Administrative law [Sixth edition.] 9780409338669, 0409338664

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Administrative Law 6TH EDITION • Anne Ardagh Concise summary of the key teaching_ cases in administrative law LexisNexis Case Summaries Administrative Law provides a concise summary of the key cases in administrative law in Australia. The design of this popular book highlights catch words, the facts, issue and decision in each case so that the principles can be readily understood and memorised.

This structure reflects modern case analysis. The cases have been selected to align with current teaching in administrative law in all Australian jurisdictions. An excellent study and revision resource for students, this book is a great quick reference for anyone wanting to understand the case law in this area.

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Related LexisNexis Titles • Barnes & Douglas, BQA - Administrative Law, 2nd ed. 2007 • Douglas & Hyland. Focus Administrative Law, 3rd ed. 2015

ISBN 978-0-409-33866-9

• Santow & Passmore, QRC - Administrative Law. 2013 [email protected] .au www.lexlsnexls.com.au

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

Ardagh, Anne. Administrative law. 6th edition. 9780409338669 (pbk). 9780409338676 (ebk). LexisNexis Case Summaries. Includes index. Administrative law - Australia - Cases. 342.94

© 2015 Reed International Books Australia Pty Limited trading as LexisNexis.

First edition, 1989; Second edition, 1994; Third edition, 1997; Fourth edition, 2000; Fifth edition, 2004; Reprinted 2002, 2003. 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 Goudy and Helvetica. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

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9 10 11

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12 13 14 15 16 17 18

19 20 21 22 23

Case Name Av Hayden (No 2) Abebe v Commonwealth of Australia Aboriginal and Torres Strait Islander Commission (Chairperson) v Commonwealth Ombudsman Re Adams and Tax Agents' Board Ainsworth v Criminal Justice Commission Anderson v Commonwealth Anisminic Ltd v Foreign Compensation Commission Annetts v McCann Ansett Transport Industries (Operations) Pty Ltd v Commonwealth Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs Re Arnold Bloch, Leibler & Co and Commissioner of Taxation Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee Associated Provincial Picture Houses Ltd v Wednesbury Corp Attorney-General (NSW) v Quin Australian Broadcasting Tribunal v Bond Australian Conservation Foundation Inc v Commonwealth Australian National University v Burns Banks v Transport Regulation Board (Vic) Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd BHP Petroleum Pty Ltd v Balfour Bodruddaza v Minister for Immigration and Multicultural Affairs Booth v Dillon (No 1) Bragg v Department of Employment, Education and Training

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2 4 4 5 5

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7 7

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9 9 10

11 13 13 14 15 15 17 17

18

LexisNexis Case Summaries

Case Number 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40

41 42 43 44 45 46 47 48 49 50 51 52

Contents

Case Name

Case Number

Brandy v Human Rights and Equal Opportunity Commission Bropho v State of Western Australia Calvin v Carr Century Metals and Mining NL v Yeomans Church of Scientology Inc v Woodward Collector of Customs v Agfa-Gevaert Collector of Customs (NSW) v Brian Lawlor Automotive Pry Ltd Commonwealth v Northern Land Council Conway v Rimmer Cooney v Ku-Ring-Gai Municipal Council Cooper v Wandsworth Board of Works Council of Civil Service Unions v Minister for the Civil Service Craig v South Australia Dale v New South Wales Trotting Club Ltd Dimes v Proprietors of the Grand Junction Canal Director-General of Social Services v Chaney Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis Drake v Ministef for Immigration and Ethnic Affairs Drake v Minister for Immigration and Ethnic Affairs (No 2) Durayappah v Fernando Dyson v Attorney-General Edelsten v Health Insurance Commission Edwards (Inspector of Taxes) v Bairstow Evans v Donaldson Evans v New South Wales Fai Insurances Ltd v Winneke Federal Commissioner of Taxation v Broken Hill South Ltd Finch v Goldstein Foley v Padley

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18 19 20 21 23 24 24 25 27 27 28 28 29 30 31 32

32 33 34 35 36 36 37 38 39

39 40 41 42

53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76

77 78 79 80 81 82

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Case Name

Forbes v NSW Trotting Club Ltd Forster v Jododex Australia Pry Ltd Foster v Aloni General Newspapers Pty Ltd v Telstra Glenister v Dillon (No 1) Goldberg v Law Institute of Victoria Re Gosling Green v Daniels Griffith University v Tang Hall v NSW Trotting Club Ltd Hamblin v Duffy Haoucher v Minister for Immigration, Local Government and Ethnic Affairs Hawke's Bay Raw Milk Producers Cooperative Co Ltd v New Zealand Milk Board Re Heaney and Public Service Board Heatley v Tasmanian Racing and Gaming Commission Hicks v Ruddock Hope v Bathurst City Council Hot Holdings Pty Ltd v Creasy Re Howard and the Treasurer of the Commonwealth of Australia Jarratt v Commissioner of Police (NSW) John Fairfax and Sons Ltd v Police Tribunal of New South Wales Re Keay and Chief of Naval Staff, Department of Defence King Gee Clothing Co Pty Ltd v Commonwealth Kioa v Minister for Immigration and Ethnic Affairs Kirk v Industrial Relations Commission (NSW) Krstic v Australian Telecommunications Commission Lamb v Moss Laws v Australian Broadcasting Tribunal Local Government Board v Arlidge Re McHatten and Collector of Customs (NSW)

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43 43 44 45 46 46 47 47 48 49 50 51 52 52 53 54 54 55 56 57 57 58 58 59 60 61 62 63 64 64

Contents

LexisNexis Case Summaries

Case Number

83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105

Case Name McKinnon and Department of Immigration and Citizenship McNab v Auburn Soccer Sports Club Ltd Re Macquarie University; Ex parte Ong Macrae v Attorney-General (NSW) Maher and Attorney-General's Department (No 2) Maloney v NSW National Coursing Association Ltd Melbourne Corp v Barry Minister for Aboriginal Affairs v Peko-Wallsend Ltd Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd Minister for Immigration and Citizenship v Szmds Minister for Immigration and Ethnic Affairs v Pochi Minister for Immigration and Ethnic Affairs v Teoh Minister for Immigration and Multicultural Affairs v Eshetu Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 Re Minister for Immigration and Multicultural Affairs; Ex pane Lam Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal Murphyores Incorporated Pty Ltd v Commonwealth National Companies and Securities Commission v News Corp Ltd Neat Domestic Trading v AWB Ltd New South Wales v Kable North Coast Environmental Council Inc v Minister for Resources Onus v Alcoa of Australia Ltd

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65 66 66 68 68 69 70 71

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Case Number

Case Name

106

O'Reilly v Commissioner~ of State Bank of Victoria Padfield v Minister of Agriculture, Fisheries and Food Re Palmer and Minister for the Capital Territory Parnell and Prime Minister of Australia (No 2) Parramatta City Council v Pestell Plaintiff Sl0/2011 v Minister for Immigration and Citizenship Re Pochi and Minister for Immigration and Ethnic Affairs Potter v Melbourne & Metropolitan Tramways Board Project Blue Sky Inc v Australian Broadcasting Authority Public Service Board ofNSW v Osmond R v Anderson; Ex parte Ipec-Air (the Ipec Case) R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd R v Commissioner of Police of the Metropolis; Ex parte Blackburn R v Commonwealth Conciliation and Arbitration Commission; Ex parte the Angliss Group R v Connell; Ex pane Hetton Bellbird Collieries Ltd R v Cook; Ex parte Twigg R v Criminal Injuries Compensation Board; Ex pane Lain R v Dixon; Ex parte Prince and Oliver R v Electricity Commissioners; Ex pane London Electricity Joint Committee R v Gaming Board for Great Britain; Ex pane Benaim and Khaida R v Hickman; Ex parte Fox and Clinton R v Justices of Surrey R v Medical Appeal Tribunal; Ex parte Gilmore R v Northumberland Compensation Appeal Tribunal; Ex pane Shaw

107 108 109 110 111 112 113 114

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120 78 78 79

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125 81 82 82 83 84

126 127 128 129

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84 85 86 87 88 89 89 90 91 92 93 94 95 96 97 97 98 99 100 100 101 102 103 103

LexisNexis Case Summaries

Case Number

130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155

Administrative Law

Case Name R v Toohey '(Aboriginal Land Commissioner); Ex parte Northern Land Council R v Wright; Ex parte Waterside Workers' Federation of Australia Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission Re Refugee Review Tribunal; Ex parte Aala Ridge v Baldwin Right To Life Association (NSW) (Inc) v Secretary, Department of Human Services and Health Roberts v Hopwood Ruddock v Vadarlis (The Tampa Case) Russell v Duke of Norfolk Saeed v Minister for Immigration and Citizenship Sankey v Whitlam Sat FM Pty Ltd v Australian Broadcasting Authority Scurr v Brisbane City Council (No 5) Shanahan v Scott Shi v Migration Agents Registration Authority Sinclair v Mining Warden at Maryborough South Australia v O'Shea SS Constructions Pty Ltd v Ventura Motors Pty Ltd Stollery v Greyhound Racing Control Board Sydney Municipal Council v Campbell Sydney Municipal Council v Harris Thompson v Randwick Municipal Council Tooheys Ltd v Minister for Business and Consumer Affairs Twist v Randwick Municipal Council Tickner v Chapman Waterford v Commonwealth of Australia

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104 [1]

105 106 107 107 108 109 109 110 111 112 112 113 114 114 115 116 117 118 119 119 120 121 122 123 123

Av HAYDEN (No 2)

(1984) 156 CLR 532; 56 ALR 82 High Court of Australia Justiciability -

National security cases

FACTS The plaintiffs participated in a security trammg exercise at the Sheraton Hotel in Melbourne, under the direction of the Australian Secret Intelligence Service (ASIS) and with ministerial approval. Masked and heavily-armed they sought to free a 'hostage' from a hotel room. Four participants were ASIS officers, six were under part-time employment in training with ASIS, and one was an army representative. The Victorian Government asked the Commonwealth to disclose the identity of the participants so that alleged criminal activities could be investigated and the decision made whether to prosecute. The plaintiffs sought injunctions to restrain the Commonwealth from disclosing their identity on the basis that their contracts of employment provided that for actions done in the course of training or work for ASIS, their identity would be kept confidential. ISSUE Did the confidentiality clause in their contracts of employment apply to concealing their identities? DECISION By majority. Injunctions refused. The confidentiality clauses in the contracts of employment did not apply in such a situation and would not be enforceable on public policy grounds. The executive power of the Commonwealth must be exercised in accordance with the Constitution and the laws of the Commonwealth (per Murphy J). The Governor-General, the Federal Executive Council and every officer of the Commonwealth are bound to observe the laws of the land. Neither ASIS nor the Minister nor even the Executive Government could confer authority on the plaintiffs to commit an offence or immunity from prosecution for an offence once committed (per Brennan]). The 'direction to participate in the exercise, in the manner in which it was carried out, was a direction which the Commonwealth Executive could not lawfully give' (per Deane J). The criminal law of this country has no place for a general defence of superior orders or of Crown or Executive fiat.

LexisNexis Case Summaries

Administrative Law

[2] ABEBE v COMMONWEALTH OF AUSTRALIA

Aboriginal housing project. A draft report was issued to the Chairperson of ATSIC in accordance with the Ombudsman Act which required that before completing an investigation an opportunity be given to those who might be criticised in the report to appear before her or to make submissions. ATSIC made a written submission and the two officers met with the Ombudsman. A final report under s 15 of the Act was issued. It included the Ombudsman's opinions, reasons and recommendations. The Chairperson of ATSIC applied for judicial review of the decision, and conduct leading to the decision, of the Commonwealth Ombudsman to issue the report; and for review of the proposal to report to the Prime Minister and to have the report tabled in Parliament. There were several grounds of the application.

(1999) 197 CLR 510; 162 ALR 1 High Court of Australia Prerogative relief -

Section 75(v) of the Constitution

FACTS Abebe, an Ethiopian national, applied and was refused a protection visa, as a refugee, under s 36 of the Migration Act 1958 (Cth) ('the Act'). The Refugee Review Tribunal affirmed the decision. The Federal Court dismissed Abebe's application for review because the grounds specified - denial of natural justice and unreasonableness were non-reviewable grounds under Pt 8 of the Act. Abebe sought prerogative relief in the High Court pursuant to s 75(v) of the Constitution and began a second proceeding in the High Court seeking a declaration thatss 476(2), (3) and 485 of the Act were invalid. ISSUE Were the provisions of the Migration Act which limited the grounds for judicial review of decisions valid?

ISSUES Was the Ombudsman authorised to include in a report under s 15 the type of evidence of breach of duty or misconduct that was included; could the Ombudsman make or express findings of guilt; were procedures of natural justice as required by the Act followed; and did the report contain proper reasons as required by the Act?

FACTS The Ombudsman investigated a complaint concerning the conduct of the Aboriginal and Torres Strait Islander Commission ('ATSIC') and two of its senior officers regarding the procurement and funding of management consultants for the design and construction of an

DECISION Per Einfeld J: In the Ombudsman Act there is no power, express or implied, to make definitive 'findings' of individual guilt; the legislature uses the word 'opinion'. 'Insinuations of personal culpability by a major investigative body carry great stigma and have the potential to do serious harm to reputations.' The Ombudsman's principal function is investigative and not determinative. The Ombudsman is empowered to report her opinions on action that might be taken to deal with matters revealed by investigations; reasons for the opinions must be supplied and may include opinions on what the evidence appeared to disclose; 'properly reasoned opinions on the issue of individual guilt may be reported' as well as reasoned recommendations. However, statements in the report that amounted to findings of breaches of duty and serious breaches of public trust and failures to fulfil duties on the part of the two officers were ultra vires and could not be reported in their present form. On the issue of procedural fairness, s 8(5) provides that an opportunity for hearing any person or body the Ombudsman intends to criticise must be made available prior to the completion of an investigation. The substance of the proposed opinion must be put, not the exact critical opinion in the form it will appear in the final report. This requirement was carried out except for one omission concerning an additional allegation in the draft report, concerning which the Ombudsman was entitled to put to ATSIC and the two officers and to rework the report to take into account any submissions they might make. Because the Ombudsman's report does not affect legal rights, certiorari is not available to quash the report (Ainsworth v Criminal Justice Commission [5]); neither was mandamus an appropriate remedy. The appellants were entitled to declaratory relief.

2

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DECISION Per Gleeson CJ, McHugh, Kirby and Callinan JJ (Gaudron, Gummow and Hayne ]] dissenting): Application dismissed. The provisions of Pt 8 of the Act limiting the grounds on which a decision could be subjected to judicial review in the Federal Court are valid. The fact that Parliament has elected not to give the court all the remedies available to resolve a controversy or conferred limited jurisdiction cannot alter the fact that Parliament has defined the jurisdiction of the court with respect to a 'matter'. The grounds for prerogative relief were not made out. Abebe's evidence to the Tribunal was inconsistent. No jurisdictional or other legal errors occurred by the Tribunal's refusal to act on Abebe's claims.

Note: See also Minister far Immigration and Multicultural Affairs v Eshetu (95].

[3] ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION (Chairperson) v COMMONWEALTH OMBUDSMAN (1995) 134 ALR 238 Federal Court of Australia Ombudsman- Power to make 'findings' as opposed to 'opinions' Procedural fairness

Administrative Law

LexisNexis Case Summaries

[4]

Re ADAMS AND TAX AGENTS' BOARD (1976) 1 ALD 251 Administrative Appeals Tribunal

Administrative Appeals Tribunal Act 1975 (Cth) -

quashed. Such was not the case here; the Ainsworth group could still be granted a licence under the Gaming Machine Act 1991 despite the Commission's recommendation. Prohibition would have been available if sought in time.

Jurisdiction

FACTS The Board cancelled Adams' certificate of registration as a tax agent. Adams appealed. He claimed that a provision of the Income Tax Assessment Act, under which the Board had acted, was unconstitutional.

[6]

ANDERSON v COMMONWEALTH (1932) 47 CLR 50 High Court of Australia

ISSUE Did the AAT have the jurisdiction to decide a question of constitutional validity of federal legislation?

Declaration -

Per Brennan}: The Tribunal is an administrative body with limited authority and is bound to observe those limits. It is not vested with the judicial power of the Commonwealth. A question of constitutional validity of federal legislation requires the exercise of judicial power of the Commonwealth. The Tribunal cannot decide such a question.

FACTS A private citizen sought a declaration that an agreement known as the 'Sugar Agreement' which had been made between the Commonwealth and Queensland Governments, was illegal and void. It provided that sugar would not be imported into Australia until a particular date and that during this period the Queensland Government would buy raw sugar grown in Queensland and New South Wales at specified prices.

DECISION

[5] AINSWORTH v CRIMINAL JUSTICE COMMISSION {1992) 175 CLR 564; 106 ALR 11 High Court of Australia

Certiorari -

Scope and availability as a judicial remedy

FACTS The Queensland Government sought advice from the Commission with respect to the introduction of poker machines into the State. The Commission's report was highly critical of the Ainsworth group of companies, ascribed certain conduct to the group, and recommended that they 'not be permitted to participate in the gaming machine industry in Queensland'. The particular recommendation was based on other government reports; it was not clear if their accuracy was checked; no inquiry was made of the Ainsworth group and they were not informed of the Commission's intention to report adversely with respect to them and given no opportunity to answer. Publicity of the report was widespread. Ainsworth alleged breach of the rules of natural justice and sought relief by way of certiorari and mandamus.

Locus standi

ISSUE Does a private citizen have standing to challenge an agreement made between governments of Australia? DECISION The plaintiff had no right to bring the action. He was not a party to the agreement, which affected the public generally, and he had no 'private or special interest' in it beyond that of any other member of the public. It is the Attorney-General of the Commonwealth and of the States who may bring proceedings to protect public rights and interests.

[7]

ANISMINIC LTD v FOREIGN COMPENSATION COMMISSION [1969] 2 AC 147; [1969] 1 All ER 208 House of Lords

Jurisdictional error -

Excess of jurisdiction -

Privative clause

DECISION Per Mason CJ, Dawson, Toohey and Gaudron JJ: 'The function of certiorari is to quash the legal effect of the legal consequences of the decision or order under review'. As the report had 'no legal effect' and carried 'no legal consequences', certiorari did not lie to correct the failure of the Commission to comply with its duty to proceed in a way that was fair to the appellants. When a report or recommendation operates as a precondition or as a bar to a course of action it may be

FACTS Anisminic Ltd had owned a mining property in Egypt said to be worth over £4m. In 1956, as a result of the Suez crisis, the property was confiscated by the Egyptian Government. It was later sold to an Egyptian organisation called TEDO. Anisminic Ltd received £500,000, but this was not to include any claim it might 'be entitled to assert against any government authority other than the Egyptian Government, as a result of loss suffered by, or of damage to or reduction in the value of, the business'. A treaty between the governments of the United Kingdom and the United Arab Republic was made in 1959. It provided for the return to British subjects of their sequestrated

4

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ISSUE

Does certiorari lie to correct a report or recommendation?

Administrative Law

LexisNexis Case Summaries

property and a lump sum payment to the British Government to compensate persons such as Anisminic Ltd. The Foreign Compensation Commission denied Anisminic Ltd's claim because it did not fulfil the requirement of an article of an Order in Council 'as an owner of the property' or 'the successor in title of such person', the latter being TEDO, which of course was not a British national. Section 4 of the Foreign Compensation Act 1950 provided 'the determination by the Commission of any application made to them under this Act shall not be called in question in any court of law'. ISSUE

Did the privative clause (s 4) preclude judicial review?

DECISION By majority: The privative clause (s 4) did not preclude judicial review because the decision was a nullity. It was based on jurisdictional error. The Commission misconstrued the relevant provision. A claimant who is an original owner does not have to prove anything about succession in title. The Commission, therefore, made an inquiry which they were not empowered to make and based their decision on an irrelevant consideration - the nationality of TEDO.

[8] ANNETTS v McCANN (1990) 170 CLR 596, 97 ALR 177 High Court of Australia Natural Justice -

Hearing rule -

ANSETTTRANSPORT INDUSTRIES (OPERATIONS) PTY LTD v COMMONWEALTH (1977) 139 CLR 54; 17 ALR 513 High Court of Australia

Crown -

Fetters on freedom of executive action

FACTS Ansett alleged breach of contract by the Commonwealth under the Airlines Agreement - the so-called 'two airline' policy which provided that there be not more than two operators of trunk route airline services, those two operators being Ansett and the Commonwealth airline, [then] TAA. The Commonwealth, under Customs (Prohibited Imports) Regulations, approved the importation of aircraft by two other transport companies. Ansett sought declarations, injunctions and damages against the Commonwealth. ISSUE Did the contract restrict the statutory discretion of the Secretary of the Department of Transport to grant future importation of aircraft? DECISION By majority: Permitting the importation of aircraft would not constitute a breach of any of the terms of the Agreement. There was 'no basis for implying a covenant which would impose an additional and unexpressed obligation on the Commonwealth not to alter the law' (per Mason J). Such a term would fetter the Government's future executive action.

Right or interest affected

FACTS A coronial inquest was held into the deaths of two young boys who were found in the Western Australian desert. They had been jackaroos at an outlying station. The parents sought to make submissions at the inquest. ISSUE

[9]

Was there a sufficient interest to assert a right to be heard?

[10]

APPLICANT VEAL OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS {2005) 225 CLR 88; 87 ALD 512; [2005] HCA 72 High Court of Australia

DECISION Per Mason CJ, Deane and McHugh]] with whom Brennan and Toohey ]] concurred: The appellants had properly been granted representation at the coronial inquest. This created a legitimate expectation that the Coroner would not make any finding adverse to the interests which they represented without giving them the opportunity to be heard in opposition to that finding. Secondly the interests which they represented included the protection of the reputation of their deceased son. Whether that interest was classified as the interest of the deceased or the interest of the appellants as parents of the deceased, or both, did not much matter. They had a common law right to be heard in opposition to any potential adverse finding in relation to themselves and the deceased unless by express terms or necessary implication the Act had excluded their common law right to be heard.

DECISION As a requirement of procedural fairness the Tribunal had a duty to inquire into the facts and circumstances of the case. It

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7

Procedural fairness -

Opportunity to be heard

FACTS Veal and his partner were applying for protective visas. When their application was refused they sought review by the Refugee Review Tribunal. A confidential letter making serious allegations about Veal previously sent to the Department had been provided to the Tribunal before it refused to grant the visa. The Tribunal noted that it had given 'no weight' to the letter. ISSUE Was the failure of the Tribunal to notify the applicants of the contents of a confidential letter a breach of natural justice?

LexisNexis Case Summaries

Administrative Law

should have informed the applicant of the letter, although it was not bound to give him a copy, and sought information from him about the significance of the information. Information of that kind can create a risk of unconscious prejudice and 'it is unfair to deny a person whose interests are likely to be affected by the decision and opportunity to deal with the information'.

[11]

Re ARNOLD BLOCH, LEIBLER & CO AND COMMISSIONER OF TAXATION (1984) 6 ALO 62 Administrative Appeals Tribunal

Freedom of Information Act 1982 (Cth) ss 58, 64 exempt documents

Inspection of

FACTS A firm of solicitors sought access to a manual of the respondent. Access was provided subject to a number of deletions in respect of which claims of exemption were made under several sections of the Freedom of Information Act 1982 (Cth). The firm sought a direction that their counsel be permitted to have full access in order that they have a proper opportunity of presenting their case. ISSUE Should counsel have full access to exempt documents? DECISION Per RK Todd, Deputy President: The possibility of inspection by counsel was raised by the Tribunal in Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534. Section 39 of the Administrative Appeals Tribunal Act 1975 (Cth) provides that 'every party to a proceeding before the Tribunal is [to be] 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 .. .'. This provision is, however, modified bys 64(1) of the Freedom of Information Act which provides that if the Tribunal is satisfied that the document is an exempt document, it shall return the document to the person who produced it without permitting anyone other than the members and staff of the Tribunal to have access to it. The Tribunal, under s 58(2), has only a limited ability to inspect exempt documents and is not empowered to give access to those documents to an applicant or their representative.

Note: See also Re Arnold Bloch, Leibler and Co and Australian Taxation Office (No 2) (1985) 9 ALD 7.

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[12]

ARTHUR YATES & CO PTY LTD v VEGETABLE SEEDS COMMITTEE (1945) 72 CLR 37 High Court of Australia

Delegated legislation faith

Ultra vires -

Improper purpose or bad

FACTS The Vegetable Seeds Committee was established under the National Security Act to regulate all aspects of vegetable seed processing and distribution, to ensure that there would be an adequate supply of vegetable seeds during the years of the Second World War. Two orders were served on the Arthur Yates Company, a seed merchant, not to sell certain types of seeds without approval of the Committee. The company attacked the orders as being made in the financial and trading interests of the Committee which had allegedly set itself up as a seed merchant. It further alleged that the Committee had offered to release the company from the orders if the company agreed to buy, at high prices, what it said were deteriorating seeds from the Committee. ISSUE Were the orders legislative in character and, therefore, beyond attack? DECISION By the Full Court: The motives of a legislative body do not affect the validity of its legislation when it acts within its powers. However, this proposition does not apply to acts of administration. Abuses of power by administrative bodies can be examined by a court. The Committee was an executive body charged with carrying out statutory powers. It had a duty to exercise these powers 'bona fide and honestly and for the purposes for which they were given' (per Rich J). The company's allegation that the committee's motives were improper, in that it was seeking to reduce its own business competition, could be examined by a court and if the allegations were sustained the orders would be invalidated. [13]

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORP [1948] 1 KB 223 Court of Appeal

Ultra vires - Abuse of discretionary power -

Unreasonableness

FACTS Wednesbury Corporation, the local authority, had the power to grant licences for cinemas for sundry performances 'subject to such

conditions as the authority [thought] fit to impose'. The Corporation

9

LexisNexis Case Summaries

Administrative Law

granted such a licence to Associated Provincial Picture Houses Ltd, subject to the condition that 'no children under the age of fifteen years shall be admitted to any entertainment whether accompanied by an adult or not'.

DECISION Per Mason CJ, Brennan and Dawson JJ (Deane and Toohey JJ dissenting): Appeal allowed. There was a legitimate expectation that the Attorney-General, in considering whether ot not to recommend appointment, would accord procedural fairness, that is, the opportunity to answer material which was adverse. However, the new policy for appointing magistrates was in conformity with the Act. There was no justification for granting relief in a form which would compel the Executive to adhere to an approach to judicial appointment which it had discarded in favour of a different approach which, in the opinion of the Executive, was better calculated to serve the administration of justice and make it more effective. The grant of substantive relief in the present case would effectively prevent the Executive from giving effect to the new policy. In speaking of a duty to act fairly, care must be exercised that it is identified only with procedural obligations, not substantive effect. The merits of administrative action as distinct from legality are for the repository of the relevant power.

ISSUE Was the condition an unreasonable exercise of discretion and

ultra vires? DECISION Appeal dismissed. The discretionary power to grant licences was given to the local authority. The court will not interfere with executive action unless the authority has contravened the law. In reviewing an exercise of discretion, the court might inquire whether irrelevant considerations were taken into account or whether matters which the authority might have to consider were considered, or whether there had been bad faith. If the authority has kept within 'the four corners of the matters which it ought to consider', its decision can only be attacked as unreasonable if the court considers that no reasonable body could have come to it. In matters of public policy of this kind, it is not for the court to substitute its own judgment.

[15] [14]

Natural justice -

ATTORNEY-GENERAL (NSW) v QUIN (1990) 170 CLR 1; 93ALR 1 High Court of Australia Legitimate expectations -

Limitations

FACTS The New South Wales magistracy was reorganised. Several persons, including Quin, who formerly held office as stipendiary magistrates under the Justices Act 1902 (NSW) were not recommended by the Attorney-General for appointment as magistrates under the new Local Court Act 1982 (NSW). Subsequently the Attorney-General decided to depart from the course previously adopted in recommending former magistrates for appointment to the Local Courts. Previously he had recommended magistrates who were not unfit. He now decided to select entirely on merit and that required an assessment of competing applicants. This policy was challenged by Quin and two other former stipendiary magistrates. The New South Wales Court of Appeal, by majority, made a declaration the effect of which was to require the Attorney-General to consider Mr Quin's application for appointment on its own merits and not in competition with applications from other applicants. The Attorney-General appealed unsuccessfully to the Court of Appeal. He then appealed to the High Court.

AUSTRALIAN BROADCASTING TRIBUNAL (1990) 170 CLR 321; 94 ALA 11 High Court of Australia

v BOND

Administrative Decisions (Judicial Review) Act 1977 (Cth) Meaning of 'decision'; meaning of 'conduct' FACTS The Australian Broadcasting Tribunal made various decisions, findings and rulings in an inquiry which it held under s 17C( 1) of the Broadcasting Act 1942 (Cth) ('the Act'). The inquiry related to the participation by the first respondent, Mr Bond, in certain transactions involving the respondent companies. The Tribunal found that Mr Bond was guilty of improper conduct in various respects and concluded that he would not be found to be a fit and proper person to hold a commercial broadcasting licence under the Act and that, by reason of Mr Bond's control of the licensee companies, they were no longer fit and proper persons to hold the licences.

ISSUE Was there a legitimate expectation that the magistrates be appointed to a newly constituted court unless they were found to be unfit?

The respondents sought relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the Judicial Review Act') in respect of 18 decisions, findings or rulings of which 11 were described as 'decisions' and seven as 'conduct'. These included: the decision that Mr Bond would not be found to be a fit and proper person to hold a licence; the decision that the licensee companies were no longer lit and proper persons to hold their licences; and the decision that Mr Bond's agreement to pay the Premier of Queensland $400,000 in settlement of a defamation action was improper.

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LexisNexis Case Summaries

Administrative Law

The Full Federal Court allowed the applications in part and set aside the decisions that Mr Bond would not be found to be a fit and proper person to hold a broadcasting licence and that the licensee companies were no longer fit and proper persons to hold broadcasting licences. The Tribunal appealed and the respondents sought special leave to cross appeal.

of 'conduct' under s 6 of the Judicial Review Act involves review of what is essentially procedural and not substantive in character. [16]

ISSUE Were these reviewable 'decisions' under the Judicial Review Act? DECISION Per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ allowing the appeal and refusing the applications for special leave to cross-appeal: A reviewable 'decision', as that word is used in the Judicial Review Act, is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative or determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provides for the making of a finding or ruling on that point, as an intermediate decision, or step in the process, of making a decision under an enactment. The finding that the licensees were no longer fit and proper persons to hold their licences was a 'decision' within the Judicial Review Act. The finding that Mr Bond would not be found to be a fit and proper person to hold a licence was not a 'decision' within the Judicial Review Act. It was no more than an essential step in the reasoning by which the Tribunal chose to support its determination concerning the licensees.

As to the decision that the licensee companies were no longer fit and proper persons to hold their licences, the Federal Court erred in placing an incorrect interpretation on the reasons given by the Tribunal for making its findings. The Federal Court erred in construing s 88(2) (b)(i) of the Act as meaning that the Tribunal could never be justified in finding that a licensee was no longer a fit and proper person to hold its licence by reference alone to a finding that the person who was in a position to control the composition of the board of directors would be unfit to hold the licence. As to the defamation settlement, the decision did not involve an error oflaw and the Federal Court was wrong in concluding that the Tribunal's finding that the payment of $400,000 was improper was vitiated by error. The settlement of the defamation action was not an irrelevant consideration. Mr Bond and Mr Aspinall (the Chief Executive of one of the respondent companies) had deliberately misled the Tribunal at an earlier inquiry. Per Mason CJ, Brennan and Deane JJ: In its setting ins 6 of the Judicial Review Act, the word 'conduct' points to an action taken, rather than a decision made, for the purpose of making a reviewable decision. Review 12

AUSTRALIAN CONSERVATION FOUNDATION INC v COMMONWEALTH (1980) 146 CLR 493; 28 ALR 257 High Court of Australia

Injunction the action

Standing -

Special interest in the subject matter of

FACTS The Australian Conservation Foundation sought declaratory and injunctive relief against the Commonwealth, three ministers of the Commonwealth and the Reserve Bank. It alleged that their decision to approve a proposal to establish a tourist resort in central Queensland, or to approve exchange control transactions in relation to the proposal, were invalid by reason of contravention of the Environment Protection (Impact of Proposals) Act 1974 and administrative procedures approved under s 6 of that Act concerning environmental impact statements. ISSUE Did the Australian Conservation Foundation have standing to challenge the Minister's decision to approve a tourist resort without the final environmental impact statement required by the statute?

By majority: An ordinary member of the public, who has no interest greater than any other member of the public, has no standing to sue to prevent the violation of a public right or enforce the performance of a public duty; these are the responsibility of the Attorney-General. The fact that the Foundation's objects concerned the preservation of the environment and the fact that it had sent written comments which the developer was required to take into account in revising its environmental impact statement did not give the Foundation further rights nor did they amount to a 'special interest in the subject matter of the action' necessary to give it standing to bring an action for relief. No particular advantage or disadvantage would accrue to the Foundation by the action and 'a mere intellectual or emotional concern' (per Gibbs J) was not enough. DECISION

[17]

AUSTRALIAN NATIONAL UNIVERSITY v BURNS (1982) 64 FLR 166; 43 ALR 25 Federal Court of Australia (Full Court)

Administrative Decisions (Judicial Review) Act 1977 (Cth) Decision made 'under an enactment' FACTS Bums was appointed as a professor at the university. A term of his employment contract provided that the University Council could 13

Administrative Law

LexisNexis Case Summaries

terminate the appointment of any professor who became permanently incapacitated from performing the duties of his office. After several months' sick leave, Bums was examined by a Commonwealth Medical Officer who reported that he was 'seriously ill' and unfit for continued employment, and that he should be retired because of invalidity. The Council terminated his appointment on the 'permanent incapacity' ground. Burns requested a statement in writing pursuant to s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'). The university replied that as a matter of law he was not entitled to make the request as the decision to dismiss was not 'a decision of an administrative character made ... under an enactment' withins 3 of the ADJR Act. It claimed the decision was made not under the Australian National University Act 1946 ('University Act') but under Burns's contract of service with the university. ISSUE Was the decision to terminate Burns' appointment a decision of an administrative character made under an enactment?

The Council is the governing body of the university and, although the source of its power to appoint and dismiss is derived from the University Act, it does not follow that the decision to dismiss Burns was made under the Act. This was a decision made on a particular ground, 'permanent incapacity', which was an express condition of his contract of employment. The rights and duties of the parties were derived under the contract and not under the University Act. If either party had not fulfilled the obligations under the contract, an action for damages would be the appropriate remedy. DECISION

[18)

BANKS vTRANSPORT REGULATION BOARD (VIC) (1968) 119 CLA 222 High Court of Australia

Natural justice -

Duty to observe

FACTS Banks's taxi-cab licence was revoked by the Board on the grounds that he had not complied with certain conditions of the licence, including not notifying the Board of his change of address.

[19]

BATEMAN'S BAY LOCAL ABORIGINAL LAND COUNCIL v ABORIGINAL COMMUNITY BENEFIT FUND PTY LTD (1998) 194 CLA 247; 155 ALA 684; [1998] HCA 49 High Court of Australia

Standing -

Special interest -

Injunction

FACTS The Aboriginal Community Benefit Fund Pty Ltd operated a funeral benefit fund. The Bateman's Bay Local Aboriginal Land Council and the New South Wales Aboriginal Land Council ('NSW ALC') established a rival fund whose subscription rates were much lower because of subsidies from the NSW ALC. The Aboriginal Community Benefit Fund sought an injunction to restrain the rival business, arguing that it was beyond their statutory powers. Their claim was dismissed on the grounds that they lacked standing. They appealed successfully to the Court of Appeal. The decision was appealed to the High Court by the Local and NSW Land Councils. ISSUE Did the Aboriginal Community Benefit Fund have a sufficiently special interest to seek equitable relief?

Appeal dismissed, unanimously. There is a public interest in the observance by statutory authorities, particularly those having public revenues, of the limitations upon their activities imposed by the legislature. The public interest may be vindicated by a party with a sufficient material interest in the subject matter. Here there was an interest in the observance of statutory limitations upon the activities in respect of funeral funds which was 'immediate, significant and peculiar' to the Aboriginal Community Benefit Fund Pty Ltd. Because the parties would be operating in substantially the same limited market, it was highly likely that, if not restrained from commencing activities, the rival fund 'would cause severe detriment to the business of the respondents'. This gave the respondents a sufficient special interest to seek equitable relief. DECISION

[20]

BHP PETROLEUM PTY LTD v BALFOUR (1987) 180 CLA 474; 71 ALA 711 High Court of Australia

ISSUE Does the duty to observe natural justice extend beyond rights to interests?

Jurisdictional error -

A licence required to earn a livelihood is not a mere privilege; rather it is a form of property. In revoking such a licence the Board is, therefore, bound to act judicially. A licence holder is entitled to a hearing before such a decision was made.

FACTS The appellants held a licence for the recovery of petroleum in Bass Strait. A sub-sea completion well, Cobia No 2, on which royalty payments were assessed by an authority designated under legislation, was located about four kilometres from a platform. On the platform the

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DECISION

Excess of jurisdiction

Administrative Law

LexisNexis Case Summaries oil from Cobia No 2 co-mingled with oil from other wells, but before this occurred it passed through two valves. It was these valves which were designated as the 'well-head' for the purposes of the Petroleum (Submerged Lands) (Royalty) Act 1967 (Cth) ('Royalty Act'). The prescribed rate payable was to be determined by 'the value at the well-head' of the petroleum. The 'well' was defined as the 'hole in the seabed ... for the recovery of petroleum', and 'well-head' as such valve station as agreed upon by the Designated Authority and the licensee or, in default of agreement, by the Designated Authority. On the top of the Cobia No 2 well casing was equipment, including valves and outlets, used for production control; it was in keeping with industry standards. It was this point that the appellants contended was the 'well-head' for determining the royalty payable. They argued that the well-head can only be found at the top of the well and that there was no way that valves at a platform could be described as a well-head. A single judge in the Supreme Court of Victoria set aside the determination of the royalty payable. This judgment was appealed by the Designated Authority to the Full Supreme Court and the appeal was allowed. The appellants appealed to the High Court. ISSUE Did the authority fall into jurisdictional error in misconceiving the issue it was meant to consider? DECISION Per Mason CJ, Brennan, Deane, Toohey and Gaudron Appeal allowed with costs. The respondents contended that the legislation was 'its own dictionary' and that any equipment regulating the flow of petroleum was a well-head for the purposes of the relevant section of the Royalty Act. To accept this 'would be to vest in the Designated Authority an arbitrary power of determination qualified only by the need to identify a particular valve station'. On the argument of the Authority, they could have chosen any point where the flow was regulated even between the platform and the shore or on the shore itself. An analysis of relevant legislative provisions showed no 'legislative intent to impose such an arbitrary basis for the assessment of tax'. A royalty is to be determined objectively and the legislature did 'not convert the objective ascertainment of the value of petroleum at the well-head into an exercise of discretion by the Designated Authority'. The task was to fix upon a valve station which fairly accorded with a 'well-head'. It was not to fix upon a station not in accordance with a wellhead and determine what was 'thought to be an appropriate calculation of royalty'. To approach the task in that way was to 'misunderstand the question' which the relevant legislation required the Designated Authority to answer.

JJ:

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[21]

BODRUDDAZA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS (2007) 228 CLR 651; 95 ALO 1 High Court of Australia

Constitutional law - Time limits

FACTS Bodruzza was one day late filing an application by reason of a failure on the part of his migration adviser. Section 486a of the Migration Act 1958 imposed strict time limits on the seeking of remedies. ISSUE Was the imposition of strict time limits consistent with the powers of judicial review contained ins 75 (v) of the Constitution? DECISION Per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ: Section 486a of the Migration Act imposing fixed time limits for the filing of applications to the High Court for review was constitutionally invalid. Such a time limit is invalid if it is 'inconsistent' with the place of s 75 in the constitutional structure. Section 486a did not allow for a range of vitiating circumstances which may affect administrative decision-making. This case is an example where the time limit subverts the constitutional purpose of the remedy provided bys 75(v).

[22]

BOOTH v DILLON (No 1) [1976] VR 291 Supreme Court of Victoria

Ombudsman Jurisdiction Definition of 'administrative action' - Ombudsman Act 1973 (Vic)

FACTS A prisoner wrote to the Ombudsman complaining that he had been assaulted by a prison officer, claiming blows to the head after he had used abusive language. This allegedly occurred in the presence of the governor of the prison and the chief prison officer. ISSUE Was the matter one of 'administrative action' withins 2 of the Ombudsman Act 1973 so that the Ombudsman had the jurisdiction to conduct an investigation under s 13? DECISION Per Lush J: The Ombudsman had the jurisdiction. The complaint related to 'a matter of administration' because it was not merely a complaint of assault but of facts concerning the enforcement of discipline governing both prisoners and staff, and the proper hearing

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Administrative Law

of complaints in the prison. The governor and chief prison officer were alleged to have been 'silent witnesses' of the assault by the prison officer. This fact, if true, implied that they condoned it. Any disciplinary offence of using abusive language should have been dealt with by the laying of a charge. It was, therefore, 'an incident in which the authority of office was asserted and exercised with some formality and in the course of that assertion and exercise irregularities occurred'.

('HREOC') found the complaints substantiated and ordered a number of actions including an apology to Bell by Brandy, damages of $2500 to be paid by Brandy and that ATSIC take disciplinary action against Brandy, apologise to Bell in relation to the handling of his complaint and pay him $10,000. The Commission lodged the determination for registration in the NSW Registry of the Federal Court. Brandy applied for a review of the determination, claiming that provisions of the Racial Discrimination Act were invalid on the ground of inconsistency with Ch III of the Commonwealth Constitution in that they provided for an exercise of judicial power by the Commission which is not a court in accordance with ss 71 and 72 of the Constitution.

[23]

BRAGG v DEPAR.T MENT OF EMPLOYMENT, EDUCATION AND TRAINING (1995) 59 FCR 31; 38 ALD 251 Federal Court of Australia

Administrative Decisions (Judicial Review) Act s10(20)(b)(ii) - Availability of judicial review

1977 (Cth)

FACTS Mr Bragg was dismissed from the Australian Public Service because of improper conduct in relation to another employee. There was an appeal process to a Disciplinary Appeal Committee established by statute. Mr Bragg instead applied for judicial review under the Administrative Decisions (Judicial Review) Act 1977 ('ADJR Act'). ISSUE Should the court exercise jurisdiction under the ADJR Act when an alternative remedy exists? DECISION Per Davies J: Appeal dismissed. An adequate statutory right of review had been established. The general practice of the court is not to consider, in the first instance, a dispute where a satisfactory administrative remedy has been provided. The court is too busy and its processes too costly. The informal and expeditious administrative remedy should be availed of before the court is asked to rule in such circumstances.

ISSUE Were the enforcement powers of HREOC an unconstitutional exercise of judicial power by a non-judicial body? DECISION Per Mason CJ, Brennan and Toohey JJ: The provisions of the Act that provide for registration and enforcement of a determination of the Commission as if it were an order of the Federal Court purports to provide for an exercise of judicial power by the Commission and is invalid. The Commissioner is not constituted as a court in accordance with the requirements of Ch III of the Constitution and, therefore, cannot exercise the judicial power of the Commonwealth. Under s 71 of the Constitution judicial power may only be vested in the High Court or such other courts as the Parliament creates or invests with federal jurisdiction.

[25]

BROPHO v STATE OF WESTERN AUSTRALIA (1990) 171 CLR 1; 93 ALR 207 High Court of Australia

Crown - Whether statute binds Crown or statutory corporation

FACTS Brandy and Bell were officers of the Aboriginal and Torres Strait Islander Commission ('ATSIC'). Bell made a complaint against Brandy alleging breaches of ss 9 and 15 of the Racial Discrimination Act 1975 (Cth). He also complained as to the inadequacy of the response of ATSIC. An inquiry by the Human Rights and Equal Opportunity Commission

FACTS The Western Australian Development Corporation was created by a Western Australian statute. It was an agent of the Crown in right of Western Australia and enjoyed the status, immunities and privileges of the Crown. It commenced extensive works to develop an area of land owned by the State. The land was situated within an Aboriginal site or sites. Bropho was a man of Aboriginal descent for whom the sites were 'sacred', 'ritual' and/or 'ceremonial'; 'of importance and special significance' within the meaning given to those terms in the Aboriginal Heritage Act 1972 (WA). Section 17 of that Act provided: 'A person who ... excavates ... damages ... or in any way alters any Aboriginal site ... commits an offence unless he is acting with the authorisation of the Trustees ... or the consent of the Minister ... '. Bropho alleged that all the actual or threatened activities were contrary to s 17 in that they

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[24]

BRANDY v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (1995) 183 CLR 245 High Court of Australia

Separation of powers

LexisNexis Case Summaries

Administrative Law

constituted excavation, damage and/or alteration to an Aboriginal site or sites without the requisite authorisation or consent.

to the Committee of the Australian Jockey Club was dismissed as was an appeal to the Supreme Court of New South Wales which found the stewards decision had been flawed by denial of procedural fairness.

The Master of the Western Australian Supreme Court and, on appeal, a majority of the Western Australian Supreme Court, held that the relevant provisions of the Aboriginal Heritage Act did not apply to the activities of the Corporation or the State on the basis of the entrenched presumption that a statute does not bind the Crown. ISSUE Are the Crown or Crown instrumentalities or agents bound by a statute? DECISION Allowing the appeal, per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh ]] : Considerations of principle preclude recognition of an inflexible rule that a statute is not to be construed as binding the Crown or Crown instrumentalities or agents unless it manifests a legislative intent so to do either by express words or by 'necessary implication'. If such a legislative intent appears, that legislative intent must prevail. Earlier judicial statements of the rule of statutory construction should no longer be seen as precluding the identification of a legislative intent that the general words of a statute should bind the Crown in other circumstances or as warranting the overriding of a legislative intent which can be discerned in the provisions of a statute when construed in context. There can be discerned in the Aboriginal Heritage Act 1972 (WA) a legislative intent that the general words of s 17 should apply to employees and agents of governmental instrumentalities such as the Corporation in the course of their duties as such. Neither the Corporation nor the Crown in right of Western Australia has power to authorise its employees or others to carry out activities proscribed by that section. This decision does not overturn the settled construction of particular existing legislation. In the case of legislative provisions enacted subsequent to this decision, the strength of the presumption that the Crown is not bound by the general words of statutory provisions will depend upon the circumstances.

ISSUE Can a denial of procedural fairness at an original hearing be cured through appeal proceedings? DECISION Per Lord Wilberforce: Even if the stewards had failed to observe the principles of natural justice, their decision for the purposes of the appeal to the Committee of the Club was not void. The Committee, therefore, had jurisdiction to entertain the appellant's appeal. The appeal hearing itself was governed by the Rules of Racing. It is 'an essentially domestic proceeding, in which experience and opinions as to what is in the interests of racing as a whole play a large part'. Those who participate in the sport 'have accepted the Rules of Racing, and the standards which lie behind them; they must also have accepted to be bound by the decisions of the bodies set up under those rules' so long as it can be objectively said that they had 'fair treatment and consideration of their case on its merits'. Calvin's case had received 'full and fair consideration'. There was no basis on which the court ought to interfere.

[27]

CENTURY METALS AND MINING NL v YEOMANS (1989) 40 FCR 564; 100 ALR 383 Federal Court of Australia (Full Court)

Natural justice of bias

Rule against bias -

Reasonable apprehension

FACTS Calvin was part-owner of a racing horse. After its poor performance in a race, an investigation was held by the stewards. The jockey was charged with a breach of the Rules of Racing and Calvin was named as a party to the breach and disqualified for one year. An appeal

FACTS The Federal Cabinet decided that mining on Christmas Island should cease and that the Phosphate Mining Corporation of Christmas Island ('PMCI') should be wound up and, for that purpose, that a liquidator should be appointed. Yeomans, a chartered accountant, was appointed as liquidator of PMCI. In announcing his appointment the Minister referred to the intention of the Government to ensure a future for the Island more in keeping with its unique environment and tourist potential. Despite this, several parties, including Century Metals and the Union of Christmas Island Workers ('UCIW'), expressed interest in continuing mining the phosphate works on Christmas Island. In a media release the Minister announced that the assessment of proposals to reopen the mine were to be undertaken by an 'independent' assessment of the proposals. Subsequently he charged Mr Yeomans, who had earlier involvement with three competing proposals, with the task of assessing the proposals. Yeomans recommended a proposal by Elders Resources Ltd. Century Metals applied for review under the Administrative

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[26]

Natural justice -

CALVIN v CARR [1980] AC 574 Privy Council

Breach of the rules -

Effect of appeal

LexisNexis Case Summaries

Administrative Law

Decisions (Judicial Review) Act 1977 of various decisions made by Mr Yeomans and the Minister for Arts and Territories as being in breach of the rules of natural justice (s S(l)(a) of the Act and improper exercise of power (s S(l)(e)). It was dismissed by French Jin the Federal Court.

that the Elders proposal be accepted must be set aside. The Minister's decision to commence negotiations with Elders was based upon that recommendation. It has been made without the promised independent, impartial and thorough assessment. Consequently, that decision also must be set aside.

ISSUE Was there a reasonable apprehension of bias on the part of the decision makers?

Per Fisher, Wilcox and Spender ]] : Obligations to accord procedural fairness are rarely imposed by statute, in express terms. The doctrine 'has been developed by the judges in an attempt to shield from unfairness those potentially affected by the exercise of certain legal, including statutory, powers'. In the situation which here occurred, it did not matter whether one described Mr Yeomans as 'lacking independence or as lacking impartiality'. 'Putting the position at its lowest, a fair minded person who was aware of the facts might, in such circumstances, entertain a reasonable apprehension that Mr Yeomans might not bring an impartial and unprejudiced mind to the task which was committed to him.' This is the test of bias applicable to judicial proceedings; a test which will not usually be appropriate in connection with administrative decisions. 'Ministers and other administrators frequently have a continuing relationship with a particular issue or particular person during the course of which they necessarily form views; in practice it would generally be impossible for them to bring an open mind to a new decision pertaining to that issue or person.' DECISION

[28]

CHURCH OF SCIENTOLOGY INC v WOODWARD (1982) 154 CLR 25; 43 ALA 587 High Court of Australia

Non-justiciability-Australian Security intelligence Organisation Ultra vires FACTS The plaintiffs claimed that the Australian Security Intelligence Organisation ('ASIO') had collected intelligence information relating to the Church of Scientology and had classified the church and its members as security risks. The church claimed that ASIO was acting outside its statutory base as the investigation was not into a matter of security as required by s 17 of the Australian Security Intelligence Organisation Act 1979 (Cth) ('the ASIO Act'). A declaration was sought to declare the activities illegal and an injunction was sought to restrain ASIO from further such actions. ISSUE Did the court have the power to review decisions of ASIO in the exercise of its functions of collecting and assessing intelligence and did the doctrine of ultra vires apply to ASIO?

However in this unusual case, the test applicable to judges is relevant. 'In the present case the decisions to be made by the liquidator and the Minister were each administrative decisions; but they were decisions affecting substantial commercial interests in respect of which the Minister had repeatedly promised an 'impartial' assessment'. To overlook the fact that Mr Yeomans 'had formed views of the reliability of the UCIW and its secretary and of the prospects of the Century proposal', would be to strip the Minister's promise of its content. If a Minister, though not legally bound to do so, chooses to announce that a particular decision will be preceded by an 'impartial' assessment, members of the public are entitled to expect that the person who will make that assessment will bring to that task a mind which is both uncommitted in fact and which appears to be uncommitted. The application of this standard in the present case leads inexorably to the conclusion that Mr Yeomans should have been regarded, and should have regarded himself, as being disqualified to conduct the assessment. The Minister promised an assessment which would be independent, impartial and thorough. The assessment made by Mr Yeomans was none of these. The procedural fairness ground is made out. The decision of Mr Yeomans to recommend

DECISION By majority, Gibbs CJ delivered the judgment of the court: The jurisdiction of the High Court to undertake judicial review can be excluded only by direct and clear words and there are no such words or privative clause in the ASIO Act. Section 17 constitutes the exclusive and comprehensive charter of ASIO's activities. It effectively limits the activities in which ASIO is authorised to engage. ASIO's functions are not as defined in terms of what the organisation believes them to be. The provisions of the Act, not the organisation's opinion, furnish the measure of its legitimate functions. However a plaintiff bears the onus of showing that there is no reasonable basis for concluding that the actions in question have a real connection with security. It seems impossible for a court to say that any intelligence collected in good faith is not relevant to security, since it may, in the light of other material, bear on the question of whether a person is or is not a securiry risk. 'For these reasons I consider that the legislation does not entrust to the courts the power to decide that ASIO may not obtain particular intelligence on the ground that it is not relevant to security..'

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LexisNexis Case Summaries [29]

COLLECTOR OF CUSTOMS v AGFA-GEVAERT (1996) 186 CLR 389; 141ALR59; 43ALD 193 High Court of Australia

Law/fact distinction - Trade meaning/usage

FACTS The company imported photographic paper. It argued that it fell within the phrase 'silver dye bleach reversal process' for the purposes of a customs tariff concession and should be exempt from duty. The Administrative Appeals Tribunal ('AAT') held that the paper did not come within that phrase. The company successfully appealed to the Full Federal Court, the right to appeal depending on whether the error constituted an error of law. The Collector of Customs appealed to the High Court. ISSUE Was there an error of law or an error of fact? DECISION Per Brennan CJ, Dawson, Toohey, Gaudron and McHugh ]] : The Tribunal treated the phrase 'silver dye bleach reversal process' as a composite one whose meaning depended on evidence. Whether the Tribunal was correct in doing so therefore raises a question of law. The phrase 'silver dye bleach' had a special trade meaning, but 'silver dye bleach reversal process' did not. The finding of the Tribunal was permissable as a matter of law. It was supported by the evidence and the approach to construction, namely reading the expression 'silver dye bleach reversal process' by reference to the trade or technical meaning of'silver dye bleach' and the ordinary meaning of'reversal' does not lead to absurdity or a failure to construe the expression as a whole.

Administrative Law meaning is given to the word 'decision' in the Administrative Appeals Tribunal Act, subs 3(3 ). It includes not only those decisions made in pursuance of a 'legally effective exercise of powers under an enactment', but also those made in the 'honest belief' that they are made in the exercise of such powers. It also covers a purported exercise of powers pursuant to an enactment. In the present case there was a decision and it purported to be under the Customs Act. The applicant had standing to have the decision reviewed and the Tribunal had jurisdiction. [31]

COMMONWEALTH v NORTHERN LAND COUNCIL (1993) 176 CLR 604; 112 ALR 409 High Court of Australia

Public interest immunity

FACTS The Federal Court ordered that the Commonwealth produce for inspection by the legal representatives of the Northern Land Council, 113 notebooks containing notes made by Cabinet officers of the deliberations of Federal Cabinet and 13 other notebooks containing notes made by officers of the Department of Trade and Resources of the deliberations of Cabinet or committees of Cabinet. The notebooks contained entries which related to matters in issue in the action in the sense that they would either advance the Northern Land Council's case or damage that of the Commonwealth. The Commonwealth resisted inspection of the documents on the ground that it was against the public interest for the contents to be disclosed.

DECISION The Tribunalcan review a decision made by an administrator to take action which they cannot legally effectively undertake. A wide

The inspection ordered by Jenkinson J was limited to the legal representatives of the Northern Land Council and they were bound to make no disclosure of the contents to anyone else until further order. Jenkinson J did not himself inspect the documents, but in ordering inspection 'of all entries concerning events which occurred before the impugned agreement was made and which relate to the agreement or to negotiation for it', he clearly intended that the parties (restricted in the case of the Northern Land Council to its legal representatives) should identify more closely those entries of which the Northern Land Council sought disclosure in order that he might make such inspection himself as might be necessary, hear argument and make such further orders for production as might be appropriate. In making the limited order for inspection Jenkinson J expressed the view that the public interest balance was 'clearly in favour of granting inspection to the legal representatives of the [Northern Land Council], upon their undertaking not without the leave of the court to disclose to others what they learn by inspection.' The Commonwealth appealed unsuccessfully to the Full Court of the Federal Court against the order. The Commonwealth appealed to the High Court.

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[30)

COLLECTOR OF CUSTOMS (NSW) v BRIAN LAWLOR AUTOMOTIVE PTY LTD (1979) 41 FLR 338; 2 ALD 1 Federal Court of Australia

Administrative Appeals Tribunal Act 1975 (Cth) - Jurisdiction

FACTS The company held a warehouse licence issued by the Collector of Customs (NSW). A letter purported to revoke the licence on the ground that the company was not 'a fit and proper person' to hold such a licence. The company appealed to the Administrative Appeals Tribunal ('AAT') that this action was ultra vires. ISSUE Did the AAT have jurisdiction to review the decision if in fact the Collector of Customs had no authority to revoke the licence?

LexisNexis Case Summaries

Administrative Law

ISSUE Are Cabinet documents protected from disclosure on the ground of public interest immunity?

[32] CONWAY v RIMMER [1968] AC 910; [1968] 1 All ER 874 House of Lords

DECISION Per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh]]: Appeal allowed. Where it is established that a document belongs to a class which attracts immunity, a court will lean initially against ordering disclosure. Whether the circumstances of a particular case will be sufficient to displace the considerations which favour immunity depends to a large extent upon the nature of the class. In the case of documents recording the actual deliberations of Cabinet, only considerations which are indeed exceptional would be sufficient to overcome the public interest in their immunity from disclosure, they being documents with a pre-eminent claim to confidentiality. The process of determining whether an order for disclosure of documents in that class should be made remains one of weighing the public interest in the maintenance of confidentiality against the public interest in the due administration of justice, but the degree of protection against disclosure which is called for by the nature of that class will dictate the paramountcy of the claim for immunity in all but quite exceptional situations. We doubt whether the disclosure of the records of Cabinet deliberations upon matters which remain current or controversial would ever be warranted in civil proceedings. The public interest in avoiding serious damage to the proper working of government at the highest level must prevail over the interests of a litigant seeking to vindicate private rights. In criminal proceedings the position may be different. Thus, the necessary exceptional circumstances may exist in cases involving allegations of serious misconduct on the part of a Cabinet minister. Sankey v Whit/am [140] was such a case. It follows that, in our view, it is only in a case where there are quite exceptional circumstances which give rise to a significant likelihood that the public interest in the proper administration of justice outweighs the very high public interest in the confidentiality of documents recording Cabinet deliberations that it will be necessary or appropriate to order production of the documents to the court. Where such exceptional circumstances do exist, the appropriate course to be followed will ordinarily be for the judge personally to inspect the documents for the purpose of deciding whether the relevance of the material to the proceedings in which disclosure is sought is sufficient, even in those exceptional circumstances, to justify disclosure. Having regard to the strength of the claim for immunity, a judge ought not to order the disclosure of the contents of documents of that class unless the judge is satisfied that the materials are crucial to the proper determination of the proceedings.

26

Public interest privilege ('Crown privilege')

FACTS Conway, a former police constable, brought an action for malicious prosecution against his former superintendent, Rimmer. He sought discovery of several reports about him written by Rimmer. The Home Secretary claimed the right to withhold them from evidence. ISSUE Were the documents within a class of documents, productioh of which would be injurious to the public interest? DECISION The principle laid down in Duncan's case (Duncan v Cammell, Laird & Co Ltd [1942] AC 624; [1942] 1 All ER 587) must be departed from insofar as a claim of privilege can no longer be regarded as conclusive. The courts have a power and duty to balance the 'two kinds of public interest which may clash'. On the one hand, there is the public interest as expressed by a Minister to withhold certain documehts on the ground that disclosure would harm the nation or the public service, and on the other there is the public interest in ensuring the proper administration of justice. Although certain classes of documents ought not to be disclosed, the disclosure of the contents of the reports ln question would not be prejudicial to the public interest.

[33]

COONEY

v KU-RING-GAi MUNICIPAL COUNCIL (1963) 114 CLR 582

High Court of Australia Injunction -Availability

FACTS Mrs Cooney held paid social receptions on premises withih a 'residential district' under the Local Government Act 1919 (NSW). The use of a building in a residential district 'for the purposes of any trade, industry, manufacture, shop or place of public amusement' was an offence punishable by a fine. The Council sought an injunction to restrain Mrs Cooney from so using the premises. ISSUE Was an injunction an available remedy to restrain breaches of prohibitions imposed by planning laws? DECISION Per Menzies J; Kitto, Taylor and Windeyer]] conc4rring: Injunction granted. The old limitation, that for a Court of Equity to grant an injunction some positive interest analogous to a right of property had to be established, is now contrary to the trend of authority. 'Prohibitions

27

LexisNexis Case Summaries

Administrative Law

and restrictions such as those under consideration are directed towards public health and comfort and the orderly arrangement of municipal areas' (per Menzies J). They are imposed not for the benefit of particular individuals but for all those living in the municipal area. A proper case is made out when it appears that 'some person bound by a municipal law imposing a restriction or prohibition upon the use of land' in the municipality for the public good, 'has broken and will, unless restrained, continue to break that law for his or her own advantage and to the possible disadvantage of members of the public living in the locality'.

signals intelligence for the Government. Over 4000 people were employed and since 194 7 they had had the right to belong to national trade unions of which there were six represented at GCHQ. They, in turn, were members of the Council of Civil Service Unions. There had been a well-established practice of consultation between management and unions on matters concerning alterations to employment terms and conditions. Between 1979 and 1981 industrial action occurred at GCHQ on seven occasions. In 1984 the Secretary of State for Foreign and Commonwealth Affairs announced in the House of Commons that the staff at GCHQ would no longer be permitted to belong to national trade unions; there had been no consultation with the employers or their unions. They sought and were granted a declaration that the Minister's instruction was invalid and of no effect because of her failure to consult. The Court of Appeal reversed this decision and dismissed the application for judicial review.

[34]

COOPER v WANDSWORTH BOARD OF WORKS (1863) 14 CB (N S) 180 Court of Common Pleas

Natural justice -

Duty to observe

FACTS Cooper sued the Board in trespass after it demolished his construction which had reached the second storey. He had failed to comply with a local government Act which required that a person intending to build a house must give seven days' notice before commencing, or else the defendant could lawfully demolish the building. The verdict was for Cooper. The defendant obtained a rule nisi to enter a verdict for them or to non-suit the plaintiff. ISSU E

Was the Board required to observe procedural fairness?

DECISION Rule discharged. Although the Act did not require notice and a hearing to a party before his house was demolished, common law principles of natural justice supply them. The Board was acting in a judicial capacity and the principle that 'no man shall be deprived of his property without an opportunity of being heard' is applicable. There could be no harm to the Board from hearing the plaintiff before they subjected him to so serious a loss. The requirement of a hearing serves the public order, does substantial justice and fulfils the purpose of the statute.

[35]

COUNCIL OF CIVIL SERVICE UNIONS v MINISTER FOR THE CIVIL SERVICE [1 985] AC 374; [1984] 3 All ER 935 House of Lords

ISSUE Did the unions have a legitimate expectation of being consulted before the Government changed the policy of allowing trade unions in the workplace? DECI SION Appeal dismissed. Irrespective of whether powers exercised directly under the prerogative are immune from challenge in the courts, delegated powers under the prerogative are not necessarily immune. The instruction involved in the present case was pursuant to a Minister's power under an order in council. There was no reason why the mode of exercise of that power could not be reviewed by the courts (per Lord Fraser). The majority were of the view that it was not the source of power (that is, prerogative or statute) that is determinative of whether the decision of the executive is subject to judicial review. Rather, the controlling factor was the justiciability of the subject matter. The appellants had a legitimate expectation that they be consulted before the benefit of trade union membership was withdrawn. This was based on past practice and the Minister's failure to consult entitled them to judicial review of the instruction. However, this right was overridden by national security considerations. Evidence on behalf of the Minister was to the effect that the reason for her decision not to consult had been to avoid the risk of industrial disruption at GCHQ which would threaten national security. Whether the decision was in fact necessitated by national security requirements was non-justiciable.

[36] CRAIG v SOUTH AUSTRALIA (1 995) 184 CLR 163; 131 ALR 595; 69 ALJR 873 High Court of Aust ralia

Natural justice - Legitimate expectation - Denial - Non-justiciable prerogative power

Jurisdictional error -

FACTS Government Communications Headquarters ('GCHQ') was a branch of the United Kingdom public service. Its main function was to ensure the security of military and official communications and to provide

FACTS Mr Craig was charged by information in the District Court of South Australia with three offences carrying maximum penalties of five years (larceny), eight years (receiving stolen property) and

28

29

Error of law on the face of the record

LexisNexis Case Summaries

Administrative Law

five years (destroying by fire). His application for an order that the prosecution be stayed until he could be 'provided with representation by counsel at public expense' was granted by a District Court judge. The State sought certiorari quashing the order staying the proceedings and mandamus directing the judge 'to try the matter according to law'. An order in the nature of certiorari was made by the Full Court of the Supreme Court. The High Court granted special leave to appeal 'limited to the question of jurisdictional error and error of law on the face of the record'.

the Committee's legal counsel would have given the impression that he was improperly influencing the tribunal and its operations.

ISSUE Did the District Court fall into jurisdictional error for the purposes of certiorari? DECISION Per Brennan, Deane, Toohey, Gaudron and McHugh JJ: Appeal allowed. In considering jurisdictional error, a distinction must be made between inferior courts and other tribunals. An inferior court, such as the District Court of South Australia, falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Certiorari goes only to quash a decision or order. In the absence of statute or some other instrument, an administrative tribunal lacks authority to determine questions of law or make an order or decision otherwise than in accordance with the law. A court of law can decide questions of law and questions of fact and its mistakes do not ordinarily involve jurisdictional error. Errors of law may be corrected if an appeal is available. In the present case there was no jurisdictional error for the purposes of certiorari: Dietrich v R ((1992) 177 CLR 292; 109 ALR 385), and there was no error on the face of the record for the purposes of certiorari.

[37]

DALE

v NEW SOUTH WALES TROTTING CLUB LTD

ISSU E Was the legal counsel exercising the powers of the Committee so as to result in an unfair proceeding or merely assisting the Committee? DECISION Maloney's case [89] concerns the disqualification of a member of a domestic tribunal to sit because of actual bias. Here, the concern is with matters of misconduct, impropriety or denials of natural justice during the course of the proceedings. The Committee follows its own ru les as to the conduct of its proceedings, and its rules allow it a wide discretion to seek and apply such assistance from counsel as it sees fit. The facts show that counsel acted properly in fulfilling the role the Committee asked of him. His conduct did not lead to a reasonable suspicion that the Committee proceedings were not conducted with the necessary fairness and impartiality.

[38]

DIMES

v PROPRIETORS OFTHE GRAND JUNCTION CANAL (1852) 3 HLC 759 House of Lords

Natural justice -

Rule against bias -

Pecuniary interest

FACTS A public company bought land to construct a canal. Dimes, who had an interest in the land, ejected the proprietors of the company. The Vice Chancellor confirmed the company's title to the land and granted it an injunction restraining Dimes from blocking the canal. These orders were confirmed by the Lord Chancellor. When Dimes learned that the Lord Chancellor held several thousand pounds worth of shares in the company, he appealed to the House of Lords on the grounds of bias.

[1978] 1 NSWLR 551 Suprem e Court of New South Wales (Court of Appeal)

ISSUE Was the confirmation of the orders by the Lord Chancellor void on the grounds of bias?

Natural justice - Rule against bias - Reasonable suspicion of bias - Conduct of proceedings - Domestic tribunal

FACTS Dale was a bookmaker licensed by the Trotting Club. He was charged with offences under the rules before the stewards: he allegedly sought to induce a trainer not to run a horse on its merits. He was disqualified for life. His appeal to the Appeal Committee was dismissed. In proceedings before the Supreme Court, Needham ] held that the Appeal Committee proceedings denied him natural justice and were invalid on the grounds that, to a reasonable bystander, the conduct of

DECISION The order of the Lord Chancellor was, because of his interests, not absolutely void, but voidable only. The Vice Chancellor makes orders independent of the Lord Chancellor and, if they are not reversed by the Lord Chancellor, they are not affected by the disqualification of the latter. However, in order to appeal the Vice Chancellor's orders to the House of Lords, they have to be enrolled; and enrolment must be made with the Lord Chancellor's signature. In giving that signature, 'his interest affords no objection to its validity'. It is a case of necessity (italics added). His signature to the order for the purpose of the enrolment was ne ither void nor voidable.

30

31

LexisNexis Case Summaries

[39]

DIRECTOR-GENERAL OF SOCIAL SERVICES v CHANEY (1980) 47 FLA 80; 3 ALO 161 Federal Court of Australia (Full Court)

Administrative Appeals Tribunal Act 1975 (Cth) - The meaning of 'decision' FACTS The Department of Social Security suspended a widow's pension being paid to the respondent. Her internal appeals were unsuccessful. She appealed to the Administrative Appeals Tribunal to review the Director General's decision. The President of the Tribunal ruled that it had jurisdiction to review the decision and he also stayed the order of suspension of the pension pending the review by the Tribunal. The Director-General appealed these 'decisions'. ISSUE Under s 44 of the AAT Act, does an appeal lies 'from a ruling or adjudication upon the road to ultimate decision'. DECISION Per Deane J, with whom Fisher J concurred (Northrop J dissenting): The word 'decision' must be given a limited meaning and neither the ruling as to jurisdiction nor the interim order as to the stay of suspension of the pension was a 'decision' from which an appeal lay pursuant to s 44 of the Act.

The Tribunal is not subject to the general jurisdiction of the Federal Court. Section 44 provides that a party may appeal to the Federal Court on a question of law from any 'decision' of the Tribunal. Looking at the scheme of the Act as a whole, this ordinarily means an appeal from a final decision. If appeals could be brought at any intermediate stage, this would not only be very disruptive, but may also be often unnecessary, for example, in cases where the ruling 'may prove irrelevant to the ultimate decision'. Likewise, an applicant who chose to appeal a decision of the Executive instead of having an orderly resolution of the case would be 'stepping into a maze' in which a 'myriad of possible appeals awaited at the whim of those who fund their enthusiasms ... from the long purse of the Government'. [40] DIRECTOR-GENERAL, DEPARTMENT OF TRADE AND INVESTMENT, REGIONAL INFRASTRUCTURE AND SERVICES v LEWIS (2012) 301 ALA 420; (2012] NSWCA 436 New South Wales Court of Appeal

Administrative Law

impose more onerous conditions on licencees. Lewis applied for an injunction to restrain the Director-General from applying such an accord to his hotel. ISSUE Was the application of the accord against Lewis' premises, without providing him the source material for the report which had been provided to the Director-General in relation to a licence decision, a denial of procedural fairness? DECISION Per Sackville AJA: Having regard to a number of matters, the refusal of the Director-General to provide the respondents with the source material involves no 'practical injustice'. The exercise of the Director-General's statutory power affected all 58 licencees and the matters to which the Director-General must be satisfied are general in nature. Lewis had not requested an exemption for his hotel and the source material relates generally to alcohol-related incidents in the precinct. The Director-General does not review the source material. The respondent has been accorded the opportunity to make any arguments he wishes in opposition to the proposed variations.

[41]

DRAKE

v MINISTER FOR IMMIGRATION AND

ETHNIC AFFAIRS (1979) 24 ALA 577; 46 FLA 409 Federal Court of Australia (Full Court) Administrative Appeals Tribunal Act 1975 (Cth) Tribunal

Powers of the

FACTS Drake, a United States citizen, applied for a review of a decision by the Minister that he be deported from Australia. He had been convicted of possessing cannabis. The Administrative Appeals Tribunal affirmed the Minister's decision. Drake appealed to the Federal Court. ISSUE Did the Tribunal attach such importance to Ministerial policy that it failed to exercise independent judgment?

FACTS The Director-General was empowered to approve 'liquor precinct accords' under the Liquor Act which had the potential to

DECISION The function of the Tribunal is to review administrative decisions which are under attack. The Tribunal is not restricted to considerations which are relevant to judicial determinations. It has the power to decide whether a decision was 'the correct and preferable one on the material before the tribunal'. It is, however, obliged to act judicially, that is, with 'judicial fairness and detachment'. It may take government policy into account. However, as in the present case, it is not bound to determine the matter according to government or ministerial policy unless a specific statutory provision requires it. Government or ministerial

32

33

Procedural fairness -

The right to be heard

LexisNexis Case Summaries

Administrative Law

policy is a factor to be considered and, where the Tribunal concludes that a correct decision results from the application of such policy, it is desirable that it 'makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion'. The Tribunal failed to properly perform its function of reviewing the Minister's decision in that it failed to make an independent assessment and 'independent determination that the circumstances of the case were such that the correct decision was that resulting from the application of that policy to the relevant facts'. The appeal was allowed and the matter remitted to the Tribunal for a rehearing.

the assistance it provides in arriving at a preferable decision. The laying down of broad policy is a political function amenable to parliamentary scrutiny. It was, therefore, warranted that the Tribunal adopt 'a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary'. [43) DURAYAPPAH v FERNANDO [1967] 2 AC 337; [1967] 2 All ER 152 Privy Council Natural justice - The duty to observe

[42)

DRAKE v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (No 2) (i979) 2 ALD 634 Administrative Appeals Tribunal

Administrative Appeals Tribunal Act 1975 (Cth) Tribunal - Role of ministerial policy

Powers of the

FACTS Drake, an American citizen, was ordered to be deported. The Tribunal affirmed the Minister's decision. The Minister's policy statement regarding his approach in deportation cases provided that ( 1) 'all the material facts and circumstances relating to that person' would be considered by the Minister, every case being decided upon individual circumstances, and (2) the basic consideration was whether in all the circumstances it was in 'the best interests of the Commonwealth of Australia that the person be deported'. Drake's appeal to the Federal Court was allowed and the matter was remitted to the Tribunal for rehearing.

FACTS The Minister for Local Government exercised his powers under the Municipal Council's Ordinance to dissolve the Jaffna Municipal Council for alleged incompetent performance without giving it the right to be heard in its own defence. The Mayor of Jaffna appealed from the Supreme Court of Ceylon. ISSUE Should the principles of natural justice have been applied to the exercise of power to dissolve the Council?

Per Lord Upjohn who considered the following three issues: (1) the nature, status and duties of the office held; (2) the question of when a person such as the Minister could intervene; (3) the sanctions which the Minister could impose. DECISION

DECISION The Minister's decision to deport Drake was affirmed as his activities 'were gravely damaging to the welfare of Australian society'. Deporting him was in accord with the Minister's policy and would ensure that the community was 'protected from the risk of his engaging again in large scale drug offences'. This outweighed any consideration in favour of allowing him to stay. The application of a stated policy to decision-making in this area ensured consistency and fairness. The stated policy did not fetter the exercise of the Minister's discretion nor did it exceed the 'lawful limits of policy'. The Tribunal, in reviewing a Minister's decision,. may or may not apply the Minister's policy. The Tribunal is independent and free to make its own decision on the material before it. If it applies ministerial policy it is because of

(1) The Council of Jaffna was a public corporation entrusted with administration of a large area and the discharge of important duties. 'No Minister should have the right to dissolve such an authority without allowing it the right to be heard unless the statute is so clear that it is plain it has no right of self-defence.' (2) The Minister could dissolve the Council on three grounds: (a) incompetence; (b) persistent default in performance of duties; (c) persistent default in compliance with the law. As these are most serious charges, 'it is plain and obvious that the principle audi alteram partem must apply'. (3) The sanction was 'as complete as could be imagined; it involves the dissolution of the Council and therefore the confiscation of all its properties'. The principle that no one can be deprived of property without having an opportunity of being heard applies to a statutory body. Therefore, on this ground also the Minister should have observed the principle. (The Privy Council went on to hold that the Minister's order was not void, but merely voidable at the instance of the person aggrieved, that is, the Council. Therefore, the Mayor's appeal was dismissed. This aspect of the decision has been considered incorrect.)

34

35

ISSUE

Should the Tribunal apply ministerial policy to its decision

making?

LexisNexis Case Summaries

Administrative Law

[44] DYSON v ATTORNEY-GENERAL [1911] 1 KB 410; [1912] 1 Ch 158 Court of Appeal (UK)

3(2)(b) of the Health Insurance Commission Regulations, that there was sufficient evidence to warrant a referral of the case investigated to a committee established under Div 3 of Pt V of the Act and to refer the case to the Minister for Community Services and Health. The applicant had voluntarily co-operated in providing information to Dr Nearhos. The second decision challenged was a decision of Dr Dash, as delegate of the Minister and pursuant to s 82 of the Act, to refer to the Medical Services Committee of Inquiry for Victoria the question of whether each of 4011 professional services rendered by the applicant to 544 patients . service . '. was an 'excessive

Declaration -

Scope and availability as a judicial remedy

FACTS Dyson sought a declaration to test the validity of a form which was sent to all landowners. It required them to give information regarding property values. Failure to comply within a certain time was punishable by a fine not to exceed £50. Dyson claimed it was ultra vires and sought a declaration that he was under no obligation to comply with it. The Attorney General objected to the request for aa declaratory order. ISSUE Was an application for a declaratory judgment an appropriate remedy? DECISION The power to make declaratory decrees was first granted the Court of Chancery in 1852 and since then the jurisdiction has been enlarged. There was no reason why it should not apply to an action in which the Attorney-General was a party. As the Crown was only indirectly affected, this was not a case for a petition of right. A declaratory judgment is a discretionary remedy and the court in the exercise of its discretion has regard to all the circumstances. The Act in question imposed 'burdensome and expensive inquiries' upon the plaintiff and for non-compliance he was threatened with fines. Eight million of these forms had been sent out in England. A declaratory judgment is a convenient way of providing a quick and easy access for those who have real cause of complaint against the exercise of statutory powers by government departments and government officials. It was an appropriate method of obtaining a true construction of the Act. to

[45]

EDELSTEN v HEALTH INSURANCE COMMISSION (1990) 27 FCR 56; 96 ALR 673 Federal Court of Australia

Administrative Decisions (Judicial Review) Act 1977 (Cth) Preliminary decisions-Whether natural justice should be accorded

FACTS The applicant, Dr Edelsten, brought two actions, which were heard together at first instance, and on appeal to the Full Court, concerning the circumstances in which an investigation was commenced by the Health Insurance Commission into the question of whether his use of ultrasound, echocardiography and pathology services constituted 'excessive services' withins 79(1B) of the Health Insurance Act 1973 (Cth) ('the Act'). The applicant challenged a decision made by Dr Nearhos, as delegate of the Health Commission and pursuant to reg 36

The primary judge held that both decisions were reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'). In relation to the first decision Dr Nearhos had no duty to comply with the rules of natural justice and the application was dismissed. In relation to the second decision there was a denial of natural justice in the failure to inform the applicant of the allegations and afford him an opportunity to reply. This decision was set aside. ISSUE Are preliminary decisions reviewable under the ADJR Act? DECISION Per Northrop, Davies and Lockhart JJ: For a decision to be reviewable under the ADJR Act it must have a quality of finality, not being merely a step taken on the way to the possible making of an ultimate decision, and it must have the essential quality of being a substantive, as distinct from a procedural, determination. There being no duty on the Minister to do anything but consider the reference made to him by Dr Nearhos under reg 3(2)(b) of the Health Insurance Commission Regulations, and no rights or legitimate expectation of the applicant being affected by Dr Nearhos' decision, the decision to refer was not a reviewable decision under s 31 (1) of the ADJR Act. Per Northrop and Lockhart JJ: The decision of Dr Dash to refer the matter to the committee, the committee being bound under s 94(c) of the Act to do no more at this preliminary stage than consider and decide whether the person may have rendered excessive services, was not a decision reviewable under s 3(1) of the ADJR Act. [46]

EDWARDS (INSPECTOR OF TAXES) v BAIRSTOW [1956] AC 14; [1955] 3 All ER 48 House of Lords

Jurisdictional error - The fact/law distinction

FACTS The respondents purchased a spinning plant intending to resell it. When they sold it at a profit, income tax was assessed. On appeal to

37

LexisNexis Case Summaries

Administrative Law

the Commissioners for the General Purposes of the Income Tax, the assessment was discharged on the ground that the profit did not result from a 'trade, manufacture, adventure or concern in the nature of trade' according to the Income Tax Act 1918. An appeal was dismissed on the ground that the Commissioners' decision was a question of fact. The appellant appealed further.

[48] EVANS V NEW SOUTH WALES (2008) 168 FCR 576; 104 ALD 234; 250 ALR 33 Federal Court of Australia

ISSUE Was there an error of fact or an error of law? DECISION Appeal allowed. The primary facts did not justify the conclusion or inference which the Commissioners drew. The meaning to be given to the words of the Income Tax Act in the phrase 'trade, manufacture, adventure or concern in the nature of trade' was a question of law. When an inference is drawn from facts it is an inference of fact only if the tribunal which makes it is rightly directed in law; that is, in the present case, if it correctly understood the statutory language. All the facts of the transaction in question pointed to it being in 'the nature of trade'; therefore the original assessment should be confirmed.

[47]

EVANS v DONALDSON (1909) 9 CLR 140 High Court of Australia

Ultra vires - Acting under dictation

FACTS The appellant was an inspector of weights and measures. He was appointed under an Act which had no provisions for removal from office. A Royal Commission was appointed to inquire into the administration of his office. A complete reorganisation was recommended. Although the Commission made no findings of impropriety, an order was made by a stipendiary magistrate that the inspector be removed from office. The appellant had been called upon to show cause why he should not be removed. However, soon after the proceedings had begun, the magistrate read a letter from the Attorney-General which announced new arrangements for the office, and that the inspector was to be removed. The Supreme Court of New South Wales refused to issue a writ of certiorari. The appellant appealed to the High Court.

Delegated legislation -

Ultra vires -

Implied constitutional rights

FACTS World Youth Day was an international festival held in Sydney organised by the Catholic Church in 2008. The World Youth Day Act 2006 (NSW) conferred authority on the Governor to make regulations 'necessary and convenient' for regulating the conduct of the public in connection with the event. Regulation 7 empowered an authorised person to direct a member of the public within a World Youth Day declared area to cease conduct that caused 'annoyance or inconvenience to participants in a World Youth Day event'. A group who wanted to protest the teachings of the Church, by distributing material about sexual tolerance, contraception and the like as well as to distribute condoms and wear badges and stickers of protest, sought a declaration that the regulation was invalid. ISSUE Was the regulation invalid as beyond the regulation-making power conferred by the World Youth Day Act? DECISION Per French, Branson and Stone JJ: The regulation was invalid as it infringed the right to free expression. The regulation was not authorised by the Act which 'we have interpreted on the presumption that it was not the intention of Parliament that regulations would be made under the Act preventing or interfering with the exercise of the fundamental freedom of free speech'. The conduct regulated so far as it relates to 'annoyance' may extend to expressions of opinion which neither disrupt nor interfere with the freedoms of others, nor are objectively offensive.

[49] FAI INSURANCES LTD vWINNEKE (1982) 151 CLR 342; 41ALR1; 4 ALN N161; 56 ALJR 388 High Court of Australia Natural justice - Duty to observe - Non-renewal of approval Decision of Governor in Council - Legitimate expectation

DECISION Certiorari granted. The proceeding was a nullity. The inspector could only be removed for good cause by a magistrate in petty sessions and not at the pleasure of the Crown or the Governor in Council. Because the Attorney-General interfered with the exercise of the court's discretion, there was no real inquiry at all.

FACTS The insurance company had, for 20 years, carried on the business of workers' compensation insurance in Victoria. Approval to do so was required from the Governor in Council for each 12-month period. On 2 December 1980 the company applied for rene\'val of approval for 12 months from 31 December 1980. Interim approval, effective until 1 June 1981, was given. On 18 May the Minister advised the company that he would recommend to the Governor in Council

38

39

ISSUE Was the Magistrate acting under dictation?

LexisNexis Case Summaries

Administrative Law

that the application not be approved. 'A summary of the case' against the company was set out. The company sought particulars of the matters raised by the Minister and asked for an opportunity to answer them. This opportunity was not given.

Whether preparatory activities would lead to the eventual opening up of the mine was also a question of fact. However, the view was also expressed that, whether the facts are such as bring the case within the provisions of a statute, the question is one of law only (per Rich AC]). Additionally, whether the evidence was sufficient to justify the finding of the taxation board that the company was carrying on mining operations was a question of law.

ISSUE Was the company entitled to puts its objections to the Minister before being denied approval to provide insurance? DECISION By majority: The case concerns 'an application for the renewal of an approval which closely resembles an application for the renewal of a licence. It is in this area that the concept of "legitimate expectation" has facilitated the application of the natural justice requirements' (per Mason J). The principle that a statutory discretion affecting rights is to be exercised according to the rules of reason and justice applies when the discretion is vested in the Governor in Council. 'The mere fact that he is the repository of the discretion does not warrant the implication that the discretion is entirely at large.' The company had 'a legitimate expectation that its approval would be renewed or, at the very least, that it would not be refused without its having an opportunity of meeting objections raised against it'. The legislature had not dispensed in the statute with the requirements of natural justice. It is proper 'to attribute to Parliament the intention that the Governor in Council will act in conformity with natural justice by giving to the company an adequate opportunity to present its case, as, for example, by written submissions ... '.

[51] FINCH v GOLDSTEIN (1981) 36ALR 287; 7 ALO 419 Federal Court of Australia Natural justice -

FEDERAL COMMISSIONER OF TAXATION v BROKEN HILL SOUTH LTD (1941) 65 CLR 150 High Court of Australia

Jurisdictional error - The fact/law distinction FACTS The Income Tax Assessment Act allowed deductions from a taxpayer's assessable income for 'calls on shares in a mining company ... carrying on mining operations in Australia'. The Federal Commissioner of Taxation disallowed the company's deductions on calls it had paid on shares in a mining company on the grounds that the mine was closed down. A taxation board of review reversed this decision. The Federal Commissioner appealed to the High Court, such a right of appeal being allowed on a question of law. ISSUE Was there a question of law to be appealed? DECISION Appeal dismissed. The common understanding of the words 'mining operations' was a question of fact and not a question of law. 40

Representation

FACTS The staff of the Australian Development Assistance Bureau ('ADAB'), an agency within the Department of Foreign Affairs, was substantially reorganised. Mrs Finch applied for a newly created position and was provisionally promoted to it. Shortly thereafter, Mrs Roughley appealed to the Promotions Appeal Committee against Mrs Finch's promotion on the grounds of her superior efficiency. At the hearing, Mrs Finch's requests to be represented by counsel to hear the evidence presented, and cross-examine or respond, were refused. She applied for an order of review of the decision. ISSUE

[50)

Conduct of hearing -

Did the Committee fail to observe the rules of natural justice?

DECISION Per Ellicott J: Application allowed. The question whether the 'rules of natural justice apply to the proceedings of a statutory tribunal and what those rules require is a matter of statutory construction'. There can be no doubt that 'Parliament intended that, under the Public Service Act, principles of natural justice should apply to the proceedings of Promotion Appeal Committees'. The decisions of those Committees under the Act 'affect the promotion and advancement of individual public servants'. Therefore 'the proper protection of their r!ghts a~ least demands that those"'inVolved in ap12~alproceedings have the right to know the Ca5e put against them as well as the opportunity to state their case, either oraily or in writi~ tom~ Committee . Wb_ether the Committee 1 --bouna'fo go further and give toeaCh ~rty_t;he right to ha~tion, to examine witnesses in chief, to be present when other evidence is given and to cross-examine adverse witnesses' qepends upon the circumstances. However, the nature of the matter beforetfle Committee 'makes it essential that each party know what is being put to the -Committee in favour of another . . . as well as that which is against himself or herself'. In not ensuring that Mrs Finch had all the material that was prejudicial to her, as well as what was put on 41

LexisNexis Case Summaries

Administrative Law

behalf of Mrs Roughley, the Committee failed to act fairly. furthermore, serious allegations that 'went to the yery heart of Mrs Finch's efficieo.c.¥for 'the position were not fully investigated b_y the Commit~~· In light_ of thefact-that the app1icant claimed they were without foundation, the Committee was bound to undertake a full inquiry.

possibly adverse effect on the use or enjoyment of the mall, and not for any extraneous purpose such as censoring expressions of opinion.

FOLEY v PADLEY (1984) 154 CLR 349; 54 ALR 609 High Court of Australia

[53]

[52]

Delegated legislation distinction

Ultra vires -

The prohibition/regulation

FACTS Foley, a Hare Krishna member, was charged with giving out a piece of printed material to a passer-by in a mall without permission (in writing) of the City of Adelaide. This was contrary to a Council by-law which provided that 'no person shall give out or distribute anything in the Mall or in any public place adjacent to the Mall to any bystander or passer-by without permission of the Council' (s 1 of by-law no 8). The purpose of the by-law was 'to regulate control or prohibit certain activities in Rundle Mall and in the vicinity of Rundle Mall that are,. in the opinion of the Council, likely to affect the use or enjoyment thereof'. The by-law was made in exercise of the power conferred bys 11 (1) (a) of the Rundle Street Mall Act 197 5 (SA) which provided that the Council could make by-laws 'regulating, controlling or prohibiting any activity in the vicinity of the Mall, that is, in the opinion of the Council, likely to affect the use or enjoyment of the Mall'. The Supreme Court held that the by-law was valid. Foley appealed to the High Court. ISSUE Was the by-law ultra vires as an improper delegation of power given to the Council? DECISION Per Gibbs CJ, Wilson and Dawson JJ (Murphy and Brennan JJ dissenting): When a power to make by-laws is conditioned upon the

FORBES v NSWTROTTING CLUB LTD (1979) 143 CLR 242; 25 ALR 1 High Court of Australia

Natural justice -

Duty to observe -

domestic tribunal

FACTS Forbes had regularly attended trotting races in and around Sydney over a period of more than 10 years and he had tnade a considerable income from betting on those races. A committee of the NSW Trotting Club passed a resolution 'warning off' Forbes. The Club was the controlling body of trotting in NSW under the Rules of Trotting made by the Australian Trotting Council, a voluntary association, to which the respondent and other trotting clubs in Australia belonged. Under the Rules of Trotting, a 'warning off' prohibited the person from entering any course under the Club's control and a warning off by the respondent was acted on by other trotting clubs in NSW to which Forbes belonged. He applied to the Supreme Court of New South Wales for a declaration that the resolution was ultra vires and void, but the application was dismissed at first instance and by the Court of Appeal. He appealed to the High Court by special leave.

Was the Club obliged to afford procedural fairness before issuing a 'warning off' notice excluding a person from all race courses?

ISSUE

DECISION By majority (Barwick CJ dissenting): To be valid, a decision to warn off must be made in accordance with the principles of natural justice. These require an opportunity to be heard before the decision is made. Forbes was not afforded any opportunity to be heard before the resolution was passed. The Club's contention, that even if invalid as a warning off the resolution should be treated as an exercise of its proprietary rights, could not be accepted. A warning off could have effects much wider than exclusion from the Club's lands because of the provision for reciprocal warnings off by other clubs. Therefore, the resolution could not be treated simply as an exercise of the owner's rights.

existence of an opinion, it is the existence of the opinion, and not its correctness, which satisfies the condition. This does not mean that an exercise of the power is immune from challenge. In the present case it is sufficient to inquire whether the activity described in the by-law (s 1 of by-law 8) could reasonably have been regarded as likely to affect the use or enjoyment of the mall. If that question is answered in the affirmative there is no ground on which it could be concluded that the Council has misconstrued the effect of s ll(l)(a) or has taken into consideration matters which it was improper to consider. Section 1 of by-law 8 was not an improper delegation of the power given to the Council and the power of the Council to grant or refuse permission can be exercised only for the purpose for which the power is conferred, that is, to prevent a

FACTS Jododex Australia Pty Ltd was granted a 12-month exploration licence by the Minister for Mines pursuant to the Mining Act 1906

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[54]

FORSTER v JODODEX AUSTRALIA PTY LTD (1972) 127 CLR 421; [1972-73] ALR 1303 High Court of Australia

Declaration -

Scope and availability as a judicial remedy

LexisNexis Case Summaries

Administrative Law

(NSW). Renewals for six months were successively granted. Forster applied to enter certain parts of the land covered by the company's licence to search for minerals. A mining warden began an inquiry into Forster's application. The company sought and obtained a declaration in the Supreme Court of New South Wales that it was the holder of a valid exploration licence over the land which was the subject of Forster's application. Forster appealed, and objected that the Equity Court had no jurisdiction to make the declaration or, alternatively, if it had jurisdiction, it should have refused declaratory relief.

not patently or absurdly irrelevant to the subject matter of the Act. The regulations in question were valid in the light of these considerations. However, there was no breach of the regulations because the newspaper advertisement was void for uncertainty and there was no proof of Aloni's guilt.

ISSUE

Did the court have the jurisdiction to make the declaration?

DECISION Per Gibbs], with whom McT1eman, Stephen and Mason ]] agreed, on the issue of the Supreme Court's jurisdiction and discretion to grant a declaration: Appeal dismissed. The restrictive view thats 10 of the Equity Act 1901 (NSW) conferred on a judge sitting in equity, jurisdiction to make a declaration of right only in proceedings for equitable relief is no longer valid. An amendment to s 10 removed this limitation. The jurisdiction to make a declaration is now a wide one. It may, however, be ousted by statute by clear words. Such is not the case here. Section 10 gives a broad discretion which may be exercised when a 'real interest' is at stake. Jododex had a real interest to establish the validity of its licence and to ensure that the warden would not grant Forster's application to enter the land.

[55]

FOSTER v ALONI [1951]VLR481 Supreme Court of Victoria (Full Court)

Delegated legislation -

Ultra vires -

'As if enacted' clause

FACTS Aloni was charged with a breach of regulations made under the State Electricity Commission Act. The regulations made it an offence to use electricity, during a state of emergency, in a manner contrary to the provisions which were advertised in a newspaper. A subsection of the Act provided that the regulations were to have 'the like force and effect as if they were enacted in this Act'. The validity of the regulations and the advertisement were challenged by the defendant.

[56]

GENERAL NEWSPAPERS PTY LTD vTELSTRA (1993) 45 FCR 164; 117 ALR 629 Federal Court of Australia (Full Court)

Administrative Decisions (Judicial Review) Act 1977 (Cth) 'Decision under an enactment'; 'conduct for the purpose of making a decision' FACTS General Newspapers, trading as Hannanprint, expressed an interest in tendering for the printing of telephone directories. It was advised that it was on the tender list. Without advising Hannanprint and without calling for tenders, Telecom entered into new 10 year contracts with its existing printers. General Newspapers sought orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act') with respect to alleged conduct or decisions of Telecom not to put out to tender; secondly it alleged that Telecom's conduct was misleading or deceptive under s 52 of the Trade Practices Act 1974 (Cth); and, thirdly, that there was an abuse of market power. The trial judge held that the alleged decisions were not 'decisions' or 'conduct' for the purposes of the ADJR Act. There were several interim procedural decisions made on the way to the making of a final decision and while the conduct not to advertise for tenders was 'conduct' and the decision to enter the contract was a 'decision' neither was made 'under an enactment'. General Newspapers appealed. ISSUE Were there decisions and conduct made under an enactment for the purposes of the ADJR Act?

DECISION Per Lowe A CJ, Barry and Sholl ]] : An exercise of power under an 'as if enacted' clause will be valid if: ( 1) the regulation is one made by the authorities specified in the clause; (2) it deals with matters as specified in the parent Act and not inconsistent with it; and (3) it is

DECISION Per Davies and Einfeld ]] , with whom Gummow J agreed: Appeal dismissed. There was no conduct or decision which was amenable to an order under the ADJR Act. The Act provides for review of acts which have statutory effect because of the provisions of a federal enactment, not of acts taken under the general law applicable to the community. A 'decision' taken under a federal enactment is an action or a refusal to act which, by virtue of the statute, affects legal rights and/ or obligations; a step is not a reviewable decision, and conduct is not reviewable unless it is 'conduct for the purpose of making a decision' to which the Act applies. Here, the decision relied upon involved the entry of contracts and the conduct challenged was conduct leading to the making of contracts. The validity of the contracts and of the

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ISSUE Was the delegated legislation protected against judicial review by the 'as if enacted' clause?

LexisNexis Case Summaries

Administrative Law

acts done was governed entirely by the law of contract, not by statutes; compare Australian National University v Bums [17].

council. Goldberg's letters were much greater than this. Accordingly, he applied for permission to continue using his sign. Permission was refused.

[57]

GLENISTER v DILLON (No 1) [1976] VR 550 Supreme Court of Victoria (Full Court) Ombudsman - Jurisdiction Ombudsman Act 1973 (Vic)

Definition of 'administrative action' -

FACTS Two prisoners complained to the Ombudsman that the Crown Law Department had failed to bring them to trial within a reasonable time. In addition one of the prisoners complained that the Crown Solicitor had failed to answer his letter. When the Ombudsman sought to investigate the complaints, his jurisdiction was challenged by the permanent head of the Department pursuant to s 27 of the Ombudsman Act 1973 (Vic). ISSUE Did the Ombudsman have jurisdiction to investigate the judicial functions of government?

Per Gillard, Menhennitt and Dunn JJ: The word 'administration' in the various authorities denotes the performance of the executive function of government and does not include 'any activity (or inactivity) in the areas of the performance of judicial or legislative functions of government'. This view is supported by ss 13 and 16 of the Ombudsman Act 1973 (Vic). The subjects of the complaint were within 'the area of the judicial process' and even if the actions of the Crown Solicitor's Department could be regarded as administrative, they were excluded from the Ombudsman's jurisdiction bys 13(3)(b) which provides that nothing in the Act shall authorise the Ombudsman to investigate any administrative action taken by a person acting as a legal adviser to the Crown or as counsel for the Crown in any proceedings. DECISION

[58]

GOLDBERG v LAW INSTITUTE OF VICTORIA [1972] VR 605 Supreme Court of Victoria

ISSUE Was the regulation valid in regulating the profession, or was it a prohibition? DECISION Per Gillard J: The power to regulate the profession was given to a committee of professionals. They are the best body qualified to regulate professional behaviour. By making rules to regulate the size of lettering the council was not seeking to prohibit the practice or conduct of a profession but merely to regulate it. The regulating of signs allows a client to locate the solicitor's practice without constituting a form of advertising. The rule was not a prohibition; neither was it too wide. It was part of a scheme to regulate the legal profession.

[59] Re GOSLING (1943) 43 SR (NSW) 312 Court of Criminal Appeal Natural justice -

Non-application to legislative powers

FACTS After holding a private inquiry, the Milk Board reduced the retail price of milk. Under the Milk Act 1931 (NSW), it had the power to fix milk prices after holding either a public or private inquiry. The appellant was convicted of selling milk above the maximum fixed price. He argued that the powers conferred on the Board were such that they could not be exercised without first giving an opportunity to the parties affected to place their views before the Board. ISSUE Were the rules of natural justice applicable to the exercise of a delegated legislative power?

Per Jordan CJ: The regulation was not invalid in that it permitted the Milk Board, before fixing the price of milk, to hold either a public or a private inquiry at which persons affected by the exercise of the power had no right to be heard. The power to fix prices was a delegated legislative power, and the rules of natural justice are not applicable to such a power. DECISION

Ultra vires - The prohibition/regulation distinction

[60] GREEN v DANIELS (1977) 51 ALJR 463 High Court of Australia

Goldberg had practised since 1934 in a building which had a large plate glass window at street level with his name and the words 'barrister and solicitor' written on it in gold leaf. The Law Institute of Victoria was empowered under the Legal Profession Practice Act 1958 to make rules to regulate the legal profession. One of its rules was that a solicitor could not exhibit the words 'barrister and solicitor' exceeding three inches in height or in width without permission of the Institute's

FACTS Green was a school leaver as of 26 November. She sought the assistance of the Commonwealth Employment Service ('CES')

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FACTS

Ultra vires -

Inflexible application of a policy

LexisNexis Case Summaries

Administrative Law

in finding employment. No work was available and she was told to return when she received her school results. On 20 December, when she returned, she was again told there was no employment and that she could not receive an unemployment benefit because, as a school leaver, she was not eligible until the following 22 February, which was judged to be the date of the end of the school holidays. Although she made many attempts to find employment during December, January and February, she was unsuccessful. She returned to the CES on 22 February and was informed again there was no employment. A claim for an unemployment benefit was made and later received, computed from 22 February.

various boards and committees. An Assessment Board made a preliminary finding against Tang concerning falsified data. She was asked to make further submissions. The Board determined she be excluded from PhD candidature. Her appeal to the University Appeals Committee was dismissed. Tang sought review under the Judicial Review Act on grounds of denial of procedural fairness and the university's failure to follow its procedure.

The departmental policy stated that, 'as a general rule ... people who leave school and register for unemployment within 28 days prior to the end of the school year, or at any time during the long vacation, will not be in a position until the end of the school vacation to satisfy the conditions of eligibility for unemployment benefit which require the claimant to be unemployed and have taken reasonable steps to obtain work'. Green sought declarations that she was entitled to unemployment benefits from 27 November to 22 February and to damages reflecting the amount of those benefits. ISSUE

Was there an inflexible application of a policy to the applicant?

Per Stephen J: Whatever hint of flexibility may be thought be conveyed by the department's words 'as a general rule', the application of the general policy to the plaintiff 'contained no suggestion of anything other than an inflexible rule, a rule which prevented her from being considered for unemployment benefit at any time prior to 22 February'. Her claim for unemployment benefits was not considered as the Act required. The plaintiff was entitled to declaratory relief that the Director General re-examine the plaintiff's position. DECISION

to

ISSUE Were any of the university's decisions 'a decision made under an enactment?' DECISION Per Gummow, Callinan and Heydon ]] : The decision of the University's Appeals Committee was made as part of a 'consensual relationship' dependant upon mutuality. Although the decisions of the committees were empowered by the University Act that did not mean that the decisions were 'made under' the Act. Tang had no legal rights and the university had no obligations under the University Act with respect to the course of action it adopted towards Tang.

[62]

HALL v NSW TROTTING CLUB LTD [1977] 1 NSWLR 378 Supreme Court of New South Wales (Court of Appeal) Natural justice - Hearing requirement Domestic tribunal

Imposition of penalty -

FACTS Hall was a member of a dub and owned horses registered by the club. He was suspended for three months for misconduct under the club's rules. He was present at the hearing of the charge but the stewards did not hear him on the question of penalty. ISSUE

Did the hearing rule apply to all aspects of the case?

FACTS Tang was a student who was excluded from the University for academic misconduct. The Griffith University Act empowered the university to exercise disciplinary procedures which were governed by a University Council policy, administration of which was delegated to

DECISION By majority: It is the duty of a domestic tribunal to hear the accused on all parts of the case. After the stewards found Hall guilty they had a duty to hear him on the question of penalty. The penalties which could have been inflicted under the rules were severe and representations by Hall might have mitigated the penalty imposed. His medical report, though rightly regarded by the stewards as irrelevant on the question of guilt, should not have been ignored on the question of penalty, and he was entitled to insist it be at least considered. It was clear from the record that the stewards did not seem to recognise any duty to provide him with that opportunity. The penalty, therefore, could not stand.

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[61]

GRIFFITH UNIVERSITY vTANG [2005] HCA 7 High Court of Australia

Judicial Review Act 1991 (Old) enactment'

Decision made 'under an

LexisNexis Case Summaries

Administrative Law

(63] HAMBLIN v DUFFY (1981) 50 FLIR 308; 34 ALR 333 Federal Court of Australia

of particular individuals. The Board did not 'merely pronounce upon existing rights', it created or modified rights. [64]

Administrative Decisions (Judicial Review) Act 1977 (Cth) 'Decision of an administrative character' FACTS Rita Hamblin was employed by the Australian Broadcasting Commission ('ABC'). She applied for a more senior position which had become vacant. Another, less senior, officer of the ABC was provisionally promoted to the vacancy. Hamblin appealed to the Promotions Appeal Board against the provisional promotion of the other officer, alleging 'equal efficiency' and 'seniority' to the provisional appointee. The Promotions Appeal Board disallowed her appeal. She applied to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 ('the ADJR Act') for an order of review of the decision disallowing her appeal. The ABC objected to the jurisdiction of the court to hear the application. ISSUE Was the decision of the Promotions Appeal Board a decision 'of an administrative character' within the meaning of the ADJR Act?

Per Lockhart J: Objection to competency overruled. The expression 'decision of an administrative character' excludes decisions of a different character such as legislative, judicial and perhaps ministerial. However, the purpose of the ADJR Act is to 'remove technicalities and complexities surrounding the law relating to judicial review and to improve procedures for judicial review of administrative decisions'. It 'must not be interpreted or applied so as to adopt or reflect the very problems and deficiencies it was designed to overcome'. The phrase 'decision of an administrative character' suggests that the ADJR Act looks to the 'nature and character of the decision itself' rather than to 'the person or body making the decision'. The phrase is incapable of precise definition, but it includes 'the application of a general policy or rule to particular cases; the making of individual decisions'. Decisions which are required to be made, 'whether in the exercise of a discretion or not, [are] expressly included bys 3(1) of the Act'. DECISION

HAOUCHER v MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS (1990) 169 CLR 648; 93 ALR 51 High Court of Australia

Natural justice - Legitimate or reasonable expectation - Criminal deportation FACTS The respondent Minister for Immigration, Local Government and Ethnic Affairs made an order for the deportation of the appellant, pursuant to s 12 of the Migration Act 1958 (Cth) ('the Act'). On review, pursuant to s 66E of the Act, the Administrative Appeals Tribunal remitted the matter to the Minister for reconsideration in accordance with its recommendation that the deportation order be revoked. The Minister decided not to accept the recommendation of the Tribunal and notified the appellant that he was to be deported.

The Minister had previously, on 4 May 1983, tabled in Parliament a criminal deportation policy stating that recommendations of the Tribunal should be overturned by the Minister only in exceptional circumstances and only when strong evidence could be produced to justify his decision. The appellant sought review of the Minister's decision for denial of procedural fairness in that the Minister failed to give him a hearing before making the second decision to deport. The application was dismissed at first instance and an appeal dismissed by a majority of the Full Federal Court. ISSUE Was there a legitimate expectation of being accorded an opportunity to be heard?

The decision of the Promotions Appeal Board was of an administrative character. It was made after full inquiry to re-assess the provisional promotion. In doing so, the relative efficiency of competing officers was assessed by the Board applying 'the criteria laid down by the Broadcasting and Television Act (namely, superior efficiency or equal efficiency and seniority) to the particular case'. The decision made was in respect

Per Deane, Toohey and McHugh JJ (Dawson and Gaudron dissenting): The effect of the published, considered statement of government policy by the responsible Minister prescribing procedural steps to be followed in a case such as the present resulted in the appellant having a legitimate expectation such that procedural fairness required that he be accorded an opportunity of being heard on the questions of whether the recommendations of the Tribunal should be overturned by reason of 'exceptional circumstances' and whether 'strong evidence can be produced to justify' such an overturning of the Tribunal's recommendation.

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DECISION

JJ

LexisNexis Case Summaries

Administrative Law

(65] HAWKE'S BAY RAW MILK PRODUCERS COOPERATIVE CO LTD v NEW ZEALAND MILK BOARD [1961] NZLR 218 Court of Appeal

documents related was currently at an end was a factor to be taken into account but it was not conclusive. Knowledge of points of disagreement of management could be useful in future wage disputes and help identify weak points in what might otherwise appear to be a united front. Furthermore, disclosure of communications such as those under consideration could induce further industrial dispute. These factors point to the conclusion that adverse effects on the conduct of the Authority's industrial relations would or could reasonably be expected to flow from the disclosure of the documents. Those adverse effects could properly be characterised as 'substantial' in the sense that the 'impact upon the conduct of industrial relations would be expected to be serious or significant if the detail of exchanges . . . in respect of such a recently troublesome wages dispute were disclosed at this stage'. In balancing the relevant public interests pursuant to s 40(2) of the Freedom of Information Act, 'the considerations in favour of disclosure are outweighed by those against'. Therefore, the documents were exempt pursuant to s 40(1)(e). The documents did not lend themselves to deletions so that access could be granted in accordance withs 22.

Delegated legislation - Ultra vires - Delegation and sub-delegation FACTS By statute the Governor-General was empowered to fix prices for the sale and purchase of milk. The Governor-General made an order authorising the Minister to fix 'the town milk producer price'. The milk company commenced proceedings to determine if the price had been validly fixed. ISSUE

Was there a valid sub-delegation of power?

DECISION The power to fix milk prices was 'essentially a legislative power'. The Act contained no express or implied power of delegation. The functions delegated to the Minister were not authorised by the statute. The Governor-General could not validly sub-delegate 'the very matter entrusted to him for decision'. The delegation may have been valid if the Governor-General had determined 'a basis or formula' upon which the prices were to be determined. Although regulations can validly confer discretionary and administrative powers on official authorities, the legislative power itself cannot be delegated.

(66]

Re HEANEY AND PUBLIC SERVICE BOARD (1984) 6 ALO 310 Administrative Appeals Tribunal

Freedom of Information Act 1982 (Cth) ss 22, 40 - Substantial adverse effects on the conduct of Commonwealth industrial relations FACTS Heaney requested documents of the Public Service Board relating to a salary campaign by certain employers of the Snowy Mountains Hydro Electric Authority. The salary dispute had been settled at the time of the application except for the determination of the manner of review of future pay rates. The Board claimed the documents, which were communications between it and the Authority concerning the dispute, were exempt under s 40(1)(e) of the Freedom oflnformation Act 1982 (Cth).

(67]

HEATLEYvTASMANIAN RACING AND GAMING COMMISSION (1977) 137 CLR 487; 14ALR 519 High Court of Australia

Natural justice -

Duty to observe

FACTS Heatley was served with a 'warning-off notice' by the Commission. It required him not to enter any racecourse in Tasmania for an indefinite time. ISSUE Was the Commission required to give notice and the opportunity to be heard before issuing a warning-off notice?

DECISION Per AN Hall (Deputy President), GD Grant and AP Renouf (members): The fact that the industrial dispute to which the

DECISION When a person's rights are affected by a statutory authority, it is bound to hear him before exercising power over him. Heatley had the 'right' to enter racecourses because the statute made the betting by members of the public with bookmakers lawful, but only on racecourses, and to that extent Heatley was denied the opportunity which other members of the public had. There are measures such as ex pane injunctions to deal with emergency situations. However, when a warning-off notice effective for an indefinite period is issued, fairness requires that the Commission give notice to the person affected of its intention to issue the notice, and of the grounds, and must first afford that person the opportunity to be heard before taking action.

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ISSUE Would or could adverse effects on the conduct of the Authority's industrial relations reasonably be expected to flow from the disclosure of the documents?

Administrative Law

LexisNexis Case Summaries

[68) HICKS v RUDDOCK (2007) 156 FCR 574; 96 ALD 321 Federal Court of Australia

Habeas corpus - Availability FACTS David Hicks an Australia citizen was incarcerated by the United States Government at Guatanamo Bay, Cuba for over five years. He sought a writ of habeas corpus instructing the Australian Government to ask the United States Government to release him. The Commonwealth argued that the case was not justiciable in Australia and that it would be contrary to the act of state doctrine for an Australian court to judge the legality of acts of a foreign government. ISSUE Was a writ of habeas corpus an available remedy when Mr Hicks was not in the custody or control of the Commonwealth? DECISION Per Tamberlin J: As the question of control is one of fact and degree it is not appropriate to dismiss the proceeding at this point without permitting evidence to be adduced as to the nature and extent of the co-operation, arrangements, agreements and any other commitments between the Australian and United States in relation to the detention of Mr Hicks. Deprivation of liberty is prima facie unlawful, and until this is rebutted by evidence oflawful authority, the unlawfulness can be accepted. The detaining party bears the onus of showing the lawfulness of the detention. The matter should not be prevented from consideration at a hearing on the question of the availability of the writ of habeas corpus .

[69)

HOPE v BATHURST CITY COUNCIL (1980) 144 CLR 1; 29 ALA 577 High Court of Australia

Jurisdictional error - The fact/law distinction

ISSUE

Was there an error oflaw made by the lower courts?

DECISION Where all the material facts are fully found and the only question is whether they fit within the provisions properly construed of a statute, the question is one of law. It was error to construe the word 'business' in its meaning of a going concern. Rather the words of the statute 'carrying on a business' imply repetition of acts with a somewhat permanent character. The transactions were entered into on a 'continuous and repetitive basis for the purpose of making a profit' (per Mason J), since 1965. Customers were sought by advertising, appropriate financial records were kept, the land was kept improved, irrigated and fenced. To hold that Hope was not carrying on a business was an error in construction and, accordingly, of law.

[70)

Natural justice of bias

HOT HOLDINGS PTV LTD v CREASY (2002) 210 CLR 438 High Court of Australia Rule against bias -

Reasonable apprehension

FACTS After considering a Minute of Advice prepared by departmental officers, the Western Australian Minister for Mines accepted a recommendation made by a mining warden and granted an application for an,exploration licence to Hot Holdings Pty Ltd. Unbeknown to the Minister, one officer who had assisted in preparing the Minute owned shar~s in a company that had an option to purchase 80 per cent of the lic~nce if Hot Holdings obtained it. The adult son of another officer who had participated in the preparation of the Minute also owned shares in \ . the company that had the option. The full court of the Supreme Court of Western Australia held that the decision of the Minister should be set aside on the ground of reasonable apprehension of bias. Hot Holdings appealed. ISSUE Was there a reasonable apprehension of bias on the part of the Minister?

Hope owned land near Bathurst. The city council decided that his land was not rural land for rating purposes. Rural land was defined in the Local Government Act as land exceeding 8000 sq m and used mainly 'for carrying on one or more of the businesses or industries of grazing, dairying, pig farming, poultry farming ... vegetable growing, the growing of crops of any kind or forestry'. The land, which exceeded 8000 sq m, had been used continuously since 1965 for agistment. The primary judge and the Court of Appeal found that the use of the land 'was not significant enough' to bring it within the common or general meaning of 'business' or 'industry'.

DECISION Per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan]J (Kirby Jdissenting): Appeal allowed. The impugned decision was that of the Minister. But the decision maker, the Minister, had no pecuniary interest such as might give rise to a reasonable apprehension of bias on his part; he had no knowledge of the shareholdings of Mr Miasi or Mr Phillips' son; and there is no ground to apprehend that he '\night have been influenced by a desire to promote their interests. A fair-minded member of the public, informed of all the facts set out above, would know

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FACTS

LexisNexis Case Summaries

Administrative Law

that the Minister was personally impartial. Such a person would have no reason to apprehend that the Minister was seeking to do anything other than his statutory dury. The Minister was exercising a statutory power that affected rights or interests. He had a duty to act fairly, in the sense of according procedural fairness. One of the incidents of that duty was 'the absence of the actuality or the appearance of disqualifying bias'. The parts played by the two officers were peripheral only and did not give rise to a reasonable apprehension that the Minister's decision was affected by bias. No person with a personal financial interest in the outcome of the matter participated in a significant manner in the making of the impugned decision.

(5) Documents not fairly disclosing reasons for a decision may be unfair to a decision maker and may prejudice the integrity of the decisionmaking process'.

[71 ]

Re HOWARD ANDTHETREASURER OF THE COMMONWEALTH OF AUSTRALIA (1985) 7 ALO 626 Administrative Appeals Tribunal

The documents under review fell within several of these guides and were, therefore, exempt.

[72]

JARRATT V COMMISSIONER OF POLICE (NSW) (2005) 224 CLR 44

Natural justice -

Duty to accord -

public officials

FACTS The Police Service Act 1990 (NSW) provided that an officer could be removed from office at any time by the Governor on the recommendation of the Commissioner. The Commissioner recommended that Deputy Commissioner Jarratt be dismissed. He was given no opportunity to be heard.

'Deliberative

ISSUE Did s 51 specify that the power of dismissal could be exercised without an opportunity to be heard?

The applicant, the then Deputy Leader of the Opposition, sought access under the Freedom of Information Act 1982 (Cth) ('the Act') to documents provided by the Government to the ACTU relating to the 1984-85 Budget. The request was refused, the Treasurer certifying that they were documents to which s 36(1)(a) of the Act applied and that their disclosure would be contrary to the public interest. The applicant sought review of this refusal.

DECISION Per McHugh, Gummow and Hayne]]: The common law rule that police officers were employed 'at pleasure' was displaced by the Police Act 1990 (NSW). An officer must be accorded natural justice before being dismissed.

Freedom of Information Act 1982 (Cth) ss 36, 58c processes' FACTS

ISSUE Were the documents exempt documents under s 36(1)(a) as reflecting deliberative processes? DECISION The decision under review was affirmed. The documents fell within the terms of s 36(1)(a) of the Act. They reflected deliberative processes that occurred during the Budget formation process. They could not be severed as between factual material and deliberative process. As to the 'public interest' which the Tribunal was then required to examine under s SSC of the Act, Davies J identified several factors pertinent to the public interest element of s 36 which militate against disclosure:

[73]

JOHN FAIRFAX AND SONS LTD v POLICE TRIBUNAL OF NEW SOUTH WALES (1986) 5 NSWLR 465 Supreme Court of New South Wales (Court of Appeal)

Certiorari -

Standing

FACTS The Police Tribunal issued an order for non-publication of evidence. John Fairfax and Sons, a newspaper proprietor, sought relief in the nature of certiorari. ISSUE

Did Fairfax as a newspaper proprietor have standing to seek

certiorari?

( 1) 'The higher the office of the persons [communicating] and the more sensitive the issues involved ... (2) [C]ommunications made in the course of the development ... of policy ... (3) Disclosure which will inhibit frankness and candour in future ... (4) Disclosure which will lead to confusion and unnecessary debate ...

DECISION Per Mahoney JA: The prerogative writs are the means by which superior courts supervise the operation of the tribunals inferior to them in the judicial hierarchy. The circumstances include excess of jurisdiction, procedural irregularity such as denial of natural justice and errors of law on the face of the record. The standing required of an applicant is not the same in each of these circumstances. Where there is

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Administrative Law

lack of jurisdiction, a stranger may seek prerogative relief to ensure that the tribunal does not exceed its jurisdiction. In the present case the plaintiff is a stranger to the proceedings before the tribunal. However, as this is a case of excess of jurisdiction, the plaintiff has standing to make the application.

men's and boys' clothes as ultra vires and void for uncertainty because it did not state an amount in money.

[74)

Re KEAY AND CHIEF OF NAVAL STAFF, DEPARTMENT OF DEFENCE (1983) 5 ALN N350 Administrative Appeals Tribunal

Freedom of Information Act 1982 (Cth) ss 36, 40, 45 -Access to confidential personnel records FACTS Keay was a former member of the Royal Australian Navy. He had been granted access to repons relating to him prepared by his superior officials, although he had been denied numerical assessments of his performance. These were measures used by the navy for promotion purposes. The navy claimed the documents were exempt from disclosure under the Freedom of Information Act 1982 (Cth): under s 36 (that they were internal working documents); under s 40(c) (disclosure wou ld have an adverse effect on staff management interests); and under s 45 (grant of access would constitute a breach of confidence).

Are the documents exempt because release of the documents would constitute a breach of confidence under s 45? ISSUE

DECISION Per Deputy President Todd and Sir Ernest Coates (Mr Tickle dissenting): The documents were exempt documents withins 45 of the Act and therefore should not be disclosed. The forms were made out in confidence and headed 'Staff in Confidence', and other references to the forms confirmed and emph asised their confidential nature. The fact that Keay h ad resigned from the service was of 'no consequence' as that did not 'impinge upon the confidential character that was impressed upon the creation of the document in the first place'. In view of the conclusion in relation to s 45, no decision should be made as to the applicability of s 36. As s 40 was not re lied upon in argument before the Tribunal, it was inappropriate to decide its applicability.

[75]

KING GEE CLOTHING CO PTY LTD v COMMONWEALTH (1945) 71 CLR 184; [1945] ALR 397 High Court of Australia

ISSU E Was the order void for uncertainty because there was no clear formula producing a uniform result? DECISION The Commissioner had very wide powers to fix prices which may be of varying kinds and based on different grounds. In fixing prices the amount need not be expressed in money terms. However, the standards and criteria prescribed must give definite and objective calculations, not estimates or subjective valuations. The Commissioner's order was invalid because there was no clear objective formula capable of producing a uniform result which every person, given the facts and figures and calculating correctly, would arrive at.

[76)

KIOA v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1985) 159 CLR 550; 9 ALN N28; 62 ALR 321 High Court of Australia

Natural justice -

Duty to observe -

Deportation

FACTS Mr Kioa, a citizen of Tonga, entered Australia in 1981 to attend a three-month training course. His wife joined him shortly aftet. When his temporary entry permit expired he applied for an extension of three months. In 1982 their daughter, Elvira, was born in Australia and was, therefore, an Australian citizen. In 1983 Mr Kioa was arrested as a prohibited immigrant. His request to remain in Australia with his family was refused . In October 1983 deportation orders were made against Mt and Mrs Kioa. A departmental submission recommending deportation had been sent to the Minister's delegate. It contained several statements which the Kioas alleged were prejudicial to them. They requested, under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), a statement of reasons for the decision to deport them and they then sought a review of the decisions not to issue further entry permits and to deport them. They were unsuccessful at first instance and on appeal to the Full Court of the Federal Court. The appellants appealed to the High Court. ISSUE Did the rules of natural justice apply to an exercise of the power to deport?

FACTS The Prices Commissioner had the power to fix maximum prices for clothing. The clothing company attacked such an order relating to

DECISION Per Mason, Wilson, Brennan and Deane ]] (Gibbs CJ dissenting): Appeal allowed. The rules of natural justice do apply to an exercise of power under the Migration Act 1958 (Cth) to ordet the deportation of a prohibited immigrant. Earlier cases to the contrary, for

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Delegated legislation -

Ultra vires -

Uncertainty

LexisNexis Case Summaries

Administrative Law

example, Salemi v MacKellar (No 2) (1977) 137 CLR 396; 14 ALR 1, have been superseded by legislative amendment. The Kioas were denied procedural fairness by the failure to provide them with the opportunity to respond to material in the departmental submission which was prejudicial to them, particularly the allegation that Mr Kioa had been actively involved with persons who were seeking to circumvent Australia's immigration laws. The likely effects of the deportation of the Kioas on their daughter, Elvira, who was an Australian, was a relevant consideration to be taken into account by the delegate of the Minister, but these had been properly considered. Although general humanitarian principles needed to be considered by the delegate, there was no legal obligation to take into account various provisions of the International Covenant on Civil and Political Rights or of the Declaration of the Rights of the Child.

misapprehended its functions and powers under s 15 of the OH&S Act. This led to the court make orders convicting and sentencing Mr Kirk and the company where it had no power to do so, because no particular act or omission was identified at any point in the proceedings as constituting offences of which they were convicted and sentenced. In addition the court misapprehended a limit on its powers by permitting the prosecution to call Mr Kirk at the trial. The court was required to apply the rules of evidence. Calling the accused as a witness was not permitted. Concerning the privative clause, legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power.

KIRK v INDUSTRIAL RELATIONS COMMISSION (NSW) (2010) 239 CLR 531; 113 ALO 1; 262 ALR 569 High Court of Australia

[78] KRSTIC v AUSTRALIAN TELECOMMUNICATIONS COMMISSION (1988) 20 FCR 486 Federal Court of Australia

[77]

Jurisdictional error -

Effect of privative clause

FACTS Mr Kirk was the director of a company which employed a manager of a farm in New South Wales. The manager was killed delivering steel on the farm while in a company vehicle. Mr Kirk and the company were convicted by the New South Wales Industrial Court of offences under the Occupational Health and Safety Act 1983 (NSW) which required employers to ensure the health, safety and welfare of employees. The charges did not identify the acts or omissions which constituted the offences alleged. The Industrial Court allowed Mr Kirk to be called as a prosecution witness at trial. Mr Kirk and the company unsuccessfully challenged the convictions in a number of forums. The Court of Appeal held that the lower court decisions did not disclose jurisdictional error and dismissed the application. Section 179 of the Industrial Relations Act 1996 (NSW) provided that decisions were final prohibiting an appeal against, a review or the quashing or calling into question of a decision of the Industrial Court.

Natural justice - Whether legal representation is required FACTS At the end of her six months' probationary period as a clerical assistant in the Australian Telecommunications Commission, Krstic received a notice of termination of her appointment. A Review Tribunal upheld the decision. The Tribunal's decision was then confirmed by another officer of the Commission who had made the earlier recommendation that the appointment be terminated and who had given evidence before the Tribunal. Regulation 34(2) provided, inter alia, that 'the Tribunal may inform itself in such manner as it thinks fit' and 'that the procedure to be followed is within the discretion of the Tribunal'. The applicant sought review on the ground of denial of procedural fairness in the course of the proceedings of the Tribunal. ISSUE

Did the Commission's procedures result in denial of procedural

fairness?

ISSUE Did the privative clause prevent the High Court reviewing the decisions of the Industrial Court on the grounds of jurisdictional error?

DECISION Per Woodward J, dismissing the application: The applicant was entitled to procedural fairness. However, it was open to the Review Tribunal to decide that it did not want to have lawyers appearing before it. There being no absolute right to representation even where livelihood is at stake, the question whether or not an officer should be appointed permanently after a period of probation is not, of its nature, one which requires lawyers to assist in its decision.

Per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ: An order in the nature of certiorari should have been made to the Industrial Court. 'Decision' did not include a decision made outside the limits of the powers of the Industrial Court. The Industrial Court

In relation to the question of whether a person in the applicant's position should be allowed assistance or representation by a person other than a lawyer, in the present case the applicant was quite able to stand up for herself and put to the Tribunal what was necessary by way of

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DECISION

LexisNexis Case Summaries

Administrative Law

explanations or comments on the material before it. Although it would have been much better if the applicant and her representative had been able to put their arguments about representation by a lawyer to the three Tribunal members directly rather than have the arguments relayed by the chairman, the course taken did not actually result in a denial of procedural fairness. It was also within the powers of the Tribunal to interview other Telecom officers without the applicant being present provided that the applicant had a chance to refute any allegation adverse to the applicant made by them. While it would have been preferable for the officer who confirmed the Tribunal's decision to have referred the matter to a senior officer, there was no arguable reason for him to reach any different conclusion in making the formal decision and there was no denial of procedural fairness.

is justly and fairly, does not convert the nature of an administrative proceeding into a judicial one. The refusal of the magistrate to grant Moss a stay of committal proceedings was 'not a proper subject for review'. There is 'a considerable body of judicial opinion that exceptional circumstances will be required before a superior court will consider interfering in committal proceedings . . . failure to permit criminal proceedings to follow their ordinary course will, in the absence of special circumstances constitute an error of principle'.

LAMB v MOSS (1983) 76 FLR 296; 49 ALR 533 Federal Court of Australia

[79)

Administrative Decisions (Judicial Review) Act 1977 (Cth) Court's discretion - Committal proceedings FACTS Moss, a medical practitioner, was charged with conspiracy to defraud the Commonwealth under the Crimes Act 1914 (Cth). Committal proceedings were held in New South Wales by a magistrate appointed under the Justices Act 1902 (NSW). The magistrate determined that there was a prima facie case for another offence and proposed that the proceedings continue under the Justices Act 1902 (NSW). Moss sought a stay of proceedings. A Federal Court judge dismissed an objection to competency. Moss appealed seeking review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act') of the 'decisions or conduct' of the magistrate. ISSUE Were the decisions of the magistrate reviewable under the ADJR Act?

[80)

LAWS

v AUSTRALIAN BROADCASTING TRIBUNAL (1990) 170 CLR 70; 93 ALR 435 High Court of Australia

Natural justice of bias

Rule against bias -

Reasonable apprehension

FACTS The Australian Broadcasting Tribunal decided (after discussion with officers of radio station 2GB but not with Laws, a talk-back radio host, who was not informed of the discussions) that Laws had contravened Radio Program Standard 3 (RPS 3), laid down pursuant to s 16l(l)(d) of the Broadcasting Act 1942 (Cth) ('the Act'). Radio Program Standard 3 (RPS 3) prohibited transmission of programs which incite racial hatred. The Tribunal adopted the decision that RPS 3 was contravened, and decided that an inquiry under s 17C of the Act should be held to consider whether it should exercise its substantive powers under ss 85, 101 or 119 of the Act. After the inquiry had commenced, an officer of the Tribunal made statements on a radio program about the inquiry. Laws then brought defamation proceedings against that officer and the ABT.

At first instance Morling J held that in deciding there was a breach of RPS 3, the Tribunal had merely undertaken a preliminary investigation under s 17C( 1) of the Act and was not in breach of natural justice in failing to give Laws a hearing. However, Morling J ordered that the Tribunal not proceed with the inquiry while constituted by members who had constituted the Tribunal in the first decision because the behaviour of the members of the Tribunal could give rise to a reasonable suspicion of bias. On appeal the Full Court held that the failure of the Tribunal to give the applicant an opportunity to be heard before the decision that RPS 3 had been contravened constituted a breach of the rules of natural justice. However, Laws was not entitled to a perpetual injunction restraining the Tribunal from proceeding on the g,round of bias. Laws appealed.

DECISION Per Bowen CJ, Sheppard and Fitzgerald JJ, dismissing the appeal: The decisions were reviewable under the ADJR Act, however, the court has discretion under the Act to refuse relief. The words 'in its discretion' ins 16 of the Act are 'emphatic of the discretionary nature of the court's power'. The magistrate's opinion that a prima facie case had been established and his determination to proceed with the committal proceedings constituted one or more decisions which were reviewable. They were made under an enactment: the Judiciary Act 1903 (Cth) which extended the operation of the State Act in respect of committal proceedings for a federal offence; and they were of an 'administrative character'. The fact that the magistrate was bound to act judicially, that

ISSUE Should the Tribunal be restrained because of a reasonable apprehension of bias from holding an inquiry?

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DECISION Per Mason CJ and Brennan J with whom Gaudron and McHugh ]] agreed: The fact that the Tribunal had filed a defence in the defamation proceedings did not mean that there was a basis for inferring bias on the part of the Tribunal. So long as the composition of the Tribunal has been changed 'there is no foundation for the claim that the Tribunal should be restrained from holding an inquiry'.

that they fell within another category. McHatten challenged the decision on the grounds that his interests were affected in that, if he were wrong, his professional reputation might suffer and he might be held liable for negligent advice.

[81]

LOCAL GOVERNMENT BOARD v AR LIDGE [1915] AC 120 House of Lords

Natural justice- Governmental decision-making- Procedures Fair hearing FACTS Arlidge appealed to the Local Government Board against a closing order on a house which appeared to be unfit for human habitation. An inquiry was held by an inspector; Arlidge and his solicitor attended and presented evidence. The Board told Arlidge it would consider any other written submissions he cared to make; he made none. His appeal was dismissed after the Board considered the inspector's report and the notes of the evidence. ISSUE Can a final decision maker rely on the results of procedurally fair inquiries at an earlier stage of a decision making process. DECISION An administrative body, unlike a court of law, is free, in the absence of any declaration from Parliament to the contrary, to follow its own procedures. The judiciary should not impose its methods on administrative officers. This is necessary if government departments are to do their work efficiently. In the case of the Local Government Board, the Minister is at the head of the Board and is directly responsible to Parliament for his or her own work and that of the whole of the department. Because of the great volume of work, a Minister 'is expected to obtain his materials vicariously through his officials'. Furthermore, the Board was not bound to release the report of the health inspector, nor was the Board bound to hear Arlidge orally, provided it gave him the opportunities he actually had.

[82]

Re McHATTEN AND COLLECTOR OF CUSTOMS (NSW) (1977) 18 ALA 154; 1 ALD 67 Administrative Appeals Tribunal

ISSUE Did McHatten, a customs agent, have standing to challenge a customs duty imposed on his client? DECISION Per Brennan J: McHatten's interests were not affected. The pecuniary interest arising out of the business relationship which might expose McHatten to tortious liability is hypothetical only. There were no interests other than Termolst's pecuniary interests that were 'immediately and directly affected' by the collector's decision. There was no evidence that the making of the demand for the payment of customs duty affected McHatten's commercial reputation. He was not entitled to commence proceedings on his own behalf.

[83]

McKINNON AND DEPARTMENT OF IMMIGRATION AND CITIZENSHIP [2012] AICmr 34 Australian Information Commissioner

Freedom of Information Act 1982 (Cth) 47 (commercially valuable information)

Exemptions -

Section

FACTS McKinnon made an FOI request to the Department requesting documents over a five-year period including correspondence from Serco Australia Ltd ('Serco') about advice on overcrowding in immigration detention centres and the Department's views on Serco's warnings plus any responses from the Department to Serco to stop or change those warnings about overcrowding. Access was granted to many documents either fully or partially with material being deleted as being irrelevant (s 22(1)(a)(ii)) or disclosing commercially valuable information relating to Serco (s 4 7), namely costs and responsibilities for insurance and negotiations with the Department concerning dividing those costs. ISSUE Were the documents exempt on the basis of commercially valuable information?

FACTS McHatten, a customs agent, advised his client, Termolst Pty Ltd, that certain goods that they were importing were duty free. The collector demanded a 7\i2 per cent duty for the goods after determining

DECISION Per Australian Information Commissioner, Professor J McMillan: The documents are not exempt and full access should be granted. The information no longer had commercial value as it was old and negotiations with the Department on this issue were over: Neither were the documents exempt under s 4 7G. The information in the letters was general in nature and likely already available to Serco's insurer. The Department and Serco had the onus of establishing that an exemption is

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Administrative Appeals Tribunal Act 1975 (Cth) -

Standing

LexisNexis Case Summaries

Administrative Law

justified (s SSD). There was insufficient information to conclude Serco's business or commercial affairs would be harmed by disclosure.

petitioned the Governor who was Visitor of the University for reinstatement and on the ground that the decision was invalid for denial of natural justice. Prior to the Council meeting at which the office was declared vacant a report of a committee of investigation together with a letter from the Vice Chancellor was circulated to members of Council. In her letter the Vice Chancellor alleged that Ong's performance had in some respects been unsatisfactory. Ong was not given a copy of the letter nor was his request met for access to the material which had been available to the committee. The Council refused a request for an adjournment to allow the petitioner to have access to this material and make submissions on it. The Vice-Chancellor was not present at the Council meeting.

[84]

McNAB v AUBURN SOCCER SPORTS CLUB LTD [1975] 1 NSWLR 54 Supreme Court of New South Wales

Natural justice -

Right to legal representation

FACTS McNab, who was a member of the club, sought to have his solicitor represent him before the board of directors which was to consider his expulsion for misconduct. As the board refused his request for legal representation, McNab refused to appear before it. The board suspended him until he was prepared to appear. ISSUE Did the rules of natural justice require the board to allow legal representation?

ISSUE Were their breaches of natural justice regarding both the hearing rule and actual bias?

FACTS The Council of Macquarie University declared vacant the office of Head of the School of Law. Dr Ong, who held that office,

DECISION Per Hope JA: The council was required to afford the petitioner procedural fairness since the office of Head of School gave him an additional income and carried a recognition of his standing in the School of Law and within the academic and wider world, such that removal during his term of office for reasons of fault and deficiency would seriously affect his standing and reputation. The Council was required to give the petitioner a hearing and access at least to the material which was placed before the Council for the purpose of its deliberations and decision. The committee was at least bound to tell the petitioner the general nature of the allegations which had been made against him and which it was investigating and give him access to the material placed before it in relation to those allegations. It was not excused from its obligation to give to the petitioner notice of the nature of the new set of allegations made against him which went to his competence because the petitioner had not sought to be heard on an earlier and different set of allegations. In the circumstances of the case the committee had denied the petitioner natural justice, a breach of 'greater significance' than it would otherwise have had since the Council could rely upon the committee's findings. Since the ViceChancellor 'was in substance ... the person who made the complaint referred to in the original terms of reference ... and who gave the committee the particulars of the matter which it was to investigate', and by her letter had participated in the Council's consideration of the matter, 'any fair-minded person would conclude that the letter might well have some effect and I infer that it was intended to have some effect'. The Vice-Chancellor held actual bias against Dr Ong in that she had already concluded that the complaint against Dr Ong had been made out and what action should be taken. It was a denial of natural justice not to have given Dr Ong an opportunity to answer the adverse material contained in the letter. The report of the committee and the decision of the Council were void, and there being no discretionary

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DECISION Per Needham J: Where the rules of a social club permit a member who is charged with breaching the rules of the club 'to attend a meeting at which his expulsion is to be considered and to answer the charges against him, the rules of natural justice apply to the proceedings of that meeting'. Although the rules are of general import, they may vary in detail in different circumstances. In the present case, what opportunity should be given the plaintiff to state his case? There is no absolute right in all circumstances to legal representation. There could be a case in which the rules of natural justice would not be satisfied without the granting by the tribunal of a right of legal representation. It is a matter for the tribunal and, if it refused to allow representation in such a case, the court could declare that the decision come to was void. The court should not, 'except in the plainest circumstances, make a declaration that the tribunal would be in breach of the principles of natural justice unless it permitted legal representation'. The plaintiff will have no difficulty stating his case if the board observes the rules of natural justice. 'If the board fails to do its duty, the plaintiff will have his remedy in this court.' Accordingly, a declaration that the plaintiff is entitled to legal representation at any meeting of the board at which his expu lsion was to be considered, was not granted.

[85]

Re MACQUARIE UNIVERSITY; Ex parte ONG (1989) 17 NSWLR 113 Supreme Court of New South Wales

Natural justice -

Notice requirement -

Actual bias

LexisNexis Case Summaries

Administrative Law

reason for refusing relief, declarations should be made placing the petitioner where he was before he was invalidly removed .

under United States' anti-trust laws and settled in 1981 on payment of a sum of money by one of the parties joined. Four hundred documents were released and claims of exemption were made in respect of 94 documents under various sections of the Freedom of Information Act 1982 (Cth) ('FOI Act').

[86] MACRAE v ATTORNEY-GENERAL (NSW) (1985) 9 NSWLR 268 Supreme Court of New South Wales (Administrative Law Division) Natural justice procedural fairness

Legitimate or reasonable expectation of

FACTS The magistracy of the State of New South Wales was restructured. Ninety-five magistrates were reappointed; five, who had held office for several years, were not. Adverse comments were privately made by the Chief Magistrate to the Attorney-General about the competence and performance of these five. Notice of the allegations was brought to the attention of the magistrates only at the time of their interviews for appointment. ISSUE

Was there a denial of a legitimate expectation of procedural

fairness? Per Mahoney JA: The decision of the Attorney-General not to recommend the five magistrates for reappointment was void because the five were denied their legitimate expectation to fair procedure in the appointment process. They had been invited to reapply for appointment and convention was such that they could legitimately expect reappointment. The personal, professional and economic effects flowing from non-appointment under the particular circumstances would be 'devastating'. Adverse material against them should not have been considered without affording them notice of the matter and a full and fair opportunity of being heard on it. DECISION

Note: Special leave to appeal to the High Court was refused. However, prior to this refusal the Attorney-General announced a new policy. See Attorney-General (NSW) v Quin [14].

[87]

MAHER AND ATTORNEY-GENERAL'S DEPARTMENT (No 2) (1986) 13 ALO 98; 4 AAR 266 Administrative Appeals Tribunal (Full Tribunal)

ISSUE

Were the documents exempt from disclosure under the FOI Act?

Per Layton (Deputy President) Coates and Trinick (Members): The claims of exemption were affirmed. As to s 43(1)(c)(i) and (ii) (business affairs), the balancing of public and private interest is not required. Whether public interest concerns are relevant depends on the facts of each case and in this case those advanced were not relevant. Disclosure of the documents could reasonably be expected to adversely affect the companies involved. This effect would be unreasonable. The ingredients of an action for breach of confidence (s 45) were satisfied in that the information in question was confidential and communicated to the Commonwealth in confidence, and disclosure by the Commonwealth would be an unauthorised use. The public interest is not a relevant factor to the application of s 45. DECISION

As for the application of s 40( l)(d) (agency operations), the disclosure 'would have a serious and significant adverse effect on the proper and efficient conduct of the operations of the agency'. As 'the future supply of information is essential for the proper and efficient conduct of the agencies concerned', disclosure of the information would very seriously impede their operations. Pursuant to s 40(2), disclosure would not be in the public interest. Therefore, the documents claimed to be exempt under s 40(1) (cl) were so exempt. A claim of exemption under s 42 (legal professional privilege) was also affirmed. [88]

MALONEY v NSW NATIONAL COURSING ASSOCIATION LTD [1978] 1 NSWLR 161 Supreme Court of New South Wales (Court of Appeal) Natural justice - Rule against bias bias - Domestic tribunal

Reasonable suspicion of

FACTS Maher requested 'all documents relating to the Government's approval of the settlement of the Westinghouse Electric Corporation anti-trust proceedings'. These proceedings were commenced in 1976

FACTS The Association was a company limited by guarantee, formed to carry on the business of greyhound racing. Under its articles of association, its affairs were conducted by a committee of 13 elected members. The committee could expel a member from the association if he were found 'guilty of any conduct which, in the opinion of the Committee, is unbecoming a member ... '. Allegations of unbecoming conduct were made against Maloney by Bell, another member. The

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Freedom of Information Act 1982 (Cth) 40(1 )(d), 42, 43, 45

Exemptions -

Sections

LexisNexis Case Summaries

Administrative Law

committee investigated and resolved to expel Maloney who then sought a declaration that the resolutions were null and void on the ground that one of the committee members, Phillips, was biased. The bias was said to exist because of animosity arising out of bitter contests between Phillips and Maloney in 1977 and 1976 for the vice-presidency of the Association.

processions'. Barry, who was a ratepayer, applied to have the by-law quashed. This was ordered by the Full Court of the Supreme Court of Victoria. The city appealed to the High Court.

ISSUE Does a reasonable suspicion of bias operate to disqualify a member of a domestic tribunal? DECIS ION Per Glass JA, with whom Hope and Hutley JJA agreed: The proceedings were not vitiated by the presence of Mr Phillips upon the committee which dealt with Mr Maloney. The requirements of natural justice are different for domestic tribunals than for courts. In the latter, 'public policy requires that there should be no doubt about the purity of the administration [of justice]. The rules being enforced have no consensual basis. The parties have not chosen the tribunal'. With domestic tribunals, 'members have agreed to abide by a set of rules and the authority of a committee to enforce them ... The committee members cannot, in the nature of things, divest themselves of the manifold predilections and prejudices resulting from past associations with members'. Generally speaking, 'suspicion of bias' does not operate to disqualify a member of a domestic tribunal. If it did, the enforcement of consensual rules would be unworkable. 'A domestic tribunal obliged by the general law to observe the minimum requirement of justice must give notice of the charge' and an opportunity to defend, as well as disqualify, those in the position of Mr Bell. However, 'suspected bias on the part of a member of a domestic tribunal such as the committee of the Association does not disqualify him' or her.

ISSU E Was the by-law ultra vires the Local Government Act? DECISION By majority: Appeal dismissed. The by-law was in excess of the power conferred by the Local Government Act. The legislature clearly had not given the Council the power to prohibit processions. Rather it allowed it to make rules to ensure that the public would have 'the use of the streets with the minimum of inconvenience' (per Higgins J). The power 'to regulate' cannot be used to prohibit processions; it implies the continued existence of the thing to be regulated. [90]

Ultra vires considerations

MINISTER FOR ABORIGINAL AFFAIRS v PEKO-WALLSEND LTD (1986) 162 CLR 24; 66 ALR 299 High Court of Australia Abuse of power -

Irrelevant and relevant

FACTS The Council of the City of Melbourne passed a by-law which provided: 'No processions of persons or of vehicles ... shall, except for military or funeral purposes, parade or pass through any street unless with the previous consent in writing of the Council ... '. The by-law was made pursuant to the Local Government Act 1915 (Vic) which allowed local governments to make by-laws for, inter alia, 'regulating traffic and

FACTS Pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ('the Aboriginal Land Act') the Aboriginal Land Commissioner, after conducting an inquiry into traditional land claims made by the Northern Land Council in the Alligator Rivers region of the Northern Territory, recommended to the Minister that the claim be granted. The land included an extensive uranium deposit ('Ranger 68') over which Peko-Wallsend had applied for mineral leases. The Commissioner, as required by the Act, had investigated the detriment that might result to mining interests if his recommendation were to be implemented, although the Commissioner was not aware of the precise location of 'Ranger 68'. The companies made representations to successive Ministers that the Commissioner's report understated the detriment to them. Following a change of government the new Minister recommended, on the basis of the Commissioner's original report and a departmental brief, that the land grant be made. The departmental brief did not refer to the representations made to the two previous Ministers. The companies challenged the Minister's decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'). The application to the Federal Court was dism issed. The Full Court held that the Minister had been obliged to consider the representations and that failure to do so constituted an improper exercise of power. The Minister appealed to the High Court.

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[89]

MELBOU RNE CORP v BARRY (1922) 31 CLR 174 High Court of Australia

Delegated legislation distinction

Ultra vires -

The prohibition/regulation

Administrative Law

LexisNexis Case Summaries ISSUE By not considering the representations made to the previous two Ministers, had the Minister failed to take into account relevant considerations? DECISION Per Mason J with whom Gibbs CJ and Dawson J agreed; Brennan and Deane JJ reached the same conclusion: Appeal dismissed. The failure of a decision maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party to seek judicial review. The ground now appears in s 5(2)(b) of the ADJR Act which is substantially declaratory of the common law and includes: (a) the ground of failure to take into account a relevant consideration can only be made out if a decision maker is bound to take it into account; (b) what factors a decision maker is bound to consider is determined by construction of the statute confen-ing the discretion; (c) some factors might be so insignificant that failure to consider them oould not materially affect the decision; (d) it is not the function of the court to substitute its own decision for that of an administrator. These principles apply to an administrative decision made by a Minister of the Crown. Although the Aboriginal Land Act does not expressly state that the Minister is bound to take into account the Commissioner's comment in exercising his power, this is implied after consideration of the subject matter, scope and purpose of the Act. The Aboriginal Land Act recognises that the granting of land to a land trust may adversely affect the interests of many people. The legislation was concerned that the Minister not overlook crucial considerations when making his decision. Accordingly, it provided the means whereby such factors would be analysed and drawn to his attention for the purpose of having them taken into account. The second question of whether the Minister was also bound to take into account updated submissions on detriment was answered in the affirmative: 'It is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand'. [91]

MINISTER FOR ARTS, HERITAGE AND ENVIRONMENT v PEKO-WALLSEND LTD (1987) 75 ALR 218 Federal Court of Australia (Full Court)

Natural justice -

Cabinet decisions

It claimed that it had been denied natural justice by the Cabinet before ,,. making the nomination. This claim was upheld in the first instance by ~ a single judge of the Federal Court. The Minister appealed to the Full Federal Court. ISSUE Are executive decisions immune from judicial review? DECISION Per Bowen CJ, Sheppard and Wilcox JJ: Appeal allowed. The company had been given an adequate opportunity of stating its case to the relevant ministers and officials over a period of years in written submissions. It had not been denied natural justice. Executive decisions are not immune from judicial review because they are made as an exercise of prerogative power rather than statutory power, providing they are justiciable. The present decision was nonjusticiable. However, it is generally not appropriate for the court to review Cabinet decisions.

Note: Leave to appeal to the High Court refused.

[92]

Ultra vires -

MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZMDS (2010) 240 CLR 611; 266 ALR 367 High Court of Australia

Jurisdictional error -

Illogicality

FACTS SZMDS lived from 2004-07 in the United Arab Emirates in a homosexual relationship. He visited his family in Pakistan in 2007 for three weeks before travelling to Australia on a visitor's visa. He applied for a protection visa in Australia on the ground that homosexuals were discriminated against in Pakistan. The Refugee Review Tribunal accepted that homosexuals in Pakistan comprised a group within the Refugees Convention, but did not accept that SZMDS was a member of the group. The Tribunal noted his return to Pakistan in 2007 and also his failure to seek asylum when he was earlier in the United Kingdom. The applicant appealed the Tribunal's decision to deny him a visa on the grounds that the decision was not supported on logical grounds. ISSUE Did the Tribunal make a jurisdictional error concerning its decision that it was not satisfied that the applicant met the criteria in the Migration Act for the grant of a protection visa and was the decision illogical?

FACTS The company which held mining leases in Stage 2 of the Kakadu National Park sought to restrain further steps being taken to nominate a section of Kakadu National Park to World Heritage listing.

DECISION Crennan and Bell JJ: The Tribunal had not made a jurisdictional error. This was an issue of jurisdictional fact upon which different minds might reach different conclusions. The test for

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LexisNexis Case Summaries

Administrative Law

illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding made. A logical or rational decision maker could have come to the same conclusion as the Tribunal, that a person with a genuine fear of persecution as a homosexual would not go back to Pakistan and would seek asylum at the first available opportunity. A decision might be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion. There is no decision that could be said to be 'clearly unjust', 'arbitrary', 'capricious', 'not bona fide' or 'Wednesbury unreasonable'. While these analogous categories were not relied on, they serve to confirm the want of jurisdictional error by reference to the closely related complaints of illogicality and irrationality.

Tribunal or the High Court might consider was of 'insufficient probative evidence'. If the High Court were to affirm the dismissal by the Federal Court of the Minister's appeal, the Minister would remain free to decide that the deportation should continue. The High Court should not be placed in the position where the substance of a decision which it affirmed could be 'overriden by ministerial fiat'.

If on the other hand the court allowed the Minister's appeal, another difficulty might arise and that has to do with a constitutional issue which counsel intimated would arise. Under these circumstances, then, it would be undesirable for the court to hear an appeal which might result in the matter being remitted to the Tribunal which might affirm a ministerial decision which 'the court might later be required to quash on constitutional grounds'.

[93]

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS v POCHI (1981) 149 CLR 139; 36 ALA 561; 4 ALD 163; 55 ALJR 706 High Court of Australia Administrative Appeals Tribunal Act 1975 (Cth) Tribunal - Deportation

Powers of the

The Minister ordered the deportation of Pochi after he was convicted of supplying Indian hemp. He had lived in Australia for 20 years although he remained a non-citizen. The Administrative Appeals Tribunal ('AAT') recommended that the deportation order be revoked. (See Re Pochi and Minister for Immigration and Ethnic Affairs [112].) The Federal Court dismissed the Minister's appeal. The High Court initially granted special leave to appeal. FACTS

ISSUE Given the AAT's limited powers in migration cases should the High Court hear an appeal?

[94]

./

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS v TEOH (1995) 183 CLR 273; 128 ALR 353 High Court of Australia

Natural justice -

Legitimate expectations -

Deportation

FACTS Teoh applied for permanent residence and was refused on the grounds of serious criminal conviction. He was married with seven small children. Australia had ratified the United Nations Convention on the Rights of the Child, Art 3 of which provided: 'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration'. In rejecting Teoh's application for reconsideration the Immigration Review Panel took account of the fact that the wife and children would face a 'very bleak and difficult future'. This was outweighed by government policy not to grant residence status to those convicted of serious crimes. Teoh was ordered to be deported. The Federal Court dismissed his application for review. The Full Federal Court allowed the appeal after allowing amendments to Teoh's application that included reference to the failure by the Minister's delegate to take into account the hardship to Teoh's wife and children were he refused resident status. The Minister appealed.

DECISION The grant of special leave to appeal was rescinded after the court heard arguments which had not been raised on the application for special leave. In making a review of decisions under the Migration Act 1958 (Cth), the AAT has 'less extensive powers than are granted in the case of other administrative decisions'. It cannot vary or set aside the decision under review, or make a decision in substitution for the decision being reviewed, or 'give directions in accordance with which the Minister must reconsider the matter'. Its powers in migration cases are to 'affirm the decision or remit the matter for reconsideration in accordance with any recommendations of the Tribunal'. The Minister is bound only to the extent that he may be required to reconsider the decision. He is not bound to change it or to disregard material which the

DECISION Per Mason CJ and Deane J: Appeal dismissed. Although the Convention was not part of Australian municipal law, ratification of an international convention 'is not to be dismissed as a merely platitudinous or ineffectual act'; it evidences 'internationally accepted

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ISSUE

Was there a legitimate expectation of procedural fairness?

LexisNexis Case Summaries

Administrative Law

standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children'. It is a 'positive statement' that the Executive Government and its agencies will act in accordance with the Convention and this is an 'adequate foundation for a legitimate expectation ... that administrative decision makers will act in conformity ... and treat the best interests of the children as a primary consideration'. As the children's best interests were not treated as the primary consideration (although they were taken into account) procedural fairness required that the persons affected (here the parents and children) be given notice and an adequate opportunity of presenting a case.

ISSUE Was the decision of the Refugee Review Tribunal so unreasonable that no reasonable tribunal could come to such a decision?

[95]

DECISION By majority: Appeal allowed. The proposition that the Tribunal's decision manifested 'Wednesbury unreasonableness' was not sustained. The Tribunal was criticised for giving inadequate weight to certain considerations and undue weight to others. Its decision said to be based on a process of flawed reasoning was not a case of Wednesbury unreasonableness and not a proper basis for the grant of constitutional relief under s 75{v) of the Constitution. Even if the unreasonableness claim had been sustained, it did not provide a ground upon which the Federal Court could set aside the tribunal's decision: Abebe v The Commonwealth [2] .

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v ESHETU (1999) 197 CLA 611; 162 ALA 571; 73 ALJA 746 High Court of Australia

Prohibition and mandamus unreasonableness

[96]

Section 75(v) of the Constitution -

FACTS Mr Eshetu was a citizen of Ethiopia whose initial application for a protection visa was refused. He applied to the Refugee Review Tribunal for review of the Department's decision. The Tribunal affirmed the decision, holding that Mr Eshetu was not a refugee for the purposes of the relevant Convention and thus not entitled to a protection visa under s 36 of the Migration Act 1958 (Cth) ('the Act'). Mr Eshetu applied for a review of the Tribunal's decision under s 476 of the Act. In the Federal Court, Hill J found that the Tribunal's decision lacked logic and was 'so unreasonable that no reasonable tribunal could reach it'. However, the application was dismissed because unreasonableness as a ground of review was excluded bys 476(2) of the Act. Mr Eshetu appealed to the Full Court of the Federal Court which held that the decision of the Tribunal had been effected by an error of law in the approach it took to the concept of a 'well founded fear of persecution'.

Ultra vires -Abuse of discretionary power- Unreasonableness, irrationality and illogicality FACTS Sections of the Migration Act 1958 (Cth) provide that a protection visa be granted to an applicant if the Refugee Review Tribunal are 'satisfied' that certain criteria are met. The applicant's claim was rejected. An appeal was lodged in the Federal Court, and under the Constitutions 75(v) on the grounds that the decision was 'irrational, illogical and not based on findings or inferences of fact supported by logical grounds'. Section 4 76(2)(b) of the Migration Act provides that decisions of the tribunal can not be challenged on the ground of unreasonableness. ISSUE

Was the Tribunal's decision irrational or illogical?

DECISION Gleeson, CJ, McHugh, Gummow and Callinan JJ (Kirby J dissenting): The tribunal's decision was not irrational or illogical. To

The Minister appealed to the High Court against this decision of the Full Court of the Federal Court which had set aside the decision of the Refugee Review Tribunal and ordered that the matter be remitted to the Tribunal for re-hearing. The second matter heard by the High Court was an application by Mr Eshetu who sought prohibition or mandamus pursuant to s 75(v) of the Constitution on the ground that the Tribunal's decision was so unreasonable that no reasonable tribunal could come to such a decision.

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Re MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; Ex parte APPLICANT $20/2002 (2003) 198 ALA 59; 73 ALO 1 High Court of Australia

describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.

(

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LexisNexis Case Summaries

Administrative Law

Re MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; Ex parte LAM (2003) 214 CLR 1; 195 ALR 502 High Court of Australia

on a formula for allocating quotas for species of fish to individual fishing operators, based on their catch history. The formula required a percentage for each year for five years. Annual percentages were totalled and divided by the five years. Austral Fisheries sought review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and an injunction claiming that the formula was based on a statistical fallacy. At first instance the primary judge held that the relevant provisions of the plan were capricious and irrational, such that no reasonable person could ever have devised it.

[97]

Natural justice -

Legitimate expectations

FACTS Lam was a refugee (from the age of 13) from Vietnam, who was granted a Transitional (Permanent) visa. He committed a number of criminal offences, including trafficking in heroin, for which he was sentenced to prison for eight years. The Migration Act 1958 (Cth), s 501(2) empowered the Minister to cancel a person's visa if they could not pass the character test formulated in the Act. This applied to Lam because of his criminal history. The Minister decided to cancel Lam's visa and he became liable to deportation. The Department told Lam that relatives with whom his rwo Australian born children were living would be contacted to determine the effect of his deportation on his children. This contact was not made. Lam sought orders of certiorari and prohibition to quash the decision and prevent steps being taken to deport him. ISSUE Was there a failure to accord procedural fairness and to take into account the best interests of Lam's children? DECISION Per Gleeson, CJ, McHugh, Gummow, Hayne and Callinan JJ: Dismissed. Minister for Immigration and Ethnic Affairs v Teoh (94] did not apply. Lam had lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention of the Department. It was not shown that there was procedural unfairness or a failure properly to take into account the interests of his children. The term 'legitimate' is not to be taken to mean entitlement, but to have the lesser meaning of 'reasonable'. Likewise the term 'expectation' is uncertain, referring to what a reasonable person might be 'expected to expect' in the objective sense. In Australian administrative law, 'legitimate expectation' in the Teoh sense refers to procedural protection only, not substantive protection. The concern is with the fairness of the procedure not the fairness of the outcome. [98)

MINISTER FOR PRIMARY INDUSTRIES AND ENERGY v AUSTRAL FISHERIES PTY LTD (1993) 112 ALR 211 Federal Court of Australia (Full Court)

ISSUE Were the formula used and the plan for managing the fishery so unreasonable that no reasonable person could have devised them? DECISION Per Beaumont, Hill and Lockhart JJ: Appeal dismissed. The plan should result in an operation under the legislation that is not capricious and irrational; that is Parliament's intent. Secondly, a plan will be beyond power if it cannot be justified on any reasonable ground. A court is not at liberty to declare a regulation or by-law invalid on the ground of unreasonableness, merely because the court may think it could be more fairly framed, or bear less hardship. Such considerations are entrusted to public functionaries, 'and although the ultimate power of supervision remains in the court, it is only for the purpose of confining the rule-making power within the limits of its jurisdiction, and not for correcting any possible unwisdom'. The method adopted by the plan will only be beyond the scope of the provision if no reasonable person could ever have devised it. In the absence of evidence or a process of reasoning to propound any rational basis to warrant the adoption of a statistically flawed formula for the calculation of catch history over the five year period, it was open to conclude that the relevant provisions of the plan were beyond power and thus void.

[99]

MUIN v REFUGEE REVIEWTRIBUNAL; LIE v REFUGEE REVIEWTRIBUNAL (2002)76 ALJR 966 High Court of Australia (Full Court)

Natural justice -

Migration Act

FACTS Under the Fisheries Act 1952 (Cth) the Minister determined a management plan for the South East Fishery. The plan was based

FACTS In both proceedings the plaintiffs complained of procedures adopted by the Refugee Review Tribunal relating to claims for protection visas. One of the questions for the court was whether there was a failure by the Tribunal to accord procedural fairness. Common elements in the rwo proceedings were the way in which certain documents, called Part 'B' documents, referred to in the delegates' reasons for decision, were dealt with. The material consisted largely of 'country background' information concerning political and social circumstances in Indonesia.

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Delegated legislation - Ultra vires - Unreasonableness Administrative Decisions (Judicial Review) Act 1977 (Cth)

LexisNexis Case Summaries

Administrative Law

Mr Muin and Ms Lie were both persons of Indonesian nationality and Chinese ethnicity. They claimed to be misled by official communications into believing that the Part 'B' documents that had been before the delegate would be given to the Tribunal whereas they were not.

his intention to consider its report. The company sought an injunction was to restrain the inquiry.

Additionally in Mr Muin's case certain adverse material was received by the Tribunal after the delegate's original decision. The documents contained information capable of supporting the conclusion that the Indonesian authorities were willing and able to provide protection for Indonesians of ethnic Chinese background. ISSUE Was there a denial of procedural fairness in not providing the adverse material received by the Tribunal to the applicant and in the handling of the Part 'B' documents? DECISION Per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and CallinanJJ: There was a failure to accord procedural fairness. The fact that there was a failure to bring the substance of the materials to the attention of Mr Muin and the disadvantage that followed, entitles him to succeed on this ground. The plaintiff was not made aware of the substance of any of these documents. Had the plaintiff been made aware of the substance of the new materials he would have taken certain steps which he failed to take. The decision to affirm the refusal of the delegate to grant a protection visa was invalid. The appropriate remedies were certiorari, prohibition and mandamus. The majority agreed that there also a failure to accord procedural fairness to Ms Lie because of the handling of the Part 'B' documents.

[100]

MURPHYORES INCORPORATED PTY LTD v COMMONWEALTH (1976) 136 CLA 1; 9 ALA 199 High Court of Australia

ISSUE

Did irrelevant considerations vitiate the Minister's decision?

DECISION By the Full Court of the High Court: Dismissed. The extent of the power of a decision maker rests on the legislation which confers the power. The question to be answered is whether the decision maker has duly exercised his power or was the decision vitiated because of extraneous considerations. The Customs Regulations confer such wide power and broad discretion that only something amounting to bad faith could justify the court's intervention. Consideration of the environmental aspects of the sandmining was within the Minister's discretion. It was proper for him to consider a report of an inquiry into these matters before granting further export consent for the mineral extracts.

[101]

NATIONAL COMPANIES AND SECURITIES COMMISSION v NEWS CORP LTD (1984) 156 CLA 296; 52 ALA 417; 6 ALN N37 High Court of Australia

Natural justice -

Preliminary decisions

The National Companies and Securities Commission ('NCSC') proposed to hold a preliminary investigation in private into suspected offences of News Corporation. The company challenged the NCSC's decision to deny it the right to be present throughout the hearing or to cross-examine witnesses. FACTS

ISSUE Was the company denied natural justice by being denied the right to be present at the investigation and to cross-examine witnesses?

FACTS The company applied for consent from the Minister of State for Minerals and Energy to export rutile and zircon from sandmining operations on Fraser Island in Queensland. Subsequent to the application a Commonwealth Environment Protection Act was passed. The Minister directed that an inquiry be held into the environmental impact of the sandmining. He informed the company that the inquiry's report would be considered before further export permissions would be granted for the company's mineral concentrates. The company instituted a High Court challenge to the Minister's direction to institute an inquiry and to

DECISION Per Mason, Wilson and Dawson JJ, with whom Gibbs CJ and Brennan J concurred: As the NCSC Act requires the Commission to observe the rules of natural justice at its hearing, it was for the court to consider what the rules of natural justice require in this particular circumstance. The word 'hearing' in the NCSC Act is not a term of art. The present hearing was an investigation based on a mere suspicion. There was no charge, no person being accused, and no legal rights being affected. The rules of natural justice would be observed if, as the NCSC proposed, each witness called upon to give evidence was allowed legal representation with the freedom for that representative to participate in the examination of the witness, and for the provision of a transcript of his evidence. More widespread participation of the company in the

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Ultra vires - Abuse of discretionary power relevant considerations

Irrelevant and

LexisNexis Case Summaries

Administrative Law

hearing would frustrate the purpose of the hearing which was 'to gather relevant information from a wide range of sources'.

and malicious prosecution. The High Court had held the legislation under which Kable had been detained to be unconstitutional because it required the court to perform a non-judicial task (a detention order) for the continued imprisonment of Kable, after the term of imprisonment had expired. It had set aside the order under which Kable was detained. The New South Wales Court of Appeal held that Kable had a claim for false imprisonment. The State appealed.

[102]

NEAT DOMESTIC TRADING v AWB LTD (2003) 216 CLR 277; 198 ALR 179 High Court of Australia

Administrative Decisions (Judicial Review) Act 1977 (Cth) Decisions of an administrative character made under an enactment FACTS On numerous occasions Neat was refused approval to export wheat under a scheme created by the Wheat Marketing Act 1989 (Cth), whereby it was an offence to export wheat without the consent of the Wheat Marketing Authority. This authority's consent was in tum subject to the consent of the AWB (International) Ltd, a wholly owned subsidiary of Australian Wheat Board Ltd. Both were companies under the Corporations Law of Victoria. AWB International had a right to export wheat under the Act and was thus in a monopoly position. NEAT challenged under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act') the decision to refuse approval. The action was dismissed by the Federal Court at trial and on appeal. NEAT appealed to the High Court of Australia. ISSUE Had AWB International made a decision of an administrative character under an enactment, so as to allow NEAT to bring an action that AWB International was in breach of ins 5 (2)(f) of the ADJR Act in that it had inflexibly applied a policy of refusing approvals? DECISION By majority: The ADJR Act did not apply. The decisions of AWB International were neither authorised nor empowered by the Wheat Marketing Act. It was a company limited by shares incorporated under the Corporations Law which regulated it. Its duty was to observe its constitution and to pursue the interests of the company. Its power to make decisions derived from its incorporation and the companies legislation. Section 57 of the Wheat Marketing Act gives the Authority, not the AWB International, the power to give consent to export wheat. Unlike the Authority, the AWB international needed no statutory power to give it capacity to provide an approval.

ISSUE Was the New South Wales Supreme Court exercising judicial power and therefore was the detention order valid until set aside? DECISION Per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ: Orders of a superior court of record are valid until set aside. The order was made by a judge of the Supreme Court in his judicial capacity. It was the result of an adjudication determining the rights of Mr Kable.

[104]

NORTH COAST ENVIRONMENTAL COUNCIL INC v MINISTER FOR RESOURCES (1994) 127 ALR 617 Federal Court of Australia

Administrative Decisions (Judicial Review) Act 1977 (Cth) Standing FACTS The Council was the peak organisation for environmental groups in northern New South Wales. It sought reasons under s 13 of the Administrative Decisions (Judicial Review) Act for the Minister's decision to grant a particular woodchip export licence. The Minister refused, arguing that the Council was not 'a person aggrieved'. ISSUE Was there a special interest in the subject matter so as to confer standing in relation to the claim for reasons?

FACTS Kable argued that a period of detention that he had served had been unlawful. He sued for false imprisonment, abuse of process

DECISION Per Sackville J: In order to show a special interest in the subject matter of the litigation the Council could not rely solely on its objects or on its role as commentators on the relevant environmental impact statement. It demonstrated its concern with the subject matter of the decision and the closeness of its relationship to the subject matter: being the peak environmental organisation in the region its activities related to the areas the subject of the export licence; it had been recognised by the Commonwealth since 1977, and by the Government of New South Wales as a member of government advising groups; it had been involved with projects and conferences on environmental matters receiving Commonwealth funding and made submissions on forestry management. It was a person aggrieved in relation to its claim to reasons for the decision to grant the export licence. Its concerns were more than merely 'intellectual or emotional'; it had a particular interest in the

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[103] NEW SOUTH WALES v KABLE (2013) 298 ALR 144; [2013] HCA 26 High Court of Australia Jurisdictional error -

Effect

LexisNexis Case Summaries

Administrative Law

decision and in wood chipping operations. A 'regional organisation' may well be able to demonstrate a closer concern with a particular decision than a national one. North Coast demonstrated a specific concern with and interest in its 'defined area' of activities; it was no mere busybody.

authorisation to a tax officer. The Deputy Commissioner had no power of sub-delegation. The officer issued such notices in the name of the Deputy Commissioner with a stamp of the name of the Deputy Commissioner affixed.

[105]

Injunction the action

ONUS v ALCOA OF AUSTRALIA LTD (1981) 149 CLR 27; 36 ALR 425 High Court of Australia

Standing -

Special interest in the subject matter of

FACTS Two members of the Gournditch-jmara Aboriginal community sought declarative and injunctive relief to prevent Alcoa from carrying out construction of an aluminium smelter which was interfering with Aboriginal relics. ISSUE

so as

to

Was there a special interest in the subject matter of the action confer standing to seek equitable relief?

DECISION Per Gibbs CJ with whom Stephen, Mason, Murphy, Aickin, Wilson and Brennan ]] agreed: The appellants had the special interest in the subject matter of the action to pursue the relief claimed. Their interest was 'greater than that of other members of the public and indeed greater than that of other persons of Aboriginal descent who were not Gournditch-jmara people' (per Gibbs CJ). The members of the Gournditch-jmara people were 'more particularly affected than other members of the Australian community by the destruction of the relics'. The relics had a cultural and spiritual significance and the appellants were the custodians of them according to the laws and customs of their people and they actually used them 'to teach their children the customs of their people'.

[106]

O'REILLY v COMMISSIONERS OF STATE BANK OF VICTORIA (1983) 153 CLR 1; 44 ALA 27 High Court of Australia

ISSUE Was the giving of the notices a valid exercise of the power given by s 264 of the Act? DECISION By majority: As a general proposition at common law a person sufficiently 'signs' a document if it is signed in his name and with his authority by somebody else, but if by statute a document has to be personally signed the duty of signing cannot be delegated to a third person. The same principles apply when the power is given by statute to a person to issue a notice. It may be given by an authorised agent of the designated person, unless a statute requires the notice to be issued only by the person who is designated. Whether the statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case. Section 264 and other sections of the Act confer on the Commissioner powers which may be expected to be exercised in myriads of cases. Since there are literally millions of taxpayers it would reduce the administration of the taxation laws to chaos if the powers conferred by those sections could be exercised only by the Commissioner or a Deputy Commissioner personally. The 'powers conferred by s 264 were not intended to be exercised only by the Commissioner or his delegate personally but may be exercised through a properly authorised officer' (per Gibbs CJ).

[107]

PADFIELD v MINISTER OF AGRICULTURE, FISHERIES AND FOOD [1968] AC 997; [1968] 1 All ER 694 House of Lords

Ultra vires -Abuse of discretionary power- Irrelevant and relevant considerations

FACTS Under the Income Tax Assessment Act 1936 (Cth) s 264 the Commissioner of Taxation had the power to issue a notice requiring a person to furnish information, attend and give evidence, and produce documents. Pursuant to the Act the Commissioner had delegated this power to a Deputy Commissioner, who in turn had given written

FACTS Under a milk marketing scheme pursuant to the Agricultural Marketing Act 1958, milk producers sold their milk to the Milk Marketing Board which fixed prices. England and Wales were divided into 11 regions. Producers in the South-Eastern Region received a higher price due to transport costs. Padfield and others in the SouthEastern Region wanted further increases because of their special costs. It was apparent from the composition of the Board that they would not have support for this proposal. The Act provided that a person aggrieved by acts or omissions of the Board could lodge a complaint

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Ultra vires -

Abuse of discretionary power -

Sub-delegation

LexisNexis Case Summaries

Administrative Law

with the Minister who had the discretion to refer it to a committee of investigation. If this committee recommended that the Board's decision be overruled, the Minister had the power to do so. The Minister refused to refer Padfield's complaint to the investigating committee. He reasoned that if the committee upheld Padfield's complaint he would be expected to give effect to the recommendation of the committee to his own embarrassment. An order of mandamus directing the Minister to refer the complaint to a committee of investigation was set aside by a majority in the Court of Appeal. The appellants appealed to the House of Lords.

ISSUE Were the statement of findings and reasons for the decision in accord with the AAT Act?

ISSUE

Was the Minister's decision based on irrelevant considerations?

DECISION Appeal allowed. The Minister had a duty to act whenever there was a genuine complaint that the Board was acting in a manner contrary to the public interest. The complaint was made by persons affected by the scheme and the investigating committee was the appropriate body to investigate it. If the Minister's reason for not referring it to that committee was that he might be expected to act upon its recommendation to his embarrassment this was not a good reason. His discretion had not been properly exercised according to law.

[108]

Re PALMER AND MINISTER FOR THE CAPITAL TERRITORY (1978) 1 ALO 183 Administrative Appeals Tribunal

Administrative Appeals Tribunal Act 1975 (Cth) - The duty to give reasons

DECISION Per Fisher J (Deputy President), AN Hall (Senior Member) and CA Woodley (Member): Granted. Sections 28 and 37 impose upon the decision maker obligations that are a 'crucial feature' of a citizen's right to obtain a review of an administrative decision from an impartial tribunal and 'where appropriate the substitution by that Tribunal of another decision'. Parliament intended that a citizen should be fully informed. The legislation requires the decision maker to give reasons for a decision as well as a statement of 'the findings on material questions of fact'. Additionally, reference is to be made in the statement to 'the evidence or other material' on which the findings are based. If a citizen is to be adequately informed, the statement must not be vague and general. Rather it must be complete and in intelligible language. The statement provided to the Palmers was divergent to that provided to the AAT. This was an indication of a possible failure to 'consider carefully the obligations imposed on the decision maker'. A statement pursuant to s 28 must be a factual account of what occurred when the decision was being reconsidered. This includes 'the actual reasons for the decision and the findings on material facts relied upon at the time', not a subsequent justification of a previously made decision. Neither the s 28 statement nor the s 3 7 statements were adequate. Under s 38, the Tribunal required the lodging of an additional statement stating why:

(1) (2) (3) (4)

the substituted value submitted by the Palmers was rejected; their reasons were rejected; the value in the re-determination was not too high; and an elucidation of the Chief Valuer's recommendation as to the valuation of the land, details of sales of property in the area, how unimproved value for each such sale was determined, and how the unimproved value of the Palmers' land was determined.

FACTS Mr and Mrs Palmer's land was revalued at $17 ,000. They claimed that the value should be re-determined at $6000 and stated four reasons for this belief. The valuation at $1 7,000 was confirmed. The Palmers applied to the Administrative Appeals Tribunal ('AAT') under s 29( 1) of the Administrative Appeals Tribunal Act 1975 ('AAT Act') for a review of the Minister's decision. They also wrote to the Minister under s 28( 1) of the AAT Act requesting him to furnish 'a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision'. They received a letter from the delegate of the Minister who also supplied a statement to the AAT in accordance withs 37 of the AAT Act. The Palmers, claiming that the reasons were inadequate, requested the Tribunal to make an order under s 38 of the AAT Act to require the Minister to provide a further statement containing 'better particulars'.

FACTS Parnell, a journalist with The Australian newspaper, applied to the Prime Minister for access to documents relating to meetings held by the Prime Minister as part of a program run in conjunction with the annual conferences of the Australian Labor Party. Access was denied on the basis that the documents were not an 'official document

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[109]

PARNELL and PRIME MINISTER OF AUSTRALIA (No 2) [2011] AICmr 12 Australian Information Commissioner

Freedom of Information Act 1982 (Cth) s 11 (1 )(b) document of a Minister'

'Official

Administrative Law

LexisNexis Case Summaries of a Minister' as defined in s 4(1) of the Freedom of Information Act ('FOI Act'). ISSUE Were the documents official documents in the possession of a Minister in their capacity as a Minister, being a document that relates to the affairs of an agency or a Department of State? DECISION Per J McMillan, Information Commissioner: Not all documents held in a Minister's office are subject to the FOI Act. The Act applies to 'official documents' that relate to the affairs of an agency or department of the Australian Government. This does not include documents of a purely personal or private nature held by a Minister, nor to documents that relate to a Minister's constituency responsibilities or that are of a party political nature. Which side of the line a document falls will depend in the contents of the document and it is often necessary to inspect the document in question. 'Having done so, I have decided that the documents ... are not official documents of a Minister under the FOI Act. There is nothing in those documents that relate to the affairs of any Australian Government agency'. [110]

PARRAMATTA CITY COUNCIL v PESTELL (1972) 128 CLA 305; [1972-73] ALA 811 High Court of Australia

Ultra vires -Abuse of discretionary power -

Unreasonableness

FACTS Under the Local Government Act 1919 (NSW), the Council had the power to levy a rate on land which received a 'special benefit' because of work or service to be financed by the rate. The rated area was described by metes and bounds, and excluded from it were 90 lots. However, these lots were intermingled with the lots that were taxed. Pestell, an owner whose land was subject to the rate, sought a declaration that the rate was ultra vires. This was granted by the New South Wales Supreme Court. The Council appealed to the High Court. ISSUE Was the decision so unreasonable that no reasonable council could have formed it?

[111]

PLAINTIFF S10/2011 v MINISTER FOR IMMIGRATION AND CITIZENSHIP (2012) 246 CLA 636; 290 ALA 616; [2012] HCA 31 High Court of Australia Procedural fairness - Migration Act 1958 (Cth) Minister's statutory powers

Exercise of

FACTS Each plaintiff was a non-citizen who entered Australia other than at an 'excised offshore place'. Three of them had applied unsuccessfully for protection visas. The fourth had entered on a student visa and had successfully applied for two further visas. Their applications for merits review and judicial review had been unsuccessful. They applied to the Minister to exercise statutory powers as provided by sections of the Migration Act 1958 (Cth) which would allow them to remain in Australia. The Minister had issued guidelines to officials to guide them in determining whether to refer to the Minister cases for the Minister's consideration. Some of the plaintiffs' requests were not referred to the Minister. The plaintiffs sought judicial review of the Departmental Secretary's failure to do so. Others were considered by the Minister who concluded that it would be in the public interest to exercise his powers. ISSUE Did the failure by the Minister to consider the exercise and thus to exercise the dispensing powers in question adversely affect a sufficient interest of the parties and deny them procedural fairness? DECISION Per Gummow, Hayne, Crennan and Bell, JJ with whom French CJ, Kiefel and Heydon JJ agreed: Upon their proper construction, given the nature and context of the statutory power, and in their application to the present cases, the dispensing provisions are not conditioned on observance of the principles of procedural fairness. The right to procedural fairness is subject to legislation which can abridge that right if the legislature makes clear its intention to do so. The Act's provisions are 'an exhaustive statement of the requirements of natural justice ... and specify that the rules of natural justice do not apply to certain decisions'. [112]

Re POCHI AND MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1979) 2 ALO 33 Administrative Appeals Tribunal

DECISION Per Menzies, Gibbs and Stephen JJ: Dismissed. The legislature gave the power to the Council to determine if specified work would be a special benefit to an area. It is not for the court to override the Council's opinion. However, it may review a decision to see that it has been made within the confines of the law or to determine 'if it is so unreasonable that no reasonable council could have formed it'. It is impossible that the Council could reasonably have considered that within the defined portion some blocks received a special benefit and should be rated and some blocks did not receive a special benefit and should not be rated.

FACTS Pochi had lived in Australia for 20 years as a permanent resident. He was convicted of being knowingly involved in the cultivation of marijuana. A deportation order under s 12 of the Migration Act 1958

88

89

Ultra vires - Abuse of discretionary power -

No evidence. rule

LexisNexis Case Summaries

Adminis trative Law

(Cth) was issued against him. At the Administrative Appeals Tribunal ('AAT') review of the deportation order the Minister claimed that Pochi's role went beyond that of a farm labourer to include large scale trading in marijuana. It was alleged that Pochi had large sums of money, although there was no evidence that the money was from marijuana trading. Other allegations were made against him by a police officer in closed proceedings. Both the accused and the public were excluded.

Tramways Board made him a conductor. This meant a reduction in grade and salary. Potter appealed to the appeal board which had the power to hear appeals against 'dismissals, fines, deductions from wages, reductions in rank, grade or pay, or other punishments' inflicted by the Tramways Board. The appeal board quashed the order of the Tramways Board. The latter obtained certiorari from the Supreme Court of Victoria on the ground that the jurisdiction of the appeal board was limited to cases involving punishment. It contended that Potter had not been punished. Potter appealed to the High Court.

ISSUE

Was there an abuse of power and denial of natural justice?

DECIS ION Per Brennan J: Matter remitted to the Minister with the recommendation that the deportation order be revoked. Although the Tribunal and the Minister are free to disregard formal rules of evidence in receiving material on which facts are to be found, this does not go so far as to justify orders without a basis in evidence having rational probative force. To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force. To exclude the public from a hearing is a serious step. The exclusion of a party from a hearing which affects his interests is a graver step. It is to deny him a full opportunity to cross-examine upon, comment on or to controvert the case against him - a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal. The confidential information, in conjunction with the other circumstances of the case did not warrant a positive finding that Pochi was involved in commerce in marijuana. There were ample grounds for suspecting that the applicant was so involved, but the evidence did not prove it. 'When an alien who is an established resident becomes liable to deportation under s 12, the general rules must be that the conduct which is relied on to show that a deportation is in the best interests of Australia must be proved, not merely suspected.'

Note: Appeal to the Full Federal Court was dismissed: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; 31 ALR 666. The High Court granted special leave to appeal, but rescinded the grant: Minister for Immigration and Ethnic Affairs v Pochi (1981)149 CLR 139; 36 ALR 561 see [93] . [113]

v MELBOURNE & METROPOLITAN TRAMWAYS BOARD (1957) 98 CLR 337 High Court of Australia

POTTER

Jurisdictional error -

Lack of jurisdiction

ISSU E Did the appeal board have the jurisdiction to hear the appeal? DEC ISION Per Dixon, CJ, Webb, Kitto and Taylor JJ: Appeal dismissed. The Supreme Court had found that Potter had not been punished. His appointment as a conductor was in the interests of the efficiency of the tramways system. The appeal board was a special administrative tribunal with a limited jurisdiction to deal with matters which in fact fell within the category of punishment. It was not for the appeal board to decide whether or not punishment had occurred. What had occurred was in 'the ordinary course of the general administration of the service independently of discipline'. The appeal board had lacked jurisdiction to hear the appeal. [114]

Ultra vires -

PROJECT BLUE SKY INC v AUSTRALIAN BROADCASTING AUTHORITY (1 998) 194 CLR 355; 153 ALA 490 High Court of Austra lia Procedural -

Effect

FACTS Under the Broadcasting Services Act 1992 (Cth), the Australian Broadcasting Authority ('ABA') had the functions of developing and monitoring codes of practice and program standards for broadcasting in Australia. Under s 160 these functions had to be performed in a manner consistent with A ustralia's obligations under any convention to which Australia was a party or agreement between Australia and a foreign country. The ABA implemented a 'local content standard', ensuring a certain minimum percentage of TV shows produced in Australia. A New Zealand company Project Blue Sky challenged its validity on the basis that it was not consistent with Australia's obligations under the Protocol on Trade in Services to the Australia New Zealand Closer Economic Relation Trade Agreement which provided that New Zealand would be treated no less favourably than Australia.

FACTS Potter had, since 1940, been a one-man bus operator. He had a long record of failing to keep to the bus timetable; therefore, the

ISSU E Did the failure to comply with s 160 mean that the local content standard was invalid?

90

91

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Administrative Law

DECISION Per McHugh, Gummow, Kirby and Hayne]]: An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there is a legislative purpose to invalidate any at that fails to comply with the condition. This can be ascertained from the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. There is no decisive rule that can be applied. The fact thats 160 regulates the exercise of functions already conferred on the ABA rather than imposes essential preliminaries to the exercise of its functions strongly indicates that it was not a purpose of the Act that a breach of s 160 was intended to invalidate any act done in breach of that section. 'Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful'. A person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and obtain an injunction restraining it from taking any further action based on its unlawful action.

persons'. Osmond was, therefore, not entitled to reasons for the Board's decision.

[115]

PUBLIC SERVICE BOARD OF NSW v OSMOND (1986) 159 CLA 656; 63 ALA 559; 9 ALN N85 High Court of Australia

Natural justice - No duty to give reasons at common law Administrative authorities

FACTS Osmond was an officer of the New South Wales Public Service. He applied by way of promotion for the position of Chairman, Local Lands Board. Another applicant was recommended for the appointment. Osmond appealed to the Public Service Board of New South Wales under s 116 of the Public Service Act 1979 (NSW). He was subsequently informed that his appeal had been dismissed. He requested the Board to give reasons for its decision. The Board refused to do so. Osmond's appeal to the Supreme Court of New South Wales was dismissed. He appealed to the Court of Appeal which by majority declared that the Board was obliged to give reasons for its decision. The Board appealed to the High Court. ISSUE ls there a right to reasons at common law?

[116]

R v ANDERSON; Ex parte IPEC-AIR (The IPEC Case) (1965) 113 CLA 177; [1967] ALA 1067 High Court of Australia

Ultra vires - Acting under dictation -

Mandamus

FACTS Regulation 197(1) of the Air Navigation Regulations prohibited the use of an aircraft in charter operations except under the authority of and in accordance with a charter licence issued by the Director-General. Regulation 199(2) provided that where the proposed service is an interstate service the Director-General shall issue a charter licence unless the applicant has not complied with, or has not established that he is capable of complying with regulations relating to the safety of the operations. The applicant established that it was capable of complying. lpec-Air applied to the Director-General for a charter licence 'to carry freight by means of its own aircraft between Sydney, Melbourne, Brisbane, Adelaide, Perth and Launceston'. It proposed to conduct its interstate services with five Douglas DC4 freight aircraft which it was in a position to obtain if the Director-General would grant permission under the Customs (Prohibited Imports) Regulations for their importation into Australia. Both applications were refused by the Director-General. ISSUE Did the Director-General arrive at a decision of his own or was he acting under the dictation of the Minister? DECISION Per Kitto J, with whom Taylor, Owen, Menzies, Windeyer]] agreed in part: Writ of mandamus issued requiring the Director-General to issue a charter licence. The application for permission for lpec-Air to import aircraft was dismissed. Neither in the Regulations nor elsewhere is there to be found any express provision as to the principles which the Director-General is to observe, or the matters which he is to take into consideration, when deciding whether to grant or to refuse a permission to import aircraft. It is a general principle of law ... that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour.

DECISION Per Gibbs CJ with whom the other members of the court agreed: 'There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions'. This is so even for those decisions 'which have been made in the exercise of statutory discretion and which may adversely affect the interests or defeat the legitimate or reasonable expectations, of other

In a number of oral and written communications the Director-General expressed his satisfaction with the applicant's capability of satisfying the Department's requirements and the regulatory safety requirements. He then said that the matter from this point on became one for the

92

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Administrative Law

Minister, and probably for the Cabinet, for decision on political grounds. 'All these matters' which he had 'carefully considered' consisted only of matters favourable to the application and the fact of the Government's decision against it, and the refusal of the application was simply and solely a reflection of the decision of the Government. This means that the refusal, though given no doubt in a genuine belief that obedience to duty required it, was in truth not a refusal by the person to whom the Customs (Prohibited Imports) Regulations committed the power of decision. To hold valid a decision given at the political level instead of at the permanent administrative level would be to contradict the Regulations. The proper conclusion seems to be that the application which the Director-General purported to refuse still awaits a decision according to law. In dealing with the application the Director-General did not arrive at a decision of his own after taking account of some matter of general Government policy. What he did was to seek from his Minister, and then automatically obey, an ad hoc pronouncement from the Government as to the direction in which he ought to decide the matter.

contemplated by the Board not for 'unfitness' but as a sanction to enforce close supervision and discipline of employees. Unfitness is a quality connoting deficiencies of an organisation or its equipment, lack of skill, knowledge or experience of management, employment practices and the like. These are 'entirely different things from faults or errors of omission or commission' which foremen may commit from time to time. There were no grounds for saying that the company was unfit or that it had acted in a manner whereby the proper performance of stevedoring operations had been interfered with. If, as here, no basis exists for exercising a statutory power, it is a proper exercise of the court's jurisdiction to award a writ of prohibition.

[117] R v AUSTRALIAN STEVEDORING INDUSTRY BOARD; Ex parte MELBOURNE STEVEDORING CO PTV LTD (1953) 88 CLR 100 High Court of Australia Jurisdictional error -

Lack of jurisdiction -

Prohibition

[118]

R v COMMISSIONER OF POLICE OF THE METROPOLIS; Ex parte BLACKBURN [1968] 2 QB 118; [1968] 1 All ER 763 Court of Appeal

Mandamus -

Standing and the discretion of the court

FACTS Blackburn, a private citizen, sought mandamus to require the Commissioner of Police to reverse a policy decision not to enforce the gaming laws against gaming clubs. ISSUE Does a private citizen have standing to seek mandamus in order to enforce the law?

Per Dixon CJ, William, Webb and Fullagar JJ, Taylor delivering a concurring judgment: Order made absolute for a writ of prohibition preventing the Board from cancelling or suspending the registration of the company. The scope of s 23 had been misconceived. Suspension or cancellation of registration was

DECISION Per Lord Denning MR, with whom Salmon and Edmund Davies LJJ agreed: Police have a wide discretion in particular cases to inquire, arrest or prosecute, and to concentrate on a particular area or crime. However, they cannot refuse to enforce the law. This is a duty owed to the public and can be enforced either by action at the suit of the Attorney-General or by the prerogative writ of mandamus. A person who applies for mandamus 'must show that he has sufficient interest to be protected and that there is no other equally convenient remedy' (per Lord Denning MR). Any person 'adversely affected by the action of the Commissioner in making a mistaken policy decision would have such an interest'. Whether Blackburn had been affected was difficult to say. If the chief police officer in a district announced that as a matter of policy the police would not prosecute any housebreaker, there is little doubt that 'any householder in that district would be able to obtain an order of mandamus for the instruction to be withdrawn' (per Salmon LJ). As the Commissioner had reversed the policy decision after the case had commenced and undertaken to enforce the gaming law, no order of mandamus was required.

94

95

The Board, pursuant to s 23 ( 1) of the Stevedoring Industry Act 1949 (Cth), had the power to cancel or suspend the registration of an employer if after an inquiry it was satisfied that the employer was 'unfit to continue to be registered as an employer' or had 'acted in a manner whereby the proper performance of stevedoring operations has been interfered with'. The company was made the subject of such an inquiry on the ground that it had improperly supervised waterside workers that it employed. It obtained an order nisi for prohibition to prevent the Board proceeding with the inquiry. FACTS

ISSUE

Was there a lack of jurisdiction in the exercise of the statutory

power? DECISION

J

Administrative Law

LexisNexis Case Summaries [119]

R v COMMONWEALTH CONCILIATION AND ARBITRATION COMMISSION; Ex parte THE ANGLISS GROUP (1969) 122 CLR 546 High Court of Australia

Natural justice of bias

Rule against bias -

Reasonable suspicion

FACTS In the National Wage Case in 1967, the Conciliation and Arbitration Commission inaugurated a new system of wage fixation. It abolished the male and female basic wage to which margins were added and introduced appropriate wages for each classification of work as a single money sum. It decided to add the same increment for males and females alike, thus modifying the percentage relationship between the two. The implication was that the Commission favoured equal pay for equal work as soon as economic and industrial conditions permitted. A union applied to vary its award to provide for equal pay for male and female employees. The employer applied to restrain the President and Deputy President of the Commission, who sat in the National Wage Case, from hearing the union's application on the ground that there was a reasonable suspicion that they had already made up their minds on this and other relevant issues. ISSUE Was there a reasonable apprehension of bias on the part of two of the hearing judges? DECISION By the Full Bench: Motion dismissed. What is fair depends upon the circumstances of the case. The Commission 'does not sit to enforce existing private rights'. One of its functions 'is to develop and apply broad lines of action in matters of public concern resulting in the creation of new rights and in the modification of existing rights'. It can be expected that views as to the desirability of change in some principle of wage fixation might be expressed. The very nature of the office requires a member to consider 'general questions of arbitral policy' and various methods of 'conciliation and arbitration for prevention and settlement of industrial disputes'. The expression of opinion upon a general question of policy does not disqualify the members of the Commission from sitting in an equal pay determination. Such an attitude of mind does not justify 'a reasonable apprehension' that a member of the Commission might not be able to decide 'the question of equal pay with a fair and unprejudiced mind'. It is the duty of the members 'to give full and fair consideration to every relevant argument that may be put to them for a revision or even an abandonment of announced opinions'. 96

[120]

R v CONNELL; Ex parte HETTON BELLBIRD COLLIERIES LTD (1944) 69 CLR 407 High Court of Australia

Jurisdictional error -

Excess of jurisdiction

FACTS During the war years wages were frozen. A provision of the National Security (Economic Organisation) Regulations allowed alteration of a rate of wages if an industrial authority was 'satisfied that the rates of remuneration ... [were] anomalous' and the new award was approved by the Minister. An increased rate of wages was awarded by this method to shift workers at certain collieries. The employer challenged the award on a writ of prohibition to the High Court of Australia. ISSUE Was the opinion that there was an anomaly correctly based on the law? DECISION Per Latham CJ, with whom the other members of the High Court agreed: To determine the case it is necessary to ascertain what is meant by the provision that the Industrial Authority must be satisfied that the rates are anomalous. 'Where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts'. If the opinion actually formed is not correctly based on the law, then the necessary opinion does not exist. 'A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power ... '.Some of the rates of wages may have been such that there were reasons for altering them. But evidence that there are reasons for altering certain rates of wages are not regarded as evidence of an anomaly. 'Claims for a change in rates of remuneration, whether made by employers or employees, are normally based upon a contention that the existing rates are for some reason unfair or wrong.' But action merely upon this basis is excluded by the regulations. 'Unless, in addition, it is shown that the rates in question are incongruous with an existing rule, it cannot be said that the existence of an anomaly is established.' The order nisi for writ of prohibition was made absolute. [121] R v COOK; Ex parteTWIGG (1980) 147 CLR 15; 31 ALR 353; 54 ALJR 515 High Court of Australia Error of law on the face of the record -

Certiorari

FACTS Twigg, a solicitor, was fined $1000 after being convicted by a judge of the Family Court of Australia of contempt of court. It was 97

LexisNexis Case Summaries

Administrative Law

said to have occurred in the advising of a client not to make a full and frank disclosure of information regarding children of a marriage at a conference with a court counsellor pursuant to s 62 of the Family Law Act. Twigg appealed to the High Court, claiming prohibition or certiorari as alternative remedies.

going to a body set up not by statute but under the prerogative. The exact limits of certiorari have not been specifically defined but it covers cases where public as opposed to purely private bodies determine matters affecting subjects where there is a duty to act judicially.

Was there an error of law on the face of the record to support a claim of certiorari? ISSUE

DECISION Per Barwick C.J. Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ: Order nisi for certiorari made absolute. The Family Court judge had made errors of law in construing s 62 of the Family Law Act 1975. There was no evidence to support the conviction and the procedure followed was erroneous. Appeal lay to the Full Court of the Family Court which surely would have succeeded. However, the High Court had jurisdiction in the matter. The conviction and charge read together reveal a fundamental error of law. As the error appears on the face of the record, certiorari should be granted. It was a preferable remedy to prohibition which, if granted, would have left the conviction standing.

The remedy has now been extended to cases in which 'the decision of an administrative officer is arrived at after a process of a judicial or quasijudicial character'. It was quite clear that the Board was performing public duties and was under a duty to act judicially. The court had jurisdiction to inquire into the decision of the Board in order to see if there was any error of law on the face of the record. It was held that there was no such error.

R v DIXON; Ex parte PRINCE AND OLIVER [1979] WAR 116 Supreme Court of Western Australia (Full Court) (123]

Ombudsman -

(122]

R v CRIMINAL INJURIES COMPENSATION BOARD; Ex parte LAIN (1967] 2 QB 864; (1967] 2 All ER 770 Divisional Court

Certiorari -

Scope and availability as a judicial remedy

The Board was set up by the Executive Government in exercise of prerogative power to assess compensation for victims of crimes of violence where an injury was 'directly attributable' to a criminal act and the Board was satisfied that compensation should be paid. An application was made by the widow of a police officer whose suicide was directly attributable to his being shot while on duty. The Board decided not to award compensation since it would be less than the amount the widow was entitled to under insurance and police pension payments. She sought certiorari to quash the Board's decision on the ground of error of law on the face of the record. It was submitted on behalf of the Board that it was not a body of persons amenable to the supervisory jurisdiction of the court. FACTS

Procedure -

Natural justice

FACTS The applicants, who were called as witnesses in an investigation of a complaint, sought to prohibit the Parliamentary Commissioner for Administrative Investigations (Ombudsman) from further investigating and from publishing a report on the complaint. They alleged a number of grounds of denial of natural justice. ISSUE Do witnesses at an Ombudsman's investigation have standing to seek a writ of prohibition?

DECISION Per Lord Parker CJ, with whom Diplock CJ and Ashworth J agreed: There is nothing in principle or authority to prevent certiorari

DECISION Witnesses called before the Commissioner to give evidence have no standing to obtain a writ of prohibition. Nothing that the Commissioner does, subject to one qualification, 'affects the rights of persons appearing before him as witnesses'. The 'one qualification' is that 'the Commissioner is enjoined from making any report containing any comment defamatory of or adverse to any person unless that person has been given an opportunity of being heard in the matter and his defence is fairly set forth in the report'. His 'function is to investigate matters ... report his opinion and reasons for it to the principal officer of the appropriate authority, and to make ... recommendations ... '. In discharging these functions and 'subject to rules of Parliament, he is the master of his own procedure', per Burt CJ Generally the functions of the Commissioner are like those of a Royal Commissioner.

98

99

ISSUE Is certiorari available to quash a decision of a public body set up by government in the exercise of prerogative power?

Administrative Law

LexisNexis Case Summaries

[124]

R v ELECTRICITY COMMISSIONERS; Ex parte LONDON ELECTRICITY JOINT COMMITTEE [1924] 1 KB 171 Court of Appeal

Prohibition and certiorari remedies

Scope and availability as judicial

FACTS The Electricity Commissioners were given statutory power to constitute electricity districts. This could include a scheme to constitute a joint electricity authority which might delegate any of its powers or duties to committees. In the scheme which was formulated by the commissioners, a joint authority was required to appoint two committees and to delegate to them specified duties and power. The appellant company, and others affected by the scheme, sought prohibition and certiorari on the ground that the scheme was void for jurisdictional error in that the proposed new body was in violation of the statute. ISSUE Is prohibition and certiorari available against a public body, other than a court, determining rights and bound to observe the rules of procedural fairness?

Per Atkin LJ, with whom Banks and Younger LJJ agreed: This was not a scheme within the provisions of the Act. Certiorari and prohibition lie against 'any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially' when they act in excess of their legal authority. DECISION

[125]

R v GAMING BOARD FOR GREAT BRITAIN; Ex parte BENAIM AND KHAIDA [1970] 2 QB 417; [1970] 2 All ER 528 Court of Appeal

Natural justice - Refusal to grant a commercial licence duty to give reasons at common law

No

In order to continue its business a famous gaming club in London had to apply for a licence under a new law enacted to control gambling. Before it could apply for a licence it needed a certificate from the Gaming Board that persons running the club could 'be trusted'. The managing directors, who had run gaming clubs in Algiers and Paris, were denied a certificate of consent after a four hour meeting with the Board. The Board provided the applicants' solicitors with a list of its misgivings but did not state the reasons for refusing the certificate. FACTS

ISSUE

Was there a breach of the rules of natural justice? 100

DECISION Per Lord Denning MR, with whom Lord Wilberforce and Phillimore LJ agreed: The gaming licence was a privilege, not a right. The Board had a 'duty to act fairly', and had acted with complete fairness. The applicants had been given sufficient indication of the objections raised against them so as to enable them to answer them. As part of its investigation of the credentials of applicants, the Board could receive information from police at home and abroad and from any other reliable source. Sources and details of information could be kept confidential. The Board was not bringing charges against the applicants; it was only saying it was not satisfied with their suitability and as such was not bound to give any reasons for its misgivings. The only thing the Board had to give was an opinion as to the capability and diligence of the applicants.

[126]

R v HICKMAN; Ex parte FOX AND CLINTON (1945) 70 CLR 598 High Court of Australia

Jurisdictional error - Writ of prohibition -

Privative clause

FACTS A local reference board was given power under the National Security (Coal Mining Industry Employment) Regulations (Cth) to settle disputes between employers and employees in the coal mining industry. It decided that a firm of haulage contractors, some of whose lorry drivers carried coal, was engaged in the coal mining industry and was, therefore, bound to observe an industrial award which applied to lorry drivers in the coal mining industry. The employer applied for a writ of prohibition on the ground that the decision of the local board was given without jurisdiction. Regulation 17 provided that a decision of a local board 'shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus, or injunction, in any court on any account whatever'. ISSUE

Was the decision made without jurisdiction?

DECISION Per Latham CJ, Rich, Starke, Dixon and McTternan JJ: Section 75(v) of the Commonwealth Constitution gives the High Court original jurisdiction in all matters where a writ of prohibition is sought against a Commonwealth officer, and such a writ can be granted if such an officer exceeds their jurisdiction. The privative clause, reg 17, cannot exclude the jurisdiction conferred on the High Court bys 75(v) of the Constitution. '(T]he regulations, including regulation 17: must be construed as limited in their operation to the coal mining industry', and the powers of the local board which was composed of Commonwealth officers should be interpreted accordingly. 101

Administrative Law

LexisNexis Case Summaries

The drivers who carried the coal were employed as lorry drivers generally, and not as carriers of coal, and they were not employed by colliery owners. 'They were employed by persons who carry on the business of carriers, and who did not in any real sense belong to the coal mining industry.' The drivers employed by the contractors also carried firewood, timber, blue metal and other materials. It was not 'in accordance with the ordinary meaning of "industry" to say that the firm was therefore engaged in the firewood industry, the timber industry or the industry of producing blue metal, even if the carting were done from a forest, mill or quarry' (per Latham CJ). The whole of the evidence showed that 'the employers and employees concerned were not engaged in the coal mining industry and that therefore the decision of the Local Reference Board was made without jurisdiction'. [127]

Certiorari -

R v JUSTICES OF SURREY (1870) 5 LR QB 466 Queen's Bench Division

Standing and discretion of the court

FACTS Three roads running from three turnpike roads formed, at their junction, a figure Y. The point of their intersection was D. They joined the turnpike roads at points A, B and C. The highway board applied to two justices to certify that the road from D to A, D to B, and D to C was unnecessary and would cease to be repaired. An inhabitant of the area obtained a certiorari to quash the certificates on the ground that they were void because the required notices had not been fixed by the surveyor at each end of the highway. A notice had been placed at A, B and C, but not at D. ISSUE

Did the applicant have standing to obtain certiorari?

[128]

R v MEDICAL APPEAL TRIBUNAL; Ex parte GILMORE [1957] 1 QB 574; [1957] 1 All ER 796 Court of Appeal

Privative clauses the record

Finality clause -

Error of law on the face of

FACTS Gilmore suffered a work injury in 1936 which left his right eye almost blind. In 1955, as a result of a similar injury to his left eye, he was left almost totally blind. His claim for a disablement benefit was rejected by a medical board. An appeal to a medical appeal tribunal assessed his disability at 20 per cent. It incorporated in its award a part of a report by a specialist on Gilmore's eyes. The National Insurance Act, under which Gilmore had claimed, provided that a decision of a claim would be 'final'. Gilmore contended that the tribunal had erred in failing to apply a regulation that would have achieved a 100 per cent disability assessment. He sought certiorari to quash the tribunal's decision on the ground of error of law on the face of the record. ISSUE Did the privative clause prevent the grant of certiorari where there is an error of law on the face of the record? DECISION Order issued. The error of law appeared on the face of the record. When the tribunal incorporated the extract of the specialist's report, they made it part of the record. When the report is read with the record the full facts of the injuries to the left and right eyes are available. These facts disclose the error of law. No reasonable person could have come to the conclusion that a 20 per cent award was correct if the relevant regulation had been properly understood.

The provision of the National Insurance Act that a decision of a claim would be 'final' does not preclude an order for certiorari. Although certiorari may b~ tak~n away by statute if the w~rds are 'most clear and explicit', the word final ts not enough (per Dennmg LJ). That word means 'without appeal'. It does not mean 'without recourse to certiorari'. Although it does make the decision final on the facts, it does not make it final on the law.

DECISION Per Cockburn CJ, Blackburn and Mellor JJ: Publication of the prescribed notices at each end of the road was a 'condition precedent' to the jurisdiction of the justices. Each of the roads had been treated as a separate system and as no notice had been posted at D the condition had not been fulfilled. The orders complained of were, therefore, made without jurisdiction. However, the question to what extent the court is bound to grant a certiorari, or may in its discretion withhold it, had to be considered. Certiorari is not a writ of course. A distinction is made between an application made by a stranger and one made out by a party aggrieved. A party aggrieved is entitled to relief as a matter of right, whereas a stranger is not. The applicant was a person aggrieved in that, by reason of his local situation, he had a peculiar grievance of his own.

FACTS Shaw was a clerk to a hospital board. He lost his job when the National Health Service Act 1946 came into force. The local

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103

[129]

R v NORTHUMBERLAND COMPENSATION APPEAL TRIBUNAL; Ex parte SHAW [1951] 1 KB 711; [1951] 1 All ER 268 King's Bench Divisional Court

Error of law on the face of the record - Writ of certiorari

LexisNexis Case Summaries

Administrative Law

authority paid him compensation. He was dissatisfied with the amount and appealed to the Compensation Appeal Tribunal. In dismissing the appeal the Tribunal agreed with the local authority that only the length of service with the hospital board should be taken into account, not Shaw's additional service as a clerk for the local authority. He applied for certiorari to quash the Tribunal's decision. The latter conceded that there was an error on the face of the order, but argued that certiorari was only available for jurisdictional error, and not on the ground of error within jurisdiction.

Cox Peninsula which was the subject of the Aboriginal land claim. It was alleged that this regulation was invalid on its face or that it was made for the purpose of defeating the land claim. The Commissioner held that as the regulations were made by the Administrator as a representative of the Crown, bad faith could not be imputed to him and therefore his motives could not be called into question. He further held that the claimants had not discharged the onus of showing that the power had not been used for a town planning purpose. Therefore, the land claimed was in a town and not available. The Northern Land Council sought a writ of certiorari to quash the decision and a writ of

ISSUE Is certiorari available to quash an error of law on the face of the record, regardless of whether the error was jurisdictional or nonjurisdictional? DECISION Per Denning LJ, with whom Singleton and Morris LJJ concurred: Historically, certiorari was regularly used to correct errors of law on the face of the record. In 1848 legislative changes made records of conviction simpler. An unspeaking common form of record which rarely revealed errors replaced the detailed speaking record. Orders of civil matters were also reformed but the principles if not the 'room' for certiorari remained the same. Likewise, with orders of statutory tribunals, certiorari was used to correct errors oflaw on the face of the record. In the present case the Tribunal had acknowledged the error of law. This error deprived Mr Shaw of his rightful compensation. It would be intolerable if this could not be corrected. The court could correct it by certiorari and if the record was incomplete the court could order that it be completed. The decision had to be quashed. The Tribunal would then be able to rehear the case and give the correct decision.

[130]

R vTOOHEY (ABORIGINAL LAND COMMISSIONER); Ex parte NORTHERN LAND COUNCIL (1981) 151 CLR 170; 38 Alr 439 High Court of Australia

Delegated legislation -

Ultra vires -

Improper purpose

mandamus. ISSUE Can a claim of improper purpose be brought against a representative of the Crown? DECISION By majority: The case was a proper one for mandamus. Unless Parliament has excluded judicial review, the courts may examine an exercise of power granted by Parliament to determine whether the exercise is within the scope of the power granted. This is the case whether the grant of power is to a Minister or to the representative of the Crown or to some other person or authority. The Commissioner must hear and determine the case according to law in the light of evidence concerning improper purpose.

[131]

R v WRIGHT; Ex parte WATERSIDE WORKERS' FEDERATION OF AUSTRALIA (1955) 93 CLR 528 High Court of Australia

Prohibition -

Scope -

Legislative power

FACTS Section 34 of the Stevedoring Industry Act 1949 (Cth) empowered the Commonwealth Court of Conciliation and Arbitration 'to regulate industrial matters in connection with stevedoring operations ... '. Employers' associations applied to the court to vary weekend work engagements of waterside workers. The union obtained a prohibition order to restrain the judge from hearing and determining the application on the ground of excess of jurisdiction.

FACTS An application was made by the Northern Land Council under the Land Rights Act for a claim of traditional land in the Cox Peninsula, NT. The Commissioner held that a large part of this land came under the description of a 'town' within the Land Rights Act and therefore was not available to be claimed as unalienated Crown land. The Administrator of the Northern Territory made regulations under the Planning Act 1979 specifying areas to be treated as towns. Under a schedule to a regulation, the town of Darwin was described as an area of 4350 square kilometres including most of the area of the

DECISION Per Dixon CJ, McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ: Order discharged. The court may competently make a regulation under s 34 of industrial matters in pursuance of its subordinate legislative power. This is not a judicial matter determining existing

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105

ISSUE Is prohibition available as a remedy to challenge acts of a legislative or ministerial nature?

Administrative Law

LexisNexis Case Summaries

rights. Writs of prohibition lie in respect of acts to be done judicially. They are not applicable to acts which are ministerial in their nature or administrative only; where there is 'nothing ... but the promulgation of a set of provisions regulating the future conduct of persons when they engage in defined activities'.

[132] RALKON AGRICULTURAL CO PTY LTD v ABORIGINAL DEVELOPMENT COMMISSION (1982) 43 ALR 535; 5 ALO 42 Federal Court of Australia

Administrative Decisions (Judicial Review) Act 1977 (Cth) Standing FACTS The Aboriginal Development Commission rescinded a grant of interest in land to Ralkon and approved a new grant of interest to the Point McLeay Community Council ('PMCC'). The latter would hold title to the property, with the company continuing 'to operate and maintain the land in accordance with the wishes of the PMCC and Ralkon directors'. Ralkon applied for title to the land. A lease was granted to PMCC but Ralkon continued to farm the property. The PMCC gave Ralkon notice to quit. Ralkon sought an order under s 5 of the Administrative Decisions (Judicial Review) Act ('ADJR Act') for review of the decision of the Commission granting the lease of the property to PMCC. The Commission objected to the court's competency to hear the application on the ground that Ralkon was 'not a person aggrieved by the decision' within the meaning of the ADJR Act because it was not an 'Aboriginal land trust' or an 'Aboriginal corporation' within the meaning of the Aboriginal Development Commission Act 1980 (Cth) and therefore was ineligible to receive a grant of interest under the Act.

[133]

Re REFUGEE REVIEW TRIBUNAL; Ex parte AALA (2000) 204 CLR 82; 176 ALR 219; 62 ALO 285 High Court of Australia

Natural justice - Judicial remedies -

prerogative writs

FACTS The Refugee Review Tribunal affirmed a decision that Mr Aala, an Iranian asylum seeker, did not qualify for a refugee visa. The Migration Act s 476 (2) excluded Federal Court jurisdiction over breaches of natural justice. Mr Aala commenced proceedings in the High Court alleging he was denied procedural fairness. ISSUE Was there a denial of a fair hearing and did the High Court have jurisdiction to grant prohibition under s 75 (v) of the Constitution? DECISION Per Gaudron and Gummow JJ with whom Gleeson CJ agreed: The Refugee Review Tribunal denied Mr Aala a fair hearing because it had prevented him from fully putting his case. The denial of procedural fairness means that the decision was made in excess of jurisdiction. Three prerogative writs, referred to as constitutional writs under s 75 (v) of the Constitution, were granted: prohibition to restrain the Minister from acting on the tribunal's decision; certiorari to quash the tribunal's decision; and mandamus to require the tribunal to reconsider Mr Aala's case.

[134] RIDGE v BALDWIN [1964) AC 40; [1963] 2 All ER 66 House of Lords

Natural justice principles

Duty to observe -

Effect of breach of the

DECISION Per Keely J: Although Ralkon did not fall within the meaning of the Act because none of its formal objects tended towards the advancement of Aborigines, it was nevertheless a person aggrieved in that it had an interest in the land and that interest was adversely affected by the decision to transfer the land to PMCC. Therefore, the objection to competency was dismissed. The court then considered an extension of time for an application for review.

FACTS The plaintiff was a chief constable who was dismissed frotn office pursuant to s 191(4) of the Municipal Corporations Act 1882 (UK) which provided: 'The Watch Committee may at any time suspend, and ... dismiss, any borough constable whom they think negligent in the discharge of his duty, or otherwise unfit for the same'. The plaintiff received no notice of the charges against him and had not been invited to defend himself. He had formerly been charged with, and acquitted of, conspiracy to pervert the course of justice and with corruption. He appealed to the Home Secretary who dismissed the appeal. He then sought a declaration that his dismissal was illegal, ultra vires and void. This action failed. His appeal to the Court of Appeal was unanimously dismissed. He then appealed to the House of Lords.

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107

ISSUE Was Ralkon 'a person aggrieved by the decision' within the meaning of the ADJR Act?

LexisNexis Case Summaries

Administrative Law

ISSUE Was the dismissal in breach of the principles of natural justice?

affected in any way to an extent greater than the public generally. It was not a 'person aggrieved' withins 5 of the ADJR Act.

DECISION Per Lords Reid, Morris of Borth-y-Gest, Hodson and Devlin; Lord Evershed dissented: The appeal must be allowed. There is 'an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation' (per Lord Reid). Where the power to be exercised involves a charge made against the person who is dismissed, the principles of natural justice have to be observed before the power is exercised. Such a decision given without regard to the principles of natural justice is void. Accordingly, the dismissal of the appellant was null and void.

[135] RIGHT TO LIFE ASSOCIATION (NSW) (INC) v SECRETARY, DEPARTMENT OF HUMAN SERVICES AND HEALTH (1995) 56 FCR 50 Federal Court of Australia

Administrative Decisions (Judicial Review) Act 1977 (Cth) Standing

FACTS The association claimed that the use of the drug, Mifepristone, was contrary to State abortion laws. The Secretary, Department of Human Services and Health allowed the clinical trials of the drug to continue. The association sought review of this decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'). The Secretary argued that the association lacked standing. ISSUE Was there a special interest such as to confer standing as a 'person aggrieved' under the ADJR Act?

[136]

ROBERTS v HOPWOOD [1925] AC 578 House of Lords

Ultra vires - Abuse of discretionary power relevant considerations

Irrelevant and

FACTS A statute empowered a Council to pay its employees 'such salaries and wages as [it) may think fit', without specifying any matters which the Council should or should not consider. It fixed the wage at £4 a week and kept it at this level even though the cost of living fell during the next few years. The District Auditor found that the wages were too high and fixed a lower amount. The councillors applied for certiorari to quash the decision. It was dismissed by the Divisional Court. They appealed successfully to the Court of Appeal. The Auditor appealed to the House of Lords. ISSUE Was the exercise of the discretion vitiated by irrelevant considerations? DECISION Per Lords Buckmaster, Atkinson, Sumner, Wrenbury and Carson: Appeal allowed. The Council's discretion is a wide one and the court should be reluctant to interfere. However, the paying of a minimum rate of £4 regardless of the age, sex, skills and duties of the adult work force was arbitrary and not a real exercise of the discretion that the statute imposed upon it. The Council owed a duty to the ratepayers who paid the wages to act with reasonable care and skill, and not to take into account irrelevant matters but to consider all relevant matters in fixing wages. The excess amounts paid were contrary to law. [137]

RUDDOCK v VADARLIS (the Tampa case) [2001] FCA 1329 Federal Court of Australia

DECISION Per Lockhart and Beaumont]]; Gummow J dissenting: The right to speak and to influence public opinion on the sanctity of human life and of the need to defend life against abortion is not 'transmuted into a right of standing to pursue proceedings in courts of law' (per Lockhart J). Standing requires some form of interest in the subject matter of the proceeding other than a mere emotional attachment or intellectual pursuit or satisfaction. In the present case the Therapeutic Goods Act is the source of the regulations. The moral and political questions concerning abortion are not addressed by the Act or the regulations. The Act relates to the 'quality, safety, efficacy and timely availability of therapeutic goods', s 4. The arguments of the association that the trials be stopped are not based on these matters. It had no greater interest in the subject matter of the case than any other concerned person; nor is it

FACTS Australian authorities requested the captain of the MY Tampa, a Norwegian ship which was in the vicinity, to rescue 433 people from Indonesia who were on a sinking vessel 140 km from Christmas Island. The captain agreed and headed with the people to Christmas Island at which point the Australian Government forbade the ship from 1anding in Australian territory. The rescued people were transferred to HMAS Manoora in Australian territorial waters. The Victorian Council for Civil Liberties and a Victorian solicitor Mr Eric Vadarlis applied for

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109

Habeas corpus -

Executive power -

Standing

Administrative Law

LexisNexis Case Summaries

a writ of habeas corpus and for orders of mandamus arguing that the Government was imprisoning the rescued people, that they should be released, that the Government should be ordered to bring the people to Australia, process their claims for refugee status and inform them of their rights under the Migration Act 1958 (Cth). At first instance North J refused the orders of mandamus, but granted the habeas corpus application requiring the authorities to release the people on mainland Australia. The Commonwealth and the Ministers concerned appealed. ISSUE Did the applicants have standing to challenge an exercise of executive power and to bring an application for habeas corpus? DECISION Per Beaumont and French ]] (Black CJ dissenting): The jurisdiction of the High Court to entertain an application for habeas corpus arises only as an incident of the court's original or appellate jurisdiction under other provisions, and does not derive from s 33 ( 1) (f) of the Judiciary Act. Where the jurisdiction of the court is properly invoked the court can entertain a claim for an order in the nature of habeas corpus. A writ of habeas corpus under the circumstances of this case would accomplish achieving entry into Australia which would otherwise be 'without authority and unlawful'. The court had no power to authorise this entry which is 'exclusively a matter for the Executive' (per Beaumont J). A court order may vindicate only those rights which are recognised by law. Habeas corpus which is a common law remedy is not a 'free-standing remedy'. The occupants had no legal right at common law enforceable in court to enter Australia. While customary international law and the Refugee Convention impose an obligation to provide humanitarian assistance there is no obligation to resettle those rescued. The executive power of the Commonwealth absent statutory extinguishment or abridgment extends to a power to prevent the entry of non-citizens. 'The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the Government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australian community, from entering' (per French ]) . The actions taken in regard to the Tampa to prevent the rescuees from entering the migration zone and arranging for their departure were within the scope of the executive power.

ISSUE

What do the principles of natural justice require?

DECISllON Per Tucker LJ: The standards of natural justice are not of universal application. What is required depends on the 'circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth ... '. However, 'whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case'.

[139]

SAEED v MINISTER FOR IMMIGRATION AND CITIZENSHIP (2010) 241 CLR 252; [2010] HCA 23 High Court of Australia

Natural Justice -

Hearing rule

FACTS Ms Saeed applied from Pakistan for a Skilled Visa on the basis of her work as a cook in Pakistan. Employment in the skilled occupation was required for at least 12 months in the 24 months preceding the application. Inquiries were made in Pakistan which led to a conclusion that she had never worked as a cook at the particular place of employment. Ms Saaed was not made aware of the existence of the information before her application was refused. She sought judicial review on the basis of a breach of natural justice. A procedural code in the Migration Act specified the Minister's obligations for dealing with visa applications. It appeared to exclude Saeed's capacity to seek judicial review for breach of the hearing rule because she was outside the migration zone and no review was provided for ins 5 lA of the Migration Act. ISSUE Should an opportunity have been given to comment on the adverse information?

FACTS The facts concerned the English Jockey Club's decision to revoke a trainer's licence.

DECISION French, CJ, Gummow, Hayne, Crennan and Kiefel JJ: The Minister was obliged to provide the appellant with an opportunity to answer the adverse material. The question of whether s 5 lA of the Migration Act has the effect of excluding the natural justice hearing rule is to be answered by having regard to the text of s 5 lA and the provisions with which it interacts. Section SlA is an exhaustive statement of the requirements of the natural justice hearing rule 'in relation to the matters it deals with', which is the provision of information to onshore visa applications. The provision of information to offshore visa applications is not a 'matter' dealt with ins 5 lA. It follows that the application of the hearing rule in dealings with the appellant's application is not excluded. The implication of the natural justice hearing rule with respect to offshore visa applicants was maintained.

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111

[138]

RUSSELL

v DUKE OF NORFOLK

[1949] 1 All ER 109 Court of Appeal Natural justice -

Hearing requirement

LexisNexis Case Summaries

Administrative Law

[140) SANKEY v WHITLAM (1978) 142 CLR 1; 21 ALR 505 High Court of Australia

be made available in the Kalgoorlie area. SAT FM, which had been interested in bidding for a licence, sought review of the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'). The ABA argued that the plan was legislative and could not be challenged under the Act.

Public interest immunity ('Crown privilege') - Restricted disclosure FACTS · Sankey commenced a private prosecution against the then Prime Minister and several members of the Federal Executive alleging criminal irregularities in Government borrowing. He sought production of various Government documents. Either the Commonwealth or the Prime Minister objected that the documents were privileged from production. The court categorised the documents sought as: ( 1) 'State papers' comprising Cabinet documents and papers concerned with policy decisions at a high level; (2) 'Loan Council documents', loan programs submitted to, and those approved by, Loan Council meetings and minutes of those meetings; (3) other 'State papers' for which the Commonwealth did not claim privilege but to whose disclosure the Prime Minister objected. ISSUE

ISSUE

Are legislative decisions subject to review under the ADJR Act?

DECISION Per Sundberg J: The trichotomy of administrative, legislative and judicial Acts is maintained by the ADJR Act. Decisions of a legislative or judicial character are excluded from review: Evans v Friemann (1981) 53 FLR 229. Several considerations point to the Kalgoorlie decision, viewed as an element of the Plan, being of a legislative rather than an administrative character.

[142)

Does public interest privilege preclude the production of State

SCURR v BRISBANE CITY COUNCIL (No 5) (1973) 133 CLR 242; 1 ALR 420 High Court of Australia

papers?

Ultra vires -

In accordance with the principle of Conway v Rimmer [32], it is for the courts to decide whether or not a claim for public interest privilege ('Crown privilege') should prevail. The determination of this question is not the privilege of the Executive Government. The court must balance the competing public interests involved when deciding whether a document should be produced. 'State papers' may be 'withheld from disclosure only if and to the extent that the public interest renders it necessary' (per Gibbs AC]). In the present case 'the public interest in the administration of justice' outweighed any 'public interest in withholding documents in this class'. The Loan Council documents involved high level policy decisions and negotiations between the Commonwealth and the States which were privileged, but restricted disclosure of non-privileged parts was possible.

FACTS Myer, a retail trading company, applied to the Brisbane City Council for permission to build a discount department store. A Local Planning Act required the Council to advertise the 'particulars of the application'. In the advertisement no specifications were given as to the exact site or size of the proposed building, the identity of the applicant, or the precise use that was to be made of the land. Several objections were made to the application. The Council considered the objections but decided to grant the application. The appellants (one of the objectors) appealed to the Local Court and to the Supreme Court. They then appealed to the High Court.

DECISION

Procedural

ISSUE Was the decision ultra vires because there was a breach of procedures?

FACTS The Australian Broadcasting Authority ('ABA') prepared a plan which provided that no additional commercial licences would

DECISION Per Stephen J, delivering the judgment of the court: Appeal allowed. The legislation required that public advertisements be given of applications and it was mandatory that those advertisements contain particulars of applications. This was a condition precedent to consideration of the application by the Council. The particulars given in the advertisement were inadequate. A mandatory interpretation of the advertising requirement would require a strict observance of the statutory requirement. A directory interpretation woulC! require 'substantial compliance' with the requirement of an advertisement which gave particulars. Whichever interpretation was used, the outcome was the same, because the application was determined 'without either strict

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[141)

SAT FM PTY LTD v AUSTRALIAN BROADCASTING AUTHORITY (1997) 75 FCR 604; 46 ALD 305 Federal Court of Australia

Administrative Decisions (Judicial Review) Act 1977 (Cth) 'Decision of an administrative character'

LexisNexis Case Summaries

Administrative Law

or substantial compliance' with the requirement of the statute and the Council's 'proposal to grant the application ha[d] thereby been vitiated'.

appeal the Australian Administrative Appeals Tribunal ('AAT') decided that he should instead by cautioned. The facts on which the AAT based its decision included facts which arose subsequent to the cancellation decision. The Authority successfully appealed to the Federal Court. Shi appealed unsuccessfully to the Full Federal Court and then he appealed to the High Court.

SHANAHAN v SCOTT (1957) 96 CLR 245 High Court of Australia

[143]

Delegated legislation by enabling Act

Ultra vires -

Excess of power conferred

FACTS The Governor-General was authorised to make regulations for the administration or carrying out of the objects of the Marketing of Primary Products Act 1935-53 (Vic). Pursuant to this power, a regulation was made which made it an offence for a person to place eggs in cold storage without the consent of the Egg Marketing Board, except those used for domestic purposes. The appellant was charged with placing eggs in cold storage premises without consent. The High Court granted leave to decide the validity of the regulation. ISSUE

Was the regulation ultra vires in that it extended the legislative

plan? DECISION Per Dixon CJ, Williams, Webb and Fullagar JJ: The defendant could not be held to have contravened the regulation because the regulation was ultra vires. When a power is given for the purposes of making regulations 'necessary or expedient' for the administration or for carrying out the objects of an Act this power is 'strictly ancillary'. It does not permit the authority to extend the scope of the Act in any way. The prohibition against the placing of eggs in cold storage extended to all eggs, including eggs that had been vested in the Board and then gone on to be marketed, eggs brought in from another State, and eggs that the Board had nothing to do with. The regulation was not just a filling in of the plan as outlined in the legislation for the storage and marketing of eggs. The regulation was being used to extend the legislative plan. It could not be 'justified as necessary or expedient for the administration of the Act or for carrying out its objects'.

ISSUE Had the AAT properly based its decision on facts which had arisen after the cancellation decision, and was this decision within its powers?

Per Kirby J who delivered the judgment of the court: There is nothing ins 43 of the Australian Administrative Appeals Tribunal Act to indicate whether for the purpose of reviewing a decision the Tribunal is to have regard to the facts and circumstances at the time the decision under review was made or at the time of the Tribunal's making of the decision. When making a decision, administrative decision makers are generally obliged to have regard to the best and most current information available. When the Tribunal makes a decision in substitution for the original decision 'it would be surprising in the extreme if the substituted decision did not have to conform to such a standard'. The fundamental object of the Authority's power to cancel or suspend the registration of an agent is the protection of the public; it is not to punish agents. This object is best achieved by the Tribunal making its decision upon the most up-to-date material available to it at the time of its own decision. It would be impeded if the Tribunal were confined to the facts and circumstances subsisting at the time of the Authority's original decision weeks, months or even years in the past. DECISION

[145]

SINCLAIR v MINING WARDEN AT MARYBOROUGH (1975) 132 CLR 473; 5 ALR 513 High Court of Australia

Jurisdictional error mandamus

Failure to perform a public duty -

Writ of

FACTS Shi was a Migration Agent whose registration was cancelled by the Migration Agents Registration Authority ('the Authority'). On

FACTS A mining company applied to the mining warden for mining leases over more than 1000 acres on Fraser Island, off the coast of Queensland. A mining regulation provided: ' . .. if the Warden is of the opinion that the public interest or right will be prejudicially affected by the granting of an application for a mining lease, he shall ... recommend to the Minister that such application be rejected'. Sinclair objected to the applications on his own behalf and on behalf of the Fraser Island Defence Organisation. He claimed that, for environmental reasons, it was not in the public interest that the leases be granted. Sinclair was

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[144] SHI v MIGRATION AG ENTS REGISTRATION AUTHORITY (2008) 235 CLR 286; 248 ALR 390 High Court of Australia Australian Administrative Appeals Tribunal -

Powers

LexisNexis Case Summaries

Administrative Law

allowed to present evidence but a full hearing was not held. The mining company offered no evidence in chief in support of its applications.

be released on licence. The recommendation was not acted upon by the Governor in Council. Such recommendations are considered by the Cabinet which makes a recommendation to the Governor in Council. The prisoner contended that an opportunity should have been given him to put further matters before the Governor if Cabinet intended not to accept the Parole Board's recommendation.

The mining warden decided to recommend to the Minister that the leases be granted. He stated that Mr Sinclair was representing only a 'section of the public' and that from the evidence presented he was unable to conclude that the interests of the public as a whole would be prejudicially affected by the granting of the leases. Further, until it could be shown to be against the public interest as a whole, the applicant was considered to be entitled to a recommendation that the leases be granted. Sinclair sought a writ of mandamus to compel a hearing to be had according to law. He was unsuccessful in the Supreme Court of Queensland. He appealed to the High Court. ISSUE Did the Minister fail to perform his duty in not considering if the granting of the leases would prejudicially affect the public interest as a whole? DECISION Per Barwick CJ: 'It is settled law that if a person having a duty to hear and consider misconceives what is his relevant duty, he will have failed to perform that duty and may be compelled by mandamus to perform it according to law'. The functions of the warden under the mining legislation of Queensland were much greater than 'the mere oversight of the formalities of the application'. There was in fact no material evidence presented by the company upon which the warden could properly recommend the acceptance of the applications. He misconceived his duty. Secondly, his use of the expression 'public interest as a whole' indicated that the warden failed to understand that, 'irrespective of the interests of the objectors or their number, and, indeed, irrespective of the existence of an objection on that ground, he was bound to consider whether the granting of the application would prejudicially affect the public interest'. If he had realised that, he could not have drawn 'the irrelevant distinction between the views of a section of the public and the public interest as a whole'. He did not consider the 'real question which was his duty to consider, namely, whether the granting of the application would prejudicially affect the public interest'. Appeal allowed.

[146] SOUTH AUSTRALIA v O'SHEA (1987) 163 CLR 379; 73 ALR 1 High Court of Australia Natural justice - Legitimate or reasonable expectation on licence

Release

ISSUE

Was there a legitimate expectation of natural justice at Cabinet

level? DECISION

Per Mason

CJ,

Wilson, Brennan and Toohey]] (Deane

J dissenting): Natural justice had not been denied. The prisoner by his oral and written submissions to the Board had been afforded the opportunity of placing all relevant material before the ultimate decision maker. Cabinet's advice to the Governor related to matters concerning the public interest and these were essentially policy and political considerations. O'Shea may have hoped to be released but hope is not enough to ground a legitimate expectation. [147]

Ultra vires -

SS CONSTRUCTIONS PTY LTD MOTORS PTY LTD [1964) VR 229 Supreme Court of Victoria

v VENTURA

Procedural

FACTS Ventura Motors applied to the Melbourne and Metropolitan Board of Works to use certain land as a bus depot. The Town and Country Planning Act 1961 (Vic) provided that the Board 'shall not' grant permits 'unless' notice was given to persons who, in the opinion of the Board, might be substantially affected. The notice was to state 'the purpose and effect' of the permit. The Board required Ventura to send out notices to the neighbouring owners of land. The notice stated that an application for a bus depot had been made but gave no details of a proposed building or of the scope of the project. SS Constructions objected to the grant of the permit. Nevertheless the Board decided to grant it. The company appealed unsuccessfully to the Minister for Local Government and then brought an action claiming a declaration that the decision to grant the permit was void and an injunction to prevent the issuing of the permit. ISSUE Was the decision ultra vires because statutory procedures were not followed? ·

FACTS The Parole Board recommended to the Governor that a prisoner convicted of offences of indecent assault against young children

DECISION Per Gillard J: Granted. Legislative provisions creating public duties are generally regarded as directory, whereas those as in the present

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117

LexisNexis Case Summaries

Administrative Law

case, conferring private rights or granting powers, are generally accepted as mandatory, particularly where conditions are attached. The words of the statute were plain and clear: the Board was not to grant the permit unless the condition precedent had been fulfilled. The legislature intended that those who might be substantially affected be given the opportunity to express their views before the permit was granted. Ventura's notice had not set out clearly the 'purpose and effect' of the permit sought. The company's appeal to the Minister did not constitute a waiver of the breach given that the notice requirement was mandatory.

and regulation of greyhound racing, as well as the question of penalty. He was a member of the Board and an influential figure in sport. His continued presence in the room, even though he did not participate in the discussion or decision, was inconsistent with the requirements of natural justice.

STOLLERY v GREYHOUND RACING CONTROL BOARD (1972) 128 CLR 509; [1973] ALR 645 High Court of Australia

[148]

Natural justice of bias

Rule against bias -

Reasonable suspicion

The Board, established by statute, regulated greyhound racing in New South Wales. Smith was a member of the Board. He was also the manager of an association which conducted greyhound racing. Stollery, who was a bookmaker, owner and trainer, sent forms nominating dogs for certain races to Smith. He enclosed $200 in the envelope. When challenged by Smith, Stollery said it was a wedding present. Smith, who regarded it as a bribe, reported it to the Board. An inquiry was held. Smith presented his report; Stollery denied it was a bribe. The Board charged him with 'detrimental conduct'. Stollery pleaded not guilty. He was found guilty and disqualified for 12 months. Smith was present during the Board's deliberations, although he took no part. Orders nisi for certiorari and prohibition were discharged by the Court of Appeal. Stollery appealed. FACTS

ISSUE

Was there a reasonable suspicion of bias in the conduct of the

inquiry?

[149]

SYDNEY MUNICIPAL COUNCIL v CAMPBELL [1925] AC 338 Privy Council

Ultra vires -Abuse of discretionary power -

Improper purpose

FACTS The Council was given power by statute to resume land for 'carrying out improvements in, or remodelling any portion of, the city' or 'the opening of new public ways or for widening, enlarging or extending any public ways' in Sydney. It resolved to extend Martin Place to Macquarie Street and to resume adjacent land owned by the respondents. The latter obtained injunctions restraining the Council, whereupon the Council passed a second resolution identical to the first except that it stated that the land was also required for 'the improvement and remodelling of the area'. The respondents again sought and were granted injunctions. The Council appealed. ISSUE

Was the exercise of Council's power for an improper purpose?

DECISION Appeal dismissed. An authority such as the Municipal Council of Sydney, which is given power to acquire land compulsorily for specified purposes, may not exercise its powers for different purposes. The onus is on the party challenging the use of power to show that the authority, although professing to use the power for a statutory purpose, is in fact furthering some ulterior object. There was no plan of improvement or remodelling before the Council when it passed the second resolution. It was merely the same transaction couched in the words of the empowering statute.

DECISION Per Barwick CJ, Menzies, Mctiernan, Gibbs and Stephens ]] : Appeal allowed. 'Mr Smith stood in a very special relationship to the appellant and to the matter which the Board was called upon to consider' (per Barwick CJ). He reported the incident and was personally involved in it. The heart of the matter was the 'purpose or motive' with which Stollery offered money to Smith and the 'likely effect of the offer' upon the control and regulation of the sport. Smith concluded that there had been an attempt to bribe him; he was in the position of an accuser. Therefore, he was disqualified from participating in the discussion of or decision on whether Stollery's conduct was detrimental to the control

FACTS Harris received a written notice under a statutory provision from the city surveyor to demolish some stables. He requested an opportunity to be heard before the Council to show that the stables were not in a 'ruinous state'. The Council refused and notified him that they

118

119

[150] SYDNEY MUNICIPAL COUNCIL v HARRIS (1912) 14 CLR 1 High Court of Austrlalia Natural justice -

Duty to observe -

Pecuniary loss

LexisNexis Case Summaries

Administrative Law

would proceed with the demolition at his expense. Harris obtained an order for mandamus that the Council hear him. The Council appealed to the High Court.

its powers for an ulterior purpose. Re-sale was not its sole purpose but it was still an abuse of power: profit-making by sale of the land was a substantial purpose of the scheme as a whole.

ISSUE

Was there a breach of the rules of natural justice?

DECISION Per Griffith CJ, with whom Barton and Isaacs]] concurred: Appeal dismissed. When a person is 'called upon by some public authority to incur a heavy burden or loss', the general rule of law is a right to be heard and an opportunity to give reasons why such an order should not be made. This rule is not confined to 'strictly judicial proceedings, but applies to any case in which a person or public body is invested with authority to decide' and a person is liable to suffer pecuniary loss.

v RANDWICK MUNICIPAL COUNCIL (1950) 81 CLR 87 High Court of Australia

[151] THOMPSON

Ultra vires - Abuse of power -

Improper purpose

FACTS The Council resolved to resume land for 'improvement and embellishment' of the area pursuant to the Local Government Act 1919 (NSW). The Council proposed to construct a new road and pathway, close to two streets, and re-subdivide a number of allotments to conform to the new scheme. It sought to resume more land than was required for the scheme so that the surplus could be sold at a profit which would help defray costs of the scheme. The owners of land affected by the proposal sought an injunction to restrain the Council. When the suit was dismissed in Equity, they appealed to the High Court. ISSUE Was the Council's power used for an improper purpose?

[152] TOOHEYS LTD v MINISTER FOR BUSINESS AND CONSUMER AFFAIRS (1981) 4 ALO 277; 54 FLR 421 Federal Court of Australia Administrative Decisions (Judicial Review) Act 1977 (Cth) Standing FACTS An importer paid to the Commonwealth a 30 per cent duty on goods which were entered for home consumption. The goods were delivered to Tooheys Ltd who was invoiced for and paid the equivalent amount of the duty to the importer. Tooheys Ltd brought proceedings under the Administrative Decisions (Judicial Review) Act 1977 ('ADJR Act'). It claimed that the Minister should have made a determination that a particular section of the Customs Tariff applied to the goods. The effect of the decision to refuse to make the determination was that a higher rate of duty was paid and no part became refundable under other provisions of the Customs Act. ISSUE Was the company a 'person aggrieved' within the meaning of the ADJR Act? DECISION Per Ellicott J: A decision was made within the meaning of s3(2)(a) of theADJRActin that by his letterthe Minister was 'refusing to make a determination'. It was a 'decision of an administrative character' within the meaning of s 3(1) of the ADJR Act. It was a decision to which the ADJR Act applied because it fell within the description of para (3) of Schedule 1 to the ADJR Act. The applicant, Tooheys Ltd, was 'a person aggrieved' by the decision within the meaning of s 5. These words should not be given a narrow construction. They should not be confined to persons who can establish that they have a legal interest at stake in the making of the decision. The broad nature of the discretions and the procedures under the ADJR Act which 'are clearly intended in part to be a substitution for the more complex prerogative writ procedures [indicate] that a narrow meaning was not intended.

DECISION Per Williams, Webb and Kitto JJ: Appeal allowed. The provisions of the Act relied upon by the Council did not support the resumptions. Land could be resumed for the purpose of a new road but not for other purposes, except insofar as the resumption of adjoining land might be reasonably incidental to a purpose under the Act. The land proposed to be resumed went beyond that necessary for the new road and there was no evidence that any excess could be acquired because it was reasonably incidental to any other purpose. Likewise the Council's power to control, regulate, improve and embellish the area had to be carried out in accordance with the purpose for which the Council was resuming land. The only purpose for resuming more land than was necessary was to re-sell it to benefit the Council at the expense of the owners. The Council was not acting in good faith in that it exercised

This does not mean that any member of the public can seek an order of review ... however ... it at least covers a person who can show a grievance which will be suffered as a result of the decision ... beyond which he or she has as an ordinary member of the public'. The decision may affect existing or future legal rights or the effect may be less direct.

120

121

LexisNexis Case Summaries

Administrative Law

It may affect a person's conduct of a business or, as here, affect their rights against third parties. In this case, if a decision was made applying the particular provision to the goods in question, the applicant would be able to assert a claim to a refund against the importer. Tooheys had a grievance over and above that which it would have as an ordinary member of the public. It had a serious claim it wished to pursue and could only pursue if the Minister's decision was overturned.

[154] TICKNER v CHAPMAN (sub nom NORVILL v CHAPMAN) (1995) 57 FCR 451; 133 ALR 226 Federal Court of Australia (Full Court)

[153]

TWIST v RANDWICK MUNICIPAL COUNCIL (1976) 136 CLR 106; 12 ALR 379 High Court of Australia

Natural justice -

Legislative restriction

FACTS Twist received an order for the demolition of his house unless it was restored to the Council's satisfaction within a reasonable time. The empowering legislation, the Local Government Act 1919 (NSW), in s 317B, conferred on an owner receiving such an order the right to appeal to the District Court. Although Twist was given an extension of time to comply with the order, he failed to comply. The Council resolved to order the demolition. Twist had not exercised his right to appeal to the District Court. He sought a declaration that the Council's order was null and void. The Supreme Court of New South Wales dismissed his application and he appealed to the High Court. ISSUE Was the legislative scheme an adequate provision of natural justice?

Ultra vires -

Procedural requirements

FACTS The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 ( Cth) set out extensive requirements for reporting, notification and consultation before the Minister could exercise the power to make a declaration that an area is a significant Aboriginal area that is under threat of injury or desecration. The Minister made a declaration prohibiting construction for 25 years of a bridge (Hindmarsh Island bridge) in South Australia after receiving a report he had commissioned to which was appended over 400 submissions and a report prepared by an anthropologist, with two confidential annexures describing secret folklore of the Ngarrindjeri women in a sealed envelope marked not to be read by men. There were significant objections to the Minister's declaration made two days after receiving the report. At trial the Minister's declaration was held to be invalid on the grounds of several breaches of procedural failure. ISSUE Did the Minister comply with the necessary steps provided in the Act to consider both the report and representations attached to the report before making a declaration? DECISION Per Black CJ, Burchett and Kiefel JJ: The evident intention of the Act was the requirement of substantial and non-delegable personal ministerial involvement. The Minister was required to consider the report and any representations attached to the report. In the context of the Act, given the policy of public involvement in the process and the potential gravity of the consequences of either granting or withholding a declaration, the Minister's duty to consider was a provision compliance which was a necessary step in the exercise of power.

DECISION Per Barwick CJ, Mason and Jacobs JJ: 'The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal' (per Barwick CJ). However, the rule may be displaced by the legislature which may provide for the exercise of such a power without a hearing being afforded the affected person. This legislative intention must be made 'unambiguously clear'. But if legislation has made provision for a hearing before a person or his property is affected, 'the court will not be warranted in supplementing the legislation, even if the legislative provision is not as full and complete as the court might think appropriate'. In the present case, in enacting s 31 7B, the legislature has provided an opportunity for the owner of a property to be heard before his rights are finally affected. It is not for the court to intervene and insist that the Council should have heard the owner before making the order.

FACTS Waterford, under the Freedom of Information Act 1982 '(Cth) ('FOI Act'), requested access to documents held by the Department of

122

123

[155]

WATERFORD v COMMONWEALTH OF AUSTRALIA (1987) 163 CLR 54; 71 ALR 673 High Court of Australia

Freedom of Information Act 1982 (Cth) s 42 privilege

Legal professional

LexisNexis Case Summaries

Index

Treasury. They related to an earlier request he had made to the same Department which had been refused. The Administrative Appeals Tribunal had reserved its opinion on an appeal against this refusal. As to the later request, the Department claimed that 45 documents were exempt under s 41 of the FOI Act, being 'privileged from production in legal proceedings on the ground of legal professional privilege'. The documents concerned letters between the Attorney-General and the Treasurer, and memoranda between the Department of Treasury and the Deputy Crown Solicitor's Office. The Administrative Appeals Tribunal agreed that 33 of the documents were the subject of legal professional privilege. Waterford appealed to the Federal Court in respect of 23 of the documents. This appeal was dismissed and he appealed to the High Court.

Acting under dictation .... 4 7, 116

ISSUE Were the documents exempt under the FOI Act as subject to legal professional privilege?

Administrative action meaning .... 22, 57

Per Mason, Wilson and Brennan JJ (Deane and Dawson JJ dissenting): Dismissed. Government legal officers were not outside the bounds oflegal professional privilege and the public interest requires that Government officers should have confidential easy access to Government legal advisers. For the purpose of legal professional privilege, the legal adviser must be independent and the salaried legally qualified officers of the Attorney-General's Department and Government Solicitor's office satisfy that requirement in respect to the confidential legal advice they give to their employer within the relationship of lawyer and client.

Administrative Appeals Tribunal (AAT) duty to give reasons .... 108 exercise independent judgment, requirement to .... 41 immigration matters, jurisdiction .... 93 jurisdiction .... 4, 30 ministerial policy, role of .... 42 powers of .... 41, 144 standing .... 82

DECISION

References are to case numbers

A

decisions 'made under enactment' .... 17, 56, 102 decisions of an 'administrative character' .... 141 decisions or conduct of magistrate .... 79 judicial review under, availability .... 23 'person aggrieved' under .... 151 reviewable decisions under .... 15 standing under .... 104, 132, 135 , 152

Abuse of discretionary power improper purpose .... 149, 151 no evidence rule .... 11 2 relevant/irrelevant considerations .... 90, 100, 107, 136 unreasonableness .... 110

Appeal proceedings effect where there has been procedural unfairness .... 26 'As if enacted' clause validity .... 55

B Bad faith administrative bodies, acting in .... 12

Administrative Appeals Tribunal Act 1975 (Cth)(AAT Act) decision, meaning under .... 30, 39 decision of an 'administrative character' .... 63 duty to give reasons .... 108 preliminary decisions, whether reviewable .... 45

Bias actual .... 85 conduct of proceedings and .... 37 domestic tribunals .... 88 pecuniary interest and .... 38 reasonable suspicion of .... 27, 37, 70,80,88, 119, 148 rule against .... 27, 37, 70, 80, 119, 148

Administrative bodies bad faith, acting in .... 12 improper use of powers .... 12 judicial powers, exercise of .... 24

c Certiorari discretion of court and standing .... 127 error of law on face of record .... 121, 129 nature of .... 36

Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) committal proceedings decisions, of .... 79

124

125

Index

LexisNexis Case Summaries

61, 102

113, 120

preliminary, whether reviewable

.... 5, 122, 124, 133

on the face of the record .... 36,

.... 45

standing to seek .... 73, 127

121, 129

reviewable, meaning .... 15

Commercially valuable information FOI Act exemption .... 83

Declarations availability .... 44, 54 scope of remedy .... 44, 54

Common law reasons, whether duty to give

Delegated legislation 'as if enacted' clause .... 55 excess of power conferred, where

.... 115, 125 Commonwealth fetter on executive actions of .... 9

.... 143

Confidentiality breach of and FOI Act .... 74 employment contracts .... 1 public policy and .... 1

prohibition/regulation distinction

52,89

Considerations relevant and irrelevant .... 90, 100,

107, 136

Deportation AAT, jurisdiction as to .... 93 legitimate expectations .... 94, 97 natural justice, application to 76,

Constitutional law prerogative writs .... 95, 96, 133 time limits .... 21 unreasonableness under .... 95

94

Constitutional rights implied .... 48

Discretionary power abuse of .... 106, 107, 112 relevant/irrelevant considerations

Convention on the Rights of the Child effect of ratification .... 94

.... 107, 136 sub-delegation .... 106 unreasonable exercise of .... 13 unreasonableness of decision

Criminal law superior orders defence .... 1

.... 110

Crown statute, whether bound by .... 25

Hearing Rule opportunity to be, legitimate expectation .... 64 pecuniary loss to be incurred

F Fact law and, distinction .... 29, 46,

.... 150 penalty, as to .... 62 procedural fairness and .... 10, 34 right or interest affected .... 8 right to be heard .... 40, 150

50,69 Federal legislation jurisdiction to determine validity

.... 4 Finality clause effect .... 128

Illogical decisions, nature of .... 96 jurisdictional error and .... 92

Freedom of Information Act 1982 (FOi Act) adverse effects of disclosure .... 66 commercially valuable information exemption .... 83 confidential personnel records, access to .... 74 deliberative processes under .... 71 exempt documents, inspection .... 11 exemptions .... 87 legal professional privilege and

Improper purpose abuse of discretionary power

.... 149, 151 Inflexible policy ultra vires application of .... 60 Injunctions availability .... 33 special interest in subject matter

.... 16, 18 standing to make application

.... 155

.... 16, 105

'official documents of a Minister'

Interpretation law/fact distinct .... 29 trade meaning/usage .... 29

.... 109

.... 53

public interest elements and disclosure .... 71

reasonable suspicion of bias .... 88

Decisions AAT Act, meaning under .... 30,

Habeas corpus availability .... 68 standing to seek .... 13 7

Executive fetter on actions of .... 9 power, standing to challenge .... 138

Domestic tribunals natural justice, duty to observe

D

H

privative clause, effect of .... 77

sub-delegation of power, validity

.... 65 ultra vires .... 48, 52, 55, 89 uncertainty .... 75 unreasonableness .... 98

Government decision-making procedures natural justice and .... 81

illogicality, ground of .... 92 jurisdiction, as to .... 7, 20, 36, 77,

made 'under enactment' .... 17, 56,

Certiorari - cont'd scope and availability as remedy

E

39

Equitable relief standing to seek .... 16, 18, 105

'administrative character' meaning 63 executive, judicial review of

Error effect of jurisdictional .... 103

.... 91

References are to case numbers

126

G

J

Governor natural justice, application of

Judicial power exercise by non-judicial bodies

.... 24

.... 49

References are to case numbers

127

Index

LexisNexis Case Summaries Judicial review 'as if enacted' clause .... 55 availability of .... 23 executive decisions .... 91 Migration Act 1958, limitation of grounds of .... 2 preliminary decisions, whether reviewable .... 45 reviewable decisions .... 15 unreasonableness as ground of .... 95

Legitimate expectations Cabinet level decisions, at .... 146 meaning of .... 97 natural justice and .... 14, 35, 49, 146 opportunity to be heard, of .... 64

M 'Made under enactment' decisions, meaning .... 17, 56, 61, 102

Jurisdiction effect of jurisdictional error .... 103 error as to .... 7, 20, 36, 46, 50, 69, 77' 92, 103, 113, 120, 126 excess of .. .. 120 fact/law distinction .... 29, 46, 50,69 lack of .... 113

Mandamus availability of .... 133 compel performance of public duty, to .... 145 issue of writ .... 116 standing to seek .... 118

Jurisdictional error decisions .... 7, 20, 36, 46, 50, 69, 77, 92, 103, 113, 120, 126 effect of .... 103 failure to perform public duty .... 145

Migration Act 1958 exercise of Minister's statutory powers under .... 111 hearing rule and .... 139 judicial review under .... 2 non-reviewable grounds under

Magistrate acting under dictation .... 47

.... 2

J usticiability non-justiciable prerogative power .... 35

procedural unfairness, denial of .... 99 Ministerial policy AAT, application of .... 42

L Law error on the face of the record .... 36, 121, 129 fact and, distinction .... 29, 46, 50,69

N National security cases ASlO, application of ultra vires doctrine to .... 28 confidentiality clauses in employment contracts .... 1 non-justiciable prerogative power .... 35

Legal professional privilege FOi Act exempt documents and .... 155 Legislative powers natural justice, application to .... 59, 153 sub-delegation of, validity .... 65

Natural justice adverse information, opportunity to comment on .... 139

0

bias, rule against .... 27, 37, 38, 70, 80, 119, 148 breach of principles, effect .... 134 conduct of hearing .... 51 denial of, whether cured on appeal .... 26 deportation, application to .... 76 duty to observe .... 18, 34, 43, 49, 53, 67, 76, 134, 150 Governor in Council, application of .... 49 Government decision-making procedures .... 81 legislative powers, application to .... 59 legislative restriction to .... 153 legitimate expectations .... 14, 35, 86, 146 notice requirement .... 85 pecuniary loss to be incurred, where .... 150 penalty, right to be heard on .... 62 preliminary investigations, application to .... 101 procedural fairness, legitimate expectation of .... 86 procedural unfairness .... 99 public officials, application to

Ombudsman administrative action, meaning .... 22, 57 findings, power to make .... 3 jurisdiction .... 22, 57 witnesses before, standing to seek writ of prohibition .... 123

p Pecuniary interest bias and .... 38 Penalty right to be heard on .... 62 Preliminary investigations natural justice, application to .... 101 Prerogative powers justiciability .... 35 Prerogative relief grounds for .... 2, 133 Private citizen locus standi of .... 6 Privative clause effect of .... 77, 126, 128 preclude certiorari, whether .... 128

.... 72 reasons, duty to give .... 115 representation, right to .... 51, 84 right to be heard .... 8, 62

Privilege Crown .... 32, 140 legal professional .... 155 public interest .... 32, 140

No evidence rule abuse of discretionary power and .... 112

Procedural breaches ultra vires, whether .... 114, 142, 147

Non-renewal of approval legitimate expectation and .... 49 natural justice and .... 49

Procedural fairness denial of, whether cured on appeal .... 26 duty to apply .... 34 fair hearing, denial of .... 133

Notice natural justice requirement of .... 85

References are to case numbers

References are to case numbers

128

129

Index

LexisNexis Case Summaries

Procedural fairness - cont'd Government decision-making procedures .... 81 legitimate expectation of .... 14, 86, 97 Migration Act, under .... 99, 111 Ombudsman determinations

R

mandamus, to seek .... 118

Reasons common law, duty to give .... 115, 125 duty to give .... 108

private citizen, of .... 6 wimesses before Ombudsman .... 123

Regulation prohibition and, distinction 52, 58,89

.... 3 opportunity to be heard .... 10 representation, whether required .... 78 right to be heard .... 40, 150 'warning off' notices .... 53, 67

Remedies

certiorari .... 5, 73, 121, 122, 124 declaration .... 44, 54 habeus corpus .... 68 mandamus .... 116 prohibition, writ of .... 124

Prohibition regulation and, distinction 52, 58,89

Representation procedural fairness and .... 78 right to and natural justice .... 51, 84

Prohibition, writ of scope and availability .... 124, 126, 131, 133 witnesses before Ombudsman, standing to seek .... 123

Reviewable decisions 'administrative character', of .... 141 committal proceedings, of .... 79 magistrate, of .... 79 meaning .... 15 preliminary decisions, whether .... 45

Protection of public rights who may bring proceedings .... 6 Public duty failure to perform .... 145 mandamus to compel performance .... 145

excess of power conferred .... 143 implied constitutional rights .... 48 improper purpose .... 149, 151 inflexible policy, application of .... 60 procedural breach .... 114, 142, 147 prohibition/regulation distinction .... 52, 58 sub-delegation of legislative, validity .... 65 uncertainty and .... 75 unreasonableness, as ground .... 98, 110

Sub-delegation of legislative power validity .... 65, 106

T Time limits constitutional validity .... 21 Trade meaning/usage interpretation and .... 29

u Ultra vires abuse of discretionary power .... 90, 100, 112, 136, 149, 151 acting under dictation .... 4 7, 116 administrative bodies acting .... 12 ASIO, application to .... 28 delegated legislation .... 48, 52, 89 discretionary power, unreasonable exercise as .... 13

Uncertainty delegated legislation ultra vires where .... 75 Unreasonableness abuse of discretionary power .... 110 delegated legislation, of .... 98 discretionary power, exercise of .... 13 ground of review, as .... 95

s

Public interest immunity Cabinet documents, disclosure of .... 31 FOi Act and .... 71 scope of .... 31 State documents, disclosure of .... 140

Special interest AD(JR) Act, under .... 104, 132, 135, 151 'person aggrieved' under .... 151 standing to seek injunctions and .... 16, 18, 105 Standing AD(JR) Act, under .... 104, 132, 135, 152 certiorari, to seek .... 12 7 customs agent, of .... 82 habeas corpus, to seek .... 137 injunctions, to make application for .... 16, 18, 105

Public interest privilege scope .... 32 Public officials natural justice, application to

.... 72 Public policy confidentiality clauses and .... 1

References are to case numbers

References are to case numbers

130

131