confidential evidence … . 3.5.13 hearsay evidence … . 3.5.11 rules of evidence … . 3.5.12 surprise video evidence … . 3.5.9 probative evidence … . 9.2.2 , 9.2.5 , 11.1.16 procedural fairness … . 9.2.1 hearing rule … . 11.1.16 merits review tribunals … . 3.5.11 , 3.5.12 probative evidence … . 9.2.5 , 11.1.16 Exclusionary clauses see Ouster clauses

Executive accountability to parliament … . 1.2.3 overview … . 1.1.2 responsible government … . 1.2.3 rule of law … . 1.2.2 separation of powers … . 1.2.5

Executive Council discretionary powers … . 7.2.3

F Federal Circuit Court judicial review … . 4.2.14 jurisdiction … . 4.2.14

Federal Court appeals from tribunals … . 3.6.3 , 4.2.13 judicial review … . 4.2.4 , 4.2.11 Administrative Decisions (Judicial Review) Act … . 4.2.5 , 4.2.11 appellate jurisdiction … . 4.2.13 Judiciary Act … . 4.2.12 transfer of proceedings … . 4.2.14 jurisdiction … . 4.2.2 , 4.2.4 Administrative Decisions (Judicial Review) Act … . 4.2.5 appellate jurisdiction … . 4.2.13 Judiciary Act … . 4.2.12 state and territory courts … . 4.2.2

Federal courts merits review, and … . 2.1.5

Fraud … . 6.1.1 , 6.1.5 Freedom of information Administrative Appeals Tribunal … . 14.3.34 modifications to Act … . 14.3.35 agency, definition … . 14.3.9

amendment of personal records … . 14.3.6 applicants … . 14.3.22 applicant’s interest … . 14.3.23 application fees … . 14.2.3 , 14.3.25 applications … . 14.3.24 availability of administrative policy … . 14.3.5 benefits of legislation … . 14.2.2 bias rule … . 14.3.31 contracted service providers … . 14.2.3 decisions … . 14.3.26 deferral of access … . 14.3.28 grant of access … . 14.3.26 refusal of access … . 14.3.29 , 14.3.30 disclosure of administrative policy … . 14.3.5 document, meaning … . 14.3.8 enforcement of duty … . 14.3.31 Administrative Appeals Tribunal … . 14.3.34 , 14.3.35 Information Commissioner … . 14.3.33 , 14.3.34 internal review … . 14.3.32 judicial review … . 14.3.36 procedural fairness … . 14.3.31 excluded agencies … . 14.3.9 , 14.3.11 exempt documents … . 14.3.2 , 14.3.3 , 14.3.7 , 14.3.15 applicant’s interest … . 14.3.23 Cabinet documents … . 14.3.17 commercial information … . 14.3.12 conditionally exempt documents … . 14.2.3 , 14.3.18 , 14.3.19 , 14.3.21 definition … . 14.3.15 effect of disclosure … . 14.3.17 interpretation … . 14.3.16 national interest test … . 14.3.21 Ombudsman reports … . 15.2.16 public interest test … . 14.3.18 , 14.3.19 , 14.3.21 refusal of access … . 14.3.29 form of access … . 14.3.27 informal policy … . 6.3.11 Information Commissioner … . 14.2.3 review of decisions … . 14.3.33 , 14.3.34 Information Publication Scheme … . 14.2.3 interpretation of Act … . 14.3.2 exempt documents … . 14.3.16 public interest test … . 14.3.20 judicial review … . 14.3.36 limitations on access … . 14.3.7 , 14.3.8 agency, definition … . 14.3.9 documents, meaning … . 14.3.8 documents of a minister … . 14.3.13 documents of an agency … . 14.3.10 excluded agencies … . 14.3.9 , 14.3.11 excluded documents … . 14.3.14

government business enterprises … . 14.3.11 prescribed authority, definition … . 14.3.9 , 14.3.11 private sector bodies … . 14.3.12 objects of Act … . 14.2.3 , 14.3.1 , 14.3.2 , 14.3.3 Ombudsman reports … . 15.2.16 overview … . 1.3.3 , 1.3.6 , 14.1.1 , 14.1.4 , 14.2.1 personal records … . 14.3.6 presumption of disclosure … . 14.3.3 privacy … . 14.3.23 procedural fairness … . 14.3.31 public interest … . 14.1.4 public interest test … . 14.2.3 , 14.3.18 application of test … . 14.3.19 concept … . 14.1.4 evidence … . 14.3.19 exemption factors … . 14.3.19 illustrations … . 14.3.21 interpretation … . 14.3.20 public interest, meaning … . 14.3.19 publication of information … . 14.3.4 reforms … . 14.2.3 refusal of access … . 14.3.29 reasons for decision … . 14.3.30 right of access … . 5.3.1 , 14.3.7 , 14.3.15 , 14.3.22 enforcement of duty … . 14.3.31 –14.3.36 prima facie right … . 14.3.7 states and territories … . 1.4.3 , 14.2.1 amendments … . 14.2.3

Friend of the court see Amicus curiae

G Government departments heads of departments … . 16.1.2 Ombudsman reports … . 15.2.21 overview … . 16.1.2 Government information see also Freedom of information access to information … . 14.1.3 , 14.2.1

Government policy Administrative Appeals Tribunal, and … . 2.2.9 , 2.2.12 , 6.3.11 absence of legislative guidance … . 2.2.10 application of lawful policy … . 2.2.10 consistency in decision-making … . 2.2.11 weight attributed to policy … . 2.2.12 definition … . 2.2.8 discretionary powers, and … . 7.2.3 , 7.2.5 , 7.2.6 change of policy … . 7.3.4 departure from policy … . 7.3.3 , 7.3.4 fettering of discretion … . 7.3.3 , 7.3.4 errors of law, and … . 8.1.2 merits review tribunals, and … . 2.2.8

absence of legislative guidance … . 2.2.10 application of policy … . 2.2.8 , 2.2.10 consistency in decision-making … . 2.2.11 legislation conferring jurisdiction … . 2.2.9 overview … . 6.3.11 , 7.3.3 procedural fairness … . 10.4.11

Governor-General discretionary powers … . 7.2.3 judicial review of decisions … . 4.2.10 overview … . 1.2.3

Grounds of review Administrative Decisions (Judicial Review) Act … . 6.1.1 classification of grounds … . 6.1.4 catch-all grounds … . 6.1.1 , 6.1.5 classification of grounds … . 6.1.4 , 6.1.5 considerations … . 8.2.1 , 8.2.6 application of principles … . 8.2.2 , 8.2.6 Australian approach … . 8.2.4 discretionary powers, and … . 8.2.4 English approach … . 8.2.3 limits to duty … . 8.2.7 neither relevant or irrelevant … . 8.2.5 irrelevant considerations … . 8.2.5 , 8.3.3 relevance, concept … . 8.2.6 relevant considerations … . 8.2.4 statutory requirement … . 8.2.1 discretionary powers see Discretionary powers errors of law … . 6.1.1 , 6.1.3 , 6.1.5 , 8.1.1 errors of fact, contrast … . 8.1.2 findings of fact … . 9.2.1 , 9.2.6 government policy, and … . 8.1.2 intra-jurisdictional errors … . 8.1.3 irrelevant errors … . 8.1.4 jurisdictional errors … . 8.1.3 statutory provisions … . 8.1.1 types of errors … . 8.1.2 unreasonableness, and … . 9.1.1 findings of fact … . 9.2.1 absence of evidence … . 9.2.6 errors of law … . 9.2.6 errors of law, contrast … . 8.1.2 jurisdictional facts … . 9.2.4 knowledge and experience … . 9.2.2 probative evidence … . 9.2.2 , 9.2.5 procedural fairness … . 9.2.5 unreasonableness … . 9.2.3 fraud … . 6.1.1 , 6.1.5 improper purposes … . 8.3.1 application of principle … . 8.3.2 ‘but for’ test … . 8.3.2

collective decisions … . 8.3.2 evidence … . 8.3.2 examples … . 8.3.1 irrelevant considerations, and … . 8.3.3 lack of power see Administrative powers overlap of grounds … . 6.1.3 , 6.1.4 overview … . 1.3.5 , 6.1.1 procedural fairness see Procedural fairness relationship between grounds … . 6.1.2 uncertainty … . 6.1.1 , 6.1.5 unreasonableness … . 6.1.1 , 6.1.5 , 9.1.1 adjournments … . 3.5.8 , 9.1.1 , 9.1.4 categories of case … . 9.1.2 – 9.1.5 defining unreasonableness … . 9.1.2 discretionary powers … . 9.1.1 disproportionality … . 9.1.4 error of law, and … . 9.1.1 failure to make inquiries … . 8.2.7 findings of fact … . 9.2.1 , 9.2.3 inconsistent treatment … . 9.1.5 interpretation … . 9.1.1 irrationality … . 9.1.3 subordinate legislation … . 9.1.4 unequal treatment … . 9.1.5 W ednesbury test … . 9.1.1

H Hearing de novo … . 2.2.3 , 2.2.6 , 2.2.7 Hearing rule audi alteram partem … . 11.1.1 conduct of hearings … . 11.1.11 consequences of breach … . 11.3.2 appeals, and … . 11.3.4 waiver of breach … . 11.3.4 cross-examination … . 11.1.15 decision makers … . 11.1.11 , 11.1.20 delay … . 11.1.22 evidence … . 11.1.16 flexibility of rule … . 11.1.2 form of hearings … . 11.1.12 interpreters … . 11.1.21 legal representation … . 11.1.17 public funding … . 11.1.18 limitations on prior notice … . 11.1.7 evaluation processes … . 11.1.8 knowledge of decision maker … . 11.1.9 public policy … . 11.1.10 purpose of power … . 11.1.7 multi-stage decision making … . 11.1.11 non-legal representation … . 11.1.19

oral hearings … . 11.1.13 intervention by decision maker … . 11.1.20 overview … . 11.1.1 prior notice requirement … . 11.1.3 confidential information … . 11.1.4 , 11.1.10 documentary evidence … . 11.1.3 general inquiries … . 11.1.5 limitations … . 11.1.7 –11.1.10 potential adverse findings … . 11.1.6 purpose of requirement … . 11.1.3 specific allegations … . 11.1.4 self representation … . 11.1.19 written submissions … . 11.1.14

High Court amicus curiae … . 5.6.3 constitutional writs … . 12.1.2 judicial power … . 4.2.3 jurisdiction … . 4.2.2 constitutional jurisdiction … . 4.2.3 political communication … . 1.2.4

Human Rights and Equal Opportunity Commission enforceability of decisions … . 1.2.6 , 1.2.7 separation of powers … . 1.2.6

I Improper purposes application of principle … . 8.3.2 ‘but for’ test … . 8.3.2 collective decisions … . 8.3.2 evidence … . 8.3.2 examples … . 8.3.1 irrelevant considerations, and … . 8.3.3 overview … . 8.3.1 Informal policy … . 6.3.11

Information Commissioner overview … . 14.2.3 review of decisions … . 14.3.33 , 14.3.34

Injunctions interlocutory relief … . 12.1.8 mandatory injunctions … . 12.1.12 overview … . 12.1.2 , 12.1.8

Interpretation administrative powers … . 6.5.1 freedom of information … . 14.3.2 exempt documents … . 14.3.16 public interest test … . 14.3.20 joinder of parties … . 5.4.3 matters of administration … . 15.2.7 ouster clauses … . 4.4.2 , 4.4.6 , 4.4.7 Hickman compromise … . 4.4.4

restrictive interpretations … . 4.4.3 standing … . 5.3.2 ‘person aggrieved’ … . 5.3.4 unreasonableness … . 9.1.1

Interpreters hearing rule … . 11.1.21

Intervention Attorney-General … . 5.5.4 government bodies … . 5.5.5 overview … . 5.5.1 rights and responsibilities … . 5.5.2 source of power … . 5.5.3 Investigative bodies see also Anti-corruption commissions ; Ombudsman ; Royal Commissions ; Whistleblower

protection auditors-general … . 16.2.1 , 16.2.2 independence … . 16.2.2 powers … . 16.2.2 corruption … . 16.2.3 markets, and … . 16.2.13 overview … . 1.3.8 , 1.5.2 , 16.2.3 standing commissions … . 16.2.8 , 16.2.9 states and territories … . 1.4.5

J Joinder of parties discretion to join … . 2.5.9 , 5.4.2 , 5.4.4 merits review tribunals … . 2.5.7 discretion to join … . 2.5.9 effect of order … . 2.5.10 ‘interests affected’ … . 2.5.8 notice to parties … . 5.4.5 overview … . 5.4.1 ‘person interested’ … . 5.4.3 source of power … . 5.4.2

Judges non-judicial functions … . 1.2.6

Judicial power enforceability of decisions … . 1.2.6 High Court … . 4.2.3 Human Rights and Equal Opportunity Commission … . 1.2.6 merits review tribunals … . 1.2.6 , 2.1.14 separation of powers … . 1.2.5 merits review tribunals … . 1.2.6

Judicial review amicus curiae … . 5.6.1 Australian position … . 5.6.3 expansion of role … . 5.6.4 rights and responsibilities … . 5.6.2 applications for review … . 4.1.2 extensions of time … . 3.2.4 , 4.5.1

time limits … . 4.5.1 choice of forum … . 17.1.3 strategic considerations … . 17.2.5 decisions for review … . 4.2.6 , 4.2.11 administrative character … . 4.2.8 affecting legal rights … . 4.2.9 conduct … . 4.2.7 excluded decisions … . 4.2.9 , 4.2.10 final or operative decisions … . 4.2.6 Governor-General’s decisions … . 4.2.10 impact of requirements … . 4.2.11 interim decisions … . 4.2.6 legislative decisions … . 4.2.8 procedural irregularities … . 4.4.5 under an enactment … . 4.2.9 discovery and interrogatories … . 13.5.2 discretion of decision-maker … . 1.2.8 Federal Circuit Court … . 4.2.14 Federal Court … . 4.2.4 , 4.2.11 Administrative Decisions (Judicial Review) Act … . 4.2.5 , 4.2.11 appellate jurisdiction … . 4.2.13 Judiciary Act … . 4.2.12 transfer of proceedings … . 4.2.14 freedom of information … . 14.3.36 grounds of review see Grounds of review High Court … . 4.2.2 amicus curiae … . 5.6.3 constitutional jurisdiction … . 4.2.3 intervention … . 5.5.1 Attorney-General … . 5.5.4 government bodies … . 5.5.5 rights and responsibilities … . 5.5.2 source of power … . 5.5.3 joinder of parties … . 5.4.1 discretion to join … . 5.4.2 , 5.4.4 notice to parties … . 5.4.5 ‘person interested’ … . 5.4.3 source of power … . 5.4.2 jurisdiction … . 4.2.1 , 17.1.3 decisions for review … . 4.2.6 –4.2.11 decline of jurisdiction Federal Circuit Court … . 4.2.14 Federal Court… . 4.2.4 , 4.2.5 , 4.2.12 , 4.2.13 High Court … . 4.2.3 justiciability … . 4.3.1 state inferior courts … . 4.2.15 state supreme courts … . 4.2.2 justiciability … . 4.3.1 Administrative Decisions (Judicial Review) Act … . 4.3.2 criminal prosecutions … . 4.3.3

exercise of prerogative powers … . 4.3.3 , 4.3.4 foreign states … . 4.3.6 Judiciary Act … . 4.3.2 ‘matters’, meaning … . 4.3.5 meanings of term … . 4.3.1 , 4.3.2 , 4.3.3 , 4.3.5 , 4.3.6 political disputes … . 4.3.5 , 4.3.7 standing, and … . 5.1.8 state supreme courts … . 4.3.7 merits review, distinction … . 1.2.8 , 4.1.1 merits review tribunals … . 3.6.3 Ombudsman … . 15.2.24 discretion to investigate … . 15.2.24 distinction … . 15.1.10 ouster clauses … . 4.4.1 , 4.4.7 constitutional limits … . 4.4.2 , 4.4.6 expansion of powers … . 4.4.4 , 4.4.5 Hickman compromise … . 4.4.4 , 4.4.5 interpretation … . 4.4.2 , 4.4.3 , 4.4.4 , 4.4.6 , 4.4.7 jurisdictional errors … . 4.4.3 natural justice … . 4.4.5 ‘no certiorari’ clauses … . 4.4.3 parliament’s considerations … . 4.4.1 states and territories … . 4.4.2 overview … . 1.2.7 , 1.3.3 , 1.3.5 , 1.5.1 , 4.1.2 purpose … . 1.2.7 questions of law … . 1.2.7 , 1.2.8 mixed questions of fact and law … . 1.2.8 reasons for decisions … . 13.3.9 , 13.3.12 error of law … . 13.3.10 failure to provide … . 13.3.10 inadequacy of reasons … . 13.3.10 , 13.3.11 review on the merits … . 13.3.10 remedial powers … . 1.2.7 standing … . 2.5.1 , 5.1.1 , 5.1.5 Attorney-General … . 5.1.2 common law … . 5.1.8 , 5.1.10 , 5.2.1 –5.2.3 , 5.3.4 court’s approach … . 5.1.7 criticisms of doctrine … . 5.1.6 function of doctrine … . 5.1.5 justiciability, and … . 5.1.8 private parties … . 5.1.3 , 5.1.4 , 5.2.2 private rights … . 5.1.1 , 5.1.3 public rights … . 5.1.1 , 5.1.2 , 5.1.3 , 5.2.2 reform recommendations … . 5.1.6 special damage test … . 5.2.2 ‘special interest ’ … . 5.1.4 , 5.2.1 , 5.2.2 , 5.2.3 , 5.3.4 states and territories … . 5.3.3 , 5.3.10 , 5.3.11 statutory test … . 5.1.10 , 5.3.1 –5.3.11 time of determination … . 5.1.9 type of remedy … . 5.1.8 , 5.2.1

state and territory courts … . 4.2.2 cross-vesting of jurisdiction … . 4.2.2 inferior courts … . 4.2.2 , 4.2.15 justiciability … . 4.3.7 states and territories … . 1.4.2 ‘person affected’ … . 5.3.10 ‘person aggrieved’ … . 5.3.3 statutory mandamus … . 5.3.11

Jurisdiction Administrative Appeals Tribunal … . 1.3.4 , 2.1.9 , 2.4.1 decisions for review … . 2.4.3 , 2.4.8 , 2.4.9 dismissal of applications … . 2.4.14 review of own decisions … . 2.4.12 , 2.4.13 Federal Circuit Court … . 4.2.14 Federal Court … . 4.2.2 , 4.2.4 Administrative Decisions (Judicial Review) Act … . 4.2.5 appellate jurisdiction … . 4.2.13 Judiciary Act … . 4.2.12 High Court … . 4.2.2 , 4.2.3 merits review tribunals … . 1.4.1 , 2.1.9 , 2.4.1 constitutional validity of enactments … . 2.4.10 decisions for review … . 2.4.2 , 2.4.3 –2.4.5 , 2.4.8 , 2.4.9 decisions under an enactment … . 2.4.3 , 2.4.8 dismissal of applications … . 2.4.14 invalid decisions … . 2.4.4 , 2.4.9 limits of jurisdiction … . 2.4.10 original decisions … . 2.4.6 , 2.4.7 review of determinations … . 2.4.11 review of own decisions … . 2.4.12 , 2.4.13 reviewable decisions … . 2.4.3 , 2.4.7 source of jurisdiction … . 2.4.3 types of decisions … . 2.4.2 state and territory courts … . 4.2.2 cross-vesting of jurisdiction … . 4.2.2 inferior courts … . 4.2.2 , 4.2.15

Jurisdictional errors ‘face of the record’ … . 8.1.3 , 12.1.4 intra-jurisdictional errors, distinction … . 8.1.3 ouster clauses … . 4.4.3 overview … . 8.1.3 procedural fairness … . 11.3.2 , 12.1.7 quashing orders … . 12.1.4 Jurisdictional facts … . 9.2.4

Justiciability Administrative Decisions (Judicial Review) Act … . 4.3.2 criminal prosecutions … . 4.3.3 exercise of prerogative powers … . 4.3.3 Australian position … . 4.3.4 foreign states … . 4.3.6 Judiciary Act … . 4.3.2

‘matters’, meaning … . 4.3.5 hypothetical issues … . 4.3.5 meanings of term … . 4.3.1 , 4.3.2 , 4.3.3 , 4.3.5 , 4.3.6 overview … . 4.3.1 political disputes … . 4.3.5 , 4.3.7 standing, and … . 5.1.8 state supreme courts … . 4.3.7

K Kerr Committee … . 2.1.6 , 2.1.10

L Legal representation hearing rule … . 11.1.17 , 11.1.18 merits review tribunals … . 3.5.5 , 3.5.6

Licences procedural fairness … . 10.3.6 rights and interests, distinction … . 10.3.6

M Mandamus mandatory orders … . 12.1.9 existence of duty … . 12.1.10 failure to perform duty … . 12.1.11 overview … . 12.1.2

Markets and government … . 16.2.13 , 16.3.1 Mediation … . 3.3.2 , 3.3.6 Merits review background to reforms … . 2.1.1 Bland Committee … . 2.1.6 forms of review … . 2.1.1 –2.1.4 Kerr Committee … . 2.1.6 rationale for change … . 2.1.5 response to recommendations … . 2.1.7 states and territories … . 2.1.8 choice of forum … . 17.1.3 strategic considerations … . 17.2.1 , 17.2.2 discretion of decision-maker … . 1.2.8 federal courts, and … . 2.1.5 forms of review … . 2.1.1 , 2.1.5 external review tribunals … . 2.1.4 internal review … . 2.1.3 jurisdiction-specific … . 2.1.2 parliamentary intervention … . 2.1.1 internal review … . 2.1.3 , 2.1.5 , 2.1.10 increasing importance … . 2.1.9 strategic considerations … . 17.2.1 judicial review, distinction … . 1.2.8 , 4.1.1 jurisdiction-specific review … . 2.1.2 , 2.1.5 objectives … . 2.3.1 , 2.3.3 accessibility … . 2.3.4

achievement of objectives … . 2.3.4 decision-making improvements … . 2.3.4 openness and accountability … . 2.3.4 statutory objectives … . 2.3.2 user satisfaction … . 2.3.4 Ombudsman, distinction … . 15.1.10 overview … . 1.2.7 , 1.3.3 , 1.5.1 purpose … . 1.2.7 questions of fact … . 1.2.7 , 1.2.8 mixed questions of fact and law … . 1.2.8 remedial powers … . 1.2.7 states and territories … . 1.4.1 magistrates courts … . 2.1.5

Merits review tribunals see also Administrative Appeals Tribunal accessibility … . 2.3.4 , 3.1.2 Administrative Review Tribunal proposal … . 2.1.11 , 2.1.12 operation of system … . 2.1.13 appeals from decisions … . 3.6.1 decision, meaning … . 3.6.3 effect on decisions … . 3.6.4 Federal Court … . 3.6.3 , 4.2.13 orders of court … . 3.6.5 questions of law … . 3.6.2 , 3.6.3 application fees … . 3.2.2 applications for review … . 3.2.1 administrator’s obligation … . 3.2.5 dismissal of applications … . 2.4.14 , 3.4.3 effect on decisions … . 3.3.1 extensions of time … . 3.2.4 time limits … . 3.2.3 appointment of judges … . 1.2.6 , 2.1.14 assisted dispute resolution … . 3.3.2 , 3.4.1 , 3.5.15 case management … . 3.3.3 choice of tribunal … . 17.1.2 strategic considerations … . 17.2.4 conduct of hearings … . 3.5.1 , 3.5.15 agency representatives … . 3.5.3 confidentiality … . 3.5.13 empowering legislation … . 3.5.7 evidence … . 3.5.9 , 3.5.11 , 3.5.12 , 3.5.13 flexibility … . 3.5.15 formality … . 3.5.7 inquisitorial powers … . 3.5.1 , 3.5.5 onus of proof … . 3.5.4 procedural fairness … . 3.5.8 –3.5.10 , 3.5.11 , 3.5.12 , 10.4.2 , 10.4.6 , 10.4.7 representation … . 3.5.5 , 3.5.6 self-represented applicants … . 3.5.2 , 3.5.5 consideration of issues … . 2.2.7 consolidation of tribunals … . 2.1.11 ‘correct or preferable decision’ … . 2.2.4 , 2.2.7 , 2.2.10 , 3.5.15 , 4.1.1

consistency in decision-making … . 2.2.11 costs … . 3.5.14 decisions for review … . 2.4.3 , 2.4.4 advisory opinions … . 2.4.5 decision, definition by enactment … . 2.4.4 decisions under an enactment … . 2.4.3 , 2.4.8 final and operative decisions … . 2.4.5 invalid decisions … . 2.4.4 , 2.4.9 reviewable decisions … . 2.4.3 , 2.4.7 stay orders … . 3.3.1 types of decisions … . 2.4.2 determinative powers … . 2.2.1 directions hearings … . 3.3.7 dismissal of applications … . 2.4.14 , 3.4.3 frivolous or vexatious proceedings … . 3.4.3 enforceability of decisions … . 1.2.6 , 1.2.7 , 2.2.13 evidence … . 3.5.11 confidential evidence … . 3.5.13 hearsay evidence … . 3.5.11 rules of evidence … . 3.5.12 surprise video evidence … . 3.5.9 function … . 2.2.4 functus officio … . 2.4.11 government policy … . 2.2.8 absence of legislative guidance … . 2.2.10 application of policy … . 2.2.8 , 2.2.10 consistency in decision-making … . 2.2.11 legislation conferring jurisdiction … . 2.2.9 weight attributed to policy … . 2.2.12 hearing de novo … . 2.2.3 , 2.2.6 , 2.2.7 inquisitorial powers … . 3.5.1 , 3.5.5 internal review … . 2.1.9 joinder of parties … . 2.5.7 discretion to join … . 2.5.9 effect of order … . 2.5.10 ‘interests affected’ … . 2.5.8 judicial power … . 1.2.6 , 2.1.14 judicial review … . 3.6.3 jurisdiction … . 1.4.1 , 2.1.9 , 2.4.1 constitutional validity of enactments … . 2.4.10 decisions for review … . 2.4.2 , 2.4.3 –2.4.5 , 2.4.8 , 2.4.9 dismissal of applications … . 2.4.14 limits of jurisdiction … . 2.4.10 original decisions … . 2.4.6 , 2.4.7 review of determinations … . 2.4.11 review of own decisions … . 2.4.12 , 2.4.13 source of jurisdiction … . 2.4.3 mediation … . 3.3.6 Migration Review Tribunal … . 2.1.10 , 3.5.6 notification of review rights … . 3.1.2

objectives … . 2.3.2 , 2.3.4 original decisions … . 2.4.6 , 2.4.7 overview … . 1.1.2 , 1.3.4 , 2.1.4 parties to proceedings … . 2.5.6 joinder of parties … . 2.5.7 –2.5.10 powers … . 2.2.1 , 2.2.3 determinative powers … . 2.2.1 inquisitorial powers … . 3.5.1 , 3.5.5 merits of decision … . 2.2.6 procedural powers … . 2.4.13 questions of law … . 2.2.5 recommendatory powers … . 2.2.1 remedial powers … . 1.2.7 , 2.1.4 ‘standing in the shoes of decision-maker’ … . 2.2.2 , 2.2.7 precedent … . 2.2.13 pre-hearing processes … . 3.3.5 preliminary conferences … . 3.3.4 procedural fairness … . 3.5.8 , 10.4.2 adjournments … . 3.5.8 appeal rights … . 10.4.6 , 10.4.7 content of obligation … . 3.5.9 hearsay evidence … . 3.5.11 rules of evidence … . 3.5.12 specialist members, and … . 3.5.10 surprise video evidence … . 3.5.9 proliferation of tribunals … . 2.1.10 questions of law … . 2.2.5 , 2.2.13 appeals … . 3.6.2 , 3.6.3 referral to court … . 3.6.6 recommendatory powers … . 2.2.1 Refugee Review Tribunal … . 2.1.10 , 3.5.3 , 3.5.6 procedural fairness … . 10.4.6 remedial powers … . 1.2.7 , 2.1.4 review of own decisions … . 2.4.12 estoppel … . 2.4.12 procedural powers … . 2.4.13 review on the papers … . 3.4.4 reviewable decisions … . 2.4.3 , 2.4.7 scope of review … . 2.2.5 merits of decision … . 2.2.6 questions of law … . 2.2.5 presumption against retrospectivity … . 2.2.5 separation of powers, and … . 1.2.6 settlement of proceedings … . 3.3.2 , 3.4.1 advantages and disadvantages … . 3.4.2 Social Security Appeals Tribunal … . 2.1.9 , 2.1.10 agency representatives … . 3.5.3 appeals from decisions … . 3.6.1 standing … . 2.5.1 , 2.5.2 applications on behalf … . 2.5.5

interest groups … . 2.5.4 ‘interests affected’ … . 2.5.2 , 2.5.3 nature of interests … . 2.5.3 states and territories … . 1.4.1 , 2.1.8 appeals from decisions … . 3.6.1 , 3.6.2 , 3.6.3 , 3.6.4 applicants for review … . 2.5.2 application fees … . 3.2.2 applications for review … . 3.2.1 , 3.2.3 conduct of hearings … . 3.5.7 consolidation of tribunals … . 2.1.11 ‘correct or preferable decision’ … . 2.2.4 costs … . 3.5.14 decisions under an enactment … . 2.4.8 government policy … . 2.2.8 inquisitorial powers … . 3.5.1 jurisdiction … . 1.4.1 , 2.1.9 , 2.4.1 , 2.4.2 , 2.4.6 , 2.4.8 mediation … . 3.3.6 merits of decision … . 2.2.6 objectives … . 2.3.2 original decisions … . 2.4.6 powers … . 2.2.1 , 3.5.1 pre-hearing processes … . 3.3.5 preliminary conferences … . 3.3.4 procedural fairness … . 3.5.8 questions of law … . 2.2.5 representation … . 3.5.6 self-represented applicants … . 3.5.2 settlement of proceedings … . 3.4.1 tiered systems … . 2.1.12 , 2.1.13 , 2.1.14 time limits for applications … . 3.2.3 types of decisions … . 2.4.2 status of decisions … . 1.2.7 , 2.2.13 stay orders … . 3.3.1 tiered systems … . 2.1.12 , 2.1.13 advantages … . 2.1.14 disadvantages … . 2.1.14 operation of systems … . 2.1.13 Veterans’ Review Board … . 2.1.10 , 2.2.9 , 17.1.2 appeals from decisions … . 3.6.1 representation … . 3.5.6

Migration Review Tribunal overview … . 2.1.10 representation … . 3.5.6

Ministerial responsibility confidential information … . 14.1.3 overview … . 1.2.3 , 16.1.2 publication of information … . 14.3.4 resignations … . 1.2.3 Ministers see also Administrative powers ; Government policy ; Parliamentary control adequacy of control … . 16.1.1

discretionary powers … . 7.2.3 , 7.2.4 overview … . 16.1.2 resignations … . 1.2.3 , 16.1.3 sources of policy advice … . 16.1.2

N National security issues procedural fairness … . 10.4.8 Natural justice see also Procedural fairness origins … . 10.1.1 terminology … . 10.1.2 Negligence … . 12.1.15

O Ombudsman access … . 15.2.14 alternative avenues of review … . 15.2.11 unexercised rights … . 15.2.11 applicable agencies … . 15.2.4 assessment criteria … . 15.2.20 choice of forum … . 17.1.1 strategic considerations … . 17.2.3 conduct of investigations … . 15.2.16 obtaining information … . 15.2.18 powers … . 15.2.17 , 15.2.18 confidentiality … . 15.2.16 definition … . 15.1.2 Deputy Ombudsmen … . 15.2.2 discretion to investigate … . 15.2.11 , 17.1.1 judicial review … . 15.2.24 establishment of office … . 15.2.2 excluded action … . 15.2.10 excluded agencies … . 15.2.5 formal hearings … . 15.2.15 formal investigations … . 15.2.15 independence … . 15.1.7 initiation of investigations … . 15.2.12 judicial review … . 15.2.24 distinction … . 15.1.10 jurisdiction … . 15.1.5 applicable agencies … . 15.2.4 excluded action … . 15.2.10 excluded agencies … . 15.2.5 matters of administration … . 15.2.6 –15.2.9 legislation … . 15.1.4 , 15.2.1 making complaints … . 15.2.13 matters of administration … . 15.2.6 , 15.2.7 action, definition … . 15.2.6 administrative policies … . 15.2.8 commercial decisions … . 15.2.9 interpretation … . 15.2.7

matters of policy, distinction … . 15.2.8 merits review, distinction … . 15.1.10 nature of complaint … . 15.2.11 origins of office … . 15.1.1 overview … . 1.1.2 , 1.3.3 , 1.3.7 , 15.1.1 , 15.2.2 , 17.1.1 powers … . 1.3.7 , 1.3.8 , 15.1.10 conduct of investigations … . 15.2.17 , 15.2.18 obtaining information … . 15.2.18 preliminary inquiries … . 15.2.15 private industry Ombudsman … . 15.1.6 skills and expertise … . 15.1.9 private sector entities … . 15.1.5 purpose of investigations … . 15.2.19 range of functions … . 15.2.3 recommendations … . 15.1.10 referral to AAT … . 15.2.23 reports … . 15.2.15 departments … . 15.2.21 parliament … . 15.2.22 prescribed authorities … . 15.2.21 Prime Minister … . 15.2.22 secrecy … . 15.1.16 role … . 1.3.7 , 15.1.3 , 15.2.3 complaint resolution … . 15.1.3 , 15.2.3 scope of investigations … . 15.2.19 secrecy … . 15.1.16, 15.2.18 skills and expertise … . 15.1.9 states and territories … . 1.4.5 , 15.1.4 , 17.1.1 initiation of investigations … . 15.2.12 matters of administration … . 15.2.7 supervision of office … . 15.1.8 Taxation Ombudsman … . 15.2.2

Onus of proof merits review tribunals … . 3.5.4 Open government … . 1.2.4 , 2.3.4

Ouster clauses constitutional limits … . 4.4.2 , 4.4.6 expansion of powers … . 4.4.4 , 4.4.5 Hickman compromise … . 4.4.4 , 4.4.5 interpretation … . 4.4.2 , 4.4.6 , 4.4.7 Hickman compromise … . 4.4.4 restrictive interpretations … . 4.4.3 jurisdictional errors … . 4.4.3 natural justice … . 4.4.5 ‘no certiorari’ clauses … . 4.4.3 overview … . 4.4.1 , 4.4.7 parliament’s considerations … . 4.4.1 states and territories … . 4.4.2 Outsourcing … . 16.2.13

P Parliamentary control colonial administrative arrangements … . 16.1.3 overview … . 1A6.1.3 strength of party system … . 16.1.3 Parties to proceedings see also Amicus curiae joinder of parties … . 5.4.1 discretion to join … . 2.5.9 , 5.4.2 , 5.4.4 effect of order … . 2.5.10 ‘interests affected’ … . 2.5.8 merits review tribunals … . 2.5.7 –2.5.10 notice to parties … . 5.4.5 ‘person interested’ … . 5.4.3 source of power … . 5.4.2 merits review tribunals … . 2.5.6 Attorney-General … . 2.5.6 joinder of parties … . 2.5.7 –2.5.10 Political communication … . 1.2.4

Political supervision overview … . 1.3.8 , 1.5.2

Precedent discretionary powers … . 7.2.1 merits review tribunal decisions … . 2.2.13

Prerogative writs certiorari … . 12.1.2 quashing orders … . 12.1.4 discretionary nature … . 12.2.1 mandamus … . 12.1.2 mandatory orders … . 12.1.9 –12.1.11 overview … . 12.1.2 prohibition … . 12.1.2 restraining orders … . 12.1.7

Privacy freedom of information … . 14.3.23 legislation … . 14.2.1

Private law public law, distinction … . 1.1.3 , 5.1.1

Private sector entities overview … . 15.1.5 Ombudsman … . 15.1.6 skills and expertise … . 15.1.9 remedies … . 15.1.5 Privatisation … . 16.2.13 Privative clauses see Ouster clauses

Procedural fairness Administrative Appeals Tribunal … . 3.5.8 , 10.4.2 adjournments … . 3.5.8 appeal rights … . 10.4.7 content of obligation … . 3.5.9

hearsay evidence … . 3.5.11 rules of evidence … . 3.5.12 surprise video evidence … . 3.5.9 appeal rights … . 10.4.6 breach of hearing rule … . 11.3.4 ‘cure’ of defect … . 10.4.7 de novo … . 10.4.6 , 10.4.7 existence of rights … . 10.4.6 intention to exclude rules … . 10.4.6 bias rule see Bias common law … . 10.1.3 historical development … . 10.3.1 –10.3.4 implication of duty … . 10.2.1 presumption of application … . 10.3.4 consequences of breach … . 11.3.1 appeals, and … . 11.3.4 bias rule … . 11.3.3 , 11.3.5 hearing rule … . 11.3.2 , 11.3.4 jurisdictional error … . 11.3.2 merits declarations … . 12.1.6 restraining orders … . 12.1.7 void or voidable decisions … . 11.3.1 waiver of breach … . 11.3.4 , 11.3.5 construction of statute … . 10.4.2 , 10.4.3 exclusion of rules … . 10.4.3 , 10.4.5 , 10.4.6 content of procedural fairness … . 10.3.4 , 11.1.2 decision making framework … . 10.4.1 appeal rights … . 10.4.6 , 10.4.7 investigations … . 10.4.5 multi-stage decision making … . 10.4.4 , 10.4.10 , 11.1.11 national security issues … . 10.4.8 secrecy issues … . 10.4.8 urgent action … . 10.4.8 discretionary powers … . 10.3.3 effect of decision … . 10.4.9 personal matters … . 10.4.9 political decisions … . 10.4.10 evidence … . 9.2.1 hearing rule … . 11.1.16 merits review tribunals … . 3.5.11 , 3.5.12 probative evidence … . 9.2.5 , 11.1.16 exclusion of rules … . 10.4.3 , 10.4.5 appeal rights … . 10.4.6 findings of fact … . 9.2.1 , 9.2.5 freedom of information … . 14.3.31 fundamental rights … . 10.3.1 , 10.3.5 general inquiries … . 11.1.5 government policy … . 10.4.11 hearing rule … . 11.1.1 audi alteram partem … . 11.1.1

conduct of hearings … . 11.1.11 consequences of breach … . 11.3.2 , 11.3.4 cross-examination … . 11.1.15 decision makers … . 11.1.11 , 11.1.20 delay … . 11.1.22 evidence … . 11.1.16 flexibility of rule … . 11.1.2 form of hearings … . 11.1.12 interpreters … . 11.1.21 legal representation … . 11.1.17 , 11.1.18 limitations on prior notice … . 11.1.7 –11.1.10 non-legal representation … . 11.1.19 oral hearings … . 11.1.13 , 11.1.20 prior notice requirement … . 11.1.3 –11.1.10 self representation … . 11.1.19 waiver of breach … . 11.3.4 written submissions … . 11.1.14 historical development … . 10.3.1 , 10.3.4 Cooper v W andsworth Board of W orks … . 10.3.1 , 12.1.15 decision-making bodies … . 10.3.2 duty to act judicially … . 10.3.2 , 10.3.3 , 10.3.4 implication of duty … . 10.2.1 , 10.4.1 existence of duty … . 10.3.4 historical development … . 10.3.1 –10.3.4 nature of interest … . 10.3.5 –10.3.11 operation of presumption … . 10.4.1 presumption of application … . 10.3.4 , 10.4.1 investigations … . 10.4.5 jurisdictional error … . 11.3.2 , 12.1.7 legitimate expectations … . 10.3.7 , 10.3.10 ambiguities in language … . 10.3.9 , 10.3.10 case examples … . 10.3.8 consultative practices … . 10.3.8 departure from recommendations … . 10.3.8 determining existence … . 10.3.9 enforceable rights, as … . 10.3.11 forms of expectation … . 10.3.8 impartial assessments … . 10.3.8 licences … . 10.3.6 reasonable expectation, as … . 10.3.11 relevance … . 10.3.10 rights, as … . 10.3.11 undertakings … . 10.3.8 , 10.3.11 licences … . 10.3.6 merits review tribunals … . 3.5.8 , 10.4.2 adjournments … . 3.5.8 appeal rights … . 10.4.6 content of obligation … . 3.5.9 hearsay evidence … . 3.5.11 rules of evidence … . 3.5.12

specialist members, and … . 3.5.10 surprise video evidence … . 3.5.9 multi-stage decision making … . 10.4.4 , 10.4.10 conduct of hearings … . 11.1.11 national security issues … . 10.4.8 nature of interests … . 10.3.5 fundamental rights … . 10.3.5 legitimate expectations … . 10.3.6 , 10.3.7 –10.3.11 licences … . 10.3.6 reputation … . 10.4.2 , 10.4.5 rights and interests, distinction … . 10.3.6 Ombudsman … . 15.2.15 operation of presumption … . 10.4.1 , 11.1.2 construction of statute … . 10.4.2 , 10.4.3 , 10.4.5 , 10.4.6 decision making framework … . 10.4.4 – 10.4.8 , 10.4.10 effect of decision … . 10.4.9 , 10.4.10 government policy … . 10.4.11 subordinate legislation … . 10.4.11 ouster clauses … . 4.4.5 overview … . 6.1.1 , 6.1.2 , 6.1.4 , 6.1.5 , 10.1.2 political decisions … . 10.4.10 presumption of application … . 10.3.4 , 10.4.1 operation of presumption … . 10.4.1 prior notice requirement … . 11.1.3 confidential information … . 11.1.4 , 11.1.10 documentary evidence … . 11.1.3 general inquiries … . 11.1.5 limitations … . 11.1.7 –11.1.10 potential adverse findings … . 11.1.6 purpose of requirement … . 11.1.3 specific allegations … . 11.1.4 reasons for decisions … . 13.2.3 rule against bias see Bias secrecy issues … . 10.4.8 , 10.4.10 source of obligation … . 10.1.3 subordinate legislation … . 10.4.11 terminology … . 10.1.2 urgent action … . 10.4.8

Prohibition overview … . 12.1.2 restraining orders … . 12.1.7

Public interest immunity extent of protection … . 13.4.3 motivation for protection … . 13.4.2 overview … . 13.4.1 , 14.1.3 statutory provisions … . 13.4.4

Public law private law, distinction … . 1.1.3 , 5.1.1

R

Reasons for decisions Administrative Appeals Tribunal … . 13.3.4 , 13.3.9 provision to by administrator … . 13.3.8 appeal rights, and … . 13.2.2 benefits to parties … . 13.1.1 candour … . 13.1.2 common law … . 13.2.1 , 13.3.1 ‘no good reason’ … . 13.2.1 community benefits … . 13.1.1 content of reasons … . 13.3.7 cost and time … . 13.1.2 court’s function, and … . 13.1.1 criticisms of requirement … . 13.1.2 duty to provide … . 13.3.4 applications for review … . 13.3.8 failure to provide … . 13.3.10 error of law … . 13.3.10 form reasons … . 13.1.2 freedom of information … . 14.3.30 judicial review … . 13.3.9 , 13.3.12 error of law … . 13.3.10 inadequacy of reasons … . 13.3.10 , 13.3.11 review on the merits … . 13.3.10 overview … . 1.3.6 , 6.3.2 , 13.1.1 procedural fairness … . 13.2.3 requests for reasons … . 3.1.1 , 13.3.2 , 13.3.4 applicants … . 13.3.5 refusal to provide reasons … . 13.3.6 statutory requirement … . 13.3.1 applicants … . 13.3.5 content of reasons … . 13.3.7 exempt decisions … . 13.3.4 general provisions … . 13.3.3 judicial review … . 13.3.9 , 13.3.10 provision by administrator … . 13.3.8 refusal to provide reasons … . 13.3.6 special provisions … . 13.3.2 value of reasons … . 13.1.1

Refugee Review Tribunal agency representatives … . 3.5.3 overview … . 2.1.10 procedural fairness … . 10.4.6 representation … . 3.5.6 Regulations see Subordinate legislation

Remedies classification … . 12.1.1 collateral attack … . 12.1.2 damages … . 12.1.15 declarations … . 12.1.2 , 12.1.5 merits declarations … . 12.1.6

statutory schemes … . 12.1.5 discretionary nature … . 12.1.15 , 12.2.1 futility … . 12.2.2 refusal of relief … . 12.2.2 tailoring of relief … . 12.2.3 third parties … . 12.2.2 injunctions … . 12.1.2 , 12.1.8 interlocutory relief … . 12.1.8 mandatory injunctions … . 12.1.12 kinds of orders … . 12.1.3 declaratory orders … . 12.1.5 , 12.1.6 mandatory orders … . 12.1.9 –12.1.11 quashing orders … . 12.1.4 restraining orders … . 12.1.7 kinds of procedure … . 12.1.2 mandatory orders … . 12.1.9 , 12.1.14 existence of duty … . 12.1.10 failure to perform duty … . 12.1.11 Judicial Review Acts … . 12.1.13 overview … . 12.1.1 prerogative writs … . 12.1.2 discretionary nature … . 12.2.1 mandatory orders … . 12.1.9 –12.1.11 quashing orders … . 12.1.4 restraining orders … . 12.1.7 private sector entities … . 15.1.5 quashing orders … . 12.1.4 restraining orders … . 12.1.7 setting aside orders … . 12.1.4 statutory orders … . 12.1.2 , 12.1.4 Judicial Review Acts … . 12.1.13

Representative democracy accountable government … . 1.2.4 overview … . 1.2.4 open government … . 1.2.4

Responsible government … . 1.2.3 , 16.1.1 Retrospective legislation … . 2.2.5 , 6.3.2 Royal Commissions overview … . 16.2.9 presiding judges … . 1.2.6 states and territories … . 1.4.5 , 16.2.9

Rule against bias see Bias Rule making powers see also Decision making powers government policy … . 6.3.11 guidelines or directions … . 6.3.10 hybrids … . 6.3.10 informal policy … . 6.3.11 , 6.3.12 conflict with law … . 6.3.12 overview … . 6.2.1 , 6.3.1 , 6.3.11 , 6.4.1 parliamentary supervision … . 6.3.3

procedural requirements … . 6.3.3 , 6.6.1 example of categorisation … . 6.6.3 mandatory/directory requirements … . 6.6.1 silence as to non-compliance … . 6.6.2 quasi-laws … . 6.3.10 reasons for powers … . 6.3.1 flexibility … . 6.3.1 , 6.3.2 source of power … . 6.3.3 subordinate laws … . 6.3.3 disallowance by parliament … . 6.3.5 procedural fairness … . 10.4.11 procedural requirements … . 6.3.3 , 6.6.1 , 6.6.2 , 6.6.3 public consultation … . 6.3.7 publication … . 6.3.4 sunset clauses … . 6.3.8 supervision … . 6.3.6 , 6.3.7 taxation rulings … . 6.3.10 unlawful rules … . 6.3.12

Rule of law discretionary decision making … . 7.1.1 English system … . 1.3.1 overview … . 1.2.2

S Secrecy see also Confidential information Ombudsman … . 15.2.16 , 15.2.18 procedural fairness … . 10.4.8 , 10.4.10

Self representation hearing rule … . 11.1.19 merits review tribunals … . 3.5.2 , 3.5.5 Senate Standing Committee … . 1.3.8 , 6.3.6 , 16.1.3

Separation of powers administrative law, and … . 1.2.6 application … . 1.2.7 basis of doctrine … . 1.2.5 overview … . 1.2.5 rationales for doctrine … . 1.2.5 tribunals … . 1.2.6

Social Security Appeals Tribunal agency representatives … . 3.5.3 appeals from decisions … . 3.6.1 decision-making power … . 2.1.9 overview … . 2.1.10

Standing Administrative Appeals Tribunal … . 2.5.2 applications on behalf … . 2.5.5 interest groups … . 2.5.4 ‘interests affected’ … . 2.5.2 , 2.5.3 nature of interests … . 2.5.3 Attorney-General … . 5.1.2 , 5.2.2

common law … . 5.1.10 , 5.2.1 special damage test … . 5.2.2 ‘special interest ’ test … . 5.2.1 , 5.2.2 , 5.2.3 , 5.3.4 strangers … . 5.2.1 type of remedy … . 5.1.8 , 5.2.1 court’s approach … . 5.1.7 criticisms of doctrine … . 5.1.6 development of doctrine … . 5.1.1 function of doctrine … . 5.1.5 justiciability, and … . 5.1.8 merits review tribunals … . 2.5.1 applications on behalf … . 2.5.5 interest groups … . 2.5.4 ‘interests affected’ … . 2.5.2 , 2.5.3 nature of interests … . 2.5.3 overview … . 2.5.1 , 5.1.1 , 5.1.5 private parties … . 5.1.3 public rights … . 5.1.3 , 5.2.2 special damage test … . 5.2.2 private rights … . 5.1.1 , 5.1.3 discretionary nature of decisions … . 5.1.4 , 5.3.2 ‘special interest ’ … . 5.1.4 public rights … . 5.1.1 Attorney-General … . 5.1.2 , 5.2.2 private parties … . 5.1.3 , 5.2.2 reform recommendations … . 5.1.6 special damage test … . 5.2.2 ‘special interest ’ test … . 5.2.1 , 5.2.2 development of test … . 5.2.3 ‘person aggrieved’ … . 5.3.4 requirements … . 5.2.3 statutory mandamus … . 5.3.11 statutory test … . 5.1.10 , 5.3.1 , 5.3.5 affected interests … . 5.3.6 capacity to represent public interest … . 5.3.8 formula … . 5.3.1 , 5.3.2 interpretation … . 5.3.2 , 5.3.4 nature of interests … . 5.3.6 ‘objects’ criterion … . 5.3.7 ‘person affected’ … . 5.3.10 ‘person aggrieved’ … . 5.3.3 , 5.3.4 , 5.3.7 ‘personally interested’ … . 5.3.11 prior proceedings … . 5.3.9 proximity … . 5.3.7 relevant factors … . 5.3.5 ‘special interest ’ test … . 5.3.4 submission of written comments … . 5.3.9 sufficiently close relationships … . 5.3.7 ‘ulterior’ criterion … . 5.3.7 time of determination … . 5.1.9

State and territory courts Constitution, and … . 4.2.2 cross-vesting of jurisdiction … . 4.2.2 Federal Court’s jurisdiction … . 4.2.2 judicial review … . 1.4.2 , 4.2.2 cross-vesting of jurisdiction … . 4.2.2 inferior courts … . 4.2.2 , 4.2.15 justiciability … . 4.3.7 jurisdiction … . 4.2.2 cross-vesting of jurisdiction … . 4.2.2 inferior courts … . 4.2.2 , 4.2.15

States and territories access to information … . 1.4.3 anti-corruption commissions … . 16.2.4 accountability … . 16.2.8 coercive powers … . 16.2.6 educative functions … . 16.2.7 inquiries and investigations … . 16.2.6 maintaining integrity … . 16.2.5 preventative functions … . 16.2.7 recommendations … . 16.2.6 reports … . 16.2.6 constitutions … . 4.2.2 ouster clauses … . 4.4.2 delegation … . 6.4.2 sub-delegation … . 6.4.3 freedom of information … . 1.4.3 , 14.2.1 amendments … . 14.2.3 investigative bodies … . 1.4.5 judicial review … . 1.4.2 ‘person affected’ … . 5.3.10 ‘person aggrieved’ … . 5.3.3 statutory mandamus … . 5.3.11 merits review … . 1.4.1 magistrates courts … . 2.1.5 merits review tribunals … . 1.4.1 , 2.1.8 appeals from decisions … . 3.6.1 , 3.6.2 , 3.6.3 , 3.6.4 applicants for review … . 2.5.2 application fees … . 3.2.2 applications for review … . 3.2.1 , 3.2.3 conduct of hearings … . 3.5.7 consolidation of tribunals … . 2.1.11 costs … . 3.5.14 decisions under an enactment … . 2.4.8 government policy … . 2.2.8 inquisitorial powers … . 3.5.1 joinder of parties … . 2.5.7 jurisdiction … . 1.4.1 , 2.1.9 , 2.4.1 , 2.4.2 , 2.4.6 , 2.4.8 mediation … . 3.3.6 merits of decision … . 2.2.6

objectives … . 2.3.2 original decisions … . 2.4.6 powers … . 2.2.1 , 3.5.1 pre-hearing processes … . 3.3.5 preliminary conferences … . 3.3.4 procedural fairness … . 3.5.8 questions of law … . 2.2.5 representation … . 3.5.6 self-represented applicants … . 3.5.2 settlement of proceedings … . 3.4.1 tiered systems … . 2.1.12 , 2.1.13 , 2.1.14 time limits for applications … . 3.2.3 types of decisions … . 2.4.2 Ombudsman … . 1.4.5 , 15.1.4 , 17.1.1 initiation of investigations … . 15.2.12 matters of administration … . 15.2.7 prerogative writs … . 12.1.2 Royal Commissions … . 1.4.5 , 16.2.9 subordinate laws … . 1.4.4 , 6.3.3 disallowance by parliament … . 6.3.5 public consultation … . 6.3.7 publication … . 6.3.4 regulatory impact statements … . 6.3.7 tiered review systems … . 2.1.12 , 2.1.13 advantages … . 2.1.14 disadvantages … . 2.1.14 operation of systems … . 2.1.13 Statutory interpretation see Interpretation

Subordinate laws accessibility … . 6.3.9 categories … . 6.3.3 disallowance by parliament … . 6.3.5 , 6.3.6 effective operation … . 6.3.4 ‘legislative character’ … . 6.3.3 overview … . 6.3.3 procedural fairness … . 10.4.11 procedural requirements … . 6.3.3 , 6.6.1 mandatory/directory requirements … . 6.6.1 proportionality … . 9.1.4 public consultation … . 6.3.7 effect of non-compliance … . 6.3.7 publication … . 6.3.4 Senate Standing Committee … . 1.3.8 , 6.3.6 , 16.1.3 bipartisan support … . 6.3.6 states and territories … . 1.4.4 , 6.3.3 disallowance by parliament … . 6.3.5 public consultation … . 6.3.7 publication … . 6.3.4 regulatory impact statements … . 6.3.7 sunset clauses … . 6.3.8

supervision … . 1.3.8 , 6.3.6 , 6.3.7 , 16.1.3 terminology … . 6.3.3 unreasonableness … . 9.1.4 untabled laws … . 6.3.5 Sunset clauses … . 6.3.8

T Taxation Ombudsman … . 15.2.2 Tribunals see Administrative Appeals Tribunal ; Human Rights and Equal Opportunity Commission ; Merits review tribunals

U Unreasonableness adjournments … . 3.5.8 , 9.1.1 , 9.1.4 categories of case … . 9.1.2 – 9.1.5 defining unreasonableness … . 9.1.2 discretionary powers … . 9.1.1 disproportionality … . 9.1.4 error of law, and … . 9.1.1 failure to make inquiries … . 8.2.7 findings of fact … . 9.2.1 , 9.2.3 inconsistent treatment … . 9.1.5 interpretation … . 9.1.1 irrationality … . 9.1.3 overview … . 6.1.1 , 6.1.5 , 9.1.1 subordinate legislation … . 9.1.4 unequal treatment … . 9.1.5 W ednesbury test … . 9.1.1

V Veterans’ Review Board appeals from decisions … . 3.6.1 overview … . 2.1.10 , 2.2.9 , 17.1.2 representation … . 3.5.6

W War Pensions Entitlement and Assessment Appeals Tribunal … . 2.1.4 Whistleblower protection effects of protection … . 16.2.12 overview … . 16.2.10 protected disclosures … . 16.2.11 statutory protection … . 1.3.8 , 16.2.10