Administrative law guidebook [Second edition.] 9780190304058, 0190304057

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Second Edition

OXFORD UNIVERSITY PRESS AUSTRALIA & NEW ZEALAND

ISBN 978-0-19-559396-9

II llll II IIll I I

9 780195 593969

visit us at: oup.com.au or contact customer service: [email protected]

.

~

.

Francisco Esparraga Ian Ellis-Jones

v

OXFORD

CONTENTS

UNIVERSITY PRESS

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research.

scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and in certain other countries. Published in Australia by Oxford University Press 253 Normanby Road, South Melbourne, Victoria 3205, Australia © Francisco Esparraga and Ian Ellis-Jones 2016

The moral rights of the author have been asserted. First edition published 2011 Second edition published 2016 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press. or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. National Library of Australia Cataloguing-in-Publication data Creator: Esparraga, Francisco, author. Title: Administrative law guidebook/ Francisco Esparraga and Ian Ellis-Jones. Edition: 2nd edition. ISBN: 9780195593969 (paperback) Notes: Includes index. Subjects: Administrative law-Australia. Other Creators/Contributors: Ellis-Jones, Ian, author. Dewey Number: 342.9406 Reprod u ction and communication for educational purpo ses The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the pages of this work, whichever is the greater, to be reproduced and/or communicated by any educational institution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. For details of the CAL licence for educational institutions contact: Copyright Agency Limited Level 11, 66 Goulburn Street Sydney NSW 2000 Telephone: (02) 9394 7600 Facsimile: (02) 9394 7601 Email: info@copyrigh t.com.au Edited by Julie King Typeset by diacriTech Proofread by Joy Window, Living Language Indexed by Julie King Printed by Sheck Wah Tong Printing Press Ltd Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Preface Acknowledgments Chapter 1: Introducti on The scope, nature and content of administrative law The meaning of the word 'administrative' Development of administrative law Judicial review 'Red light' and 'green light' approaches Conclusion Chapter 2: Subordinate Legislation Introduction ~ Proliferation of subordinate 1'egislation Making, publication and commencement of statutory rules Parliamentary review of statutory rules Senate Standing Committee for the Scrutiny of Bills-Commonwealth Legislative Instruments Act 2003 (Cth) Changes to the Legislative Instruments Act 2003 (Cth) Senate Standing ctmmittee on Regulations and Ordinances-Commonwealth Judicial review of subordinate legislation Invalidity of subordinate legislation The regulation/ prohibition distinction 'As if enacted' clauses Severance Recent developments

ix x

2 3

4 6 10 11

13 14 15 17 18 18 19 20 21 23 24 32 33 33

34

Chapter 3: Merits Review and Tribunals • Introduction Merits review What is a tribunal? Nature and variety of tribunals- merits review and civil claims Types of tribunals Diversity of tribunals The onus of proof Evidence in tribunals Tribunals and policy The inquisitorial approach Future amalgamation of tribunals Refugee law amendments

68 68

Chapter 4: Procedural Fairness Introduction Rules of procedural fairness

70 72 73

38

39 39 44

49 53 53 54

56 60

63

vi

CONTENTS

CONTENTS

Implication principle Legitimate expectations Hearing rule Bias rule 'Real likelihood' or 'reasonable apprehension' 'No evidence' rule 'Duty' to initiate inquiries Recent research findings

74 76 80 96 100 111 113 117

Chapter 5: The Administrative Appeals Tribunal Introduction Legal status and jurisdiction of the Tribunal Organisation Case management process Merits review Meaning of 'decision' Role and functions of the Tribunal Consideration of policy by the Tribunal Applications for review Consideration and determination of applications Decision-making powers of the Tribunal Reasons for decisions Appeals from the Tribunal Streamlined arrangements for external merits review

120 120 121 122 123 126 128 129 129 131 134 136 137 138 139

Chapter 6: Ultra Vires Introduction Simple ultra vires Extended ultra vires

141 142 143 147

Chapter 7: The Administrative Decisions (Judicial Review) Act 1977 168 Introduction 169 Jurisdiction 170 Judicial review under the ADJR Act 171 Grounds for review 177 Standing 181 Reasons for decision 182 Chapter 8: Jurisdictional Error and Privative Clauses Introduction Ultra vires and jurisdictional error Errors of law and errors of fact Errors in fact-finding Traditional jurisdictional error Error of law on the face of the record Extended jurisdictional error

189 190 190 191 194 194 197 198

Ultra vires and jurisdictional error-revisited Privative clauses

200 207

~

Chapter 9: Rules of Standing-Remedies and Standing Introduction Case law examples 'Constitutional writs' under s 75(v) of the Constitution Origins Administrative law remedies Relief in the nature of certiorari and prohibition Relief by way of mandamus Relief in the nature of quo warranto Injunctions Declarations Damages , ~ Administrative fJecisions (Judicial Review) Act 1977

.

... -

217 218 218 220 221 222 222 226 230 230 234 238 239

Chapter 10: The Ombudsman Introduction Jurisdiction Institutional acceptance of Ombudsmen Private sector Omt1'Lidsmen-examples Major utilities and public services Ombudsmen-examples Commonwealth Ombudsman jurisdi'ction Commonwealth Ombudsman in the 'age of terror' Public interest disclosure scheme NSW Ombudsman-special role

242 242 244 247 247 249 250 253 254 254

Chapter 11 : Freedom of Information Legislation Introduction Objects of FOi legislation Current situation 201 0 reforms Applications for access to an agency's documents Exempt documents Conclusive certificates Other reforms State FOi-reiated reports, inquiries and legislation

257 258 260 262 265 270 273 278 279 282

Chapter 12: Privacy Legislation Introduction Common law Legislation Objects of the Privacy Act 1988 Government sector Private sector

287 289 291 293 294 294 295

•

vii

viii

CONTENTS

Office of the Australian Information Commissioner (OAIC) Privacy Commissioner State and territory privacy law Table of Cases Table of Statutes Index

ix

295 296 298 302 319 323

PREFACE As was stated in the Preface to the first edition of this book, administrative law is blessed with being one of the most constantly changing and fluid areas of our legal system. It is an area where the interplay between government decision-making and citizens is constantly under scrutiny. This continues to be demonstrated in the second edition , which demonstrates the ever-changing face of administrative law. Substantial changes and developments ha¥e been noted, particularly in Chapter 2-Subordinate Legislation, Chapter 3-Merits Review and Tribunals, Chapter 4-Procedural Fairness, Chapter 11-Freedom of lnformati~n legislation and Chapter 12-Privacy Legislation. Administrative law elements continue to be in the public spotlight, in areas such as review of decision-making; protect~n of information rights; public accountability of government prscesses; an() the five core administrative law areas of 'fairness, lawfulness, rationality, openness and efficiency'. Administrative law is still seen as a collage of often overlapping areas, rather than the mechanical and boundary-ridden areas seen in other areas of the law. The primary purpose of this book is to provide undergraduate law students with a basic aid in understC}(lding administrative law. Brief case examples are presented, where appropriate, to illustrate importa,nt principles and to provide guidance on essential issues. This book is not a substitute for existing textbooks and casebooks on administrative law and should be used only to complement this difficult subject area. Nor will this book substitute the necessary ~nalysis of case law, legislation and the multiplicity of available administrative law materials. My thanks of appreciation once again to Ian Ellis-Jones, the initial author of this book, who provided me with the opportunit>y to continue with the basic structure of the book, while at the same time allowing me to add my thoughts and ideas to the first edition and this second edition of the book. I would also like to thank the many people who assisted on this project. First, Katie Ridsdale, Senior Publisher at Oxford University Press, who originally commissioned the project and provided much assistance and guidance throughout the writing process. Second, Michelle Head, Shari Serjeant and Laura Rentsch from Oxford University Press, who oversaw the editing process. Third, my appreciation to Julie King who did the copyediting.

To my family, Anne, Virginia and Frank, as ever, I owe a debt of gratitude once again , for being there in support. Lastly, I thank my many students over the years who continue to inspire me. They never cease to amaze me. The shortcomings in this book, needless to say, are my own. The law is stated as at 15 September 2015. Francisco Esparraga September 2015

x

ACKNOWLEDGMENTS The authors and the publisher wish to thank the following copyright holders for reproduction of their material. Australian Law Reform Commission (ALRC) for extract from Serious Invasions of Privacy in the Digital Era (ALRC Report 123); High Court of Australia for extracts from HCA; Incorporated Council of Law Reporting for case extracts from the Appeals Court (AC) , Kings Bench (KB) and Queens Bench (QB) law reports; Lexis Nexis for extracts from Administrative Law Decisions, Australian Law Reports . Reprinted with the permission of LexisNexis. This case was first published by LexisNexis Pacific in the Australian Law Reports (ALR) and the Administrative Law

Decisions (ALO) and should be cited as Case, year, citation. For all subscription enquiries please phone: +61 800 772 772 or online at http://www.lexisnexis.com. au/en-au/about-us/contact-us/contact-us.page; Lexis Nexis UK for extract from All England Law Reports (All ERO). Reproduced by permission of Reed Elsevier (UK) Limited trading as LexisNexis; Sydney Law Review for extract from Hon Mr Justice FG Brennan Comment: 'The Anatomy of an Administrative Decision ' (1980) 9(1)

Sydney Law Review 1 at 4-5; Thomson Reuters for extracts from Commonwealth Law Reports, Federal Law Reports and Local Government and Environmental Reports of Australia. Every effort has been made to trace the original source of copyright material contained in this book. The publisher will be pleased to hear from copyright holders to rectify any errors or omissions.

CHAPTER 1

INTRODUCTION COVERED IN THIS CHAPTER Scope, nature and content of administrative law Development of administrative law

•

Nature and role of judicial review 'Red light' and 'green light' approaches to administrative law Theories of judicial review

CASES TO REMEMBER

~

Associated Provirrcia/ Picture1-louses Ltd v Wednesbury Corporation [1948] 1 KB 223

Church of Scientology Inc v Woodward (1982) 154 CLR 25 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 37 4 FA/ Insurances Ltd v WJnneke (1982) 151 CLR 342 Hicks v Ruddock (20

be revie'4{ed again in 2017.

SENATE STANDING COMMITTEE ON REGULATIONS AND ORDINANCES-COMMONWEALTH

,,.

an independent statutory authority accountable to the Attorney-General and may be

The other major body ef Commonwealth Parliamentary review is through the Senate

found at its website. The Statutory Rules Publication Act 1903 (Cth) was repealed

Standing Committee on Regulations a.nd Ordinances. Established in 1932, the

from 1 January 2005 and , as a consequence, the Statutory Rules series has ceased.

Committee's functions, which are set out in Standing Order 23, are to scrutinise

Regulations are now numbered as part of a new Select Legislative Instruments series and appear on the Register.

of Parliament, which are subject to disallowance or disapproval by the Senate and

Other types of legislative instruments are primarily drafted within government agencies and approved by Ministers or delegates. These instruments also appear on the Register. Subsection 38(1) of the Legislative Instruments Act 2003 (Cth) provides, that where an instrument is legislative in character, it 'shall be delivered to each House of

all regulations, ordinances and other in\truments made under the authority of Acts which are of a legislative character, to ensure that they comply with broad principles of personal rights and parliamentary propriety. The Committee has six members, three of whom are members of the government parties and three of whom are members of.non-government parties. In accordance with the Standing Orders, the Committee is chaired by a government Senator

the Parliament to be laid before each House within six sitting days of that House after

and is advised by an independent legal adviser, who examines and reports on

the registration of the instrument'. Under s 38(3), if any legislative instruments are not

every instrument of delegated legislation before the Committee, comments on all

laid before each House within that time, they cease to have effect.

correspondence received from Ministers, prepares special reports and attends Committee meetings. Standing Order 23(3) specifically requires the Committee to scrutinise each

CHANGES TO THE LEGISLATIVE INSTRUMENTS ACT 2003 (CTH)

instrument to ensure that it:

The Legislative Instruments Act 2003 (Cth), as noted above, commenced in 2003

•

and, as such, subordinate legislation would start sunsetting from early 2015, with the

•

is in accordance with the statute;

Office of Legislative Drafting and Publishing identifying numerous pieces of legislation

Measures) Act 2012. This amending Act was designed to:

does not unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial

due to sunset in 2016 and 2018. In order to deal with this, the Legislative Instruments Act 2003 was amended by the Legislative Instruments Amendment (Sunsetting

does not trespass unduly on personal rights and liberties;

or other independent tribunal; and •

does not contain matter more appropriate for parliamentary enactment.

21

22

ADMINISTRATIVE LAW GUIDEBOOK

CHAPTER 2: SUBORDINATE LEGISLATION

The Committee considers that questions involving government policy which underlies delegated legislation fall outside the scope of its scrutiny. Accordingly,

It should also be noted that the Committee continues to place on the internet its Delegated Legislation Monitors. These contain det~ of regulations and disallowable

the Committee does not consider policy issues which arise in delegated legislation.

instruments tabled in each sitting week. The Monitors provide information on the

However, it does not refrain from finding provisions contrary to its principles and

authority for the instrument, the date it is made, the date it is tabled in the Parliament

recommending their disallowance simply on the basis that they reflect government

and a short summary of its subject matter. The Monitors may also be found at the

policy.

Committee's home page.

The Committee has introduced a number of new procedures in order to streamline and make its work more open and transparent. First, the Committee agreed it would table in the Senate correspondence with

JUDICIAL REVIEW OF SUBORDINATE LEGISLATION

Ministers relating to its scrutiny of delegated legislation. Most ministerial responses

A piece of subordinate legislation may be ruled invalid by a superior court. As Chief

to concerns raised by the Committee are informative and instructive, and provide

Justice Holt pointed out in City of London v Wood (1702) 12 Mod 669:

detailed advice on particular instruments. The Committee is of the view that these

every by-law is a law, and as obliga~ry to all persons bound by it ... as any Act of

responses should be placed on the public record, unless a request is made and the

Parliament,

Committee agrees that a response should be treated confidentially. Correspondence

into question.

on~

with this difference, that a by-law is liable to have its validity brought

relating to instruments on which the Committee gives a notice of motion to disallow continues to be incorporated in Hansard on the day that notice of intention to withdraw the notice of motion is given by the Chair. Second, a Scrutiny of Disal/owable Instruments Alert is published on its website.

In the decision of the House of Lords in McEldowney v Forde (1971] AC 632, Lord Diplock enunciated a threefold task to determine whether a piece of subordinate legislation is valid:

,,.

There is encouraging evidence that this initiative has resulted in the receipt of

first to determine the meaning of the .words used in the Act of Parliament itself to

Ministerial responses within a time frame that avoids the need for the Committee to

describe the subordinate legislation ~hich that authority is authorised to make,

commence disallowance procedures.

secondly to determine the meaning of the subordinate legislation itself and finally to

Third, a Disallowance Alert is published on its website. This provides current information on instruments that are subject to a notice of motion to disallow. It records notices of motion given by the Committee as well as individual senators or

decide whether the subordinate legislation complies with that description.

'

A sample general regulation making power is as follows:

members and records action taken on those notices, including withdrawal, debate

The Governor may make regulations, not inconsistent with this Act, for or with respect

or disallowance. The Alert is updated each sitting day and may be found at the

to any matter that by this Act is required

Committee's home page.

necessary or convenient to be prescribed for carrying out or giving effect to this Act

Fourth, the Procedure Office has introduced half-day seminars on the scrutiny

@f'

permitted to be prescribed or that is

and, in particular, for or with respect to:

of primary and secondary legislation. Specifically, the seminars address the work of

(a)

the Senate Standing Committee for the Scrutiny of Bills and the Senate Standing

(b)

Committee on Regulations and Ordinances. The seminars are aimed at parliamentary staff with an interest in legislative scrutiny and also public servants responsible for preparing legislation, regulations and other disallowable instruments. At the beginning of 2013, the Committee introduced a sitting week report on its

A statutory rule will be 'inconsistent' with the statute under which it was purportedly made if it runs counter to the object, purpose, terms or effect of the statute: see Morton v The Union Steamship Company of New Zealand Ltd (1951 l 83

-

Monitor. Prior to 2013, the monitor provided only statistical and technical information

CLR 402 . A 'necessary or convenient' power is wider than a 'necessary' power: see

on instruments scrutinised by the Committee in a given period. This new Delegated

Gibson v Mitchell (1928) 41 CLR 275 . The word 'necessary' does not, in this

scrutiny of delegated legislation. This report is known as the Delegated Legislation

Legislation Monitor provides a 'real-time' resource for readers. In addition, this

context, mean 'absolutely essential': see Commonwealth v Progress Advertising &

monitor is complemented by an online Index of Matters which provides a list of those

Press Agency Co Pty Ltd (1910) CLR 457; but generally refers to something that

instruments about which the Committee has raised concerns and a description of

is 'reasonably required' or 'legally ancillary' to the accomplishment of a thing: see

those concerns. This Index is updated on the Thursday of each sitting week following

Attorney-General v Walker (1849) 156 ER 833.

the Committee's regular meeting.

23

24

ADMINISTRATIVE LAW GUIDEBOOK

In any event, the words 'necessary or convenient' are strictly ancillary and will not authorise the making of a statutory rule which purports to widen the objects

CHAPTER 2: SUBORDINATE LEGISLATION

Simple excess of power A statutory rule may be declared invalid if it:

or purposes of the enabling statute or otherwise alter or depart from the statutory purports to deal with some matter outside the scope of the enabling power; or deals

scheme or the legislative intention.

-

with a matter ostensibly within the scope of the enabling power but exceeds the prescribed limits of the power [see Shanahan v Scott (1956) 96 CLR 245] .

INVALIDITY OF SUBORDINATE LEGISLATION Scrutiny criteria which are used to invalidate subordinate legislation fall into two basic

A CASE TO REMEMBER

categories. The first is essentially concerned with protecting personal rights and liberties and the second is aimed at protecting and preserving the legislative power of

Carbine v Powell {1925) 36 CLR 88

the Parliament. The criteria can be listed as follows :

A regulation, made under the Wireless Telegraphy Act 1905 (Cth}. purported to prohibit the manufacture of equipment for use as broadcast receivers. The Act related to the establishment and operation of wireless telegraphy stations. The High Court, having found that the statute made no provisjpn relati°tg to the manufacture of such equipment, struck down the regulation for going beyond the field marked out by the Act.

•

non-compliance with formal requirements;

•

simple excess of power;

•

inconsistency or repugnancy;

•

improper purpose;

•

unreasonableness;

•

lack of proportionality;

•

uncertainty; and

•

sub-delegation.

The true nature and purpose of th§ poweI..lTlust be determined; a connection

b~en the subject of the power and that of the ru~ not necessarily sufficient: see Williams v Melbo(Jine Corporation (1g33) 4g CLR 142. In other words, to be properly incidental or ancillary to the purposes of the

The words 'carrying out or giving effect to [the] Act' confer the same power as the words 'necessary or convenient': see Clements v Bull (1g53) 88 CLR 572. As is often the case, where a general regulation-making power is supplemented by a number of specific heads of regulation-making power, whether or not using the words 'without limiting the generality of the foregoing provisions', a reviewing court:

empowering Act, a regulation-making f.lOWer must be able to be referenced to a specific provision in the Act: see Willocks v Anderson (1 g71) 124 CLR 2g3,

Inconsistency or @illl.9_nancy A statutory rule may be declared invalid on the ground that it is inconsistent with or repugnant to the statute under which 1t 1s made, another statute or the general law.

will interpret the specific powers in such a way that they do not exceed the general

See, generally, Morton v The Union Steamship Company of New Zealand Ltd (1951)

power; but will not read down the general regulation making power by reason only of

83 CLR 402.

the enumeration of the specific heads of power [see Ex parte Provera; Re Wilkinson (1952) 69 WN (NSW) 242] .

•

'repugnant' if it adds something inconsistent with the provisions of a statute

•

not 'repugnant' by reason only that it adds something not inconsistent with the

A statutory rule creating and authorising the creation of an offence is: creating the same offence; and

GROUNDS FOR INVALIDITY OF STATUTORY RULES A statutory rule may be declared invalid on any one or more of a number of ultra vi@§ grounds.

Non-compliance with formal requirements A statutory rule may be declared invalid if the formal requirements that have to be complied with when making the instrument, for example, publication in the Gazette, have not been followed: see O'Keefe v City of Caulfield [1g45] VLR 227.

statute under which it is made: see Gentel v Rapps [1 go2] 1 KB 160.

A CASE TO REMEMBER Willoughby Municipal Council v Homer (1926) 8 LGR 3 A by-law purported to impose a penalty on the owner of an animal found straying in a public place unless the owner proved that he or she had taken all reasonable means to prevent the animal from so straying. The by-law was declared invalid because it purported to reverse the onus of proof.

25

26

ADMINISTRATIVE LAW GUIDEBOOK

•

CHAPTER 2: SUBORDINATE LEGISLATION

A piece of subordinate legislation is:

the power was conferred , whether or not that purpose is set out in the empowering_

not 'repugnant' to the general law merely because it creates a new offence, or

statute. Any other purpose is an improper one.

--

---

-n-making tribunals

determination of some 'civil' disputes arising under private law, in which the government is not necessarily a party. (See Consumer, Trader and Tenancy Tribunal (CTTI).) The classes of civil disputes determined by tribunals vary from jurisdiction to jurisdiction but may include the following: -

J

accident compensation;

Administrative review tribunals

I

I

First tier

Second tier

>

-

insurance;

-

consumer credit;

-

building;

-

mining activities;

-

discrimination;

-

strata titles;

-

retirement villages;

-

caravan parks;

-

co-ownership; and

tribunals which review decisions of a primary decision-maker (first-tier review

-

residential and retail tenancy disputes.

tribunals) and those which review decisions of other review tribunals (second-tier

Many occupational and business licrnsing tribunals make primary decisions, while the AAT exercises solely merits review. A tribunal may have both functions: that is, it may make primary decisions and also review its own decisions or those of another agency. ~here

the tribunal reviews its own decisions, the review function may be give_QJo

a higher 'tier' or level of the tribunal. Within the category of review tribunals, ~ere is a further distinction between

review tribunals}. For example, appeals from certain decisions of Centrelink relating to pensions and benefits are heard by the Social Security Appeals Tribunal (first-tier

EXERCISES

2

Through research, track down the tribunals, in whatever form, which have jurisdiction in the above areas. Determine the type of tribunal in each case and ascertain the extent of the powers in each type.

review) and a further right of appeal lies to the AAT (second-tier review). The right to appeal from the first tier may be as of right or it may be restricted, for example, to cases where the first-tier panel made an error of law.

DE NOVO MERITS REVIEW TRIBUNALS Review tribunals review administrative decisions 'on the merits'. This indicates that

PRIMARY DECISION-MAKING AND REVIEW

the tribunals examine the merits of the matter in dispute rather than the lawfulness of

There is a functional distinction within administrative tribunals between those

the decisions under review.

that make

tive decisions in the first instance, primary decisions fo be

distinguished from primary decision-makers, an

--

made by other review tribunals.

ose that r~ prim~ry decisions

Merits review is a form of statutory appeal and appeals can be of varying scope. The fullest type of merits review is by way of rehearing de nova, in which the tribunal rehears the matter afresh, that is, not confined to the evidence or other

51

52

CHAPTER 3: MERITS REVIEW AND TRIBUNALS

ADMINISTRATIVE LAW GUIDEBOOK

material that was before the primary decision-maker, and may consider new

TYPES OF TRIBUNALS

submissions and arguments. The parties will usually present their evidence and submissions again to the tribunal.

Disciplinary tribunals hear complaints or proceedings brought against practitioners of

Whether a merits review is to be by way of rehearing de nova depends on the

-

-

relevant statute. A common kind of legislative provision in tribunal legislation is one ILke s 43 of the MT Act, which gives a tribunal power to exercise all the powers and

discreti~s of the primary decision-maker. This provision has been interpreted as_ indicating a legislative intention to provide for de nova merits review. See Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. If the tribunal is able to re-exercise the powers of the primary decision-maker, the question is what standards or criteria guide its review. In an early decision on the interpretation of the MT Act, a majority of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs held that the AAT was required to consider the material before it and arrive at the 'correct or preferable decision '.

'"""

53

'

a particular profession, occupation or industry and exercise 'quasi-judicial ' powers, for example, by suspending a right to practise, imposing a fine or administering a reprimand. The purpose of disciplinary proceedings is not to punish wrongdoers but to

...

regulate an activity in the public interest. The tripunals may operate under statute or as domestic tribunals exercising contractual powers and also licensinq and regulatory powers in respect of a particular industry or profession.

""-

Some tribunals, such as guardianship and mental health review tribunals, exercise a 'protective' jurisdiction. They are empowered to make orders to safeguard the interests of vulnerable persons inapecial need of the protection of the state. Examples of othef' tribunal tyr1es are given below.

This standard has been widely applied to other Commonwealth, state and territory tribunals which undertake de nova merits review. Some tribunal legislation expresses

TYPE OR PURPOSE OF TRIBUNAL

EXAMPLE

the standard as the 'correct and preferable' decision, but the meaning is the same.

Advisory

Patent and Trade Mark Attorneys Professional Standards Board

Quasi-legislative

Repatriation Medical Authority

Review

Statutory Fishing Rights Allocation Review Panel

Investigative and law enforcement

Australian Crime Commission

tribunal concludes that another decision is preferable.

Investigative, hold hearings and make recommendations

Independent Commission Against Corruption (ICAC)

TRIBUNALS HEARING CIVIL CLAIMS

Mediation and conciliation

The tribunal must reach a decision that is legally and factually correct; but if more

1

th~ decision is lawfully openJ it must reach the pre[erable decision.

The idea that merits review is a re-exercise of the powers and discretions of the primary decision-maker has the following implications. There is no presumption that the decision under review is correct. The tribunal is reviewing the decision and not the primary decision-maker's reasons. It does not have to find some legal flaw or factual error in the primary decisjon in order to overturn it. It is enough that the

•

The success of tribunals has led to demands for some kinds of civil claims arising

Human Rights and Equal Opportunity Commission

under private law to be removed from the jurisdiction of the courts and given to

Future rather than pre-existing rights

National Native Title Tribunal

tribunals, so that disputes can be determined more quickly, cheaply and informally.

Decide party/party disputes and smaller claims

CTTT

Legislation establishing civil tribunals often provides for procedures that are not dissimilar to those used by administrative tribunals. For example, civil tribunals may be released from complying with the rules of evidence and empowered to inform themselves as they see fit. In some instances, civil tribunals have been amalgamated under one structure, for example, the CTTT. See the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW).

DIVERSITY OF TRIBUNALS Apart from the difference in their subject area and the powers and functions given to them, tribunals are diverse in the way they are constituted and operate. •

They may be constituted for some or all matters by a single member sitting alone,

•

They may be constituted by so-called 'lawyer-generalists', or by members with

In other instances, a number of tribunals both civil and administrative in nature have been amalgamated under one divisional structure, for example, the Administrative Decisions Tribunal (ADT). Although the ADT is primarily administrative, it does have

or by a multi-member panel. specialist skills and knowledge in the subject matter that the tribunal deals

some civil functions such as retail leasing disputes. See the Administrative Decisions Tribunal Act 1997 (NSW).

).

54

CHAPTER 3: MERITS REVIEW AND TRIBUNALS

ADMINISTRATIVE LAW GUIDEBOOK

with. The 'lawyer-generalist' is more common in civil tribunals and the non-legal

still have to determine practical problems such as the sequence of receiving evidence

specialist is more common in administrative tribunals.

and what to do if it is unable to reach a clear c~lusion on an issue, but it is more

•

Their members may be full-time or part-time or a mixture of the two.

likely to find the answer to such questions in the statutes under which it is operating,

•

There may be only one party to the proceedings, for example in occupational and

or in considerations of natural justice or common sense, than in the technical rules

business licensing matters where the tribunal is the primary decision-maker.

relating to onus of proof developed by the courts. However these may be of assistance

• •

There may be two or more parties which is quite common in civil disputes and in

in some cases where the legislation is silent. Whether the principles adopted by such

merits review applications.

a tribunal, arising from these various considerations, are appropriately dealt with under

Matters may be dealt with at an oral hearing, which may be conducted in the

the heading 'onus of proof', becomes a matter of choosing labels. It would probably a~

presence of the parties or by video or telephone conferencing.

be more convenient to avoid using that expression in cases such

•

Matters may be dealt with 'on the papers' without an oral hearing .

There is certainly no legal onus of proof arising from the fact that this is an "appeals"

•

Tribunals that conduct oral hearings operate with varying degrees of formality,

tribunal, because the AAT is required, in effect, bys 43 of the MT Act, to put itself

depending on the nature of the proceedings. For example, disciplinary

in the position of the

proceedings involving serious allegations against a person, are often heard in

material

bef~e

administrato~n

t'!

As a general rule, a decision-maker must make decisions on the basis of material available at the time the decision is made. There may be found, in the subject-matter,

,,.

scope and purpose of nearly every statute conferring administrative power, an implication that the decision is to be .made on the basis of the most current material available to the decision-maker.

-.

The decision-maker is, therefore, bound to take into account as relevant considerations submissions which correct, update or elucidate material previously received. In Tarkine National Coalition Incorporated v Minister for Sustainability, Environment,

~E CRUCIAL FACTORS In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Justice Mason identified the following five factors as crucial to the proper application of the 'considerations' ground. This is generally regarded as the definitive exposition of the principles governing the 'considerations' ground. 1

2

Water, Population and Communities (2013] FCA 694, the Federal Court found that an approved conservation advice was

n~

contained in the various briefs provided

to the Minister and was not provided to the Minister at all for the purposes of making his decision on whether to approve the development of a mine. The Tarkine National Coalition submitted that the Minister did no more than pay lip-service to the obligations under the legislation and, because the Minister did not have the approved

The ground of failure to take into account irrelevant consideration can only be made

conservation advice before him, he cou ld not have had regard to it when making the

out if a decision-maker fails to take into account the consideration which he or she is bound to take into account in making that decision.

in different contexts, although generally the weight to be given to the factor is a

decision. The court held that the words 'have regard to' can have different meanings

What factors a decision-maker is bound to consider in making a decision is

matter for the decision-maker. The court found that the M inister was obliged to give

determined by construction of the statute conferring the discretion . If the statute

genuine consideration to the document and the actual approved conservation advice

expressly states considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.

needed to be considered. As a result, the court held that the Minister's failure to consider the approved conservation advice was fatal to the validity of his decision. See also Duffy v Oa Rin (2014] NSWCA 270 and SZSHK v Minister for Immigration

and Border Protection [2013] FCAFC 125.

153

154

CHAPTER 6: ULTRA VIRES

ADMINISTRATIVE LAW GUIDEBOOK

In Uelese v Minister for Immigration and Border Protection & Anor (2015] HCA 15,

A decision-maker must not exercise its powers 'unreasonably', in the sense that

the High Court held that the Administrative Appeals Tribunal (AAT) had erred in its

no reasonable decision-maker, acting within the~ur corners of its jurisdiction', could

application of the Migration Act 1958 (Cth) by failing to consider information adduced

ever have reached the decision in question: see Associated Provincial Picture Houses

during the cross-examination of a witness. The High Court held that the legislation

Ltd v Wednesbury Corporation (1948] 1 KB 223; Parramatta City Council v Pestel/

did not preclude the AAT from considering information which had not been presented

(1972) 128 CLR 305; Wheeler v Leicester County Council (1985] 2 All ER 1106;

by or on behalf of the applicant. See also Minister for Immigration and Border

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; and Legal &

Protection v WZAPN, WZARV v Minister for Immigration and Border Protection (2015]

General Life of Australia Ltd v North Sydney Municipal Council (1989) 68 LGRA 192.

HCA 22. Moreover, the decision-maker need not have actual knowledge of the additional

This doctrine has come to be known as '~ednesbury' unreasonableness. In Australia, courts have tended to prefer the formula 'devoid of any