Control of government action: text, cases and commentary [Fifth edition] 9780409348170, 0409348171, 9780409348187, 040934818X

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Control of Government Action Text, Cases & Commentary Fifth Edition

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Control of Government Action Text, Cases & Commentary Fifth Edition

Robin Creyke

LLB (Hons) (WA), LLM (ANU) Emeritus Professor, Australian National University

Matthew Groves

BA (Monash), LLB (Hons) (Monash), PhD (Monash) Professor of Public Law, La Trobe University

John McMillan

BA, LLB (ANU) Emeritus Professor, Australian National University

Mark Smyth

BA, LLB (Hons) (ANU), BCL (Oxon) Solicitor, Supreme Court of New South Wales

LexisNexis Butterworths Australia 2019

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LexisNexis AUSTRALIA LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au ARGENTINA LexisNexis Argentina, Buenos Aires AUSTRIA LexisNexis Verlag ARD Orac GmbH & Co KG, Vienna BRAZIL LexisNexis Latin America, Sao Paulo CANADA LexisNexis Canada, Markham, Ontario CHILE LexisNexis Chile, Santiago CHINA LexisNexis China, Beijing, Shanghai CZECH REPUBLIC Nakladatelství Orac sro, Prague FRANCE LexisNexis SA, Paris GERMANY LexisNexis Germany, Frankfurt HONG KONG LexisNexis Hong Kong, Hong Kong HUNGARY HVG-Orac, Budapest INDIA LexisNexis, New Delhi ITALY Dott A Giuffrè Editore SpA, Milan JAPAN LexisNexis Japan KK, Tokyo KOREA LexisNexis, Seoul MALAYSIA LexisNexis Malaysia Sdn Bhd, Petaling Jaya, Selangor NEW ZEALAND LexisNexis, Wellington POLAND Wydawnictwo Prawnicze LexisNexis, Warsaw SINGAPORE LexisNexis, Singapore SOUTH AFRICA LexisNexis Butterworths, Durban SWITZERLAND Staempfli Verlag AG, Berne TAIWAN LexisNexis, Taiwan UNITED KINGDOM LexisNexis UK, London, Edinburgh USA LexisNexis Group, New York, New York LexisNexis, Miamisburg, Ohio

ISBN:

9780409348170 (pbk). 9780409348187 (ebk).

© 2019 Reed International Books Australia Pty Limited trading as LexisNexis. First edition, 2005 (reprinted 2005, 2006, 2007 and 2008). Second edition, 2009. Third edition, 2012 (reprinted 2013 and 2014). Fourth edition, 2015 (reprinted 2017). Cover image: ‘Gordon Street, Milton, NSW’. Reproduction of the artwork is with the kind permission of the artist, Graeme Nilsson. 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 Adobe Caslon Pro and Trade Gothic. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

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Contents Prefacexvii Casesxix Statuteslxi

Part A

Accountability in an Administrative State

1

Chapter 1 Administrative Law — Theory, History and Context

3

Introduction 3 Dichotomies in Administrative Law Theory 4 Judicial regulation vs legislative/executive autonomy Intervention vs restraint: red light/green light Individualism vs collectivism Rule-based justice vs substantive justice Legal vs non-legal paradigms Managerialism and results vs governing by the rules Evolution vs prescription Public vs private

4 5 5 6 7 9 10 11

Accountability 14 Accountability as a legislative goal Perspectives on accountability Forms of accountability Political accountability Financial accountability Administrative law accountability Accountability through ethics and integrity

Part B

14 15 18 19 20 22 26

The Historical Foundations of Australian Administrative Law Accountability across the Public/Private Divide

30 41

The Framework for Challenging and Controlling Government Action

47

Chapter 2 The Framework for Judicial Review

49

Introduction 49 The Judicial Review Framework in Each Australian Jurisdiction 51 The legal basis for judicial review Judicial review at common law Judicial review under statutory schemes Indirect judicial review Commonwealth — Federal Court Administrative Decisions (Judicial Review) Act 1977 (Cth)

51 51 52 52 53 53

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Control of Government Action Judiciary Act 1903 (Cth) 55 Associated and accrued jurisdiction and the Federal Court of Australia Act 1976 (Cth) 57 Migration Act 1958 (Cth) 62 Other limitations on the Federal Court’s jurisdiction 65 Commonwealth — Federal Circuit Court 66 State and territory jurisdiction in federal matters 67 The High Court’s original jurisdiction 68 State and territory judicial review schemes 71 Australian Capital Territory 71 New South Wales 72 Northern Territory 72 Queensland 72 South Australia 73 Tasmania 73 Victoria 73 Western Australia 73 Integration of Australian judicial review schemes 74

Justiciability 75 Justiciability in the Australian federal system

Jurisdictional Limitations on Judicial Review

92

93

Jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) 93 ‘Decision’ and ‘conduct’ 95 ‘[D]ecision … of an administrative character’ 113 ‘[D]ecision … made … under an enactment’ 120 Jurisdiction under the Constitution s 75(v) and the Judiciary Act 1903 (Cth) s 39B 128 Jurisdiction under state and territory judicial review legislation 130

Judicial Review across the Public/Private Divide Government in perspective Non-government bodies Government commercial activity Private law functions of government

Chapter 3 Merits Review and Administrative Tribunals

131 131 132 148 150

153

Introduction 153 Administrative Tribunals — Their Nature, Role, Structure and Relationship to Government 155 Categorising administrative tribunals 155 State and territory tribunal systems 161 Appeal framework 164 Tribunals in the system of government 164 Administrative Review Council 169 The tribunal framework in each Australian jurisdiction 170 Commonwealth 170 Australian Capital Territory 172 vi

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Contents



New South Wales 172 Northern Territory 173 Queensland 174 South Australia 174 Tasmania 175 Victoria 175 Western Australia 176 Integration of Commonwealth, state and territory administrative review schemes 176 Appeals 177 Tribunal independence of government 178 Tribunal membership and panels 184

Merits Review — The Concept and Scope

185

Merits review — refining the concept Contemporaneous review The scope of the jurisdiction to undertake merits review Merits review and other forms of statutory appeal

198 200 204 206

Procedure and Evidence — Their Role in Merits Review by Administrative Tribunals

210

Tribunal procedures generally Evidence, fact-finding and onus of proof Adversarial vs inquisitorial adjudication Alternative (or assisted) dispute resolution (ADR)

211 215 223 225

Chapter 4 Other Methods of Administrative Law Review

227

Introduction 227 Ombudsman Offices — Their Structure, Role and Powers 228 Establishment of ombudsman offices in Australia The statutory framework for ombudsman offices Functions of the ombudsman

228 233 236

Ombudsman Offices — Special Issues

240

Ombudsman essentials and protections Recommendatory vs determinative powers Locating the ombudsman in the framework of government Litigation and the ombudsman

241 244 247 251

Human Rights Review

257

Defining human rights Australian human rights and anti-discrimination scheme State and territory human rights and anti-discrimination schemes Unlawful discrimination International bodies

Anti-Corruption and Integrity Commissions Public Interest Disclosures Alternative Dispute Resolution in Administrative Law

257 259 263 264 269

272 276 279

Mediation and other forms of alternative dispute resolution 279 Commonwealth 279 vii

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Control of Government Action States and territories Benefits of alternative dispute resolution Internal review Customer service charters or codes of conduct

281 281 282 283

Chapter 5 Constitutional Considerations

285

Introduction 285 Constitutional Principles 286 Rule of law 287 Separation of powers 291 Responsible government 292 Constitutionalism 293

Commonwealth Constitutional Provisions

294

The separation of powers — legislative power The separation of powers — judicial power Defining a Chapter III court Defining federal judicial power Conferral of functions upon federal administrative tribunals Conferral of functions upon federal executive agencies Conferral of functions upon Chapter III courts Appointment of Chapter III judges to tribunals and to discharge executive functions Federal jurisdiction

295 298 300 308 309 316 321 326 333

Chapter 6 Rule-Making and Control of Subordinate Legislation

341

Introduction — The Role and Importance of Subordinate Legislation The nature of subordinate legislation Forms of subordinate legislation and statutory instruments Regulatory impact and subordinate legislation Accountability and control of subordinate legislation

341 342 346 350 352

Public Consultation on Proposed Rule-Making

356

Statutory consultation requirements applying to subordinate legislation Sunsetting and repeal days

358 359

Publication of Subordinate Legislation Parliamentary Oversight Judicial Control

360 362 368

The Criteria for Lawful Decision-Making

373

Chapter 7 Foundation Concepts of Judicial Review

375

Part C

Judicial Review in Context Judicial Review — Concept and Scope

375 376

The legality/merits distinction — foundation cases Framing the grounds for judicial review — statutory codification, jurisdictional error or something else? Judicial substitution of a new decision

The Jurisprudential Foundation of Judicial Review

376 385 396

397

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Foundation theories: common law vs parliamentary intention Constitutional foundations

397 402

Related Concepts and Principles

405

Polycentricity 405 Discretion 407 ‘Self-executing rules’ and ‘ministerial acts’ 411 Automated decision-making 412

Judicial Deference and Restraint

417

Judicial deference to agency interpretation of legislation 418 Judicial deference to the position, skill or experience of the decision-maker 424 Judicial restraint in the scrutiny of administrative reasons 425 Standard or intensity of judicial review 428

Chapter 8 Unauthorised Decision-Making

433

Introduction 433 Unauthorised Decision-Making: General Principles 434 Identifying the source of legal authority for government action Foundation cases The presumption of regularity

434 436 444

Unauthorised Decision-Making: Relevant Principles of Statutory Construction

446

Statutory construction and public law The language of the statute The nature of the subject matter being regulated and interests apt to be affected Beneficial construction The nature of the power being exercised The nature of the decision-maker Interpretation statutes Extrinsic materials Common law approaches, assumptions and presumptions Implied incidental power The principle of legality and established freedoms and immunities Human rights considerations Pecuniary burdens and penalties Access to the courts Statutory phraseology cast in ‘state of mind’ and in ‘subjective’ terms The statutory requirement for ‘reasonable grounds’ to support a decision

Unauthorised Decision-Making: Subordinate Legislation Standard principles — special issues General test of invalidity The complement/supplement distinction The regulate/prohibit distinction The means/ends distinction

446 446 449 450 451 452 452 453 454 454 458 468 469 471 472 477

481 481 483 488 490 496

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Control of Government Action Unreasonableness as a test of invalidity Reasonable proportionality and the purpose/subject-matter distinction

Unauthorised Decision-Making: The Decision-Maker

497 498

508

Categories of authorised decision-maker Delegation and agency — some refinements and special issues Statutory modification Delegation of judicial and legislative power Improperly constituted body Avoiding the consequence of invalidity The de facto officer doctrine

508 519 519 520 520 522 523

Unauthorised Decision-Making: Other Special Issues

527

Recital of an incorrect statutory authority to take action Certainty as an implied statutory requirement

527 529

Chapter 9 Executive Power and Decision-Making

535

Introduction 535 Executive Power as a Source of Legal Authority for Government Action 536 Prerogative 536 Capacities 542 Statutory abrogation of the prerogative and of executive power 545 Executive power cannot be used for coercive or intrusive purposes 550 The constitutional ambit of Commonwealth executive power 554 Jurisdiction 563 Justiciability 565

Grounds of Review

565

Contractual exercises of non-statutory power Executive schemes and ombudsman oversight

569 571

Chapter 10 Statutory Purpose and Relevant Considerations

573

Introduction 573 Acting for an Unauthorised Purpose 574 Authorised statutory purpose Actual purpose of the decision Multiple purposes Statutory indeterminacy

574 581 581 594

Considering Irrelevant Matters

595

Criteria of relevance Matters that were considered Policy as an irrelevant consideration Evidence of an irrelevant consideration Effect of an unauthorised purpose or an irrelevant consideration

Failing to Consider Relevant Matters Obligation to consider Failure to consider Other issues

596 598 610 613 614

615 616 617 618

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Contents



Chapter 11 Natural Justice

643

Introduction 643 History of the doctrine Rationale for the doctrine When natural justice applies

646 647 649

The Hearing Rule — General Tests

655

Common law implication Legislative implication Universal implication Implication from multiple factors

656 656 657 659

The Hearing Rule — Special Factors

683

The right or interest affected by a decision Legitimate expectation Advisory reports and recommendations Statutory framework for making and reviewing decision Circumstances that can affect whether natural justice applies

The Hearing Rule — Content

683 686 693 694 707

712

Development of the principles 712 Specific principles concerning the content of the hearing rule 717 Outline of the content element of the hearing rule 717 The requirement to give prior notice, disclosure and an opportunity to comment 717 Who should conduct the hearing? 727 Conduct of the hearing: oral hearing or written submissions 728 Oral hearings: legal representation 728 Cross-examination 729 Duty to make inquiries or assist parties 730

The Rule Against Bias

730

Categories of bias 732 Decision-maker’s private communication with a party 734 Decision-maker is both prosecutor and judge 734 Decision-maker holds prejudicial views 735 Decision-maker rehears the same matter on appeal 736 Decision-maker has made interlocutory decisions in the same proceedings 736 Decision-maker exhibits animosity or partiality 736 Decision-maker has a close connection with a party 737 Other circumstances in which bias might arise 738 Test for prejudgment 739 Exceptions 742

Chapter 12 Executive Policies, Directions and Representations Introduction: The Role of Policy in Government Administration The meaning of policy Discretion vs policy: a clash of values?

The Legal Status of Executive Policies

767 767 768 770

773

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Control of Government Action The legal relevance of policies The weight or influence of policies: the non-fettering and non-abdication rules The legal consequence of ignoring, breaching or misconstruing a policy

773 774 789

Ministerial Directions and Other High Level Policies Statutory Directions Administrative Tribunals and Government Policy Representations and Estoppel Contractual Fetters on Government Authority

794 803 807 821 830

Chapter 13 Law, Fact and Evidence

835

Introduction 835 No Evidence 837 No evidence as a ground for judicial review at common law No evidence as a ground for judicial review under the ADJR Act Interrelationship between ‘no evidence’ and other grounds The scope of section 5(3)(a): statutory requirement The scope of section 5(3)(b): a non-existent fact Interrelationship between ‘no evidence’, statutory requirement for evidence, and reliance on non-existent fact Evidence, probative evidence and administrative fact-finding Probative evidence rule

Judicial Review of Fact-Finding Errors The jurisdictional (or objective) fact concept

Judicial Review of Error of Law and Jurisdictional Error

837 843 843 843 845 846 851 854

857 863

874

Certiorari for error of law on the face of the record Error of law under the ADJR Act Jurisdictional error

874 875 875

The Law/Fact Distinction as a Generic Legal Concept

877

Law/fact — general principles 877 Applying legislation to the facts 882 Fact-finding 883 Rule-stating 883 Rule application 885 Law/fact — a false dichotomy? 894

Review of Administrative Fact-Finding by Tribunals and Ombudsman Offices

Chapter 14 Failure to Perform a Statutory Duty

895

897

Introduction 897 Statutory Duty to Make a Decision or Exercise a Power 898 Statutory Duty to Provide a Service 903 Statutory Duty to Enforce and Implement the Law 908 Non-Judicial Enforcement of Statutory Duties 915 xii

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Contents

Chapter 15 Unreasonableness, Irrationality and Proportionality



919

Introduction 919 The Development of Wednesbury Unreasonableness 920 Irrationality, illogicality and unreasonableness

Illustrative Cases and Categories

924

937

Lack of plausible justification 938 Capricious use of power 941 Evidentiary weighting 943 Duty of inquiry 945 Unjustified unequal treatment 948 Proportionality 950

Statutory Unreasonableness

961

Meaning of ‘reasonable’ or ‘unreasonable’ 961 Bad faith and fraud 962 Fraud 962 Bad faith 964

Part D

Remedies for Unlawful Government Action

Chapter 16 The Consequences of Unlawful Decision-Making Theories of Invalidity — Options and Outcomes Absence of legal authority and the consequence of invalidity Separation of powers and the presumption of regularity

Breach of Associated Statutory Requirements Protection of an Invalidity by Parliament — Privative/Ouster/Preclusion Clauses Privative clauses and s 75(v) of the Constitution Privative clauses and the states Privative clauses — leading cases

Jurisdictional Error and Invalidity Severance and Invalidity

Chapter 17 Judicial Review Remedies

967 969 969 970 972

990 997 1001 1003 1004

1019 1033

1037

Introduction 1037 Certiorari 1043 Prohibition 1059 Mandamus 1060 Habeas Corpus 1068 Injunction 1075 Declaration 1080 Statutory Judicial Review Remedies 1087 Judicial Discretion to Refuse Relief 1092

Chapter 18 Standing

1099

Introduction 1099 The Role of Standing in Public Law Litigation 1100 xiii

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Control of Government Action The case for restricting standing in public law litigation The case against restrictive standing in public law litigation The interrelationship of standing and other public law principles

Standing — Foundation Cases

1100 1103 1106

1106

High Court decisions Other illustrative cases

1106 1112

Specific Remedies and The Principles of Standing

1121

Non-statutory remedies 1121 Declaration and injunction 1121 Mandamus 1122 Habeas corpus 1122 Certiorari and prohibition 1122 Remedies under the Administrative Decisions (Judicial Review) Act 1125 Other statutory phrases 1126 Standing in the Administrative Appeals Tribunal 1127 Standing in other merits review tribunals 1130 Open standing 1131

Special Issues

1133

The role of the Attorney-General Joinder and amicus curiae

Part E

Information and Access

1133 1134

1137

Chapter 19 Access to Information

1139

Introduction — The Adoption of Access to Information Legislation in Australia Access to information legislation in each Australian jurisdiction Philosophy and scope

Outline of the Commonwealth FOI Act

1139 1141 1142

1149

Legal right of access 1150 Objects 1152 Exemptions, conditional exemptions and public interest factors 1154 Other grounds for denying access 1155 Publication of information 1157 Correction of records 1157 Review, complaints and appeals 1158 Interaction with the Archives Act 1159 Operation of the FOI Act 1160

FOI Case Law

1161

Scope of the FOI Act — Governor-General and courts Exemption issues — frankness and candour claims Exemption issues — an applicant’s special interest in access

Chapter 20 Privacy

1161 1164 1166

1171

Privacy — Concept and Scope

1171

Statutory protection of privacy A privacy tort?

1172 1174

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Contents

Privacy Legislation in Australia



1178

Commonwealth Privacy Act 1178 Administration and enforcement of the Privacy Act by the OAIC and the Privacy Commissioner 1185 Notifiable data breaches 1187 Other Commonwealth legislation 1187 State and territory privacy legislation 1188 Australian Capital Territory 1188 New South Wales 1188 Northern Territory 1189 Queensland 1189 South Australia 1190 Tasmania 1190 Victoria 1190 Western Australia 1191

Illustrative Cases

1191

Chapter 21 Obtaining Reasons for Government Decisions Introduction — Reasons in Australian Administrative Law Statutory duty to provide reasons for decisions Common law position Special or exceptional circumstances at common law Natural justice exception Right of appeal exception Quasi-judicial nature of proceedings exception

Content of a Reasons Statement General considerations Scope of statutory duty to provide reasons

Legal Status of a Statement of Reasons

1195 1195 1197 1200 1206 1207 1208 1208

1209 1209 1211

1217

Remedying the absence of reasons 1218 Reasons created ex post facto 1219

Index

1221

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Preface

This book originated in lectures and course materials prepared by Robin Creyke and John McMillan in the College of Law at the Australian National University. Mark Smyth (who assisted in the third edition) became a co-author for the fourth edition, joined by Matthew Groves for the fifth edition. The three-year cycle of new editions points to the dynamic quality of Australian administrative law. The structure and style of the book have remained the same through five editions. Our foremost objective is to display the breadth and diversity of administrative law. One element is the numerous bodies to which a person aggrieved by government action can turn for assistance or independent review — notably courts, tribunals, complaint and investigation agencies — aided by mechanisms such as internal review and alternative dispute processes. Next are the principles those bodies apply and the remedies they provide to correct erroneous administrative action. This is done in a setting of constitutional rules, common law traditions, public law principles and executive policies that guide how official power should be exercised. Those aspects of administrative law are not uniform across Australia, and state and federal differences are noted. A key structural feature of this book is that the criteria for review are dealt with separately in Part C of the book, while the framework of administrative law bodies is covered in Part B and judicial review remedies in Part D. This structure highlights that review criteria such as natural justice and error of law are applied and developed by all review bodies including courts, tribunals, ombudsman offices and other review agencies. Another feature of this book is that it contains more textual discussion and analysis than is common for a casebook. The administrative law framework is complex, and generic legal principles must be applied in diverse areas of government decision-making such as taxation, immigration, heritage protection, urban planning, and foreign relations, and at differing levels of government from governors and ministers to lower level officials. The book is widely used as a reference book in government and legal practice, because of this extended discussion of issues. Changes and refinements to all areas of administrative law are noted in this fifth edition. Significant doctrinal themes that have emerged since the last edition include: the reasonableness pendulum has swung back from the position reached in Li; the ascendancy of jurisdictional error continues unabated, though faces criticism and questioning from leading jurists and academics; tribunal amalgamation across the Australian federation faces a new barrier in the High Court’s decision in Burns v Corbett; and recognition grows of the contribution that soft law can make to structuring decision-making and reducing regulatory burdens. At the institutional level, ombudsman offices acquire ever more functions to enable more strategic intervention to safeguard vulnerable communities; anti-corruption institutions have become more embedded in the structure of Australian government; information regulation (privacy and access to information laws) has been extended, but not without controversy; and there is strengthened interest in viewing these non-judicial mechanisms as elements of a xvii

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Control of Government Action

national integrity framework. These developments point to continuing vigour and development in Australian administrative law. We owe a debt to numerous colleagues, students and friends who have helped shape the ideas presented in this book; our gratitude to those listed in earlier editions is unchanged. We have benefited greatly from the professional LexisNexis Butterworths team. Special thanks are due to our patient and understanding commissioning editors — Geraldine MacLurcan, and the indefatigable and supportive Jocelyn Holmes — and to our copy editors — initially Emille Boulot and later Linda Nix AE, who appropriately has a ‘golden orb’ business title! We are always delighted to receive comments and suggestions on this book from students, teachers, practitioners and readers. The administrative law system is stronger when it captures the ideas of those who work within it. Our hope is that this book will be part of that important dialogue. Robin Creyke Matthew Groves John McMillan Mark Smyth September 2018

xviii

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Cases References are to paragraph numbers Case extracts are in bold

Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313 .... 18.3.12 Accident Compensation Commission v Croom [1991] 2 VR 322 .... 19.2.11 Adam, Re (1837) 1 Moo PCC 460; 12 ER 889 .... 9.2.21C Adams and the Tax Agents’ Board, Re (1976) 1 ALD 251 .... 3.3.13, 3.3.21, 5.2.24, 5.3.31, 5.3.32C, 8.2.12 Adams v Minister for Immigration and Multicultural Affairs (1997) 70 FCR 591 .... 2.3.14, 12.2.19 ADCO Constructions Pty Ltd v Goudappel (2014) 308 ALR 213 .... 6.1.5, 8.3.11, 8.4.11 Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100 .... 2.4.40C Agricultural Societies Council of NSW v Christie (2016) 340 ALR 560 .... 2.5.6, 17.2.11 Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539 .... 13.5.26 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11 .... 2.4.16C, 11.3.2, 11.3.4C, 11.3.17, 11.3.24, 11.3.30C, 11.3.33C, 13.4.3, 17.2.5, 17.2.13C, 17.2.15, 17.3.3, 17.7.3, 17.7.6C, 17.7.8 — v The Ombudsman (1988) 17 NSWLR 276 .... 4.3.7, 4.3.20 Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 .... 17.6.2 Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 .... 13.2.26C, 13.3.4 ALA Schechter Poultry Corp v United States 295 US 495 (1935) .... 5.3.8 ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 .... 11.5.10

3D Scaffolding Pty Ltd v Commissioner of Taxation (2008) 105 ALD 475 .... 13.5.19

A

A v Corruption and Crime Commissioner (2013) 306 ALR 491 .... 10.3.5 — v Hayden (No 2) (1984) 156 CLR 532; 56 ALR 82 .... 5.2.6, 8.2.6, 8.2.8C, 9.2.13 AB Oxford Cold Storage Co Pty Ltd v Arnott (2005) 11 VR 298 .... 8.5.3, 8.5.12 AB v State of Western Australia (2011) 244 CLR 390 .... 8.3.11, 13.5.25 ABAR15 v Minister for Immigration and Border Protection (No 2) (2016) 242 FCR 11 .... 15.2.10 Abbasi v Secretary of State [2002] EWCA Civ 1598 .... 17.5.5C Abboud v Minister for Immigration and Border Protection [2018] FCA 185 .... 15.3.16 Abebe v Commonwealth (1999) 197 CLR 510 .... 2.2.26, 2.3.9C, 2.3.19, 5.3.55, 5.3.60, 16.4.1 Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 39 ALD 570; 134 ALR 238 .... 4.3.21, 4.3.23C, 4.3.26 Aboriginal Community Fund Pty Ltd v Chief Executive Centrelink (2016) 153 ALD 104 .... 2.4.58, 21.3.7 Aboriginal Development Commission v Hand (1988) 15 ALD 410 .... 12.4.6 Aboriginal Land Council (NSW) v Aboriginal and Torres Strait Islander Commission (1995) 38 ALD 573 .... 15.3.5 Aboriginal Legal Service Ltd v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 565 .... 12.4.6 Abrams and Minister for Foreign Affairs and Trade, Re (2007) 98 ALD 438 .... 12.2.8 xix

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Control of Government Action

Al-Kateb v Godwin (2004) 219 CLR 562 .... 5.3.38, 8.3.28 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 .... 8.3.6 Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 115 NTR 25 .... 8.3.25 Alister v R (1984) 154 CLR 404 .... 2.3.14 Allan v Transurban City Link Ltd (2001) 208 CLR 167 .... 18.1.1, 18.4.13 Alliance to Save Hinchinbrook Inc v Cook [2007] 1 Qd R 102 .... 10.4.29, 18.3.12 Ambrey v Oswin [2005] QCA 112 .... 11.5.25 AMF15 v Minister for Immigration and Border Control (2016) 241 FCR 30 .... 11.4.33 Anderson Stuart v Treleaven (2000) 49 NSWLR 88 .... 21.1.32 Anderson v Charles Sturt University (2003) NSWADT 121 .... 19.2.26 Andrews v Mitchell [1905] AC 78 .... 11.4.11 Anghel and Minister for Transport (No 1), Re [1995] 1 Qd R 465 .... 2.4.61 Animal Liberation Ltd v Department of Environment and Conservation [2007] NSWSC 221 .... 18.3.12 Animals Angels’ eV v Secretary, Department of Agriculture (2014) 228 FCR 35 .... 18.3.8, 18.3.13 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 .... 16.3.7, 16.4.5, 16.4.17C Annetts v McCann (1990) 170 CLR 596; 21 ALD 651; 97 ALR 177 .... 11.1.20C, 11.2.19C, 11.3.2, 11.3.3C, 11.3.4C, 11.3.5, 11.3.17, 11.3.30C Ansell v Wells (1982) 43 ALR 41 .... 11.4.11, 11.4.14 Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; 17 ALR 513 .... 10.3.23, 12.1.6, 12.2.20, 12.3.4C, 12.4.2, 12.7.2, 12.7.4C — v Minister for Aviation (1987) 72 ALR 469 .... 7.5.28 — v Wraith (1983) 48 ALR 500 .... 21.2.6, 21.2.7 Anti-Discrimination Commissioner v Acting Ombudsman [2002] Tas SC 24 .... 4.3.28 — v — (2003) 11 Tas R 343 .... 2.4.44, 4.3.28 Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2008) 166 FCR 54 .... 10.3.25, 13.3.15

xx

Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231 .... 11.3.17 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 .... 5.2.11 Appellant WABZ v Minister for Immigration and Multicultural Affairs (2004) 134 FCR 271 .... 11.4.32 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 .... 8.3.20, 8.3.39 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; 87 ALD 512; 222 ALR 411; 80 ALJR 228 .... 10.3.8, 11.4.15, 11.4.16C, 11.4.23 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 .... 13.3.8 Applicants A1 & A2 v Brouwer (2007) 16 VR 612 .... 3.3.46 Applicants M16 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 148 FCR 46 .... 11.4.31 Application for Bail by Isa Islam, Re (2010) 4 ACTLR 235; 175 ACTR 30 .... 4.4.21 Applied Medical Australia Pty Ltd v Minister for Health (2016) 246 FCR 555 .... 2.4.42 ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 .... 10.4.15 Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 315 ALR 44; [2014] HCA 50 .... 18.1.2, 18.3.15, 18.3.16C, 18.4.11 ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (NSW) (1986) 10 FCR 197 .... 10.4.28 Arnold v Minister Administering the Water Management Act 2000 (2007) 157 LGERA 379 .... 2.2.37 Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37 .... 10.2.13C ASP15 v Commonwealth of Australia (2016) 248 FCR 372 .... 14.2.9, 17.4.14 Assa Abloy Aust Pty Ltd v Australian Lock Co Pty Ltd (2005) 147 FCR 126 .... 18.3.15 Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38 .... 5.3.17 Associated Provincial Picture Houses Ltd v Wednesbury [1948] 1KB 223 .... 2.1.1, 2.3.4E, 2.5.15C, 3.4.14, 4.2.14, 6.1.2,

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Cases 7.2.2, 7.2.3C, 7.2.6, 7.2.7C, 7.2.8–7.2.11, 7.2.18C, 7.3.4E, 7.4.11, 7.5.23, 7.5.24, 7.5.27, 10.4.13C, 11.1.4, 11.4.35, 12.2.3, 13.2.9, 13.3.4, 13.3.13C, 15.2.1–15.2.3, 15.2.6–15.2.9, 15.2.14, 15.2.17C, 15.2.18C, 15.2.21C, 15.3.7C, 15.3.9, 15.3.11, 15.3.13, 15.3.15, 15.3.17, 15.3.24, 15.3.26, 15.3.27, 15.3.29C, 15.3.31, 15.3.34E, 15.3.41, 15.4.1–15.4.3 Aston and Secretary, Department of Primary Industry, Re (1985) 8 ALD 366 .... 12.5.12 Attorney-General v Bastow [1957] 1 QB 514 .... 17.6.6C — v — (1922) 91 LJKB 897 .... 8.3.43C — v Colchester Corporation [1955] 2 QB 207 .... 14.3.6 — v De Keyser’s Royal Hotel Ltd [1920] ACT 508 .... 9.2.14 — v Foster (1999) 84 FCR 582 .... 8.5.13 — v Great Eastern Railway Co [1880] 5 App Cas 473 .... 8.3.23 — v Harris [1961] 1 QB 74 .... 17.6.6C — v Kehoe [2001] 2 Qd R 350 .... 21.1.27 — v Mayor, &c, of Galway (1829) 1 Mol 95 .... 17.6.7C — v Premier Line Ltd [1932] 1 Ch 303 .... 17.6.6C — v Sharp [1931] 1 Ch 121 .... 17.6.6C — v Smethwick Corporation [1932] 1 Ch 562 .... 8.3.25 — v Smith [1958] 2 QB 173 .... 17.6.6C — v 2UE Sydney Pty Ltd (2006) 97 ALD 426; 226 FLR 62 .... 3.3.21 — v Wilts United Dairies Ltd (1921) 37 TLR 884 .... 8.3.42, 8.3.43C, 8.3.44, 8.3.45 Attorney-General (Canada) v Cain [1906] AC 542 .... 9.2.21C Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 .... 5.3.27 — v Breckler (1999) 197 CLR 83 .... 5.3.30, 18.5.7 — v Dreyfus (2016) 242 FCR 472 .... 19.2.20 — v The Queen [1957] AC 288 .... 5.3.10C Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 .... 11.2.16C, 11.3.7 Attorney-General (NSW) v Brewery Employees Union (NSW) (1908) 6 CLR 469 .... 2.3.9C, 18.5.1 — v Dawes [1976] 1 NSWLR 242 .... 18.4.6C — v Quin (1990) 170 CLR 1; 93 ALR 1 .... 5.2.14, 5.2.24, 5.3.45, 7.2.2, 7.2.5C, 7.2.6, 7.2.8, 7.3.12, 7.5.8, 7.5.10C, 7.5.20C, 7.5.22, 11.3.7, 11.3.8, 11.3.9C, 11.3.10, 12.6.5, 12.6.8C, 15.2.9, 15.2.21C

xxi



— v World Best Holdings Ltd (2005) 63 NSWLR 557 .... 8.5.17 Attorney-General (NT) v Emmerson (2014) 307 ALR 174 .... 5.3.17 — v Hand (1988) 16 ALD 318 .... 7.2.26, 13.3.4 — v Minister for Aboriginal Affairs (1987) 16 FCR 267 .... 2.4.3 — v Olney J; Ex parte Northern Land Council (FCA, 28 June 1989, unreported) .... 10.2.14 Attorney-General of Canada v Inuit Tapirisat of Canada (1980) 115 DLR (3d) 1 .... 11.2.18C Attorney-General of WA v Marquet (2003) 217 CLR 545 .... 2.3.13 Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; 295 ALR 197; [2013] HCA 3 .... 5.2.9, 6.5.1, 8.2.11, 8.3.6, 8.3.14, 8.4.5, 8.4.24, 8.4.26, 8.4.29C, 8.4.30, 8.5.12, 15.2.5, 15.3.32 Attorney-General (Vic) v The Commonwealth (1935) 52 CLR 533 .... 8.3.27C Attorney-General (Victoria) v Glass [2016] VSCA 306 .... 4.3.19 Attorney-General’s Department v Cockroft (1986) 10 FCR 180 .... 3.4.19 Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW (2010) 56 MVR 108 .... 11.4.20 Australian Broadcasting Commission Staff Association v Bonner (1984) 2 FCR 561 .... 7.5.8, 15.4.3 Australian Broadcasting Corporation and Civil Aviation Safety Authority [2015] AICmr 21 .... 19.3.4 Australian Broadcasting Corporation and Herald and Weekly Times Pty Ltd, Re (2012) 132 ALD 668 .... 19.2.6 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 .... 1.5.7, 17.6.2, 17.6.9, 20.1.10 — v O’Neill (2006) 229 ALR 457 .... 17.6.9 — v Redmore Pty Ltd (1989) 166 CLR 454; 84 ALR 199 .... 16.2.3, 16.2.5, 16.2.10C, 16.2.11C Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11 .... 2.3.20, 2.4.7, 2.4.8C, 2.4.9–2.4.12, 2.4.14C, 2.4.15, 2.4.16C, 2.4.21, 2.4.22C, 2.4.31C, 2.4.50C, 2.5.12C, 10.3.6, 10.3.13, 11.1.7C, 11.5.35C, 13.2.4, 13.2.11, 13.2.14, 13.2.25C, 13.2.26C, 13.2.27C, 13.2.32, 13.3.3C, 13.3.4, 13.3.5C, 13.3.6, 13.3.7, 13.4.7

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Control of Government Action Australian Postal Corporation v Dao (No 2) (1986) 66 NSWLR 497 .... 5.3.19 — v D’Rozario (2014) 222 FCR 303 .... 13.2.9 — v Forgie (2003) 130 FCR 279; 76 ALD 578 .... 2.4.27, 2.4.33, 7.4.16 — v Sinnaiah (2013) 213 FCR 449 .... 5.2.9, 8.3.9 Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 .... 2.3.9C Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 .... 10.4.4, 13.2.15, 13.2.21, 15.3.8 Australian Securities and Investments Commission and Sweeney [2013] AICmr 62 .... 19.2.30 Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 .... 2.2.18, 2.2.23, 2.2.45, 2.2.58, 2.4.59 — v Loiterton (2000) 101 FCR 370 .... 8.5.8 — v McCormack [2017] FCA 672 .... 15.3.5 — v PTLZ (2008) 48 AAR 559 .... 13.5.5 — v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 .... 13.5.8C Australian Woollen Mills Pty Ltd v The Commonwealth 93 CLR 546 .... 9.2.30C Australian Workers’ Union v Bowen (No 2) (1948) 77 CLR 601 .... 13.2.30 Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126 .... 10.2.22 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 .... 8.3.52, 13.2.8, 13.5.12, 15.2.17C, 21.3.4 AW v Vice Chancellor, University of Newcastle [2008] NSWADT 86 .... 20.3.3 AZ4FB v Minister for Immigration and Border Protection (2015) 68 AAR 171 .... 15.2.10 AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451; 147 ALD 121 .... 10.4.6, 10.4.8, 10.4.9, 21.3.3 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 .... 13.5.10, 13.5.12, 13.5.22C, 13.5.28

— v Saatchi and Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 .... 8.6.2C, 8.6.3 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 317 ALR 279; 89 ALJR 382; [2015] HCA 7 .... 4.3.26, 5.3.34, 5.3.37C, 8.3.37 Australian Communist Party v Commonwealth (1951) 83 CLR 1 .... 5.2.1, 5.3.32C, 8.2.9C, 10.2.13C Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; 28 ALR 257 .... 17.7.6C, 18.1.2, 18.2.1, 18.3.1–18.3.3, 18.3.4C, 18.3.5C, 18.3.6C, 18.3.8, 18.4.2, 18.4.6C, 18.4.23C, 18.5.2 Australian Conservation Foundation v Environment Protection Board (1983) 1 VR 385 .... 18.4.13 — v Forestry Commission (1988) 19 FCR 127 .... 10.3.8, 10.4.4 — v Minister for Resources (1989) 19 ALD 70 .... 18.3.11C Australian Crime Commission v AA Pty Ltd (2006) 149 FCR 540 .... 8.3.7 — v NTD8 (2009) 177 FCR 263 .... 10.4.8 Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 .... 8.3.5, 8.3.7 Australian Electoral Commission, Re; Ex parte Kelly (2003) 198 ALR 262 .... 17.1.2 Australian Finance Direct Ltd v Director of Consumer Affairs Victoria (2007) 234 CLR 96 .... 8.3.6 Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 .... 13.5.16 Australian Foreman Stevedores Assn v Crone (1989) 20 FCR 377 .... 18.1.2, 18.3.15, 18.3.16C Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 .... 13.5.26 Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124; 12 ALD 138; 71 ALR 73 .... 18.1.2, 18.3.8, 18.3.9C Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council (2000) 101 IR 143 .... 10.2.21 Australian National University v Burns (1982) 43 ALR 25; 64 FLR 166 .... 2.4.45, 2.4.50C, 2.4.53 — v Lewins (1996) 68 FCR 87 .... 2.4.48, 2.4.50C

B

‘BA’ and Merit Protection Commissioner [2014] AICmr 9 .... 19.3.6C, 20.3.2 Baini v R (2012) 246 CLR 469 .... 8.3.6 Baker and Department of Immigration, Re (1995) 37 ALD 744 .... 12.15.13 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 .... 21.1.22 xxii

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Cases Baldwin v Everingham [1993] 1 Qd R 10 .... 2.3.8, 2.5.10 Balmain Association Inc v Planning Administrator (1991) 25 NSWLR 615 .... 8.5.24 Balog v Independent Commission Against Corruption (1990) 169 CLR 625 .... 4.3.26 Bancoult v Secretary of State for Foreign and Commonwealth Affairs [2008] 3 WLR 955 .... 11.3.10 Bank Mellat v Shayler [2003] Her Majesty’s Treasury (No 2) [2014] AC 700 .... 15.3.28, 15.3.29C Bank of New South Wales v Commonwealth (1948) 76 CLR 1 .... 2.2.43, 16.5.3, 16.5.6C Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222 .... 11.2.17C Bare v Independent Broad-Based AntiCorruption Commission (2015) 48 VR 129; [2015] VSCA 197 .... 4.5.4, 16.3.7 Barnett v Minister for Housing and Aged Care (1991) 31 FCR 400 .... 17.4.7 Barratt v Howard (2000) 96 FCR 428 .... 8.3.14, 11.1.21 Barrick Australia v Williams (2009) 74 NSWLR 733 .... 13.3.16 Barton v Commonwealth (1974) 131 CLR 477 .... 9.2.5, 9.2.13, 9.2.15, 9.2.21C, 9.2.25 Bartz v Department of Corrective Services [2002] 2 Qd R 114 .... 2.3.17 Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; 155 ALR 684 .... 14.4.7, 17.6.1, 17.6.4, 17.6.5, 17.6.7C, 17.6.8, 17.7.6C, 18.1.2, 18.2.3C, 18.3.7, 18.3.15, 18.3.16C, 18.4.6C, 18.5.2 Bates v Lord Hailsham [1972] 2 All ER 1019 .... 11.2.16C Baxter v Ah Way (1909) 8 CLR 626 .... 5.3.5C, 6.1.4 — v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 .... 3.2.6C Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 .... 21.3.6 Becker and Minister for Immigration and Ethnic Affairs, Re (1977) 1 ALD 158 .... 3.2.18, 12.5.8, 12.5.9C Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 .... 17.5.8



Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450 .... 8.5.10 Beneficial Finance Corp Ltd v Commissioner of Australian Federal Police (1991) 31 FCR 523 .... 8.6.4 Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334 .... 8.4.2 — v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 .... 17.5.8 Beyazkilinc v Baxter Immigration Centre (2006) 155 FCR 465 .... 2.2.19, 2.2.22 BHP Billiton Direct Reduced Iron Pty Ltd v Duffus, Deputy Commissioner of Taxation (2007) 99 ALD 149 .... 10.3.22, 12.2.4 Bidjara Aboriginal Housing and Land Co Ltd v Indigenous Land Corporation (2001) 106 FCR 203 .... 14.2.9 Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 60 FCR 85 .... 18.3.15 Binse v Williams [1998] 1 VR 381 .... 8.3.25 Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 .... 13.5.8C Birkdale District Electric Supply Co Ltd v Southport Corporation [1926] AC 355 .... 12.7.4C BKL15 v Minister for Immigration and Border Protection [2016] FCA 802 .... 21.2.16 Blackpool Corporation v Locker [1948] 1 KB 349 .... 6.1.17 Bloomfield & Sub-collector of Customs (ACT), Re (1981) 4 ALD 204 .... 3.3.27 Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (2008) 167 FCR 463 .... 10.4.4 Blyth District Hospital Inc v South Australian Health Commission (1988) 49 SASR 501 .... 2.3.16 BNH16 v Minister for Immigration and Border Protection [2017] FCAFC 109 .... 15.2.10 Board of Education v Rice [1911] AC 179 .... 11.2.16C, 11.4.3 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; 234 ALR 114 .... 2.2.28, 2.2.43, 5.3.56, 5.3.57C, 5.3.58C, 5.3.59, 5.3.61, 15.4.3, 16.1.11, 16.3.7–16.3.9, 17.1.7, 17.1.15 xxiii

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Boehringer Ingelheim Pty Ltd v Department of Health and Ageing [2005] FCA 284 .... 17.7.8 Boensch v Donovan Electrical Services Pty Ltd [2014] NSWSC 1297 .... 11.4.35 Bond v The Queen (2000) 201 CLR 213 .... 8.5.25 Booth v Bosworth [2000] FCA 1878 .... 18.4.13 — v Dillon (No 1) [1976] VR 291 .... 4.3.24 — v — (No 2) [1976] VR 434 .... 4.3.21, 4.3.22C, 4.3.24, 4.3.25 — v — (No 3) [1977] VR 143 .... 4.3.24 Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 .... 17.9.7C Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537 .... 10.2.4, 10.3.13, 10.3.24 Botany Council v Ombudsman (1995) 37 NSWLR 357 .... 4.3.28 Bowditch v Balchin (1850) 5 Ex 378 .... 8.3.49 Boyce v Owen [2000] NTCA 7 .... 4.3.27 — v Paddington Borough Council [1903] 1 Ch 109 .... 18.3.4C — v — [1903] 2 Ch 556 .... 18.2.1 Boyle v Charge (1987) 12 ALD 555 .... 8.2.2 Bradley v Commonwealth (1973) 128 CLR 557 .... 9.2.21C, 14.3.1, 14.3.2C Braemar Power Project Ltd v The Chief Executive, Department of Mines and Energy [2008] QSC 241 .... 2.4.42 Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31; 38 ALD 251 .... 17.9.5, 17.9.6C Brambles Holdings Ltd v Federal Commissioner of Taxation (1977) 138 CLR 467 .... 2.4.28 Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245; 37 ALD 340; 127 ALR 1 .... 4.4.9, 4.4.12, 5.3.22, 5.3.25, 5.3.28C, 5.3.29, 5.3.30 Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404; 38 ALR 93 .... 11.2.15, 12.2.1, 12.2.4, 12.2.11C, 12.3.2, 12.3.5C, 12.4.2 Brelin v The Minister for Immigration and Ethnic Affairs (Wilcox J, 14 May 1987, unreported) .... 10.4.22C Brennan v Comcare (1994) 50 FCR 555 .... 8.3.12 Brett Goyne and Australian National Audit Office [2014] AICmr 9 .... 19.2.6 Brewster’s Application, Re [2017] 1 WLR 519 .... 21.3.6

BRF038 v Republic of Nauru (2018) 91 ALJR 1197 .... 11.4.17 Briginshaw v Briginshaw (1938) 60 CLR 336 .... 3.4.13C, 3.4.20, 3.4.21, 3.4.22C, 8.3.52, 13.2.29, 15.4.4 Bristol-Myers Squibb Australia Pty Ltd v Minister for Health and Family Services (1997) 49 ALD 240 .... 12.6.9 Bristol-Myers Squibb Pharmaceuticals Pty Ltd v Minister for Human Services and Health (1996) 42 ALD 540 .... 12.6.9 British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 .... 11.5.19 British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 .... 11.5.11, 11.5.22, 11.5.24, 11.5.26, 11.5.33C British Broadcasting Corporation v Johns [1965] Ch 32 .... 9.2.5 British Imperial Oil Co v Federal Commissioner of Taxation (1925) 35 CLR 422 .... 5.3.5C British Oxygen Co Ltd v Minister of Technology [1971] AC 610 .... 12.2.12C, 12.2.14C, 12.2.15C, 12.4.4C, 12.5.5C Broadbridge v Stammers (1987) 16 FCR 296 .... 12.2.22C, 16.2.10C Brock v Deputy Child Support Registrar (1995) 57 FCR 538 .... 17.7.8 Bromet v Oddie [2003] FCAFC 213 .... 12.1.10 Bromley London Borough Council v Greater London Council [1983] 1 AC 768 .... 10.3.20, 15.3.3, 15.3.23C Bropho v Western Australia (1990) 171 CLR 1 .... 5.2.6, 8.3.21 Brown v Lizars (1905) 2 CLR 837 .... 9.2.21C — v Tasmania (2017) 91 ALJR 1089 .... 7.58 Browne v Dunn (1893) 6 R 67 .... 3.4.21, 3.4.22C, 13.2.29 Brownells Ltd v Ironmongers’ Wages Board (1950) 81 CLR 108 .... 10.2.1, 10.2.9, 10.2.13C Browning v Water Conservation & Irrigation Commission (1947) 47 SR (NSW) 395 .... 10.3.10C Bruce v Cole (1998) 45 NSWLR 163 .... 13.3.7 Brutus v Cozens [1973] AC 854 .... 13.5.21C, 13.5.24 BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246 .... 13.5.19 Buck v Bavone (1976) 135 CLR 110; 9 ALR 481 .... 8.3.51, 8.3.52, 10.3.5, 10.3.11, 10.4.5, 17.7.7C

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Cases



Calman v Commissioner of Police (1999) 59 ALD 366 .... 3.3.47 Calvin v Carr [1979] 1 NSWLR 1; [1980] AC 574 .... 11.3.21, 11.3.30C, 11.3.32C, 16.1.17C Cameron v Hogan (1934) 51 CLR 358 .... 2.5.4, 2.5.5 Campbell v MGN Ltd [2004] 2 AC 457 .... 20.1.11 Campbelltown City Council v Vegan (2006) 67 NSWLR 372 .... 21.1.30, 21.1.32 Canada (Attorney-General) v Mossop [1993] 1 SCR 554 .... 7.5.7 Canberra Tradesmen’s Union Club Inc v Commissioner for Land and Planning (1998) 147 FLR 291 .... 18.3.15 — v — (1999) 43 ALD 639 .... 18.4.13 Canns Pty Ltd v Commonwealth (1946) 71 CLR 210 .... 8.6.12 Canwest Global Communications Corporation v Treasurer of the Commonwealth (1997) 147 ALR 509 .... 21.1.28 Carbines v Powell (1925) 36 CLR 88 .... 8.3.26, 8.4.13C Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540 .... 11.5.13 Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 .... 2.2.18 Carlton Football Club [1998] 2 VR 546 .... 2.5.15C Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 .... 8.5.4, 8.5.5C, 8.5.6C, 9.3.10 Carmody, Re; Ex parte Glennan (2000) 173 ALR 145 .... 17.9.9 Carmody, Re; Ex parte Glennan (2003) 198 ALR 259 .... 2.4.59 Carmody v Mackellar (1997) 76 FCR 115 .... 15.4.7 Carter v Minister for Aboriginal Affairs (2005) 143 FCR 383 .... 2.4.13 Case of Mines (1568) 1 Plowden 310 [75 ER 472 .... 9.2.7C Case of Proclamations (1611) 12 Co Rep 74 .... 9.2.14, 9.2.37 Cassaniti v Croucher (2000) 48 NSWLR 623 .... 8.6.5 Cassell v The Queen (2000) 201 CLR 189; 169 ALR 439 .... 8.5.25, 8.5.26C Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 .... 17.6.2

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; 51 ALJR 260 .... 3.3.6C, 3.3.39, 3.3.40 Builders’ Registration Board v Rauber (1983) 47 ALR 55 .... 11.5.27 Building Construction Employees and Builders Labourers’ Federation v Minister for Industrial Relations (1987) 7 NSWLR 372 .... 5.3.2 Building Professions Accreditation Corp Tasmania Ltd v Minister for Infrastructure, Energy and Resources [2005] TASSC 73 .... 13.2.23 Bunbury v Fuller (1853) 9 Ex 111; 156 ER 47 .... 13.3.13C Burke v Corruption and Crime Commission [2012] WASCA 49 .... 4.5.4 Burmah Oil Co (Burmah Trading) Ltd v Lord Advocate [1965] AC 75 .... 2.3.13, 9.2.6E, 9.2.19 Burns v Australian National University (1982) 40 ALR 707 .... 2.4.34, 2.4.35, 2.4.47 — v Corbett; Burns v Gaynor [2018] HCA 15 .... 2.2.38, 2.2.43, 3.2.4, 3.2.5, 3.2.6C, 3.2.15 — v — (2017) 343 ALR 690 .... 5.3.19 Burragubba v Queensland (2016) 151 ALD 471 .... 15.4.8 Bushell v Repatriation Commission (1992) 175 CLR 408 .... 3.4.18C, 3.4.19, 3.4.25 — v Secretary of State for Environment [1981] AC 75 .... 11.2.16C Buttes Gas & Oil Co v Hammer [1982] AC 888 .... 2.3.18C BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 .... 13.2.35

C

C Inc v Australian Crime Commission (2008) 106 ALD 453; 251 ALR 424 .... 10.3.6, 11.3.13 — v — (2010) 113 ALD 226 .... 10.3.5 Cadbury UK Ltd v Registrar of Trade Marks (2008) 107 ALD 316 .... 13.2.28 Cadia Holdings Pty Ltd v State of New South Wales (2010) 242 CLR 195; 269 ALR 204; [2010] HCA 27 .... 9.2.5, 9.2.7C, 9.2.14 Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1 .... 14.2.4 Cains v Jenkins (1979) 28 ALR 219 .... 11.4.32 Callejo and Department of Immigration and Citizenship, Re [2010] AATA 244 .... 19.3.6C xxv

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— v — (1990) 169 CLR 436 .... 4.4.24 Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales (2009) 181 CLR 286; 78 NSWLR 43 .... 13.3.14, 17.2.7 CC Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365 .... 10.2.15C CCM v Western Sydney University [2016] NSWCATAD 234 .... 20.3.3 CDJ v VAJ (1998) 197 CLR 172 .... 3.3.43C Central Queensland Land Council Aboriginal Corporation v Attorney-General (Cth) (2002) 116 FCR 390 .... 2.4.42, 16.4.14 Century Metals and Mining NL v Yeomans (1989) 40 FCR 564 .... 2.3.16 Century Yuasa Batteries Pty Ltd v Federal Commissioner of Taxation (1997) 73 FCR 528; 143 ALR 477 .... 2.4.27, 2.4.31C, 2.4.33 Certain Children v Minister for Families and Children (No 2) [2017] VSC 251 .... 7.5.27 CGU Insurance Pty Ltd v Blakeley (2016) 259 CLR 339 .... 2.3.6 Chairperson, Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 134 ALR 238; 39 ALD 570 .... 4.3.21, 4.3.23C, 4.3.26 Chan Ta Srey v Minister for Immigration and Multicultural Affairs (2003) 134 FCR 308; [2003] FCA 1292 .... 16.1.7, 17.5.6 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412; 63 ALJR 561 .... 2.4.8C, 17.7.7C Chand v Administrative Decisions Tribunal [2011] NSWCA 131 .... 15.3.21 Chapman v Commissioner of Police, New South Wales Police [2004] NSWADT 35 .... 19.2.20 Chapmans v Australian Stock Exchange Ltd (1996) 67 FCR 402 .... 2.4.48 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 .... 17.2.3, 17.2.11 Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning (2009) 105 SASR 326 .... 8.5.8 Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 .... 15.3.21 — v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 .... 11.3.36C Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43 .... 8.4.25

Chevron USA Inc v Natural Resources Defense Council Inc (1984) 467 US 837 .... 7.5.7–7.5.8, 7.5.9C, 7.5.10C–7.5.12 Chief Commissioner of Police v McIntosh [2010] VSC 439 .... 19.2.20 Chief Constable of Sussex, Ex parte International Traders Ferry Ltd [1999] 2 AC 418 .... 15.3.27 Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395 .... 2.2.34 Chief of Navy v Angre (2016) 244 FCR 457 .... 2.4.13, 17.9.11 Chittick v Ackland (1984) 1 FCR 254 .... 2.4.47, 2.4.48, 2.4.50C Chowdhary v Bayne (1999) 29 AAR 100 .... 2.4.27 Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 308 ALR 615 .... 11.5.19 — v — (No 3) [2014] VSCA 113 .... 11.5.19 Christopher Ballam and Shire of Toodyay, Re [2009] WAICmr 4 .... 19.2.20 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; 110 ALR 97 .... 5.2.5, 5.3.22, 5.3.35, 5.3.36C, 5.3.37C, 5.3.38, 9.2.13, 9.2.16C Church of Scientology Inc v Woodward (1982) 154 CLR 25; 43 ALR 587 .... 2.3.14, 2.4.59, 5.2.17, 7.2.1, 8.2.6, 8.2.9C, 8.3.8, 8.3.46, 15.4.3, 16.3.17C Cianfrano v Director General, Premier’s Department [2006] NSWADT 137 .... 19.2.20 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 .... 8.3.5 Cirkovski and Secretary, Department of Social Security, Re (1992) 25 ALD 564 .... 3.3.33 Citipower Pty Ltd v Electricity Industry Ombudsman (Vic) Ltd [1999] VSC 275 .... 4.3.30 Citizens to Preserve Overton Park v Volpe (1971) 401 US 402 .... 7.5.25, 7.5.30C City of Doncaster and Templestowe and Minister for Community Services, Re (1987) 12 ALD 13 .... 18.5.6 City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1 .... 4.3.27, 4.3.28, 17.2.5 City of Salisbury v Biganovsky (1990) 54 SASR 117 .... 4.3.27 City of Subiaco, The v Simpson MLA [2014] WASC 493 .... 11.5.14

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Cases Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 108 ALD 329 .... 21.2.12, 21.3.2 — v — (2009) 179 FCR 554 .... 21.3.5 — v Sydney Heli-Scenic Pty Ltd [2006] NSWCA 111 .... 12.7.2 CJT15 v Minister for Immigration and Border Protection [2018] FCA 618 .... 13.2.4 Clamback v Coombes (1986) 13 FCR 55 .... 2.5.22 Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 .... 13.5.9 — v Bull (1953) 88 CLR 572 .... 8.4.29C Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd [1999] 2 VR 573 .... 11.5.28, 11.5.30C Clough v Leahy (1904) 2 CLR 139 .... 8.2.8C, 9.2.9, 9.2.11, 9.2.12C, 9.2.13 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 174 ALR 585 .... 3.3.40, 3.3.43C, 3.3.44, 3.3.45, 7.4.13, 16.4.10 Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 435 .... 12.4.9 Coco v The Queen (1994) 179 CLR 427; 120 ALR 415 .... 2.2.6, 5.2.8, 8.3.7, 8.3.9, 8.3.20, 8.3.26, 8.3.30, 8.3.31C, 8.3.32C, 8.3.34, 9.2.13, 11.3.31C, 16.5.2, 20.2.29 Colakovski v Australian Telecommunications Corporation [1991] FCA 152 .... 19.3.6C Coldham, Re; Ex parte Brideson (No 2) (1990) 170 CLR 267 .... 3.3.43C Cole v Cunningham (1983) 49 ALR 123 .... 11.3.7 Coleman v Liberal Party of Australia, New South Wales Division (No 2) (2007) 212 FLR 271 .... 2.3.8 Collection Point Pty Ltd v Commissioner of Taxation (2013) 212 FCR 184 .... 19.2.9 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; 24 ALR 307; 41 FLR 338 .... 3.3.11C, 3.3.13, 3.3.14C, 3.3.15, 3.3.21, 3.3.22, 5.3.33, 16.1.12 Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389; 141 ALR 59 .... 13.1.5, 13.5.10, 13.5.13, 13.5.14, 13.5.16, 13.5.20C, 13.5.26 — v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; 115 ALR 1 .... 7.5.20C, 13.5.10, 13.5.14, 13.5.16, 13.5.20C Collins v Repatriation Commission (1994) 33 ALD 557 .... 12.4.8



— v South Australia (1999) 74 SASR 200 .... 11.3.12 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 .... 13.3.13C, 16.3.17C Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343 .... 8.3.34 Comcare v Lilley (2013) 216 FCR 214 .... 8.6.10 Commercial Registrar of the Commercial Tribunal of Western Australia, Re; Ex parte Investments Pty Ltd [2003] WASC 198 .... 21.1.25 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 .... 11.4.10, 11.4.19 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 .... 2.4.50C Commissioner of Police New South Wales v Gray (2009) 74 NSWLR 1 .... 11.2.15 Commissioner of Police (NSW) v Industrial Relations Commission (NSW) (2009) 185 IR 458 .... 10.4.18 Commissioner of Police v Barbaro (2001) 51 NSWLR 419 .... 8.6.5 — v Tanos (1958) 98 CLR 383 .... 11.2.2, 11.2.15, 11.2.19C, 11.3.23 Commissioner of State Revenue (Vic) v ACN 005 057 349 Pty Ltd (2017) 91 ALJR 349 .... 17.4.12 — v Royal Insurance Aust Ltd (1994) 182 CLR 51; 126 ALR 1 .... 17.4.4, 17.4.11C Commissioner of Taxation v A Taxpayer (2006) 91 ALD 335 .... 13.2.31 — v AP Energy Investments Pty Ltd (2016) 341 ALR 265 .... 13.5.7 — v Cancer and Bowel Research Association (2013) 305 ALR 534 .... 3.2.53 — v Futuris Corporation Ltd (2008) 237 CLR 146; 247 ALR 605 .... 2.2.34, 2.4.59, 13.4.11, 16.2.4, 16.2.5, 16.3.7 — Commissioner of Taxation v Jayasinghe [2017] HCA 26 .... 2.4.59 Commissioner, Australian Federal Police v Oke (2007) 159 FCR 441 .... 16.2.4 Commonwealth Bank v Human Rights & Equal Opportunity Commission (1997) 50 ALD 360; 150 ALR 1 .... 8.3.12 — v Kojic (2016) 249 FCR 421 .... 8.3.52 Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491 .... 17.1.11

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Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85; 103 ALD 1 .... 3.2.4, 3.2.48, 5.3.19, 8.2.13, 8.5.22, 8.5.25 — v BIS Cleanaway Ltd (2007) 214 FLR 271 .... 17.7.9 — v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 .... 8.3.44 — v Grunseit (1943) 67 CLR 58 .... 2.4.39C, 2.4.40C, 5.3.7 — v Mewett (1997) 191 CLR 471 .... 2.2.45 — v Northern Land Council (1993) 176 CLR 200 .... 2.3.14 — v Okwume [2018] FCAFC 69 .... 8.3.52 — v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1; 46 ALR 625 .... 8.4.2, 8.4.27C, 8.4.29C — v Verwayen (1990) 170 CLR 394 .... 12.6.2, 17.6.7C — v Westwood (2007) 163 FCR 71 .... 2.2.45 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 .... 11.4.11 Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 2) (1991) 32 FCR 243 .... 16.1.22, 16.1.23, 17.8.8 Congoo v Minister for Immigration and Border Protection (2015) 257 CLR 22 .... 8.3.53 Consolidated Edison Co v National Labour Relations Board (1938) 305 US 197 .... 3.4.13C Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2007) 157 FCR 260; 239 ALR 466 .... 17.2.18, 17.2.19 — v Director of Fair Work Building Industry Inspectorate (2016) 91 ALJR 1 .... 17.9.5 Control Investments Pty Ltd and Australian Broadcasting Tribunal, Re (No 1) (1980) 3 ALD 74 .... 18.4.19 Control Investments Pty Ltd and Australian Broadcasting Tribunal, Re (No 2) (1981) 3 ALD 88 .... 3.3.2, 3.3.11C Coogee Esplanade Surf Motel Pty Ltd v Commonwealth (1976) 50 ALR 363 .... 9.3.10 Cooney v Ku-ring-gai Corporation (1963) 114 CLR 582 .... 17.6.5, 17.6.6C, 17.7.6C, 17.9.2 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 .... 8.3.3

Cooper v Board of Works for the Wandsworth District (1863) 143 ER 414 .... 2.2.6, 11.1.8–11.1.10, 11.1.16, 11.1.18C, 11.1.19C, 11.2.1, 11.2.2, 11.2.16C, 11.4.2, 11.4.11, 11.4.13, 16.1.6, 16.1.8 Corneloup v Launceston City Council [2016] FCA 974 .... 8.5.12 Cornerstone Legal Pty Ltd and Australian Securities and Investment Commission [2013] AICmr 71 .... 19.3.4 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; 60 ALD 342; 169 ALR 400 .... 1.3.7, 5.2.23, 5.2.24, 7.2.6, 7.5.8, 7.5.10C, 7.5.13, 13.3.14, 13.3.15, 13.3.17C, 17.1.13, 17.6.4, 17.7.2, 17.7.3, 17.7.6C, 17.9.1 Corrigan v Parliamentary Criminal Justice Committee [2001] 2 Qd R 23 .... 2.4.61 Costello and Secretary, Department of Transport, Re (1979) 2 ALD 934 .... 3.3.5, 3.3.33 Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 .... 10.4.6, 10.4.9, 15.3.5 Coulton v Holcombe (1986) 162 CLR 1 .... 13.5.8C Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 3 All ER 935 .... 2.3.4E, 2.3.6, 2.3.8, 2.3.10C, 2.3.11C, 2.3.13, 2.5.8C, 2.5.9, 7.2.5C, 7.2.11, 7.2.18C, 8.2.5, 9.2.3, 9.2.9, 9.2.18C, 9.2.37, 9.3.1, 9.3.2E, 9.3.3C, 9.3.4, 11.2.16C, 11.3.35, 12.6.8C, 15.2.3, 15.2.11, 15.3.27, 15.3.29C Council of the Shire of Hornsby v Danglade (1929) 29 SR (NSW) 118 .... 17.6.6C Coutts v Close [2014] FCA 19 .... 11.4.23 — v Commonwealth (1985) 157 CLR 91 .... 2.3.13, 2.4.29, 8.3.14, 11.2.15, 11.2.16C Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 .... 2.5.7C Cox and Department of Defence, Re (1990) 20 ALD 499 .... 19.2. 26 Cox v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 143 NTR 10 .... 17.5.8 COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 .... 21.2.16 CPCF v Minister for Immigration and Border Protection (2015) 143 ALD 443; 316 ALR 1; 89 ALJR 207; [2015] HCA 1 .... 2.2.45,

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Cases 2.3.15, 2.4.59, 5.3.35, 5.3.38, 9.2.13, 9.2.15, 9.2.16C, 11.2.15, 11.3.38C, 12.3.2, 12.3.6C, 12.5.8 CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413 .... 15.2.10 Craig v South Australia (1995) 184 CLR 163; 39 ALD 193; 131 ALR 595 .... 1.4.4E, 7.2.20C, 13.3.13C, 13.4.3, 16.1.13, 16.3.18C, 16.4.2, 16.4.4, 16.4.5, 16.4.10, 16.4.11, 16.4.16, 16.4.17C, 16.4.18C, 17.1.4, 17.2.7, 17.2.8, 17.2.12C, 17.2.14C, 17.2.16, 17.7.6C CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 .... 2.3.11C Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 .... 19.2.26 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 .... 2.2.37, 14.1.6, 17.8.9 Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34 .... 2.4.44 Cromwell Property Securities Ltd v Financial Ombudsman Service Ltd [2014] VSCA 179 .... 2.5.6, 2.5.15C Croome v Tasmania (1997) 191 CLR 119 .... 4.4.33, 18.1.2, 18.3.14 Croser, Re; Ex parte Rutherford [2003] WASCA 8 .... 21.2.7, 21.2.13, 21.2.15C Crowe and Department of the Treasury [2013] AICmr 69 .... 19.3.3C CSL Australia Pty Ltd v Minister for Infrastructure and Transport (2014) 221 FCR 165 .... 8.3.2 Cubillo v Commonwealth (2000) 103 FCR 1 .... 8.2.14 Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 .... 12.7.4C Cumberland County Council v Corben (1960) 77 WN (NSW) 650 .... 17.6.6C Cuming, Campbell Investments Pty Ltd Prosecutor v Collector of Imposts (Vic) (1938) 60 CLR 741 .... 17.4.3 Cummeragunga Pty Ltd (in liq) v Aboriginal and Torres Strait Islander Commission (2004) 139 FCR 73 .... 12.6.5 Cunningham and Rural Adjustment and Finance Corporation, Re [1996] WAICmr 29 .... 19.2.20 Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212; 27 ALD 181 .... 2.4.9, 13.2.23, 13.2.24, 13.2.26C, 13.2.27C, 13.3.4



Currie v Inland Revenue Commissioners of Taxation [1921] 2 KB 332 .... 13.5.27 Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462 .... 21.1.26, 21.1.27

D

Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 .... 11.4.6 Daihatsu Aust Pty Ltd v Deputy Commissioner of Taxation (2000) 182 ALR 239 .... 15.3.25 Dainford Ltd v Smith (1985) 155 CLR 342 .... 8.5.16 D’Amore v Independent Commission Against Corruption (ICAC) (2013) 303 ALR 242 .... 15.2.16 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 .... 21.2.16 Dar v State Transit Authority of NSW (2007) NSWLR 468 .... 16.4.11 Darby v Director of Public Prosecutions (2004) 61 NSWLR 558 .... 9.2.23 Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 .... 16.3.9, 16.3.10, 16.3.17C Davies and Department of the Prime Minister and Cabinet [2013] AICmr 10 .... 19.2.20 Davis v Commonwealth (1988) 166 CLR 79 .... 8.2.4, 9.2.9, 9.2.21C, 9.2.25, 9.2.30C Dawkin v Antrobus (1879) 17 Ch D 615 .... 11.1.19C De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502 .... 8.4.25, 8.4.31 Deing v Tarola [1993] 2 VR 163 .... 8.4.15 Deloitte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562 .... 10.3.13 — v — (1996) 136 ALR 453 .... 10.4.23 Denver Chemical Manufacturing v Commissioner of Taxation (1949) 79 CLR 296 .... 21.3.4 Department of Defence and ‘W’ [2013] AICmr 2 .... 19.2.30 Department of Immigration and Ethnic Affairs v Ram (1996) 41 ALD 517 .... 11.3.12 Department of Industrial Relations v Forrest (1990) 21 FCR 93 .... 8.6.11 Department of Primary Industries and Energy v Collins (1992) 34 FCR 340 .... 12.4.8

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Control of Government Action Drake and Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634 .... 3.3.7, 12.1.5, 12.2.4, 12.2.7, 12.2.14C, 12.2.17C, 12.2.22C, 12.5.3, 12.5.5C, 12.5.8, 12.5.9C Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409 .... 3.2.15, 3.3.7, 3.3.8, 3.3.10C, 3.3.11C, 3.3.25, 3.3.32C, 3.3.38, 3.4.16C, 5.3.47, 5.3.49C, 12.5.2, 12.5.5C Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 .... 13.3.8 Dreamtech International Pty Ltd v Commissioner of Taxation (2010) 72 FCR 467 .... 13.5.15 Dreyfus and Secretary, Attorney-General’s Department, Re [2015] AATA 962 .... 19.3.1, 19.3.3C Du Pont (Aust) v Comptroller-General of Customs (1993) 30 ALD 829 .... 17.7.8 Duffy v Da Rin (2014) 87 NSWLR 495 .... 10.3.3 Duncan and Department of Health and Ageing, Re (2004) 83 ALD 520 .... 18.4.20 Duncan v Independent Commission Against Corruption (2014) 311 ALR 750 .... 4.5.4, 17.7.9 — v — (2015) 256 CLR 83 .... 5.3.17, 8.3.22 — v Ipp (2013) 304 ALR 359 .... 11.5.15 — v McGuigan; McGuigan v ICAC; Kinghorn v ICAC; Cascade Coal v ICAC (2014) 311 ALR 750 .... 17.7.9 — v Theodore (1917) 23 CLR 510 .... 10.2.13C Dunsmuir v New Brunswick [2008] 1 SCR 190 .... 7.5.7, 7.5.12, 7.5.25, 15.2.19 Dunstan v Orr (2008) 171 IR 135 .... 2.4.23 Durani v Minister for Immigration and Border Protection (2014) 314 ALR 130 .... 11.4.13 Durayappah v Fernando [1967] 2 AC 337 .... 11.2.12, 11.2.15 Dutton v O’Shane (2003) 132 FCR 352 .... 5.3.47 Dyson v Attorney-General [1911] 1 KB 410 .... 16.3.20C, 17.7.2, 17.7.4C, 18.3.14

Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 .... 5.3.55, 5.3.56, 16.3.17C, 17.1.14C Diamond and Chief Executive Officer of the Australian Curriculum, Assessment and Reporting Authority, Re [2014] AATA 707 .... 19.2.9 Dickinson v Perrignon [1973] 1 NSWLR 72 .... 17.1.4 Dietrich v R (1992) 177 CLR 292 .... 17.2.12C Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188 .... 6.4.2 Dilatte v MacTiernan [2002] WASCA 100 .... 15.3.22, 15.3.24 Dillon v R [1982] AC 484 .... 8.2.12 Dimitrov v Supreme Court (Vic) (2017) 92 ALJR 12 .... 17.1.10, 17.9.5 Dingjan, Re; Ex parte Wagner (1995) 183 CLR 323 .... 16.5.6C Director-General of Social Services v Chaney (1980) 3 ALD 161; 31 ALR 571; 47 FLR 80 .... 2.4.8C, 3.2.52 Director of Animal and Plant Quarantine v Australian Pork Ltd (2005) 146 FCR 368; 88 ALD 325 .... 13.2.23, 15.3.6, 15.3.7C Director of Housing v Sudi [2011] VSCA 266 .... 3.2.4 Director of Public Prosecutions v Smith [1991] 1 VR 63 .... 10.3.13 Ditfort, Re; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347; 83 ALR 265 .... 2.3.4E, 2.3.15, 9.2.6E Dixon v Attorney-General (1987) 15 FCR 338 .... 9.2.9 Doctors’ Hospital and Minister of Health, Re (1976) 68 DLR (3d) 220 .... 10.2.13C Doe v ABC [2007] VCC 281 .... 20.1.9 Doepgen v Mugarinya Community Association Incorporated [2014] WASCA 67 .... 11.4.32 Donaghy v Council of the Law Society of NSW [2015] NSWCA 223 .... 11.5.19 Dorf Industries Pty Ltd v Toose (1994) 54 FCR 350 .... 2.5.10 Dover District Council v CPRE Kent [2018] 1 WLR 108 .... 21.1.21 Downey v Acting District Court Judge Boulton (No 3) [2010] NSWCA 50 .... 16.4.10 Doyle on behalf of the Iman People 2 v Queensland (2016) 151 ALD 269 .... 8.2.13 Dr Bonham’s Case, Re (1610) 8 Co Rep 113b .... 11.5.1

E

East West Airlines Ltd v Turner (2010) 78 NSWLR 1 .... 13.5.12 Eastman v Attorney-General (ACT) (2007) 210 FLR 440 .... 2.3.13 xxx

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Cases — v Australian Capital Territory (2008) 163 ACTR 14 .... 2.4.15, 2.4.18 — v Besanko (2010) 244 FLR 262 .... 17.2.16 — v Commissioner for Housing for the Australian Capital Territory (2006) 200 FLR 272 .... 12.6.9 — v R (2000) 203 CLR 1 .... 3.3.43C — v R (2008) 166 FCR 579 .... 16.1.16 — v The Hon Besanko J [2009] ACTSC 10 .... 2.4.48 Easwaralingam v Director of Public Prosecutions [2010] VSCA 353 .... 17.2.8 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 63 ALD 577 .... 11.5.5, 11.5.7, 11.5.9, 11.5.19, 11.5.23, 11.5.28, 11.5.30C, 11.5.31C, 11.5.32C, 11.5.33C Eccleston and Department of Family Services and Aboriginal and Islander Affairs, Re (1993) 1 QAR 60 .... 19.2.11 Eckersley and Minister for Capital Territory, Re (1979) 2 ALD 303 .... 3.4.17 Edelsten v Health Insurance Commission (1990) 27 FCR 56; 21 ALD 710; 96 ALR 673 .... 2.4.9, 2.4.15, 2.4.16C, 2.4.21, 2.4.22C, 2.4.23 — v Wilcox (1988) 15 ALD 546; 83 ALR 99 .... 15.3.9, 15.3.10C, 15.3.11 Edwards v Bairstow [1956] AC 14 .... 13.5.22C — v Giudice (1999) 94 FCR 561 .... 21.1.27 Einfeld and Human Rights and Equal Opportunity Commission, Re (2007) 96 ALD 441 .... 18.4.20 Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230; 68 ALD 107; 189 ALR 109 .... 2.4.15, 2.4.17C, 14.3.5 EnergyAustralia Pty Ltd v CFMEU (2014) 140 ALD 263 .... 2.2.23, 17.2.19 Enfield City Corporation v Development Assessment Commission (1997) 69 SASR 99 .... 17.6.4, 17.7.2, 17.7.3, 17.7.6C, 17.9.1 Enichem ANIC Srl v Anti-Dumping Authority (1992) 29 ALD 431 .... 15.3.18 Entick v Carrington (1765) 19 State Tr 1030; 2 Wils 275; 95 ER 807 .... 5.2.5, 8.2.6, 8.2.7C, 8.3.31C Environment East Gippsland Inc v VicForests (2010) 30 VR 1 .... 14.3.4 Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 .... 3.4.12, 3.4.15, 3.4.18C



Epic Energy (WA) Nominees Pty Ltd v Michael (2003) 27 WAR 515 .... 16.4.14 EQ and Federal Privacy Office of the Australian Information Commissioner (2004) 85 ALD 368 .... 20.2.16, 20.3.5 Esber v Commonwealth (1992) 174 CLR 430; 106 ALR 577 .... 3.3.31, 3.3.32C, 3.3.33 Esposito v Commonwealth of Australia (2015) 235 FCR 1 .... 10.4.15, 17.1.12 Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust (1937) AC 898 .... 7.2.19C Evans, Re; Ex parte Coffey [1971] 1 NSWLR 434 .... 17.2.16 Evans v Donaldson (1909) 9 CLR 140 .... 12.2.18 — v Friemann (1981) 3 ALD 326 .... 2.4.34, 2.4.36, 2.4.47 — v Information Commissioner [2012] UKUT 313 (AAC) .... 19.3.5 — v Marmont (1997) 42 NSWLR 70 .... 10.4.19 — v Minister for Immigration and Multicultural Affairs (2003) 78 ALD 65; 203 ALR 320 .... 16.5.4, 16.5.6C — v State of New South Wales (2008) 168 FCR 576; 104 ALD 234; 250 ALR 33 .... 2.2.13, 4.4.1, 8.3.9, 8.3.20, 8.3.30, 8.3.32C, 8.3.34, 8.3.36, 8.4.2, 8.4.12, 10.3.5, 10.4.6 Eve Hemp Pty Limited v Secretary to the Department of Health [2017] FCA 1051 .... 10.3.6 Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority, Re (1997) 45 ALD 418 .... 12.5.11 Ex-Christmas Islanders Assoc Inc v AttorneyGeneral (2005) 149 FCR 170 .... 2.4.45

F

FAI Insurances Ltd v Winneke (1982) 151 CLR 342; 41 ALR 1 .... 2.3.4E, 2.3.11C, 5.2.17, 7.4.11, 8.3.9, 8.3.15, 11.2.13, 11.2.15, 11.2.16C, 11.2.17C, 11.2.18C, 11.3.1, 11.3.7, 11.4.27, 11.4.31, 17.2.16, 17.7.6C Falzon v Minister for Immigration and Border Protection [2018] HCA 2 .... 2.2.32, 5.3.38 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 .... 5.3.13, 5.3.16C, 5.3.18, 5.3.42C, 5.3.51C Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation (1990) 19 ALD 731 .... 15.2.18C, 15.3.1 xxxi

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Farnaby and Military Rehabilitation and Compensation Tribunal, Re (2007) 97 ALD 788 .... 3.2.9, 3.4.3 Faulkner v Conwell (1989) 21 FCR 41 .... 21.3.7 Fay v Moia (1963) 372 US 391 .... 17.5.5C ‘FD’ and Department of Immigration and Border Protection [2015] AICmr 22 .... 19.2.26 Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582; 50 ALD 54; 147 ALR 649 .... 2.4.35, 2.4.38, 2.4.39C, 2.4.42 Federal Commissioner of Taxation v Biga Nominees Pty Ltd [1988] VR 1006 .... 14.1.3, 14.4.4C, 18.4.3 — v Broken Hill South Ltd (Broken Hill South Case) (1941) 65 CLR 150 .... 13.5.21C — v Official Liquidator of F O Farley Ltd (in Liq) (1940) 63 CLR 278 .... 9.2.25 — v Raptis (1989) 20 ATR 1262 .... 13.5.8C Felton v Mulligan (1971) 124 CLR 367 .... 2.2.12 Fencott v Muller (1983) 152 CLR 570; 57 ALJR 317 .... 2.2.24C, 2.3.9C Ferdinands v Attorney-General (SA) [2007] SASC 53 .... 2.3.13 Fernandes and National Archives of Australia [2014] AATA 180 .... 19.2.33 ‘FG’ and National Archives of Australia [2015] AICmr 26 .... 19.2.3, 19.3.1, 19.3.6C Filo v Pharmacy Board of NSW (1975) 3 NSWDCR 269 .... 7.5.14 Financial Services Complaints Ltd v Chief Ombudsman [2018] NZCA 27 .... 4.3.4 Fiorentino v Companies Auditors and Liquidators Disciplinary Board [2014] FCA 641 .... 15.2.16, 15.2.19 Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180 .... 17.3.3 Fisher v Keane [1879] 11 Ch D 353 .... 11.1.19C, 11.3.4C FJ Bloemen Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 360 .... 15.3.10C Flaherty v Secretary, Department of Health and Ageing (2010) 184 FCR 564; [2010] FCAFC 67 .... 16.1.24 Fleming v The Queen (1998) 197 CLR 250 .... 8.3.6 Fletcher v Nott (1938) 60 CLR 55 .... 9.2.18C Flinn v James McEwan & Co Pty Ltd [1991] 2 VR 434 .... 6.3.6 ‘FM’ and Department of Foreign Affairs and Trade [2015] AICmr 31 .... 19.2.20

Foley v Padley (1984) 154 CLR 349; 54 ALR 609 .... 8.4.4, 8.4.16, 8.4.18C, 16.5.5 Foord v Whiddett (1985) 60 ALR 269 .... 17.9.11 Footscray Corporation v Maize Products Pty Ltd (1943) 67 CLR 301 .... 8.4.5 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 .... 2.5.4, 2.5.6, 2.5.7C, 2.5.9, 16.1.17C Fordham v Evans (1987) 12 ALD 522 .... 18.5.6 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 .... 5.3.16C Formosa v Secretary, Department of Social Security (1988) 46 FCR 117; 81 ALR 687 .... 12.6.9 Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32 .... 3.3.42, 3.3.44 — v Wilson (2017) 346 ALR 1 .... 8.3.8 Forster, Ex parte; University of Sydney, Re [1963] SR (NSW) 723 .... 2.4.51, 8.5.4, 8.5.5C Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972–73] ALR 1303 .... 2.3.20, 2.4.8C, 17.7.2, 17.7.3, 17.7.5C Fortune and Secretary, Department of Education, Employment and Workplace Relations, Re (2010) 51 AAR 481 .... 11.5.19 Fox v Australian Industrial Relations Commission (2007) 97 ALD 617 .... 16.4.16 — v Percy (2003) 214 CLR 118 .... 3.3.40, 3.3.45 Foxtel Management Pty Ltd v Australian Competition & Consumer Commission (2000) 173 ALR 362 .... 6.3.6 Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 .... 3.3.32C Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 .... 3.3.11C, 3.3.29 Frieda and Geoffrey, Re (2009) 40 FLR 608 .... 17.2.7 Friends of Elliston — Environment & Conservation Inc v SA (2007) 96 SASR 246 .... 10.2.1 Frost v Kourouche (2014) 86 NSWLR 214 .... 11.4.26 FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; [2014] HCA 26 .... 3.4.14, 13.2.31

G

Gabrielsen v Nurses Board of South Australia (2006) 90 ALD 695 .... 11.5.21 Gadon v Police Review Board [2014] TASSC 23 .... 3.3.20, 3.3.47

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Cases Gales Holdings Pty Ltd v Minister for Infrastructure and Planning (2006) 69 NSWLR 156 .... 10.4.26 Galluzzo v Little [2013] NSWCA 116 .... 11.4.31 GAR v Attorney-General of NSW & Supreme Court of NSW [2017] NSWCA 47 .... 11.5.5 Garde-Wilson v Legal Services Board (2008) 19 VR 398 .... 11.3.29 Gardner v Dairy Industry Authority of NSW (1977) 18 ALR 55 .... 17.7.9 Garrett v Nicholson (1999) 21 WAR 226 .... 21.2.6 — v Commissioner of Taxation (2014) 147 ALD 588 .... 13.5.6 Gaudie v Local Court of NSW [2013] NSWSC 1425 .... 11.5.15 Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 .... 13.3.14 General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 .... 2.4.53, 2.5.20 George v Rockett (1990) 170 CLR 104; 93 ALR 483 .... 7.4.12, 8.3.49, 8.3.55, 8.3.56C, 16.3.7 Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1987) 17 FCR 1; 14 ALD 351 .... 12.1.5, 12.2.21, 12.2.22C, 12.2.23C Gerhardy v Brown (1985) 59 CLR 70 .... 4.4.14, 4.4.29 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 .... 2.5.12C GG v Australian Crime Commission (2010) 182 FCR 513 .... 13.4.7 Gibson v Minister for Finance, Natural Resources and the Arts (2012) 192 LGERA 118 .... 10.4.23 Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 .... 20.1.9 Giuseppe v Registrar of Aboriginal Corporations (2007) 160 FCR 465 .... 7.5.15 GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 .... 8.3.24C, 8.5.18, 8.5.24, 8.5.26C Glasshouse Mountains Gubbi Gubbi People v Native Title Tribunal (2008) 169 FCR 13 .... 2.4.13 GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 .... 11.5.17 Glenister v Dillon [1976] VR 550 .... 4.3.24, 4.3.25



— v Dillon (No 2) [1977] VR 151 .... 4.3.24 Glennan v Commissioner of Taxation (2003) 198 ALR 250 .... 17.9.9 Gold Coast City Council By-Laws, Re [1994] 1 Qd R .... 8.4.6, 8.4.9C Golden-Brown v Hunt (1972) 19 FLR 438 .... 6.3.2, 6.3.5, 6.5.1, 8.4.2 Goldie v Commonwealth (2002) 117 FCR 566; 188 ALR 708 .... 5.2.9, 8.3.35, 8.3.55, 8.3.58C, 15.3.19, 16.1.6 Goodman v Motor Accidents Authority of NSW (2009) 53 MVR 420 .... 7.4.16, 17.2.5 Goodson and Secretary, Department of Employment, Education, Training and Youth Affairs, Re (1996) 42 ALD 651 .... 12.5.4, 12.5.6C, 12.5.8, 12.5.13 Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Inc (2008) 72 NSWLR 224 .... 2.5.4 Google v Vidal-Hall [2016] QB 1003 .... 20.1.11 Gould v Magarey (2007) 231 CLR 350.... 2.5.14C Gouriet v Union of Post Office Workers [1978] AC 435 .... 14.4.7, 18.2.3C, 18.4.23C, 18.5.4 Governor, Goulburn Correctional Centre, Re; Ex parte Eastman (1999) 200 CLR 322 .... 8.5.25 Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350; 91 ALJR 890; [2017] HCA 33 .... 2.2.43, 5.3.17, 5.3.56, 5.3.58C, 5.3.59, 5.3.61, 17.1.16 Greater Wollongong City Council v Jones [1955] 1 LGRA 342 .... 17.6.6C Green v Daniels (1977) 13 ALR 1; 51 ALJR 463 .... 2.1.1, 2.2.45, 7.2.2, 7.2.4C, 7.2.6, 7.2.25, 8.5.5C, 10.3.7, 12.1.2, 12.1.3, 12.2.3, 13.3.11 Greenham and Minister for Capital Territory, Re (1979) 2 ALD 137 .... 3.3.5, 3.3.6C, 3.3.23, 3.3.25, 3.3.38 Greg Finlayson and Family Court of Australia [1998] AATA 744 .... 19.2.20 Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 .... 7.4.12, 8.3.55, 8.3.59, 17.2.6 Griffin v Resource Management and Planning Appeal Tribunal and Christie (2010) 19 Tas R 424; [2010] TASSC 8 .... 6.1.3 Griffith University v Tang (2005) 221 CLR 99; 213 ALR 724; 79 ALJR 627 .... 2.4.11, 2.4.47, 2.4.49, 2.4.50C, 2.4.51, 2.4.52, 2.4.55, 2.4.60, 2.4.61

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Grimshaw, Re; Ex parte Australian Telephone and Phonogram Officers’ Association (1986) 60 ALJR 588 .... 17.1.14C Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) (2009) 26 VR 172 .... 17.2.5 Grollo v Palmer (1995) 184 CLR 348 .... 5.3.48, 5.3.50C Gronow v Gronow (1979) 144 CLR 513 .... 10.4.13C Grosse v Purvis (2003) Aust Torts Reports 81706; [2003] QDC 151 .... 20.1.9 GTE (Australia) Pty Ltd v Brown (1986) 14 FCR 309 .... 10.4.7, 13.3.3C, 13.3.4, 15.3.15 Gutierrez-Brizuela v Lynch, 834 F 3d 1142, 1152 (10th Cir, 2016) .... 7.5.11 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 .... 5.3.16C, 5.3.44

H

H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 .... 5.3.18 Habib v Commonwealth (2010) 183 FCR 62 .... 2.3.15 — v Commonwealth (No 2) (2009) 175 FCR 350 .... 9.2.24 — v Director-General of Security [2009] FCAFC 48 .... 11.3.37C — v Minister for Foreign Affairs and Trade (2010) 192 FCR 148 .... 12.2.19 Hagedorn v Department of Social Security (1996) 44 ALD 274 .... 17.7.8 Haines and Australian Fisheries Management Authority, Re (1996) 43 ALD 83 .... 12.5.13 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 .... 2.5.4, 11.5.14 Hamblin v Duffy (1981) 3 ALD 153 .... 2.4.34 Hamdan v Rumsfeld, 126 S Ct 2749 (2006) .... 17.5.9 Hancock v Executive Director of Public Health [2008] WASC 224 .... 21.1.30 Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40 .... 5.2.12, 10.2.17, 10.3.25, 10.4.17 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; 19 ALD 577; 93 ALR 51 .... 11.2.8, 11.3.7, 12.2.23C Harburg Investments Pty Ltd v Mackenroth [2005] 2 Qd R 433 .... 7.5.16, 10.3.15

Harding v University of NSW [2002] NSWCA 325 .... 2.4.51 Harelkin v University of Regina [1979] 2 SCR 561 .... 16.1.17C Harris v Bryce (1993) 41 FCR 388 .... 2.3.20 — v Caladine (1991) 172 CLR 84 .... 16.4.1 — v Repatriation Commission (2000) 62 ALD 161 .... 7.2.26 Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 .... 13.5.7, 13.5.8C, 13.5.9 Harrison v Melhem (2008) 72 NSWLR 380 .... 8.3.20 Haskins v The Commonwealth (2011) 244 CLR 22 .... 12.3.6C Hatfield and Comcare, Re [2010] AATA 848 .... 11.3.35 Hawker Pacific Pty Ltd v Freeland (1983) 52 ALR 185 .... 18.3.15 Hawke’s Bay Raw Milk Producers Co-operative Co Pty Ltd v New Zealand Milk Board [1961] NZLR 218 .... 8.5.16 Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 .... 13.5.21C Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 .... 2.5.7C, 11.2.16C, 11.3.7 Hebburn Ltd, Ex parte; Kearsley Shire Council, Re (1947) 47 SR (NSW) 416 .... 7.2.11, 7.2.19C, 10.1.2, 13.2.8, 16.1.20C Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 .... 13.5.20C Heerey, Re; Ex parte Heinrich (2001) 185 ALR 106 .... 17.9.9 Helicopter Utilities Pty Ltd v Australian National Airlines Commission (1961) 80 WN (NSW) 48 .... 18.2.3C Hennessy and Secretary to Department of Social Security, Re (1985) 7 ALN N113 .... 3.4.4, 3.4.5C Herscu v The Queen (1991) 173 CLR 276; 103 ALR 1 .... 8.3.23, 8.3.24C HEST Australia Ltd v Sykley (2005) 147 FCR 248 .... 18.4.13 Heyward v Minister for Immigration and Citizenship (2009) 113 ALD 65 .... 11.4.34 Hicks v Ruddock (2007) 156 FCR 574; 96 ALD 321 .... 2.3.15, 2.3.18C, 9.3.4, 17.1.2, 17.1.6, 17.5.1, 17.5.3, 17.5.5C, 17.5.9 Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd (2007) 156 FCR 501 .... 5.3.44

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Cases Hii v Commissioner of Taxation (2015) 230 FCR 385 .... 15.4.13 Hill v Green (1999) 48 NSWLR 161 .... 11.3.29, 11.3.30C, 13.3.7 Hilton v Wells (1985) 157 CLR 57 .... 5.3.48, 5.3.50C Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1; 16 ALD 526; 91 ALR 586 .... 10.4.6, 10.4.9, 10.4.22C, 10.4.23, 10.4.27 Hinton v Alpha Westmead Private Hospital (2016) 242 FCR 1 .... 11.5.15 HK (An Infant), Re [1967] 2 QB 617 .... 11.2.16C H Lavender & Son Ltd v Minister of Housing and Local Government [1970] 3 All ER 871 .... 12.2.18 Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115; [2010] FCAFC 20 .... 12.2.7, 12.5.4, 12.5.8, 12.5.9C, 12.5.10 Hockey v Yelland (1984) 157 CLR 124; 56 ALR 215 .... 16.3.4, 16.3.7, 16.3.13C, 17.2.12C Hocking v Medical Board of Australia [2014] ACTSC 48 .... 3.3.33 Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 .... 16.1.12–16.1.14, 16.1.18C Hood v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 555 .... 3.4.11, 13.2.29 Hope v Bathurst City Council (1980) 144 CLR 1; 29 ALR 577 .... 13.5.10, 13.5.15, 13.5.21C, 13.5.22C, 13.5.27 Hospital Benefit Fund of Western Australia Inc, Re (1992) 28 ALD 25 .... 15.4.1 Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 .... 3.3.30 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 .... 7.2.13, 7.2.21C, 11.4.6, 11.4.7C, 11.4.8, 16.4.2, 16.4.12, 16.4.16, 16.4.19C Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; 134 ALR 469 .... 2.3.20, 17.2.3–17.2.6, 17.2.13C, 17.2.15 — v — (2002) 210 CLR 438; 70 ALD 314; 93 ALR 90; [2002] HCA 51 .... 1.3.25, 1.3.28C, 11.3.19, 11.5.19, 11.5.23, 11.5.35C



House v The King (1936) 55 CLR 499; [1936] HCA 40 .... 2.5.15C, 7.2.7C, 15.2.18C Houssein v Department of Industrial Relations and Technology (1982) 148 CLR 88; 38 ALR 577; 56 ALJR 217; [1981] AC 2 .... 16.3.7, 16.3.13C, 16.3.15C Howard and the Treasurer, Re (1985) 7 ALD 626 .... 19.2.18 Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169; 41 ALR 283 .... 12.2.9, 12.4.4C HTV Ltd v Price Commission [1976] ICR 170 .... 15.3.23C Huang v Secretary of State for the Home Department [2007] 2 AC 167 .... 15.3.27 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 .... 5.3.22, 5.3.28C Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 .... 2.5.23, 12.4.7, 12.6.1 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 .... 2.3.15 Hunter Resources Ltd v Melville (1988) 164 CLR 234 .... 16.2.10C Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 .... 17.1.12 Hunter’s Hill Council v Minister for Local Government (2017) 224 LGERA 1 .... 11.4.25 Hurt v Rossall (1982) 43 ALR 252 .... 11.4.34 Hussain v Minister for Foreign Affairs (2008) 103 ALD 66; 169 FCR 241 .... 13.5.8C Hutchins v DCT (1996) 65 FCR 269 .... 2.4.31C, 2.4.53 Huynh v Minister for Immigration and Border Protection (2015) 232 FCR 497 .... 15.2.10

I

Ibeneweka v Egbuna [1964] 1 WLR 219 .... 17.7.5C ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 .... 10.3.11 ID, PF and DV v Director-General, Dept of Juvenile Justice (2008) 73 NSWLR 158 .... 12.2.18 Immigration & Naturalization Service v Cardoza-Fonseca (1987) 480 US 421 .... 7.5.11 Income Tax Special Commissioners v Linsleys (Established 1894) Ltd [1958] AC 569 .... 14.4.3C

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Independent Commission Against Corruption v Cunneen (2015) 318 ALR 391; 89 ALJR 475; [2015] HCA 14 .... 4.5.4, 5.2.5, 5.2.8, 5.3.17, 8.2.6, 8.2.10C, 8.3.34, 8.3.37, 10.2.7 Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 17 ALD 529 .... 13.3.6, 15.3.17 Independent Schools’ Staff Association (ACT), Re; Ex parte Hubert (1986) 60 ALJR 458 .... 16.4.10 Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 .... 10.2.9 Initiative and Referendum Act, Re [1919] AC 935 .... 5.3.5C Inland Revenue Commissioners v National Federation of Self-Employed & Small Businesses Ltd (Fleet Street casuals case) [1982] AC 617 .... 14.4.3C, 14.4.4C, 15.3.23C, 17.4.11C, 18.4.3 — v Rossminster Ltd [1980] AC 952 (HL) .... 8.3.49 Institute of Patent Agents v Lockwood [1894] AC 347 .... 10.2.23 Isbester v Knox City Council (2015) 89 ALJR 609; [2015] HCA 20 .... 11.5.14, 11.5.32C IW v City of Perth (1997) 191 CLR 1; 146 ALR 696 .... 4.4.24, 10.2.21

J

Jackson v Goldsmith (1950) 81 CLR 446 .... 16.1.16 — v Sterling Industries Ltd (1986) 12 FCR 267 .... 2.2.47 Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1; 204 ALR 55 .... 16.1.12, 16.1.28C, 16.1.26, 16.1.29, 16.1.31, 16.2.8, 16.4.10 Jaffarie v Director General of Security (2014) 226 FCR 505; 143 ALD 596; 313 ALR 593; [2014] FCAFC 102 .... 11.2.15, 11.3.35, 11.3.37C, 11.4.23 Jago v District Court of New South Wales (1989) 168 CLR 23 .... 7.4.13 Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 .... 2.4.35 Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44; 221 ALR 95; 79 ALJR 1581 .... 9.2.5, 9.2.15, 9.2.17, 9.2.18C, 11.1.9, 11.1.10, 11.1.20C, 11.2.2, 11.2.6, 11.2.15 Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 48 ALD 265 .... 16.1.21

Jebb v Repatriation Commission (1988) 80 ALR 329 .... 3.3.26 Jetopay Pty Ltd and Australian Fisheries Management Authority, Re (1993) 32 ALD 209 .... 12.5.4, 12.5.7C, 12.5.8 Jewel Food Stores (1994) 85 LGERA 62; 122 FLR 269 .... 18.3.16C JL Holdings Pty Ltd v Queensland [1998] FCA 220 .... 12.6.5 John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] 2 NSWLR 400 .... 17.4.7, 17.4.15, 17.6.1 — v Police Tribunal of NSW (1986) 5 NSWLR 465 .... 18.4.7 John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221 .... 11.5.13 John Holman & Co Pty Ltd and Minister for Primary Industry, Re (1983) 5 ALN N219 .... 12.5.11 John v Rees [1969] 2 All ER 274 .... 11.1.8, 11.1.10, 11.1.11C Johns v Australian Securities Commission (1993) 178 CLR 408 .... 11.3.36C, 17.8.3 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 .... 2.2.18 Johnson v Director-General of Social Welfare (Vic) (1976) 135 CLR 92 .... 8.3.46 — v Director of Consumer Affairs Victoria [2011] VSC 595 .... 8.2.13, 8.3.22 — v Federal Commissioner of Taxation (1986) 11 FCR 351 .... 7.2.25 — v Johnson (2000) 201 CLR 488 .... 11.5.11, 11.5.18, 11.5.23, 11.5.24, 11.5.29, 11.5.33C — v Kent (1975) 132 CLR 164 .... 8.3.27C, 9.2.9 — v Miller (1937) 59 CLR 467 .... 11.4.12 — v Veterans’ Review Board [2006] FCAFC 15 .... 8.5.3 Jomal Pty Ltd v Commercial & Consumer Tribunal [2009] QSC 3 .... 2.4.44 Jones v Cunningham (1962) 28 USC 224 .... 17.5.1 — v Dunkel (1959) 101 CLR 298 .... 3.4.21, 10.3.26, 10.4.17 — v Office of the Australian Information Commissioner [2014] FCA 285 .... 8.3.54, 15.2.10 — v Swansea City Council [1990] 1 WLR 54 .... 2.5.23 Jonsson and Marine Council (No 2), Re (1990) 12 AAR 323 .... 5.3.33

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Cases Joyce E Shewcroft and Australian Broadcasting Corporation, Re [1985] AATA 42 .... 19.2.20 JRL, Re; Ex parte CJL (1986) 161 CLR 342 .... 11.5.13, 11.5.33C Judiciary and Navigation Acts, Re (1921) 29 CLR 257 .... 2.3.9C, 5.3.5C, 5.3.46, 18.2.8 Jumbunna Coal Mine NL v Victorian Coal Miners’ Assoc (1908) 6 CLR 309 .... 8.3.21 Jungarrayi v Olney (1992) 34 FCR 496 .... 8.3.12 Jurecek v Director of Transport Safety Victoria [2016] VSC 285 .... 20.3.1 Jurkovic v Port Adelaide Corporation (1979) 23 SASR 434 .... 8.5.20

K

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 .... 8.3.2 ‘K’ and Department of Immigration and Citizenship [2012] AICmr 20 .... 19.2.26 K-Generation Pty Ltd v Liquor Licensing Court (2007) 99 SASR 58 .... 11.3.23 — v — (2009) 237 CLR 501 .... 3.2.6C, 7.4.2, 8.3.28, 11.3.23 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 .... 2.2.41, 5.3.2, 5.3.13, 5.3.16C, 5.3.17, 5.3.20, 5.3.21, 16.1.15C Kabourakis v Medical Practitioners Board of Victoria (2006) 25 VAR 449 .... 16.1.21 Kaldas v Barbour [2017] NSWCA 275; 326 FLR 122 .... 4.3.29, 16.3.12, 16.3.20C, 17.2.6 — v — [2016] NSWSC 1880 .... 4.3.29 Kalil v Bray [1977] 1 NSWLR 256 .... 7.5.14 Kamha v Australian Prudential Regulation Authority (2007) 98 ALD 49 .... 17.7.8 Kanda v Government of Malaya [1962] AC 322 .... 11.4.12 Kannan and Minister for Immigration and Ethnic Affairs, Re (1978) 1 ALD 489 .... 18.4.18 Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393 .... 15.2.10 Kavvadias v Commonwealth Ombudsman (1984) 1 FCR 80 .... 3.3.31, 4.3.20 Kelleher v Corrective Services Commission of NSW (1987) 8 NSWLR 423 .... 17.5.8 Kelson v Forward (1995) 60 FCR 39; 39 ALD 303 .... 2.4.15, 2.4.16C, 2.4.21 Kennedy v AAT (2008) 103 ALD 238 .... 3.3.21 Kent v Johnson (1972) 21 FLR 177 .... 8.3.27C, 18.5.1



Kentish Council v Wood (2011) 21 Tas R 59 .... 2.4.44 Keyu v Secretary of State for Foreign and Commonwealth Affairs [2016] AC 1355 .... 15.3.27, 15.3.29C Khan v The Minister for Immigration and Ethnic Affairs (Gummow J, 11 December 1987, unreported) .... 10.4.22C, 10.4.25C Khera v Law Society of New South Wales (LSD) [2005] NSWADTAP 29 .... 11.5.14 Khuu & Lee Pty Ltd v Corporation of the City of Adelaide (2011) 110 SASR 235 .... 2.5.13 Kierath, Minister for Heritage; Ex parte City of Fremantle, Re (2000) 22 WAR 342 .... 14.2.3 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 27 .... 13.3.4 King v Carter; Ex parte Kisch (1934) 52 CLR 221 .... 17.5.5C — v Director of Housing [2013] TASFC 9 .... 2.4.53 — v Secretary of State for Home Affairs; Ex parte O’Brien (1923) 2 KB 361 .... 17.5.5C King Gee Clothing Pty Ltd v Commonwealth (1945) 71 CLR 184 .... 8.6.7, 8.6.8C, 8.6.9, 8.6.12 King-Brooks v Roberts (1991) 5 WAR 500 .... 14.4.8 Kingham v Cole (2002) 118 FCR 289 .... 9.2.9 Kinsey and Veterans’ Review Board, Re (1992) 29 ALD 109 .... 8.5.15 Kioa v West (1984) 4 FCR 40 .... 8.3.39, 8.3.40 — v — (1985) 159 CLR 550; 62 ALR 321 .... 2.3.11C, 7.2.9, 7.3.8, 8.3.39, 10.4.3, 11.1.14, 11.2.3–11.2.5, 11.2.8, 11.2.9, 11.2.15, 11.2.16C, 11.2.19C, 11.3.1, 11.3.2, 11.3.6, 11.3.31C, 11.3.35, 11.3.36C, 11.4.2– 11.4.4, 11.4.15, 11.4.16C, 11.4.19, 11.4.27, 11.4.28, 11.4.31, 11.5.30C, 11.5.31C Kirby v Centro Properties Ltd (No 2) (2008) 172 FCR 376 .... 11.5.5, 11.5.19 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; 262 ALR 569; [2010] HCA 1 .... 2.2.41, 3.2.16E, 4.3.29, 5.2.23, 5.3.2, 5.3.14, 5.3.15C, 5.3.20, 7.2.12, 7.2.13, 7.2.20C, 7.2.22E, 7.2.23E, 7.3.11, 8.3.46, 13.4.2, 13.4.4, 13.4.9, 16.1.11, 16.3.5, 16.3.7, 16.3.11, 16.3.12, 16.3.18C, 16.3.19C, 16.3.20C, 16.4.2, 16.4.4–16.4.6, 16.4.11, 16.4.16, 16.4.18C, 17.2.7, 17.2.14C, 17.2.20

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Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 .... 10.4.9 Lake Macquarie Shire Council v Morgan (1948) 17 LGR (NSW) 22 .... 17.6.6C Lamb v Moss & Brown (1983) 5 ALD 446; 49 ALR 533; 76 FLR 296 .... 2.4.8C, 2.4.33 Lane v Morrison (2009) 239 CLR 230 .... 5.3.19 Lansen v Minister for Environment and Heritage (2008) 174 FCR 14 .... 16.1.31 Laremont v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13 .... 13.3.3C, 13.3.4 Latitude Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 110 ALR 209 .... 12.4.8 Lawal v Northern Spirit Ltd [2004] 1 All ER 187 .... 11.5.20 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 .... 11.5.21, 11.5.25, 11.5.28, 11.5.30C, 11.5.33C Le v Minister for Immigration and Border Protection (2015) 149 ALD 582 .... 10.3.6, 15.3.37 Le and Secretary, Department of Education, Science and Training, Re (2006) 90 ALD 83 .... 20.3.1 Leask v Commonwealth (1996) 187 CLR 579 .... 8.4.31 Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543 .... 10.3.26 Lee v  Crime and Corruption Commission [2016] QCA 145 .... 4.5.4 — v New South Wales Crime Commission (2013) 251 CLR 196 .... 4.5.4, 8.3.28 — v The Queen (2014) 308 ALR 252 .... 8.3.34 Leerdam v Noori (2009) 227 FLR 210 .... 2.4.59 Leghaei v Director-General of Security (2007) 97 ALD 516 .... 11.2.15, 11.3.5, 11.3.35 Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 .... 15.4.7 Lennell v Repatriation Commission (1982) 4 ALN 54 .... 7.5.18 Leong Kum, Re (1888) 9 NSWR 250 .... 17.5.4C Leppington Pastoral Co Pty Ltd v Department of Administrative Services (1990) 23 FCR 148 .... 12.5.15 Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 L .... 15.4.7, 16.1.31 Labour Relations Board of Saskatchewan v John Lever Finance v Westminster (City) London East Iron Works Ltd [1949] AC 134 Borough Council [1971] 1 QB 222 .... 5.3.23 .... 12.6.7C, 12.6.8C xxxviii Klein v Domus Pty Ltd (1963) 109 CLR 467 .... 10.3.11, 10.3.27, 15.2.21C Klewer v Dutch (2000) 99 FCR 217 .... 2.2.19 Kline v Official Secretary to the GovernorGeneral (2013) 249 CLR 645; 304 ALR 116; [2013] HCA 52 .... 19.2.6, 19.3.1, 19.3.2C Knight v Victoria [2017] HCA 29 .... 5.3.17 — v Wise [2014] VSC 76 .... 15.3.24 Kolundzik v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 .... 12.4.7 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 .... 2.3.11C Koppen v Commissioner for Community Relations (1986) 11 FCR 360 .... 11.3.18, 11.5.15, 11.5.20 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 .... 3.3.41, 13.2.10 Kosteska v Webber [2010] QCA 138 .... 2.4.44 Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323 .... 3.4.29 Kretchmer and Repatriation Commission, Re (1988) 16 ALD 206 .... 8.5.17, 16.1.8 Kruger v Commonwealth of Australia; Bray v Commonwealth of Australia (Stolen Generations case) (1997) 190 CLR 1 .... 4.4.34, 5.3.38, 15.2.4, 15.2.18C Kruse v Johnson [1898] 2 QB 91 .... 15.2.18C, 15.3.2 Ku-ring-gai Council v West, as delegate of Acting Director-General, Office of Local Government (2017) 95 NSWLR 1 .... 11.4.25 Ku-ring-gai Municipal Council v Edwards [1957] SR (NSW) 379 .... 17.6.6C Kuczborski v Queensland (2014) 314 ALR 528 .... 18.2.2, 18.3.14, 18.4.2 Kuru v NSW (2008) 236 CLR 1 .... 8.3.34 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 .... 3.3.23, 13.6.2 Kutlu v Director of Professional Services Review (2011) 197 FCR 177; 123 ALD 399; [2011] FCAFC 94 .... 8.5.17, 8.5.18, 8.5.19C, 8.5.22, 8.5.24, 16.2.6 Kuwait Airways Corporation v Iraqi Airways Company [2002] UKHL 19; [2002] 2 AC 883 .... 2.3.18C

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Cases Levingstone v Shire of Heidelberg [1917] VLR 263 .... 8.4.17C Levy v Victoria (1997) 189 CLR 579 .... 18.5.7 Lewisham Borough Council v Roberts [1949] 2 KB 608 .... 9.3.10 Li v Chief of Army (2013) 250 CLR 328 .... 13.2.9 Likiardopoulos v R (2012) 247 CLR 265 .... 17.9.11 Liversidge v Anderson [1942] AC 206 .... 7.4.12, 8.3.48, 8.3.49, 8.3.56C, 17.5.5C Livesey v New South Wales Bar Association (1983) 151 CLR 288 .... 11.5.6, 11.5.18, 11.5.33C, 11.5.34C Lloyd v Costigan (1983) 48 ALR 241 .... 2.4.34 Lo Pak, Ex parte (1888) 9 LR (NSWR) L 221 .... 17.5.4C, 17.5.7 Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 .... 10.3.3 Lobo and Department of Immigration and Citizenship, Re [2011] AATA 705 .... 19.3.6C Local Government Board v Arlidge [1915] AC 120 .... 11.4.28 Lombardo v Federal Commissioner of Taxation (1979) 28 ALR 574 .... 13.5.12 London County Council v Attorney-General [1902] AC 165 .... 8.2.2 Lonrho plc v Secretary of State for Trade and Industry [1989] 2 All ER 609 .... 10.3.26 Lordsvale Finance Ltd and Department of the Treasury, Re [1985] AATA 174 .... 19.2.3 Loschiavo and Secretary, Department of Housing and Construction, Re (1980) 2 ALD 757 .... 18.4.18 Love v AFL Canberra Limited and the Members of the Disputes Tribunal of AFL Canberra Limited [2009] ACTSC 135 .... 11.4.11 LS v Director-General of Family and Community Services (1989) 18 NSWLR 481 .... 8.6.4 Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 .... 10.3.7, 10.3.28, 10.4.7 Luck v University of Southern Queensland (2014) 145 ALD 1 .... 2.4.59 Lundbeck A/S v Commissioner of Patents (2017) 154 ALD 471 .... 2.3.20 Luu v Renevier (1989) 91 ALR 39 .... 13.2.26C LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; 289 ALR 244 .... 4.7.5, 11.5.25, 21.2.16



Lyons v Queensland (2016) 90 ALJR 1107 .... 4.4.30

M

M v University of Tasmania [1986] Tas R 74 .... 2.3.17 M238 of 2002 v Ruddock [2003] FCAFC 260 .... 10.3.25 McAuliffe v Dept of Social Security (1992) 28 ALD 609 .... 7.5.20C McBain, Re; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; 188 ALR 1 .... 2.2.14, 2.2.42, 2.2.46, 2.3.5–2.3.7, 2.3.9C, 2.3.19, 2.4.59, 17.1.13, 17.2.3, 17.2.18, 17.9.4, 18.1.2, 18.2.2, 18.2.8, 18.4.5, 18.4.6C, 18.4.7, 18.5.1 MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 .... 8.5.24 McCarthy & Stone (Developments) Ltd v London Borough of Richmond on Thames [1992] 2 AC 48 .... 8.3.45 MacDonald v Hamence (1984) 1 FCR 45 .... 9.2.9 McDonald v Director-General of Social Security (1984) 1 FCR 354; 6 ALD 6 .... 3.2.16E, 3.4.12, 3.4.15, 3.4.16C, 3.4.18C, 3.4.19 McEldowney v Forde [1971] AC 632 .... 8.4.3, 10.2.13C McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; 161 LGERA 170 .... 10.2.21, 11.5.21, 11.5.32C, 11.5.33C, 16.2.4 McGuiness v Attorney-General (Vic) (1940) 83 CLR 73 .... 9.2.21C McGuinness v State of New South Wales (2009) 73 NSWLR 104 .... 11.2.10 McHattan and Collector of Customs, Re (NSW) (1977) 1 ALD 67 .... 18.3.16C, 18.4.16, 18.4.17C McInnes v Onslow-Fane [1978] 1 WLR 1520 .... 2.3.11C, 11.1.14, 11.2.17C McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; 91 ALD 516; 229 ALR 187; 80 ALJR 1549 .... 3.3.8, 8.3.55, 8.3.57C, 10.3.15 Macksville and District Hospital v Mayze (1987) 10 NSWLR 708 .... 16.1.12, 16.1.17C McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 .... 8.2.12 MacLeod v Australian Securities and Investments Commission (2002) 211 CLR 287 .... 8.2.4 McManus v Scott-Charlton (1996) 70 FCR 16 .... 9.2.9

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Control of Government Action Masu Financial Management P/L v Financial Industry Complaints Service (2005) 23 ACLC 215 .... 2.5.10 Mathieson v Burton (1971) 124 CLR 1 .... 3.3.32C Mauro v Hooper [2008] SASC 159 .... 21.1.32 Maxwell v Minister for Immigration and Border Protection (2016) 249 FCR 275 .... 10.4.8 May v Ferndale Institution [2005] 3 SCR 80 .... 17.5.8 — v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 .... 13.5.7, 13.5.23C, 13.5.24 MBA Land Holdings Pty Ltd v Gungahlin Development Authority (2000) 206 FLR 120 .... 2.5.21 Media, Entertainment and Arts Alliance, Re; Ex parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379 .... 17.4.16 Melbourne Corporation v Barry (1923) 31 CLR 174 .... 8.3.34 Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82 .... 18.4.24 Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409; 29 ALD 616; 112 ALR 463 .... 8.6.1, 8.6.2C, 8.6.3 Mercantile Mutual v Federal Commissioner of Taxation (1985) 8 FCR 519 .... 17.7.8 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 .... 2.5.20, 2.5.21 Metropolitan Gas Co v Federal Commissioner of Taxation (1932) 47 CLR 621 .... 8.3.50C Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 .... 11.5.2 Michael and Secretary, Department of Employment, Science and Training, Re (2006) 90 ALD 457 .... 16.1.26, 16.1.27C Michael, Re; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 .... 10.2.23 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 .... 11.5.17 Mickelberg v R (1989) 167 CLR 259 .... 3.3.43C Mickovski v Financial Ombudsman Service Ltd (2012) 36 VR 456 .... 2.5.6, 2.5.13, 2.5.14C Middleton and Building Services Authority [2010] QICmr 39 .... 19.2.20 Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 .... 8.3.5

Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268 .... 7.2.5C Macteldir v Dimovski (2005) 226 ALR 773 .... 2.2.17 MacTiernan and Secretary, Re; Department of Infrastructure and Regional Development (2016) 154 ALD 168 .... 19.3.4 MacTiernan, Re; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138 .... 17.2.15, 18.3.12 Magno v Minister for Foreign Affairs and Trade (1992) 35 FCR 235 .... 2.4.37 Maher v Adult Guardian [2011] QCA 225 .... 11.5.16 Mahon v Air New Zealand [1984] AC 808 .... 11.3.17, 13.2.32 Mahony v Industrial Registrar of New South Wales (1987) 8 NSWLR 1 .... 13.5.28 Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695 .... 16.3.10 Majar v Northern Land Council (1991) 37 FCR 117 .... 14.3.5 Makucha v Sydney Water Corporation [2011] NSWCA 234 .... 17.2.3 Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 .... 8.3.10, 8.3.20, 8.3.32C, 8.3.36 Manolakis v District Registrar, South Australian District Registry, Federal Court of Australia (2008) 170 FCR 426 .... 2.4.44 Marbury v Madison (1803) 5 US 137; 1 Cranch 137 .... 5.2.22, 7.2.5C, 7.3.12, 7.5.8, 7.5.10C Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234; 62 ALR 253 .... 11.3.21, 11.3.24, 11.3.27C, 11.3.36C — v — (1986) 10 FCR 476 .... 11.3.28 Maritime Union of Australia v Minister for Immigration and Border Protection (2016) 259 CLR 431 .... 8.4.2 Marks v The Commonwealth (1964) 111 CLR 549 .... 9.2.18C Marquess of Clanricarde v Congested Districts Board (1914) 79 JP 481 .... 10.2.12C Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council (2010) 174 LGERA 67 .... 15.2.9 Marsh v Shire of Serpentine-Jarrahdale (1966) 120 CLR 572 .... 8.3.45 Martin v Nalder [2016] WASC 138 .... 17.4.2 Master Retailers’ Assn of NSW v Shop Assistants Union of NSW (1904) 2 CLR 94 .... 18.4.5 xl

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— v Khadgi (2010) 190 FCR 248 .... 10.4.21 — v Kumar (2009) 238 CLR 448 .... 11.4.2 — v Le (2007) 164 FCR 151 .... 15.3.19 — v Li (2013) 249 CLR 332; 139 ALD 181; 297 ALR 225; [2013] HCA 18 .... 2.5.15C, 3.3.17, 3.3.19, 3.4.7, 3.4.9C, 3.4.10, 3.4.14, 3.4.22C, 4.2.14, 7.2.2, 7.2.6, 7.2.7C, 7.2.8, 7.4.4, 7.5.21, 7.5.29, 8.3.54, 8.4.24, 8.4.30, 10.3.11, 12.2.17C, 13.2.5, 13.2.7, 13.2.29, 13.2.32, 13.2.34, 13.3.4, 13.3.7, 13.3.8, 13.4.11, 13.5.12, 13.5.28, 15.1.1, 15.2.1, 15.2.4, 15.2.7–15.2.10, 15.2.13, 15.2.16, 15.2.18C, 15.2.19–15.2.21C, 15.3.2, 15.3.6, 15.3.15, 15.3.37, 15.3.38C, 21.2.3, 21.3.4 — v Maman (2012) 200 FCR 30 .... 11.4.24 — v Obele (2010) 119 ALD 358 .... 12.4.9 — v SZGUR (2011) 241 CLR 594 .... 3.2.27, 3.3.17, 3.4.9C, 15.3.21, 21.1.12 — v SZIAI (2009) 111 ALD 15; 83 ALJR 1123 .... 3.4.27, 11.4.35, 15.3.18, 15.3.19, 15.3.20C, 15.3.21 — v SZIQB [2008] FCAFC 20 .... 17.9.2 — v SZIZO (2009) 238 CLR 627 .... 11.4.2, 11.4.9 — v SZJSS (2010) 243 CLR 164; 273 ALR 122; 85 ALJR 306 .... 10.3.28, 10.4.9, 10.4.24, 10.4.25C, 10.4.29, 13.2.9, 13.2.11 — v SZKTI (2009) 238 CLR 489 .... 11.4.2 — v SZLIX (2008) 100 ALD 443 .... 15.4.4 — v SZLSP (2010) 187 FCR 362 .... 15.3.15 — v SZMDS (2010) 240 CLR 611; 266 ALR 367; [2010] HCA 16 .... 7.2.6, 7.5.21, 7.5.25, 10.3.6, 10.4.9, 13.2.5, 13.2.7, 13.2.11, 13.2.34, 13.3.7, 13.3.8, 13.4.11, 13.5.12, 13.5.22C, 13.5.28, 15.2.15, 15.2.16, 15.2.17C, 15.3.17, 21.3.3 — v SZMTR (2009) 180 FCR 586 .... 11.4.2 — v SZQHH (2012) 200 FCR 223 .... 11.5.25, 21.2.16 — v SZQOY (2012) 206 FCR 25 .... 16.1.21 — v SZRKT (2013) 212 FCR 99 .... 13.3.4 — v SZRMA (2013) 219 FCR 287 .... 10.4.15 — v SZRNY (2013) 214 FCR 374 .... 16.1.21 — v SZSNW (2014) 229 FCR 197 .... 15.2.10, 15.3.15 — v Yucesan (2008) 169 FCR 202 .... 7.5.8, 8.3.4 Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528; 68 ALR 441 .... 12.2.22C, 17.4.11C, 17.8.3, 17.8.4, 17.8.5C — v Guo (1997) 191 CLR 559; 144 ALR 567 .... 17.5.4C, 17.7.3, 17.7.7C

— v SRGGGG (2005) 215 ALR 459 .... 21.2.4 Millar v Wildish (1863) 2 W & W (E) 37 .... 9.2.7C Mills v Meeking (1990) 169 CLR 214 .... 8.3.5 Mineralogy Pty Ltd v Secretary, Department of Infrastructure and Regional Development (2014) 225 FCR 178 .... 13.2.17, 13.2.19, 13.2.20, 13.3.4 Minister Administering the Mineral Resources Development Act 1995 v Tarkine National Coalition Inc (2016) 24 Tas R 357 .... 18.4.10 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299 .... 7.2.1, 7.2.7C, 7.2.21C, 8.5.8, 10.3.4, 10.3.28, 10.4.4, 10.4.5, 10.4.7, 10.4.11, 10.4.13C, 10.4.15, 10.4.18, 10.4.25C, 12.2.23C, 13.3.3C, 13.3.4, 15.2.18C, 15.3.13, 16.1.9, 17.2.13C Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 .... 10.4.17 Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274; 14 ALD 307; 75 ALR 218 .... 2.3.4E, 2.3.6–2.3.8, 2.3.11C, 2.3.12–2.3.15, 5.2.17, 8.3.15, 9.2.4, 9.2.37, 9.3.4, 11.2.10, 11.2.15 Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur (2016) 51 VR 597; [2016] VSCA 343 .... 6.5.1, 10.3.7 Minister for Health v Thompson (1985) 8 FCR 213 .... 11.4.19, 11.5.20 Minister for Home Affairs of the Commonwealth v Zentai (2012) 246 CLR 213 .... 10.4.15 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 .... 8.4.23, 15.3.37, 15.3.38C — v MZYTS (2013) 136 ALD 547 .... 10.4.15, 15.2.10, 21.2.9 — v Singh (2014) 139 ALD 50 .... 13.2.9, 15.1.1, 15.2.10, 15.2.19, 15.3.38C — v Stretton (2016) 237 FCR 1 .... 8.4.23, 13.2.6, 15.2.10, 15.2.22, 15.3.2, 15.3.38C — v SZSRS (2014) 309 ALR 67 .... 13.3.4 — v SZSSJ (2016) 259 CLR 180 .... 11.2.9, 11.3.1, 11.4.17 —SZVFW [2018] HCA 30 .... 7.5.3, 7.5.26, 13.2.7, 15.2.20, 15.2.21C Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 .... 8.3.32C xli

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Control of Government Action 16.1.20C, 16.1.21, 16.1.22, 16.1.24–16.1.26, 16.1.27C, 16.1.28C, 16.3.17C, 16.4.5 — v Eshetu (1999) 197 CLR 611; 54 ALD 289; 162 ALR 577 .... 3.4.7, 3.4.8C, 3.4.9C, 8.3.51, 13.2.7, 15.2.17C, 15.2.18C, 15.3.7C — v Indatissa (2001) 64 ALD 1 .... 13.2.24 — v Jia (2001) 205 CLR 507; 65 ALD 1; 178 ALR 421 .... 5.2.20, 7.5.16, 8.3.15, 10.3.23, 10.4.17, 11.5.8, 11.5.22, 11.5.31C, 11.5.32C — v Lay Lat (2006) 151 FCR 214; 231 ALR 412 .... 11.2.19C, 11.3.31C — v Ozmanian (1996) 71 FCR 1 .... 2.4.10 — v Rajamanikkam (2002) 210 CLR 222; 69 ALD 257; 190 ALR 402 .... 13.2.17, 13.2.23, 13.2.24, 13.2.27C — v SBAN [2002] FCAFC 431 .... 15.4.11–15.4.13 — v Singh (2000) 98 FCR 469 .... 21.2.11–21.2.12 — v Vadarlis (2001) 110 FCR 491; 183 ALR 1 .... 2.2.23, 2.2.28, 2.2.29, 2.3.13, 2.3.15, 8.2.3, 9.2.5, 9.2.13–9.2.15, 9.2.20, 9.2.21C, 9.2.22, 17.1.2, 17.1.6, 17.5.1, 17.5.3, 17.5.4C, 17.5.7, 17.5.8, 17.9.3 — v Yusuf (2001) 206 CLR 323 .... 7.5.21, 10.3.28, 10.4.9, 10.4.25C, 16.2.8, 16.4.11, 16.4.13, 16.4.16, 21.2.8, 21.2.10, 21.2.12 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Applicants S134/2002 (2003) 211 CLR 441 .... 13.4.11, 17.4.5 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Palme (2003) 216 CLR 212 .... 16.4.10, 21.1.4 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 .... 17.5.6 — v Huynh (2004) 139 FCR 505 .... 10.4.5 — v NAOS of 2002 [2003] FCAFC 142 .... 15.4.12 — v NBDS (2006) 90 ALD 614 .... 15.3.17 — v Nystrom (2006) 228 CLR 556 .... 10.4.5, 10.4.6 — v SGLB (2004) 78 ALD 224; [2004] HCA 32 .... 13.2.29, 13.3.7, 15.2.17C — v Watson (2005) 145 FCR 542 .... 16.1.24 Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 .... 12.2.9, 12.2.17C, 12.2.21, 12.2.24C, 12.2.25 — v Kurtovic (1990) 21 FCR 193; 92ALR 93 .... 8.2.13, 12.6.4, 12.6.5, 12.6.7C, 12.6.8C

— v Mayer (1985) 157 CLR 290 .... 2.4.49 — v Naumovska (1983) 88 ALR 589 .... 13.3.14 — v Petrovski (1997) 73 FCR 303 .... 12.6.11 — v Pochi (1980) 31 ALR 666; 44 FLR 41 .... 3.4.12, 13.2.32, 13.2.33, 21.1.2 — v Tagle (1983) 48 ALR 566; 67 FLR 164 .... 10.4.28 — v Taveli (1990) 23 FCR 162 .... 21.3.3, 21.3.6, 21.3.8 — v Teo (1995) 57 FCR 194 .... 8.3.13 — v Wu Shan Liang (1996) 185 CLR 259 .... 3.4.18C, 7.2.6, 7.5.19, 7.5.20C, 7.5.21, 8.3.51, 10.4.9, 10.4.29, 13.2.30, 21.2.16, 21.3.3 Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 73 ALD 1; 198 ALR 59 .... 7.2.7C, 13.2.7, 13.3.7, 13.4.11, 13.5.4, 15.2.14, 15.2.17C, 15.3.1 Minister for Immigration and Multicultural Affairs, Re; Ex parte Cohen (2001) 177 ALR 473 .... 13.3.8 Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609; 168 ALR 407 .... 2.2.27, 2.2.46, 17.1.13, 21.2.11 Minister for Immigration and Multicultural Affairs, Re; Ex parte Epeabaka (2001) 206 CLR 128 .... 3.4.18C Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502 .... 5.2.12, 5.3.45, 7.3.7, 7.3.12, 11.1.8, 11.1.14, 11.3.10, 11.3.13, 11.3.14C, 11.3.15, 11.3.16C, 11.4.6 Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238 .... 2.2.27, 5.3.54, 8.3.34, 11.1.1, 11.1.9, 11.2.6, 11.2.13–11.2.15, 11.2.19C, 11.3.23–11.3.25, 11.3.30C, 11.3.31C, 11.4.2, 11.4.4, 11.4.5, 11.4.15, 11.4.22, 16.4.8 Minister for Immigration and Multicultural Affairs v Al Miahi (2001) 65 ALD 141 .... 13.2.16 — v Ali (2000) 106 FCR 313; 62 ALD 673 .... 13.6.2 — v Anthonypillai (2001) 106 FCR 426 .... 10.4.7 — v Bhardwaj (2002) 209 CLR 597; 67 ALD 615; 187ALR 117 .... 3.3.22, 7.2.21C, 13.4.11, 16.1.6, 16.1.8, 16.1.16, 16.1.19, xlii

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Momcilovic v The Queen (2011) 245 CLR 1; 280 ALR 221; 85 ALJR 957; [2011] HCA 34 .... 4.4.5, 4.4.15, 4.4.20, 4.4.21, 5.3.46, 8.3.20, 8.3.30, 8.3.33C, 8.3.34, 10.3.15, 13.5.23C, 15.3.40 Montreal Street Railway Co v Normandin [1917] AC 170 .... 16.2.6, 16.2.10C Morgan v Commissioner of Police [2011] NSWCA 134 .... 16.5.2 Morrison v Minister for Immigration [2008] FCA 54 .... 10.3.28 Morton v Ruiz (1974) 415 US 199 .... 7.5.9C — v Transport Appeal Boards [2007] NSWSC 888 .... 11.5.19 — v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402; [1951] ALR 655 .... 8.4.12, 8.4.14C, 10.2.13C Mosley v News Group Newspapers [2008] EWHC 1777 .... 20.1.11 Mowday v WA [2007] 176 A Crim R 85 .... 8.2.12 Mudginberri Station Pty Ltd v Langhorne (1985) 7 FCR 482; 68 ALR 613 .... 14.1.3, 14.3.1, 14.3.2C, 17.4.7 Muggeridge v Minister for Immigration and Border Protection (2017) 351 ALR 153 .... 15.2.10, 15.2.19 Muin v Refugee Review Tribunal (2002) 68 ALD 257 .... 7.2.24, 13.4.11 Municipal Council of Sydney v Campbell [1925] AC 338 .... 10.2.3, 10.2.9, 10.2.12C Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1; 9 ALR 199 .... 7.4.13, 7.5.16, 8.3.15, 10.2.13C, 10.2.16C, 10.3.4, 10.3.16C, 10.3.23, 10.4.13C, 12.5.5C, 14.2.1 Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11 .... 8.4.25, 15.2.12, 15.3.12 Musgrove v Toy [1891] AC 272 .... 17.5.4C Mutasa v Attorney-General [1980] QB 114 .... 2.3.15 MYVZ v Director-General of Security (2014) 148 ALD 489 .... 13.5.6 MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601 .... 2.2.28, 2.2.29 MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 .... 3.4.15, 11.5.25, 21.2.16

— v Mok (1994) 55 FCR 375 .... 11.5.21 — v Pashmforoosh (1989) 18 ALD 77 .... 10.3.6, 15.3.15 Minister for Industry and Commerce v East West Trading Co Pty Ltd (1986) 10 FCR 264 .... 12.2.22C — v Tooheys Ltd (1982) 4 ALD 661; 42 ALR 260 .... 2.4.40C, 2.4.43, 2.4.47, 6.1.15 Minister for Mental Health v A [2017] NSWCA 288 .... 2.1.2.22 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 .... 8.2.12 Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 .... 8.4.24, 8.4.28C, 15.3.15 Minister for Public Works v Duggan (1951) 83 CLR 424 .... 10.2.15C Minister for Resources, Re; Ex parte Cazaly Iron Pty Ltd (2007) 34 WAR 403 .... 10.3.25 Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 .... 8.4.28C, 8.4.29C, 8.4.30, 8.4.31, 15.3.32 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; 39 ALD 206; 128 ALR 353 .... 1.2.1, 2.2.26, 4.4.13, 5.2.17, 8.3.40, 10.3.6, 11.3.7, 11.3.11– 11.3.13, 11.3.14C, 11.3.15, 16.2.10C Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 .... 11.4.33, 17.4.7 — v Williams (2000) 60 ALD 366; [2000] FCA 125 .... 4.4.13 Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 .... 18.4.3 Mississippi Power & Light Co v Mississippi (1998) 487 US 354 .... 7.5.10C Mistretta v United States (1989) 488 US 361 .... 5.3.48 Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242 .... 2.5.15C MLC Investment v Federal Commissioner of Taxation (2003) 137 FCR 288 .... 13.2.24 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 .... 11.2.16C, 11.3.36C Mokbel v Attorney-General (2007) 162 FCR 296 .... 9.2.9 Molomby v Whitehead (1985) 7 FCR 541 .... 13.4.7 xliii

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Control of Government Action — v Cannellis (1994) 181 CLR 309 .... 11.4.32 — v Commonwealth (2006) 229 CLR 1 .... 5.2.1 New South Wales Aboriginal Land Council v Minister Administering Crown Lands (Consolidation) Act and Western Lands Act (1988) 14 NSWLR 685 .... 3.3.32C New South Wales Farmers’ Association v Minister for Primary Industries and Energy (1990) 21 FCR 332; 94 ALR 207 .... 12.4.2, 12.4.3C New South Wales Trotting Club Ltd v Glebe Municipal Council (1937) 37 SR (NSW) 288 .... 12.6.7C Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 .... 8.3.2 Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) [2011] 3 SCR 708 .... 21.1.22 News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 .... 19.2.11 News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 .... 10.2.19 NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561 .... 10.2.21, 11.4.16C Nicholson-Brown v Jennings (2007) 162 FCR 337 .... 10.3.25 Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65; 16 ALD 611; 92 ALR 167 .... 12.2.21, 12.2.23C Ningkan v Government of Malaysia [1970] AC 379 .... 10.2.13C Nisselle v Brouwer (2007) 16 VR 296 .... 4.3.27 Nobarani v Mariconte [2018] HCA 36 .... 11.4.8, 11.4.33 Nomad Industries of Australia Pty Ltd v Federal Commissioner of Taxation [1983] 2 NSWLR 56 .... 2.2.38 Nona v Barnes [2013] 2 Qd R 528 .... 2.4.19, 2.4.55 Norbis v Norbis (1986) 161 CLR 513 .... 7.4.13 North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569 .... 5.3.17, 11.5.1 North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492; 127 ALR 617; 36 ALD 533 .... 18.1.2, 18.2.4, 18.3.8, , 18.3.12, 18.3.13, 18.4.7, 18.4.25

N

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 .... 5.2.11 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 .... 3.3.24, 7.2.24, 13.3.8, 13.4.11 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 .... 7.2.6, 10.4.9, 17.4.1 NAJT v Minister for Immigration (2005) 147 FCR 51 .... 10.4.20 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 .... 10.4.9 Nakkuda Ali v Jayaratne [1951] AC 66 (PC) .... 8.3.49 Namah v Pato [2016] PGSC .... 2.2.30 National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 .... 11.2.16C NAUV v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 82 ALD 784 .... 17.9.10 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; 307 ALR 49 .... 10.4.6 NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44; 307 ALR 90 .... 10.4.23 NCSC v News Corp Ltd (1984) 156 CLR 296 .... 11.4.34 Neal v Secretary, Department of Transport (1980) 3 ALD 97 .... 13.5.24 NEAT Domestic Trading Pty Ltd v AWB Ltd (2001) 114 FCR 1 .... 2.5.2, 2.5.11, 2.5.12C, 2.5.23 — v — (2003) 216 CLR 277 .... 2.4.53, 2.5.11, 2.5.12C, 2.5.14C, 12.2.4 Nesbitt Fruit Products Inc v Wallace (1936) 17 F Supp 141 .... 8.3.24C Neviskia Pty Ltd, Saitta Pty Ltd and Department of Health and Aged Care, Re (2000) 32 AAR 129 .... 5.3.33 Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 .... 12.2.17C, 12.5.3 New South Wales v Amery (2006) 230 CLR 174 .... 4.4.28 — v Bardolph (1934) 52 CLR 455 .... 9.2.9, 9.2.32, 9.3.10 xliv

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Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320 .... 3.3.38, 7.2.27, 8.3.53, 10.3.11, 10.3.15, 13.5.8C O’Sullivan v Farrer (1989) 168 CLR 210 .... 10.3.11, 10.3.12, 10.3.13 Othman v Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 707 .... 15.3.14 Otter Gold Mines Ltd v Forrest (1997) 47 ALD 89 .... 2.4.23 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465; 13 ALD 740 .... 16.2.8, 21.2.11 Owen v Menzies [2013] 2 Qd R 327; (2012) 293 ALR 571 .... 3.2.4, 5.3.19 Owners of Shin Kobe Maru v Empire Shipping Company Inc (1994) 181 CLR 404 .... 13.5.8C

Northside Developments Pty Ltd v RegistrarGeneral (1990) 170 CLR 146 .... 8.2.12 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 .... 13.5.21C NSW Breeding & Racing Stables Pty Ltd v Administrative Appeals Tribunal (2001) 53 NSWLR 559 .... 17.9.5, 17.9.7C NSW Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691 .... 3.3.47

O

Oakley v South Cambridgeshire District Council [2017] 1 WLR 3756 .... 21.2.21 O’Brien v Northern Territory (2002) 139 NTR 1 .... 16.4.10 O’Connell v Nixon (2007) 16 VR 440 .... 8.4.2, 8.4.15, 8.4.19 O’Connor and Australia Postal Corp, Re (2010) 116 ALD 417 .... 21.1.14 O’Connor v Adamas (2013) 210 FCR 364 .... 10.3.7 — v Zentai (2011) 195 FCR 515 .... 10.4.15 Office of the Premier v Herald and Weekly Times (2013) 38 VR 684 .... 19.2.7 Ogle v Strickland (1987) 13 FCR 306 .... 18.1.2, 18.2.4, 18.4.6C, 18.4.10 O’Keefe v City of Caulfield [1945] VLR 227 .... 6.5.3 Olmstead v United States 277 US 438 (1928) .... 2.5.23 O’Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688 .... 14.4.6 Ombudsman Act, Re (1970) 72 WWR 176 .... 4.2.21E O’Meara v R [2006] NSWCCA 127 .... 2.2.38 Onesteel Manufacturing P/L v Whyalla Red Dust Action Group Inc (2006) 94 SASR 357 .... 18.3.12 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; 36 ALR 425 .... 18.1.2, 18.3.3, 18.3.5C, 18.3.6C, 18.3.10C, 18.4.2 O’Reilly v Commissioners of State Bank of Victoria (1983) 153 CLR 1 .... 8.5.3, 8.5.6C, 8.5.7, 8.5.9C, 8.5.21 Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447 .... 16.3.4, 16.3.7, 16.3.14C Oshlack v Richmond River Council (1998) 193 CLR 72 .... 10.3.15

P

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 .... 7.4.11, 10.2.4, 10.2.13C, 10.3.5, 10.3.17C, 10.3.26, 10.4.13C, 14.2.1, 17.4.11C Palavi v Minister for Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 214 .... 10.3.22 Palmer v Ayres; Ferguson v Ayres [2017] HCA 5 .... 5.3.43 — v Chief Executive, Qld Corrective Services [2010] QCA 316 .... 2.2.51 Palmer and Defence Force Retirement and Benefit Authority, Re (2004) 85 ALD 148 .... 16.1.25 Palmer and Minister for the Capital Territory, Re (1978) 1 ALD 183 .... 21.2.12 Pancontinental Mining Ltd v Burns (1994) 52 FCR 454 .... 2.4.23, 2.4.34 Pape v Commissioner of Taxation (2009) 238 CLR 1 .... 9.2.26, 9.2.30C Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 .... 13.3.19, 16.4.6, 16.4.9, 16.4.10 Park Oh Ho v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 104 .... 10.2.17 — v — (1989) 167 CLR 637; 18 ALD 673; 88 ALR 517 .... 16.1.6, 16.1.16, 16.1.29, 17.8.3, 17.8.4, 17.8.6C, 17.8.8, 17.8.9 Parnell and Department of the Prime Minister and Cabinet [2012] AICmr 31 .... 19.2.7 xlv

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Control of Government Action Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 .... 2.2.18, 2.2.24C Philip Morris Ltd v Victoria [1986] VR 825 .... 6.2.8 Phillips v Military Rehabilitation and Compensation Commission (2006) 90 ALD 667 .... 20.2.13 Pilbara Infrastructure Pty Ltd, The v Australian Competition Tribunal (2012) 246 CLR 379 .... 3.3.41 PJB v Melbourne Health (2011) 39 VR 373 .... 7.5.27 Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 85 ALJR 740 .... 17.1.11, 17.1.12 Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1; 292 ALR 243; [2012] HCA 46 .... 2.3.14, 8.3.39, 8.3.46, 8.4.2, 8.4.4, 8.4.5, 8.4.7C, 10.3.15 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; 85 ALJR 133 .... 2.2.30, 2.4.59, 2.5.13, 7.3.8, 8.2.4, 9.2.15, 9.3.5, 11.1.1, 11.2.6, 11.2.9, 11.2.13, 11.2.15, 11.2.20C, 16.3.7, 17.2.6, 17.4.5 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 .... 7.5.18, 10.3.23, 10.4.9, 10.4.29, 12.2.17C, 12.5.8, 13.3.10, 21.3.3 Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 327 ALR 369 .... 2.2.30, 9.2.19, 9.2.24, 17.5.9, 18.3.11, 18.4.4 Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; 122 ALD 237; 280 ALR 18; [2011] HCA 32 .... 2.2.30, 5.2.9, 5.2.20, 7.4.2, 7.5.16, 8.3.21, 10.3.28, 13.3.9, 13.3.15, 13.3.16, 13.3.17C, 16.4.6, 16.4.15 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53 .... 2.3.14, 13.3.4, 13.5.17 Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336; 298 ALR 1; 87 ALJR 682 .... 8.3.15, 10.2.4, 10.2.5C, 10.2.6C, 10.2.10, 10.3.15 Plaintiff M96A/2016 v Commonwealth (2017) 155 ALD 224 .... 5.3.38

Parnell and Minister for Infrastructure and Transport [2011] AICmr 3 .... 19.2.7 Parnell and Prime Minister of Australia (No 2) [2011] AICmr 12 .... 19.2.7 Parramatta City Council v Hale (1982) 47 LGRA 319 .... 10.4.5 — v Pestell (1972) 128 CLR 305 .... 15.2.5, 15.3.3, 15.3.4C Patchett v Leathem [1949] 65 TLR 69 .... 6.1.18, 6.1.19C Pattenden v Commissioner of Taxation (2008) 175 FCR 1; 106 ALD 482; [2008] FCA 1590 .... 8.5.3, 8.5.8, 8.5.9C Patterson, Re; Ex parte Taylor (2001) 207 CLR 391 .... 10.3.7 Paull v Munday (1976) 9 ALR 245; 50 ALJR 551 .... 8.4.5, 8.4.20, 8.4.21C PCS Operations Pty Ltd v Maritime Union of Australia (1998) 153 ALR 520 .... 2.2.22 Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 5 FCR 532 .... 10.4.13C, 10.4.15 Peninsula Anglican Boys’ School v Ryan (1985) 7 FCR 415; 8 ALD 418; 69 ALR 555 .... 12.2.14C Perder Investments Pty Ltd v Elmer (1991) 23 ALD 545 .... 12.2.8 — v — (1991) 31 FCR 201 .... 17.7.9 Perfection Fresh Australia Pty Ltd v Melbourne Market Authority (2013) 41 VR 657 .... 2.3.16 Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue (1994) 123 ACTR 17 .... 8.5.10 Perrett v Attorney-General of the Commonwealth (2015) 232 FCR 467 .... 6.4.3 Pervan v Frawley (2011) 20 Tas R 185; [2011] TASSC 27 .... 11.3.17, 13.3.14 Petrotimor v The Commonwealth of Australia (2003) 126 FCR 354 .... 2.3.18C Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 128 FCR 507 .... 2.2.18 Peverill v Meir (1990) 20 ALD 491; 95 ALR 401 .... 2.4.9, 2.4.27, 2.4.32C Pham v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] 1 WLR 1591 .... 15.3.29C Phelps v Western Mining Corp Ltd (1978) 20 ALR 183 .... 18.4.23C xlvi

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Cases Plaintiff M150/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 199 .... 2.2.31 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 .... 2.2.33, 3.3.15, 14.2.5 Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 312 ALR 537; 88 ALJR 847 .... 10.2.4, 10.2.6C, 10.2.10 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 .... 2.3.5, 2.4.60, 7.3.8, 8.3.40, 8.5.11, 9.3.6, 9.3.7C, 10.2.5C, 10.3.11, 11.2.9, 11.3.6, 11.3.15, 18.2.8 Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17 .... 17.6.11 Plaintiff S111/2017 v Minister for Immigration and Border Protection [2017] FCA 813 .... 12.6.9 Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 29; 88 ALJR 690 .... 2.2.30, 6.5.1, 10.3.5 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 72 ALD 1; 195 ALR 24 .... 2.2.28, 2.2.43, 5.1.1, 5.3.7, 5.3.54, 5.3.57C, 5.3.59, 7.2.12, 7.3.10, 8.3.46, 10.2.5C, 11.1.1, 11.1.7C, 13.4.9, 15.2.15, 16.1.11, 16.1.16, 16.3.4–16.3.9, 16.3.17C, 16.3.18C, 16.4.5, 16.4.12, 16.4.16, 17.2.17, 17.2.18 Plaintiff S195/2016 v Minister for Immigration and Border Protection (2017) 91 ALJR 857 .... 9.3.5 Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; 309 ALR 209 .... 2.2.31, 8.3.7, 8.4.2, 10.3.23, 17.4.3, 17.4.14 — v — (2015) 255 CLR 231 .... 7.2.26, 17.4.3 Plenty v Dillon (1991) 171 CLR 635 .... 8.3.31C, 8.3.34 Pochi and Minister for Immigration and Ethnic Affairs, Re (1979) 2 ALD 33; 26 ALR 247 .... 3.3.13, 3.4.12, 3.4.13C, 3.4.14, 3.4.20, 3.4.22C, 11.4.23, 13.2.33 Police v Clayton-Smith (2010) 107 SASR 261 .... 10.2.18 Pollentine v Bleijie (2014) 311 ALR 332 .... 5.3.17 Porter v Magill [2002] 2 AC 357 .... 10.3.21, 11.5.23



Posner v Collector for Inter-State Destitute Persons (Victoria) (1946) 74 CLR 461 .... 16.2.7, 16.4.4, 16.4.6, 16.4.10, 16.4.16 Post Office Agents Association Ltd v Australian Postal Commission (1988) 16 ALD 428 .... 2.2.22, 2.4.59 Potter v Minahan (1908) 7 CLR 277 .... 8.3.9, 8.3.32C, 8.3.34 Povey v Qantas Airways Ltd (2005) 223 CLR 189 .... 8.3.20 Poyser and Mill’s Arbitration, Re [1964] 2 QB 467 .... 21.2.6 Practical Shooting Institute (New Zealand) Inc v Commissioner of Police [1992] 1 NZLR 709 .... 12.2.10 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 .... 15.3.18, 15.3.19 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; 104 ALR 317 .... 5.3.23, 5.3.25, 5.3.26C, 5.3.27, 5.3.28C, 5.3.40 Prescott v Birmingham Corporation [1955] Ch 210 .... 10.3.20 Prior v Mole (2017) 343 ALR 1 .... 8.3.59 Prisoners A to XX inclusive v NSW (1996) 38 NSWLR 622 .... 17.5.8 Privacy Commissioner in 2015 v Telstra Corporation Limited (2017) FCR 24 .... 20.2.4, 20.3.4 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248 .... 8.1.1, 16.3.7, 16.3.12, 16.3.19C, 17.2.4, 17.2.20 Progress Properties Ltd v Woollahra Municipal Council (1969) 18 LGRA 166 .... 15.3.24 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490 .... 4.4.14, 8.3.2, 8.3.5, 8.3.20, 8.5.24, 10.2.23, 12.2.5, 13.3.13C, 16.1.32, 16.2.2–16.2.6, 16.2.10C, 16.3.7, 16.3.17C PT Pabrik Kertas Tjiwi Kimia TBK v Minister for Justice and Customs (2000) 60 ALD 203 .... 14.2.9 Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment (2012) 250 CLR 343 .... 5.3.17 Public Service Association and Professional Officers’ Association Amalgamated Union (NSW) v New South Wales (2014) 242 IR 338 .... 8.4.2

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Control of Government Action

Public Service Association of SA Inc v Industrial Relation Commission of SA (2013) 115 SASR 413 .... 17.9.2 Public Service Association (SA) v Federated Clerks’ Union (SA) (1991) 173 CLR 132 .... 7.2.20C, 8.3.46 Public Service Board of NSW v Osmond (1986) 159 CLR 656 .... 10.3.26, 16.3.14C, 17.2.12C, 17.2.14C, 21.1.8, 21.1.14, 21.1.18, 21.1.19C, 21.1.20, 21.1.21, 21.1.24–21.1.26 Puhlhofer v Hillingdon London Borough Council [1986] 1 AC 484 .... 13.3.6 Punton v Ministry of Pensions and National Insurance (No 2) [1964] 1 All ER 448 .... 17.7.9, 17.9.3 Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; 77 ALD 570; 202 ALR 133 .... 4.4.27, 4.4.31C, 8.3.12 Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565 .... 8.6.10, 8.6.13

Q

Qantas Airways Ltd v Christie (1998) 193 CLR 280 .... 4.4.29, 5.3.2 — v Gama (2008) 101 ALD 458 .... 4.4.27 — v Gubbins (1992) 28 NSWLR 26 .... 3.4.10 — v Lustig [2015] FCA 253 .... 5.3.19 Queensland v Congoo (2015) 256 CLR 239 .... 8.3.10 Queensland Investment Corporation and Minister for Transport and Regional Services, Re (2004) 84 ALD 717 .... 18.4.18, 18.4.20 Queensland Medical Laboratory v Blewett (1988) 16 ALD 440 .... 2.4.35, 2.4.42, 2.4.43 Queensland North Australia Pty Ltd v Takeovers Panel [2014] FCA 591 .... 13.2.21 Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Limited (1989) 167 CLR 177 .... 2.5.23 Quikfund Australia Pty Ltd v Prosperity Group International Pty Limited (In Liq) (2013) 209 FCR 368 .... 8.5.21 QVFT and Secretary, Department of Immigration and Citizenship [2012] AATA 501 .... 19.2.20

R

R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; [1965] ALR 1067

.... 2.5.12C, 7.2.1, 7.2.26, 8.3.54, 12.1.6, 12.3.3C, 12.3.4C, 12.3.5C, 12.4.2, 12.5.8, 17.4.11C, 17.8.5C — v Arndel (1906) 3 CLR 557 .... 17.4.8C — v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 .... 10.3.5, 10.3.11, 10.3.12, 10.4.13C — v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 .... 10.4.1, 10.4.17 — v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 .... 11.5.33C, 13.2.2, 13.2.3C, 13.2.4, 13.2.8, 13.2.11, 13.3.7, 13.5.12, 13.5.22C — v Blakeley; Ex parte Ass’n of Architects, Engineers, Surveyors & Draughtsmen of Aust (1950) 82 CLR 54 .... 13.3.13C, 17.4.16 — v Blizzard; Ex parte Downs [1993] 1 Qd R 151 .... 21.1.30 — v Board of Control; Ex parte Rutty [1956] 2 QB 109 .... 17.5.7 — v Board of Education [1910] 2 KB 165 .... 7.2.19C — v Bolton; Ex parte Beane (1987) 162 CLR 514 .... 17.5.4C — v Bow Street Metropolitan Stipendiary Magistrate; Ex Parte Pinochet Ugarte [2000] 1 AC 119 .... 11.5.19 — v Brewer (1942) 66 CLR 535 .... 8.5.26C — v Brown [1996] 1 AC 543 .... 13.5.20C — v Cambridge Health Authority; Ex parte B [1995] 2 All ER 129 .... 14.4.5 — v Chief Constable of Sussex; Ex parte International Trader’s Ferry Ltd [1999] 1 All ER 129 .... 14.4.5 — v Chief Immigration Officer, Gatwick Airport, Ex parte Kharrazi (1980) 1 WLR 1396 .... 12.2.22C — v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415; 49 ALR 259 .... 16.3.4, 16.3.5, 16.3.7, 16.3.8, 16.3.16C, 16.3.17C, 16.4.10, 16.4.16 — v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 8 ALR 691 .... 17.2.13C — v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group .... 11.5.33C — v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 .... 2.3.5, 2.4.60

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Cases



— v Independent Broad-Based Anti-Corruption Commissioner (2016) 256 CLR 459 .... 4.5.4, 8.3.28 — v Industrial Court; Ex parte Maynes (1978) 139 CLR 482 .... 16.4.10 — v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1980] QB 407 .... 18.2.2 — v Insurance Ombudsman; Ex parte Aegon Life Insurance Ltd [1994] COD 426 .... 2.5.9, 2.5.14C — v Jockey Club Disciplinary Committee; Ex parte Aga Khan [1993] 2 All ER 853 .... 2.5.9, 2.5.21 — v Justices of Kent (1873) LR 8 QB 305 .... 8.5.6C — v Justices of Surrey (1870) LR 5 QB 466 .... 18.4.6C — v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 .... 5.3.9, 5.3.10C, 5.3.11, 16.3.17C — v Lambert [2002] 2 AC 545; [2001] 3 All ER 577 .... 15.3.40 — v Lampe; Ex parte Maddalozzo (1963) 5 FLR 160 .... 8.5.16 — v Lee; Ex parte Shaw [1882] 9 QBD 394 .... 11.5.14, 11.5.33C — v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 .... 7.5.13 — v Macdonald; Ex parte Macdonald (1953) 88 CLR 197 .... 17.5.2 — v MacKellar; Ex parte Ratu (1977) 137 CLR 461 .... 11.2.16C — v Mahoney; Ex parte Johnson (1931) 46 CLR 131 .... 12.3.4C, 14.3.1 — v Maidstone Crown Court & Governor of Elmley Prison; Ex parte Clark [1995] 1 WLR 831 .... 17.5.1 — v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471 .... 11.3.26C, 11.3.27C — v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 .... 16.3.17C — v Metropolitan Police Commissioner; Ex parte Blackburn [1968] 2 QB 118 .... 14.4.2C, 18.4.3

— v Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co Ltd (No 1) (1914) 18 CLR 54 .... 2.4.59 — v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] ALR 675 .... 17.1.5, 17.4.6, 17.4.10C, 17.9.2, 17.9.4 — v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 .... 8.3.49, 8.3.50C, 8.3.51, 8.4.18C, 15.2.8, 15.2.17C, 16.3.7 — v Cotham [1898] 1 QB 802 .... 3.3.10C — v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864 .... 17.2.3, 17.2.10C — v Davison (1954) 90 CLR 353 .... 5.3.28C, 5.3.36C — v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 .... 3.4.11, 13.2.27C, 13.2.32, 13.3.3C — v District Court; Ex parte White (1966) 116 CLR 644 .... 13.2.4, 13.5.22C — v Dunphy; Ex parte Maynes (1978) 139 CLR 482 .... 7.2.20C — v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171 .... 11.1.9, 11.1.19C, 17.2.2 — v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 .... 16.4.10 — v Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (1979) 143 CLR 190 .... 2.2.44, 2.4.59, 13.3.19, 17.1.14C, 17.2.16, 18.4.6C — v Gough [1993] AC 646 .... 11.5.23 — v Gray; Ex parte Marsh (1985) 157 CLR 351 .... 2.2.44, 7.2.20C, 16.4.9, 16.4.17C — v Graziers’ Association of NSW; Ex parte Australian Workers’ Union (1956) 96 CLR 317 .... 18.4.7 — v Hibble; Ex parte Broken Hill Proprietary Co Ltd (1920) 28 CLR 456 .... 17.3.4 — v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 .... 11.1.7C, 16.3.5, 16.3.8–16.3.10, 16.3.16C, 16.3.17C, 16.4.16, 17.1.16 — v Home Secretary, Ex parte Khawaja [1984] 1 AC 74 .... 17.5.5C — v Income Tax Special Commissioners (1881) 21 QBD 313 .... 14.4.5C xlix

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Control of Government Action — v Secretary of State for the Home Department; Ex parte Khan [1985] 1 All ER 40 .... 15.3.2 — v Secretary of State for the Home Department; Ex parte Northumbria Police Authority [1989] QB 26 .... 9.2.19 — v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 .... 8.3.28 — v Secretary of State for the Home Department; Ex parte Venables [1997] UKHL 25 .... 12.2.17C — v Shoreditch Assessment Committee; Ex parte Morgan [1910] 2 KB 859 .... 5.2.23 — v Skinner [1968] 2 QB 700 .... 8.5.5C, 9.3.10 — v Surrey Justices (1870) LR 5 QB 466 .... 18.4.6C — v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 .... 11.5.2 — v Thames Magistrates’ Court; Ex parte Polemis [1974] 1 WLR 1371 .... 11.4.11 — v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; 38 ALR 439 .... 2.3.4E, 2.3.8, 2.3.11C, 2.3.13, 5.2.17, 8.4.2, 8.4.31, 9.3.1, 10.1.1, 10.2.3, 10.2.4, 10.2.9, 10.2.13C, 10.3.26, 11.2.17C, 15.4.13 — v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 .... 5.3.22, 5.3.37C — v Trebilco; Ex parte F S Falkiner & Sons Ltd (1936) 56 CLR 20 .... 10.3.1 — v Visiting Justice at Pentridge Prison; Ex parte Walker [1975] VR 883 .... 11.4.32 — v War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] ALR 533 .... 3.4.13C, 7.2.19C, 17.4.1, 17.4.4, 17.4.9C — v Waters [1912] VLR 372 .... 18.4.4 — v Watson; Ex parte Armstrong (1976) 136 CLR 248 .... 11.5.34C — v White; Ex parte Byrnes (1963) 109 CLR 665 .... 5.3.34 — v Wright; Ex parte Waterside Workers’ Federation of Australia (1955) 93 CLR 528 .... 2.3.20, 17.2.16, 17.3.2 R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 .... 15.3.29C R (Catt) v Association of Chief Police Officers of England, Wales and Ireland [2015] AC 1065 .... 9.2.9, 20.3.1

— v Minister of Health (1939) 1 KB 232 .... 7.2.19C — v Monopolies and Mergers Commission Ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23 .... 13.5.16 — v Moore; Ex parte Australian Telephone and Phonogram Officers’ Association (1982) 148 CLR 600; 39 ALR 1 .... 12.2.15C — v Murphy (1985) 158 CLR 596 .... 2.2.37 — v Murray and Cormie; Ex parte Commonwealth (1916) 22 CLR 437 .... 2.4.59, 17.1.5 — v Murray; Ex parte Proctor (1949) 77 CLR 387 .... 16.3.17C — v Nat Bell Liquors Ltd [1922] 2 AC 128 .... 13.3.13C, 17.2.14C — v Nicholson [1899] 2 QB 455 .... 18.4.6C — v Norris (1758) 2 Keny 300; 96 ER 1189 .... 18.4.23C — v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213 .... 11.3.10 — v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1KB 338; 1 All ER 122 .... 17.2.3, 17.2.7, 17.2.9C — v OC (Oliver Curtis) [2015] NSWCCA 212 .... 8.3.34 — v Panel on Take-overs and Mergers; Ex parte Datafin plc [1987] 1 QB 815 .... 2.5.2, 2.5.6, 2.5.8C, 2.5.9, 2.5.10, 2.5.14C, 17.2.11 — v Pharmacy Board of Victoria; Ex parte Broberg [1983] 1 VR 211 .... 11.4.14 — v Port of London Authority; Ex parte Kynoch Ltd [1919] 1 KB 176 .... 12.2.8, 12.2.12C, 12.2.13C — v Ross-Jones; Ex parte Green (1984) 156 CLR 185 .... 17.1.14C — v Secretary of State for Education and Employment; Ex parte Begbie [2000] 1 WLR 1115 .... 7.5.24, 12.1.1 — v Secretary of State for Foreign Affairs; Ex parte Everett (1989) QB 811 .... 2.3.13 — v Secretary of State for Home Department; Ex parte Pierson [1998] AC 538 .... 8.3.28, 8.3.32C — v Secretary of State for the Home Department; Ex parte Brind [1991] 1 AC 696 .... 8.3.39 — v Secretary of State for the Home Department; Ex parte Cheblak [1991] 1 WLR 890 .... 17.5.1 l

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Radio 2UE Sydney Pty Ltd v Burns (EOD) [2005] NSWADTAP 69 .... 5.3.33 Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6 .... 13.2.29 Randall v Northcote Corporation (1910) 11 CLR 100; 16 ALR 249 .... 10.3.19C, 12.3.3C, 17.4.4, 17.4.8C, 17.4.11C Randwick City Council v Minister for the Environment (1998) 54 ALD 682 .... 10.2.4, 10.3.24 — v — (1999) 167 ALR 115 .... 10.3.24 Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 133 ALD 39; 296 ALR 307 .... 13.2.8, 13.2.31 Reference under Section 11 of Ombudsman Act 1976 for an Advisory Opinion, Re; Ex parte Director-General of Social Services (1979) 2 ALD 86 .... 4.3.19, 8.5.1, 8.5.3, 8.5.4, 8.5.5C, 8.5.6C Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82; 62 ALD 285; 176 ALR 219 .... 2.2.27, 2.2.43, 2.2.46, 5.3.54, 5.3.55, 7.2.7C, 11.1.1, 11.2.19C, 11.4.6, 11.5.35C, 13.4.11, 16.1.9, 16.4.2, 16.4.8, 16.4.18C, 17.1.7, 17.1.14C, 17.2.17, 17.3.1, 17.9.4 Reid, Re; Ex parte Bienstein (2001) 182 ALR 473 .... 2.4.59 Rendell v Release on Licence Board (1987) 10 NSWLR 499; 14 ALD 134 .... 12.2.7, 12.2.11C Repatriation Commission v Holden (2014) 142 ALD 267 .... 21.2.9 — v O’Brien (1985) 155 CLR 422 .... 13.5.8C, 21.3.5 — v Owens (1996) 70 ALJR 904 .... 3.2.51, 13.5.6 — v Smith (1987) 15 FCR 327 .... 3.4.15 Res I v Medical Board of Queensland [2008] QCA 152 .... 21.2.7 Resch and Department of Veterans Affairs, Re (1986) 9 ALD 380 .... 19.2.26 RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185 .... 2.4.40C Richmond v BMW Australia Finance Ltd (No 2) (2009) 174 FCR 232 .... 21.3.6 Riddell v Secretary, Department of Social Security (1993) 42 FCR 443; 30 ALD 31; 114 ALR 340 .... 12.1.5, 12.4.2, 12.4.4C, 12.4.7 Ridge v Baldwin [1964] AC 40 .... 11.1.9, 11.1.10, 11.1.19C, 11.2.2, 11.2.15, 11.2.16C, 11.3.21, 11.3.35, 11.4.2, 11.4.13, 11.4.31, 16.1.19C, 16.1.20C, 16.1.23, 17.2.3

R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 .... 15.3.26, 15.3.30 R (Evans) v Attorney-General [2015] 1 AC 1787 .... 19.3.5 R (Gallaher Group Ltd) v Competition and Markets Authority [2018] 2 WLR 1583; [2018] UKSC 25 .... 11.3.10, 15.3.25 R (Glencore Energy UK Ltd) v Revenue and Customs Commissioners [2017] 4 WLR 213 .... 17.9.5 R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 .... 16.1.6 R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 .... 7.5.24, 15.3.30 R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61 .... 9.2.17 R (on the application of Client Earth) v Secretary of State for the Environment, Food and Rural Affairs [2015] 4 All ER 724 .... 17.4.14 R (on the application of Hasan) v Secretary of State for Trade and Industry [2009] 3 All ER 539 .... 21.1.21 R (on the application of Holmcroft Properties Ltd) v KPMG LLP [2016] EWHC 323 .... 2.5.9 R (on the application of Moseley) v Haringey London Borough Council [2015] 1 All ER 495 .... 11.1.4 R (on the application of Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 .... 11.3.10 R (Osborn) v Parole Board [2013] UKSC 61 .... 11.1.15C R (Public Law Project) v Lord Chancellor (Office of the Children’s Commissioner intervening) [2016] 1 AC 1531 .... 11.3.12 R (Sandiford) v Secretary of State for Commonwealth Affairs [2014] UKSC 44 .... 9.3.4 R (Unison) v Lord Chancellor [2018] 3 WLR 409 .... 8.3.46 Racal Communications Ltd, Re [1981] AC 374 .... 16.4.17C Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) (1979) 142 CLR 460 .... 8.5.16 Radio Corporation Pty Ltd v Commonwealth (1938) 59 CLR 170 .... 5.3.6 li

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Control of Government Action Russell and Conservator of Flora and Fauna, Re (1996) 42 ALD 441 .... 3.3.22 Russell v Duke of Norfolk [1949] 1 All ER 109 .... 11.2.16C, 11.4.3 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd (1921) 2 AC 438 .... 17.7.5C

Ridgeway v R (1995) 184 CLR 19 .... 5.2.6 Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50; 37 ALD 357; 128 ALR 238 .... 2.4.13, 2.4.14C, 18.1.2, 18.3.8, 18.3.11C, 18.3.12 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW (2007) 4 DDCR 607 .... 21.1.29 Rizeq v Western Australia (2017) 344 ALR 421 .... 2.2.7, 2.2.12, 2.2.18, 2.2.37 Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151 .... 18.5.3 Roberts v Hopwood [1925] AC 578 .... 10.3.4, 10.3.5, 10.3.18C, 10.3.20 — v Repatriation Commission (1992) 39 FCR 420 .... 12.6.3 Robertson v City of Nunawading [1973] VR 819 .... 3.3.33 Robinson and Department of Employment and Workplace Relations, Re (2002) 35 AAR 414 .... 19.2.21 Robtelmes v Brenan (1906) 4 CLR 395 .... 9.2.21C Rocca v Ryde Municipal Council [1962] NSWR 600 .... 12.7.4C Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451 .... 2.4.37, 2.4.38, 2.4.40C, 2.4.41, 6.1.15, 6.1.29, 12.1.7 Roche v Kronheimer (1921) 29 CLR 329 .... 5.3. 5C, 6.1.4 Rodger v De Gelder (2011) 80 NSWLR 594 .... 7.4.16, 17.2.5 Rodway v R (1990) 169 CLR 515 .... 3.3.31 Romeo v Asher (1991) 23 ALD 168 .... 13.2.29 Roncevich v Repatriation Commission (2005) 222 CLR 115 .... 8.3.11, 8.3.13, 13.5.16, 21.2.12 Rose v Boxing NSW Inc [2007] NSWSC 20 .... 11.3.21 — v Bridges (1997) 79 FCR 378 .... 11.3.36C Ross v Costigan (1982) 41 ALR 319; 59 FLR 184 .... 2.4.8C Royal British Bank v Turquand (1856) 6 El & Bl 327; 119 E 886 .... 8.2.12, 12.6.7C Ruddock v Taylor (2005) 222 CLR 612 .... 2.4.30 Ruhani v Director of Police (2005) 222 CLR 489 .... 2.4.60, 17.5.9 Rummery and Federal Privacy Commissioner, Re (2004) 85 ALD 368 .... 20.3.5

S

S v Secretary, Department of Immigration and Multicultural & Indigenous Affairs [2005] FCA 549 .... 14.1.6 S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358 .... 11.5.19 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 .... 8.3.7, 11.4.2 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 .... 8.3.7, 10.4.3, 11.2.19C, 11.3.23, 11.3.31C, 16.3.7, 16.3.18C Salahuddin v Minister for Immigration and Border Protection (2013) 140 ALD 1 .... 10.4.30 Salemi v MacKellar (No 2) (1977) 137 CLR 396 .... 11.2.12, 11.2.16C, 11.2.17C Salerno v National Crime Authority (1997) 75 FCR 133 .... 2.4.17C Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807 .... 11.4.11 Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 .... 8.3.27C, 10.2.11, 10.2.15C Sandbrook, Re; Noel v Sandbrook (1912) 2 Ch 471 .... 8.6.12 Sanders v Snell (1998) 196 CLR 329 .... 12.4.7 — v — (No 2) (2003) 130 FCR 149 .... 11.5.28 Santos v Wadren Pty Ltd (2009) 31 VAR 251 .... 7.5.18 Saraceni v ASIC (2013) 211 FCR 298 .... 11.3.17 SBAU v Minister for Immigration and Multicultural Affairs (2002) 70 ALD 72 .... 15.4.14 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 .... 15.4.10, 15.4.10 SBEG v Commonwealth (2012) 208 FCR 235 .... 17.6.10 lii

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Secretary, Treasury v Public Service Association & Professional Officers’ Association Amalgamated Union of NSW [2014] NSWCA 138 .... 13.5.14 Seeligson v City of Melbourne [1935] VLR 365 .... 8.4.6, 8.4.8C, 8.4.18C, 8.4.27C, 16.5.5 Seiffert v Prisoners Review Board [2011] WASCA 148 .... 11.4.13, 12.2.17C, 16.3.7 Sengupta v Holmes [2002] EWCA Civ 1104 .... 11.5.16 Sent v Primelife [2006] VSC 455 .... 20.3.1 Seven Network (Operations) Ltd v Media, Entertainment and Arts Alliance (2004) 148 FCR 145; [2004] FCA 637 .... 20.2.15 SF Bowser & Co, Ex parte; Municipal Council of Randwick, Re (1927) 27 SR (NSW) 209 .... 8.3.15, 10.3.4, 10.3.19C, 10.3.20 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 344 ALR 355 .... 8.3.10, 8.3.28 Shanahan v Scott (1957) 96 CLR 245; [1957] ALR 171 .... 8.3.26, 8.4.12, 8.4.13C, 8.4.30, 10.2.9, 10.2.13C Sharpe v Wakefield [1891] AC 173 .... 7.2.1, 7.2.7C Shaw v Buljan (2016) 153 ALD 282 .... 15.2.10 — v Police Integrity Commission (2006) 66 NSWLR 446 .... 11.3.19 Shergold v Tanner (2002) 209 CLR 126; 76 ALJR 808 .... 8.3.46, 16.3.17C Sherlock v Lloyd (2010) 27 VR 434 .... 21.1.24, 21.1.29, 21.1.31, 21.1.33, 21.3.5 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 .... 3.3.2, 3.3.5, 3.3.8, 3.3.11C, 3.3.24, 3.3.25, 3.3.28, 3.3.29, 3.3.38, 3.3.45, 8.3.6, 13.6.2 Shire of Beechworth v Attorney-General (Vic) [1991] 1 VR 325 .... 2.3.16 SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43 .... 7.5.26 Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552; 129 ALR 191 .... 18.1.2, 18.3.6C, 18.4.2 — v The Australian Industry Group (2017) 350 ALR 592 .... 7.5.14 Short v Poole Corporation [1926] Ch 66 .... 7.2.3C Shrimpton v Commonwealth (1945) 69 CLR 613 .... 10.2.3

Scharer v State of New South Wales (2001) 53 NSWLR 299 .... 2.4.50C Schierholter v County Court of Victoria (2006) 15 VR 583 .... 8.2.13 Schlieske v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 101; 84 ALR 719 .... 10.2.3, 10.2.9, 10.2.11, 10.2.16C Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 .... 11.2.17C, 11.3.6 Schwennesen v Minister for Environment and Resource Management (2010) 176 LGERA 1 .... 2.4.42 Scrivanich and Australian Taxation Office, Re (1983) 5 ALN N299 .... 19.2.26 Scurr v Brisbane City Council (No 5) (1973) 133 CLR 242 .... 16.2.5, 16.2.10C Seafish Tasmania Pelagic Pty Ltd v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2014) 140 ALD 142 .... 2.4.41 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 .... 8.5.8, 10.4.4, 10.4.5, 10.4.8, 10.4.10, 10.4.12C, 10.4.13C — v — (1982) 42 ALR 676 .... 10.4.12C Searle Australia Pty Ltd v Public Interest Advocacy Centre & Department of Community Service & Health (1992) 36 FCR 111 .... 19.2.11 Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 .... 4.4.14 Secretary, Department of Industry, Tourism and Resources v Kimberly-Clark Australia Pty Ltd (2005) 147 FCR 142 .... 13.5.26 Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 .... 10.3.5, 10.3.14 Secretary, Department of Social Security and Bradley, Re (1992) 28 ALD 400 .... 3.3.33 Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 .... 8.5.3, 8.5.7 — v Hodgson (1992) 37 FCR 32 .... 3.3.23 Secretary, Department of Treasury and Finance v Kelly [2001] VSCA 26 .... 19.2.20 Secretary of State for Education and Science v Tameside Metropolitan BC [1977] AC 1014 .... 7.2.5C Secretary of State for Home Affairs v O’Brien [1923] AC 603 .... 17.5.5C Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 .... 11.1.15C liii

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Control of Government Action — v Tanner (1989) 166 CLR 161; 83 ALR 631 .... 8.3.14, 8.4.3–8.4.6, 8.4.9C, 8.4.19, 8.4.26, 8.4.27C, 8.4.28C, 8.4.29C, 8.4.31, 15.3.32, 16.5.5 — v Totani (2010) 242 CLR 1; [2010] HCA 39 .... 5.2.5, 5.3.14, 5.3.16C, 5.3.17, 5.3.18, 7.2.12, 11.5.1, 13.4.9, 16.4.6, 16.4.10 South East Asia Fire Bricks Sdn Bhd v NonMetallic Mineral Products Manufacturing Employees Union [1981] AC 363 .... 16.3.13C, 16.3.15C SRB and Department of Health, Housing, Local Government and Community Services, Re (1994) 19 AAR 178 .... 19.2.20 St Helen’s Area Landcare and Coastcare Group Inc v Break O’Day Council (2007) 16 Tas R 169; 151 LGERA 421 .... 12.2.7, 12.5.11 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 .... 2.2.24C State of New South Wales v Corbett (2007) 230 CLR 606 .... 8.6.5 — v Chapman-Davis [2016] NSWCA 237 .... 8.3.12 — v Kable (2013) 252 CLR 118; 298 ALR 144 .... 16.1.6, 16.1.12, 16.1.15C, 16.1.16 State of Queensland v Wyvill (1989) 25 FCR 512 .... 7.2.26 State of Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 .... 9.2.32 — v Tabcorp Holdings Ltd [2014] VSCA 312 .... 12.6.10 — v Tatts Group Ltd [2014] VSCA 311 .... 12.6.10 State of Western Australia v AH (2010) 41 WAR 431 .... 13.5.25 Stead v State Government Insurance Commission (1986) 161 CLR 141 .... 11.4.6 Stemcor Pty Ltd and Chief Executive Officer of Customs, Re (2007) 95 ALD 462 .... 18.4.20 Stewart v Ronalds (2009) 76 NSWLR 99; 232 FLR 331 .... 2.3.7, 2.3.13, 11.1.21, 11.2.15 Stiles v Galinski [1904] 1 KB 615 .... 8.4.9C Street v Queensland Bar Association (1989) 168 CLR 461 .... 4.4.24 Stuart v O’Connor [2016] NSWSC 1179 .... 8.5.16 Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; 141 ALD 540; [2014] FCAFC 93 .... 3.3.13, 3.4.21, 3.4.22C, 10.3.26, 13.2.28, 13.2.29

Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 .... 2.2.43, 6.5.1 Simpson v Attorney-General (NZ) [1955] NZLR 271 .... 16.2.10C Sin Yong Yim v Industrial Relations Commission of NSW (2007) 162 IR 62 .... 16.3.10 Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 .... 13.2.10, 13.2.25C, 17.4.4, 17.4.13 Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 .... 10.4.20 Sir Cliff Richard OBE v British Broadcasting Corporation [2018] EWHC 1837 (Ch) .... 20.1.11 Slattery v Naylor [1888] 13 App Cas 446 .... 8.4.19 Smallbone v New South Wales Bar Association (2011) 198 FCR 17; [2011] FCA 1145 .... 20.2.15 Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538 .... 15.3.25, 17.9.11 Smillie v Legal Aid Commission of Tasmania [2014] TASSC 19 .... 2.4.54 Smith, Re; Ex parte Rundle (1991) 5 WAR 295 .... 18.4.7 Smith v East Elloe Rural District Council [1956] AC 736 .... 16.1.12, 16.1.19C Smits v Roach (2006) 227 CLR 423 .... 11.5.19, 11.5.29 Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287; 36 ALD 1; 125 ALR 577 .... 12.4.2, 12.4.5C Sodeman v R (1936) 55 CLR 192 .... 3.4.18C Son and Australian Trade Commission, Re (2005) 86 ALD 469 .... 18.4.18 Sorby v Commonwealth (1983) 152 CLR 281 .... 8.3.34 Sordini v Wilcox (1983) 70 FLR 326 .... 13.4.7, 17.7.7C Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 .... 21.1.5, 21.1.32 South Australia v O’Shea (1987) 163 CLR 378; 13 ALD 747; 73 ALR 1 .... 2.3.4E, 2.3.14, 7.5.16, 8.3.15, 10.3.23, 11.2.3, 11.2.10, 11.2.13, 11.2.15, 11.2.18C, 11.3.5, 11.3.23, 11.3.24, 11.3.33C, 11.4.27, 11.4.28, 11.5.31C — v Slipper (2004) 135 FCR 259 .... 10.2.18, 10.3.24, 11.3.35, 11.3.36C, 11.4.4 liv

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Cases



SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146 .... 11.5.25 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 .... 11.1.11C, 11.5.18 SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 .... 11.4.36 SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73 .... 15.4.7 SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 .... 15.3.15 SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34 .... 10.4.9

Summers v Repatriation Commission [2014] FCA 608 .... 21.2.9 — v — [2015] FCAFC 36 .... 21.2.10 Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 .... 3.4.17, 13.2.29, 13.2.34 Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324 .... 3.4.8C Sunol v Collier (2012) 81 NSWLR 619 .... 5.3.19 Sunshine Coast Broadcasters Ltd v Duncan (1988) 15 ALD 525; 83 ALR 121 .... 15.3.22, 15.3.23C Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys (2012) FCA 977 .... 4.7.5 Sutherland Shire Council v Finch (1969) 123 CLR 657 .... 13.3.13C Swan Hill Corporation v Bradbury (1937) 56 CLR 746; [1937] ALR 194 .... 8.3.8, 8.4.3–8.4.5, 8.4.16, 8.4.17C, 8.4.18C, 8.4.19, 10.3.10C, 10.3.11, 10.4.13C Sydney Ferries v Morton [2010] NSWCA 156 .... 15.2.16, 21.1.31, 21.1.33 Sydney Training Depot Snapper Island Ltd v Brown (1987) 14 ALD 464 .... 2.5.22, 11.2.15 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 .... 11.1.14, 11.3.31C, 11.4.2, 11.4.18 SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 .... 17.9.5 SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 .... 13.2.7, 13.2.8 SZEEU v Minister for Immigration and Citizenship [2008] FCA 269 .... 15.4.8 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 .... 13.4.11, 15.4.5–15.4.7 SZJBA v Minister for Immigration and Citizenship (2007) 164 FCR 14 .... 15.3.19 SZMYO v Minister for Immigration and Citizenship (2011) 121 ALD 272 .... 15.3.21, 16.4.11 SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 .... 2.4.15, 2.4.20 SZQJH v Minister for Immigration and Border Protection (2013) 140 ALD 11 .... 11.4.26

T

T v Medical Board of South Australia (1992) 58 SASR 382 .... 21.1.30 Ta v Thompson [2013] VSCA 344 .... 2.4.62 Tabcorp Holdings Ltd v Victoria (2016) 90 ALJR 376 .... 8.2.11 Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 .... 8.3.34 Tadros v Charles Sturt University [2008] NSWSC 1140 .... 11.3.29 Tahmindjis v Brown (1985) 7 FCR 277 .... 11.5.4 Tan Te Lam v Superintendent of Tai A Chan Detention Centre [1997] AC 97 .... 13.3.13C Tang v Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177 .... 10.3.22 Taranto (1980) Pty Ltd t/as Esquire Motor Inn v Madigan (1988) 15 ALD 1 .... 9.2.9 Tasker v Fullwood [1978] 1 NSWLR 20 .... 8.6.2C, 16.2.10C Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 .... 2.2.23, 10.4.28 Taveli v Minister for Immigration and Ethnic Affairs (1989) 18 ALD 87 .... 15.3.15 Tavitian v Commissioner of Highways [2010] SASC 206 .... 17.1.10 Taylor v O’Beirne [2010] QCA 188 .... 17.7.3 — v The Owners — Strata Plan 11564 [2014] HCA 9 .... 8.3.7 TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 144 ALD 471 .... 11.4.9, 13.2.5, 13.2.31–13.2.33 — v Judges of the Federal Court of Australia (2013) 251 CLR 533 .... 2.2.15 lv

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Control of Government Action Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367; [1979] FCA 85 .... 19.2.17 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 .... 13.3.4, 13.3.9, 13.3.13C, 13.3.14 Timmins and Attorney-General’s Department [2015] AICmr 32 .... 19.2.9, 19.3.4 Tisdall v Webber (2011) 193 FCR 260 .... 13.2.10, 13.2.28, 15.3.15 TLT v Secretary of State for the Home Department [2018] 4 WLR 101 .... 20.1.11 TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 .... 13.5.26 Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 .... 10.4.10, 10.4.20, 11.4.28 Toohey, Re; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 .... 10.4.13C, 10.4.19 Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 4 ALD 277; 54 FLR 421 .... 18.3.16C, 18.4.9, 18.4.10 Toonen v Australia (1994) 1:3 Int Hum Rts Reports 97 .... 4.4.33, 4.4.35C Toy v Musgrove (1888) 14 VLR 349 .... 9.2.21C — v Musgrove [Musgrove v Toy] [1891] AC 272 .... 17.5.4C Tracy v Repatriation Commission (2000) 101 FCR 149 .... 7.5.8 Trajkovski and Telstra Corporation Ltd (1998) 81 FCR 459 .... 7.4.16 TRHL v Minister for Immigration and Border Protection (2016) 69 AAR 192 .... 10.4.8 Trives v Hornsby Shire Council (2015) 89 NSWLR 268 .... 13.3.9, 16.3.20C, 17.1.17 Trop v Dulles (1958) 356 US 86 .... 7.2.5C Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77 .... 3.2.4, 5.3.19 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; 169 ALR 616 .... 2.3.9C, 18.2.2, 18.4.4, 18.4.6C, 18.4.13, 18.4.22, 18.4.23C Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2008] NSWSC 399 .... 11.4.9 Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 (2008) 302 ALR 299 .... 7.4.2, 8.3.14

Telecommunications Industry Ombudsman Ltd v Commissioner of State Revenue [2017] VSC 286 .... 4.3.30 Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1987) 13 FCR 511 .... 13.2.27C Television Corporation Ltd v Commonwealth (1963) 109 CLR 59 .... 8.6.9, 8.6.12 Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 171 FCR 174 .... 10.4.17 — v — (No 2) (2007) 97 ALD 652 .... 2.4.13, 8.6.11, 21.2.6 — v — (No 3) (2007) 99 ALD 268 .... 16.5.2 — v Kendall (1995) 55 FCR 221 .... 12.2.7, 12.2.16C, 12.2.18 Terrell v Secretary of State for the Colonies [1953] 2 QB 482 .... 11.1.19C Testro Bros Pty Ltd v Tait (1963) 109 CLR 353 .... 11.3.17 Tetron International Pty Ltd v Luckman (1985) 8 ALD 243 .... 2.2.7, 2.2.20, 2.2.23, 2.2.24C Thai Pineapple Canning Industry Corp Ltd v Minister for Justice and Customs (2008) 104 ALD 481 .... 13.3.4 The Case of Captain C (1673) 1 Ventris 250 .... 8.2.8C Theodore v Duncan [1919] AC 696 .... 9.2.2 Theophanous v Commonwealth (2006) 225 CLR 101 .... 8.4.31 Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; 81 ALJR 1414 .... 5.2.12, 5.3.23, 5.3.41, 5.3.42C Thompson v Department of Environment and Conservation [2011] FCA 617 .... 15.4.13 — v Randwick Corporation (1950) 81 CLR 87 .... 8.3.27C, 10.2.11, 10.2.15C Thomson and Lockyer Valley Regional Council (Queensland Information Commissioner, unreported, 23 September 2010) .... 19.2.20 Thongchua v Attorney-General (1986) 11 FCR 187 .... 2.4.3 Thornton v Repatriation Commission (1981) 3 ALD 281 .... 14.2.7, 14.2.9 Thorpe v Minister for Aboriginal Affairs (1990) 26 FCR 325 .... 6.4.4 Tickner v Bropho (1993) 40 FCR 183 .... 8.3.12, 14.2.2, 14.2.3, 15.3.19 — v Chapman (1995) 57 FCR 451; 133 ALR 226 .... 8.5.8, 10.4.10, 10.4.16C, 10.4.17–10.4.20 lvi

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Vereker v O’Donovan [1988] 6 Leg Rep SL3 .... 17.9.11 Vice-Chancellor, Macquarie University v FM (GD) [2003] NSWADTAP 43 .... 20.3.3 — v FM [2005] NSWCA 192 .... 20.3.3 Vickers v Minister for Business and Consumer Affairs (1982) 43 ALR 389 .... 8.2.2 Victoria Legal Aid v Kuek (2010) 26 VR 700; [2010] VSCA 29 .... 3.3.20, 18.4.7 Victoria Park Racing and Recreation Grounds v Taylor (1937) 58 CLR 479 .... 20.1.10 Victoria Police v Marke [2008] VSCA 218 .... 19.3.6C Victoria v Commonwealth (AAP (Australian Assistance Plan) case) (1975) 134 CLR 338 .... 9.2.9, 9.2.28 — v Master Builders’ Association of Victoria [1995] 2 VR 121 .... 9.2.9 Victorian Chamber of Manufactures v Commonwealth (Women’s Employment Regulations) (1943) 67 CLR 347 .... 6.4.3 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 .... 5.3.4, 5.3.5C, 5.3.6–5.3.8, 6.1.4, 6.1.11C, 6.4.2, 8.4.2, 10.2.13C Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 .... 15.3.19 Vietnam Veterans’ Affairs Association of Australia New South Wales Branch v Cohen, McCredie & Giles (1996) 70 FCR 419 .... 2.2.22, 2.4.59 Vietnam Veterans’ Association of Australia (NSW Branch) Inc v Gallagher (1994) 52 FCR 34 .... 11.5.24, 11.5.25 Village McEvoy Pty Ltd v Council of City of Sydney (No 2) (2010) 176 LGERA 119 .... 10.4.23 Vine v National Dock Labour Board [1957] AC 488 .... 8.5.15 Visa Cancellation Applicant and Minister for Immigration and Citizenship, Re [2011] AATA 690 .... 3.3.2, 3.3.7, 3.3.12C Visa International Services Association v Reserve Bank of Australia (2003) 131 FCR 300 .... 2.4.40C Vitalone and Secretary, Department of Social Security, Re (1995) 38 ALD 169 .... 8.3.12 Von Arnim v Ellison (2006) 150 FCR 282 .... 8.2.12 Von Stalheim v Anti-Discrimination Tribunal [2013] TASSC 24 .... 2.4.33

Tucker v Minister for Immigration and Citizenship [2011] FCAFC 16 .... 11.4.23 Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 .... 13.4.6, 13.5.5 Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 .... 3.3.38 Turner v Commissioner of Police [2017] NSWCATAD 356 .... 19.2.20 — v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 237; 35 ALR 388 .... 10.3.8, 10.4.27 Twinn v Minister for Immigration (2005) 147 FCR 490 .... 10.3.22 Twist v Randwick Municipal Council (1976) 136 CLR 106; 12 ALR 379 .... 11.2.15, 11.2.19C, 11.3.5, 11.3.23, 11.3.26C, 11.3.27C, 11.3.30C, 11.5.30C, 16.1.17C

U

Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492 .... 11.4.6, 11.4.26 Uelese v Minister for Immigration and Border Protection (2015) 319 ALR 181; [2015] HCA 15 .... 3.3.37, 3.4.27, 11.3.23, 16.4.11 United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 .... 18.5.6, 18.5.7 United States v Shimer 367 US 374 (1961) .... 7.5.9C Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629 .... 8.4.22 Utah Power & Light Co v United States 243 US 389 .... 12.6.7C

V

Vacher & Sons Ltd v London Society of Compositors [1913] AC 107 .... 8.3.3 Vadarlis v Minister for Immigration and Multicultural Affairs (M93/2001, 27 November 2001, unreported) .... 9.2.21C Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633 .... 11.5.18, 11.5.25, 11.5.34C Vanstone v Clark (2005) 147 FCR 299; 88 ALD 520; 224 ALR 666 .... 8.4.9C, 8.4.24, 8.4.26, 8.4.28C, 8.4.30, 8.4.31 Vasiljkovic v Commonwealth (2006) 227 CLR 614 .... 2.4.59, 5.3.47 Vega Vega v Hoyle [2015] QSC 111 .... 11.4.24 Vella v Minister for Immigration and Border Protection (2017) 90 ALJR 89 .... 17.1.11 lvii

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Control of Government Action Waverley Municipal Council v Parker (1960) 5 LGRA 241 .... 17.6.6C Weal v Bathurst City Council (2000) 111 LGERA 181 .... 10.4.26 Webb v R (1994) 181 CLR 41 .... 11.5.12, 11.5.23, 11.5.24, 11.5.30C Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455; 23 ALD 778 .... 7.2.21C, 14.2.7, 14.2.8C Weinel v Judge Parsons (1994) 62 SASR 501 .... 17.9.7C Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29 .... 3.4.10, 11.4.20 Welborn and Department of Health, Housing and Community Services, Re (1993) 30 ALD 759 .... 18.4.18 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 .... 17.8.9 West Australian Newspapers Ltd and Department of the Premier and Cabinet, Re [2015] WAICmr 9 .... 19.2.7 Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414 .... 13.3.5C Westwood v Lightly (1984) 2 FCR 41 .... 8.3.12 Wetzel v District Court of New South Wales (1998) 43 NSWLR 687 .... 12.2.13C, 12.2.20 Whalley v Commissioner of Police [2003] NSWSC 273 .... 21.1.8 Wheeler v Leicester City Council [1985] AC 1054 .... 15.3.9, 15.3.11 Whim Creek Consolidated v Colgan (1991) 31 FCR 469 .... 2.4.33 White v Director of Military Prosecutions (2007) 231 CLR 570; 235 ALR 455 .... 5.3.25, 5.3.34, 7.5.28 — v Ryde Municipal Council [1977] 2 NSWLR 909 .... 11.4.27, 11.4.31 Whitley Partners Ltd, Re (1886) 32 Ch D 337 .... 8.5.6C Widgee Shire Council v Bonney (1907) 4 CLR 977 .... 8.4.10 Wightman v Secretary of State for Exiting the European Union [2018] CSOH 61 .... 2.3.7 Wik Peoples v Queensland (1996) 187 CLR 1 .... 9.2.13, 11.3.31C Willarra Pty Ltd v McVeigh (1984) 6 FCR 587 .... 11.2.15 William Cory & Son Ltd v London Corporation [1951] 2 KB 476 … .... 12.7.4C

W

W375/01A v Minister for Immigration and Multicultural Affairs (2002) 67 ALD 757 .... 7.5.26 WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 271 .... 11.4.32 Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 .... 5.3.17, 5.3.48, 5.3.51C, 5.3.52 Wakim, Re; Ex parte McNally (1999) 198 CLR 511 .... 2.2.21, 2.2.58, 3.2.48, 17.3.4 Walsh & Johnson, Ex parte; Re Yates (1925) 37 CLR 36 .... 9.2.21C Walsh and Commissioner of Taxation, Re (2012) 130 ALD 200 .... 3.3.13, 3.3.21 Walton v The Scottish Ministers [2012] UKSC 44 .... 18.3.14 Waratah Coal Pty Ltd v Mitchell [2013] 1 Qd R 90 .... 10.4.14C Warringah Shire Council v Moore (1942) 15 LGR (NSW) 44 .... 17.6.6C — v Pittwater Provisional Council (1992) 26 NSWLR 491 .... 10.2.18 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 .... 7.4.13, 10.3.5, 10.3.10C, 10.3.11, 10.3.13, 10.4.13C, 11.2.16C, 14.2.1 Waterford v Commonwealth (1987) 163 CLR 54 .... 13.2.4, 13.3.6 Waterhouse v Independent Commission Against Corruption (No 2) [2016] NSWCA 133 .... 14.2.4 Waters v Public Transport Corporation (1991) 173 CLR 349 .... 4.4.15, 4.4.28 Waterside Workers’ Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482 .... 17.7.6C — v J W Alexander Ltd (1918) 25 CLR 434 .... 5.3.5C, 5.3.28C, 17.5.4C Wati v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 1 .... 15.4.4 Watson v Australian Community Pharmacy Authority (2011) 124 ALD 1 .... 13.2.18, 13.2.21, 13.3.4 — v Lee (1979) 144 CLR 374 .... 6.3.2, 6.3.4, 6.3.5, 8.4.2 Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253; 12 ALD 151; 70 ALR 330 .... 16.1.14, 16.1.29, 16.1.30C, 16.1.31, 17.8.4, 17.8.7 lviii

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Workcover Corporation of South Australia v Davey (2011) 110 SASR 173 .... 11.2.14 Wotton v Queensland (No 5) (2016) 157 ALD 14 .... 4.4.12, 8.3.39 Wright and State Electricity Commission of Victoria [1998] VCAT 162 .... 19.2.20 Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 432 .... 3.4.18C, 7.5.20C, 21.2.26 WZARH v Minister for Immigration and Border Protection (2014) 142 ALD 490 .... 7.2.20C, 8.3.40, 11.1.14, 11.3.15, 11.3.16C, 11.4.29, 11.4.31

Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 .... 5.3.7, 6.1.25, 8.2.3, 8.3.2, 8.3.15, 8.4.26, 9.2.5, 9.2.11, 9.2.13, 9.2.25–9.2.27, 9.2.29, 9.2.30C, 9.2.31C, 9.2.32, 18.5.1 — v — (No 2) (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23 .... 5.3.7, 6.1.25, 9.2.13, 9.2.17, 9.2.26–9.2.29, 9.2.31C, 9.2.32 — v Melbourne Corporation (1933) 49 CLR 142 .... 8.4.6, 8.4.9C, 8.4.27C, 8.4.28C, 8.4.29C, 8.4.30, 15.2.5, 15.2.12 — v Minister for Immigration and Border Protection (2014) 226 FCR 112 .... 12.2.25, 12.5.14 — v Minister for Justice and Customs of the Commonwealth of Australia (2007) 157 FCR 286 .... 10.4.18 Williams and Australian Electoral Commission, Re (1995) 38 ALD 366 .... 18.4.18 Willis v Repatriation Commission (2012) 202 FCR 323; [2012] FCA 399 .... 21.2.9 Wilson v Ferguson [2015] WASC 15 .... 20.1.11 — v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; 138 ALR 220 .... 5.3.41, 5.3.48, 5.3.50C, 5.3.52 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64; 88 ALJR 52; [2013] HCA 43 .... 13.5.19, 17.2.4, 17.2.15, 21.1.14, 21.1.20, 21.1.23, 21.2.1, 21.2.2C, 21.2.3 Wirth v Mackay Hospital and Health Service [2015] QSC 39 .... 11.4.24 Wishart v Fraser (1941) 64 CLR 470 .... 5.3.6, 6.1.4 WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370 .... 17.3.3, 17.9.2 Wood v Woad (1874) LR 9 Ex 190 .... 11.1.19C Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 .... 10.2.20 Woolley v Attorney-General (Vic) (1877) 2 App Cas 163 .... 9.2.7C

X

X v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 524 .... 2.2.13 X7 v Australian Crime Commission (2013) 248 CLR 92 .... 8.3.34 Xenophon v South Australia (2008) 78 SASR 251 .... 2.3.13

Y

Yarmirr v Australian Telecommunications Corporation (1990) 20 ALD 562; 96 ALR 739 .... 14.3.1, 14.3.3C, 14.3.4, 17.4.7 Yates v Wilson (1989) 64 ALJR 140 .... 2.4.8C — v — (1989) 86 ALR 311 .... 2.4.8C Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] AC 1457 .... 9.3.5, 15.3.29C Yuen v Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 713 .... 15.3.14 Yuill v Yuill [1945] P 15 .... 11.5.31C

Z

Zachariassen v Commonwealth (1917) 24 CLR 166 .... 14.3.1 Ziade v Randwick City Council (2001) 51 NSWLR 342 .... 15.3.9, 15.3.11 Zistis v Zistis [2018] NSWSC 722 .... 2.2.43, 3.2.5, 5.3.19

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Statutes References are to paragraph numbers Case extracts are in bold

s 27(1) …. 18.4.15, 18.4.17C s 27(2) …. 18.4.12, 18.4.19 s 28 …. 3.3.14C, 7.5.17, 11.3.27C, 21.1.1, 21.1.2, 21.1.7, 21.1.11, 21.1.12, 21.2.13 s 28(1) …. 21.2.5 s 28(5) …. 21.3.5 s 29 …. 3.3.6C s 30 …. 18.4.15, 18.4.19, 18.5.6 s 30(1A) …. 18.4.20 s 30A …. 18.4.15 s 31 …. 3.3.14C s 32 …. 11.3.27C s 33 …. 3.3.6C, 3.4.22C s 33(1) …. 3.4.6 s 33(1)(b) …. 3.3.6C s 33(1)(c) …. 3.4.16C, 11.4.21, 13.2.29 s 33 (1AA), (1AB) …. 3.4.28 ss 34–34A …. 4.7.2 s 37 …. 3.3.6C, 11.3.27C s 38 …. 3.3.6C, 3.3.28 s 39 …. 3.4.22C, 11.3.27C s 39A …. 3.3.28 s 40 …. 3.3.28, 11.3.27C s 40(1A) …. 3.3.6C s 41(2) …. 11.3.27C s 42 …. 3.3.14C s 43 …. 3.2.52, 3.3.4, 3.3.5, 3.3.9E, 3.3.11C, 3.3.38, 3.4.16C, 11.3.27C, 12.5.5C s 43(1) …. 3.3.6C, 3.3.11C s 43(2) …. 21.2.10 s 43(2B) …. 21.2.9, 21.2.10 s 43AA …. 21.3.5 s 43C …. 3.2.35 s 44 …. 3.2.35, 3.2.51, 3.3.14C, 11.3.27C, 13.5.6, 13.5.7, 13.5.8C, 13.5.9, 13.5.32, 21.3.2 s 44(1) …. 3.2.52, 3.4.22C, 13.5.2, 13.5.6, 13.5.8C s 44(1A) …. 3.2.35 s 44(2) …. 3.2.52 s 44(3) …. 13.5.8C s 44(7) …. 13.5.2, 13.5.8C s 44(7)–(9) …. 3.2.53 s 45 …. 3.3.13, 13.5.8C s 45(1) …. 13.5.5 Sch Pt XII cl 12(9) …. 18.4.17C

Commonwealth Acts Interpretation Act 1901 …. 8.3.16, 16.2.9, 19.3.6C Pt VII …. 8.5.3 s 2B …. 8.3.16 s 8 …. 3.3.32C s 15AA …. 8.3.5, 10.2.3, 19.3.2C s 15AB …. 8.3.19, 10.2.3 s 15A …. 16.5.4, 16.5.6C s 19 …. 8.5.13, 10.4.16C s 19A …. 8.3.16 s 25C …. 16.2.9 s 25D …. 8.3.16, 21.1.10, 21.2.5 s 33 …. 16.1.24 s 33(1) …. 12.6.7C, 16.1.24 s 33(2B) …. 8.5.18 s 33(3) …. 8.3.25, 16.1.24 s 33(4) …. 8.3.25 s 34AAA …. 8.5.13, 8.5.16 s 34AA …. 8.5.3, 8.5.13, 12.6.7C s 34AB …. 8.3.16, 8.5.13, 12.6.7C s 34AB(1)(c) …. 8.5.14 s 34AB(1)(d) …. . 8.5.3 s 34A …. 8.5.13, 12.6.7C s 46 …. 8.3.16 s 46(1) …. 16.5.4 s 46(1)(b) …. 16.5.6C s 46A …. 12.4.4C s 49 …. 6.4.3

Administrative Appeals Tribunal Act 1975 …. 1.4.3E, 2.4.8C, 3.2.29, 3.2.31, 3.3.2, 3.3.6C, 3.3.10C, 3.3.11C, 3.3.14C, 3.3.27, 3.3.38, 3.4.16C, 18.4.15, 18.4.19, 18.4.21, 21.1.12, 21.2.14E Pt IV Div 3 …. 3.2.31 Pt V …. 3.2.29 s 2A …. 3.2.34, 3.3.16, 3.4.6, 3.4.22C, 11.1.17 s 3(3) …. 3.3.14C s 7 …. 3.2.35 s 10A …. 8.5.17 s 18B …. 3.2.35 s 24N …. 3.2.35 s 25 …. 3.3.14C, 3.3.34 s 27 …. 3.3.14C, 18.4.16 lxi

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Control of Government Action s 5(1)(g) …. 15.4.3 s 5(1)(h) …. 2.4.8C, 7.2.9, 13.2.1, 13.2.12–13.2.15, 13.2.24, 13.2.25C, 13.2.26C, 13.2.27C, 13.3.5C s 5(1)(j) …. 7.2.9, 14.1.4, 15.2.2 s 5(2)(a) …. 10.3.1 s 5(2)(b) …. 10.4.1, 10.4.12C, 10.4.13C, 12.2.9 s 5(2)(c) …. 10.2.1 s 5(2)(d) …. 15.24.3 s 5(2)(d)–(f ) …. 7.4.11 s 5(2)(e) …. 12.1.6, 12.2.6, 12.2.7, 12.2.16C, 12.2.19, 12.3.2 s 5(2)(f ) …. 2.5.12C, 12.1.6, 12.2.6 s 5(2)(g) …. 15.2.1, 15.4.1 s 5(2)(h) …. 7.2.9, 8.6.6, 8.6.7 s 5(2)(j) …. 7.2.9, 15.2.2, 15.3.23C s 5(3) …. 7.2.9, 13.2.12, 13.2.14, 13.2.24, 13.2.25C, 13.3.5C s 5(3)(a) …. 13.2.13, 13.2.15, 13.2.18, 13.2.21, 13.2.24, 13.2.25C, 13.2.26C, 13.2.27C s 5(3)(b) …. 13.2.13, 13.2.22, 13.2.24, 13.2.25C, 13.2.26C, 13.2.27C s 6 …. 2.2.4, 2.2.8, 2.2.9E, 2.4.2, 2.4.8C, 2.4.10, 2.4.57, 18.4.8, 21.1.11 s 6(1) …. 2.4.8C s 7 …. 2.2.9E, 2.4.57, 14.1.4, 14.2.6, 14.2.7, 14.2.9, 17.8.1, 21.1.11 s 7(1) …. 14.2.6, 14.2.8C s 7(2) …. 14.2.6 s 9 …. 2.2.24C, 2.2.38, 2.2.40 s 9A …. 2.2.34, 17.9.11 s 10(2)(b)(ii) …. 16.1.10, 17.9.5, 17.9.6C, 17.9.8 s 11 …. PtB.2, 2.2.4, 2.2.8, 2.2.9E, 2.4.5, 16.3.7 s 12 …. 2.2.9E, 18.5.6 s 13 …. 2.2.4, 2.2.8, 2.2.9E, 2.4.5, 2.4.8C, 2.4.57, 7.5.17, 11.2.16C, 12.2.24C, 18.3.9C, 18.3.10C, 18.4.10, 21.1.1, 21.1.7, 21.1.10, 21.1.11, 21.1.13, 21.1.19C, 21.2.1, 21.2.5, 21.2.6, 21.2.13, 21.3.6, 21.3.7, 21.3.8 s 13(1) …. 18.4.10, 21.1.11, 21.2.5 s 13(2) …. 21.3.6 s 13(4) …. 21.3.6 s 13(7) …. 21.3.5 s 13(11) …. 21.1.11 s 13A …. 2.2.8, 21.1.11 s 14 …. 21.1.11 s 15 …. 2.2.8, 2.2.9E, 2.2.24C, 2.4.5, 17.8.1 s 15A …. 2.2.8, 2.2.9E, 2.4.5, 17.8.1 s 16 …. PtB.2, 2.2.4, 2.2.8, 2.2.9E, 2.2.24C, 2.4.5, 2.4.8C, 14.1.3, 14.2.7, 16.1.4, 16.1.28C, 16.1.29, 17.8.1–17.8.4, 17.8.5C, 17.8.6C, 17.8.8, 17.8.9

Administrative Decisions ( Judicial Review) Act 1977 …. 1.2.7, 1.3.6E, 1.4.3E, 2.2.4, 2.2.5, 2.2.8, 2.2.9E, 2.2.10, 2.2.12, 2.2.13, 2.2.17, 2.2.18, 2.2.20, 2.2.22, 2.2.24C, 2.2.26, 2.2.34–2.2.36, 2.2.44, 2.2.47, 2.2.51, 2.2.55, 2.2.57, 2.3.19, 2.3.21, 2.3.22, 2.4.1, 2.4.2, 2.4.4, 2.4.5, 2.4.7, 2.4.8C, 2.4.10, 2.4.14C, 2.4.16C, 2.4.17C, 2.4.18, 2.4.22C, 2.4.24, 2.4.25, 2.4.27, 2.4.34, 2.4.37, 2.4.40C, 2.4.42, 2.4.45, 2.4.46, 2.4.47, 2.4.50C, 2.4.51, 2.4.55–2.4.61, 2.5.9, 2.5.11, 2.5.12C, 2.5.22– 2.5.24, 4.3.23C, 4.4.12, 5.1.1, 5.2.16, 5.3.29, 6.1.15, 6.1.29, 6.5.2, 7.1.2, 7.2.9–7.2.13, 7.2.15, 7.2.16, 7.2.22E, 7.2.23E, 7.2.24, 7.2.25, 8.2.2, 8.2.3, 8.3.46, 8.6.6, 8.6.13, 9.2.29, 9.2.34, 9.2.36E, 10.2.1, 10.3.1, 10.4.1, 10.4.12C, 10.4.13C, 10.4.25C, 11.1.6, 11.3.27C, 12.2.6, 12.2.16C, 12.2.23C, 12.2.24C, 12.6.7C, 13.2.1, 13.2.11–13.2.14, 13.2.25C, 13.2.27C, 13.3.4, 13.3.5C, 13.4.1, 13.4.5, 13.4.6, 13.4.10, 13.4.11, 14.1.4, 14.2.7, 14.3.3C, 15.2.1, 15.2.2, 15.2.16, 15.3.23C, 15.3.33E, 15.3.41, 15.4.3, 16.1.4, 16.1.28C, 16.1.29, 16.1.30C, 16.2.8, 16.3.6, 16.3.7, 16.4.2, 16.4.3, 16.4.13, 16.4.16, 17.1.1, 17.1.4, 17.1.6, 17.8.1, 17.8.3, 17.8.7, 17.9.6C, 17.9.8, 18.1.3, 18.3.8, 18.3.11C, 18.3.16C, 18.4.8–18.4.12, 21.1.11–21.1.13, 21.2.14E, 21.2.16 s 3 …. 2.2.8, 2.3.1, 2.3.8, 2.4.2, 6.1.15, 18.2.1 s 3(1) …. 2.4.8C, 2.4.32C, 2.4.46, 2.4.47, 9.2.34 s 3(2) …. 2.4.4, 2.4.8C, 2.4.10, 2.4.32C s 3(2)(a) …. 2.4.14C, 2.4.32C s 3(2)(b) …. 2.4.14C s 3(2)(g) …. 2.4.8C, 2.4.14C, 2.4.32C s 3(3) …. 2.4.8C, 2.4.15, 2.4.18, 2.4.25 s 3(4) …. 2.2.9E, 18.3.16C, 18.4.8, 18.4.10 s 3(5) …. 2.4.4, 2.4.8C s 4 …. 2.2.4, 16.3.6 s 5 …. 2.2.4, 2.2.8, 2.2.9E, 2.2.26, 2.4.2, 2.4.8C, 2.4.57, PtC.4, 7.2.9, 7.2.15, 10.4.12C, 11.1.1, 11.2.16C, 13.4.6, 13.5.9, 14.3.2C, 16.1.4, 16.1.28C, 18.2.1, 18.3.9C, 18.4.8, 21.1.11 s 5(1) …. 8.2.1, 10.4.12C, 11.2.16C, 18.3.16C s 5(1)(a) …. 11.1.6 s 5(1)(b) …. 13.4.11, 14.1.4, 16.2.8 s 5(1)(c) …. 7.2.12, 13.4.10 s 5(1)(d) …. 2.4.8C, 13.5.31 s 5(1)(f ) …. 2.4.8C, 7.2.9, 11.2.16C, 13.2.14, 13.2.25C, 13.2.27C, 13.3.5C, 13.4.5, 13.4.6, 13.4.7, 13.4.11, 13.5.2, 13.5.32, 14.1.4, 17.8.5C lxii

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16.1.16, 16.3.17C, 16.3.18C, 16.4.18C, 17.1.14C, 17.2.17, 18.2.8, 18.4.6C Ch IV …. 9.2.31C Pt 2 …. 5.3.51C s 1 …. 5.3.3, 17.1.14C s 4 …. 5.3.16C s 28 …. 5.3.51C s 51 …. 5.3.7, 5.3.36C, 9.2.21C, 9.2.31C s 51(ii) …. 4.4.23, 5.3.32C s 51(xix) …. 5.3.7, 9.2.21C s 51(xx) …. 9.2.30C, 9.2.31C, 13.3.19 s 51(xxiiiA) …. 9.2.30C, 9.2.31C s 51(xxvii) …. 9.2.21C, 10.2.16C s 51(xxviii) …. 9.2.21C s 51(xxxi) …. 10.2.6C s 51(xxxv) …. 5.3.10C s 51(xxxvii) …. 2.2.58, 9.2.31C s 51(xxxix) …. 5.3.58C, 9.2.26, 9.2.27 s 51(5) …. 8.3.27C ss 53–56 …. 9.2.31C s 61 …. 2.3.4E, 2.3.18C, 5.3.3, 9.1.2, 9.2.5, 9.2.6E, 9.2.16C, 9.2.21C, 9.2.24–9.2.27, 9.2.30C, 9.2.31C, 9.2.32, 9.2.36E, 9.3.7C, 12.3.4C, 17.1.14C s 64 …. 8.2.4, 9.2.30C, 12.3.4C s 71 …. 2.2.41, 5.3.3, 5.3.9, 5.3.10C, 5.3.16C, 5.3.22, 16.3.18C s 72 …. 5.3.10C, 5.3.12, 5.3.50C, 8.5.25 s 72(i) …. 17.1.14C s 73 …. 2.2.41, 2.2.42, 2.2.56, 3.3.43C, 3.3.44, 5.3.46, 7.3.9, 7.3.11, 16.3.18C, 16.4.9, 17.9.9 s 75 …. PtB.2, 2.2.17, 2.2.22, 2.2.38, 2.2.42, 2.2.46, 2.3.5, 2.3.9C, 2.4.58, 2.4.59, 3.2.6C, 7.3.12, 16.3.17C, 17.4.10C ss 75–77 …. 2.3.20, 5.3.53 s 75(iii) …. 2.2.14, 2.2.17, 2.2.22, 2.2.45, 2.2.58, 2.4.59, 5.3.55, 8.2.9C, 9.2.36E, 16.3.17C, 17.1.14C, 17.2.18 s 75(iv) …. 2.2.43, 3.2.4, 3.2.5, 3.2.6C s 75(v) …. 1.4.2, 1.4.3E, 1.4.8, 2.1.2, 2.2.3, 2.2.12, 2.2.19, 2.2.27, 2.2.28, 2.2.30, 2.2.35, 2.2.41–2.2.46, 2.4.57–2.4.59, 2.5.20, 5.1.1, 5.1.4, 5.2.22, 5.3.2, 5.3.53–5.3.56, 5.3.57C, 5.3.58C, 5.3.59–5.3.61, 7.2.7C, 7.2.12, 7.2.13, 7.2.15, 7.2.16, 7.2.21C, 7.3.9, 7.3.10, 8.2.9C, 9.2.29, 9.2.36E, 11.1.1, 11.2.19C, 11.3.25, 13.3.8, 13.4.9, 13.4.11, 16.3.4, 16.3.7–16.3.10, 16.3.16C, 16.3.17C, 16.3.18C, 16.4.1, 16.4.7–16.4.9, 16.4.11, 16.4.16, 16.4.18C, 17.1.1, 17.1.7, 17.1.14C, 17.1.15, 17.1.16, 17.2.16–17.2.19, 17.3.1, 17.4.5, 17.4.6, 17.4.10C, 17.6.1, 17.7.6C, 17.9.9, 18.2.8, 21.1.31 s 76 …. 2.2.17, 2.2.22, 2.2.38, 2.2.46, 2.3.5, 2.3.9C, 3.2.6C, 4.4.33 s 76(i) …. 5.3.46, 9.2.36E, 17.2.18

s 16(1) …. 16.1.30C, 17.8.1 s 16(1)(a) …. 16.1.30C, 17.8.2, 17.8.4, 17.8.5C, 17.8.7 s 16(1)(b) …. 2.4.8C s 16(1)(c) …. 16.1.30C, 17.8.2, 17.8.6C s 16(1)(d) …. 14.1.4, 17.8.2, 17.8.3, 17.8.5C, 17.8.6C, 17.8.8 s 16(1)(f ) …. 17.8.5C s 16(2), (3) …. 17.8.1 s 18 …. 11.2.16C s 33(1)(c) …. 13.6.2 Sch 1 …. 2.2.8, 2.4.3, 2.4.29 Sch 1 cl (hf ) …. 9.2.29 Sch 1 cl (e) ….  2.4.8C Sch 1 cl (xa) …. 17.9.11 Sch 2 …. 2.2.8, 21.1.11, 21.1.13 Sch 2 cl (a) ….  2.4.8C Sch 3 …. 2.2.8, 2.4.2

Age Discrimination Act 2004 …. 4.4.7

Archives Act 1983 …. 19.1.7, 19.1.32, 19.2.33, 19.2.34, 19.3.6C, 20.2.21 Auditor-General Act 1997 …. 1.3.15, 1.3.16

Australian Human Rights Commission Act 1986 …. 4.4.3, 4.4.7, 4.4.9–4.4.13, 4.4.25, 4.4.32, 18.4.24, 18.5.7 Civil Dispute Resolution Act 2011 …. 4.7.4, 4.7.5

Constitution …. 1.3.5E, 1.3.15, 1.3.20, 2.2.11, 2.2.17, 2.3.3E, 2.3.4E, 2.3.9C, 2.3.11C, 2.4.36, 2.4.50C, 4.4.23, 4.4.33, 4.3.14, 5.1.1–5.1.4, 5.2.1, 5.2.5, 5.2.11, 5.2.12, 5.2.21, 5.2.22, 5.3.1–5.3.3, 5.3.5C, 5.3.7, 5.3.10C, 5.3.13, 5.3.16C, 5.3.20, 5.3.32C, 5.3.36C, 5.3.49C, 5.3.51C, 5.3.54, 5.3.55, 6.1.11C, 6.1.28, 7.1.2, 7.3.9–7.3.12, 7.3.15, 8.2.8C, 8.2.9C, 8.3.2, 8.4.2, 8.4.3, 8.4.28C, 8.4.29C, 8.5.24, 8.6.8C, 9.1.1, 9.2.6C, 9.2.7C, 9.2.11, 9.2.18C, 9.2.21C, 9.2.25, 9.2.30C, 9.2.31C, 9.2.32, 9.2.33, 9.2.36E, 9.3.7C, 13.4.11, 15.3.33E, 15.3.40, 16.3.7, 16.3.11, 16.3.17C, 16.4.18C, 17.1.16, 17.2.19, 17.4.10C, 17.9.9, 17.2.19, 18.2.3C, 18.2.8, 19.3.2C Ch I …. 5.3.5C Ch II …. 5.3.5C Ch III …. 1.3.24E, 2.2.43, 2.3.4E, 5.2.1, 5.2.5, 5.2.11, 5.2.12, 5.3.2, 5.3.5C, 5.3.7, 5.3.9, 5.3.10C, 5.3.11–5.3.14, 5.3.15C, 5.3.16C, 5.3.17–5.3.20, 5.3.28C, 5.3.35, 5.3.36C, 5.3.38–5.3.41, 5.3.42C, 5.3.46, 5.3.49C, 5.3.50C, 5.3.51C, 5.3.52, 5.3.55, 7.3.9, 7.3.12, 7.3.13, 11.5.30C, 15.4.6, 16.1.15C, lxiii

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Control of Government Action

Constitution – cont’d s 76(ii) …. 2.2.15, 2.2.17, 2.4.60 s 77 …. 2.3.9C s 77(i) …. 2.2.15. 2.2.17, 5.3.58C s 77(ii) …. 3.2.6C s 77(iii) …. 2.2.37, 3.2.4, 3.2.6C, 5.2.1, 5.2.5, 5.3.14, 5.3.16C, 5.3.58C s 79 …. 5.3.16C s 80 …. 2.2.7 s 81 …. 1.3.15, 9.2.26, 9.2.31C ss 81–83 …. 9.2.31C s 83 …. 1.3.15, 9.2.26 ss 84–91 …. 9.2.31C s 92 …. 4.4.23, 9.2.31C ss 93–96 …. 9.2.31C s 96 …. 9.2.27, 9.2.30C, 9.2.31C s 99 …. 4.4.23 s 109 …. 2.3.9C, 3.2.6C, 4.4.33, 8.4.2, 9.2.21C, 9.2.30C s 116 …. 8.3.32C s 117 …. 4.4.23 s 128 …. 5.3.1 s 143 …. 5.3.37C cl 5 …. 5.2.22, 17.1.14C Disability Discrimination Act 1992 …. 4.4.7, 4.4.15, 4.4.31C Evidence Act 1995 … 3.3.5, 13.2.29, 13.2.33

Federal Circuit Court of Australia Act 1999 …. 4.7.2

Federal Court of Australia Act 1976 …. 2.2.16, 2.2.24C s 19 …. 2.2.7 s 21 …. 2.2.23, 2.2.24C ss 21–23 …. 2.2.23, 17.1.6 s 22 …. 2.2.23, 2.2.24C s 23 …. 2.2.23, 2.2.24C, 17.2.19, 17.5.4C s 31A …. 17.9.2 s 32 …. 2.2.17, 2.2.22 s 32A …. 2.2.39 s 33 …. 2.2.56 s 33(3) …. 17.9.9 s 53 …. 5.3.28C s 53A …. 4.7.2 Federal Court Rules …. 2.2.35

Federal Magistrates Act 1999 …. 2.2.36

Freedom of Information Act 1982 …. 1.4.3E, 3.2.28E, 3.4.19, 8.3.46, 8.3.57C, 14.5.2E, 19.1.4, 19.1.8–19.1.10, 19.1.12, 19.1.16E, 19.1.18E, 19.1.19, 19.1.20, 19.1.22E, 19.2.1–19.2.4, 19.2.6–19.2.8, 19.2.12, 19.2.13, 19.2.16, 19.2.22, 19.2.24, 19.2.25, 19.2.30, 19.2.34–19.2.36, 19.3.1, 19.3.2C, 19.3.6C, 20.2.21, 20.3.2 lxiv

Pt II …. 19.2.22 Pt VI …. 19.2.27 Pt VII …. 19.2.27 Pt VIIB …. 19.2.29 Pt VIII …. 19.2.30 s 3 …. 19.2.12, 19.3.6C s 3(1)(b) …. 19.2.11 s 3(4) …. 14.5.2E, 19.2.5 s 3A …. 19.1.20, 19.2.15 s 3B(2) …. 19.3.6C s 4(1) …. 19.2.7, 19.2.9 s 5 …. 19.2.6 s 5(1) …. 19.3.2C ss 6–6A …. 19.2.6, 19.3.2C s 6C …. 19.2.6 s 7 …. 19.2.6 s 7A …. 19.1.20 s 8 …. 12.1.11, 19.2.23 s 8A …. 12.1.11 s 8B …. 19.2.23 s 8D(3) …. 19.2.23 s 10 …. 12.1.11, 19.2.23 s 11 …. 19.2.3 s 11(1) …. 19.2.7, 19.3.6C s 11(2) …. 19.3.6C s 11A(5) …. 19.2.18, 19.3.6C s 11B …. 19.2.18 s 11B(3) …. 19.2.13 s 11C …. 19.2.22, 19.2.24 s 15 …. 19.2.4 s 15(3) …. 19.3.6C s 16 …. 19.2.8 s 17 …. 19.2.9 s 20(1) …. 19.2.4 s 21(1) …. 19.2.21 ss 24–24AA …. 19.2.20 s 25(2) …. 19.2.21 s 26 …. 19.2.4, 21.1.10 ss 26–27 …. 19.2.8 s 27A …. 19.2.8, 19.3.6C s 29(5) …. 19.2.5 s 33 …. 19.2.16 s 34 …. 19.2.16 s 37 …. 19.2.16 s 38 …. 19.2.16 s 42 …. 19.2.16 s 45 …. 19.2.16 s 46 …. 19.2.16 s 47 …. 19.2.16 s 47A …. 19.2.16 s 47B …. 19.2.16 s 47C …. 19.2.16, 19.3.3C s 47D …. 19.2.16 s 47E …. 19.2.16 s 47F …. 19.2.16, 19.3.6C, 20.2.21 s 47G …. 19.2.16 s 47H …. 19.2.16

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Statutes

s 39B(1A)–(1F) …. 2.2.39 s 39B(1A)(b) …. 2.2.13 s 39B(1A)(c) …. 2.2.13, 2.2.14, 2.2.15, 2.2.17, 2.2.19, 2.2.23, 2.2.35, 2.4.60 s 39B(1B)–(1F) …. 2.2.34, 17.9.11 s 44(2A) …. 2.2.11, 2.2.12, 2.2.46 s 55ZF …. 3.4.28, 4.7.4 s 67C …. 2.2.40 s 68 …. 2.2.37 s 78A …. 18.5.6 s 79 …. 2.2.37 s 88 …. 5.3.46

s 47J …. 19.2.16 s 48 …. 19.2.25 s 50(2), (3) …. 19.2.25 s 51A … 19.2.25 s 51E …. 19.2.25 s 54W …. 19.2.27 s 55(6) …. 19.2.26 s 55D …. 3.4.19, 19.2.27 s 58(5) …. 8.3.57C s 61 …. 19.2.27 s 93B …. 19.1.10 Sch 2 …. 19.2.6 Sch 3 …. 19.2.16

Jurisdiction of Courts (Cross-Vesting) Act 1987 …. 2.2.57

Freedom of Information Amendment (Reform) Act 2010 …. 19.1.9

Legal Services Directions 2005 …. 4.7.4

Freedom of Information (Charges) Regulations 1982 …. 19.2.5

Legislation Act 2003 …. 6.1.16, 6.1.29, 6.3.3, 12.1.7, 16.2.9 Ch 2 …. 6.3.1 s 8 …. 6.1.14, 6.1.29 s 8(4) …. 6.1.15, 6.1.29 s 12 …. 6.1.29 s 13 …. 6.1.29 s 14 …. 6.1.29 s 15A …. 6.1.29 s 15B …. 6.1.29 s 15G …. 12.1.7 s 15J(2) …. 6.1.29 s 15K …. 6.1.29, 6.3.2, 12.1.7 s 15K(1) …. 6.1.15, 16.2.9 s 16 …. 6.1.29 s 17 …. 6.2.7 s 17(1)–(3) …. 6.1.29 s 19 …. 6.1.29, 6.2.7 s 38 …. 6.1.29, 6.4.2 s 42 …. 6.1.16, 6.4.2 s 45 …. 6.1.15 s 48 …. 6.4.3 s 50 …. 6.1.29 ss 50–54 …. 6.2.9 s 51 …. 6.1.29

Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 …. 19.1.9 High Court Rules 2004 …. 17.1.10

Human Rights and Equal Opportunity Commission Act 1986 …. 4.4.13, 8.3.38

Human Rights (Parliamentary Scrutiny) Act 2011 …. 4.4.16, 8.3.18

Judiciary Act 1903 …. 2.2.9E, 2.2.11–2.2.14, 2.2.22, 2.2.26, 2.2.35, 2.2.46, 2.3.11C, 2.4.37, 2.5.20, 3.2.6C s 23 …. 16.4.9 s 30 …. 2.2.46 s 30(a) …. 9.2.36E s 32 …. 2.2.46 s 33 …. 2.2.46 s 35 …. 2.2.56 s 35A …. 2.2.56 s 35AA …. 2.2.56 s 38 …. 2.2.37, 2.2.40, 3.2.6C s 38B(1A)(c) …. 2.3.21 s 39 …. 2.2.37, 3.2.6C s 39(1A)(b) …. 9.2.36E s 39(2) …. 2.2.37, 3.2.6C, 5.3.19 s 39B …. 2.2.3, 2.2.7, 2.2.12, 2.2.14, 2.2.19, 2.2.28, 2.2.34–2.2.36, 2.2.57, 2.3.11C, 2.3.21, 2.4.5, 2.4.37, 2.4.55, 2.4.56, 2.4.58, 2.4.59, 2.5.11, 2.5.20, 2.5.24, 4.3.23C, 6.5.2, 7.2.12, 7.2.13, 7.2.15, 7.2.16, 9.2.34, 9.2.36E, 13.3.8, 13.4.9, 13.5.5, 16.1.30C, 16.3.7, 17.1.6, 17.2.19, 17.8.7 s 39B(1) …. 2.2.9E, 2.2.11, 2.2.12, 2.2.14, 2.2.23, 2.3.21 s 39B(1)(c) …. 2.4.40C s 39B(2) …. 2.2.12 s 39B(1A) …. 2.2.11, 2.2.12, 2.2.13, 2.2.21

Migration Act 1958 …. 2.2.25, 2.2.28–2.2.30, 2.2.36, 2.2.43, 2.3.15, 2.5.13, 3.4.10, 8.2.4, 8.3.7, 8.3.13, 8.5.11, 9.2.15, 9.2.20, 9.2.24, 9.3.5, 9.3.6, 10.4.5, 13.3.8, 15.2.15, 15.2.16, 15.2.19, 15.3.16, 15.4.10, 16.1.16, 16.1.24, 16.3.7, 16.3.9, 16.4.13, 16.4.16, 21.1.11 Pt 8 …. 2.2.26–2.2.29, 2.2.44, 5.3.54 s 4 …. 8.4.31 s 4(1), (4) …. 10.4.5 s 6A …. 2.4.49 s 7(1) …. 7.4.11 s 7A …. 9.2.22 s 36 …. 13.3.8 s 46A …. 2.4.15 lxv

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Control of Government Action s 8(10) …. 4.3.26 s 9 …. 4.2.13 s 10 …. 14.2.10 s 11 …. 4.2.13, 4.3.19, 8.5.5C s 12 …. 4.2.13 s 13 …. 4.2.13 s 14 …. 4.2.13 s 15 …. PtC.1, 4.2.13, 4.3.23C, 4.3.25, 15.4.2 s 15(1)(a)(ii) …. 15.4.2 s 15(1)(a)(iii) …. 6.1.28 s 15(1)(a)(iv) …. 13.5.2 ss 16–17 …. 4.2.13, 4.3.23C s 19B …. 4.2.3 s 19C …. 4.2.13 s 19L …. 4.2.3 s 19M …. 4.2.13 s 19ZI …. 4.2.3 s 19ZJ …. 4.2.13 s 20C …. 4.2.3 s 20D …. 4.2.13 s 20ZL …. 4.2.3 s 21 …. 4.2.13 s 28 …. 4.2.13 s 35(8) …. 4.2.13 s 35A …. 4.2.13 s 37 …. 4.2.13

Migration Act 1958 – cont’d s 57(2) …. 2.2.33 s 65 …. 8.4.2, 15.2.15 s 85 …. 2.2.31, 8.4.2 s 97 …. 13.2.34 s 97A …. 11.3.23 s 109 …. 10.4.21 s 189(1) …. 2.4.30 s 198A(3)(a) …. 7.5.16 s 198AB(3)(a) …. 10.3.5 s 200 …. 2.2.32 s 201(1)(b) …. 7.5.14 s 359A …. 11.4.2 s 360(1) …. 15.3.36 s 363(1)(b) …. 15.3.36 s 420 …. 3.4.7 s 424(3) …. 11.4.2 s 424A …. 11.4.2 s 424A(1)(a) …. 11.4.24 s 424B …. 11.4.2 s 427 …. 11.4.32 s 427(6)(a) …. 11.4.32 s 430 …. 7.5.21, 21.2.8 s 430(1)(c) …. 7.5.21 s 430(2) …. 16.1.21 s 473DA …. 2.2.33 s 473DB …. 2.2.33 s 474 …. 2.2.28, 15.2.15 s 476(2)(b) …. 15.2.14 s 486A …. 2.2.28, 5.3.56, 5.3.59, 16.3.7, 16.3.9 s 486O …. 4.2.19 s 494AA …. 2.2.30 s 494AB …. 2.2.30 s 499 …. 12.4.9 s 500(6H) …. 3.3.37, 3.4.27, 11.3.23 s 501 …. 10.4.5 s 501(3A) …. 2.2.32, 5.3.38 s 501(5) …. 11.3.23 s 501BA …. 2.2.32 s 501BA(2), (5) …. 2.2.32 s 503(3A) …. 5.3.38 s 503A …. 5.3.56 s 504 …. 8.4.31

Privacy Act 1988 …. 1.4.3E, 14.5.3E, 19.1.7, 19.2.25, 19.3.6C, 20.2.1, 20.2.2, 20.2.7, 20.2.8, 20.2.11, 20.2.14 Pt IIIA …. 20.2.8 Pt IIIB …. 6.1.26, 20.2.8 Pt IIIC …. 20.2.18 Pt VI …. 20.2.6 s 2A …. 20.2.9 s 6 …. 20.2.4, 20.2.5, 20.2.7 s 6C …. 20.2.7 s 6D …. 20.2.7 s 7B(2), (3) …. 20.2.7 s 7C …. 20.2.7 s 13 …. 20.2.3, 20.2.12 s 16 …. 20.2.7 s 16A …. 20.2.6 s 16B …. 20.2.6 s 26WE …. 20.2.18 s 26WK …. 20.2.18 s 26WL …. 20.2.18 s 27 …. 20.2.12 s 28 …. 20.2.12 s 28(1)(a) …. 20.2.10E s 28A …. 20.2.12, 20.2.14 s 28B …. 20.2.12 s 33C …. 20.2.14 s 33D …. 20.2.14 s 33E …. 20.2.14 s 33F …. 20.2.14

Ombudsman Act 1976 …. 1.4.3E, 4.2.2, 4.2.13, 4.2.14, 4.3.23C, 13.6.3 s 3(4B) …. 4.2.13 s 3BA …. 4.2.13 s 4(3)–(6) …. 4.2.3 s 5 …. 4.2.13 s 5(1) …. 4.2.16 s 6 …. 4.2.13 s 6A …. 4.2.13 s 7 …. 4.2.13 s 7A …. 4.2.13 s 8 …. 4.2.13

lxvi

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Statutes s 5(2)(a) …. 10.3.1 s 5(2)(b) …. 10.4.1 s 5(2)(c) …. 10.2.1 s 5(2)(d) …. 15.4.3 s 5(2)(e) …. 12.2.6 s 5(2)(f ) …. 12.2.6 s 5(2)(g) …. 15.2.1 s 5(2)(h) …. 8.6.6 s 5(2)(j) …. 15.2.2 s 5(3) …. 13.2.12 s 7 …. 14.2.6 s 16 …. 17.8.1 s 17 …. 17.8.1

s 35A …. 4.7.2, 20.2.8 s 36A …. 4.7.2 s 40 …. 20.2.12 s 40(2) …. 20.2.14 s 40A …. 4.7.2, 20.2.12 s 52 …. 20.2.13 s 55A …. 20.2.13 s 62 …. 20.2.13 s 80W …. 20.2.14 s 96 …. 20.2.16 s 98 …. 20.2.15 Sch 1 …. 20.2.10E

Public Governance, Performance and Accountability Act 2013 …. 1.3.15, 2.5.17, 9.2.17, 9.2.29, 12.4.1 s 5 …. 1.3.2 s 93 …. 12.4.1 s 104 …. 6.1.5 Public Interest Disclosure Act 2013 …. 4.2.3, 4.2.19, 4.6.1, 4.6.3, 4.6.4, 4.6.5, 4.6.6, 4.6.7, 4.6.8, 4.6.9

Public Service Act 1999 …. 1.3.3, 1.3.6E, 9.2.17 s 10 …. 1.3.29E s 10(1) …. 1.3.6E s 13 …. 1.3.6E, 1.3.29E s 13(5) …. 12.4.1 s 15 …. 1.3.29E, 4.7.13 s 57(2) …. 12.2.5 s 65 …. 8.2.4 s 78(9) …. 8.5.14

Racial Discrimination Act 1975 …. 4.4.7, 4.4.12, 5.3.28C, 8.3.39, 11.3.18 Royal Commissions Act 1902 …. 9.2.13

Sex Discrimination Act 1984 …. 2.3.9C, 2.3.21, 4.4.7

Australian Capital Territory Administrative Decisions ( Judicial Review) Act 1989 …. 2.2.5, 2.2.48, 3.2.36, 13.4.10, 17.1.1, 18.4.13 s 3A …. 2.4.2 s 3C …. 2.4.2 s 4 …. 2.4.2 s 4A …. 2.4.2 s 5(1)(a) …. 11.1.6 s 5(1)(b) …. 8.2.1, 14.1.4 s 5(1)(c) …. 7.2.12, 8.2.1, 13.4.10 s 5(1)(f ) …. 8.2.1, 14.1.4, 13.4.5 s 5(1)(g) …. 15.4.3 s 5(1)(h) …. 13.2.12 s 5(1)(i) …. 14.1.4 s 5(1)(j) …. 15.2.2

Australian Capital Territory Civil and Administrative Tribunal Act 2008 …. 3.2.36, 3.2.37 Pt 3 …. 18.4.21 Pt 4A …. 21.1.9 Pt 5 …. 4.7.6 Div 4A.2 …. 21.1.9 s 6 …. 3.2.37 s 7 …. 3.4.6 s 8 …. 3.4.6 s 9 …. 3.3.34 s 26 …. 11.4.21 s 68 …. 3.3.21 s 68(2) …. 3.3.4 s 71 …. 3.3.21, 5.3.29 s 77 …. 13.5.2 s 79 …. 3.2.37, 13.5.2 s 83 …. 13.5.2 s 84 …. 13.5.2 s 85 …. 13.5.2 s 86 …. 3.2.37, 13.5.2 Disability Services Act 1991 …. 4.4.19 Discrimination Act 1991 …. 4.4.19

Freedom of Information Act 1989 …. 19.1.8

Health Records (Privacy and Access) Act 1997 …. 20.2.23 Human Rights Act 2004 …. 4.4.19, 4.4.20, 4.4.21, 4.4.22, 8.3.38, 20.2.23 Pt 3 …. 4.4.20, 8.3.17 Pt 3A …. 8.3.17 s 2 …. 4.4.20 s 5 …. 8.3.17 s 28 …. 4.4.20, 15.3.39 s 30 …. 4.4.21, 8.3.17 s 31 …. 4.4.21 s 32(3) …. 4.4.50 s 36 …. 18.5.7 s 40C …. 4.4.50

Human Rights Commission Act 2005 …. 4.4.19 lxvii

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Control of Government Action s 79(2) …. 3.3.4 s 80 …. 13.5.2 s 81(1) …. 3.3.4 ss 82–84 …. 13.5.2 s 83 …. 13.5.2 ss 83–84 …. 2.2.49 s 84 …. 3.3.21, 13.5.2 cl 14 …. 3.3.39 Sch 3 …. 3.3.39

Inquiries Act 1991 …. 9.2.13

Legislation Act 2001 …. 8.3.16 Ch 2 …. 6.3.1 Ch 5 …. 6.2.7 Ch 7 …. 6.4.2 Pt 14.2 …. 8.3.19 s 43 …. 16.5.4 s 61 …. 6.4.2 s 62 …. 6.3.2 s 120 …. 16.5.4 s 236 …. 8.5.14 s 242 …. 8.5.14 Mediation Act 1997 …. 4.7.6

Ombudsman Act 1989 …. 4.2.2, 4.2.13, 4.2.14

Public Interest Disclosure Act 2012 …. 4.2.19 Public Sector Management Act 1994 …. 1.3.29E Supreme Court Act 1933 …. 2.2.47

New South Wales Administrative Decisions Review Act 1997 …. 3.2.39, 18.4.21 s 4 …. 18.4.21 s 53 …. 4.7.9 s 55 …. 18.4.21 s 63(1) …. 3.3.8 s 63(3) …. 3.3.4 s 64 …. 12.5.15 s 123 …. 17.9.7C

Administrative Decisions Tribunal Act 1997 …. 3.2.38 Civil and Administrative Tribunal Act 2013 …. 3.2.39, 3.3.39, 18.4.21 Pt 3A …. 3.2.6C Pt 6 …. 3.3.39 s 3 …. 3.2.39, 4.7.6 s 4 …. 3.2.40 s 9(2) …. 3.2.40 s 16 …. 3.2.40 ss 28–32 …. 3.3.34 s 31 …. 3.2.40 s 32 …. 13.5.2 s 32(3) …. 3.2.40 s 34 …. 2.2.49, 13.5.2, 17.9.7C s 36 …. 4.7.6 s 37 …. 4.7.6 s 38 …. 3.4.6 s 38(2) …. 11.4.21 s 44(1) …. 18.4.21 s 54 …. 2.2.49 s 62 …. 21.1.9

Community Services (Complaints, Reviews and Monitoring) Act 1993 …. 4.32.19, 4.4.19 Constitution Act 1902 …. 5.3.2, 9.2.18C

Freedom of Information Act 1989 …. 19.1.8, 19.2.26

Government Information (Public Access) Act 2009 …. 19.1.8, 19.1.20, 19.2.2, 19.2.14, 19.2.19 s 3 …. 19.2.14 s 5 …. 19.2.14 s 6 …. 19.1.20 s 8 …. 19.1.20, 19.2.15 s 12 …. 19.2.19 s 24 …. 12.1.11 s 57 …. 19.2.10 Health Records and Information Privacy Act 2002 …. 19.1.7, 20.2.25

Independent Commission Against Corruption Act 1988 …. 1.3.3, 4.5.3, 8.2.10C, 8.5.26C, 10.2.7 Interpretation Act 1987 …. 3.3.46, 8.3.16 Pt 6A …. 6.3.1 s 3(1) …. 6.4.2 s 22 …. 6.3.2 s 30(1)(c) …. 8.4.11 s 30(2) … 8.5.26C s 31 …. 3.2.6C, 16.5.4 s 32 …. 16.5.4 s 34 …. 8.3.19 s 39(2A) …. 6.3.2 s 40 …. 6.4.2 s 41 …. 6.4.2 Legislation Review Act 1987 …. 6.4.8

Ombudsman Act 1974 …. 4.2.2, 4.3.28, 16.3.20C Pt 3A …. 4.2.19 s 6A …. 4.2.13 s 21C …. 4.2.13 s 26 …. 16.3.20C s 26(1) …. 4.2.14 s 31B …. 4.3.14 s 35A …. 4.3.29, 16.3.20C lxviii

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Statutes s 77 …. 3.3.21 s 82 …. 3.3.21 s 84 …. 5.3.29 s 84A …. 5.3.29 s 140 …. 3.2.41, 13.5.2 s 141 …. 13.5.2

Privacy and Personal Information Protection Act 1998 …. 4.7.6, 20.2.24

Public Interest Disclosures Act 1994 …. 4.2.19 State Records Act 1998 …. 19.2.35

Subordinate Legislation Act 1989 …. 6.2.7, 6.2.9

Ombudsman Act 2001 …. 4.2.2, 4.2.14

Public Sector Employment and Management Act …. 1.3.29E

Supreme Court Act 1970 s 23 …. 2.2.47 s 65 …. 2.2.49 s 66 …. 2.2.49 s 66(4) …. 17.6.2 s 69 …. 2.2.49, 17.1.4, 17.2.7, 17.2.14C s 69(3), (4) …. 17.2.8, 17.2.14C s 69B …. 2.2.49 s 69C …. 2.2.49 s 70 …. 2.2.49, 17.1.4 s 71 …. 2.2.49, 17.1.4 s 75 …. 17.72

Supreme Court Act …. 2.2.50

Queensland Acts Interpretation Act 1954 …. 8.3.16 s 9 …. 16.5.4 s 14B …. 8.3.19 s 27B …. 21.1.10

Anti-Discrimination Act 1991 …. 4.4.19

Constitution of Queensland 2001 …. 9.2.33

Uniform Civil Procedure Rules 2005 …. 21.1.8 r 6.4 …. 2.2.49 r 6.4(1)(b1) …. 17.1.4 r 59.9(1)–(3) …. 21.1.8

Disability Services Act 2006 …. 4.4.19

Freedom of Information Act 1992 …. 19.1.8

Government Owned Corporations Act 1993 …. 2.5.17

Northern Territory

Health Ombudsman Act 2013 …. 4.4.19, 20.2.29

Anti-Discrimination Act …. 4.4.19 Disability Services Act …. 4.4.19

Information Privacy Act 2009 …. 20.2.28

Health and Community Services Complaints Act 1998 …. 4.4.19, 20.2.27

Judicial Review Act 1991 …. 2.2.5, 2.2.50, 2.2.55, 2.2.57, 2.4.19, 2.4.42, 2.4.50C, 2.4.51, 9.2.36E, 17.1.1 Pt 3 …. 2.2.51 Pt 4 …. 21.1.7 Pt 5 …. 2.2.51 s 4 …. 2.2.51, 2.4.2 s 4(b) …. 2.2.51, 2.4.57, 9.2.34 s 5 …. 2.4.2 s 6 …. 2.4.2 s 7 …. 18.4.8 s 8 …. 2.4.2 s 9 …. 2.2.51, 2.4.2, 2.4.57, 2.4.61 s 10 …. 2.2.51, 17.8.5C ss 10–15 …. 2.2.51 s 14 …. 2.4.12, 2.4.24 s 20 …. 18.4.8 s 20(2) …. 8.2.1 s 20(2)(a) …. 11.1.6 s 20(2)(b) …. 14.1.4 s 20(2)(c) …. 7.2.12, 13.4.10 s 20(2)(f ) …. 13.4.5, 14.1.4 s 20(2)(g) …. 15.4.3 s 20(2)(h) …. 13.2.14 s 20(2)(i) …. 14.1.4, 15.2.2

Information Act 2002 …. 4.7.6, 19.1.8, 20.2.27 Interpretation Act …. 8.3.16 s 59 …. 16.5.4 s 61 …. 6.4.2, 16.5.4 s 62B …. 8.3.19 s 63 …. 6.3.1, 6.4.2 s 63(7) …. 6.3.2

Northern Territory Civil and Administrative Tribunal Act 2014 …. 3.2.41 Pt 4 Div 4 …. 4.7.6 Div 5 …. 18.4.21 s 3 …. 3.2.41 s 11 …. 3.2.67 s 13 …. 3.2.41 s 31 …. 3.2.41 s 32 …. 3.2.41 s 33 …. 3.2.41, 3.3.21 s 35 …. 21.1.9 s 50 …. 3.3.4 s 52 …. 3.4.6 s 53 …. 3.4.6 s 53(2)(b) …. 11.4.21 lxix

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Control of Government Action s 69 …. 19.2.10 Sch 4 Pt 2 …. 19.2.19

Judicial Review Act 1991 – cont’d s 21 …. 18.4.8 s 22 …. 14.2.6 s 23 …. 2.2.51 s 23(a) …. 10.3.1 s 23(b) …. 10.4.1 s 23(c) …. 10.2.1 s 23(d) …. 15.4.3 s 23(e), (f ) …. 12.2.6 s 23(g) …. 15.2.1 s 23(h) …. 8.6.6 s 23(i) …. 15.2.2 s 24 …. 13.2.14 s 29 …. 17.8.1 s 30 …. 17.8.1

Statutory Instruments Act 1992 Pt 7 …. 6.2.9 s 6 …. 6.3.1 s 21 …. 16.5.4 s 32 …. 6.3.2 s 33 …. 6.3.2 s 47 …. 6.3.1 s 49 …. 6.4.2 s 50 …. 6.4.2

South Australia Acts Interpretation Act 1915 …. 8.3.16, 16.5.4

Legislative Standards Act 1992 s 4 …. 6.4.2, 6.4.8 s 7 …. 6.3.1, 6.4.2

Administrative Decisions (Effect of International Instruments) Act 1995 …. 11.3.12

Public Interest Disclosure Act 2010 …. 4.2.19

District Court Act 1991 …. 3.2.43

Ombudsman Act 2001 …. 4.2.2, 4.2.13, 4.3.14

Disability Services Act 1993 …. 4.4.19

Public Sector Ethics Act 1994 …. 1.3.27, 1.3.29E

Equal Opportunity Act 1984 …. 4.4.19

Queensland Civil and Administrative Tribunal Act 2009 …. 3.2.42 Pt 4 …. 18.4.21 Pt 6 Divs 2–4 …. 4.7.6 s 3 …. 3.2.42 s 4 …. 4.7.6 s 6 …. 3.3.34 s 20 …. 3.3.8 s 24 …. 3.3.4 s 24(3) …. 3.2.42 ss 28–30 …. 3.4.6 s 28(3)(c) …. 11.4.21 s 43 …. 3.2.42 s 122 …. 21.1.9 s 131 …. 3.3.21 s 132(2) …. 5.3.29 s 142 …. 3.2.42, 13.5.2 s 144 …. 13.5.2 s 146 …. 13.5.2 ss 149–150 …. 3.2.42 s 158 …. 21.1.9 s 162 …. 3.2.67

Freedom of Information Act 1991 …. 19.1.8 s 10(3) …. 12.1.11 s 39 …. 4.2.19 Ombudsman Act 1972 …. 4.2.2, 4.3.4 s 14 …. 4.2.13 s 25(1) …. 4.2.14 s 32 …. 4.3.4

Parliamentary Committees Act 1991 …. 6.4.2 Public Sector Act 2009 …. 1.3.29E

Racial Vilification Act 1996 …. 4.4.19

South Australian Civil and Administrative Tribunal Act 2013 …. 3.2.43 Pt 3 …. 18.4.21 s 10 …. 3.2.43 s 11(4) …. 3.2.67 s 18 …. 3.2.43 s 31 …. 3.3.34 s 35(2)(a) …. 21.1.9 s 37 …. 3.3.4 s 39 …. 3.4.6 s 39(1)(b) …. 11.4.21 s 50 …. 4.7.6 s 51 …. 4.7.6 ss 70–71 …. 3.2.43, 13.5.2 s 72 …. 13.5.2 s 89 …. 5.3.29 s 93 …. 3.3.21

Right to Information Act 2009 …. 19.1.8, 19.1.20, 19.2.2, 19.2.14, 19.2.19 s 2 …. 19.2.15 s 18 …. 19.2.10 s 19 …. 19.1.20 s 20 …. 12.1.11 s 21 …. 19.1.20 s 28 …. 19.1.20 s 44(4) …. 19.2.14, 19.2.15 s 47(2) …. 19.2.14, 19.2.15 s 48(1) …. 19.2.14

Supreme Court Civil Rules 2006 …. 2.2.52

Telecommunications (Interception) Act 2012 …. 20.2.30 lxx

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Statutes Sch 1 …. 2.4.61

Tasmania

Legislation Publication Act 1996 …. 6.3.1

Acts Interpretation Act 1931 …. 8.3.16 s 3 …. 16.5.4 s 8B …. 8.3.19 s 47 …. 6.3.1, 6.4.2 s 47(3), (3A) …. 6.3.2

Magistrates Court (Administrative Appeals Division) Act 2001 …. 3.2.44 Pt 4 …. 21.1.9 s 10 …. 3.3.34 s 26 …. 3.3.4 s 27 …. 3.2.67, 12.5.15 s 34 …. 3.4.6

Alternative Dispute Resolution Act 2001 …. 4.7.6

Anti-Discrimination Act 1998 …. 4.4.19, 8.2.13

Ombudsman Act 1978 …. 4.2.2, 4.2.14

Personal Information Protection Act 2004 …. 20.2.31

Disability Services Act 2011 …. 4.4.19

Freedom of Information Act 1991 …. 19.1.8

Public Interest Disclosures Act 2002 …. 4.2.19

Health Complaints Act 1995 …. 4.4.19, 20.2.31

Right to Information Act 2009 …. 4.2.19, 19.1.8, 19.1.20

Judicial Review Act 2000 …. 2.2.5, 2.2.53, 2.4.54, 17.1.1 Pt 4 …. 2.2.53 Pt 5 …. 2.2.53, 21.1.7 s 3 …. 21.1.7 s 4 …. 2.4.2, 9.2.34 s 4(1) …. 2.4.54 s 5 …. 2.4.2 s 5(2)(a) …. 13.3.3C s 5(2)(g) …. 13.3.3C s 6 …. 2.4.2 s 7 …. 18.4.8 s 8 …. 2.4.2 s 13 …. 2.4.12, 2.4.24 s 17 …. 18.4.8 s 17(2) …. 8.2.1 s 17(2)(a) …. 11.1.6 s 17(2)(b) …. 14.1.4 s 17(2)(c) …. 7.2.12, 13.4.10 s 17(2)(f ) …. 13.4.5, 14.1.4 s 17(2)(g) …. 15.4.3 s 17(2)(h) …. 13.2.14 s 17(2)(i) …. 14.1.4, 15.2.2 s 18 …. 18.4.8 s 19 …. 14.2.6 s 20(a) …. 10.3.1 s 20(b) …. 10.4.1 s 20(c) …. 10.2.1 s 20(d) …. 15.4.3 s 20(e) …. 12.2.6 s 20(f ) …. 12.2.6 s 20(g) …. 15.2.1 s 20(h) …. 8.6.6 s 20(i) …. 15.2.2 s 21 …. 13.2.14 s 26 …. 17.8.1 s 27 …. 17.8.1 s 32 …. 2.2.53 s 41 …. 2.3.14 s 43 …. 2.2.5, 2.2.53

Rules Publication Act 1953 …. 6.3.1

Subordinate Legislation Act 1992 …. 6.2.7, 6.2.9, 6.4.2

Subordinate Legislation Committee Act 1969 …. 6.4.2

Victoria Administrative Law Act 1978 …. 2.2.5, 2.2.54, 2.4.62, 21.3.5 s 2 …. 2.2.54, 2.4.62, 9.2.34 s 3 …. 2.2.54, 9.2.36E s 4 …. 2.2.54 s 6 …. 17.8.1 s 7 …. 2.2.54, 17.8.1 s 8 …. 2.2.54, 21.1.7, 21.1.19C s 10 …. 17.2.7 s 11 …. 2.2.54 Administrative Law Act 1982 …. 17.1.1, 21.2.2C

Charter of Human Rights and Responsibilities Act 2006 …. 4.2.19, 4.4.5, 4.4.19, 4.4.20, 4.4.21, 4.4.22, 7.5.27, 8.3.38, 20.2.34 Pt 2 …. 4.4.20 s 7 …. 4.4.20, 8.3.17 s 7(2) …. 4.4.21, 15.3.39, 15.3.40 s 7(2)(e) …. 15.3.40 s 32 …. 4.4.21 s 32(1) …. 8.3.17, 8.3.20, 15.3.40 s 32(2) …. 4.4.21 s 33 …. 5.3.46 s 36 …. 4.4.20, 5.3.46 s 36(2), (5) …. 5.3.46 s 36(5)(b) …. 4.4.20 s 37 …. 4.4.20 s 40 …. 18.5.7 lxxi

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Constitution Act 1975 …. 5.1.1, 5.3.2 s 18 …. 5.1.1 s 85 …. 2.2.47, 5.1.1 s 86 …. 5.1.1 s 94E …. 5.1.1 s 94E(1), (3) …. 4.2.13 Disability Act 2006 …. 4.4.19

Equal Opportunity Act 1995 …. 4.4.28

Equal Opportunity Act 2010 …. 4.4.19, 4.4.26, 20.2.34 Freedom of Information Act 1982 …. 8.3.53, 12.1.11, 19.1.8 General Rules of Procedure in Civil Proceedings 1996 …. 2.2.54

Health Records Act 2001 …. 19.1.7, 20.2.33 Health Services Act 1988 …. 20.2.34

Interpretation of Legislation Act 1984 …. 8.3.16, 8.3.19, 16.5.4

Judicial Proceedings Reports Act 1958 …. 20.1.9 Mental Health Act 1986 …. 20.2.34

Ombudsman Act 1973 …. 4.2.2, 4.2.13, 4.3.22C Pt IV …. 4.2.19 s 13 …. 4.3.22C s 13(2)–(4) …. 4.2.19 s 13AA(1)(b) …. 4.2.19 s 16 …. 4.3.19 s 23(1) …. 4.2.14 s 27 …. 4.3.19 Parliamentary Committees Act 2003 …. 6.4.2

Privacy and Data Protection Act 2014 …. 4.7.6, 20.2.32 Public Administration Act 2004 …. 1.3.29E Public Records Act 1973 …. 19.2.35

Racial and Religious Tolerance Act 2001 …. 4.4.19 Subordinate Legislation Act 1994 Pt 3A …. 6.3.1, 6.3.2 Pt 4 …. 6.3.1 Pt 5 …. 6.4.2 Pt 5A …. 6.4.2 Pt 6 …. 6.4.2 ss 5–6 …. 6.2.9 s 6 …. 6.2.7 ss 7–12 …. 6.2.7 s 16 …. 6.3.2 s 20(3) …. 6.3.2 s 22 …. 6.4.3 s 25A …. 6.4.8

Supreme Court Act 1986 …. 2.2.47, 2.2.54

Supreme Court (General Civil Procedure) Rules 1996 …. 9.2.36E Surveillance Devices Act 2006 …. 20.2.34

Victorian Civil and Administrative Tribunal Act 1998 …. 3.2.45, 18.4.21 Pt 4 Div 5 …. 4.7.6 s 42 …. 3.3.34 ss 45–47 …. 21.1.9 s 51 …. 3.3.4 s 57 …. 3.2.67, 12.5.15 s 97 …. 3.2.45, 3.4.6 s 98 …. 3.4.6 s 98(1) …. 3.2.45 s 98(1)(c) …. 11.4.21 s 121 …. 3.3.21 s 122 …. 3.3.21, 5.3.29 s 148 …. 7.2.27, 13.5.2 s 148(7) …. 7.2.27

Western Australia Disability Services Act 1993 …. 4.4.19 Equal Opportunity Act 1984 … 4.4.19

Freedom of Information Act 1992 …. 19.1.8, 20.2.35, 29.2.35 Interpretation Act 1984 …. 8.3.16 s 5 …. 6.4.2 s 7 …. 16.5.4 s 19 …. 8.3.19 s 41 …. 6.3.1, 6.3.2 s 42 …. 6.4.2 s 43 …. 6.4.2

Legal Profession Act 2008 …. 21.1.10

Parliamentary Commissioner Act 1971 …. 4.2.2, 4.2.14 Public Sector Management Act 1994 …. 1.3.29E Rules of the Supreme Court 1971 …. 21.1.8

State Administrative Tribunal Act 2004 …. 3.2.46, 18.4.21 Pt 3 Div 3 Subdiv 2 …. 21.1.9 s 3 …. 18.4.21 s 9 …. 3.2.47, 4.7.6 s 17 …. 3.3.34 s 27(2) …. 3.3.8 s 28 …. 3.2.67, 12.5.15 s 28(2) …. 3.2.47 s 29 …. 3.3.4 s 32 …. 3.4.6 lxxii

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Statutes s 32(4) …. 11.4.21 s 36 …. 18.4.21 s 37 …. 18.4.21 s 38 …. 18.4.21 s 52 …. 4.7.6 s 54 …. 4.7.6 s 85 …. 3.3.21 s 86 …. 3.3.21, 5.3.29 s 105 …. 3.2.47 s 105(2), (13) …. 13.5.2 s 150(5) …. 3.2.47 s 154 …. 8.5.18

State Records Act 2000 …. 20.2.35

Supreme Court Act 1935 …. 2.2.55



Sweden Freedom of the Press Act …. 19.1.1

United Kingdom Act of Settlement 1701 …. 3.2.54, 11.5.30C Civil Procedure Rules …. 17.9.2

European Communities Act 1972 …. 9.3.5

Freedom of Information Act 2000 …. 19.3.5, 21.1.21 Habeas Corpus Act 1679 …. 5.2.8, 17.5.1

Human Rights Act 1998 …. 15.2.11, 15.3.27, 15.3.33E

International

Judicature Act 1873 …. 2.5.8C, 17.1.9

International Covenant on Civil and Political Rights …. 4.4.3, 4.4.13, 4.4.32, 4.4.35C, 8.3.38, 8.3.58C

Senior Courts Act 1981 …. 17.9.2

Refugees Convention 1951 …. 8.4.7C, 10.4.25C, 11.2.20C, 11.3.16C, 13.3.17C Treaty on European Union …. 2.3.7

New Zealand Ombudsman Act 1975 …. 4.3.4

Magna Carta …. 11.5.30C

Tribunals and Inquiries Act 1958 …. 1.4.3E, 16.3.6

Tribunals and Inquiries Act 1971 …. 21.1.19C

United States of America Administrative Procedure Act 1946 …. 7.5.30C Freedom of Information Act …. 19.1.1, 19.1.2

lxxiii

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A

PART

Accountability in an Administrative State

1

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Administrative Law — Theory, History and Context

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1

INTRODUCTION 1.1.1  A feature of Australian history is that the community relied early on government to provide public services and be involved in many aspects of communal life. This can be traced to the early days of convict settlement when the European settler population was almost totally dependent on government initiatives. That legacy has survived. Transport, education, income support, the allocation of land — all have been under government control for much of Australia’s history. As the historian WK Hancock remarked in the 1930s: ‘[T]he prevailing ideology of Australian democracy features “the appeal to government as the instrument of selfrealisation”’: WK Hancock, Australia, Jacaranda Press, Brisbane, 1930, p 57. 1.1.2  That history, since allied with an international trend towards increased government regulation, has meant that Australians now have dealings with government officials and agencies throughout their lives. A large range of activities — obtaining a birth certificate, going to school, getting a driver’s licence, registering a car, marrying, buying a house, opening a bank account, leaving the country, paying child support or bequeathing the acquisitions of a lifetime — are subject, directly or indirectly, to government scrutiny, permit or control. Many aspects of communal life must be confirmed, validated or authorised by a government official. The power wielded by officials is considerable and has grown over time. 1.1.3  The spread of government control has led to a demand for heightened scrutiny of government, consistent with the democratic ideal that those who elect the government are entitled to call it to account. Government relies on public taxation, charges and levies to fund its operations, and this too has strengthened the argument for scrutiny of those operations and to make government publicly answerable. In short, with power comes responsibility and accountability. 1.1.4  The relationship between government and the community is complex. A single theory cannot explain how government should be responsible and accountable. Nor will a single set of procedures or control mechanisms be sufficient. The following two academic comments elaborate that point: An adequate understanding of the nature and purpose of administrative law requires us to probe deeper into the way in which our society is ordered. At the most basic level it requires 3

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1.1.4

Control of Government Action

us to articulate more specifically the type of democratic society in which we live and to have some vision of the political theory which that society espouses. [PP  Craig, ‘The Nature and Purpose of Administrative Law’ in Administrative Law, 3rd ed, Sweet and Maxwell, London, 1994, p 1]

To what extent is law used as a device for controlling governmental institutions; what legal institutions can best be used as controlling devices; whose interests do the present controlling institutions and laws serve; and whose interests ought they to serve; do legal institutions have the capacity to change to meet changing societal demands or does change have to be forcibly thrust upon them; what fundamental principles ought to guide any changes or any decisions existing institutions make; what can be learnt from theories and principles being discussed and evolved in other disciplines; how can we fashion statutes to bring about any real and fundamental change if that is what we consider is needed? [P McAuslan, ‘Administrative Law and Administrative Theory: The Dismal Performance of Administrative Lawyers’ (1978) Canadian Law Review 40]

1.1.5  The role that public law theory plays in the development and operation of administrative law is a feature, directly or indirectly, of every chapter in this book. There are, for example, frequent references to separation of powers, the rule of law, responsible government and polycentricity. This chapter provides an introduction to four theoretical dimensions that lie behind the discussion in many other chapters of this book but are rarely made explicit. The first section introduces general administrative law theory by presenting it as a series of dichotomies; that is, as opposing or contrasting theoretical dimensions that can influence the rule applied or decision made in an individual case. An example is the dichotomy between individualism and collectivism. The second section looks at the notion of accountability, and the different forms of accountability — political accountability, financial accountability, administrative law accountability, and accountability through ethics and integrity standards. As that suggests, one form of accountability may be more appropriate for some types of government activity than for others. The third section introduces the historical foundations of Australian administrative law. Knowing how a system has evolved and changed provides an insight into its objectives and limitations. The fourth section introduces the public/private divide. Administrative law is focused on public sector decision-making, but in the current age many government functions are devolved to private sector bodies. Whether administrative law mechanisms and principles should span the public/private divide — or, indeed, whether it is realistic today to presume that such a divide exists — is a contemporary theme that is influencing the development of administrative law.

DICHOTOMIES IN ADMINISTRATIVE LAW THEORY Judicial regulation vs legislative/executive autonomy 1.2.1  Parliament, government agencies, and courts and tribunals all have a role to play in government administration. Inevitably, lines must be drawn about which matters properly fall within the responsibility of each actor in the government system. Not only will those lines be blurred, but there will be differing views on where a line should be drawn. In a public law context the debate is often cast as a clash of values or styles, between judicial activism or overreach, as against executive antagonism to judicial scrutiny. 4

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1.2.3

This debate arose, for example, during the period of ‘the Mason Court’, under the Chief Justiceship of Sir Anthony Mason from 1987–95. ‘Hyperactive’, ‘adventurous’, ‘incomparably activist’, ‘composed of judicial legislators’ and ‘moving the goal posts instead of just deciding if a goal had been scored’ were some of the descriptions by other appellate judges given about the debate to a study by Jason L Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed, Carolina Academic Press, Durham, NC, 2006, p 3. The author’s more measured conclusion was that ‘[t]he Court shifted its institutional focus away from simply resolving legal disputes to making policy that addressed some of the country’s most controversial issues’: p 4. Another description of the debate, quoted in the ‘Activism’ entry in T Blackshield, M Coper and G Williams (eds), The Oxford Companion to the High Court of Australia, Oxford University Press, South Melbourne, Vic, 2001, is Ronald Dworkin’s dictum: ‘Activism is a virulent form of legal pragmatism’: p  6. A case from that period which illustrated the activist/pragmatist dichotomy was the High Court’s decision in Minister of State for Immigration and Ethnic Affairs v Teoh 11.3.11ff, that an international treaty, although not implemented in domestic legislation, could give rise to a legitimate expectation which, if not met, would invalidate a decision for breach of natural justice. The ruling was welcomed by many commentators as progressive and realistic in a global setting, but was condemned by the government of the day as exceeding the court’s proper role, and legislation was introduced into the parliament to overturn the ruling.

Intervention vs restraint: red light/green light 1.2.2  A variation of the activism/restraint dichotomy that was specifically adapted to administrative law by Harlow and Rawlings was the ‘theoretical taxonomy’ of red light/green light actors, described by Taggart as follows: Administrative lawyers were divided into red, green or amber light theorists. ‘Red light’ theorists sought to stop the collectivist State from redistributing wealth and interfering with personal liberty and private property, and focused on controlling (in the sense of restraining) State power. At the other pole are the ‘green lighters’, who sought to use the law to facilitate the State to regulate, redistribute and provide services. In between, as on a traffic light, are those under the ‘amber light’. These theorists … ‘conceded the desirability and need for the exercise of public power and thus reject the view that public law should be seen exclusively in terms of control of such power, but would argue that reliance on traditional political techniques for promoting accountability and control … is … inadequate, and forms of political control need to be buttressed by legal control’. [M Taggart, ‘Reinvented Government, Traffic Lights and the Convergence of Public and Private Law: Review of Harlow and Rawlings: Law and Administration’ [1999] Public Law 124]

Individualism vs collectivism 1.2.3  An explanation given in the previous quote as to why some administrative lawyers prefer restraint, while others favour legal intervention, has to do with a preference for an individualist or a collectivist view of the state. The collectivist view is premised on the belief that decisions have to be made within a framework of policy that recognises broader social concerns, such as the rational allocation of limited resources and the need for consistency and predictability in government administration. That perspective is generally taken by the legislature and the executive which are concerned with ensuring both distributive justice and horizontal equity. This view supports the need for judicial understanding or deference to the 5

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different role of the executive. The contrasting approach is that administrative review is properly concerned only with ensuring that individual justice is achieved in resolving the individual dispute or claim before the adjudicative body. This conflict is represented in the extracts in Chapter 3, from Sir Gerard Brennan 3.2.60E and Stephen Skehill 3.2.61E, concerning the appropriate stance of an administrative tribunal undertaking merits review. The conflict is inherent also in four extracts in Chapter 12, beginning at 12.1.14ff, as to whether government policy should be a subordinate consideration to the merits of the individual case. Another representation of the conflict between an individualist philosophy and collectivist theory is taken up in the following extract from McAuslan: Collective consumption … in a more traditional legal analysis covers both substantive and procedural matters, but the unifying idea from the perspective of an administrative lawyer is that all these services and facilities referred to are, and have to be, organised, planned and managed on a collective public basis — by central or local governments or by quangos — as they are consumed collectively. The criteria for access to the services depend on factors other than market ones and the planning and management of the services likewise are based on non-market considerations. [F]rom 1980 … disputes have increasingly become legal disputes …; the issues are not generally about fair hearings and natural justice for individuals, but are clashes between agencies involved in the administration of the processes of collective consumption…. These are politically contentious issues. … [T]he underlying clash of philosophies … are much more fundamentally about the desirability of collective consumption as a whole, as the best or only way to consume or allocate public resources. The conflict in short is between collective consumption and privatisation, and alongside privatisation … an emphasis upon certain sorts of individual rights against the bureaucracy. [A]s a matter of procedure, the judges see  issues brought before them in terms of individuals versus the bureaucracy; equally they think in the same way substantively, ie, that issues which to the outside world appear to involve clashes of policy or ideology between different agencies of the state, in fact can on ‘proper legal analysis’ be reduced to issues of the individual versus the bureaucracy. … [T]heir ideological preference [is] for the individual as opposed to the collective. … This predisposition towards individualism and the difficulties to which it gives rise comes through … in judicial policy, some dramatic, some less so. [P  McAuslan, ‘Administrative Law, Collective Consumption and Judicial Policy’ (1983) 46 Modern Law Review 1]

Rule-based justice vs substantive justice 1.2.4  An ordered society requires people to comply with defined rules. A just society may look more searchingly at whether the rules comply with accepted universal norms of fairness and equity. Should administrative law pursue formal legality or administrative justice? Should form or substance triumph? A positivist view is that rules gain validity and authority through their process of creation and the sanctions that can be used to enforce them; the content of rules is important, but must generally be accepted once made. A contrasting view is that rules acquire meaning partly through the way they are interpreted and applied. In those processes, there is considerable scope to examine whether rules align with human rights norms and accepted moral principles and fundamental freedoms. Nor are all review bodies expected to take a formalist rule-compliance approach. A particular function of the ombudsman and similar bodies, and, to a limited extent, administrative tribunals, is to comment on whether a 6

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substantive outcome is fair or defensible. In the following extract, Galligan examines the scope for a morality element to be an aspect of administrative decision-making and review: [A]ny official exercising power does so within a framework of legal and political principles, and … these principles are important in the justification and legitimation of decisions. Just what the principles are may differ from one society to another and is often a matter of dispute. … Just what these substantive principles and practices are must be determined according to the deeper values that provide the foundation of political society. … The most rudimentary requirements of political morality are that in exercising discretionary powers, officials should comply with standards of rationality, purposiveness, and morality. … They are not, however, very precise concepts, nor are they easily separated from each other. Rationality requires that decisions be made for reasons which are rational in terms of our understanding of the world. But of course rationality is an extremely complex notion … Purposiveness is also a complex notion, and [there are] difficulties in identifying purposes with any precision. … General considerations of morality impose a third level of constraints, in that officials, in rationally pursuing the objects of their power, must be responsive to moral principles. These may be seen as part of the axioms of rational action, or as providing subsidiary goals to be achieved, or simply as constraints on the pursuit of goals. Perhaps the most basic moral principle in this context is that the rights and interests of individuals be treated with understanding and respect; from this more specific principles, including ideas of fairness, both in substance and procedure, and non-discrimination, may be generated. These concepts, taken together in their interdependent relationships, constitute the foundations of a political morality which can be developed into more specific principles and priorities; these provide guidance and constrain the exercise of discretion by officials, and they also provide the basis for scrutiny and review of decision-making by legislature, courts and other special authorities. [DJ  Galligan, Discretionary Powers: A Legal Study of Official Discretion, Clarendon Press, Oxford, 1986]

Legal vs non-legal paradigms 1.2.5  Practically speaking, to extend the influence of administrative law in executive government enables lawyers to have greater influence on the social and political agenda. Does this lead to an unhealthy colonisation of society by lawyers (as suggested in the title of a book by CN  Tate and T  Vallinder, The Global Expansion of Judicial Power, New York University Press, New York, 1995)? Two contrasting views are presented below. The first view, that of Ison, argues that legal paradigms improve bureaucracy: The Need for Extended Use of the Judicial Process The arguments raised … against judicial review are a re-assertion of the case for democracy and legislative sovereignty. They are arguments against placing the judiciary at the apex of public policy decision-making; but they are not arguments against greater use of the judicial process. Paradoxically, one of the consequences of judicial review has probably been the under-use of the judicial process in situations where its use would have been constructive. First, there are many areas in which the traditional judicial process of fact finding and applying law to facts could well be expanded. I think in particular of those adjudicating tribunals and agencies which already have a pyramid structure, particularly those engaged in the re-distribution of money, such as the income tax system, and the social insurance and the social security systems. Primary adjudication in these systems is often appalling. A decision is made by an adjudicator or other official, commonly without notice of the issues or any 7

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opportunity to be heard, and without any other form of adequate inquiry. If an aggrieved citizen wants to appeal, the matter is first referred to a review process within or closely associated with the initial decision-making unit. A predictable consequence is a serious downward influence on the quality of primary adjudication. This structure facilitates the appointment of clerical grade personnel as initial decision-makers with review officers being selected for the thinking role. The need, however, is for thinking prior to initial adjudication, not upon a review. Bearing in mind that the majority of citizens probably accept even negative decisions of government departments and agencies without challenge, this type of review structure tends to promote sloppy decision-making at first instance. … Moreover, notification to a claimant of the decision following a review can become, in practice, a form of discouragement from proceeding with an appeal. If judicial review applies to these situations, it only applies following a decision at the top of the pyramid within the system; but injustice is less likely to be found among those few cases that reach the top of the pyramid than it is among the vast number in which the people have acquiesced in negative initial decisions. It is at the primary and first appeal levels that the judicial process is needed. In many of these systems, there should be provision for prompt and immediate appeal from the initial decision to a tribunal operating on a judicial model, and also spot checking of initial adjudication by that tribunal as a form of quality control. [T]he current structure of judicial review is also negative in its impact by encouraging the perception of primary adjudication as ‘administrative’. This tends to excuse those engaged in this process from proceeding in a judicial manner. What is needed here is not the adversary system, but an inquisitorial system which, in addition to enquiries initiated by the adjudicator, includes certain attributes of the judicial process, such as providing an opportunity to be heard, keeping an open mind until all the evidence is in, articulation of the issues, recognition of the applicable criteria, and reasons for decisions. [T  Ison, ‘The Sovereignty of the Judiciary’ (1986) 10 Adelaide Law Review 1 at 29]

The second view, that of Allan, argues that judicial control of executive discretion is justifiable only if there is a theory to explain this relationship, and that judges have generally failed to expound any such theory: If judicial review of administrative action imports considerations of substantive fairness or justice, it must also entail a commitment to appropriate political theory in justification. Although the idea of public law rights, or what may be understood as individual rights against the State, offers an attractive and plausible basis of theory, the task involved in articulating and applying such rights cannot be presented as straightforward. On the other hand, such a task needs to be assumed if legal control of discretion is to proceed on a rational basis. … The imposition of procedural and substantive legal restraints on the exercise of administrative discretion, whereby political will is subjected to the application of judicial reason, constantly threatens to eclipse that discretion, or to subvert it. Both legislative and executive will are always subject in the last analysis to the dictates of legal reason, which lies in the custody of the judges, since reason is always ultimate over will … Legality must not, however, be permitted to eliminate political and administrative choice. It is necessary, nevertheless, to acknowledge the potential breadth of the requirements of legality, as a means to secure substantive legal or political values, in order that rational inquiry can proceed into the limits of legitimate review. Present attempts to justify an unsettled border between administrative autonomy and judicial review seem unconvincing. Appeals to constitutional doctrine remain inconclusive in the absence of an adequate basis in political theory; and 8

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the boundaries of administrative discretion seem unduly dependent on judicial discretion. Questions of justiciability, standing, and the limits of law cannot be settled independently: each depends upon the character and purposes of public law. Since the values sought to be vindicated through law are controversial, no theory will command universal assent. A conception of judicial review as an institution tailored to the identification and protection of individual rights, in the sense of rights against abuse of the power of the State, nevertheless suggests a promising approach. [TRS Allan, ‘Pragmatism and Theory in Public Law (1988) 104 Law Quarterly Review 422]

Managerialism and results vs governing by the rules 1.2.6  An important shift in public administration in the 1980s was the adoption of a managerialist philosophy, in which results, outputs and economic rationality became the standard for measuring success. This shift reflected dissatisfaction with bureaucracy for its slowness, inefficiency and profligacy. A key managerialist tool was the efficiency dividend — achieving more with less by annually shaving a set percentage off the previous year’s budget of each agency. The managerialist philosophy did not disregard the need to comply with legal rules, but could be impatient with the way that administrative law compliance could slow processes down, attribute undue weight to formality and procedural fairness, and enable disgruntled individuals to control the agenda. The managerialist philosophy is no longer advocated in the same terms as it was in the 1980s, but it caused an important shift in public administration in Australia and led to many other changes that affected administrative law, such as contracting out and the statutory conferral upon ministers of powers to give directions to officials. The following extracts from Allars and Bayne explain the theory of managerialism and its implications at the time for administrative law: Corporate management theory signals a commitment to achievement by organisations of outputs which are measured as if they were products in a market; centralised, hierarchical control of decision-makers within organisations instrumental to attaining organisational objectives; coordination and planning of programmes delivered by organisations in order to provide comprehensive services at the lowest cost; and the steering of organisations in developing their operational systems in order to achieve economic recovery. … The direction of current administrative reform and management improvement of the public sector at the federal level and in several States is imbued by these management techniques of the private sector, in a ‘new managerialism’, despite the difficulty of measuring in monetary terms the output of most public sector programmes. [M Allars, Introduction to Australian Administrative Law, Butterworths, Sydney, 1990; see  also M  Allars, ‘Managerialism and Administrative Law’ (1991) 66 Canberra Bulletin of Public Administration 50]

[A]new wave of thinking in government and the public service about the appropriate role of public administration in the Commonwealth and in the States … is often called the ‘new managerialism’ …. [T]he interest now is in the efficiency, responsiveness and effectiveness of public sector organisations … This model accepts that public servants do make policy, and seeks to ensure that they do so in a way that conforms to the government’s perceptions of what is desirable … ‘Corporate management … elevates economic rationality to primary status … and in so doing attempts to replace the legal and procedural framework of the classical model’. Implicit and sometimes explicit in this theory is a very different view of administrative law to that which underpinned the reforms of the 1970s. … In some areas, discretions are being eliminated, and ministerial power to give directions strengthened. 9

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There are some more substantial and general implications for administrative law. First, the view that policy is the preserve of the politicians leads easily to arguments that decisions are not justiciable, or should be reviewed on limited grounds…. Secondly … some Ministers and senior public servants are advancing objections to any kind of review of discretionary decisions. … Thirdly, fundamental values (such as due process) inherent in administrative law principle are in question. The concern for ‘efficiency’ in the new managerialism is largely seen in cost terms. … In this environment, values such as procedural due process which cannot easily be quantified in dollars are not ranked highly. Finally, the very notion that law should govern public administration is in question. It does not sit very easily with a goals oriented administration. Senior public servants have for some years argued that administrative law encourages ‘soft’ decision-making; the hard decision, it is said, risks trouble with lawyers, tribunals and courts. … The law is seen as getting in the way of achieving goals. [P  Bayne, ‘Administrative Law and the New Managerialism in Public Administration’ (1989) 58 Canberra Bulletin of Public Administration 39]

Evolution vs prescription 1.2.7  The origins of administrative law lie in the common law, particularly the common law remedies. Many cherished legal doctrines in administrative law have a common law origin, such as natural justice, good faith, standing and the principle of legality. We live in an age of statute that lays down the rules to be observed by government. A supplement to that elaborate statutory framework is the judicial review statutes (such as the Administrative Decisions ( Judicial Review) Act 1977 (Cth)) which set out not only the procedure for instituting judicial review proceedings, but also the criteria to be applied in deciding if an administrative action is unlawful. The common law heritage is persistent nonetheless, and the content of some administrative law doctrines (such as natural justice) is supplied almost exclusively by the common law and cannot be ignored. The judicial choice to use umbrella concepts such as reasonableness, rationality and jurisdictional error to define the boundaries for lawful decision-making illustrates the common law heritage persisting in another way. The recent delineation of when executive (non-statutory) power can be used as a legal basis for government action (discussed in Chapter 9) is another example of this trend. This reliance on the common law and general theory has been criticised, not least on the basis that the experience derived from resolving individual disputes is an unsafe ground on which to develop general rules. The broader debate is noted in the following comment by Allan (see also P Bayne, ‘The Common Law Basis of Judicial Review’ (1993) 67 Australian Law Journal 781; and JJ Spigelman, ‘Foundations of Administrative Law: Towards General Principles of Institutional Law’ (1999) 58 Australian Journal of Public Administration 3): Typically, English law fastens, not upon principles but upon remedies, [but] recent developments in the law of judicial review have prompted some limited attempts at more systematic analysis, as courts and commentators seek to make sense of a rapidly changing canvas. [N]evertheless … current analysis generally fails for want of adequate grounding in legal and political theory … on which a rational law of judicial review … depends. … Some critics have abandoned the search for coherence and principle in administrative law, condemning the resulting efforts of scholars as naïve, and judicial rhetoric as disingenuous. Their claims are lent additional force by the recent judicial tendency to justify widened, or else more restricted, review of administrative action on the basis of broad general principle. [TRS Allan, ‘Pragmatism and Theory in Public Law’ (1988) 104 Law Quarterly Review 422] 10

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Public vs private 1.2.8  The traditional focus of administrative law has been on the legal control of powers exercised by public sector agencies and the legal resolution of disputes between citizen and government. Administrative law principles and remedies were premised on the special position and responsibilities of government. Private sector relationships and activities rested on different legal principles. There was always, of course, some overlap. A central principle of legal historian Professor Albert Dicey’s theory of the rule of law was that government submitted to the ordinary law and courts and, for the most part, did not have special legal privileges: see  Dicey  5.2.4E. For example, government was bound by the same rules as others when entering a contract; and private law remedies, such as the injunction, could be obtained to restrain unlawful government action. It has become progressively harder to maintain a strict public/private distinction. One area of difficulty taken up later in this chapter is the devolution of government functions to private sector bodies (through techniques such as contracting out and privatisation). In response, it has been suggested that the exercise of a function that is public in nature should accord with administrative law principles, by whomever the function is exercised: see  1.2.9. Another response is to suggest the need to rethink traditional notions of how the public sector is constituted, and to develop accountability principles with that in mind. The problem of how to describe the public sector was addressed by Harlow: The structure of the modern state is such that public and private industry, autonomous statutory bodies, regional boards and central government departments all jostle for place. They carry on identical functions which are allocated in a haphazard fashion. Some, like the Post Office, are transmogrified from departments of state to autonomous bodies overnight, yet carry out the same task and retain the same privileges. No activity is typically governmental in character nor wholly without parallels in private law. Even the most characteristic function may be delegated — as when the law and order function is exercised by private armies levied by Securicor, a private service employed on occasions by government agencies. The changes which have occurred … are analysed by some in terms of ‘a shift from private law, concerned with security of the individual to public law, concerned with welfare and social utility. Others … have identified a shift in the prevailing individualist legal theory of the nineteenth century to the welfare-oriented policies of modern socialist democracies, characterised, as these increasingly are, by the interpenetration of public and private institutions and capital. The ‘night-watchman’ state is rapidly being replaced by a state whose functions range from welfare to commercial activities and from law and order to education. [C Harlow, ‘“Public” and “Private” Law: Definition without Distinction’ (1980) 43 Modern Law Review 241]

1.2.9  Another dimension of the debate is whether administrative law principles should travel across the public/private divide and apply to bodies that are still essentially private in nature. To some extent, this already happens, with the creation of industry ombudsman schemes, and the application of privacy and human rights standards to both the public and private sectors. In the following extract, Wade comments that there is a limit to how far this thinking can be taken and, in particular, that it would be inappropriate to apply the full regime of judicial review to the private sector: Is public law then to be brought in to redress the imbalance of power in the commercial world, where private law hitherto has reigned supreme. This would be the extension of judicial 11

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review ad infinitum, yet the suggestions may not seem extravagant now that the jurisdiction has broken out from the legal ring-fence that previously, and I think properly, confined it. But whether the world would be a better place for judicial review of commercial decisions is something I greatly doubt. The rationale behind the extensions … is that bodies like the Take-over Panel [see R v Panel on Take-overs and Mergers; Ex parte Datafin plc 2.5.8C] are quasi-governmental, filling gaps in the mechanism of public administration. But to treat bodies as governmental is likely to make them act governmentally. The imposition of judicial review on the commercial and industrial world is likely to create a formalistic, civil service mentality in which caution is the watchword. That might work seriously against enterprise and efficiency. Judicial review has been devised and developed for controlling government and, as much as I value it for that purpose, I am skeptical about treating it as a universal good for all manner of human activity. [Sir William Wade, ‘Beyond the Law: A British Innovation in Judicial Review’ (1991) 43 Administrative Law Review 559]

A general analysis of the public/private divide is taken up in the following extract from Finn. 1.2.10E

C Finn, ‘The Public/Private Distinction and the Reach of Administrative Law’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context, Cambridge University Press, Melbourne, 2014

[I]n 1992 … Airo-Farulla offered a strong critique of the ‘public-private’ distinction and its inability to clearly define the reach of administrative law. He described the dichotomy between the public and private spheres as ‘formalist’ and as ‘one of the basic premises of traditional liberal political philosophy’. Airo-Farulla argued that this distinction was untenable and should be replaced by a focus on ‘the appropriate decision making standards that should be applied by (and to) bureaucracies generally’. This critique of the public/private divide came in the wake of the privatization and outsourcing movement which began in the United Kingdom in the 1980s and swept through Australia in the 1990s. The ideology of ‘new managerialism’ and the mantra of ‘private sector efficiency’ which accompanied those changes gave birth to many other academic calls to reconsider the proper scope of administrative law. Despite these calls, however, little has changed in the 20 years since this challenge to the traditional conception of the reach of administrative law. Government continues to reinvent itself and thus to challenge traditional understandings of the public/private divide. Courts continue to wrestle with an all-or-nothing classification of organisations as either ‘public’ or ‘private’, rather than recognizing, as Airo-Farulla hoped, that they actually lie along a continuum, from the highly public to the very private, with many bodies comprising a mixture of each. At the highest, courts have occasionally grappled with the idea that the ‘public’ or ‘private’ classification might not be wholly determined by the proximate source of the power being exercised. Even here, however, their ultimate conclusions have seldom strayed from the traditional. … Difficulties with the distinction [T]he landscape of Australian public administration has been altered beyond recognition in the last twenty years or so. The move towards privatization, outsourcing and other forms of ‘public/private partnership’ is widely recognized. No-one could fail to notice the privatization

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of utility services, or the contractual engagement of private sector bodies in the delivery of welfare and employment services, and the management of prisons, detention centres and even refugee visa assessments. The public service itself has also been reformed along private sector lines, to take account of managerialist dictates. … A second response to the privatization wave has been the emergence of a raft of ‘private’ industry ombudsmen and dispute resolution bodies. Examples include the Telecommunications Industry Ombudsman (TIO), a range of State energy industry ombudsmen such as the Energy and Water Ombudsman of Victoria (EWOV), and financial industry consumer protection bodies such as FICS [Financial Industry Complaints Service] and its successor body, FOS [Financial Ombudsman Service]. These bodies straddle the traditional ‘public/private’ divide in interesting ways. … There are other bodies which are hybrid in nature. How should we classify housing associations and cooperatives? It might be argued that these are simply private consensual bodies, albeit regulated by statute. But that regulation is extensive and frequently imposes a duty to observe the requirements of procedural fairness. Some statutes impose further requirements for decision-making … Again, it seems that any simple classification of such bodies as wholly ‘public’ or ‘private’ is unlikely to be helpful. … [W]here such bodies hold effective monopolies over livelihood in their particular field, it is … difficult to argue that their activities fall wholly outside the purview of ‘public’ accountability. … Public/private values and the liberal tradition [Finn refers to administrative law values inherited from J S Mill and John Locke and concludes that, as a consequence:] Administrative law became the lawyer’s weapon of choice in that tradition and was essentially conceived of as a weapon against government. … Thus ‘public’ law, and administrative law in particular, is redolent with ideas of restraining, restricting and controlling the use of the power of executive government. This is most evident in notions of ultra vires and excess of jurisdiction, which have limited counterpart in the ‘private’ sphere. In short, the essential reason that administrative law is unlikely to abandon the public/private distinction is that it depends on that very distinction. Administrative law generally, and judicial review in particular, is conceived of as a defence of a cherished realm of individual privacy and freedom of action from unjustified governmental intrusion. … Conclusion The ‘public/private’ question presents itself in many guises and can therefore admit to many answers. The key is context. When it is recognized that a body, or its decisions, may be ‘public’ for one purpose, yet better viewed as ‘private’ for another, it is possible to respond in ways that better reflect the nature of the body or decision in question. For example, incorporated bodies possessing common law legal personality may generally be unconstrained by considerations of ultra vires when exercising normal incidents of that personality, such as entering contracts. Procedural fairness constraints might be appropriately imposed whenever a body possesses an effective monopoly and, therefore, has a greater capacity to make decisions directly affecting rights, interests and expectations. However such measures develop it seems highly unlikely that the public/private divide will cease to demarcate the limits of administrative law. … Airo-Farulla’s vision of an abandonment of ‘public’ and ‘private’ terminology seems unlikely, but a more nuanced response to the continuum of bodies that straddle that divide is not.

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1.3.1

Control of Government Action

ACCOUNTABILITY 1.3.1  The theme of accountability is central to all discussion of government. As noted by the Australian Public Service Commission, accountability has become ‘one of the cornerstone values of a modern, open society’: Australian Public Service Commission, ‘Delivering Performance and Accountability’ Contemporary Government Challenges series, 2008, p 1. While the focus of this book is on legal accountability through administrative law, other dimensions should also be noted. That is done in three ways in the following discussion. The first is through extracts from two statutes that refer to the public policy goal of ensuring accountability through effective governance and stemming corruption: see  1.3.2 and 1.3.3. The second is by highlighting the importance generally of accountability in a democratic system of government, as explained in two extracts from a Royal Commission report 1.3.5E and the Australian Public Service Commission 1.3.7E. The third is by looking at four different types of accountability — political accountability, financial accountability, administrative law accountability, and accountability through ethics and integrity standards: see 1.3.9ff.

Accountability as a legislative goal 1.3.2  Section  5 of the Public Governance, Performance and Accountability Act  2013 (Cth) states: Objects of this Act The objects of this Act are: (a) to establish a coherent system of governance and accountability across Commonwealth entities; and (b) to establish a performance framework across Commonwealth entities; and (c) to require the Commonwealth and Commonwealth entities: (i) to meet high standards of governance, performance and accountability; and (ii) to provide meaningful information to the Parliament and the public; and (iii) to use and manage public resources properly; and (iv) to work cooperatively with others to achieve common objectives, where practicable; and (d) to require Commonwealth companies to meet high standards of governance, performance and accountability.

1.3.3  Section 2A of the Independent Commission Against Corruption Act 1988 (NSW) states: Principal objects of Act The principal objects of this Act are: (a) to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body: (i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and (ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and (b) to confer on the Commission special powers to inquire into allegations of corruption. 14

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The Public Service Act 1999 (Cth) also includes the requirement to be ‘accountable’ as one of the five Australian Public Service Values: see 1.3.30E.

Perspectives on accountability 1.3.4  The following two extracts provide different perspectives on accountability. The first extract  1.3.5E is from the report of a Royal Commission in Western Australia that was established to investigate allegations of improper practice by Western Australian public officials in commercial dealings with the private sector (known as the ‘WA Inc Royal Commission’). The second extract 1.3.6E is from a publication of the Australian Public Service Commission, discussing traditional concepts of accountability in the context of contemporary government challenges. The extracts are followed by a brief discussion reflecting on the definition of accountability: 1.3.7. 1.3.5E

Report of the Royal Commission into Commercial Activities of Government and Other Matters (1992) Pt II, Ch 3, ‘Accountability’

In a democratic society, effective accountability to the public is the indispensable check to be imposed on those entrusted with public power … We believe the appropriate machinery [for effective accountability] is lacking. [Following are] a number of principles and general considerations which have guided us in our approach to this matter. First, it is not the purpose of accountability measures to prevent a government from governing. If the measures had that effect, they would defeat the very purpose for which, under the Constitution, power is given to governments, public officials and governmental agencies. The purpose of such measures is to hold governments, public officials and agencies to account for the manner of their stewardship. Government is constitutionally obliged to act in the public interest. To the extent that it is given power to do so, it must be allowed to do so. Such is its trust. Accountability provides the test and measure of its trusteeship. Secondly, accountability to the public is the obligation of all who hold office or employment, in whatever capacity, in our governmental system. Although the means by which the obligation is discharged vary, it must be regarded as a condition of public service. Thirdly, having entrusted governments, public officials and agencies with public power, the public reasonably is entitled to entertain a variety of expectations of those institutions and officials in their management and use of that power. These expectations cannot be fully enumerated and they vary over time. Some, for example, relate to basic norms which must be adhered to: compliance with the law and the Constitution; adherence to appropriate standards of official conduct; and loyalty in public service. Some result from the expectations created by government itself, from its policies and programmes. Some reflect the desired manner in which the public business itself should be conducted, its efficiency, its economy, its effectiveness, its equity. In their aggregate, these expectations inform the criteria of accountability. In general terms, public accountability provides the means for gauging the extent to which the government’s institutions and officials comply with the expectations the public is entitled to have of them. Fourthly, there are three principal avenues through which public accountability can be rendered: (a) The first is to the members of the public directly, both in their individual capacities and as a community. …

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Control of Government Action

(b) The second is accountability to what, for convenience, we will call accountability agencies which act, or should act, for and on behalf of the public. The obvious examples of such agencies are the Ombudsman, the Auditor General and the Parliament when exercising its role of scrutiny … (c) The third is the accountability of officers to their superiors and peers who are themselves accountable, directly or indirectly, to accountability agencies. This is the form of accountability traditionally favoured in ‘Westminster’ style systems and it is embodied, for example, in the principle of individual ministerial responsibility. Given the complexity of modern governmental arrangements, all three forms are essential. But insofar as it is practicable and without impairing the effective conduct of public government itself, the first two of these three forms should play the major role in ensuring an adequate measure of accountability. They, much more so than the third, bring government back to the people of this State. Fifthly, no single measure alone can secure effective public accountability. A variety of measures is necessary. Both how these complement each other and their aggregate effect are important. … As we have said, there is no single path to be followed to achieve a satisfactory level of public accountability. Accountability, for example, can require the obligation to provide information. It can require direct and periodic intrusion into the affairs of government for the purposes of scrutiny, investigation and review. It can require the provision of the opportunity to challenge official decisions. It can require complaint based investigations. It can require the adoption of procedures which themselves prescribe how officials or agencies can or must act. It can require the formulation of standards by reference to which official conduct and action can be judged. It can require effective systems of judgment or censure. It can require the establishment and policing of safeguards against the negligent or intentional misuse of official power, position and resources. This list is by no means exhaustive.

1.3.6E

Australian Public Service Commission, ‘Delivering Performance and Accountability’ Contemporary Government Challenges series, 2008

[T]he concept of accountability does not have a ‘fixed or precise meaning’… [It] has also come to include the responsibility that individuals might have to their professional ethics and/or values as well as their personal morality. This extends the concept of accountability beyond the traditional idea of external scrutiny; it refers to an inward rather than an outward obligation and, in the case of professional values and/or ethics, it can proceed without a visible process. The Public Service Act 1999 (the Act) seeks to fuse these very different notions of accountability by setting out the values which public servants need to uphold (APS Values (s. 10(1) of the Act)), and a code of conduct for public service employees (APS Code of Conduct (s. 13 of the Act)), as well as external processes through which public servants can be held to account. The traditional model of accountability describes a vertical chain that provides a continuum of accountability relationships between the electorate, the Parliament, the Government and the public service. Developments in administrative law over recent decades, however, have extended and strengthened the horizontal accountability of public servants and Ministers.

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Freedom of Information (FOI) legislation, the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) and administrative appeals processes have created new channels for bringing information on the actions of public servants into the public domain. Public servants are now legally accountable for their actions to institutions other than the Parliament, and can be obliged to explain their actions and justify their decisions to the courts and quasijudicial bodies … Other horizontal accountability arrangements are emerging. Some are less formal or confer less legal authority on the party to whom the accountability is owed, but they can nevertheless provide powerful checks on the activities of public servants. A number of public service reforms over recent decades have sought to make public servants more responsive to their clients. Australian public servants are encouraged to be responsive to the needs of members of the public to whom they provide services. This has been supported through mechanisms such as Citizens’ Charters, charging users for some services, and performance benchmarking. As Richard Mulgan notes, public servants are now seen as accountable ‘outwards’ to the public as well as being accountable ‘upwards’ through the hierarchical chain of managerial command (R Mulgan, ‘“Accountability”: An Ever-Expanding Concept?’ (2008) 78(3) Public Administration 568). These horizontal relationships are likely to be of increasing importance to the new and emerging modes of policy implementation being developed to deal with complex and intractable problems. This idea of accountability is at present relatively weak and needs to be differentiated from the traditional Westminster concept. To the extent that any accountability relationship exists between a public servant and a Centrelink client, for example, it is one in which the client has no direct power to call the public servant to account for his or her actions. Aggrieved citizens may lodge complaints with the service provider, or complain to their local MP, but redress through these forms of complaint ultimately relies on the good faith of the service provider. The citizen has no power to sanction the public servant other than by refusing to accept the service on offer. The power of the citizen to call the service provider to account is even weaker in the case of government services delivered by an outsourced provider. This is a significant challenge for emerging modes of policy implementation based on distributed and devolved government.

1.3.7  A theme that pervades those and other extracts in this chapter is that the concept of accountability, when applied to a system of government, describes a range of different relationships, requirements, obligations, expectations and sanctions, and operates both vertically and horizontally. The description of accountability can vary according to the answers given to questions such as ‘who is accountable?’, ‘to whom are they accountable?’, ‘for what actions are they accountable?’ and ‘what are the accountability standards?’ This is brought out in the following four extracts, each of which provides a different definition of accountability — from, in turn, a government report, a political scientist, a judge and a legal academic. There is much in common in each definition, but a different focus as well: [1] [Accountability exists] where there is a direct authority relationship within which one party accounts to a person or body for the performance of tasks or functions conferred, or able to be conferred, by that person or body … [13] It is important to understand that this concept of accountability does not imply simply providing information or answering questions, but includes setting goals, providing and 17

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reporting on results and the visible consequences of getting things right or wrong, including rewards or sanctions as appropriate. [Management Advisory Board and Management Improvement Advisory Committee, Accountability in the Commonwealth Public Sector, Report No 11, AGPS, Canberra, 1993, p 199] One sense of ‘accountability’ … is that associated with the process of being called ‘to account’ to some authority for one’s actions … Such accountability has a number of features: it is external, in that the account is given to some other person or body outside the person or body being held accountable; it involves social interaction and exchange, in that one side, that calling for the account, seeks answers and rectification while the other side, that being held accountable, responds and accepts sanctions; it implies rights of authority, in that those calling for an account are asserting rights of superior authority over those who are accountable, including the rights to demand answers and to impose sanctions … In the context of a democratic state, the key accountability relationships in this core sense are those between the citizens and the holders of public office and, within the ranks of office holders, between elected politicians and bureaucrats. [R  Mulgan, ‘“Accountability”: An  Ever-Expanding Concept?’ (2000) 78 Public Administration 555] [57] [A]ccountability can be taken to refer to the need for the executive government and administrative bodies to comply with the law and, in particular, to observe relevant limitations on the exercise of their powers. [Gaudron J in Corporation of the City of Enfield v Development Assessment Commission 7.5.10C] [A]ccountability is about … requiring a person to explain and justify — against criteria of some kind — their decisions or acts, and then to make amends for any fault or error, whether by reversing the decision, or paying compensation or in some other way — even resigning from office. [D Oliver, ‘Law, Politics and Public Accountability: The Search for a New Equilibrium’ (1994) Public Law 246]

Forms of accountability 1.3.8  Accountability in a complex system of government is not one-dimensional. The  following section looks at four different forms of accountability that together provide a framework for control of government action. The first, political accountability, is implemented formally through the parliamentary system and includes parliamentary committees, question time, letters to ministers, and ministerial control of and answerability for executive government action. The second, financial accountability, is implemented formally through constitutional and statutory controls on finance, which are monitored chiefly by the Auditor-General and key committees of the parliament. The third, administrative law mechanisms, which are the subject of this text, includes courts, tribunals, oversight bodies such as ombudsman offices, and legislation that confers rights on members of the public to access government documents and to be provided with reasons for decisions. The fourth, the ethical responsibility and integrity of government employees, plays a large role in safeguarding the rights and interests of members of the public. Steps that are taken to enhance that form of accountability include codes of conduct, ethics advisory services, policies on conflicts of interest, training, and government service charters: see also 1.3.25ff. 18

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Political accountability 1.3.9  Political accountability of government chiefly occurs through the parliamentary system, in accordance with the principles of responsible government. Control of executive departments and agencies rests with ministers, who constitute the executive and are drawn from the government commanding majority support in the parliament. Ministers are responsible for ensuring that the executive branch carries out the policies of the government. In turn, each minister is answerable to the parliament, and is accountable ultimately to the electorate — individually and collectively — for actions taken within the executive branch. The different parliamentary processes that ensure accountability in this fashion include question time, debates, ‘no confidence’ motions, parliamentary committee inquiries, presentation to the parliament of annual reports and program performance statements from executive agencies, and, of course, the need for the executive to maintain the support of a majority of the parliament to continue to form government. 1.3.10  In its simplest form, government accountability through parliament is about lines of authority and answerability. Directions, information, comments and answers flow back and forth between agencies, ministers, parliament and the public. This is sometimes described as a ‘transmission belt process of accountability’. In a deeper sense, however, as the extract from Emy 1.3.14E points out, the system of responsible government incorporates a set of moral and behavioural assumptions about how government should function in the public interest. Responsible government, in that way, is closely linked with representative democracy and government as a public trust. 1.3.11  Contemporary demands for robust government accountability have highlighted the limitations of political accountability, as noted by Emy 1.3.14E. Foremost among those limitations is that political accountability is not an effective overall mechanism for allowing those outside government to question or seek review of each individual decision made within government. As government grows in size and activity, ministerial control over the executive branch is correspondingly diminished, and is at its weakest in relation to independent statutory authorities and government business enterprises. There is a corresponding increase in the scope of managerial and administrative discretion exercised within the executive branch and by independent bodies. A consequence is that political accountability becomes focused more on major policy choices made within government, and less on questions of administrative justice in day-to-day decision-making. This theme is taken up by Sir Anthony Mason 1.3.24E, and in the earlier extract from the Australian Public Service Commission 1.3.6E. 1.3.12  Another limitation of political accountability is that it places an expectation or pressure on officials within the executive branch to be inwardly focused in serving the elected government and implementing its policies. This pressure can, to a degree, diminish the sense of duty owed by officials to the public, frustrate the notion that government is a public trust, and obscure the divide between law and policy, as acknowledged in the WA Royal Commission report 1.3.5E. 1.3.13  Those trends and limitations do not necessarily entail that political accountability has dwindled in importance or become less active — but rather that other forms of accountability have grown in importance. In a sense, government accountability has become overall more important. 19

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Control of Government Action

HV Emy, The Politics of Australian Democracy: Fundamentals in Dispute 2nd ed, Macmillan, Melbourne, 1978

[Responsible government] is characterised by both a particular doctrine of accountability and a set of ideas about what is meant by ‘responsible’ government. The doctrine of accountability, generally referred to as ministerial responsibility, contains two propositions: (i) ministers are individually responsible to parliament for the affairs of their departments; (ii) cabinet is collectively responsible to parliament and the electorate for the conduct of government. The first implies that parliament can call ministers to account for mistakes that occur in their department’s policy area, ie parliament can question and if necessary censure ministers. The second implies that either parliament or the people may dismiss a government with whom they are dissatisfied. Together, the two establish that government is subject to political control … The idea behind this doctrine is that it is up to parliament to see that ministers, apart from being called to account for their mistakes and those of their officials, also behave ‘responsibly’ in exercising power. The term ‘responsible government’ incorporates a set of moral and behavioural assumptions about how men entrusted with public office should behave, both towards one another and towards the electorate. Individually, ministers are expected to exercise power in a consistent and reasonable manner, while government as a whole is expected to be responsible to public criticism. Responsible government contains an injunction that ministers and public servants, as wielders of coercive power, should use that power in a certain way. Government should be carried on with due respect for the values of a civil society and parliamentary government. Parliament’s function is to see that it is. Parliament exists to ensure that those who govern an ideally rational society are themselves capable of reasonable behaviour. Responsible government therefore includes a normative statement about how men should properly rule other men, as well as a more specific doctrine of accountability … The effectiveness of ministerial responsibility depends on a series of conditions: eg the ability of MPs to question ministers, extract information and, on rare occasions, compel an incompetent minister to resign; and the availability of knowledge about the Government’s policies and assumptions. It also rests on the presumption that the minister can control his department and is aware of what his officials are up to. It is doubtful if any of these conditions are met adequately today. Partly because of party discipline, parliament’s strength is weak compared to the executive; modern administration is often very secretive about its actions; and the minister often depends heavily on his officials … In sum, it is doubtful if the doctrine provides either an effective method of enforcing accountability upon governments, or a way of ensuring that the public service functions efficiently and economically, or an adequate means for providing redress of maladministration. The current problems with the doctrine have provoked a search for a new system of public accountability.

Financial accountability 1.3.15  A major function of government is to raise and expend money. The importance attached to financial probity within government is declared in the Commonwealth Constitution, which provides that all money raised by the government is to be paid into a Consolidated 20

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Revenue Fund (s 81), and can only be drawn from that fund by appropriation made by law: s 83. Financial accountability is the verification of the official use of money drawn from the public account. A statutory framework of precise rules and directions has been developed for this purpose; the main federal statutes are the Auditor-General Act 1997 (Cth) and the Public Governance, Performance and Accountability Act 2013 (Cth). 1.3.16  The scheme for financial accountability pivots on the role of parliament in ensuring proper accounting for the taxes and other charges drawn from the public. As noted by the Joint Committee of Public Accounts in Report 346: Guarding the Independence of the Auditor-General, AGPS, Canberra, 1996: [1.28] [T]he community expects the Parliament to hold the Executive to account for the use of public funds: disclosures of profligacy or fraud in the use of public monies, and incompetence or inefficiency in the management of public services, naturally provoke public outrage.

Parliamentary control of finance occurs in varying ways: legislative approval is required for taxation and expenditure; parliamentary estimates committees examine executive activity and government programs on a recurrent basis, often by detailed questioning of ministers and public servants appearing before the committees; a parliamentary public accounts committee keeps a long-term gaze on the financial system generally; and the annual reports to parliament of all government agencies contain the financial statements of the agencies. The principal financial monitor of government operations is the Auditor-General. The Auditor-General Act 1997 (Cth) declares that ‘[t]he Auditor-General is an independent officer of the Parliament’ (s 8) who in discharging the functions of the office ‘must have regard to the audit priorities of the Parliament determined by the Joint Committee of Public Accounts and Audit’: s 10. There are two forms of audit carried out by the Auditor-General. The first is an audit of the financial statements of government agencies, to verify whether government money has been used in accordance with a parliamentary appropriation and in compliance with financial legislation. The second is a performance audit, which can be ‘a review or examination of any aspect of the operations’ of a government agency: ss 5 and 15. A performance audit can therefore look at the efficiency, effectiveness and regularity of government programs, concerning their compliance with legislation, their implementation of government policy, and their overall value for money. A number of the performance audits carried out by the Commonwealth Auditor-General have dealt with issues that arise frequently in administrative law. They include performance audits on Centrelink’s role in processing appeals to the Social Security Appeals Tribunal and the Administrative Appeals Tribunal (No 16, 2010–11); Administration of the Freedom of Information Act  1982 (No  8, 2017–18); The Australian Taxation Office’s Use of Settlements (No  21, 2017–18); and Australian Broadcasting Corporation — Complaints Management (No 37, 2017–18). 1.3.17  Financial accountability, like political accountability, has partial coverage only. The main focus is on financial probity, and the efficiency and effectiveness of government programs. There is no particular focus on administrative justice issues. Nevertheless, financial accountability mechanisms relied on by the Auditor-General play a key role in assembling information about whether government agencies are complying with legislative and other rules, and making that information available to parliament and the public. The purpose of this is to enliven government accountability and democratic governance. 21

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Administrative law accountability 1.3.18  Administrative law accountability has grown in prominence over the last 50 years. In part, this is a response to the limitations of political accountability in ensuring that administrative decisions are correctly made from both a legal and a merits perspective; in part, the growth responds to a liberal demand for greater transparency and accountability in government decision-making; and in part, as Justice Deirdre O’Connor noted, ‘[i]t was intended … to play a role that … in other countries is played by rights which arise under constitutional guarantees’: (2000) 27 AIAL Forum 6. Those themes are taken up in the extracts from R Else-Mitchell 1.3.23E and Sir Anthony Mason 1.3.24E, which chart the development of an administrative law system in Australia. 1.3.19  The broad purpose of administrative law is to safeguard the rights and interests of people and corporations in their dealings with government agencies. Administrative law does that in three main ways:

• Review of decision-making: Administrative law confers a right to challenge a government decision by which a person feels aggrieved. There are numerous mechanisms for doing this — applying to a court to undertake judicial review, appealing to an administrative tribunal to review the merits or legality of a decision, complaining to the ombudsman or an antidiscrimination or human rights agency, or seeking internal review within an agency.

• Protection of information rights: Administrative law controls government information practices, once again in numerous ways — by access to information legislation, which confers a right of public access to government documents; privacy legislation, which regulates the handling of personal information within government; administrative review legislation, which confers a right to a written statement of the reasons for a decision; and whistleblower protection legislation, which provides protection (to employees in particular) for disclosing information about unlawful or unethical activity, in circumstances that might otherwise attract disciplinary, criminal or civil law sanctions. • Public accountability of government processes: Administrative law shares with parliamentary and financial mechanisms the similar objective of government accountability. To that extent it is common (though not necessarily universal) to include within the scope of administrative law many other agencies and mechanisms that have been established in recent years to ensure accountability and propriety in government processes. The list includes anti-corruption agencies, human rights commissions and specialist government inquiries. Also under this heading could be included the statutes that regulate how subordinate legislation is to be made, publicly notified and tabled in the parliament.

1.3.20  Another perspective on administrative law is to identify the values or principles it is designed to uphold. One definition of those values is provided by the Administrative Review Council (ARC), which was, until 2015, the Australian government body that oversaw the system of administrative review and made recommendations for reform. It refers to two types of values: public law values, such as ‘the rule of law, the safeguarding of individual rights, accountability, and consistency and certainty in the administration of legislation’; and administrative law values, which it identifies as ‘fairness, lawfulness, rationality, openness (or transparency) and efficiency’: ARC, The Scope of Judicial Review, Report No  47, Commonwealth of Australia, Canberra, 2006, [4.2] n 76. Following are two other definitions — of administrative justice and 22

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public law values — given respectively in extra-judicial writing by Chief Justice Robert French (High Court) and Chief Justice James Allsop (Federal Court): [A]ll official action must lie within the boundaries of power created by law. This is perhaps the most fundamental theme of administrative law, from which all others may be derived. Within that framework, themes and values of administrative justice in the sense administered by courts may be identified as follows: 1. 2. 3.

Lawfulness – that official decisions are authorised by statute, prerogative or constitution. Good faith – that official decisions are made honestly and conscientiously. Rationality – that official decisions comply with the logical framework created by the grant of power under which they are made. 4. Fairness – that official decisions are reached fairly, that is impartially in fact and appearance and with a proper opportunity to persons affected to be heard. [RS French, ‘Administrative Law in Australia: Themes and Values Revisited’ in M Groves (ed), Modern Administrative Law in Australia, Cambridge University Press, Melbourne, 2014, p 24] I would begin with a value or feature that may be seen as prosaic, but it is the product of other features, and is essential to any system of government or organisation of power: reasonable certainty, so power can be understood, known and exercised, and branches of government take responsibility for its exercise, in a workably efficient and fair way. Secondly: honesty and fidelity to the Constitution, and to the freedoms and free society that it assumes, reflecting the constant of a principle of legality. Thirdly: a rejection of unfairness, unreasonableness and arbitrariness. Fourthly: equality. Fifthly: humanity, and the dignity and autonomy of the individual, as the recognition of, and respect for, the reciprocal human context of the exercise of power and the necessary humanity of the process; in many contexts this translates as the recognition of mercy. These should not be seen as a list of separate conceptions. They all interrelate. [ J Allsop, ‘Values in Public Law’ (2017) 91 Australian Law Journal 118]

1.3.21  In summary, it could be said that three principles underpin the administrative law system: • administrative justice, which, at its core, is a philosophy that in administrative decisionmaking the rights and interests of individuals should be properly safeguarded;

• executive accountability, which is the aim of ensuring that those who exercise the executive (and coercive) powers of the state can be called on to explain and to justify the way in which they have gone about that task; and • good administration, which is the principle that administrative decision-making should conform to universally accepted standards, such as rationality, fairness, consistency and transparency.

See also M Aronson, ‘Public law Values in the Common Law’ in M Elliott and D Feldman (eds), The Cambridge Companion to Public Law, Cambridge University Press, Cambridge, 2015; and E Rock, ‘Accountability: A Core Public Law Value’ (2017) 24 Australian Journal of Administrative Law 189. 1.3.22  It remains to note that there are many limitations on the scope and impact of administrative law, just as there are on the parliamentary and financial systems. Some of 23

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the limitations are jurisdictional: courts, for example, cannot ordinarily substitute a new decision, tribunals review selected decisions only, and the ombudsman is limited to making recommendations for change. Other limitations go more to matters of function and philosophy: it is probably uncontroversial to say that it is not the role of administrative law agencies to be an alternative forum for formulating and articulating public policy, though where and how that line is to be drawn is to be disputed, as both R Else-Mitchell 1.3.23E and Sir Anthony Mason 1.3.24E note. 1.3.23E

R Else-Mitchell, ‘Administrative Law’ in RN Spann (ed), Public Administration in Australia (rev ed), AGPS, Sydney, 1975

The growth of a substantial body of administrative law in English speaking countries can be traced to the economic and social developments of the last century. Governments 100 years ago had much less concern with economic and social matters such as the regulation of trade and industry, the conduct of public utilities or the maintenance of labour standards. They left those matters to the enterprise of the individual and contented themselves with declaring rules of general conduct and maintaining the courts as tribunals in which matters of private right could be litigated and determined. The trend to greater government intervention was manifested originally by legislative regulation in the form of Acts of Parliament which were enforced in the courts in the accepted way; but it was soon found that resort to established judicial procedures was inadequate. The complexity and variety of the situations which had to be met, the need for flexibility in applying a predetermined policy, the delay, expense and lack of expertise characteristic of judicial procedures and the need for primary regard to be paid to social factors and the public interest, all contributed to the inability of Parliament and the courts to give full effect to these new trends and to cope in detail with new problems. The solution was therefore found in the conduct of the necessary activities and functions by administrative authorities — government departments, public corporations and local authorities. The function of these executive and administrative authorities was to prescribe rules of conduct within the scope of the policy laid down by Parliament in legislation; this entailed the exercise of law-making functions under delegated authority. The need for flexibility involved these authorities also having the power of making decisions with respect to individual cases; this entailed the exercise of discretions and was a form of adjudication. In some cases, a power was conferred or a duty imposed upon those authorities to engage directly in a particular field of activity; this entailed the making of contracts and the performance of acts which infringed both public and private rights … The machinery set up by legislation to deal with [the range of decisions made by government] does not follow any single pattern. [Mr Else-Mitchell gave examples of the diversity of review mechanisms that had been developed.] It is clear that for some administrative decisions which affect individuals the best check is Parliament. The administrative authority may, for instance, be carrying out policies which cannot be defined so that a court can say whether a particular decision was necessary, or simply an arbitrary piece of unfairness … The test in practice is often one of convenience; some decisions cannot be subjected … to judicial procedures because they need to be taken quickly, cheaply, flexibly; others require special types of expertise that an ordinary court cannot command; others seem inextricably bound up with policy. There is a sense in which each type of case has to be considered on its merits. …

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[I]t is difficult to gauge the overall success of the courts in controlling the decisions of administrative authorities. Critics of the latter have been free in the use of expressions such as ‘administrative lawlessness’ and ‘bureaucracy’ and point to a few cases … where an administrative authority’s discretion has been overruled or it has been castigated by the court for abuse or excess of power … No one adds up the thousands of cases in which there has been fair dealing and no dissatisfaction has been expressed with the decision of an administrative authority other than that which invariably flows from an adverse decision. In the absence of statistics of administrative decisions it is obviously absurd to point to a few individual cases to prove that administrative adjudication is predominantly bad or predominantly good. Likewise, although effective control has been exercised by the courts in a number of reported decisions, its total value as a check on administrative excesses is difficult to determine … Some believe that courts should further extend their control of administrative adjudication. However, others see dangers in this, and preach the doctrine of ‘judicial restraint’ and the dangers of too much interference by the courts in the administration of public services.

1.3.24E

Sir Anthony Mason, ‘Administrative Review: The Experience of the First Twelve Years’ (1989) 18 Federal Law Review 122

Administrative review owes its place in a modern democracy to the vast expansion of the administrative decision-making process. The traditional legal theory of parliamentary democracy, shaped at a much earlier time when Parliament established its supremacy over the Crown (which was to all intents and purposes the Executive), did not allow for the unprecedented growth in the role of the Executive. The doctrine of parliamentary supremacy, expounded so influentially by Professor Dicey, with its associated doctrine of ministerial responsibility, provided an adequate legal and political framework at the end of the nineteenth century for a Westminster-type democracy. Then legislative regulation took the form of prescriptive rules prohibiting undesirable conduct which were enforced by the courts in criminal proceedings. In the intervening years the increasing complexity of social and economic life has called for more sophisticated and flexible regulatory control. This has led to regulation through the grant of licences, charters, franchises and subsidies subject to conditions in which administrative discretions have played an ever-increasing part. In turn, these techniques of regulatory control have been supplemented by legislative programmes administered by government departments or statutory authorities. Social welfare benefits are largely administered in this way. So the material welfare of the individual has come to depend even more on his rights against the Executive and its agencies than his rights against his fellow citizen. The new techniques in regulatory control and participation constitute a marked departure from the nineteenth century model which looked to government enforcement of legislative policy through court adjudication. Administrative action began to replace legislative enactment and judicial adjudication in creating legal rules and also in resolving legal disputes. The standard response to this problem is that the electorate, through its elected representatives, controls the Executive and the actions of administrators. This is a gross overstatement… . [T]he blunt fact is that the scale and complexity of administrative decision-making is such that Parliament simply cannot maintain a comprehensive overview of particular administrative decisions. …

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The attraction of judicial review and of Tribunal review on the merits is that they offer justice to the individual by means of independent adjudication … [I]ndependent determination of the citizen’s rights against the Executive is the hallmark of a modern democracy and a feature of Chapter III of the Constitution … Critics say that, as a result of the new system, the administrative process is more time-consuming and more costly than it was before. But it can scarcely be a legitimate point of criticism that more attention is now given to the authority of the law, to the need to give the citizen an opportunity to put his side of the case and to the statement of reasons for a decision. If these innovations have a price in time and additional cost then, within proper limits, it is a price well worth paying, so long as we obtain a greater measure of administrative justice … [T]he new system has contributed to a greater measure of administrative justice in its insistence on compliance with the rules of natural justice, its careful scrutiny of the reasons for decision, its emphasis on the justice of the case and its success in making the principles and procedures of review more uniform. These are the enduring benefits of independent review. No other system has been suggested that could provide them in the same measure.

Accountability through ethics and integrity 1.3.25  From the earliest days, the rules and principles that public servants were expected to observe were an integral part of their employment framework. Some of those rules were stated in legislation, such as Crimes Acts (for example, prohibiting bribery and unauthorised disclosure of information) and Public Service Acts (for example, creating procedures to exclude patronage and favouritism). Other principles were laid out in codes of conduct and similar documents. A strong theme in those codes was the loyalty and confidentiality owed by public officials to the government of the day. See Hot Holdings v Creasy 1.3.28C, in which Kirby J discusses the interplay between ethical and administrative law standards. 1.3.26  In the last two decades (both in Australia and other countries) that framework has been transformed, in two ways. The first is that the values that underpin public service have been spelt out more specifically in legislation and other documents. The second is the adoption of an expanded and more comprehensive list of values that places greater emphasis on the responsibility of public officials to serve the public and to observe core public law values. A survey in 1995 by the Organisation for Economic Cooperation and Development (OECD) of 29 OECD countries found that the core public service values adopted were impartiality (24 countries), legality (22), integrity (18), transparency (14), efficiency (14), equality (11), responsibility (11) and justice (10): OECD, Building Public Trust — Ethics Measures in OECD Countries, Policy Brief No 7, 2000, p 32. 1.3.27  Australia has been at the forefront of the movement to outline the ethics principles to be observed by public servants. Queensland was an early leader in spelling out the following principles in s  4 of the Public Sector Ethics Act  1994 (Qld): ‘integrity and impartiality’, ‘promoting the public good’, ‘commitment to the system of government’ and ‘accountability and transparency’. Two extracts below illustrate this trend: an extract from the APS Values and the APS Code of Conduct 1.3.29E; and an extract from Noel Preston 1.3.30E, arguing that accountability is a key objective in adopting ethical principles. A theme in both extracts is that individual responsibility is placed on public officials to understand that their own performance 26

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can affect the quality, integrity and accountability of government. In effect, the culture of an institution is drawn from the ethical behaviour of its members. This was likewise given by the Australian Public Service Commission in APS Values and Code of Conduct in Practice, 2003, as a reason for this new approach: The principles of good public administration, now embodied in the APS Values, lie at the heart of the democratic process and the confidence the public has in the way public servants exercise authority when meeting government objectives. Good public administration is a protection not only against inefficiency and poor performance, but also against fraud, corruption, inequity, inability to conduct business confidently and infringement of human rights.

1.3.28C

Hot Holdings v Creasy (2002) 210 CLR 438; 193 ALR 90; [2002] HCA 51 High Court of Australia

Kirby J: Administrative law and accountability The starting point for analysis involves a reminder of the history of the civil service in England that preceded the British settlement of Australia. Originally, most of the clerks and officials of the King were technically ‘clergy’, serving in one of the lowest orders. This permitted those officials to hold benefices, receiving emoluments from the rich revenues of the Church. This was the regular way for making provision for civil servants in the middle ages because the Church was rich and the King comparatively poor. After the Reformation, the roles of the Church and the King were largely reversed. However, the manner of securing payment for the civil service remained unsatisfactory and its funding insecure. The significant growth of that service in the nineteenth century led to the introduction of competitive examinations that helped abolish corrupt and questionable practices and replaced them with a culture of personal integrity and financial probity. Generally speaking, these features of uncorrupted administration became the hallmarks of the civil service of the British Empire, including Australia. They are a precious heritage. The Australian colonies and, after federation, the Commonwealth and the States, inherited this strong tradition. It was reinforced by the enactment of criminal laws for the punishment of persons in public office who misused their offices for personal gain. Quite apart from such statutory offences, a public officer committed an offence at common law if that officer corruptly used his or her official position to obtain any private advantage. Yet for the most part, until quite recently, invocation of the criminal law was comparatively rare and usually unnecessary at least in relation to senior officials who normally conformed to the strong culture of integrity both in the federal and State public services of Australia. The passage by the Congress of the United States of the Ethics Reform Act 1989 (US) coincided with a number of inquiries about the integrity of public administration in Australia. Some of these inquiries led to legislation addressed to the perceived problems in the public service, including corruption. Thus, following royal commissions and other inquiries, recommendations were made concerning the need for guidelines or codes of conduct for public servants. For example, in May 1992, the Electoral and Administrative Review Commission of Queensland released a report which considered ‘the proper relationship between public servants and their Ministers, the need for ethical education and the means whereby good management practices might discourage corruption’. At about the same time a number of

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codes of conduct were adopted for federal and State public servants of various ranks. Such State codes were applicable in the present case. It is always desirable to see a case in its legal and social context. When a court, and particularly this Court, is asked to examine and declare the outer boundaries of the law, it is essential that this be done bearing in mind relevant contextual considerations. In the case of a minister in the Government of Western Australia, these could not overlook the concerns about the conduct of public and corporate officers in the 1980s and 1990s. Such conduct produced demands in that State, as elsewhere in Australia, for higher standards, including in respect of financial probity and the avoidance of conflicts of interest and duty by those entrusted to exercise power on behalf of others. Any examination of the problem before this Court in the present appeal which ignored these factors would miss an important contextual consideration with which the law is, and should be, concerned. The maintenance of financial probity on the part of ministers and departmental officials in Australia is one aspect of the wider question of democratic accountability of public officers to the people whom they serve. ‘[T]o secure accountability of government activity is the very essence of responsible government’. According to Professor Paul Finn (as Finn J then was), the accountability of public officers may take three forms. One form is accountability to official superiors and peers. This is the preferred, but most diluted, method of accountability favoured in Westminster systems. Another is accountability to agencies such as the AuditorGeneral, the Ombudsman and to Parliament. These agencies act, or should act, for and on behalf of the public. The final form of accountability is to members of the public directly, either as individuals (as through administrative law mechanisms) or as a community (as through elections). When this analysis is kept in mind, it is easier to understand the recent growth of administrative law remedies. In common law countries they have developed to such an extent that Lord Diplock described them as the most significant legal advance of his judicial lifetime. It is not coincidental that this growth in administrative law remedies has occurred at a time when the theory of ministerial responsibility, as an effective means of ensuring public service accountability, has been widely perceived as having serious weaknesses and limitations. Under Australian constitutional arrangements all public officers who wield power on behalf of the people must ultimately be accountable, directly or indirectly, to the legislature and the Executive of which they are part. But it is also clear that there is a complementary accountability to independent courts and tribunals, as provided by law. Part of that law is the developing field of administrative law. Part of that field is expressed by the common law. It is applied and developed by judges, in Australia as in other countries, to improve the scrutiny of the exercise of power by public officials and to render those who are the repositories of such power accountable to the people for such exercise. It is implicit in the conferral of legislative power that it will be exercised in accordance with the terms of the grant, for the benefit of the people generally. Unless the grant makes it clear that the power may be exercised for the benefit of particular people or interests, any such discriminatory use of the power will be outside the grant. Furthermore, the exercise of the power in a way that personally benefits, directly or indirectly, those who exercise the power, or those who influence such exercise, will ordinarily be outside the grant. The rule against bias and the furtherance of self-interest is therefore, ultimately, to be seen as founded on the doctrine of ultra vires. It is reinforced by principles of the common law and by legislation enacted to strengthen this basic concept aimed at protecting the ultimate source of all public power — the people.

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In Australia, the law has adopted stringent rules to ensure that the exercise of public power is lawful and within the grant. The legality of the exercise of power is lost not only when actual bias is shown on the part of the repository but also where there is a reasonable appearance or apprehension of bias. Moreover, such loss of power occurs not only when the reasonable observer would apprehend a risk of bias but when that observer might apprehend the possibility that the impugned decision may have been influenced by extraneous considerations irrelevant to the grant.

1.3.29E

APS Values and APS Code of Conduct Public Service Act 1999 (Cth) ss 10 and 13

[Breaches of the APS Code of Conduct attract sanctions: Public Service Act 1999 (Cth) s 15. Following are the statements that are relevant to personal behaviour and public accountability.] 10 APS Values Committed to service (1) The APS is professional, objective, innovative and efficient, and works collaboratively to achieve the best results for the Australian community and the Government. Ethical (2) The APS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does. Respectful (3) The APS respects all people, including their rights and their heritage. Accountable (4) The APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility. Impartial (5) The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence. 13 The APS Code of Conduct (1) An APS employee must behave honestly and with integrity in the course of APS employment. (2) An APS employee must act with care and diligence in the course of APS employment. (3) An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment. (4) An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws … (7) An APS employee must: (a) take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee’s APS employment … (11) An APS employee must at all times behave in a way that upholds: (a) the APS Values …; and (b) the integrity and good reputation of the employee’s Agency and the APS. …

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[Similar provisions were enacted in other jurisdictions during the 1990s: see ACT: Public Sector Management Act 1994 ss 7, 8; NT: Public Sector Employment and Management Act ss 2A, 5, 5F; Qld: Public Sector Ethics Act 1994, ss 4, 6, 7, 8, 9; SA: Public Sector Act 2009 ss 4, 5, 6; Vic: Public Administration Act 2004 s 7; and WA: Public Sector Management Act 1994 ss 7, 9.]

1.3.30E

Noel Preston, ‘Introduction’ in N Preston (ed), Ethics for the Public Sector, Federation Press, Sydney, 1994

The notion of ‘public service’ is indisputably value-laden, just as the vocation of politics is an ethical enterprise. Much of the work of public officials — elected or appointed — involves choices among values; indeed, it is this characteristic of their role in a liberal democracy that often makes their decisions contestable, debatable and requiring public justification. Therefore, nothing is more dangerous to the well-being of the body politic than a public official who is technically competent or strategically astute but ethically illiterate or unfit … [In 1986] Peter Wilenski argued that all administration involves value-laden decisionmaking. Public administrators are expected to be responsible, responsive and accountable because public service is a public trust and in a representative democracy the public service is responsible not only to the public, but to the public’s elected officials. In addition, the managerial foundations of public service require of administrators the virtues of efficiency and effectiveness. As Kathryn Denhardt has argued, ethics in public administration goes beyond the avoidance of corruption or responsiveness to government policy or the responsibility to give service at minimum cost, for instance. It goes beyond what she calls ‘democratic ethics’ and ‘managerial ethics’. She claims it involves ‘the vigorous pursuit’ of principles like ‘justice, fairness, individual rights (such as privacy or due process), respect for human dignity, the pursuit of the common good and equity’. These broader social values are the social foundations of public sector ethics. They define purposes and goals for government while managerial values (such as efficiency and effectiveness) are basic to the technique or means of government. The contention here is that moral judgment is as important in the administrative task as efficient management of resources or the analysis of political options. Therefore, public sector ethics, while not disregarding the political and administrative workplace realities, is set within a broad context, including such considerations as the relationship between law and morality, the role of politics in a multicultural society, and the requirements of social, civic, and personal responsibility.

THE HISTORICAL FOUNDATIONS OF AUSTRALIAN ADMINISTRATIVE LAW 1.4.1  The history of Australian administrative law commences with the arrival of English settlers in 1788, who brought as part of their invisible baggage a common law system that enabled prerogative writ review of government action. The development of additional mechanisms to facilitate review of government decision-making was slow-moving. The pivotal event in the development of the present Commonwealth system of administrative law was the 30

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report of the Commonwealth Administrative Review Committee (the Kerr Committee) in 1971. The extract from an ARC paper 1.4.3E explains the proposals of the Kerr Committee and how they gave rise to the main features of the present system of judicial review, tribunal review, ombudsman investigations and ARC oversight, while the Creyke and McMillan extract 1.4.4E looks at six assumptions that underpinned the Kerr vision of Australian administrative law. The ARC material notes that the freedom of information and privacy laws stemmed from a later and different initiative. 1.4.2  The Australian administrative law system is one of the more comprehensive and sophisticated administrative law systems in the common law world. The system continued to evolve after the burst of activity in the 1970s and the 1980s. These developments are taken up in other chapters of this book, and include the growth in importance of the High Court’s original jurisdiction conferred by s 75(v) of the Commonwealth Constitution; the establishment of the Federal Circuit Court; the amalgamation of key national tribunals under the Administrative Appeals Tribunal umbrella; the development at state and territory level of civil and administrative tribunals; the creation of new ombudsman agencies in the public and private sector; the growth of human rights bodies and anti-discrimination agencies; and the creation of new mechanisms for controlling rule-making, including the making of subordinate legislation.

1.4.3E

Administrative Review Council, Review of Commonwealth Merits Tribunals Discussion Paper, Commonwealth of Australia, Canberra, 1994

The present Commonwealth system of administrative law can be traced to a report in 1971 of the Commonwealth Administrative Review Committee (the Kerr Committee, named after the Chairman Sir John Kerr, then a member of the Commonwealth Industrial Court). The major features of the present system — the framework for judicial review, the Administrative Appeals Tribunal, the Ombudsman, and the Administrative Review Council — stem largely from the recommendations of that Committee. The significance of the Committee’s work … is appreciated best in the historical and administrative context in which the Committee reported. Judicial review of administrative action has been possible from the inception of the Commonwealth. The inherent right of superior courts to conduct judicial review is an aspect of the common law developed in England, and adopted in Australia. Recognition of this supervisory jurisdiction was contained in s 75(v) of the Constitution, which empowers the High Court to issue against the Commonwealth the remedies of mandamus, injunction and declaration. Each of those remedies can be used to ensure the lawfulness of government activity. In these earlier decades there was not, however, an active field of administrative law litigation. Costs, government secrecy, legal technicalities, and other factors combined to make judicial review a difficult and hazardous process. Administrative review tribunals had also been created prior to the 1970s. Notable examples were the Commonwealth Employees Compensation Tribunal, the War Pensions Entitlement Appeals Tribunal, and the Taxation Boards of Review. Merit review processes were also created under a host of other individual legislative schemes. These included air navigation boards of review, the Law Officer established by the Designs Act 1906, a Specialist Recognition Appeal Committee under the National Health Act 1953, and the Minister or Secretary under schemes regulating broadcasting, copyright, customs, social security, occupational licensing, and grant

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determination. The general picture emerging was of a system that was uncoordinated, that had grown as a response to the pressures felt in particular areas of administration that contained many gaps and anomalies, and was not easily understood by the general community. At the same time, administrative law reform activity in other jurisdictions drew attention to the options for change. In the United Kingdom, there was a developing framework of administrative law, based on the courts, tribunals, a Parliamentary Commissioner for Administration, and a Council on Tribunals. A landmark development that attracted attention in Australia was the report in 1957 of the United Kingdom Committee on Administrative Tribunals and Enquiries (the Franks Committee). The legislation which resulted from that report, the Tribunals and Inquiries Act 1958 (UK), established a Council on Tribunals to monitor the structure and operation of administrative tribunals, created some minimum uniform standards for tribunals, and imposed upon certain tribunals an obligation to provide reasons for decision. Administrative law reform had also been occurring in New Zealand, notably the creation of an Administrative Division of the Supreme Court in 1968, and the appointment of an Ombudsman in 1962. Between 1971 and 1974, five of the Australian States took similar action to create an Ombudsman or Parliamentary Commissioner. Reform proposals of a different kind had also been made in Victoria. Two reports in 1968, from the Victorian Statute Law Revision Committee and the Chief Justice’s Law Reform Committee, proposed the creation of a general administrative tribunal, an Ombudsman, and a reformed system of judicial review. Academic and judicial commentators in Australia had also spoken in favour of administrative law reform. The appointment of the Kerr Committee in 1968 marked the first comprehensive review of Commonwealth administrative law. In its landmark report in 1971, the Committee drew attention to the steady development of a vast range of administrative discretions that could be exercised in a way that detrimentally affected the life, liberty, property, livelihood or other interests of a person. The Committee felt that established mechanisms were unable adequately to correct administrative errors and to ensure justice for the individual. It was said that the principal reliance on parliamentary and judicial review was inappropriate; the remedies and principles for judicial review were unduly encumbered by technicalities; the Australian pattern of administrative tribunals was ad hoc; and access to review was often blocked by cost, official secrecy, and privative clauses. The Committee concluded that ‘it is highly desirable to encourage in Australia a comprehensive system of administrative law … which is essentially Australian and which is specially tailored to meet our own experience, needs and constitutional problems.’ The Kerr Committee anticipated that there was a need for more detailed research on Australian law and government before its proposed new system was established. Two further enquiries were accordingly established. The Committee on Administrative Discretions (the Bland Committee, named after Sir Henry Bland, the Chairman) issued two reports in 1973: an interim report examining the Kerr proposal for an Ombudsman, and a Final Report examining the proposals for administrative review. The second enquiry by the Committee of Review of Prerogative Writ Procedures (the Ellicott Committee, chaired by Mr R J Ellicott, QC, then the Solicitor-General of the Commonwealth) examined the Kerr proposals for a reformed system of judicial review. The Committee also reported in 1973. The Final Report of the Bland Committee contained a thorough analysis of the existing Commonwealth framework for administrative review. Aspects of that framework that drew

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adverse comment from the Committee were the lack of any consistent pattern for administrative review; the inexplicable diversity among tribunals concerning their constitution and procedures; the frequent and inappropriate conferral of adjudicative jurisdiction upon the High Court and other courts; and the scant provision for external review of decisions concerning social security, welfare, customs, excise, and immigration, by contrast with the more generous facility for external review of professional, occupational and entrepreneurial regulation. Following, in broad outline, are the main changes that resulted from those enquiries. Reformed Judicial Review: The Administrative Decisions (Judicial Review) Act 1977 (Cth) implements the similar proposals of the Kerr and Ellicott Committees for a single enactment to codify the principles of judicial review, reform the procedures for commencing a judicial review proceeding, confer supervisory jurisdiction upon a specialist Commonwealth superior court (now the Federal Court), and create a right to the reasons for a decision. Ombudsman: The Ombudsman Act 1976 (Cth) reflects more the revised proposals of the Bland Committee. The Kerr Committee had suggested a different title — General Counsel for Grievances — and had envisaged a body with a more active function, to proceed on behalf of a complainant to a court or tribunal to challenge a decision, and to intervene in the review proceedings of other bodies. Administrative review tribunals: The Administrative Appeals Tribunal Act 1975 (Cth) implemented the Kerr and Bland proposals for the creation of an independent general administrative appeals tribunal, to exercise a jurisdiction that was both an extension and a replacement of existing arrangements. There was a similar philosophy of administrative review shared by both Committees, though their detailed proposals differed in some respects. The Act struck a balance — opting, for example, for the Kerr proposal that the President of the AAT be a judge …; and modifying the Bland proposal for three different tribunals by creating a single tribunal with three divisions (General Administrative, Medical Appeals, and Valuation and Compensation). Supervisor body: Following a recommendation of the Kerr Committee (not endorsed by the Bland Committee), the Administrative Review Council was established by the AAT Act. The Council has a general function to oversee the system of administrative review, and to make recommendations for reform. Administrative Procedure: The proposal of the Kerr Committee for an Administrative Procedure Act to define a uniform code of procedure for administrative tribunals was not implemented. [I]t should be noted that other elements of the Commonwealth administrative law system were developed from a different initiative. The Freedom of Information Act 1982 (Cth) originated in an election promise by the incoming Labor Government in 1972, was the subject of reports by two interdepartmental committees and by the Senate Standing Committee on Constitutional and Legal Affairs in 1979, was a focus of vigorous public debate, and was enacted during the term of a Liberal Commonwealth Government in 1982. The genesis of the Privacy Act 1988 (Cth) was a report of the Australian Law Reform Commission. The framework of human rights agencies has in large measure been established with a view to implementing international agreements made by Australia for furthering human rights protection.

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R Creyke and J McMillan, ‘Administrative Law Assumptions — Then and Now’ in R Creyke and J McMillan (eds), The Kerr Vision of Australian Administrative Law — At the Twenty-Five Year Mark, Centre for International and Public Law, Australian National University, Canberra, 1998

This section looks at the assumptions about administrative law that permeated the proposals of the Kerr Committee. Some of the assumptions were stated expressly in the Committee’s reports; other implicit assumptions come into view more clearly as a retrospective analysis of what the Committee proposed. The purpose of this analysis … is not to apply the wisdom of hindsight in evaluating the calibre of the Report, but to identify the philosophical foundations of Commonwealth administrative law … The Australian system of administrative law should be coherent, comprehensive and integrated The Kerr Committee spoke throughout its report of the need to evolve ‘an Australian system of administrative law’ that is ‘comprehensive’, ‘essentially Australian’ and ‘specially tailored to meet our own experience, needs and constitutional problems’. The major proposal for achieving that objective … was the creation of a system of courts, tribunals and a General Counsel for Grievances, all playing separate but overlapping roles. Review of decision-making would extend to issues of substance (or merits) as well as matters of procedure. The role that information plays in the relationship between government and citizen was also to be recognised, by giving public access to the reasons for decisions and by conferring extensive inquiry and discovery powers on the review bodies. A feature of this blueprint for a new system that aptly reflects the Committee’s philosophy of administrative law was that many administrative decisions would be reviewable by more than one review body. It is that feature which reflects the high value placed by the Committee on protection of the citizen against the improper exercise of public sector discretionary power. Administrative justice — providing a balance between the citizen and government — was regarded as an essential thread in the fabric of democratic government. The need for a system of review of decisions arose from the simple fact that government could exercise powers that directly affected people in an individual way. As the Committee saw it, when government officers are empowered to make discretionary choices in reaching a decision there should be an opportunity for an aggrieved citizen to question that choice in an independent forum. The implementation of this scheme for administrative review has been the main — and the outstanding — legacy of the Kerr Report. It has been possible ever since to speak of an Australian system of administrative law. It has to be said, however, that the Committee’s vision of an integrated system was never fully realised. The most obvious departures were that the Ombudsman was not given an advocacy role in courts and tribunals, departmental representatives were not appointed to tribunals, and judges (except in the role of President) have never played as active a role as was envisaged for them as members of the Administrative Appeals Tribunal … Administrative tribunals should play the central role in review of administrative action There can be no doubt that in the minds of the Kerr Committee, merit review by administrative tribunals was the key to achieving administrative justice. Most of the Committee’s report was about tribunals, especially the idea of a general administrative tribunal. A major theme of the report was the absence of an effective tribunal system, leading the Committee to conclude, ‘The basic fault of the entire structure is … that review cannot as a general rule … be obtained “on the merits” …’

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Administrative law in Australia has not developed along the path envisaged by the Committee. The jurisdiction and caseload of tribunals has expanded steadily, but it is fair to state as a general observation that the judiciary tends to be viewed as the centre of the Australian administrative law system. Partly this is a consequence of legal thinking habits that are induced by historical tradition and an a priori reliance on the separation of powers. Partly too it is a recognition of the innovative role that the High Court and the Federal Court have played in developing public law principles. However, the tendency is a consequence also of an unfortunate reluctance in the legal community to accept that a new breed of institution — administrative tribunals — could be at the forefront in developing a legal discipline. The high-water mark of that reluctance was surely the decision of the High Court in Craig v South Australia (1995) 184 CLR 163 which drew a disparaging distinction between tribunals and inferior courts in relation to the attitude that a court should adopt in undertaking judicial review. Review of administrative action should be undertaken by independent external review agencies The Kerr Committee Report spoke only of external review. When the Committee pronounced its philosophy by noting crisply that ‘there is an established need for review of administrative decisions’, it had in mind a need that could be met only by the creation of external review mechanisms … However, the issue not addressed by the Kerr Committee was whether a supplementary framework of internal review could partially and effectively secure administrative justice, the other objective of the Report. The emphasis on external review was doubtless strategic, given the inadequate and antiquated arrangements which then existed. It reflected also the view of the Committee that the central purpose of administrative law was to correct mistakes and to hold a balance between the bureaucracy and the citizen. Yet the interesting contrast … is with other reports of that era written by committees with a different membership that did focus on internal reform … The difference in approach between the Kerr Committee and others was crystallised in the first trenchant criticism of the new administrative law system to be published in 1982 by Brian Jinks: Had administrators been among the members of the Administrative Review Committee, would they have proposed a system of internal restructuring and complaints auditing in addition to a general appeals tribunal? One hopes that they would at least have been aware that prevention of errors was as important as correction of complaints in achieving lasting administrative reform. Commonwealth administrative law has moved a long distance since that criticism was made, and is nowadays heavily concerned with new techniques for ensuring better decisionmaking, such as internal review, auditing, complaints handling, and service charters. The Kerr Committee approach to administrative law nevertheless had a powerful influence during the first two decades … Review of administrative action should be an expert function … The premise from which the Kerr Committee worked was that administrative review is a specialist jurisdiction, and should be undertaken by people with appropriate expertise. This theme was especially prominent in the discussion by the Committee of the framework for judicial review. The Committee recommended that ‘a specialist court be established which will in the course of time develop an expertise of its own and be in a position to work creatively in the administrative area’. It was envisaged that this role could be discharged by the proposed Commonwealth Superior Court (now the Federal Court); failing its creation the Committee recommended that a Commonwealth Administrative Court be established. In either situation it

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was envisaged that review of administrative decisions would be undertaken by a small number of specialist judges, perhaps the Chief Justice and two or three others commissioned from existing federal judges … There was a similar emphasis on special qualifications in the proposals for a new Administrative Review Tribunal. The reason why the Kerr Committee recommended that there be a departmental nominee on the review panel was to ensure that it had ‘appropriate specialist members’. The other members of the panel were to be the specialist judges and members chosen ‘for their expertise in a particular field’. The tribunal was to have a small research staff, to ensure that it was fully informed on all relevant issues. The proposal to give the General Counsel a role in making submissions to courts and tribunals was also designed in part to give a sharper perspective to administrative law issues. In like fashion, the Committee’s observation that the Tribunal should decide consistently with government policy was borne of a perception that the Tribunal, in focusing on fact-finding and the improper exercise of discretionary power, should not move outside its area of expertise. The partial implementation of the Kerr Committee scheme has in itself gone a long way to advance the development of a distinctive Commonwealth jurisprudence of administrative law. Yet in some respects the Committee’s objective of specialisation has disappeared … There has been no move towards the creation within the Federal Court of an administrative law division, or a specialist bench … In the tribunal arena the principle of specialisation has largely been followed, although there are periodic rumblings of discontent about politicisation of the tribunal appointment process … Administrative law review mechanisms should have a uniform national application to Commonwealth administrative decision-making There was to be one system of Commonwealth administrative law. Commonwealth decisionmaking throughout Australia would come under the jurisdiction of a single Ombudsman. Judicial review would be undertaken by a single federal court, rather than by existing State and Territory courts. The principles and procedures of judicial review would as well be codified in a single enactment that would apply to all Commonwealth activity, in whichever agency or region the decision was made. Proliferation of individual tribunals was to be inhibited by the creation of a new general administrative appeals tribunal with a uniform national jurisdiction to review selected Commonwealth decisions. The entire system of administrative law was to be marked out in an Administrative Procedure Act that would also prescribe minimum procedural standards for all Commonwealth tribunals … [P]atterns that have developed in recent years [include:] There is no longer a single Ombudsman for Commonwealth matters … There has been a growing proliferation of tribunals … [There has been] the creation of a special and restricted review jurisdiction applying to immigration decision-making … The review of administrative decisions should result from the initiation of a challenge by an aggrieved individual The review of a decision by a court, tribunal or Ombudsman would occur after a person aggrieved by that decision commenced proceedings or lodged a complaint. The administrative law review bodies were to be unlike an Auditor-General, who self-initiates most investigations and maintains a supervisory oversight of administrative conduct. Even though the Ombudsman would have power to act of his or her own volition (a power little used until recently), the emphasis was still upon the investigation of particular complaints and grievances. The Kerr Committee addressed this distinction by explaining that ‘we favour the idea of locating a grievance man within the system of administrative review rather than in the parliament-executive context’. That is, the

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model adopted in creating the new office was an administrative law grievance model, not the model of an Auditor-General, a parliamentary committee, or a public sector standards commission. The essence of this new and comprehensive framework of administrative law was captured in the description given in the Foreword to the Second Annual Report of the Administrative Review Council in 1978: ‘The individual has been furnished with new institutional means of questioning the decisions or actions which concern him.’ This dimension reflected the premise of the Kerr Committee that administrative justice and accountability — correcting defective decisions and assuring the public that the rule of law was safeguarded — were the central objectives of administrative law. It was over the next two decades that a third purpose, ensuring better decision-making, crystallised as a separate rather than an incidental theme.

1.4.5  A new phase in the debate about the direction of Australian administrative law is the suggestion that we should acknowledge the emergence of a fourth branch of government, perhaps called the ‘integrity’ branch. An early contribution to this debate was in 2000 by American constitutional scholar, Bruce Ackerman, who drew attention to the traditional constitutional model of three branches of government (legislature, executive, judiciary) and suggested that contemporary constitution framers should incorporate a fourth or ‘integrity’ branch: B Ackerman, ‘The New Separation of Powers’ (2000) 113 Harvard Law Review 633 at 691–3. There are in fact many examples of modern constitutions that include enduring offices such as the Auditor-General, Ombudsman and Electoral Commissioner. Ackerman’s suggestion was endorsed in Australia by former New South Wales Chief Justice, Jim Spigelman, in the 2004 Australian Institute of Administrative Law (AIAL) National Lecture on Administrative Law: The primary basis for the recognition of an integrity branch as a distinct functional specialisation, required in all governmental structures, is the fundamental necessity to ensure that corruption, in a broad sense of that term, is eliminated from government. However, once recognised as a distinct function, for which distinct institutions are appropriate, at a level of significance which acknowledges its role as a fourth branch of government, then the idea has implications for our understanding of constitutional and legal issues of broader significance. … Recognising ‘integrity’ as a fundamental mechanism of governance, to the degree that it can be called a fourth branch of government, equivalent in a sense to the legislative, executive or judicial branches, allows us to analyse the individual components in a different way. I put the idea of integrity forward as a useful way to conceptualise a universal governmental function, within which the body of law known as administrative law may find a place. … Considered as a branch of government, the concept focusses on institutional integrity … [I]n any stable polity there is a widely accepted concept of how governance should operate in practice. The role of the integrity branch is to ensure that that concept is realised, so that the performance of governmental functions is not corrupt, not merely in the narrow sense that officials do not take bribes, but in the broader sense of observing proper practice. So understood, institutional integrity goes beyond matters of legality. … A short definition is that the integrity branch or function of government is concerned to ensure that each governmental institution exercises the powers conferred on it in the manner in which it is expected and/or required to do so and for the purposes for which those powers were conferred, and for no other purpose. [ JJ Spigelman, ‘The Integrity Branch of Government’ (2004) AIAL National Lecture Series on Administrative Law No 2 1] 37

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1.4.6  Support for a four-branch theory of government has been taken up by other commentators, who have drawn attention to two themes. One is the need to encapsulate the notion of ‘integrity’ as a distinct function of government, as suggested above by Spigelman. The other is to recognise that public law accountability mechanisms have evolved and are now more numerous and sophisticated than suggested by the classic three-branch theory of government. This theme is taken up by John McMillan, a former ombudsman and information commissioner: According to conventional theory, there is a three way division of functions between the parliament (as law maker), the executive (to administer the laws) and the judiciary (to hold the executive to account through adjudicating individual disputes about the legal correctness of administrative decision making). There is no direct place in this theory for the new oversight bodies. Clearly they do not fit within the parliamentary or judicial branches, so the tendency is to classify them as executive branch agencies. But this is equally problematic. The oversight bodies are different to executive departments, in terms of their role and statutory independence. They chiefly examine the legality and propriety of executive actions, not implement government policy or administer government programs. The inescapable reality is that the doctrine of separation of powers no longer provides an accurate picture of how scrutiny and accountability of government action occurs. In frank terms, the role of courts is not as extensive or prevalent as conventional theory would suggest. The task of resolving people’s disputes with government, and in the process holding the executive government to account, is now extensively discharged by independent bodies other than courts. [ J McMillan, ‘Commonwealth Oversight Arrangements — Re-thinking the Separation of Powers’ (2014) 29 Australasian Parliamentary Review 32]

1.4.7  Other comments in support of a four-branch theory have integrated the two themes of expanded oversight mechanisms and integrity as a function of government. Commentators have also wrestled with the definitional issue of which oversight bodies fit within a fourth arm of government. Following are two illustrative commentaries by, respectively, Brown and Creyke: The integrity branch of government consists of those permanent institutions established with a degree of political independence under a constitution or by statute, whose function is solely or primarily to ensure that other governmental institutions and officials exercise the powers conferred on them for the purposes for which they were conferred, and in the manner expected of them, consistent with both the legal and wider precepts of integrity and accountability which are increasingly recognised as fundamental to good governance in modern liberal democracies. … An analysis of the nature and legal position of the integrity branch institutions – Ombudsmen, Auditor-General, Information Commission, anti-corruption body (or bodies), administrative review tribunal(s), and public sector standards commissioners – provides some justification for considering that clearer constitutional recognition of their shared function and independence may be advantageous. [AJ Brown, ‘The Integrity Branch: A “System”, an “Industry”, or a Sensible Emerging Fourth Branch of Government?’ in M Groves (ed), Modern Administrative Law in Australia, Cambridge University Press, Melbourne, 2014, p 301] This description of the integrity system and its guardians, the integrity branch, illustrates that citizens have come to expect more of governments than compliance with laws, policies and procedures. This is where the twin facets of integrity, the health and wholeness of the system, which in turn is dependent on the honesty, incorruptibility and 38

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morality of individual officers, comes in. It is only by injecting a further element into the system – integrity – that those aspirations will be met. And it is only through the presence of an active and sensitive integrity branch to supervise and monitor the system, that integrity and the aspirations of citizens can be assured. [R Creyke, ‘An “Integrity” Branch’ (2012) 70 AIAL Forum 33]

1.4.8  There has equally been criticism within Australia of integrity or four-branch theories of government. One critic was Justice Gummow in the 2012 National Lecture on Administrative Law, who said of the notion, ‘I see little utility and some occasion for confusion’: WMC Gummow, ‘A Fourth Branch of Government?’ (2012) 70 AIAL Forum 19. His Honour drew attention to the existing constitutional design in Australia, and to the fact that all bodies that are created to oversee the conduct of the bureaucracy are constrained by s 75(v) of the Constitution. 1.4.9  Another critic of the notion was Western Australia Chief Justice Martin, in the Whitmore Lecture 2013, published as ‘Forewarned and four-armed: Administrative law values and the fourth arm of government’ (2014) 88 Australian Law Journal 106. After drawing attention to the number of statutory agencies in Western Australia that performed functions characterised as integrity functions, his Honour commented: Why are agencies of this kind proliferating? Why has the WA Parliament, in common with Parliaments in many other Australian jurisdictions, felt the need to create a plethora of watchdogs, each ostensibly zealously guarding the perimeters of its designated area of responsibility, alert and ready to bark loud enough to wake the neighbours in the event that anything untoward should occur within those perimeters? And, perhaps most importantly of all, what mechanisms are in place to prevent those watchdogs from savagely attacking innocent visitors who happen to be within the perimeters of their guarded territory? … The emergence of a class of agencies characterised as integrity agencies, and the proposition that they should collectively be regarded as a distinct branch of government, poses two relationship issues. First, what is the nature of the relationships between the various agencies classified as integrity agencies, and second, if they comprise a distinct branch of government, what are the relationships between that branch and the other branches of government, and do they disrupt the long-established systems of checks and balances between the existing branches of government? … [His Honour noted a Transparency International model of a national integrity system, that used the metaphor of the ancient Greek Temple, with eleven columns supporting a temple roof and vessels titled ‘National Integrity’ and ‘Rule of Law’. He continued:] It is reassuring that a marble bearing the words ‘rule of law’ is at the apex of the diagram. More disconcerting is the proposition that pillars labelled ‘legislature’ and ‘judiciary’ are given an equal role and prominence to other pillars, such as those entitled ‘watchdog agencies’, ‘media’ and ‘private sector’. It is difficult for me to see any sense in which the private sector or the Ombudsman, for example, should be regarded as having an equal role in the maintenance of national integrity as, say, the judiciary and the legislature. The proposition that each of these pillars is ‘mutually accountable’ is disturbing. I am unable to see any sense in which the judiciary is accountable to the private sector or an Ombudsman, for example. Nor would it appear to me to be likely that if, say, the strength of the Ombudsman was significantly reduced, or indeed there was no Ombudsman, or if the role of the private sector in relation to the maintenance of integrity diminished, that ‘the load will ultimately tilt and the whole edifice collapse into chaos’. 39

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1.4.10  Another indirect (and middle-ground) contribution to the debate — again in the AIAL National Administrative Law Lecture in 2013 — was by New Zealand Chief Justice Sian Elias: Administrative justice is today the work of many hands. An emphasis on judicial supervision misses the point that modern administration, which is characterised by openness and fair process, is substantially the work of the other branches of government. De Smith in his pioneering text famously said of judicial review that it ‘is inevitably sporadic and peripheral’. And, in reality, the courts are not where administrative justice is usually obtained. [S Elias, ‘National Lecture on Administrative Law’ (2013) 74 AIAL Forum 1 at 5]

Her Honour went on to outline the importance of non-judicial mechanisms — such as ‘soft law’ in protecting against arbitrariness and providing fair processes; access to information legislation in changing the culture and method of government; and the ombudsman in promoting good government. She then noted the continuing importance of judicial review in securing administrative justice — in providing independent scrutiny of administrative decision-making, and being a constant reminder of the need for the observance of legality, rationality and fairness. For other commentaries, see J McMillan, ‘Re-thinking the Separation of Powers’ (2010) 38 Federal Law Review 423; S  Prasser, ‘Australian Integrity Agencies in Critical Perspective’ (2012) 33 Policy Studies 21; D  Solomon, ‘What is the Integrity Branch? (2012) 70 AIAL Forum 26; C Field, ‘The Fourth Branch of Government: The Evolution of Integrity Agencies and Enhanced Government Accountability’ (2013) 72 AIAL Forum 24; and C  Wheeler, ‘A response to the 2013 Whitmore Lecture address by The Honourable Wayne Martin AC, Chief Justice of Western Australia’ (2014) 88 Australian Law Journal 740. 1.4.11  Another phase emerging in the development of administrative law is the impact of technology — the digital age — on the administrative justice system. At a transactional level, the impact is pronounced and obvious. All administrative law agencies have a web presence — for publishing decisions and forms, online lodgment of applications and documents, and exchanging submissions between parties. Many have moved to virtual hearing rooms through telephone and video conferencing. A remaining question is whether the impact of technology will be more profound still, as McMillan suggests in the following comment: In an online world people are increasingly choosing to conduct transactions through tablets, smart phones and downloadable apps. In dealing with government they want a quick response; they prefer short, clear, open and relevant responses; they expect to deal with people who understand their problem and are knowledgeable and display empathy; they may want an ongoing dialogue or interaction; and they may insist on a supplementary explanation or being given access to surrounding documents. … Will the digital age require us to rethink and reposition our theories of administrative justice? … At the heart of classic theory is the desire to check executive abuse, regulate the exercise of legal power, safeguard individual rights against unlawful encroachment by government, and secure the rule of law in government and society. The classic system for achieving those objectives was the separation of powers, that enables judicial officers to exercise determinative and conclusive powers in an environment free of duress and external pressure and influence. That classic theory is uncontentious, but no longer adequately describes the administrative justice system. That theme was taken up in last year’s AIAL National Administrative Law Forum that looked at the integrity branch of government. 40

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The digital age questions classic theory in an equally fundamental way.The web has become the greatest force yet seen for advancing and protecting three of the core administrative law values — participation, transparency and accountability. As a decentralised mechanism with few restrictions on access and no hierarchy of expertise, the web is an immensely powerful democratising force that cannot be ignored. It provides an open market in information, ideas and action channels. Society is turning to the web for every transaction, issue and concern with government. This cannot be ignored by government, and is not being ignored. Every aspect of the world we are trending into will be fundamentally changed by technology. The future of the administrative justice system must be carved in this digital environment. [ J McMillan, ‘The Impact of Technology on the Administrative Justice System’ (2013) 75 AIAL Forum 11]

1.4.12  The history of administrative law in each Australian state and territory is a different story but exhibits similar themes. The starting point in each state was the same — a common law system of judicial review, with an ad hoc collection of statutory tribunals undertaking merits review of selected decisions. All the mainland states have opted to set up composite ‘super tribunals’, combining civil and administrative jurisdiction, so that individual specialist tribunals only remain in limited areas (Tasmania relies on the Magistrates Court as a onestop-shop arrangement). Some states and territories also followed the Commonwealth lead in enacting judicial review legislation (the Australian Capital Territory, Queensland and Tasmania). All states have an ombudsman, access to information legislation, public interest disclosures legislation, anti-discrimination bodies, and some have distinct human rights regimes. The impetus for administrative law reform in at least two states (Queensland and Western Australia) came largely from the recommendations of royal commissions investigating allegations of official corruption: in Queensland, the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct in 1989 (Fitzgerald Inquiry), followed by the reports of the Electoral Commission and the ARC; and in Western Australia, the Royal Commission into Commercial Activities of Government and Other Matters in 1992 (see 1.3.5E), followed by the reports of the Commission on Government.

ACCOUNTABILITY ACROSS THE PUBLIC/PRIVATE DIVIDE 1.5.1  The discussion of accountability in this chapter focuses on the public sector. At the same time, the trend in Western countries is for governments to devolve functions to private sector bodies whenever it is felt that such bodies can deliver that function more efficiently or effectively. It is now significantly harder as a consequence to draw a boundary line between the public and private sectors. New methods are used to deliver services that were once delivered exclusively by government agencies. This trend is taken up in the extract from S Free 1.5.3E. The new arrangements take three main forms: • Privatisation: A function formerly discharged by a government agency will be discharged by a body that is wholly or partly under private ownership, often as a result of a public sale or share float of the government interest. Examples are the Commonwealth Bank, Qantas and Telstra. • Commercialisation: Government imposes a private sector business structure, including commercial methods and profit goals, on an agency that is owned and controlled by government. This can be done without changing the legal structure of the government 41

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business — the business may, for example, remain as a statutory authority or executive agency. Alternatively, the body might be incorporated and managed under the Corporations Act 2001 (Cth). It is common to use the term ‘government business enterprise’ (GBE) to refer to such bodies, although the term GBE is also applied to some privatised bodies that are under joint government and private ownership. Examples of bodies falling within this category include Australia Post, the Health Insurance Commission and the Defence Housing Authority. Some GBEs provide services in competition with private sector bodies.

• Contracting out: A government service will be delivered to the public by a private sector body pursuant to a contract entered into with a government agency. In short, the delivery of the function will be funded by government, but provided by a private sector body. Examples are the provision of employment services by job network providers, and the management of immigration detention centres. As the extract from G Airo-Farulla 1.5.6E indicates, there are those who argue that contracting out has enhanced accountability and others who come to the opposite conclusion. 1.5.2  The accountability questions posed in 1.3.7 will still arise. Should the body discharging the function or delivering the service be accountable? To whom and for what should it be accountable, and according to what standards? The extracts that follow illustrate that the answers to those questions can be as varied as the new arrangements themselves. The application to these new arrangements of judicial, tribunal and ombudsman oversight is taken up in later chapters. 1.5.3E S Free, ‘Across the Public/Private Divide: Accountability and Administrative Justice in the Telecommunications Industry’ (1999) 21 AIAL Forum 1 Since the 1980s, a quiet revolution has taken place in the institutional design and ideological foundation of governance in Australia. Pressure for reform has led to significant change in the nature of public administration and the relationship between the public and private sectors. In the ‘post-modern’ state, new administrative practices and institutional forms have emerged to facilitate the implementation of public policy and the delivery of public services … [F]or administrative law to make the necessary legal innovations to respond to the demands of accountability and administrative justice in the post-modern state, there are significant ideological and theoretical hurdles which must be overcome. These include the dichotomy between public and private which has defined administrative law, the inadequacy of traditional justifications of administrative law and the difficulty of identifying exercises of public power in the post-modern state. Ultimately, as the traditional indicia of executive power lose their relevance, a broader theoretical understanding of the nature of public power and the legitimacy of administrative law must be developed … Traditionally, legal thought has been based on the notional existence of distinct spheres of public and private activity, governed by discrete forms of public and private law. The public sector has been distinguished by the unique characteristics of the state and its relation to individuals. The private sector has been quarantined from the strict requirements of

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public law, and governed primarily by market principles, self-interested relations between individuals, and the limited intervention of the private law. In the tradition of Western liberal thought, the notion of the private sector carries with it significant psychological, ideological and legal limitations. Legal and governmental incursions on the private sector have been strictly limited, and vigorously resisted. The categorisation of activities and institutions as either public or private conditions expectations of the proper function of the law, the proper scope of individual liberties and the legitimacy of state action. In terms of accountability and administrative justice, the designation of certain exercises of power as public or private is fundamental to the legitimation of administrative law controls. Yet the post-modern state defies such clear-cut dichotomies.

1.5.4E

Industry Commission, Competitive Tendering and Contracting by Public Sector Agencies Report No 48, 1996

The Commission agrees … that, while responsibility to do certain things can be transferred, accountability for the results cannot. Whatever the method of service delivery, a government agency must remain accountable for the efficient performance of the functions delegated to it by Government, including • • • •

translating broad program objectives into detailed service specifications; choosing a person (in-house or external) to deliver the service; ensuring that the service required is actually delivered; and dealing equitably and responsively with clients and the public.

[Competitive tendering and contracting (CTC)] inevitably involves redefining responsibilities and relationship between key stakeholders, and introduces a new player — the contracted service provider — into the chain. Some [people have] argued that the introduction of this ‘new player’ can blur accountability for service delivery. Others considered, as does the Commission, that CTC offers the potential to enhance accountability in a number of ways. First, CTC can enhance accountability by requiring the contracting agency to specify clearly the service to be delivered and to allocate precisely responsibilities between the agency and the contractor for delivery of the service. This makes it easier to identify the cause of any failure. Every effort should be made to eliminate confusion about the lines of responsibility: they should be kept as clear and as simple as possible. Second, CTC can enhance accountability by requiring the contracting agency to specify the criteria on which the contractor’s performance is to be measured and monitored. However, it may be more difficult to do this for some services than others, particularly where the service provider must exercise discretion on the amount and mix of services to be provided to clients — for example, people with multiple disabilities … A third aspect of accountability is the ability of persons to seek redress where they are dissatisfied with the manner in which a service is provided (for instance, where quality is poor, or where confidential information is misused). A change from direct to contracted provision ought not to undermine the ability of individuals or organisations to seek redress for decisions or actions for which governments are accountable.

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1.5.5E

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Administrative Review Council, Government Business Enterprises and Commonwealth Administrative Law Report No 38, Commonwealth of Australia, Canberra, 1995

[The Council is of the] view that the administrative law package should apply to all government-controlled bodies, including GBEs. However, the Council [is also of the view] that it may be appropriate to modify the application of the administrative law package in its application to a GBE’s commercial activities undertaken in a competitive market … The Council accepts that the benefits flowing from the administrative law package will not be as valuable in relation to a GBE’s commercial activities undertaken in a market where there is real competition, and that, as a general principle, Commonwealth administrative law statutes should not apply to GBEs in relation to activities of that type. There are several reasons why the administrative law package is made less valuable in relation to a GBE’s commercial activities in a competitive market. These reasons relate to the objectives of administrative law … First, in relation to the objective of ensuring that the Government acts within its lawful powers, a GBE that faces real competition would not possess government powers or immunities and in relation to its commercial activities would be as susceptible to private law as its competitors. In this respect bodies with a legal personality distinct from the Government are more likely than other Government-owned enterprises to face real competition in respect of their commercial activities. In the Council’s view, a GBE could not be subject to real competition unless its participation in a market is free of any special government immunities or protections. The Council notes that the Hilmer report recommended that government businesses should not enjoy any net competitive advantage by virtue of their ownership when competing with other businesses. Second, in relation to the objective of providing mechanisms for individual justice, consumers of goods or services provided by a GBE would be able to direct their custom elsewhere (that is, to the GBE’s competitors). They would also be able to rely upon private law remedies. The Council acknowledges, however, that private law remedies, including industry ombudsman schemes, are unlikely to be as accessible as the administrative law package in all circumstances and for all consumers. Third, in relation to improving the quality of public administration, competitive market forces may achieve a similar improvement although … they may not work as effectively to achieve fairness. And in relation to accountability for government decision making, to the extent that a GBE undertakes commercial activities in a competitive market, it is generally not in a position to make government decisions. The Council therefore considers that, as a general principle, the commercial activities of a GBE, undertaken in a market where there is real competition, should be exempt from the administrative law package … [A]ny exemption should be limited in its operation to certain decisions or activities of a GBE, and should not apply, as a matter of course, to all of a GBE’s activities, or to a GBE generally. That is, activities of a GBE that are not commercial activities undertaken in a competitive market should continue to be subject to Commonwealth administrative law statutes. Any decisions made by the Government about GBEs will remain subject to the application of the administrative law package.

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1.5.6E

G Airo-Farulla, ‘Administrative Agencies and Accountability’ in P Boreham, G Stokes and R Hall (eds), The Politics of Australian Society, 2nd ed, Longman, Sydney, 2004

Government Accountability for Contract Administration Governments must be accountable to the public for the policy decisions they make concerning the level and quality of services they purchase, and also to both the public and tendering firms for how the tendering process is administered and how their contractual powers are exercised. In theory, purchasing agencies remain fully accountable for their administration of the contracts. In practice, contracting out erodes their accountability in several ways: • The purchasing agencies are very often ministerial departments, but contracting out can contribute to a loss of ministerial responsibility by allowing the minister to ‘pass the buck’ to the contractor instead of accepting responsibility for inadequate policy development. • Some public law accountability mechanisms do not easily apply to the decisions of government in administering contracts, particularly judicial review by the courts. • ‘Commercial in confidence’ claims are often used to restrict public access to a great deal of information about government services — information that would be publicly available if a government agency was directly delivering the service. Contractors’ Accountability Contracting out breaks the already over-stretched links between administrative agencies and parliament in the Westminster model. Parliament in theory has power to directly investigate a private sector contractor’s action, but this power is rarely if ever exercised. Even if it was exercised, parliament would have no way to make the contractor change its behaviour. As a general rule, the public accountability network identified above also does not apply to private sector contractors. Contractors generally are not subject to judicial or merits review; nor are they ‘public agencies’, as defined for the purpose of freedom of information, privacy and Ombudsman legislation. The large-scale shift to the use of private sector contractors therefore results in a massive loss of accountability. In theory, it is widely accepted that governments should not be able to contract themselves out of democratic accountability in this way … In practice, the wide scale legislative changes necessary to avoid this result have not been made. In part, this is because contracting out’s proponents argue that contracting out actually increases accountability, because it requires ‘the contracting agency to specify the criteria on which the contractors’ performance is to be measured. These performance indicators can then be used to hold contractors accountable for their performance. However, … defining appropriate contract specification is difficult, particularly in relation to service quality. As most performance indicators are quantitative in nature, they don’t provide a mechanism for holding contractors accountable for service quality. Furthermore, as well as appropriate performance indicators, an effective enforcement mechanism is needed. In theory, a government purchasing agency can sue the contractor for damages for its failure to properly perform the contract, But this is a lengthy and costly process that, itself, does nothing to improve the quality of service provided to the community … In practice, the government’s real sanction is its right to refuse to renew the contract with

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an unsatisfactory contractor. This clearly does create some incentive for the contractor to properly perform the contract, but is a very indirect form of accountability. … In practice, contracting out’s ‘improvements’ in accountability simply seek to replace the Westminster system’s over-emphasis on hierarchical control with a similar over-emphasis on contractual control. This is not a solution to the problem of making government democratically accountable.

1.5.7  The purity of the public/private divide has progressively been lessened, reflecting the continually evolving nature of administrative law. Two examples of administrative law mechanisms being applied to private sector bodies are the extension of the Commonwealth Ombudsman’s jurisdiction to private sector bodies providing postal, health insurance and tertiary education services, and the enactment of Australian Privacy Principles which apply equally to public and private sector bodies. More generally, the utility of a public/private distinction has been questioned as a guiding principle in Australian law, as noted by Sir Anthony Mason: The public/private divide has been a prominent feature in legal, political and popular debate for a long time. This prominence disguises the fact that the distinction is little more than a generalisation. As Gleeson  CJ said in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 226: ‘There is no bright line which can be drawn between what is private and what is not. Use of the term “public” is often a convenient method of contrast, but there is a large area between what is necessarily private and what is not.’ The generalisation has enabled us in the past, at least in a legal context, to differentiate between two bodies of law concerned mainly with, on one hand, the regulation of relations between individuals (and corporations) inter se and, on the other hand, the regulation and relations between individuals and the state. The distinction is so imprecise that it has contributed little to the construction of legal theory or to the formulation of rules to be applied by the courts. [Sir Anthony Mason, ‘Foreword: The Evolution of the Public/Private Divide’ (2013) 36 UNSW Law Journal 170]

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B

PART

The Framework for Challenging and Controlling Government Action

Pt B.1  Administrative law establishes avenues and mechanisms by which persons and corporations may challenge government administrative action. It is therefore necessary to understand the framework of courts, tribunals and other bodies in which those challenges can be made. Important too are the objectives of administrative law review, which include: ensuring that the decisions and actions of government agencies are done properly and lawfully; protecting the rights and interests of individuals and corporate bodies in their dealings with government agencies; and improving the quality of government decision-making generally. Pt B.2  The oldest avenue of review is judicial review by the courts. From the earliest days of British settlement, the courts, as part of their inherent jurisdiction, reviewed government action on behalf of the Crown to ensure it complied with the law. The significance of this role was underscored when, at federation, the Constitution provided in s  75 that the High Court was to have an original (or guaranteed) jurisdiction to issue against the Commonwealth three of the common law and equitable remedies which had been developed by the courts to restrain unlawful government action — mandamus, prohibition, and the injunction. The common law and equitable remedies can also be obtained from all state and territory Supreme Courts as part of their inherent common law jurisdiction as superior courts of record. These common law mechanisms have been supplemented in some Australian jurisdictions by much simpler statutory procedures for judicial review: for example, ss 11 and 16 of the Administrative Decisions ( Judicial Review) Act 1977 (Cth). Pt B.3  Judicial review by courts looks only at whether government decisions are lawfully taken, that is, comply with the limits imposed by law. The separate question of whether decisions are substantively correct — the merit question — is not part of a court’s judicial review function. Merit review can involve a review of the facts and policies that support a decision, as well as the legality of a decision. It is a function chiefly undertaken by administrative tribunals, ombudsman-type agencies, anti-discrimination and human rights bodies, and internal review bodies. The distinction between judicial review and merit review permeates Australian administrative law. Whether a body is designated primarily as a judicial or a merit review body carries other differences, concerning the range of decisions it reviews, the review criteria it applies, and appeals against its decision. 47

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Pt B.4  The tribunals and other bodies that undertake merit review have evolved in a haphazard fashion. An example was the creation in 1975 of the Commonwealth Administrative Appeals Tribunal (AAT) to replace a range of existing tribunals, boards and other merit review bodies. This initial move was replicated in 2015 with the amalgamation with the AAT of the other high-volume Commonwealth tribunals (other than the Veterans’ Review Board). This model has been followed in all states except Tasmania, and in both territories. The new state and territory tribunals have a combined jurisdiction over civil disputes (for example, landlord and tenant) as well as decisions made by government. Pt B.5  Courts and tribunals are supplemented by other bodies that have an investigatory function. The best known is the ombudsman (or parliamentary commissioner) office which investigates whether there was defective administrative action within a government agency and recommends appropriate corrective action. Other bodies with a similar function, though applying different criteria, are anti-discrimination, human rights, and anti-corruption bodies. Their creation reflects an increasing emphasis in administrative law on protecting human rights and promoting government integrity. Other mechanisms that can resolve administrative grievances against government include internal review, mediation and conciliation. Pt B.6  The chapters in Part B describe the administrative law mechanisms across Australia for reviewing the validity or propriety of government decision-making. Some concepts that permeate administrative law are also studied, such as justiciability and the notion of what is an administrative ‘decision’.

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2

INTRODUCTION 2.1.1  This chapter looks at two aspects of judicial review — the legal framework for judicial review by courts and the types of administrative action that are justiciable, that is, amenable to judicial review. The focus of this discussion recognises that there are five elements to a successful judicial review challenge: that the person seeking redress has standing (see  Chapter 18); that the matter is justiciable, that is, it is able to be reviewed by a court (covered in this chapter); that the court has jurisdiction or authority to review the matter (this chapter); that there is an available ground of review (Part C); and that there is an appropriate remedy (see Chapter 17 and Part D). It is important in reading this chapter to consult some of the leading cases on judicial review that are in other chapters, especially Green v Daniels 7.2.4C and Associated Provincial Picture Houses Ltd v Wednesbury (Wednesbury) 7.2.3C. The point, which is emphasised here and in those other cases, is that judicial review is more narrowly confined than merits review and looks only at whether a decision complies with the limits imposed by law. 2.1.2  Matters of jurisdiction and framework often seem dry and technical, but that can mask the primary importance of the underlying issues. Some issues which arise from the legislation and cases studied in this chapter include:

• Should the facility of judicial review apply to all government decisions? Should decisions, for example, with a high political content, concerning matters of national security, or that are premised on budgetary choices, be reviewable by courts? • What is the province of judicial review in an era of commercialisation, privatisation and contracting out of government services? Should government business enterprises be subject to judicial review, or are market accountability and political controls a satisfactory alternative? Conversely, should decisions made in the private sector that in essence constitute an exercise of public power be subject to judicial review? • At what stage of the administrative process should judicial review be available — only when a ‘final’ decision has been reached? Or at the first sign of unlawful conduct? Should courts apply a ‘leave’ process to filter out proceedings that are instituted prematurely or vexatiously?

• In those jurisdictions where judicial review has a statutory basis, does the common law have a continuing role to play in providing a supplementary alternative framework for review, and 49

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in elucidating the concept of justiciability? Or should courts defer to parliament’s views on the province of judicial review?

• Is the High Court’s judicial review function, conferred by s 75(v) of the Constitution as a constitutional guarantee of judicial review, to be interpreted expansively? And, if so, what impact will that have on the other work of the High Court? • Can Australian ‘exceptionalism’ in judicial review be explained and excused on constitutional grounds or are there other, less defensible reasons for this unflattering description?

• Should administrative law principles apply to disciplinary decisions of a private club or association? Which administrative law grounds of review can suitably be applied in this context? And, using a contract analogy, can the members of a private club exclude judicial review? 2.1.3  It is not possible to answer those questions fully without branching into public law theory. This chapter is mostly shorn of a theoretical dimension, which is given instead in Chapters 1, 5 and  7. However, the role played by theory in illuminating the context in which practical choices have to be made should not be forgotten. The following two commentaries from Sir Gerard Brennan 2.1.4E and Sir William Wade 2.1.5E illustrate that point, noting that judicial review can cause inconvenience to efficient government, but is beneficial nonetheless. 2.1.4E

Sir Gerard Brennan, ‘The Purpose and Scope of Judicial Review’ in M Taggart (ed), Judicial Review of Administrative Action in the 1980s: Problems and Prospects, Oxford University Press, Auckland, 1986

The investing of the ordinary Courts with authority to strike down the decisions and actions of the Executive is not a universal mechanism for subjecting the executive branch of Government to legal rules. Not all legal systems find it expedient to repose in the Judiciary a power to review the actions of the Executive. In the People’s Republic of China, for example, the People’s Congress is charged with the responsibility of reviewing the function of the other three branches of Government: the Executive, the Judiciary and the Procuratorate. Each of those branches must act independently of the others. Subject to congressional supervision, the laws governing the function of each of those branches is administered by the branch in question, the higher echelons controlling the lower. The continental droit administratif provides for the administrative hierarchy itself to test the legality of administrative action. Such a system is more efficient than ours in achieving the objectives of the Executive. As hierarchical controls within the executive branch do not need to distinguish too closely between the laws which govern and policies which guide executive decisions and actions, legal rules do not bite so hard upon the executive policy as they sometimes do under our system. Judicial review, under our system, is and is intended to be a fetter on the Executive’s pursuit of its policies; it is intended to make the Courts the arbiter of legal propriety in the processes of administration. Ours is a system of inevitable, if not intended, inefficiency. Some inefficiency in achieving the objectives of the Executive is the price we pay for assigning to the Courts the function of declaring and applying the law as well to Government as to the citizen. But we do not assign the exercise of executive power to the Courts and we would not accept the strait-jacketing of executive power so that its exercise is made to conform with the Court’s view of what is correct or preferable.

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Chapter 2  The Framework for Judicial Review

2.1.5E

Sir William Wade, Constitutional Fundamentals Hamlyn Lectures, 32nd Series, 1980

[T]o exempt a public authority from the jurisdiction of the courts of law is, to that extent, to grant dictatorial power. It is no exaggeration, therefore, to describe this as an abuse of the power of Parliament, speaking constitutionally. This is the justification, as I see it, for the strong, it might even be said rebellious, stand which the courts have made against allowing Acts of Parliament to create pockets of uncontrollable power in violation of the rule of law. Parliament is unduly addicted to this practice, giving too much weight to temporary convenience and too little to constitutional principle. The law’s delay, together with its uncertainty and expense, tempts governments to take short cuts by elimination of the courts. But if the courts are prevented from enforcing the law, the remedy becomes worse than the disease.

THE JUDICIAL REVIEW FRAMEWORK IN EACH AUSTRALIAN JURISDICTION The legal basis for judicial review Judicial review at common law 2.2.1  Judicial review is a procedure of ancient origin, dating back at least to the thirteenth century. It originated in the inherent common law jurisdiction of superior courts of record to grant, on behalf of the Crown, the prerogative writs, especially certiorari, prohibition, mandamus and habeas corpus. The common purpose of each writ was to enable a court to examine whether a public sector body was complying with the limits imposed by law. Each writ would control unlawful action in a different way: certiorari to quash an invalid decision; prohibition to prohibit further unlawful activity; mandamus to compel a lawful exercise of power; and habeas corpus to require the release of a person from unlawful detention. In more recent times the inherent jurisdiction of courts has extended to include the equitable remedies of declaration and the prohibitory and mandatory injunction, remedies that were initially used in private law disputes but which have been adapted for the purposes of public law. Respectively, those remedies enable a court to make a declaration of the legal duties of an agency, to enjoin unlawful activity, and to compel a restoration of the lawful status quo. 2.2.2  As that description illustrates, the basis for the development of judicial review was the remedies, which are procedural in nature. The substantive side of judicial review — the criteria that define unlawful activity and attract the grant of a remedy — were developed initially as an adjunct to the procedural aspects of the remedies. Much of the attention in administrative law is now given to these criteria, which include concepts such as procedural fairness or natural justice, error of law, unauthorised purpose, irrelevant considerations, unreasonableness, and inflexible application of policy. These criteria, it should be noted, are relatively narrow in their focus, and do not embrace in any broad sense a review of whether a decision is correct or preferable on the facts (the focus of merit review), nor broader systemic issues and matters of general administration (the focus of an investigatory agency such as an ombudsman). 51

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2.2.3  The common law heritage of judicial review is preserved in most states and territories in the inherent jurisdiction of the state and territory Supreme Courts. Except to an extent in Tasmania, and subject to statutory modification in some other states, the prerogative writs and equitable remedies can still be granted by the Supreme Courts of the states and territories. The common law heritage is reflected also in s 75(v) of the Constitution which confers an original jurisdiction on the High Court to grant mandamus, prohibition and the injunction against ‘an officer of the Commonwealth’. A similar jurisdiction is conferred on the Federal Court by s 39B of the Judiciary Act 1903 (Cth).

Judicial review under statutory schemes 2.2.4  In 1977 the Commonwealth led the way in the common law world in establishing an all-inclusive statutory framework for judicial review by the Federal Court, in the Administrative Decisions ( Judicial Review) Act 1977 (Cth) (ADJR Act). A major purpose of the ADJR Act was to replace the technical and antiquated prerogative remedies with a simpler ‘application for an order of review’, which the Federal Court could grant by making such order as it thought appropriate: ss 11, 16. The Act reformed and simplified the procedure for judicial review in other ways too, by listing and codifying the common law grounds for judicial review (ss 5, 6), by granting a statutory right to the reasons for a decision (s 13), and by overriding existing privative clauses: s 4. The ADJR Act was applied to the Federal Magistrates Court when it was established in 2000, renamed in 2013 as the Federal Circuit Court of Australia (Federal Circuit Court). 2.2.5  The Australian Capital Territory, Queensland and Tasmania have taken the same path as the Commonwealth, enacting legislation based on the ADJR Act: see ACT: Administrative Decisions ( Judicial Review) Act 1989; Qld: Judicial Review Act 1991 ( JR Act (Qld)); and Tas: Judicial Review Act 2000 ( JR Act (Tas)). A comparable, though less extensive, reform in Victoria is the Administrative Law Act 1978 (Vic). The statutory schemes in Queensland, the Australian Capital Territory and Victoria do not replace, but operate alongside, the inherent common law jurisdiction of the Supreme Courts to grant prerogative writs and equitable remedies. Tasmania has abolished the most common prerogative remedies but not the equitable jurisdiction of the Supreme Court: JR Act (Tas) s 43. The right of a person to be given reasons for a decision is a feature of each statute (including in Victoria).

Indirect judicial review 2.2.6  The legality of government action is often raised in the course of criminal and civil law proceedings. For example, an issue may arise in a criminal law proceeding as to whether evidence has been unlawfully obtained by a law enforcement officer, in which event the court has a discretion to exclude the evidence: Coco v The Queen 8.3.31C. Similarly, in a civil action for trespass against a government officer, the issue may arise as to whether the entry by the officer onto private property was authorised by law: Cooper v Board of Works for the Wandsworth District 11.1.18C. From an administrative law perspective this is often described as ‘collateral’ review of the validity of administrative action (or, correspondingly, as a collateral challenge to validity). Whether it is appropriate for issues of legal validity to be raised in this indirect fashion gives rise to broader issues, which are separately addressed by legislation and by other legal doctrines that are taken up in Chapter 16. 52

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2.2.8

Commonwealth — Federal Court 2.2.7  The most important venue for judicial review of Commonwealth decisions is the Federal Court of Australia. The court is a creature of statute and its jurisdiction is limited to those areas conferred upon the court by parliament: Federal Court of Australia Act 1976 (Cth) s  19. The court does not have an inherent common law jurisdiction paralleling that of the state and territory Supreme Courts, although the original jurisdiction granted under s 39B of the Judiciary Act 1903 (Cth) and the somewhat elusive ‘accrued’ and ‘associated’ jurisdiction exercised by the court partially substitute for a common law jurisdiction. Even so, the defined and limited nature of the court’s jurisdiction has meant that jurisdictional disputes and quandaries frequently arise in proceedings instituted in the court against Commonwealth Government agencies: the extract from Tetron International Pty Ltd v  Luckman 2.2.24C illustrates this point. The main statutes that provide the court with jurisdiction are described below and discussed further in 2.4.1ff. The following discussion relates to the jurisdiction, that is, a court’s authority to adjudicate, not the substantive administrative law principles which are to be applied by them. The distinction between the jurisdiction of a court and the laws to be applied was examined exhaustively in Rizeq v Western Australia (2017) 344 ALR 421. The High Court upheld findings of criminal liability that were made by a majority jury verdict in the District Court in Western Australia under s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The District Court was exercising federal jurisdiction because Mr Rizeq was a resident of another state. Mr Rizeq’s claim that his conviction was invalid, since in the exercise of its federal jurisdiction the District Court was required to reach a unanimous verdict (Constitution s 80), was rejected by the High Court. Although the jurisdiction was federal, the procedural law to be applied arose under s 114(2) of the Criminal Procedure Act 2004 (WA), permitting a majority jury verdict.

Administrative Decisions (Judicial Review) Act 1977 (Cth) 2.2.8  The ADJR Act is the principal template for federal judicial review under which most actions (other than immigration litigation) are commenced. The Act defines in a relatively simple fashion the procedure by which a person may apply to the Federal Court or the Federal Circuit Court for an order of review (s  11), the grounds of review (ss  5,  6), the relief the courts can give (s 16), the courts’ power to stay the operation of a decision being challenged (ss 15, 15A), and the procedure by which a person can obtain a written statement of the reasons for a decision before commencing an action: ss 13, 13A; cf Sch 2. The Act is premised on the principle that it enables review of all Commonwealth Government action, although there are exceptions. Some categories of administrative action are expressly excluded from review under the Act (Sch 1); and there are certain qualities which an action must have to be reviewable  — for example, there must be a ‘decision of an administrative character made … under an enactment’ (s 3), or ‘conduct for the purpose of making a decision’ (s 6). Those jurisdictional restrictions give rise to a considerable amount of litigation, which is considered below in 2.4.1ff. The court’s jurisdiction under the Act also includes decisions made by Commonwealth officers under Commonwealth/state cooperative schemes, such as the Competition Code, the National Gas Law and the National Energy Retail Law: Sch 3. The Advantages of the ADJR Act are set out in the report of the Administrative Review Council (ARC), Federal Judicial Review in Australia, Report No  50, Commonwealth of Australia, Canberra, 2012 2.2.9E. 53

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2.2.9E

Control of Government Action

Administrative Review Council, Federal Judicial Review in Australia Report No 50, Commonwealth of Australia, Canberra, 2012

The Council’s view is that judicial review under the ADJR Act should be maintained as the principal avenue for federal judicial review. The beneficial features of the ADJR Act include: • it prescribes a clear, straightforward and self-contained procedure for commencing judicial review proceedings in s 11 of the Act; • the test for standing to commence proceedings under the Act is defined in ss 3(4), 5 and 6 of the Act, and a third party with an interest in the proceedings can be joined under s 12; • the Act defines the range of Commonwealth decisions that are reviewable under the Act but also those excluded from review; • the grounds on which administrative action can be set aside are listed in ss 5, 6 and 7, and provide clear guidance to decision makers as to the legal requirements for lawful decision making; • the relief that can be granted by a court when a breach of a ground of review is established is set out in s 16, which enables the court to make an order that is appropriate to the case; • a court can stay the operation of a decision being challenged under ss 15 and 15A; and • a person may obtain a statement of reasons for a decision under s 13 before commencing judicial review proceedings. In the Council’s view, the ADJR Act has played a central role in improving the quality of Australian Government decision making since 1980 and elevating respect for the rule of law in government. An important body of jurisprudence that lies at the core of Australian administrative law and that is generally understood within government has been developed under the ADJR Act. The relative ease with which proceedings can be commenced under the Act means also that judicial review is more accessible to the Australian community and that proceedings can be commenced without professional legal assistance. Those benefits are at risk if the current trend continues and constitutional judicial review under s 39B(1) of the Judiciary Act becomes the preferred or standard avenue for federal judicial review. The Judiciary Act 1903 (Cth) contains few of the features of the ADJR Act. … A frequent remark by courts and practitioners is that the scope of jurisdictional error cannot readily be defined. Indeed, the concept is more a description of the conclusion reached by a court than a definition of the principles for lawful decision making expected of an officer of the Commonwealth.

2.2.10  For a suggestion that the grounds in the ADJR Act have had a stultifying effect on judicial review, see M Aronson, ‘Is the ADJR Act Hampering the Development of Australian Administrative Law?’ (2005) 12 Australian Journal of Administrative Law 79. An assessment of the limitations and advantages of the ADJR Act is contained in The Hon Justice Garry Downes  AM, ‘Judicial Review’ (Paper presented at the New South Wales  College of Law, Sydney, 24 March 2011) at 7–8; M Taggart, ‘“Australian Exceptionalism” in Judicial Review’ (2008) 36 Federal Law Review 1; J  McMillan, ‘Restoring the ADJR Act in federal judicial review’(2013) 72 AIAL Forum 12; M Groves, ‘Should we follow the Gospel of the Administrative Decisions ( Judicial Review) Act 1977 (Cth)?’ (2010) 34 Melbourne University Law Review 736; P Johnston and P McNab, ‘The Evolution of State Adjudicative Power as an Alternative to State Judicial or Administrative Power’ (2015) 81 AIAL Forum 1. 54

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2.2.13

Judiciary Act 1903 (Cth) 2.2.11  The administrative law jurisdiction of the Federal Court is expanded by the following provisions of the Judiciary Act 1903 (Cth): 39B. (1) [T]he original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. … 44(2A) Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court’s own motion, remit the matter, or any part of the matter, to the Federal Court of Australia.

2.2.12  The court’s jurisdiction under those sections has been conferred in stages; to explain those stages is also to illuminate the nature of the jurisdiction. The limitations on federal judicial review that stemmed from the jurisdictional restrictions in the ADJR Act had the effect of redirecting part of the federal judicial review caseload to the High Court. Section 39B(1) was accordingly enacted in 1983 to widen the jurisdiction of the Federal Court to match that of the High Court’s original jurisdiction under s 75(v) of the Constitution.1 Since s 39B(1) defines the Federal Court’s jurisdiction by reference to the remedies that can be granted, it is common to speak of it as conferring a common law jurisdiction on the court. As that suggests, the court’s jurisdiction is not necessarily confined by the concepts and grounds outlined in the ADJR Act, but more easily draws from the flexibility of the common law. Section  44(2A) was enacted soon after, in 1984, to facilitate the transfer to the Federal Court of matters commenced within the High Court’s original jurisdiction that could more appropriately be heard by the Federal Court. In practice most applications for judicial review commenced in the High Court are remitted to the Federal Court. Those and other provisions of the Judiciary Act  1903 (Cth) are designed both to fill gaps in the jurisdiction of federal, state or territory courts to ensure the seamless operation of the Australian integrated national court system (see Rizeq 2.2.7 at [5], [16], [20] (Kiefel  CJ); [48], [104]–[105] (Bell, Gageler, Keane, Nettle and Gordon  JJ; Edelman J agreeing)) and to ensure the exercise of a ‘single though composite body of law’: Felton v Mulligan (1971) 124 CLR 367 at 392. 2.2.13  The Federal Court’s jurisdiction was extended further in 1997 by the enactment of s 39B(1A), which confers a broad jurisdiction on the court that extends beyond administrative law matters to include constitutional issues and all matters arising under Commonwealth legislation. In part, s 39B(1A) was designed for the non-public law purpose of conferring on the Federal Court a federal jurisdiction in civil matters concurrent to that exercised by state and 1

Some categories of Commonwealth ‘officer’ for the purposes of the Constitution s 75(v) (such as judges of the Family Court) are excluded from the operation of s 39B: see s 39B(2).

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territory courts: see  2.2.35. Even so, s 39B(1A) augments the administrative law jurisdiction of the court. As Allsop J said in ‘An Introduction to the Jurisdiction of the Federal Court of Australia’ [2007] Federal Judicial Scholarship 15: Parliament has, by this provision, conferred jurisdiction on the Federal Court in all (non-criminal) matters arising under any Commonwealth statute. Thus, if a Commonwealth statute is involved in a dispute (in the application, statement of claim, defence, cross-claim, defence to cross-claim or otherwise) the Federal Court will have jurisdiction to resolve the whole dispute or controversy. [Emphasis in original]

The following three examples illustrate the effect of the addition to the Judiciary Act 1903 (Cth) of s 39B(1A). First, s 39B(1A)(c) enables the court to review directly the validity of subordinate legislation, which the court cannot do under the ADJR Act because that issue is not of an administrative character: see  2.4.34ff. The second illustration is Evans v  State of New South Wales  8.3.32C, in which the Federal Court held invalid a regulation made by the New South Wales Governor under a New South Wales Act, relating to World Youth Day. One ground of challenge to the regulation was that it infringed the implied constitutional freedom of political communication. While that ground of challenge failed, it sufficed to give the Federal Court jurisdiction under s 39B(1A)(b) to deal with a ‘matter … arising under the Constitution’. The third illustration is X v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 524. In proceedings which arose from an unsuccessful application for refugee status by two minors, the Federal Court held that s  39B(1A)(c), together with the Immigration (Guardianship of Children) Act 1946 (Cth), conferred on the court a jurisdiction analogous to the inherent parens patriae jurisdiction of state and territory Supreme Courts, to supervise the minister’s function as the guardian of non-citizen children. 2.2.14  The public law jurisdiction arising under the Judiciary Act 1903 (Cth) is extensive, but subject to limits nevertheless. An action resting on s 39B(1), for example, must be against an ‘officer of the Commonwealth’ and must relate to a ‘matter’: see  Re McBain; Ex  parte Australian Catholic Bishops Conference (McBain) 2.3.9C and 2.4.59. An action resting on s 39B(1A)(c) must ‘arise under’ a law made by parliament: see 2.2.11. And, generally speaking, the jurisdiction conferred by s 39B does not reach as far as the original jurisdiction conferred on the High  Court by s  75(iii) of the Constitution, which embraces any claim against the Commonwealth: see 2.2.37. 2.2.15  An illustration of these jurisdictional hurdles arose in TCL Air Conditioner (Zhongshan) Co Ltd v  Judges of the Federal Court of Australia (2013) 251 CLR 533. The International Arbitration Act 1974 (Cth) gave domestic force to an international convention, the UNCITRAL Model Law on International Commercial Arbitration. Section 39B(1A)(c) permits the Federal Court to exercise jurisdiction under an international agreement provided it is incorporated into domestic law as a law of the Commonwealth. French CJ and Gageler J set out the jurisdictional pegs which supported the Federal Court’s ability to hear the matter: An application to enforce an arbitral award under Art 35 of the Model Law is a ‘matter … arising under [a law] made by the [Commonwealth] Parliament’ within s 76(ii) of the Constitution. That is because rights in issue in the application depend on Art 35 of the Model Law for their recognition and enforcement and because the Model Law is a law made by the Commonwealth Parliament. The Federal Court of Australia has original jurisdiction in a matter arising under a law made by the Commonwealth Parliament, 56

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defined under s 77(i) of the Constitution by s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’). The Federal Court is therefore a ‘competent court’ to which an application can be made under Art 35 of the Model Law.

Associated and accrued jurisdiction and the Federal Court of Australia Act 1976 (Cth) 2.2.16  The jurisdiction of the Federal Court is further extended by the concepts of ‘associated’ and ‘accrued’ jurisdiction. These sources of jurisdiction enable the Federal Court to resolve the entirety of a claim or dispute, even though an aspect of the claim or dispute would otherwise be beyond the court’s jurisdiction. Thus, the court may be able to address a non-administrative law claim, arising under Commonwealth or state law, that is intertwined with a claim concerning the validity of federal executive action. There is substantial overlap between the associated and accrued jurisdiction, but each rests on different tests and can operate differently. 2.2.17 The associated jurisdiction is conferred by s 32 of the Federal Court of Australia Act 1976 (Cth), which provides that ‘jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters (the core matters) in which the jurisdiction of the Court is invoked’. The constitutional underpinning for that jurisdiction is s 77(i) of the Constitution, which provides that the parliament may define the jurisdiction of any federal court with respect to any ‘matter’ mentioned in s 75 or s 76 of the Constitution. That is, the associated jurisdiction of the Federal Court extends to, but is also confined by, the areas of federal jurisdiction mentioned in ss 75 and 76; it ‘is the conferral of jurisdiction in another, different, federal matter in respect of which jurisdiction could be, but has not been, conferred’: Macteldir v Dimovski (2005) 226 ALR 773 at 791 (Allsop J). For example, s 32 would enable the Federal Court in hearing an action instituted under the ADJR Act to determine both an ‘associated’ claim for breach of the Competition and Consumer Act 2010 (Cth), on the basis that such a claim is a matter arising under a law made by the parliament (s 76(ii)), and an ‘associated’ claim for common law damages made against a Commonwealth agency which is a party to the proceedings: s 75(iii). The associated jurisdiction is now less important since the enactment in 1997 of s 39B(1A)(c) of the Judiciary Act 1903 (Cth), which confers a parallel jurisdiction on the court that extends to matters arising under the Constitution and Commonwealth laws. For this reason, there is a dearth of authoritative discussion of the extent of the ‘associated’ jurisdiction: see Justice J Allsop, ‘An Introduction to the Jurisdiction of the Federal Court of Australia’ (FCA) [2007] Federal Judicial Scholarship 15 at 51. 2.2.18 The accrued jurisdiction refers to the inherent power of a superior court to settle the controversy before it by dealing with all the issues that ‘arise out of common transactions and facts’ or ‘a common substratum of facts’: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 512. The underlying principle is that a jurisdiction specifically conferred upon the court (for example, by the ADJR Act) –– the federal element — extends to the determination of the entire ‘matter’ or controversy before the court, including any non-federal element. The claim must raise federal issues within the jurisdiction of the court before the doctrine can be relied on: Carlton & United Breweries Ltd v  Castlemaine Tooheys Ltd (1986) 161 CLR 543 at 553. The non-federal part of the claim may arise under state law or common law, and concern other parties, but must arise from the same transactions and facts, and relate to the same ‘matter’: Australian Securities and Investments Commission v Edensor 57

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Nominees Pty Ltd (2001) 204 CLR 559 (Edensor) at 585–6, 638–9. Relief in the non-federal claim can be granted even if the federal claim fails, as explained in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at 597. Indeed, the matter can be resolved entirely by application of state law: Rizeq 2.2.7 at [55]. For a claim relying on the accrued jurisdiction which was unsuccessful for absence of a ‘matter’, see Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 128 FCR 507. 2.2.19  The accrued jurisdiction can supplement the jurisdiction under s  39B(1A)(c) in circumstances in which the claim is based on an application for one of the remedies referred to in s 75 (v) of the Constitution. As Hill J said in Klewer v Dutch (2000) 99 FCR 217 in an application for certiorari: [94] … [E]ven if s 39B did not carry with it, by inference, jurisdiction in this Court to issue a writ of certiorari, the accrued jurisdiction of this Court would, where the Commonwealth jurisdiction was initially attracted by the application for a writ of prohibition, extend to the grant of certiorari. In principle, the fact that the application for the writ of prohibition was unsuccessful would not prevent the Court from exercising its accrued jurisdiction, so long as so to do would involve the Court determining the whole controversy or matter.

An exception to that principle applies to the Federal Court where jurisdiction over a matter is conferred exclusively on another federal court, such as the Federal Circuit Court: Beyazkilinc v Baxter Immigration Centre (2006) 155 FCR 465 at [54]. 2.2.20  The criteria for the accrued jurisdiction are discussed in the extract from Tetron

2.2.24C, in which the court held that it had jurisdiction to hear an ADJR Act and a common

law claim together. For further discussion of these issues, see  Justice R  Sackville, ‘The Reemergence of Federal Jurisdiction in Australia’ (2001) 21 Australian Bar Review 133 at 138ff; Justice J  Allsop, ‘Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002’ (2002) 23 Australian Bar Review 29 at 33ff; Justice J Allsop, ‘An Introduction to the Jurisdiction of the Federal Court of Australia’ [2007] Federal Judicial Scholarship 15. See also M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, Thomson Reuters, Sydney, 2017, pp 60–1, 63–5; G Lindell, Cowen and Zines Federal Jurisdiction in Australia, 4th ed, Federation Press, Sydney, 2016, pp 185–97; Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act  1903 and Related Legislation, Report No  92, October 2001, at 92–5; L  Zines, ‘Federal, Associated and Accrued Jurisdiction’ in B Opeskin and F Wheeler (eds), The Australian Federal Judicial System, Melbourne University Press, Melbourne, 2000, p 295. 2.2.21  Despite the overlap between the associated and accrued jurisdiction, differences remain. The differences include that the associated jurisdiction is confined to federal claims, while the accrued jurisdiction is not. The underlying tests are also different. Matters may be ‘associated’, even though disparate; yet, the accrued jurisdiction applies only to claims arising from the same transactions and facts, that is, part of the one controversy or matter, and the federal claim that attracts jurisdiction must be a substantial aspect of the controversy. The parties to an action may also differ as to the head of jurisdiction. While the independent importance of the associated jurisdiction has declined since the enactment of s 39B(1A) of the Judiciary Act 1903 (Cth), the accrued jurisdiction became comparatively more important following the decision of the High Court in Re Wakim; Ex parte McNally (1999) 198 CLR 511 58

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(Re Wakim) which declared invalid the conferral of state jurisdiction upon the Federal Court under the cross-vesting scheme: see 2.2.58. 2.2.22  A controversial application of the accrued jurisdiction in administrative law arose in Post Office Agents Association Ltd v Australian Postal Commission (1988) 16 ALD 428. The application before the court, for judicial review of a decision by Australia Post, could not proceed under either the ADJR Act (as the decision was not made under an enactment) or the Judiciary Act 1903 (Cth) (as the commission was not an officer of the Commonwealth). Instead, the court  held the accrued jurisdiction supported the claim as the ADJR Act and Judiciary Act 1903 (Cth) applications were made ‘as a matter of substance not as a matter of artificiality or subterfuge’: at 564–5. This approach has been followed in a number of cases, but also disapproved in others: for example, Vietnam Veterans’ Affairs Association of Australia (NSW Branch) v Cohen (1996) 70 FCR  419. The approach was upheld in Beyazkilinc v  Baxter Immigration Centre (2006) 155 FCR 465, in which the court concluded that a claim for an injunction to prevent the removal from Australia of Mr Beyazkilinc could support (in either the associated or the accrued jurisdiction) a claim in tort for damages against the Commonwealth relating to the detention and potential deportation of the applicant. Similarly, in PCS Operations Pty Ltd v Maritime Union of Australia (1998) 153 ALR 520 (Patrick’s case), PCS Operations had claimed breach of an award and an enterprise agreement, of the Workplace Relations Act 1996 (Cth), and of the Corporations Law, as well as two common law causes of action. The claim against the Commonwealth under the Workplace Relations Act 1996 (Cth) fell within s 75(iii), but the Federal Court had no other source of jurisdiction. Justice Gaudron denied that s 32 was limited to matters arising under laws made by the parliament and extended it to associated matters falling within ss 75 and 76, thus covering all the matters in dispute. 2.2.23  In considering the relief that can be granted by the Federal Court it is necessary also to take account of ss  21, 22 and 23 of the Federal Court of Australia Act  1976 (Cth), a point discussed in the extract from Tetron 2.2.24C. Section 21 provides that the court can ‘make binding declarations of right, whether or not any consequential relief is or could be claimed’; s 22 empowers the court to grant ‘all remedies to which any of the parties appears to be entitled’ in order to quell the controversy between them; and s 23 provides that the court ‘has power … to make orders of such kinds … or direct the issue of, writs of such kinds … as the Court thinks appropriate’. Those sections do not confer any jurisdiction on the court but bestow powers that can be exercised in a matter already within the jurisdiction of the court: Edensor 2.2.18 at 586–7, 590–1. For example, in a matter resting on s 39B(1) of the Judiciary Act 1903 (Cth) the writ of certiorari can be granted under s 22 of the Federal Court of Australia Act  1976 (Cth), but only if a party can first demonstrate an entitlement to an injunction, mandamus or prohibition, that is, to come within the jurisdiction conferred by s  39B(1): Tasmanian Conservation Trust Inc v  Minister for Resources (1995) 55 FCR 516 at 551–2. However, in conjunction with s 23 of the Federal Court of Australia Act 1976 (Cth) certiorari may be granted as a standalone remedy: Energy Australia Pty Ltd v CFMEU (2014) 140 ALD 263. The interaction between s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (a matter arising under a law made by the parliament) and ss 21–23 of the Federal Court of Australia Act 1976 (Cth) is similarly important. For example, in Minister for Immigration and Multicultural Affairs v Vadarlis (Vadarlis) 17.5.4C at 533–4 French J noted that the authority of the Federal Court to issue the writ of habeas corpus to facilitate the removal to Australian territory of asylum seekers on board the MV  Tampa could rest on a combined use of ss  39B(1A)(c) and 23: 59

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cf Beaumont J at 517; WMC Gummow, ‘Pendent Jurisdiction in Australia — Section 32 of the Federal Court of Australia Act 1976’ (1979) 10 Federal Law Review 211; Justice S Kenny, ‘The Evolving Jurisdiction of the Federal Court of Australia — Administering Justice in a Federal System’ [2011] Federal Judicial Scholarship 20. 2.2.24C

Tetron International Pty Ltd v Luckman (1985) 8 ALD 243 Federal Court of Australia

[Section 229 of the Customs Act 1901 (Cth) provided that goods were ‘forfeited goods’ if, for example, they had been smuggled into Australia. Section 203 of the Act provided that an authorised officer could issue a notice to seize goods that the officer believed on reasonable grounds to be forfeited goods. The Act also laid down a procedure by which administrative action under either section could be reviewed in a state or territory court exercising federal jurisdiction. Tetron instituted proceedings in the Federal Court under the ADJR Act, seeking review of a decision by an authorised officer to issue a seizure notice under s 203 (referred to in the following extract as ‘the federal claim’). Those proceedings, however, could not by themselves finally determine whether the goods were forfeited goods for the purposes of s 229, so Tetron then sought to amend its application to include a claim based at common law on detinue or conversion (‘the non-federal claim’) in order to rely on the accrued jurisdiction. The court granted the application, holding that the non-federal claim was supported by the accrued jurisdiction of the court; and that in the exercise of that jurisdiction the court could exercise the power conferred by s 22 of the Federal Court of Australia Act 1976 (Cth) to make an appropriate order to finally determine the proceedings.] Northrop J: [After introducing the request by the applicants to include a claim based on detinue:] It is true that in matters of practice and procedure the Federal Court has power to make orders pursuant to powers conferred upon it by the Federal Court Act. It is necessary however that the proceedings in the Federal Court are proceedings under other legislation such as the Judicial Review Act. Thus, in proceedings under the Judicial Review Act, the Federal Court may exercise powers conferred upon it by s 23 of the Federal Court of Australia Act and is not limited to the powers conferred in this regard by s 15 [sic s 16] of the Judicial Review Act. Sections 21 and 22 of the Federal Court of Australia Act are wide in their application … The application of those powers however, is limited to matters properly before the Court and to claims properly brought by a party. They do not confer a jurisdiction upon the Federal Court. Section 22 does not empower the Court to determine substantive matters between parties when there is no jurisdiction for those matters to be heard and determined by the court. In the present case, s 22 empowers the court to grant all appropriate remedies in the exercise of its jurisdiction whether that jurisdiction is expressly conferred upon it by an enactment or pursuant to the accrued jurisdiction. In particular, in the present proceedings, that section would enable the court to make all appropriate orders on the claims based upon conversion and detinue. The major authorities concerning the accrued jurisdiction of the Federal Court are Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, Fencott v Muller (1983) 152 CLR 570 and Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261. In Stack’s case, Mason, Brennan and Deane JJ, commencing at 286, discussed the authorities

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upon which the concept of accrued jurisdiction is based and how the discretion conferred upon the court to apply the accrued jurisdiction should be exercised. At 294 they said: In this, as in other cases, the recurrent problem is to identify what it is that falls within the Federal Court’s accrued jurisdiction. The majority judgment in Fencott v Muller (1983) 57 ALJR 317, at 331–2, provides this assistance in reaching an answer: What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a nonfederal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter … In determining whether accrued jurisdiction arises, the Federal Court must have regard to whether the non-federal claim under the accrued jurisdiction is non-severable from the federal claim. On this aspect, in the Philip Morris case, Mason J said at 512: The classification of a claim as ‘non-severable’ does not necessarily mean that it is, or must be, united to the federal claim by a single claim for relief, though this is a common illustration of a non-severable claim. The non-severable character of the attached claim may emerge from other aspects of the relationship between the federal and the attached claim. For example, it may appear that the resolution of the attached claim is essential to a determination of the federal question. Likewise, it may appear that the attached claim and the federal claim so depend on common transactions and facts that they arise out of a common substratum of facts. In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its federal jurisdiction. It should be noted that in that passage the reference to ‘attached claim’ is to be read as a reference to the non-federal claim coming within the accrued jurisdiction. That passage was quoted and approved in Fencott v Muller by Mason, Murphy, Brennan and Deane JJ at 330. In determining whether the court has accrued jurisdiction in cases similar to that presently before the court, it is helpful to see whether the non-federal claim and the federal claim so depend on common transactions and facts that they arise out of a common substratum of facts. In the present case, the essential issue between the parties is whether the goods seized are forfeited to the Crown under s 229 of the Customs Act. The federal claim is based on the review of the decision by the respondent Minister to seize the goods. This involves a consideration of whether the respondent Minister had reasonable grounds for believing that the goods are forfeited goods. Of necessity, from the affidavits filed in these proceedings, this involves a consideration of facts giving rise to the question of whether the goods are forfeited goods under s 229 of the Customs Act. The claims based on detinue and conversion, of necessity, will involve a consideration of facts giving rise to the question of whether the goods are forfeited goods under s 229 of the Customs Act. In my opinion, the federal claim under the Judicial Review Act and the non-federal claim based in detinue and conversion so

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depend upon common transactions and facts that they arise out of a common substratum of facts. In my opinion, the federal claim and the non-federal claim are within the scope of one controversy between the parties and the Federal Court is the only court which has jurisdiction and power to determine the whole of that controversy; see s 9 of the Judicial Review Act … The fact that different remedies are available under the non-federal claim to those available under the federal claim and that different parties may be involved does not make the claims severable. The determining factor is whether the claims form part of the one controversy between or among the parties and essentially this depends upon whether the claims so depend on common transactions and facts that they arise out of a common substratum of facts. In my opinion, once a federal claim is properly before the Federal Court, that court has a discretion to exercise its accrued jurisdiction even though the remedies available under the federal claim are restricted while the remedies available under the non-federal claim are unrestricted and the parties under the two claims are different.

Migration Act 1958 (Cth) 2.2.25  Since the 1990s there has been a large migration caseload in federal courts. In 1987–88, 84 migration cases were filed in the Federal Court (28 per cent of its administrative law caseload). By 1996–97 the number had risen to 673 (68 per cent of the administrative law caseload), and by 2003–04 to 2591 (approaching 45 per cent of the court’s overall caseload). By 2007–08 the number had fallen to 1503 but was still 33 per cent of all matters filed. In 2013–14 the combined migration filings of the three federal courts exceeded 3700. The principal location for the filings was in the Federal Circuit Court (about 86 per cent), with only 10 per cent being at the Federal Court (close to 400 cases), less than 50 per cent of the total Federal Court filings. For the financial year 2015, the number of migration matters at the Federal Court had nearly doubled (to 737): Justice A Robertson, ‘What is “substantive” judicial review? Does it intrude on merits review in administrative decision-making?’ (2016) 85 AIAL Forum 24. The number of applications to the Federal Court still represents a significant proportion of its workload: S Gageler, ‘Impact of Migration Law on the Development of Australian Administrative Law’ (2010) 17 Australian Journal of Administrative Law 92; D O’Brien, ‘Review on the Merits of Migration and Refugee Decisions — Reflections on the Operation of the Migration Review Tribunal and the Refugee Review Tribunal in an Interconnected World’ (2013) 75 AIAL Forum 52 at 58–60. 2.2.26  The high migration caseload, together with individual court decisions that were viewed by government as inimical to the effectiveness of immigration decision-making (for example, Minister of State for Immigration and Ethnic Affairs v  Teoh 11.3.7ff), gave rise to frequent legislative changes to regulate and constrain migration litigation. An early example was the enactment of Pt 8 of the Migration Act 1958 (Cth) in 1992, which was a special and restricted scheme for review of decisions on migrant entry and refugee claims that was to substitute for the ADJR Act and the Judiciary Act 1903 (Cth). Merit review by the former Migration Review Tribunal or Refugee Review Tribunal was a prerequisite to judicial review before the Federal Court, and any application to the Federal Court for judicial review was to be commenced within 28 days of the tribunal decision, with no power of extension given to the court. The grounds for judicial review in the Federal Court under Pt 8 were also more confined than those applying under s 5 of the ADJR Act (for example, breach of natural justice, and 62

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relevant and irrelevant considerations were excluded as independent grounds of review). The constitutional validity of the restricted scheme was upheld in 1999 by the High Court by a majority of 4:3 in Abebe v Commonwealth (1999) 197 CLR 510. 2.2.27  A consequence of the restricted scheme in Pt 8 was that the High Court’s original jurisdiction under s  75(v) of the Constitution was broader than that of the Federal Court, regarding the decisions that were reviewable, the grounds for review, and the time in which review could be sought. The result was a steady increase in the number of migration cases commenced in the original jurisdiction of the High Court, peaking in 2002–03 when 2131 applications for a constitutional writ were filed, mostly in migration matters. An illustration of the consequential controversy was illustrated by two cases in 2000–01 in which the High Court held that there had been unlawful administrative action of a kind that could not have been raised in the Federal Court: in Re  Refugee Review Tribunal; Ex parte Aala (Aala) 17.1.14C, concerning a breach of natural justice by the Refugee Review Tribunal; and in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah 11.2.19C, concerning the validity of a departmental decision as to which the application for review was made outside the 28-day time limit. The impact of this restricted scheme on the workload of the High Court drew criticism from the High Court: see, for example, Aala at [134]; and Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407 at 410–11. 2.2.28  In the wake of the ‘Tampa controversy’ in late 2001, the Commonwealth Parliament enacted a new Pt 8 of the Migration Act 1958 (Cth) to establish a different scheme for limiting judicial review of decisions under the Act. The essence of the new scheme was that proceedings could be commenced in the Federal Court under s 39B of the Judiciary Act 1903 (Cth) or in the High Court under s 75(v) of the Constitution but were subject to a privative clause which provides that judicial review of immigration decisions could not be undertaken in any court on any ground: s 474. However, in Plaintiff S157/2002 v Commonwealth of Australia 16.3.17C the High Court held that the privative clause did not prevent review for jurisdictional error (a concept explained in 13.4.8ff and Craig v South Australia 17.2.12C). Nor was the time limit of 28 days applying in the Federal Court effective against a decision affected by jurisdictional error. The result was that onshore asylum seekers denied refugee status by the former Refugee Review Tribunal could appeal to the Federal Court and the High Court. A later amendment to s 486A extended the time for commencing proceedings in the High Court under s 75(v) to 84 days; however, in Bodruddaza v Minister for Immigration and Multicultural Affairs 5.3.57C the High Court held that the time limitation was invalid as unnecessarily curtailing or limiting the ability to seek relief under s 75(v). In MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601 the High Court dismissed a challenge to the validity of the Migration Act scheme, in which it had been argued that the Act placed such a burden on the High Court as to impair to a significant degree the court’s other work. 2.2.29  Two other changes affecting migration litigation were also part of the legislative response to the Tampa controversy. First, the Federal Circuit Court was given concurrent jurisdiction with the Federal Court to undertake judicial review of migration decisions. Prior to 2001, the Federal Court had been swamped with migration litigation: R Lindsay, ‘Yes Minister? The 2012 Migration Amendments: Whence Have We Come and Whither are We Going?’ (2013) 72 AIAL Forum 63. In 2005 this jurisdiction was given exclusively to the Federal Circuit Court with exceptions relating to some matters in Pt 8, to expedite the hearing and finalisation of migration cases. That move was upheld in MZXOT. An appeal from that court to the Federal 63

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Court is heard by a single judge or a Full Court, as determined by the Chief Justice of the Federal Court. Second, an ‘offshore entry person’ arriving in Australia by boat at a territory such as Christmas Island must be taken into detention and can be removed to a declared country — many people were removed during 2001–08 to the Republic of Nauru and Manus Island, Papua New Guinea. An offshore entry person who remains at a territory such as Christmas Island was denied the opportunity to make a valid visa application without the approval of the minister. Any asylum protection claim by the person would instead be examined through an executive process, the Immigration Assessment Authority (IAA), rather than under the Migration Act 1958 (Cth). The consequence, it was thought, was that offshore entry persons could not commence judicial review proceedings to challenge adverse assessments. 2.2.30  That assumption was undermined by two decisions of the High Court. In Plaintiff M61/2010E v  Commonwealth (Commonwealth Offshore Processing Case) 11.2.20C the court held that an adverse assessment made under the executive process could be set aside in the High Court’s s 75(v) jurisdiction on the ground of legal error and breach of natural justice. An implication was that the Federal Circuit Court could exercise a similar judicial review jurisdiction. In Plaintiff M70/2011 v  Minister for Immigration and Citizenship (2011) 122 ALD 237 the court set aside a declaration by the minister to declare Malaysia as a country to which offshore entry persons could be removed. In 2012, further amendments to the Migration Act 1958 (Cth) prohibited the Federal Court hearing matters relating to the exercise of any function, duty or power concerning unauthorised maritime arrivals (UMAs), that is, those who have arrived by sea at an excised offshore place and become unlawful non-citizens, or who were ‘transitory persons’ having been taken, for example, to a regional processing country: Migration Act 1958 (Cth) ss 494AA, 494AB. The provision is subject to the right to appeal to the High Court under s  75(v) of the Constitution. The Migration Amendment (Regional Processing Arrangements) Act  2015 (Cth) s  198AHA retrospectively validated arrangements for the processing and management of UMAs in regional processing countries, upheld by the High Court in Plaintiff M68/2015 v  Minister for Immigration and Border Protection (2016) 327 ALR 369. In Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 29 the High Court upheld the validity of s 198AB of the Act which provided that Papua New Guinea was a regional processing country under an agreement made in 2012. However, on 26  April 2016 in Namah v  Pato [2016] PGSC, the Supreme Court of Papua New Guinea found that the detention of refugees and asylum seekers on Manus Island was unconstitutional. The following day, the Australian Government announced that it would close the Manus Island processing centre, a closure which is being implemented. 2.2.31  In March 2014, by legislative instrument made under s 85 of the Migration Act 1958 (Cth), the minister introduced a cap on the number of permanent protection visas which could be issued in 2013–14. In two concurrently heard matters, Plaintiff M150/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 199 and Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179, the High Court found the legislative instrument was invalid. Section 85 of the Migration Act 1958 (Cth) under which the legislative instrument was made did not apply to protection visas. 2.2.32  Since June 2014, the minister has implemented a criterion for a protection visa that, if not satisfied that granting the visa is in the national interest, the minister may issue a conclusive certificate, and the minister’s decision is not reviewable by the AAT: Migration Regulations 1994  (Cth) reg  866. The Migration Amendment (Character and General Visa Cancellation) 64

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Act  2014 (Cth) provided that where a non-citizen has a substantial criminal record and is serving a sentence of imprisonment for 12 months or more, a visa must be cancelled on character grounds: s 501(3A). The rules of natural justice are excluded: s 501BA. Section 501(3A) applies despite s 200 which prevents deportation of non-citizens who have been Australian residents in excess of 10 years. The provision was found to be valid as the minister was not exercising judicial power: Falzon v Minister for Immigration and Border Protection [2018] HCA 2. When the decision to cancel the visa under s  501(3A) is made by a delegate of the minister, it is reviewable by the AAT provided the application was made within 9  days of receipt of the decision. Nonetheless, the minister may overturn the AAT’s decision on national interest grounds: s 501BA(2). If the minister personally makes the decision, there is no right to AAT review and judicial review is the only avenue for an objection: s 501BA(5). 2.2.33  In April 2015 the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) came into force. The Act provided for the introduction of a fast-track review process for ‘illegal maritime arrivals’ (IMAs). The fast-track process by the IAA is generally on the papers (s 473DB), there is no access to merits review, and natural justice processes are restricted (s 473DA). An applicant who is refused a protection visa has access to judicial review and a failure by a delegate to comply with a requirement in s 57(2) to provide the applicant with certain information does not deprive the IAA of jurisdiction to review a decision by a delegate: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16. For a comprehensive coverage of these many changes to the law see E Karlsen and J Phillips, Developments in Australian refugee law and policy: the Abbott and Turnbull Coalition governments (2013–2016), Parliamentary Library Research Paper Series, Parliamentary Library, Canberra, 2017.

Other limitations on the Federal Court’s jurisdiction 2.2.34  The jurisdiction of the Federal Court to undertake judicial review of federal administrative action is limited in many different ways. Examples of a direct prohibition are s 9A of the ADJR Act and s 39B(1B)–(1F) of the Judiciary Act 1903 (Cth), which together provide that the Federal Court cannot undertake judicial review of decisions made during the criminal justice process, particularly committal proceedings. The purpose of that restriction is to avoid criminal prosecution proceedings being fragmented and delayed by judicial review applications, bearing in mind that the legality of all steps can later be raised in the criminal trial and appeal process: see, for example, Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395. Privative clauses also restrict review in areas other than immigration: for example, ss  175 and 177 of the Income Tax Assessment Act  1936 (Cth), discussed and upheld in Commissioner of Taxation v Futuris (2008) 237 CLR 146. Other subtle restrictions abound, such as the terms ‘decision’, ‘conduct’, ‘made under an enactment’ and ‘officer of the Commonwealth’ found in the ADJR Act and s  39B of the Judiciary Act  1903 (Cth), respectively: see 2.3.20ff. 2.2.35  The picture that emerges is that the Federal Court has a jurisdiction to undertake judicial review of most, but not necessarily all, Commonwealth administrative action. Moreover, the jurisdiction to undertake judicial review is spread across many statutes, each phrased differently and invoking varied legal concepts. The result is that jurisdictional challenges are common — as indicated by the proliferation of claims relying on jurisdictional error — and threshold jurisdictional issues loom large in any description of federal administrative law. 65

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Problems associated with the choice of jurisdiction were eased by the introduction of a rule permitting an action to be commenced jointly under the ADJR Act and the Judiciary Act 1903  (Cth) (see  Federal Court Rules 2011 (Cth) O  31.01(3)) and by the enactment of s  39B(1A)(c) of the Judiciary Act  1903 (Cth): see  2.2.11. A recommendation which could further alleviate the problems was made in the ARC’s Federal Judicial Review in Australia, Report No 50, 2012 (see 2.2.9E), at 12. That recommendation is for an expansion of the scope of the ADJR Act to encompass the same judicial review jurisdiction available under s 75(v) of the Constitution. That would obviate the need for an alternative application under s 39B of the Judiciary Act 1903 (Cth). Problems nevertheless remain in finding a jurisdictional basis to challenge some administrative decisions — principally, decisions made by Commonwealth statutory corporations (see  2.4.55); decisions sourced in contract rather than legislation (see  2.4.53); decisions that are ‘self-executing’ (see  2.4.26); and decisions made by private sector agents acting on behalf of the Commonwealth: see  2.5.21. The present position can be contrasted with the objective, at the time of enactment of the ADJR Act, to remove technical and jurisdictional obstacles to federal judicial review. Proposals for extending the coverage of the ADJR Act to move toward a single integrated scheme for judicial review were made by the ARC, Review of the Administrative Decisions ( Judicial Review) Act: The Ambit of the Act, Report No 32, 1989. The council’s recommendations have not been implemented. For a criticism of some of the ARC’s conclusions in the later ARC Federal Judicial Review in Australia report, see Justice A Robertson, ‘Nothing like the curate’s egg’, in N Williams (ed), Key Issues in Judicial Review, Federation Press, Sydney, 2014, p 191.

Commonwealth — Federal Circuit Court 2.2.36  The court was established by the Federal Magistrates Act 1999 (Cth) and commenced operation on 3 July 2000. Its name was changed to the Federal Circuit Court in 2013. It is a Ch  III court, being the first lower tier federal court established since federation. Like the Federal Court, its jurisdiction is conferred by statute, the main areas being administrative (including migration) law, bankruptcy, consumer protection and family law. With some restrictions, the court’s jurisdiction in administrative law is similar to that of the Federal Court: the court can undertake judicial review under the ADJR Act; it can review the decisions of tribunals made under the Migration Act  1958 (Cth); but it does not otherwise have the broad jurisdiction conferred on the Federal Court by s 39B of the Judiciary Act 1903 (Cth). Other important aspects of its jurisdiction include: the court can review a decision of the President of the Australian Human Rights Commission (AHRC) to terminate a complaint; matters commenced in the Federal Court under the ADJR Act can be transferred by that court to the Federal Circuit Court, and vice versa; appeals from the Administrative Appeals Tribunal (AAT) to the Federal Court can be transferred by that court to the Federal Circuit Court; and the court also has an associated jurisdiction: s 18. An appeal lies from the Federal Circuit Court to the Full Court of the Federal Court, but at the direction of the Chief Justice of the Federal Court can be heard by a single judge. The Federal Circuit Court deals mainly with less complex matters; and does so quickly, less formally and inexpensively, with active reliance on alternative modes of dispute resolution such as mediation, conciliation and arbitration. The consequence is that the initial judicial review hearing of migration matters mostly occurs in that court. In summary, the Federal Circuit Court hears federal law matters and exercises a general federal law, including administrative law jurisdiction as conferred by statute. 66

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State and territory jurisdiction in federal matters 2.2.37  Section  77(iii) of the Constitution provides that the Commonwealth Parliament can invest a court of a state with federal jurisdiction. Sections 39(2) and 68 of the Judiciary Act  1903 (Cth) implemented s  77(iii) by a general conferral of federal jurisdiction on state courts in civil and criminal matters. Consequently, state courts have long exercised a civil law jurisdiction to determine common law damages claims against Commonwealth agencies (see, for example, Crimmins v  Stevedoring Industry Finance Committee (1999) 200 CLR  1); and a criminal law jurisdiction to hear prosecutions brought under Commonwealth laws: see, for example, R v Murphy (1985) 158 CLR 596. See also Arnold v Minister Administering the Water Management Act  2000 (2007) 157 LGERA 379, discussing whether the New South Wales Land and Environment Court, as a court of limited jurisdiction, could exercise federal jurisdiction pursuant to s 39(2) of the Judiciary Act 1903 (Cth). The investment of jurisdiction in state courts is discussed extensively in Rizeq 2.2.7 at [3]–[7], [51] and [137]–[139]. An investment of federal jurisdiction does not deprive the state court of the obligation to use state law to decide the matter: Judiciary Act 1903 (Cth) s 79; Rizeq at [14], [32], [143] and [204]. 2.2.38  Federal administrative law jurisdiction was treated differently and was never fully conferred on state courts. Sections 38 and 39 of the Judiciary Act 1903 (Cth) provided that the High Court had exclusive jurisdiction to grant mandamus and prohibition against a Commonwealth officer or a federal court; by implication, the jurisdiction of state courts was limited to granting an injunction against an officer of the Commonwealth. Even that jurisdiction was substantially diminished by s 9 of the ADJR Act, which purported (though not completely successfully) to oust state administrative law jurisdiction altogether in favour of the Federal Court. For example, in Nomad Industries of Australia Pty Ltd v Federal Commissioner of Taxation [1983] 2 NSWLR 56, the New South Wales Supreme Court held that removal from state courts of jurisdiction to ‘review a decision’ under s  9 of the ADJR Act did not preclude a state court from ruling on the correct interpretation of a Commonwealth statutory provision that governed a person’s entitlements. By contrast, O’Meara v R [2006] NSWCCA 127 held that s 9 prevented the New South Wales Court of Criminal Appeal from hearing an application that a committal order — an administrative action — by the Commonwealth Director of Public Prosecutions was invalid. A state law which grants power to a body such as a tribunal to exercise any of the powers in ss 75 and 76 of the Constitution, exclusive to Ch III courts, is invalid: Burns v Corbett 3.2.6C; see also 2.2.40 and 5.3.19. 2.2.39  There are other ways too in which state courts deal with Commonwealth public law issues. Section  32A of the Federal Court of Australia Act  1976 (Cth) provides that each state Supreme Court has jurisdiction to deal with an application in chambers in respect of any matter pending in the Federal Court (for example, an application for an interlocutory injunction to temporarily prevent the implementation of a Commonwealth administrative decision). State courts, in hearing prosecutions for offences under Commonwealth law, can determine any related judicial review applications to the exclusion of the jurisdiction of the Federal Court: Judiciary Act 1903 (Cth) s 39B(1A)–(1F). Federal issues can arise also in a collateral way in state courts — for example, a Commonwealth police officer charged under state law with discharging a firearm in a public place might raise as a defence that the action was authorised by a Commonwealth law. 2.2.40  The jurisdiction of the territory Supreme Courts to undertake federal judicial review is not ousted by s 9 of the ADJR Act or s 38 of the Judiciary Act 1903 (Cth). However, it is probable 67

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that territory courts cannot undertake judicial review of Commonwealth decisions made within the territory unless a jurisdiction to that effect is specially conferred by a Commonwealth statute. Such a jurisdiction was conferred upon the Australian Capital Territory Supreme Court prior to 1990, and is presently conferred on the Northern Territory Supreme Court: Judiciary Act 1903 (Cth) s 67C. For a fuller discussion, see Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, Report No 92, October 2001, ch 7; S McDonald, ‘Territory Courts and Federal Jurisdiction’ (2005) 33 Federal Law Review 57. 2.2.41  Kirk v  Industrial Relations Commission of New South Wales 5.3.15C in combination with Kable (NSW) v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 have secured constitutional minimum limits on the judicial review role of state courts. That constitutional protection is effected by s 75(v) of the Constitution for federal courts, but by ss 71 and 73 at the state level. The cases reflect the unified judicial system in Australia, the single common law, and are also tied to the doctrine of jurisdictional error: Kirk at [96], [100]; see 5.3.12ff. See also M Groves, ‘Federal Constitutional Influences on State Judicial Review’ (2011) 39 Federal Law Review 399 at 406.

The High Court’s original jurisdiction 2.2.42  In addition to its appellate jurisdiction under s 73 of the Constitution (see  2.2.56), embracing Commonwealth, state and territory public law, the High Court also has an original jurisdiction under s  75 of the Constitution confined to Commonwealth government action. Section 75 of the Constitution provides in part: 75 In all matters … (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; … (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth: the High Court shall have original jurisdiction.

Section 75(v) is the more important from an administrative law perspective. The issues to which it gives rise are noted below, but are discussed at greater length elsewhere in this book — specifically, in McBain 2.3.9C, concerning the connection between ‘matter’ and justiciability; in 2.4.59, as to the meaning of ‘officer of the Commonwealth’; in Chapter 5, as to the constitutional dimension of s 75(v); in Chapter 16 in the context of privative clauses and time limits which attempt to oust the jurisdiction of the High Court; and in Chapter 17 as to the scope of the three remedies mentioned in s 75(v). For a general discussion of the High Court’s judicial review jurisdiction, see M Groves, ‘Judicial Review of Administrative Action in the High Court of Australia’ (2008) 33 Queen’s Law Journal 327. 2.2.43  There are two sides to s  75(v) — its constitutional importance, and its practical consequence. Its constitutional importance was captured in the observation of Dixon J that it ‘was written into the instrument to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power’: Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 363. Similarly, in Plaintiff 68

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S157/2002 16.3.17C, the joint judgment (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed of the s 75(v) jurisdiction: First, the jurisdiction of this Court to grant relief under s 75(v) of the Constitution cannot be removed by or under a law made by the Parliament. Specifically, the jurisdiction to grant s 75(v) relief where there has been jurisdictional error by an officer of the Commonwealth cannot be removed. Secondly, the judicial power of the Commonwealth cannot be exercised otherwise than in accordance with Ch III. The Parliament cannot confer on a non-judicial body the power to conclusively determine the limits of its own jurisdiction. … [Section 75(v)] is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them. The centrality, and protective purpose, of the jurisdiction of this Court in that regard places significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review of administrative action. Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this Court. The Court must be obedient to its constitutional function. In the end, pursuant to s  75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.

This emphasis on the importance of the constitutional jurisdiction was captured in cases that use the term ‘constitutional writ’ to describe s 75(v): for example, Aala 17.1.14C. Another illustration is Bodruddaza 5.3.57C, holding invalid a time limit in the Migration Act 1958 (Cth) on the commencement of proceedings in the original jurisdiction of the High Court. The jurisdictional significance of s  75(v) more generally is illustrated by Graham v  Minister for Immigration and Border Protection 5.3.58C, which invalidated a provision in the Migration Act that prohibited the minister from divulging to the federal courts confidential information communicated by certain security agencies. The High Court found that the provision prevented the courts from seeing information relevant to their determination as to whether the decision-makers had kept within the limits set by the law for the exercise of power. The s 75(v) jurisdiction is based on remedies and is inevitably tied to the nature of each remedy, including the time limits attached to them: see Chapter 17. In addition, the limitation imposed by s 75(iv) that the High Court has exclusive jurisdiction in matters involving residents of different states has meant that state tribunals cannot resolve disputes that involve people resident outside the state, as the tribunals (unlike state courts) do not exercise federal judicial power. This limitation on the jurisdiction of state tribunals has arisen in anti-discrimination and guardianship matters (Burns v Corbett 3.2.6C), and residential tenancies: Zistis v Zistis [2018] NSWSC 722; Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1. 2.2.44  The effect that s 75(v) has on the practice of Australian administrative law can be seen in various ways and should not be underestimated. Before the commencement of the ADJR Act in 1979 conferred a judicial review jurisdiction on the Federal Court, the High Court was the principal forum for judicial review of Commonwealth administrative action. The routine importance of the original jurisdiction lessened after 1979, only to revive dramatically in the immigration jurisdiction after the introduction of Pt 8 of the Migration Act 1958 (Cth): see  2.2.25ff. Even in areas other than migration s 75(v) still provides a back-up jurisdiction 69

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when the opportunity for judicial review is denied or is unavailable in other courts: see 2.2.12. Equally, since Federal Court judges come within the phrase ‘officer of the Commonwealth’, s 75(v) means that proceedings for review of a Federal Court decision can be commenced in the High Court’s original jurisdiction, notwithstanding that there is either no right to appeal or that special leave is unlikely to be granted: for example, R v Gray; Ex parte Marsh (1985) 157 CLR 351; R v Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (1979) 143 CLR 190. The fact that s 75(v) defines the jurisdiction of the High Court by reference to three remedies — mandamus, prohibition and injunction — has meant that those remedies have played a key role in the development of Australian administrative law; their contemporary importance is perhaps greater than it would otherwise be. It is indicative of that importance that mandamus and prohibition are now termed ‘constitutional writs’. Section 75(v) does not specify the grounds on which the remedies can be granted, and this gap is filled by the common law. This leads to a further issue, progressively being resolved by the High Court, as to whether s 75(v) implicitly provides constitutional protection for at least some of those grounds as necessary elements of each remedy: see 5.3.54. 2.2.45  The High Court’s jurisdiction under s 75(iii) is defined differently, not by reference to remedies or grounds, but solely by reference to one of the parties to any litigation — the Commonwealth. One has to turn to the pre-existing law (that is, legislation and the common law) to identify the cause of action that enables the jurisdiction to be invoked. Section 75(iii) does not extend constitutional protection to that body of law. A distinctive public law role played by s 75(iii) is to support common law damages actions against the Commonwealth in the original jurisdiction of the High Court: Commonwealth v Mewett (1997) 191 CLR 471. The ‘Commonwealth’ has encompassed a public corporation (Edensor 2.2.18 at 580–1); a statutory office holder, such as the Director of Military Prosecutions (Commonwealth v Westwood (2007) 163 FCR 71); a ‘maritime officer’ under the Maritime Powers Act 2013 (Cth) detaining offshore foreign nationals suspected of trying to enter Australia without a visa (CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514); and clearly extends to officers within Australian Government agencies. Green v Daniels 7.2.4C is an example of a case commenced in the original jurisdiction in which the plaintiff relied on both ss 75(iii) and 75(v) to bring a combined action for common law damages and judicial review. 2.2.46  The court’s original jurisdiction is supplemented by the Judiciary Act 1903 (Cth) in ways that are important to administrative law. Section  44(2A) of the Act provides that the High Court can remit for hearing in the Federal Court a case commenced in the original jurisdiction. Section 30 enlarges the original jurisdiction of the High Court to include ‘matters arising under the Constitution or involving its interpretation’. Section  33 confers a specific power upon the court to grant the writ of habeas corpus and to make orders in the nature of prohibition, mandamus and quo warranto. Section  32 provides, more generally, that in exercising the original jurisdiction the High Court has power to grant: all such remedies whatsoever as any of the parties thereto are entitled to in respect of any legal or equitable claim properly brought forward by them … so that as far as possible all matters in controversy between the parties regarding the cause of action, or arising out of or connected with the cause of action, may be completely and finally determined.

The significance of that section to administrative law is that it has confirmed a jurisdiction in the High Court — a jurisdiction it might in any case have inherently or by accrual — to 70

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grant remedies not specifically mentioned in s 75(v), notably certiorari and declaration. The power to grant such remedies ‘is merely ancillary to the jurisdiction conferred by s 75(v) … [and] the power can be exercised only when it is necessary to effectuate the grant of some other aspect of the Court’s jurisdiction conferred by or pursuant to ss 75 and 76 of the Constitution’: Re the Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609 at [29] (McHugh J); Aala 17.1.14C at 90, 135, 156. Moreover, the court has a discretion whether to grant certiorari or to make a declaration, and the appropriateness of the court’s original jurisdiction being invoked will be a key factor. For example, in McBain 2.3.9C a deciding factor in the decision of some members of the court to dismiss an action brought in the original jurisdiction by the Catholic bishops and the Commonwealth Attorney-General, challenging a Federal Court decision that had struck down a Victorian restriction on access to IVF treatment, was that the parties could alternatively have been interveners in the Federal Court proceedings and then appealed against an adverse decision.

State and territory judicial review schemes 2.2.47  The Supreme Court of each state and territory has a general civil and criminal jurisdiction. Thus, in undertaking judicial review of state or territory executive action the Supreme Courts are not troubled to the same extent as the Federal Court or the High Court by questions to do with the precise source of jurisdiction. The general jurisdiction of the Supreme Courts derives essentially from their status as superior courts of record, with an inherent and plenary jurisdiction to administer law and equity within the state or territory. The powers and jurisdiction of each court are now declared in a Supreme Court Act (or, in Victoria, s  85 of the Constitution Act  1975 (Vic)), though usually along the lines that the court ‘shall have all jurisdiction which may be necessary for the administration of justice’: Supreme Court Act  1970 (NSW) s  23. It is usual to refer to this jurisdiction to undertake judicial review as either an inherent jurisdiction, a common law jurisdiction, or a general law jurisdiction. In the Australian Capital Territory, Queensland, Tasmania and Victoria there is a supplementary jurisdiction conferred by statute: those Acts are discussed below and at 2.4.61ff. The Australian Capital Territory and the Northern Territory Supreme Courts are created by statute, and the preferred description of their broad jurisdiction is that it is an implied or incidental jurisdiction, rather than an inherent jurisdiction: see Jackson v Sterling Industries Ltd (1986) 12 FCR 267 at 272. For a discussion of the issues facing reform of judicial review see: M Groves, ‘Reforming Judicial Review at the State Level’ [2010] Monash University Law Research Series 5; The Hon Justice J Basten, ‘Judicial Review in State Jurisdiction’ (2016) 84 AIAL Forum 10.

Australian Capital Territory 2.2.48  Prior to the commencement of self-government in the Australian Capital Territory in 1989, the government of the ACT was undertaken by Commonwealth government agencies. To ensure continuity in the framework of administrative law, after self-government the ACT government passed parallel laws to those previously applying, including an Administrative Decisions ( Judicial Review) Act 1989 (ACT). The Act confers a jurisdiction on the Supreme Court of the ACT that is defined in almost identical terms to the Commonwealth ADJR Act in respect of territory decisions and conduct. The Supreme Court also retains its general jurisdiction to undertake judicial review: Supreme Court Act 1933 (ACT) s 20. 71

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New South Wales 2.2.49  Judicial review in New South Wales is confined to common law review. There is no form of statutory judicial review. However, the inherent jurisdiction of the Supreme Court of New South Wales to undertake judicial review has been reformed and simplified along two lines: by replacing the more complex prerogative writ procedure with the simpler procedure of a summons and court order or judgment; and by empowering the court to make the most appropriate order in the circumstances: Supreme Court Act 1970 (NSW) ss  65, 66, 69, 69B, 69C, 70, 71; Uniform Civil Procedure Rules (NSW) r  6.4. Matters are heard in a specialist Administrative Law Division of the Supreme Court. The court’s judicial review jurisdiction has been expressly preserved in respect of the New South Wales Civil and Administrative Tribunal: Civil and Administrative Tribunal Act 2013 (NSW) ss 34, 54, 83–84. In March 2011 the New South Wales  Department of Justice and Attorney-General published a discussion paper, Reform of Judicial Review in NSW, containing options for a statutory form of judicial review; no final report has been published. The Practice Note SC CL 3 [14] permits the Supreme Court to direct that a statement of reasons be supplied by someone who has applied for review and it includes a list of common law grounds of review. This right only applies when litigation has been commenced, so therefore it does not assist those seeking reasons in order to decide whether to seek review.

Northern Territory 2.2.50  The Supreme Court of the Northern Territory exercises an inherent jurisdiction to undertake judicial review: Supreme Court Act (NT) s 20. The method for instituting proceedings has been reformed along the same lines as in New South Wales: Supreme Court Rules (NT) Os 56, 57, 59.

Queensland 2.2.51 The Judicial Review Act 1991 (Qld) establishes two different schemes for obtaining judicial review in the Supreme Court of Queensland. One scheme (Pt 3) is called ‘statutory orders of review’, and is modelled closely on the Commonwealth ADJR Act, though with greater breadth concerning the range of executive action that is reviewable under the Act (ss  4, 23), and some additional flexibility concerning the powers conferred on the court to restrain judicial review at an inappropriate stage of the administrative process: ss 10–15. The other scheme (Pt 5) is called ‘prerogative orders and injunction’, and replaces the prerogative writs with a simplified procedure called a prerogative order and revised procedures for issuing declaratory and injunctive remedies. Apart from that change, the inherent jurisdiction of the Supreme Court to grant relief is preserved: s  10. Judicial review is also available for nonstatutory schemes for which monies have been appropriated: s 9. It appears that the attempt to extend the scope of judicial review in s 4(b) has failed: The Hon Justice C Holmes, ‘Not making a difference: Queensland’s extension of statutory review’ (2016) 85 AIAL Forum 1. An illustrative case is Palmer v Chief Executive, Qld Corrective Services [2010] QCA 316, in which it was held that a condition imposed by the Chief Executive that Mr  Palmer was entitled to have a maximum of three boxes of his legal materials in his cell at any one time was not judicially reviewable, as it was not a ‘decision … under an enactment’ (being permissive and lacking finality) nor a decision that affected legal rights under the Corrective Services Act 2006 (Qld) s 317 and the Corrective Services Regulation 2006 (Qld) reg 45(2)(b). 72

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South Australia 2.2.52  The Supreme Court of South Australia has a common law jurisdiction to undertake judicial review. The method for instituting proceedings has been reformed along the same lines as in some other jurisdictions: Supreme Court Civil Rules 2006 (SA) Pt 3, rr 196–201.

Tasmania 2.2.53 The Judicial Review Act  2000 (Tas) establishes a scheme for judicial review in the Supreme Court of Tasmania that is substantially similar to the procedure in Queensland for statutory review (Pt 4). The Act further provides that the principal prerogative writs, excluding habeas corpus, are no longer to be issued by the court: s 43. Otherwise, the inherent jurisdiction of the court is unimpaired. The right to reasons in Pt  5 of the Act has an exemption for information relating to the personal or business affairs of a person: s 32.

Victoria 2.2.54  The Supreme Court of Victoria has both a common law and a statutory jurisdiction to undertake judicial review. The common law jurisdiction has undergone some legislative simplification: Supreme Court Act  1986 (Vic) s  3(6); General Rules of Procedure in Civil Proceedings 1996 (Vic) Os 56, 57. The statutory jurisdiction was created by the Administrative Law Act 1978 (Vic), which established a reformed and simplified procedure for seeking an ‘order for review’ of the ‘decision’ of a ‘tribunal’: ss  2, 3, 4; see  2.4.62. Power was conferred on the Supreme Court to grant relief ‘in the nature of certiorari, mandamus, prohibition or … a declaration of invalidity in respect of the decision or for an injunction to restrain the implementation thereof ’: s 7. Section 11 provides that the Act does not ‘take away or impair any right to relief otherwise existing or the discretion to refuse any such relief ’. The Act also confers a right to a statement of reasons for a decision challengeable under the Act: s 8. Unlike the judicial review legislation of some other jurisdictions, the Act does not codify the grounds of review. See M Groves, ‘Should the Administrative Law Act 1978 (Vic) be repealed?’ (2010) 34 Melbourne University Law Review 452.

Western Australia 2.2.55  The Supreme Court of Western Australia has a common law jurisdiction to undertake judicial review: Supreme Court Act  1935 (WA) s  16. A discussion paper issued by the Law Reform Commission of Western Australia in 2002 proposed (alongside the existing system) a new statutory scheme for judicial review modelled on either the Commonwealth ADJR Act or the Queensland Judicial Review Act 1991: see Law Reform Commission of Western Australia, Report on Judicial Review of Administrative Decisions: Options for Reform, Project No 95, Perth, 2002. The recommendations have not been implemented. An attempt to introduce reforms to the right to reasons, relying on rules of the Supreme Court, was disallowed by the Western Australian Parliament: Joint Standing Committee on Delegated Legislation Report 66 – Supreme Court Amendment Rules 2013 (October 2013). The Chief Justice of the Western Australian Supreme Court, the Hon Wayne Martin, indicated an intention to effect the change by case management practices: The Hon W Martin AC, ‘Peripheral Vision? Judicial Review in Australia; National Lecture for the Australian Institute of Administrative Law’ (2014) 78 AIAL Forum 1 at 15–16. 73

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Integration of Australian judicial review schemes 2.2.56  There are three ways in which the nine separate judicial systems of the Commonwealth, states and territories are integrated. First, state courts are invested with federal jurisdiction, as explained at 2.2.37ff. Second, the High Court has an appellate jurisdiction arising under s  73 of the Constitution to hear appeals from any federal court or the Supreme Court of a state or territory, subject to any exceptions or regulation imposed by parliament. Presently the stipulation is that an appeal is possible only if the High Court gives special leave to appeal: Judiciary Act 1903 (Cth) ss 35, 35AA; Federal Court of Australia Act 1976 (Cth) s 33. The criteria for grant of special leave are set out in s 35A of the Judiciary Act 1903 (Cth). Administrative law appeals are one of the largest areas of the High Court’s annual caseload and, as the cases in this book illustrate, cover the full diversity of government decision-making in Australia, at Commonwealth, state and local government level. 2.2.57  The third method of integration is through parallel legislation enacted by each Australian legislature called the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), which invests the Federal Court and the state and territory Supreme Courts with the jurisdiction of each other court: s 4. Thus, for example, the New South Wales Supreme Court can undertake judicial review of Queensland Government action under the Judicial Review Act 1991 (Qld); or, more to the point, a case raising questions as to the validity of action taken jointly by Queensland and New South Wales  government officials (for example, a joint inquiry or regulatory scheme) could be heard by the Supreme Court of either state. To ensure that each court stays within its proper jurisdictional field, the Cross-Vesting Acts provide that a court is to transfer a proceeding to another court if ‘it is more appropriate’ that it be determined by the other court: s 5. Further, the exclusivity of the Federal Court’s judicial review jurisdiction is preserved by a further section providing that ‘a special federal matter’ (defined to include any proceeding that could be commenced under the ADJR Act or s  39B of the Judiciary Act 1903 (Cth)) shall be transferred to the Federal Court unless the state or territory Supreme Court before which the matter is pending decides, for a reason other than the convenience of the parties, ‘that there are special reasons’ for the proceeding to be heard by the state court: ss 6, 6A. 2.2.58  A further restriction on the operation of the cross-vesting scheme arose from the decision of the High Court in Re Wakim. The court declared that the scheme was constitutionally invalid to the extent that it purported to cross-vest state jurisdiction to the Federal Court. Consequently, the Federal Court has to rely on the accrued jurisdiction to undertake judicial review of state government action: see  2.2.16ff. The impact of Re  Wakim was significant in corporations’ regulation, because of the cooperative Commonwealth/state scheme established by the Corporations Law. The inability of states to confer jurisdiction upon the Federal Court has partially been overcome by the referral of state legislative power to the Commonwealth under s 51(xxxvii) of the Constitution, and by the Jurisdiction of Courts Legislation Amendment Act  2000 (Cth), which conferred jurisdiction upon the Federal Court to undertake judicial review of action taken by a Commonwealth officer under a state law. The impact of Re Wakim has also been ameliorated, to an extent, by the later decision of the High Court in Edensor 2.2.18. The court held that jurisdiction could be conferred on a Federal Court in any matter in which the Commonwealth is a party, either making or defending a claim (Constitution s 75(iii)), even though the substantive law to be applied is the common law or state law. 74

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JUSTICIABILITY 2.3.1  Judicial review is not a remedy for correcting all governmental error. Many issues in government are not suitable for evaluation by judicial method, whether because of the nature of the issue, the limitations of judicial method, or the existence of a more suitable alternative method of scrutiny. How should the boundaries of judicial review be defined? In a statutebased system of judicial review this is done by the statute which confers jurisdiction on a court. The Commonwealth ADJR Act, for example, confines judicial review by the Federal Court to a ‘decision of an administrative character made under an enactment’: s 3. It is common to refer to the elements of that definition as jurisdictional limitations, as they define the jurisdiction of the court under that Act. That terminology is adopted in this book, and jurisdictional limitations are accordingly discussed separately in the next section: see  2.4.1ff. There is, however, a close affinity between ‘justiciability’ and ‘jurisdictional limitations’, as the discussion will illustrate. 2.3.2  At common law it is left to a court to define the situations in which judicial review is appropriate. This section analyses a principle — justiciability — developed by courts for that purpose. The conclusion that a question is ‘non-justiciable’ means neither more nor less than that the question is not considered appropriate or fit for judicial determination or evaluation. The reason for that conclusion may relate to the nature of the issue before the court, but it may equally relate to a combination of other circumstances, including the plaintiff ’s standing to commence proceedings, the ground of legal error asserted, the nature of the relief claimed, the time at which proceedings were commenced, or whether deference should be accorded to the decision under review: see Justice James Allsop 2.3.4E. Indeed, there is room for debate as to whether justiciability is a free-standing principle of administrative law, or whether it is simply an expedient shorthand for expressing a conclusion reached by applying other principles of public law. There is a sense of that view in the following extracurial observation of Sir Anthony Mason 2.3.3E. 2.3.3E

Sir Anthony Mason AC KBE, ‘The High Court as Gatekeeper’ (2000) 24 Melbourne University Law Review 784

Justiciability is a controversial and difficult concept. It is difficult because — like its close relations, ‘political questions’, judicial power and judicial process (method) — so far it has not been susceptible to definition. In the absence of definition, it is not possible to identify a precise relationship between these concepts, though my preference would be to equate justiciability in its primary sense with judicial power, at least in the context of the Australian Constitution … Justiciability may be seen as a concept which cuts across the fundamental obligation of any court to exercise the jurisdiction vested in it and the principle that the ‘right of access to the King’s Court must not be lightly refused’, as well as the maintenance of the rule of law. If, however, justiciability is seen as a concept whose purpose is to confine courts to the exercise of judicial power in relation to issues not properly assignable to other branches of government under the separation of powers and otherwise within the institutional competence of the courts, that difficulty largely disappears … In the context of justiciability, non-exercise of jurisdiction invested in a court should be confined to issues which, on analysis, do not involve the exercise of judicial power

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because the issue is committed exclusively to a non-judicial agency or because the issue is incapable of resolution by legal criteria or ascertainable objective standards. In cases where the issue is committed primarily, but not exclusively, to another branch of government, the judgment of that branch should be subjected to a low level of judicial scrutiny. By these means, the tensions between the ‘political questions’ doctrine and the obligation [of a court] to exercise jurisdiction can be alleviated, if not eliminated.

2.3.4E

Justice James Allsop, ‘The Control of the Executive by the Courts’ [2002] Federal Judicial Scholarship 17

Justiciability … ‘[J]usticiability’ is used in a number of contexts and in different senses which include an absence of jurisdiction, circumstances where, though possessing jurisdiction, the court chooses not to exercise it or part of it and circumstances in which the court can otherwise resolve the case without dealing with the issue. The question can arise in contexts not limited to the exercise of domestic executive power. … [Justice Allsop discussed comments on justiciability made in R v Toohey; Ex parte Northern Land Council 10.2.13C; FAI Insurances v Winneke 11.2.17C; and Council of Civil Service Unions v Minister for the Civil Service (CCSU) 2.3.10C. He went on:] … [J]usticiability is broad and multi-faceted. A difference in approach may be required depending on the nature, or basis, of review sought. For instance, one can readily see different considerations applying to a decision by Cabinet or a minister involving considerations of foreign affairs and even national security, depending upon whether the complaint was a denial of natural justice or Wednesbury unreasonableness, even if the conclusion in both respects is that the decision is not reviewable. … [His Honour then referred to the discussion of justiciability in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd 2.3.11C; and South Australia v O’Shea 11.2.18C.] Gummow J examined the question of justiciability in Re Ditfort; Ex parte Deputy Commissioner of Taxation [and] … after pointing out that the question of non-justiciability may refer to distinct legal principles, including the question of the evidential conclusiveness of certificates by the executive in matters peculiarly its concern, cautioned against the application of approaches based on analysing the prerogative in the United Kingdom, rather than the content of s 61 of the Constitution. He also stressed the relationship between the claimed rights of the parties and the existence of a ‘matter’ under Ch III. This analysis is closely related to standing. … … Gummow J also suggested a role for discretion involved in the grant of equitable relief in the public law injunction and declaration. To the extent that the constitutional or prerogative writs are discretionary, similar considerations may arise there. This should be seen as distinct from the more problematic course of deciding not to exercise jurisdiction if there is a ‘matter’ presented for disposition. This analysis provides a two-stage framework for analysis, … but, for federal judicial review, it provides a framework conformable with the Constitution and the exercise of federal jurisdiction. It is not appropriate merely to state that some questions are not ‘justiciable’. Rather one asks whether there was a ‘matter’ in respect of which the claimant had standing.

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There will be no such matter if the dispute is about an entirely political question; but there will be if there is an allegation of exceeding the authority conferred by s 61. If there is a matter, bound up with that will be the question of standing. … Thus, there is plainly room for debate as to what is justiciable or what should form the basis of any exercise of discretion not to grant relief. Political considerations, policy, high policy, or foreign relations, consideration of matters for which the courts have no judicial means of assessment, the degree to which rights of a party whether as to custody or human rights … are affected, the context in which the matter arises and the relief sought will all play a part in what is probably best described in most circumstances, absent rules such as act of state, as a value judgment. … There is also an important connection between these questions of justiciabilty, deference and discretion and any debate about the legitimacy of the clothing of the executive with very wide authority. … … The development of the law in this area poses important questions as to method and approach. The answers to questions as to whether there are aspects of a dispute which take it outside the concept of a ‘matter’ or which are such as to otherwise require an exercise of a judicial discretion not to award relief are not likely to be arrived at entirely by the application of syllogistic logic. The element of will and choice inherent in the determination of such questions is apparent from the subject matter involved. That this is so makes it all the more important, it seems to me, that the approach to the resolution of the questions be informed by the recognition that analysis should be shorn of assertion and the recognition that the exercising of control over some executive functions may (perhaps inevitably when recognised rights are affected) draw the judicial arm close to, if not into, the political process.

2.3.5  The idea that justiciability is a representation of other legal concepts has been taken up by other commentators. Finn, for example, has argued that ‘the issue appears to be whether a decision is justiciable on this or that ground of review, rather than the blanket availability or non-availability of review’: C Finn, ‘The Justiciability of Government Decisions: A Redundant Concept?’ (2002) 30 Federal Law Review 239. Public law principles other than the grounds of review can also be determinative. In McBain 2.3.9C, for example, the High Court tied its conclusion that an issue before the court was non-justiciable to the constitutional concept that an exercise of federal judicial power must involve a ‘matter’ as referred to in ss 75 and 76 of the Constitution: see also Justice James Allsop 2.3.4E. The concept of a ‘matter’, as Latham CJ observed in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154, ‘may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends on Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) or the law’. Further, as Burmester noted, ‘“Matter” … has two elements: the subject matter itself as defined by reference to the heads of jurisdiction … in Chapter  III, and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy”: H Burmester, ‘Limitations on Federal Adjudication’ in B Opeskin and F Wheeler (eds), The Australian Federal Judicial System, Melbourne University Press, Carlton South, 2000, pp 227–64 at p 232. The court in McBain also points to the overlap between justiciability and other principles of administrative law, chiefly standing and remedies. Confirming those links, 77

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in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 the High Court observed that standing is an analogue for ‘matter’: at [68]. 2.3.6  Whichever view is taken — that justiciability is a free-standing concept, or that it is rather an amalgam of other principles — it is a concept or term embedded in administrative law to describe issues inherently unsuitable for judicial determination. Questions of justiciability have squarely arisen in a few distinctive circumstances, taken up in CCSU 2.3.10C and Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) (Peko) 2.3.11C. They are whether a government decision is justiciable if it involves an exercise of prerogative power, was made by cabinet, has a close relationship to national security, or was made in the conduct of international relations. Beyond those defined categories there are broader notions that are often associated with the rubric of justiciability: see Justice James Allsop 2.3.4E. A point emphasised in all three cases — McBain, CCSU and Peko — is that the exercise of judicial power is restricted to cases that require a determination of legal rights and interests of, or claims made by, an individual. This concern led to the following observation in CGU Insurance Pty Ltd v Blakeley (2016) 259 CLR 339: French CJ, Kiefel, Bell and Keane JJ: [26] It is a necessary condition of federal jurisdiction, in the sense of authority to exercise the judicial power of the Commonwealth, that the matter in which the jurisdiction of the court is invoked is ‘capable of judicial determination’ or ‘justiciable’. That concept of justiciability does not embrace a purely advisory opinion.

2.3.7  Another formulation of that requirement in Peko 2.3.11C is that a judicial ruling must have a direct and immediate consequence for the legal rights or interests of a party. Nor are hypothetical issues regarded as justiciable: McBain 2.3.9C. Whether a claim is justiciable may also depend on whether the decision relies on ‘legal standards’ rather than ‘political considerations’: Stewart v Ronalds (2009) 232 FLR 331 and Sir Anthony Mason 2.3.3E. The fact that the issues were both hypothetical and political led to a ruling in the UK Court of Session, the Royal Court of Scotland, against the grant of a petition by several MPs seeking an advisory declaration as to the legality of a unilateral revocation of the notification under Art 50 of the Treaty on European Union that Britain intended to leave the European Union: Wightman v Secretary of State for Exiting the European Union [2018] CSOH 61. 2.3.8  It is inevitable that the boundaries of justiciability move over time, usually along a path of expanding the range of government decisions that are subject to judicial scrutiny. For example, until the decision of the High Court in Toohey 10.2.13C there was a lingering doubt as to the justiciability of an exercise of statutory power by a vice-regal officer. That doubt was reflected in the exclusion of decisions made by the Governor-General from judicial review under the ADJR Act: s 3. Despite this, courts have accepted that the construction of the constitution of a registered political party is a justiciable issue: Baldwin v Everingham [1993] 1 Qd R 10; Coleman v Liberal Party of Australia, New South Wales Division (No 2) (2007) 212 FLR 271. The evolutionary nature of justiciability principles is reflected in the tentative way that those principles are formulated in CCSU 2.3.10C and Peko 2.3.11C and the 4:3 split in the High Court in McBain 2.3.9C. That flexibility of principle means that the concept of justiciability inevitably merges with other topics covered in this book to do with the limits on judicial review. They include the scope of review of political judgment: see  9.3.20ff; judicial deference to executive action (see  7.5.8); ‘polycentricity’ (see  7.4.2); the effect of privative clauses (see  Chapter 16); and the public/private distinction: see  1.5.1ff and 2.5.1ff. For a discussion of justiciability in 78

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the US context see JR Siegel, ‘A Theory of Justiciability’ (2007) 86 Texas Law Review 73; and for a more Australian-focused view see  M  Allars, ‘Public Administration in Private Hands’ (2005) 12 Australian Journal of Administrative Law 126; Justice James Allsop 2.3.4E; C Finn, ‘The public/private distinction and the reach of administrative law’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context, Cambridge University Press, New York, 2014, pp 49–69; and R Thwaites, ‘The Changing Landscape of Non-Justiciability’ [2016] New Zealand Law Review 31. 2.3.9C

Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; 188 ALR 1 High Court of Australia

[The Federal Court (Sundberg J), in proceedings initiated by Dr McBain, held that a provision of the Infertility Treatment Act 1995 (Vic) was invalid by reason that it was inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth). The provision in question limited fertilisation treatment to women who were married or living in a de facto relationship with a man. Dr McBain wished to provide infertility treatment to a single woman (Ms Meldrum), but was prevented by the Victorian law from doing so. The respondents to the action in the Federal Court were Ms Meldrum, the State of Victoria, the Victorian Minister for Health and the Infertility Treatment Authority. None opposed Dr McBain’s application. The Bishops Conference, as amici curiae, made a contrary submission in support of the validity of the Victorian law. Since the Bishops were not a party to the Federal Court proceedings, they had no right to appeal against Sundberg J’s decision. Instead, they were granted the fiat (see 18.5.1) of the Commonwealth Attorney-General to commence proceedings in the original jurisdiction of the High Court for certiorari to quash that decision. The Commonwealth Attorney-General also applied to intervene separately in the High Court proceedings. The High Court was unanimous in dismissing both actions, on various other grounds: see also 2.2.42. A majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ; McHugh, Kirby and Callinan JJ dissenting) held that the proceedings did not give rise to a ‘matter’. The following extracts deal with that issue.] Gleeson CJ: The starting point must be a consideration of the nature of the matter which came before the Federal Court, and in respect of which that Court exercised the judicial power of the Commonwealth. The power of the Parliament to make a law defining the jurisdiction of the Federal Court is, relevantly, a power to make laws with respect to ‘matters’ (Constitution s 77). The original jurisdiction of this Court is conferred by the Constitution in ‘matters’ (Constitution ss 75, 76). It is necessary to identify the matter with respect to which the jurisdiction of the Federal Court was exercised, to relate that to the proceedings in which the jurisdiction of this Court is invoked, and to inquire whether the claims made in these proceedings involve a matter … [His Honour discussed the practical limitations on judicial resolution of disputes, including that most matters are not brought to the courts, and only then does the issue of justiciability arise.] This Court is asked, by people who were not parties to the action in the Federal Court, to quash the decision of Sundberg J on the ground that it was wrong. People who were not parties to litigation do not have a claim of right to have judicial decisions quashed because they are erroneous. [Gleeson CJ discussed the inability of persons other than the parties to litigation to enforce judicial decisions.]

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Whether the outcome of the Federal Court action was correct or erroneous, the rights of Dr McBain in relation to the effect of s 8 of the Victorian Act upon his medical practice have been declared by an exercise of the judicial power of the Commonwealth. The parties bound by that declaration include the State of Victoria and the Authority charged with the responsibility of administering the Victorian Act. There is no justiciable issue between the Bishops and Dr McBain, or the Attorney-General of the Commonwealth and Dr McBain, as to those rights. And there is no justiciable issue between the Bishops or the Attorney-General of the Commonwealth and Sundberg J … Hayne J: At the heart of the constitutional conception of ‘matter’ is a controversy about rights, duties or liabilities which will, by the application of judicial power, be quelled. The ‘controversy’ must be real and immediate. That is why it was held, in In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 that ‘matter’ means more than legal proceeding and that ‘there can be no matter within the meaning of [s 76] unless there is some immediate right, duty or liability to be established by the determination of the Court’. Hypothetical questions give rise to no matter. Further, it has long been recognised that an important aspect of federal judicial power is that, by its exercise, a controversy between parties about some immediate right, duty or liability is quelled. As the majority in Fencott v Muller (1983) 152 CLR 570 at 608 (per Mason, Murphy, Brennan and Deane JJ) said: ‘The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion.’ Questions of standing and availability of remedies can be understood only against this background. Because a ‘matter’ involves the existence of a controversy about ‘some immediate right, duty or liability to be established by the determination of the Court’ it will often be the case that an attempt by a person who has no more than a theoretical interest in the subjectmatter, to agitate a question about the rights, duties or liabilities of others will not give rise to any ‘matter’. That conclusion can be, and often is, expressed in terms of the standing of the person who seeks to raise the matter for debate, but at the most fundamental level the conclusion recognises that there is no controversy about any immediate right, duty or liability which will be quelled by the disposition of the proceeding. As was pointed out in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 questions of standing are also intimately related to the nature of the relief that is claimed … Thus, if relief is not available that will relate to the wrong which the applicant for relief alleges, there is no immediate right, duty or liability which will be established by the court’s determination. As Gleeson CJ and McHugh J pointed out in Abebe (1999) 197 CLR 510 at 527: ‘If there is no legal remedy for a “wrong”, there can be no “matter”.’ Justiciable controversies concern the rights and duties of parties and the powers of those who hold public office including, in appropriate cases, those who hold judicial office. In the present case … [t]he applications will quell no controversy about any immediate right, duty or liability of the applicants for relief; each application seeks only to enliven the subjectmatter of a controversy between others which has already been quelled by the application of judicial power. Very early in the history of this Court it was held in Attorney-General for NSW v Brewery Employés Union of NSW (‘the Union Label Case’) (1908) 6 CLR 469 that a State AttorneyGeneral had standing to bring proceedings in which the validity of a federal statute was

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challenged. Thereafter, proceedings for declarations of invalidity of legislation have often been brought in the name of an Attorney-General for a State … It cannot now be doubted that such a claim can give rise to a ‘matter’. It is, however, important to notice that the claim which is now made is a claim by the Commonwealth Attorney concerning the valid operation of a State statute … In this case, the Attorney-General of the Commonwealth contends that a State statute is not invalidated by s 109 of the Constitution. The Commonwealth Attorney does not thereby assert some particular right, power or immunity. At most … the Attorney contends for what is thought ‘to be a desirable state of the general law under the Constitution without regard to the diminution or enlargement of the powers’ (Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 331 per Dixon J) which the Commonwealth may exercise.

2.3.10C

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; (1984) 3 All ER 935 House of Lords

[The Minister for the Civil Service (the Prime Minister, Mrs Thatcher) decided to alter the terms and conditions of employment of 4000 civil servants employed at the Government Communications Headquarters (GCHQ), by stipulating that they could no longer belong to a trade union except one approved by the director of the GCHQ. The minister’s decision was made under a power conferred upon the minister by a Civil Service Order in Council, which had in turn been made under the royal prerogative. The reason given by the minister for the decision was that industrial disputation by staff and unions had impaired the ability of the GCHQ to discharge its function of ensuring the security of United Kingdom military and official communications and providing signals intelligence to the government. Neither the unions nor the civil servants were consulted before the minister’s decision, the minister claiming that to do so ran the risk of provoking further disruptive action inimical to the national security role of the GCHQ. The minister’s claims were supported by an affidavit by the Secretary to the Cabinet, outlining the disputation and the government’s concerns. In an action brought by the union and six civil servants to challenge the validity of the minister’s decision, the House of Lords held per curiam that, national security aside, the minister’s decision would have been invalid by reason that the minister’s failure to consult the unions was a breach of natural justice. However, the court further held per curiam that the minister’s decision not to consult was justified on the grounds of national security. The following extracts deal with two issues relevant to the justiciability of the minister’s decision: whether a decision made in exercise of a prerogative power is subject to judicial review; and the effect in law to be given by a court to a government national security claim.] Lord Diplock: Judicial review … provides the means by which judicial control of administrative action is exercised. The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ‘decision-maker’ or else a refusal by him to make a decision. To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect

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him too. It must affect such other person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law or (b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment or (ii) he has received assurance from the decision-maker they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn … For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences mentioned in the preceding paragraph. The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute; but in the absence of any statute regulating the subject matter of the decision the source of the decisionmaking power may still be the common law itself, ie, that part of the common law that is given by lawyers the label of ‘the prerogative’. Where this is the source of decision-making power, the power is confined to executive officers of central as distinct from local government and in constitutional practice is generally exercised by those holding ministerial rank. It was the prerogative that was relied on as the source of the power of the Minister for the Civil Service in reaching her decision of 22 December 1983 that membership of national trade unions should in future be barred to all members of the Home Civil Service employed at Government Communications Headquarters (GCHQ). My Lords, I intend no discourtesy to counsel when I say that, intellectual interest apart, in answering the question of law raised in this appeal, I have derived little practical assistance from learned and esoteric analyses of the precise legal nature, boundaries and historical origin of ‘the prerogative’, or of what powers exercisable by executive officers acting on behalf of central government that are not shared by private citizens qualify for inclusion under this particular label. It does not, for instance, seem to me to matter whether today the right of the executive government that happens to be in power to dismiss without notice any member of the Home Civil Service on which perforce it must rely for the administration of its policies, and the correlative disability of the executive government that is in power to agree with a civil servant that his service should be on terms that did not make him subject to instant dismissal, should be ascribed to ‘the prerogative’ or merely to a consequence of the survival, for entirely different reasons, of a rule of constitutional law whose origin is to be found in the theory that those by whom the administration of the realm is carried on do so as personal servants of the monarch, who can dismiss them at will, because the King can do no wrong. Nevertheless, whatever label may be attached to them there have unquestionably survived into the present day a residue of miscellaneous fields of law in which the executive government retains decision-making powers that are not dependent on any statutory authority but nevertheless have consequences on the private rights or legitimate expectations of other persons which would render the decision subject to judicial review if the power of the decision-maker to make them were statutory in origin. From matters so relatively minor as the grant of pardons to condemned criminals, of honours to the good and great, of corporate personality to deserving bodies of persons, and of bounty from moneys made available to the executive government by Parliament, they extend to matters so vital to the survival and welfare

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of the nation as the conduct of relations with foreign states and (what lies at the heart of the present case) the defence of the realm against potential enemies. … It has now become usual in statutes to refer to the latter as ‘national security’. My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source it should for that reason only be immune from judicial review. [Lord Diplock then observed that the grounds for judicial review could conveniently be classified as ‘illegality’, ‘irrationality’ and ‘procedural impropriety’: see 7.1.2.] My Lords, that a decision of which the ultimate source of power to make it is not a statute but the common law (whether or not the common law is for this purpose given the label of ‘the prerogative’) may be the subject of judicial review on the ground of illegality is, I think, established by the cases … and this extends to cases where the field of law to which the decision relates is national security … [His Lordship noted (a) that the Minister for the Civil Service had executive authority under the Order in Council to change the terms of employment of civil servants employed at GCHQ; yet (b) that the civil servants who were members of a trade union had a legitimate expectation that the union could represent them in negotiations with management and that the union would be consulted before this benefit was withdrawn.] The reason why the Minister for the Civil Service decided on 22 December 1983 to withdraw this benefit was in the interests of national security. National security is the responsibility of the executive government; what action is needed to protect its interests is, as the cases cited by my learned friend, Lord Roskill, establish and common sense itself dictates, a matter upon which those upon whom the responsibility rests, and not upon the courts of justice, must have the last word. It is par excellence a non-justiciable question. The judicial process is totally inept to deal with the sort of problems which it involves. [Lord Diplock went on to hold that the evidence before the court established that there was a real risk of disruptive action that would be inimical to national security if the unions were given advance notice of the decision to change the terms of employment. Lord Roskill agreed that national security justified the absence of prior consultation, noting that certain prerogative powers were not justiciable and, in some fields, executive power of necessity took precedence over judicial investigation. Lords Fraser of Tullybelton, Scarman and Brightman agreed that the action should be dismissed on the ground of national security in light of the affidavit evidence before the court.]

2.3.11C

Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274; 75 ALR 218; 14 ALD 307 Federal Court of Australia (Full Court)

[In September 1986 the Cabinet of the Commonwealth Government made a decision to nominate Stage 2 of the Kakadu National Park in the Northern Territory for inclusion in the World Heritage List. The list, established under the United Nations Convention for the Protection of the World Cultural and Natural Heritage, which Australia ratified in 1974, applied to sites of ‘outstanding universal value’. The Cabinet decision was made in the exercise of the prerogative power of the Crown, concerning Australia’s rights and obligations as a party

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to the convention. The Cabinet decision did not directly affect any existing interest of the Peko group of companies (Peko EZ) but — as explained in the judgment of Wilcox J — was disadvantageous to Peko EZ concerning the opportunity thereafter available to it to undertake mining within the existing mineral leases it held in the park. Peko EZ commenced proceedings in the Federal Court under s 39B of the Judiciary Act 1903 (Cth) to challenge the validity of the Cabinet decision on the ground, inter alia, that Cabinet had failed to give a hearing to Peko EZ in accordance with the requirements of natural justice. That claim was upheld at first instance by Beaumont J, who made a declaration that the decision of Cabinet was void. The Full Federal Court upheld an appeal by the Commonwealth on two grounds: that the decision of Cabinet was non-justiciable as to the allegation of breach of natural justice (Bowen CJ and Wilcox J); and that Peko EZ had been given an adequate opportunity of presenting a case and had not been denied natural justice (Sheppard and Wilcox JJ). The following extracts deal with the issue of justiciability. (The published judgments of the court contain a much fuller and informative discussion of the history, role and procedure of the Cabinet.)] Bowen CJ: [His Honour agreed generally with the reasons of Wilcox J, and added the following remarks:] In my opinion, subject to the exclusion of non-justiciable matters, the courts of this country should now accept responsibility for reviewing the decisions of Ministers or the Governor-General in Council notwithstanding the decision is carried out in pursuance of a power derived not from statute but from the common law or the prerogative … The decision of Cabinet on 16 September 1986 to nominate Stage 2 of Kakadu National Park for inclusion on the World Heritage List is said to be immune from judicial review because it is a decision made under the prerogative being an act done towards a nation or body under an international treaty … I have some doubt whether by reason only of its relationship to the Convention it was non-justiciable. However, the whole subject-matter of the decision involved complex policy questions relating to the environment, the rights of Aboriginals, mining and the impact on Australia’s economic position of allowing or not allowing mining as well as matters affecting private interests such as those of the respondents to this appeal. It appears to me that the subject-matter of the decision in conjunction with its relationship to the terms of the Convention placed the decision beyond review by the court. [His Honour made observations about the proceedings of Cabinet, and continued:] It is to Cabinet that the highest decisions of policy affecting Australia are brought. Often the questions arising involve intense conflict of interests or of opinion in the community. In Cabinet these conflicts have to be resolved. Decisions have to be taken in the public interest, notwithstanding that the lives, interests and rights of some individual citizens may be adversely affected by the decision. [His Honour noted that matters could be raised in a submission for Cabinet consideration, including matters raised by citizens with members of parliament.] The prospect of Cabinet itself, even by delegation, having to accord a hearing to individuals who may be adversely affected by its decisions, is a daunting one. It could bring the proceedings of Cabinet to a grinding halt … In the present case it would, in my view, be inappropriate for this court to intervene to set aside a Cabinet decision involving such complex policy considerations as does the decision of 16 September 1986, even if the private interest of the respondents was thought

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to have been inadequately considered. The matter appears to my mind to lie in the political arena … Should the Parliament ever take the step of passing an Act expressly conferring duties or powers and discretions upon Cabinet it would be time to consider whether decisions under such an enactment were open to review by the courts. In the circumstances of the present case, it is my opinion that the decision of 16 September 1986 was not justiciable … Sheppard J: [His Honour agreed with the reasons of Bowen CJ and Wilcox J, but noted that it was not necessary finally to decide whether the decision of Cabinet was justiciable. His Honour added the following remarks:] In my opinion, the Cabinet being essentially a political organisation not specifically referred to in the Constitution and not usually referred to in any statute, there is much to be said for the view that the sanctions which bind it to act in accordance with the law and in a rational manner are political ones with the consequence that it would be inappropriate for the court to interfere with what it does. Wilcox J: Amongst the issues raised by the case are two important constitutional questions which have not, apparently, been previously litigated: whether a decision of a Westminster-style Cabinet may be the subject of judicial review and whether there exists any obligation to afford natural justice to persons whose interests are likely to be affected adversely by a proposed Cabinet decision … The appellants contend that the decision under attack is immune from judicial review; that is, that the legal validity of that decision is not justiciable in a court. They state two reasons, contending that either reason individually is enough; but alternatively relying on the two reasons in combination. Those reasons are, first, the identity of the decision-maker and, secondly, the nature of the decision; namely a decision as to the exercise of the prerogative power of the Crown in connection with an international treaty … During a period of 12 months in 1981–1982 there were three Australasian decisions rejecting the doctrine of immunity from review of decisions of an Executive Council: CREENDZ Inc v Governor-General [1981] 1 NZLR 172; [Toohey 10.2.13C and FAI 11.2.17C]. In each case the power discussed was a statutory, not a prerogative, power. The effect of these decisions is … authoritatively to establish the entitlement of the courts to inquire, upon any ground, into the validity of an Executive Council decision in relation to the exercise of a statutory power. Of course, the problem of confidentiality may occasion a difficulty of proof in a particular case but, as Gibbs CJ observed in Toohey at 193, if evidence is available to make out the ground relied upon, the problem of confidentiality is no reason for declining to act upon that evidence. The respondents argue that the time has come to equate the position of Cabinet to that of the Executive Council. They point out that the reasons urged in support of the immunity of Cabinet decisions — the doctrine of ministerial responsibility, the fact that decisions often involve policy elements and the general need for confidentiality — are the very same reasons which have now been held insufficient to exclude the review of Executive Council decisions. I think that there is substance in this. If a case were found in which a statute had reposed in Cabinet — as distinct from a Minister or the Executive Council — the function of making a decision potentially affecting individual rights, it would be difficult to justify a refusal to review that decision. The general principle, referred to by Stephen J in Toohey at 204, would apply:

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Control of Government Action Unless a Parliament, acting constitutionally, can be seen from the terms of its grant of power to have excluded judicial review, the courts will, at the instance of a litigant, examine the exercise of powers so granted, determining whether their exercise is within the scope of Parliament’s grant of power. This will be so whether the grant of power be to the representative of the Crown, to a Minister of the Crown or to some other body or person.

In FAI Stephen J took the matter one step further, saying at 355 that ‘it will be the nature of the decision and its effect upon interested parties that will be decisive of the question’ whether natural justice applies, ‘rather than the fact that the vehicle for the decision is an Order in Council’. See also per Mason J at 366. [His Honour discussed some practical difficulties of challenging a Cabinet decision, including that it is a multi-member decision-making body that conducts confidential deliberations. His Honour continued:] … However, the present case involves the exercise of a prerogative power. [His Honour quoted from the judgments of Mason J in Toohey 10.2.13C and Lord Diplock in CCSU 2.3.10C, and continued:] Another important aspect of this formulation [by Lord Diplock] is its insistence upon the decision having a direct and immediate consequence. For Lord Diplock it is not enough that the decision be one which is likely to influence some subsequent decision affecting the rights, obligations or legitimate expectations of a person. The instant decision must itself have that effect. It is obvious that it will be a rare case in which a Cabinet decision satisfies the tests postulated in CCSU but I think that, in the current state of authority, it is not possible to exclude the judicial review of a decision merely because it was one made by the Cabinet, merely because it was a decision taken in the exercise of the prerogative powers of the Crown or merely because the decision combined both these characteristics. The critical matter is the nature and effect of the relevant decision. Nature and effect involve two elements: justiciability in the sense described by Lord Diplock in CCSU and, if the decision is justiciable, whether it contains some feature — for example, a relationship to national security or to international relations — which makes judicial review inappropriate in the particular case. Review in this case, and the application of the rules of natural justice It is convenient in this case to consider together two questions: whether the subject decision had the characteristics necessary for reviewability and whether it was the type of decision to which the principles of natural justice would apply. It will not always be convenient so to do. As I have pointed out, justiciability may arise because a person receives a benefit under it, whereas the application of the rules of natural justice will depend upon the question whether some person potentially suffers a detriment. But, in this case, the decision is said to be justiciable, and so reviewable, because of the detriment suffered by Peko-EZ. So, in practice, the two matters overlap. As it happens, the formulation by Lord Diplock of justiciability, quoted above, is very close to the statement by Mason J in Kioa v West (1985) 159 CLR 550 at 582–583 of the circumstances which attract the obligation of natural justice. [His Honour noted that the relevant land, being situated in the Kakadu National Park, was already subject to legal control under the National Parks and Wildlife Conservation Act 1975 (Cth). Under that Act, Peko EZ’s mining operations were restricted to its existing mineral leases and had to comply with plans of management for the park. The immediate effect of the Cabinet decision was to qualify Kakadu Stage 2 for listing on the World Heritage List, to signify the Commonwealth’s feeling of obligation to the international community to safeguard the land, and to heighten the chance that the Commonwealth would take other executive

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action, under either the National Parks and Wildlife Conservation Act 1975 (Cth) or the World Heritage Properties Conservation Act 1983 (Cth), that might have the effect of rendering mining operations unlawful.] Although both the extent and timing of any practical disadvantage is speculative, I accept, as I have indicated, that Peko-EZ suffered some disadvantage. But it does not necessarily follow that the decision fell within the categories described either by Lord Diplock or by Mason J. Decisions are made by governments every day which disadvantage individuals, but which are not justiciable and in relation to which there is no question of requiring a prior hearing of those individuals. Almost every Budget includes decisions to impose direct imposts on individuals within particular classes or who engage in particular activities. Many individuals are indirectly affected by such imposts. People are advantaged and disadvantaged by decisions to spend, or to refrain from spending, public funds. A Cabinet decision to construct, or not to construct, a public facility in a particular place may have a financially devastating effect upon individuals, some of whom may not be readily identifiable. It is true, of course, that in such cases further action may be needed to implement the Cabinet decision before any effect will be suffered; for example, the presentation to Parliament of legislation or the taking of some action by the Executive Council. But this is not a point of distinction from the present case. The decision of Cabinet to seek World Heritage listing of Stage 2 will have domestic legal significance only if it results in a proclamation under the World Heritage Properties Conservation Act or if it affects the terms of subsequent Plans of Management. The respondents’ argument is that, regardless of the absence of any direct or immediate legal consequence, the critical event — in a practical sense — is the Cabinet decision. I agree that this is likely to be so; as it is in most of the cases to which I have referred. The point is that the law has not yet reached the stage of applying the obligation of natural justice to every decision which disadvantages individuals. To do so would be to ignore the warning given by Megarry VC in McInnes v Onslow-Fane [1978] 1 WLR 1520 at 1535: ‘the concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens’. Government, at all levels, would become unworkable if there were an obligation, before making any decision which may be financially disadvantageous to an individual, to seek out and to hear all affected persons. It was for this reason that both Lord Diplock and Mason J carefully defined the types of decisions to which the obligation applies. They did so by reference to the direct and immediate effects of those decisions. For them it was not enough that the instant decision might lead to some future decision or action which would have the specified effect. So it is necessary to consider the direct and immediate effects of the Cabinet decision of 16 September 1986. [His Honour observed that the decision did not deprive Peko EZ of any present benefit or advantage, and that whatever right Peko EZ had to undertake mining in the mineral leases remained as before.] The present case did not relate essentially to the personal circumstances of any individual. It concerned a substantial area of land which the Government regarded as being of national, indeed international, significance and in relation to which many people had concerns of various types. Having regard to the nature and effect of the decision, the conclusion must be drawn, first, that it was not one having the characteristics of justiciability identified by Lord Diplock and, secondly, that it did not attract the obligation to accord natural justice to affected persons, within the test postulated by Mason J.

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Moreover, and passing to the second aspect of reviewability, although the decision had possible municipal legal significance, the decision primarily involved Australia’s international relations. Issues arising out of international relations have widely been regarded as nonjusticiable: In particular the courts have disclaimed the entitlement to adjudicate upon decisions by the Executive concerning the exercise of its treaty-making power. … In Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 229 Mason J described the possibility of the High Court’s reviewing ‘the judgment of the Executive and the Parliament that entry into a treaty and its implementation was for Australia’s benefit’ as ‘a course bristling with problems for the Court’. The present case relates to a decision to implement a treaty. It raises the same problem for the courts as a decision to enter into a treaty. The decision to nominate Kakadu Stage 2 for recognition and better protection under the existing Convention was not different in kind from a decision to enter into a treaty to secure the recognition and better protection of this part of Australia. In my opinion it should be concluded that the decision made in this case was not such as to be justiciable or to attract the obligations of natural justice.

2.3.12  The course of proceedings in Peko 2.3.11C (which included an unsuccessful application to the High Court for special leave to appeal) illustrated the significance that litigation can have even where an issue is non-justiciable. Despite the findings of the courts, the Australian Government obtained the leave of the United Nations Educational, Scientific and Cultural Organization to defer consideration of the matter for 12 months and in the interim amended s 10(1A) of the National Parks and Wildlife Conservation Act 1975 (Cth) to provide: ‘No operations for the recovery of minerals shall be carried on in Kakadu National Park.’ 2.3.13  The courts in CCSU 2.3.10C and Peko 2.3.11C (see also Mason J in Toohey 10.2.13C) reached the similar conclusion that justiciability does not turn on whether an exercise of power is statutory or prerogative in origin, but on the nature of the power being exercised or the decision being made. Consequently, while the existence of a claimed prerogative power is always reviewable (Burmah Oil Co (Burmah Trading) Ltd v Lord Advocate [1965] AC 75), some prerogative powers will be non-reviewable as to their manner of exercise, while others are justiciable as a general rule. Subsequent decisions have illustrated those categories. The existence of a prerogative/executive power was reviewed by the court in Vadarlis 17.5.4C; while the manner of exercise of a power was reviewed in R v Secretary of State for Foreign Affairs; Ex parte Everett (1989) QB 811 (refusal of a passport), Eastman v Attorney-General (ACT) (2007) 210 FLR 440 (denial of natural justice in the exercise of the prerogative of mercy), Attorney-General of WA v Marquet (2003) 217 CLR 545 (deliberative proceedings in a state parliament), Stewart v  Ronalds (2009) 232 FLR 331 (review of decisions by the Premier and the Lieutenant-Governor) and Xenophon v South Australia (2008) 78 SASR 251  (providing an indemnity for legal costs to a minister). Nevertheless, the manner of exercise of a prerogative power was regarded as non-justiciable in Coutts v Commonwealth (1985) 157 CLR 91 (removal of an airforce officer appointed at the pleasure of the Crown), and Ferdinands v  Attorney-General (SA) [2007] SASC 53 (appointment of judges to the Supreme Court). See  generally for discussion of the reviewability of prerogative powers: F Wheeler, ‘Judicial Review of Prerogative Power in Australia: Issues and Prospects’ (1992) 14 Sydney Law Review 432. 88

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2.3.14  The issue addressed in Peko 2.3.11C concerning judicial review of cabinet decisions was adverted to in South Australia v O’Shea 11.2.18C, where there was a cleavage of opinion between the views of Wilson and Toohey JJ (who inclined against natural justice applying to a cabinet decision) and Mason CJ and Deane J (who did not perceive the same obstacle). Cabinet decisions are, of course, on the periphery of many other reviewable decisions, such as Adams v  Minister for Immigration and Multicultural Affairs (1997) 70 FCR 591 (allegation that a minister had improperly acted at the direction of cabinet) and Commonwealth v Northern Land Council (1993) 176 CLR 200 (whether cabinet notebooks should be produced for inspection by the court). The relevance of national security has also been addressed by the High Court in other cases — such as Church of Scientology Inc v Woodward 8.2.9C (judicial review of ASIO decision), Alister v R (1984) 154 CLR 404 (order for production of ASIO documents), Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 (invalidation of regulation which prevented the grant of a protection visa if ASIO had assessed the person as a risk to security), and Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 (error of law for minister to ignore own process and not consider whether to raise the bar and permit a visa application for an offshore entry person with an ASIO adverse security assessment because she did not meet public interest criterion in the guidelines). A variation adopted in the Tasmanian Judicial Review Act 2000 is to provide that in a proceeding to review a decision of the Governor-in-Council ‘the respondent to the application is to be the Minister administering the enactment under which the decision was made’: s 41. 2.3.15  The conduct of international relations by government can involve many decisions and questions that are non-justiciable, such as entering into a treaty (Peko 2.3.11C) and whether the government is adequately protecting its citizens abroad: Mutasa v Attorney-General [1980] QB 114. However, in Re Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347, Gummow J cautioned that an observation of Wilcox J in Peko 2.3.11C — that ‘issues arising out of international relations have widely been regarded as non-justiciable’ — may be too broadly stated. For example, courts have adjudicated upon whether the government can repel the unlawful entry of asylum seekers into Australian waters (Vadarlis 17.5.4C), restrain a Japanese whaling company from taking whales in the Australian Whale Sanctuary adjacent to Australian Antarctic Territory in breach of an Australian Act (Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425), determine a claim for misfeasance in public office despite the argument that this would be contrary to the act of state doctrine (Habib v Commonwealth (2010) 183 FCR 62), or compulsorily remove from Australia’s contiguous zone non-citizens who would otherwise enter Australia contrary to the Migration Act 1958 (Cth): CPCF 11.3.38C at [484] (Gageler  J). The test, as Gummow  J observed, is whether there is a justiciable ‘matter’, which there will not be ‘if the plaintiff seeks an extension of the court’s true function into a domain that does not belong to it, namely the consideration of undertakings and obligations depending entirely on political sanctions’: Re Ditfort at 370. The question of whether the court’s jurisdiction is appropriately invoked is considered in Hicks v Ruddock 2.3.18C. 2.3.16  It is common nowadays that courts are asked to review government decisions with a high policy or political content that impinge directly or indirectly upon the interests of many members of the community. As the Full Federal Court has noted, ‘[t]here is no general principle that decisions which are made in the public interest and/or which are politically controversial 89

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are immune from judicial review’: Century Metals and Mining NL v Yeomans (1989) 40 FCR 564 at 587. Nevertheless, these challenges often fail on the basis that judicial review principles cannot suitably be applied to the decision under challenge. Examples include Blyth District Hospital Inc v South Australian Health Commission (1988) 49 SASR 501 (withdrawal of health services from a country hospital) and Shire of Beechworth v Attorney-General (Vic) [1991] 1 VR 325 (closure of a local courthouse). There is room for debate as to whether those decisions exemplify a doctrine of non-justiciability, or whether they illustrate merely the absence of legal error given the discretionary breadth of the power being exercised by government — or whether the result is much the same on either view. For an analysis of those issues, see C Finn, ‘The Justiciability of Government Decisions: A Redundant Concept?’ (2002) 30 Federal Law Review 239 at 242–51; M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, Thomson Reuters, Sydney, 2017, pp  122–8. Given these variables there is an additional practical issue. It may not be possible to reach a conclusion on whether the matter is justiciable until a court reaches the point at which it can make ultimate findings: Perfection Fresh Australia Pty Ltd v Melbourne Market Authority (2013) 41 VR 657 at [64] (Hansen JA). 2.3.17  In the end, there are no settled categories of justiciability. Many types of executive activity are, for one reason or another, shielded from regular judicial review by principles that, on one view, are principles of non-justiciability. For example, courts will not ordinarily review ‘prison management decisions’ (Bartz v Department of Corrective Services [2002] 2 Qd R 114), or those made by the university visitor: M v University of Tasmania [1986] Tas R 74. 2.3.18C

Hicks v Ruddock (2007) 156 FCR 574 Federal Court of Australia

[Mr Hicks was confined at Guantanamo Bay Naval Base in Cuba. He sought judicial review of a decision by the Minister for Immigration not to request his release from internment. The minister argued that there was no justiciable issue and that the Act of State doctrine required a court of one nation to abstain from hearing proceedings that might require it to pass judgment on the legality of acts of a foreign sovereign government. The court dismissed the minister’s application and ruled that the proceedings should go to a hearing. The case was settled eventually by an agreement to transfer Mr Hicks to Australia.] Tamberlin J: The two principles of Act of State and justiciability are to some extent distinct but they are interrelated in the present case. The Act of State doctrine was examined by the House of Lords in Buttes Gas & Oil Co v Hammer [1982] AC 888. In that case, there were two issues which raised questions relating to Acts of State. The first concerned the boundary of the continental shelf between former sovereign states and the second was whether there had been a fraudulent conspiracy between one of the sovereign states and Buttes to defraud in order to injure another. Having identified these two issues, Lord Wilberforce stated the principle at 938: It would not be difficult to elaborate on these considerations, or to perceive other important inter-state issues and/or issues of international law which would face the court. They have only to be stated to compel the conclusion that these are not issues

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upon which a municipal court can pass. Leaving aside all possibility of embarrassment in our foreign relations … there are … no judicial or manageable standards by which to judge these issues … the court would be in a judicial ‘no man’s land’: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say at least part of these were ‘unlawful’ under international law. The interrelation of the two principles can be seen from this extract … The decision in Buttes was considered in Kuwait Airways Corporation v Iraqi Airways Company [2002] UKHL 19; [2002] 2 AC 883, which involved a seizure by the Iraqi government of aircraft owned by Kuwait Airways Corporation. A question was raised as to whether a court in the United Kingdom in which the proceeding had been commenced could treat the matter as justiciable. After referring to the above statement of Lord Wilberforce, Lord Nicholls said at 1080–1081: In appropriate circumstances it is legitimate for an English court to have regard to the content of international law in deciding whether to recognise a foreign law … Nor does the ‘non-justiciable’ principle mean that the judiciary must shut their eyes to a breach of an established principle of international law committed by one State against another when the breach is plain and, indeed, acknowledged. In such a case the adjudication problems confronting the English court in the Buttes litigation do not arise. The standard being applied by the court is clear and manageable, and the outcome is not in doubt. That is the present case. (Emphasis added) Lord Steyn (at 1101) and Lord Hope (at 1108) made similar remarks, with the latter emphasising ‘grave … infringement[s] of human rights’ as an exception to the Act of State doctrine. [His Honour then referred to Petrotimor v The Commonwealth of Australia (2003) 126 FCR 354 in which the Full Federal Court concluded that an issue arising between Portugal and Australia concerning territorial boundaries was not justiciable.] As in the Buttes case, a question of territorial boundaries between sovereign states was the issue in Petrotimor and the circumstances in Petrotimor are quite different from those in the present case. For instance, the case did not involve a question of deprivation of personal liberty or of detention. It should be noted that Black CJ and Hill J at 369 accepted the proposition that the principles stated in Buttes as to Acts of State and judicial restraint were subject to the qualification expressed by the House of Lords in Kuwait Airways. Their Honours accepted at 372 that Kuwait Airways required a significant reading down of Buttes. Their Honours referred in particular to the speech of Lord Nicholls, and his Lordship’s endorsement of Lord Wilberforce’s statement of the principle in Buttes (extracted and discussed above). It is arguable that the necessity for ‘judicial or manageable standards’ by which to decide the issues in a given case are satisfied when those issues involve consideration of the constitutional reach of, and limitations on, executive power … Mr Hicks … submits that s 61 of the Constitution confers power on the executive to protect citizens overseas. He submits that the adjudication of the legality of actions of the executive is amenable to the Chapter III courts and the fact that those powers are exercised in relation to some aspect of foreign affairs or diplomatic negotiations does not automatically exclude the conduct of the Government from review by Chapter III courts. The question for a Chapter III court is whether the proceeding requires the extension of the court’s jurisdiction

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into areas political in nature such that it has no legal guidelines or criteria against which to make its determination. Rather than exclude certain areas — such as foreign relations — totally from judicial review, Mr Hicks submits that the proper approach is to carefully examine the particular grounds of review raised on which the specific relief is based. In the present case, the applicant submits in relation to the ground of judicial review that extraneous or irrelevant considerations have influenced the decision of the Executive not to request the return of Mr Hicks to Australia. As a consequence, that decision should be set aside and the Executive ordered to consider the question in accordance with law … In my view, neither the Act of State doctrine nor the principle of non-justiciability justify summary judgment at this stage of the proceeding. [For a discussion of the ‘act of state’ doctrine and its impact on justiciability see Justice James Allsop, ‘An Introduction to the Jurisdiction of the Federal Court of Australia’ [2007] Federal Judicial Scholarship 15.]

Justiciability in the Australian federal system 2.3.19  There is a diversity of judicial review schemes in Australia. Do principles of justiciability apply uniformly? There is often a straightforward technical answer — for example, the justiciability of prerogative decisions cannot arise under the ADJR Act, because review under that Act is limited to decisions ‘made under an enactment’: see 2.4.45. Other issues are not as straightforward and require a deeper analysis of the interplay of justiciability considerations. The following two points provide an illustration. 2.3.20  The concept of ‘matter’ as elaborated in McBain 2.3.9C is directly relevant only to the exercise of federal jurisdiction, since it is a term used in ss  75–77 of the Constitution. Even so, the definition of ‘matter’ embraces other principles that are as likely to arise in the exercise of state and territory jurisdiction, as noted in the following observation from Abebe v Commonwealth: Gleeson CJ and McHugh J: The existence of a ‘matter’ … cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability … It does mean … that there must be a remedy enforceable in a court of justice, that it must be enforceable in the court in which the proceedings are commenced and that the person claiming the remedy must have sufficient interest in enforcing the right, duty or liability to make the controversy justiciable.

2.3.21  Key defining concepts in the ADJR Act are ‘decision’ and ‘conduct’, which were construed in Australian Broadcasting Tribunal v Bond (Bond) 2.4.8C as confining the ADJR review to administrative action that is substantive and final or that has tainted the administrative process. There are no directly comparable concepts in common law judicial review. However, common law judicial review is, in essence, a jurisdiction to grant a remedy, and the criteria for granting a remedy sometimes resonate with the ADJR jurisdictional limitations. For example, the element of finality in the ADJR Act concept of ‘decision’ (as construed in Bond) compares to the principle that certiorari issues in respect of a completed proceeding: Hot Holdings Pty Ltd v  Creasy 17.2.13C. Prohibition issues to restrain a want or excess of 92

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jurisdiction (R  v Wright; Ex parte Waterside Workers’ Federation of Australia (1955) 93 CLR 528; see 17.3.2), which compares to the notion that ‘conduct’ denotes a flawed administrative process prior to a decision being made. A comparable limitation applying to the declaration is that it cannot be granted in respect of a hypothetical issue: Forster v Jododex Australia Pty Ltd 17.7.5C. Instances nevertheless occur in which a decision that is not challengeable as a ‘decision’ or ‘conduct’ under the ADJR Act is amenable to common law review: for example, Harris v Bryce (1993) 41 FCR 388 at 396, where steps along the way to make a decision as to whether there had been a breach of the Sex Discrimination Act 1984 (Cth) was not a ‘decision’ or ‘conduct’ under the ADJR Act but was reviewable under s 39B of the Judiciary Act 1903 (Cth). Illustrative of these jurisdictional complexities is Lundbeck A/S v Commissioner of Patents (2017) 154 ALD 471 in which an interlocutory decision by the Deputy Commissioner of Patents to decide jurisdictional and substantive matters together was not a ‘decision’ or ‘conduct’ under the ADJR Act. Nor was it jurisdictional error attracting s 39B(1) of the Judiciary Act 1903 (Cth). However, since there was an issue concerning the construction of a provision of the Patents Act 1990 (Cth), there was a ‘matter’ for the purposes of s 38B(1A)(c) of the Judiciary Act 1903 (Cth) and declaratory relief was available. 2.3.22  Despite the lack of consistency, in some circumstances, between the ADJR Act and common law judicial review, the ARC in Federal Judicial Review in Australia, Report No 50 2.2.9E did not recommend that the ADJR Act attempt to define specifically what matters should be justiciable. Instead the report said: The Council’s view is that there is no need to refer to the common law concept of justiciability in the ADJR Act, nor provide explicit limits of review that seek to reflect those principles. Justiciability is not a clear or certain concept, and would introduce unnecessary confusion in the ADJR Act. Rather, the Council considers that specific decisions should be assessed for exclusion from the ADJR Act on a case by case basis, according to the principles discussed in [Ch 5 of Report No 50].

JURISDICTIONAL LIMITATIONS ON JUDICIAL REVIEW Jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) 2.4.1  The legislature, in establishing a statutory basis for judicial review, is presented with the need to define the scope of executive action to be included in or excluded from the scheme of review. The resulting scheme serves also to define the jurisdiction of any court vested with the function of reviewing that executive action. Ultimately, too, those courts play an important role, from one case to the next, in elucidating the meaning of the jurisdictional words and phrases in the Act. As that suggests, it is a task that is undertaken against a backdrop of other public law considerations concerning the legitimate scope of judicial review. A brief description will be given of the scope and development of the ADJR Act scheme before some of the terms used in the Act are considered in more detail. 2.4.2  The ADJR Act confers jurisdiction on the Federal Court and the Federal Circuit Court to undertake review of ‘a decision to which this Act applies’ (s 5) and ‘conduct for the purpose 93

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of making a decision to which this Act applies’: s 6. The terms ‘decision’ and ‘conduct’ are spelt out further in s 3:2 3. (1) In this Act, unless the contrary intention appears: … ‘decision to which this Act applies’ means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1; … (2) In this Act, a reference to the making of a decision includes a reference to: (a) making, suspending, revoking or refusing to make an order, award or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a condition or restriction; (e) making a declaration, demand or requirement; (f ) retaining or refusing to deliver up, an article; or (g) doing or refusing to do any other act or thing; and a reference to a failure to make a decision shall be construed accordingly. (3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision … (5) A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation.

There are similar provisions in other judicial review statutes; ACT: Administrative Decisions ( Judicial Review) Act 1989 ss 3A, 3C, 4, 4A; Qld: Judicial Review Act 1991 ss 4, 5, 6, 8, 9; Tas: Judicial Review Act 2000 ss 4, 5, 6, 8. 2.4.3  The reference in the Commonwealth Act to Sch 1 is to categories of decision that are excluded from review under the Act; examples include decisions made by security intelligence bodies, by Commonwealth/state ministerial councils, or to do with foreign investment approval, taxation assessment, industrial arbitration, defence force discipline, or criminal prosecution. The explanation for most exclusions is either historical (for example, it was assumed at the time of enactment in 1977 that decisions of the Governor-General and ASIO would be immune from judicial review) or practical (for example, there are alternative mechanisms available for judicial review of decisions relating to taxation, industrial arbitration and criminal justice). There has been some interesting litigation on the scope of those exclusions, but little of general relevance — for example, the immunity applying to decisions of the Governor-General applies 2

The definition of ‘decision to which this Act applies’ was amended in 2000 by adding words that conferred jurisdiction on the court to review decisions made by Commonwealth officers under Commonwealth/state cooperative schemes: see ADJR Act Sch  3. The amendment did not otherwise alter the wording or substance of the definition. The definition as it appeared before the amendment is used in this text, because it is more easily understood and appeared in that form in the cases in this text.

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also to the prior advice received from a minister (Thongchua v Attorney-General (1986) 11 FCR 187), but not if that advice is a discrete statutory step that is reviewable in its own right: Attorney-General (NT) v Minister for Aboriginal Affairs (1987) 16 FCR 267. 2.4.4  The most litigated terms in the ADJR Act are ‘decision’, ‘conduct’, ‘administrative character’ and ‘under an enactment’, each of which is considered separately below. It is probable that those terms have taken on more importance as jurisdictional limitations than was envisaged. The Kerr Committee (see the ARC paper 1.4.3E) spoke of federal judicial review being ‘a general supervisory jurisdiction over administrative action … by Ministers of the Crown, public servants, statutory authorities and administrative tribunals’: p 76. The Ellicott Committee endorsed the view of the Kerr Committee, pointing out that ‘the court exercising supervisory judicial review is to be given jurisdiction in all instances’ (p 6) so as to reduce the technicality and complexity of administrative law concerning the choice of forum for instituting proceedings. The expanded definitions of ‘decision’ and ‘conduct’ in ADJR Act s 3(2), (5) reflect that approach. Be that as it may, litigation under the Act inevitably throws up questions concerning the province of judicial review that were not anticipated in the drafting of the Act. The general terms used in the Act must be fashioned to provide answers to those problems. 2.4.5  The significance the ADJR Act’s jurisdictional features have played in delineating the scope of federal judicial review has been lessened by the expansion of the Federal Court’s general jurisdiction under s 39B of the Judiciary Act 1903 (Cth): see  2.2.11. The ADJR Act features remain important nonetheless. The ADJR Act offers many procedural advantages that are not found in s 39B — the right to a statement of reasons under s 13 for decisions to which the ADJR Act applies; the flexible remedies available under s 16; the simpler procedure for commencing an action under s 11; and the procedure for a stay of proceedings under ss 15 and 15A. Another advantage is having an identified list of grounds. There are also jurisdictional complexities associated with s 39B that can lessen its attractiveness: see  2.2.7 and the ARC’s Report No 50 2.2.9E.

‘Decision’ and ‘conduct’ 2.4.6  Prior to an administrative decision being made, there will usually be a host of preliminary administrative steps — preparing the decision, assembling facts, investigating issues, analysing documents, consulting with parties and so on. Which of those steps should be judicially reviewable? On the one hand, interim administrative action can often irretrievably affect a person’s rights and interests (for example, a public announcement that a person is under investigation, or a search of a person’s premises). On the other hand, judicial review of each step in an administrative process can be problematic, by fragmenting and prolonging the process and taking issues out of context. 2.4.7  With some exceptions, the general tendency in the earlier years of the ADJR Act was to give a wide construction to words such as ‘decision’ and ‘conduct’: M Aronson, M Groves and G  Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, Thomson Reuters, Sydney, 2017, pp 71–83. The decision of the High Court in Bond 2.4.8C marked a departure from that approach. A majority of the court read both terms restrictively, holding that ‘decision’ refers to administrative activity that is substantive and final or operative; and that ‘conduct’ refers to administrative activity preceding a decision that reveals a flawed administrative process. The decision in Bond 2.4.8C has given rise to a large number of objections 95

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to the competency of proceedings under the Act. Many objections fail yet nevertheless leave their mark on federal judicial review under the ADJR Act. A selection of the issues canvassed in that litigation is given below at 2.4.9–2.4.30. 2.4.8C

Australian Broadcasting Tribunal v Bond (l990) 170 CLR 321; 94 ALR 11 High Court of Australia

[The Broadcasting Act 1942 (Cth) ss 85, 88 conferred power on the Australian Broadcasting Tribunal to conduct an inquiry into whether the holder of a commercial broadcasting licence was a fit and proper person to hold the licence, and if not, whether the licence should be revoked, suspended or have conditions imposed upon it. Mr Bond, through his shareholdings in a number of companies, was able to determine the composition of the boards of directors of companies that were the holders of commercial broadcasting licences in Queensland. The tribunal conducted an inquiry into whether, by reason of certain conduct of Mr Bond, those licensees were fit and proper persons to hold their licences. The inquiry looked at two incidents in particular. The first was a comment made by Mr Bond in an interview on a current affairs program that ‘to do business successfully in Queensland’, he had made a generous financial settlement of an unresolved defamation action by the Queensland Premier Sir Joh Bjelke-Petersen that was pending against the licensee of a television station at the time Mr Bond acquired control of it. The second was an allegation that Mr Bond had threatened to use his television station to broadcast damaging information about a business competitor (the AMP Society). In the course of its inquiry the tribunal published a statement called ‘Decision on Facts’, in which it concluded that the allegations against Mr Bond were proved and that he had given misleading evidence to the tribunal. The tribunal further concluded that Mr Bond and, because of his control of them, the licensees, were not fit and proper persons to hold broadcasting licences. The tribunal foreshadowed that in the next stage of the inquiry it would decide whether to take action against the licensees, for example, to revoke their licences. At that point Mr Bond and the companies commenced proceedings under the ADJR Act, referring to 11 separate ‘decisions’ and seven instances of ‘conduct’ by the tribunal that were allegedly in breach of a ground of review in ss 5 and 6 of the ADJR Act. The tribunal conceded that one of its findings was reviewable as a ‘decision’ (that the licensees were not fit and proper persons to hold a licence), but the High Court upheld per curiam the further contention that there was no legal error in that finding. As to the other findings and rulings of the tribunal, the High Court either held by majority that they were not reviewable as a ‘decision’ or ‘conduct’, or held per curiam that there was no legal error. (As to that latter issue, portions of the court’s judgments dealing with the law/fact distinction are extracted in 13.2.25C and 13.3.4C.)] Mason CJ: Underlying the arguments presented to this Court is a fundamental question as to the limits of the jurisdiction of the Federal Court under the ADJR Act to review conclusions, including findings of fact, which constitute elements in the chain of reasoning leading to the ultimate administrative decision or order which is the subject of the application for review. If the Federal Court lacked the necessary jurisdiction to review a particular matter before it, then the applications for review should have failed to that extent and the appeals should succeed to the extent of any excess of jurisdiction. [His Honour referred to the facts and the provisions of the ADJR Act, and continued:]

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(1) Meaning of ‘Decision’ The definition in s 3(1) does not elucidate significantly the meaning of the word ‘decision’ as is used in the ADJR Act. It is clear that a ‘decision to which this Act applies’ must be a decision of an administrative character, that it may be made in the exercise of a discretion, and that it must be made under an enactment. But these characteristics provide little guidance as to the meaning of the word ‘decision’ upon which the definition in s 3(1) is based. The word has a variety of potential meanings. As Deane J noted in Director-General of Social Services v Chaney (1980) 47 FLR 80 at 100; 31 ALR 571 at 590, in the context of judicial or administrative proceedings it ordinarily refers to an announced or published ruling or adjudication. In such a context, the word may signify a determination of any question of substance or procedure or, more narrowly, a determination effectively resolving an actual substantive issue. Even if it has that more limited meaning, the word can refer to a determination whether final or intermediate or, more narrowly again, a determination which effectively disposes of the matter in hand: see Chaney (FLR at 100; ALR at 590). … The fact that the ADJR Act is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word ‘decision’. In this respect it is significant that s 5 does not speak of ‘final decision’. It is also significant that the jurisdiction of the Federal Court to grant declaratory relief is not confined to granting relief in respect of ultimate decisions. The jurisdiction extends to questions in issue in pending proceedings: cf Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421, per Gibbs J at 438. The existence of this jurisdiction, which antedated the AD(JR) Act, suggests that the concept of a reviewable decision is not limited to a final decision disposing of the controversy between the parties. Nonetheless other considerations point to the word having a relatively limited field of operation. First, the reference in the definition in s 3(1) to ‘a decision of an administrative character made … under an enactment’ indicates that a reviewable decision is a decision which a statute requires or authorises rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decisions listed in the extended definition contained in s 3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J, ‘a determination effectively resolving an actual substantive issue’. Thirdly, s 3(3), in extending the concept of ‘decision’ to include ‘the making of a report or recommendation before a decision is made in the exercise of a power’, to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that ‘decision’ comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s 3(5) suggests that acts done preparatory to the making of a ‘decision’ are not to be regarded as constituting ‘decisions’ for, if they were, there would be little, if any, point in providing for judicial review of ‘conduct’ as well as of a ‘decision’. The relevant policy considerations are competing. On the one hand, the purposes of the AD(JR) Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of ‘decision’ is extended, there is a greater risk that the efficient administration of government will be impaired. … [T]here comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret ‘decision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.

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The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable ‘decision’ 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 and 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 provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s 3(2)(g), the instances of decision mentioned in s 3(2) are all substantive in character. Moreover, the provisions in sub-ss (1), (2), (3) and (5) of s 3 point to a substantive determination. In this context the reference in s 3(2)(g) to ‘doing or refusing to do any other act or thing’ (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. I do not perceive in s 16(1)(b) or in para (e) of Sch 1 or para (a) of Sch 2 to the ADJR Act any contrary implication. These exclusions from the ADJR Act or from s 13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them. If ‘decision’ were to embrace procedural determinations, then there would be little scope for review of ‘conduct’, a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the ‘conduct’ of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of ‘conduct’ than with the notion of ‘decision under an enactment’. The interpretation of ‘decision’ which I favour is not as broad as that preferred by the Federal Court in Lamb v Moss (1983) 76 FLR 296; 49 ALR 533. There the Full Court of the Federal Court (Bowen CJ, Sheppard and Fitzgerald JJ), after reviewing the authorities, which the Court said revealed ‘Some inconsistency’, stated (FLR at 318; ALR at 556): In our opinion, there is no limitation, implied or otherwise, which restricts the class of decision which may be reviewed to decisions which finally determine rights or obligations or which may be said to have an ultimate and operative effect. My view is more in accord with the tentative opinion … expressed earlier by Ellicott J in Ross v Costigan (1982) 59 FLR 184; 41 ALR 319 when he said (FLR at 197; ALR at 331) that ‘it may well be that the word “decision” means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person’. However, I would not wish for myself to place emphasis on the words ‘of itself’, in this statement. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made. … I agree with the Full Court in Lamb v Moss (FLR at 312; ALR at 550) in thinking that the court has a discretion whether to grant or refuse relief by way of judicial review under the ADJR Act. The references in s 16 of the ADJR Act to ‘in its discretion’ are eloquent

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on that score. Further, I agree that only in most exceptional circumstances would it be appropriate to grant relief in respect of a decision given by a magistrate in committal proceedings: (see FLR at 326; ALR at 564). The delays consequent upon fragmentation of the criminal process are so disadvantageous that they should be avoided unless the grant of relief by way of judicial review can clearly be seen to produce a discernible benefit: Yates v Wilson (1989) 86 ALR 311; 64 ALJR 140. (2) Was there a Reviewable Decision? (a) The Findings that Mr Bond would not be Found to be a Fit and Proper Person and that the Licensees were no longer Fit and Proper Persons It follows from my interpretation of the word ‘decision’ that the Federal Court had jurisdiction under s 3(1) of the ADJR Act to review the Tribunal’s finding that the licensees were no longer fit and proper persons to hold their broadcasting licences under the Act. Although that decision was an intermediate determination made on the way to deciding whether to revoke or suspend the licences or to impose conditions on them, it was a decision on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision. On the other hand, the Tribunal’s conclusion that Mr Bond would not be found to be a fit and proper person to hold a licence was not a determination for which the Act provided and was no more than a step in the Tribunal’s reasoning on the way to the finding that the licensees were no longer fit and proper persons to hold their licences. True it was an essential step in the reasoning by which the Tribunal chose to support its determination concerning the licensees, but this circumstance is not enough to invest the conclusion with the characteristics which would qualify it as a reviewable decision. I would reject the notion accepted in the Federal Court that the finding adverse to Mr Bond was a ‘decision … not authorised by’ the Act within the meaning of s 5(1)(d). For the reasons already given the finding was not relevantly a ‘decision’. [His Honour observed that it was unnecessary to examine separately whether many of the separate actions of the tribunal were a ‘decision’ or ‘conduct’, but that some of them (for example, the tribunal’s interpretation of the Act) might be examined by the court in the course of reviewing the tribunal’s finding that the licensees were not fit and proper persons to hold their licences.] (c) The Findings of Fact The next important question of principle is whether a finding of fact can amount to a reviewable decision and, if so, in what circumstances. The answer to the first part of this question does not present much difficulty. If the statute requires or authorises the decision-maker to determine an issue of fact as an essential preliminary to the taking of ultimate action or the making of an ultimate order, then it would follow from what has already been said that the determination of the issue of fact would be a reviewable decision. The decision that the licensees were no longer fit and proper persons to hold their licences was just such a determination. However, in ordinary circumstances, a finding of fact, including an inference drawn from primary facts, will not constitute a reviewable decision because it will be no more than a step along the way to an ultimate determination. Of course an ultimate determination which depends upon a finding of fact vitiated by error of law or made without evidence is reviewable: see s 5(1)(f) and (h). In such a case the finding of fact may be challenged as an element in the review of the ultimate determination. But the point remains that ordinarily a finding of fact will not be susceptible to review independently of the ultimate decision.

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Powerful considerations support the correctness of this view. The Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) provides specifically for review on the merits by the Administrative Appeals Tribunal. It is scarcely to be supposed that the Parliament, in so providing, nevertheless intended to invest the Federal Court with a similar jurisdiction under the ADJR Act, for that would be the effect of that Act if it were to confer jurisdiction to review findings of fact generally. Indeed, the concept of judicial review which finds literal expression in the title of the ADJR Act and in its operative provisions tells against the existence of such a wide jurisdiction. The expression ‘judicial review’, when applied to the traditional review functions of the superior courts in our system of justice, exercisable by means of the prerogative writs and the grant of declaratory relief and injunction, ordinarily does not extend to findings of fact as such. To expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government. Amongst other things, such a change would bring in its train difficult questions concerning the extent to which the courts should take account of policy considerations when reviewing the making of findings of fact and the drawing of inferences of fact. It follows that in my opinion the Federal Court did not have jurisdiction to review the six findings of fact … of which the respondents sought review on the footing that they were reviewable decisions. (3) Meaning of ‘Conduct’ The distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision is somewhat elusive. However, once it is accepted that ‘decision’ connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of ‘conduct’ in the statutory scheme of things becomes reasonably clear. In its setting in s 6 the word ‘conduct’ points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. Accordingly, s 3(5) refers to two examples of conduct which are clearly of that class, namely, ‘the taking of evidence or the holding of an inquiry or investigation’. It would be strange indeed if ‘conduct’ were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process. Accordingly, there is a clear distinction between a ‘decision’ and ‘conduct’ engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge. In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to ‘conduct’. That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice … This view of the relationship between a ‘decision’ and ‘conduct’ is supported by an examination of the provisions of the ADJR Act. Section 6(1) provides for a direct challenge to conduct on procedural grounds only. The other grounds of challenge set out in the

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sub-section go to the invalidity of the proposed decision to which the conduct relates. Then, it is the proposed decision rather than the conduct which is challenged; s 6 merely allows the challenge to take place before the making of the proposed decision. In other instances, conduct may only be impugned upon procedural grounds: see, for example, s 6(1)(a) and (b). Some reference must be made to s 6(1)(f) which speaks of an error of law being ‘committed in the course of the conduct’. On its face, this provision permits of review of any error of law made, for example, in an inquiry held for the purpose of making a ‘decision’. Such a review of conduct might entail a challenge to a substantive, as well as a procedural, error of law. However, this ground of review of ‘conduct’ does little to expand the ‘error of law’ ground contained in s 5(1)(f) relating to errors of law ‘involved’ in the decision. Ordinarily, if not always, an error of law made in the course of conduct engaged in for the purpose of making a decision would be an error of law involved in the decision itself: see, eg, Chan Yee Kin v Minister for Immigration (1989) 63 ALJR 561; 87 ALR 412. This ground of review does not detract, therefore, from the argument that the ADJR Act maintains a dichotomy between reviewable decisions and reviewable conduct. It follows, therefore, that substantive decisions, findings of fact and inferences from findings of fact generally are not capable of review as ‘conduct’ unless what is alleged is some breach of procedural requirements in the course of the conduct involved in reaching the relevant conclusion, although it is possible that they may give rise to subsequent conduct which is reviewable. (4) Was there Reviewable Conduct? The finding that Mr Bond would not be found to be a fit and proper person to hold a broadcasting licence was not procedural and was no more than a step in the Tribunal’s process of reasoning, and so the finding did not amount to ‘conduct’. For similar reasons the making of the findings of fact did not amount to reviewable conduct. Of all the matters relied upon by the respondents as reviewable conduct, leaving aside any of those matters reviewable as a decision or attacked as elements in a reviewable decision, only the ruling that the Tribunal was unable to, and did not, make a finding about whether the Premier threatened to harm Mr Bond’s interests in Queensland could conceivably give rise to reviewable conduct. It is, however, unnecessary to examine this question independently, as the correctness of the ruling as a matter of law can be considered as an element in the challenge to the decision that the licensees were no longer fit and proper persons to hold their licences. … [Brennan and Deane JJ both agreed with the judgment of Mason CJ; Toohey and Gaudron JJ in a joint judgment agreed that the finding that Mr Bond was not a fit and proper person to hold a licence was not itself a ‘decision’, but noted that that finding provided the foundation for the similar finding against the licensees: ‘[t]hat being so, any error attending the [finding as to Mr Bond] is necessarily involved in the Tribunal’s decision’ and must be reviewed by the court with that in mind: at 378. Otherwise, their Honours took a different approach to Mason CJ concerning the scope of administrative action reviewable under the ADJR Act, making three points. First, contrary to the view expressed by Mason CJ, they held that s 3(2)(g) of the ADJR Act (which provides that ‘a reference to the making of a decision includes a reference to … doing or refusing to do any other act or thing’) is ‘not confined to acts involving the exercise of or refusal to exercise a substantive power’: at 376. Thus, for example, the refusal by the tribunal to exercise the powers conferred by the Act to impose a condition or to impose an undertaking would be a reviewable decision. Second, an action falling within the scope of s 3(2)(g) must nevertheless be made ‘under an enactment’ to

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be reviewable. A finding would not satisfy that description if it is not itself ‘required by an enactment but merely bear[s] upon some issue for determination or some issue relevant to the exercise of a discretion. Findings of that nature are not themselves “decisions under an enactment”; they are merely findings on the way to a decision under an enactment’: at 377. Third, once a reviewable decision has been made by the tribunal: no useful purpose is served by dissecting the steps which have led to that decision and subjecting them to review as conduct unless that review is directed to the identification of some reviewable error attending the decision itself. If the decision is to stand because it is not attended by a reviewable error, review of the conclusions and findings leading to that decision to see if they were attended by some error which, ex hypothesi, was not carried into the decision so as to render it reviewable is a futile exercise.]

2.4.9  The jurisdictional issue dealt with in Bond 2.4.8C can be relevant in judicial review in three ways. First, there is the question of the time at which judicial review proceedings can be instituted: is there yet a reviewable ‘decision’ or ‘conduct’, or is it premature for proceedings to be instituted? See, for example, Edelsten v  Health Insurance Commission 2.4.22C. Second, a question of jurisdiction can arise at the conclusion of the administrative process: is any step in that process (usually the final step) a ‘decision’ or ‘conduct’ that a court has jurisdiction to review? See, for example, Peverill v Meir 2.4.32C. A third question arises when proceedings are properly before a court because a reviewable ‘decision’ or ‘conduct’ has been made: which steps in the decision-making process leading up to that decision can be separately reviewed by the court for legal error? That third question, as Toohey and Gaudron JJ explain, will usually merge with the substantive question of whether there was legal error in the decision being reviewed by the court (and see Black CJ in Curragh Queensland Mining Ltd v Daniel 13.2.26C). 2.4.10  The first two questions have given rise to many jurisdictional challenges to the competency of proceedings commenced under the ADJR Act. In addressing those challenges, courts have dwelt more often upon the test laid down by Mason CJ in Bond 2.4.8C concerning the meaning of ‘decision’, rather than upon the elaboration of that term in s 3(2). The following analysis picks up four issues that illustrate the difficult questions that can arise: see generally, M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, Thomson Reuters, Sydney, 2017, pp  76–83. (Cases focused only on the meaning of ‘conduct’ are few, because of three factors in particular: the narrow meaning given to that term in Bond 2.4.8C; the requirement of s 6 of the ADJR Act that it be ‘conduct for the purpose of making a decision’; and the prevailing view, expressed by the Full Federal Court in Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 20, that ‘conduct overtaken by a subsequent decision is not independently reviewable, but should be considered in the context of the review of the decision itself ’.) 2.4.11  A possible complication that is not squarely addressed in the following analysis is the interaction between the test laid down in Bond 2.4.8C as to the meaning of ‘decision’ (viz, a decision that is substantive and final or operative) and the test laid down in Griffith University v Tang (Tang) 2.4.50C as to the meaning of ‘under an enactment’ (viz, a decision that derives from an enactment the capacity to affect legal rights and obligations). It is possible that those 102

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tests are supplementary and consistent; equally, the reliance in both tests on general concepts of justiciability means that there will be some overlap or interaction between the tests as they are applied in future cases. Generally, see C Mantziaris and L McDonald, ‘Federal Judicial Review Jurisdiction after Griffith University v Tang’ (2006) 17 Public Law Review 1. 2.4.12  The first area of difficulty post-Bond 2.4.8C is to decide whether an action is merely ‘a step along the way in a course of reasoning leading to an ultimate decision’, or ‘a decision which is final or operative and determinative’ and ‘substantive’ (at 337); the former are not usually independently reviewable under the ADJR Act, while the latter are. Underlying this difficulty is the spectre of judicial review being commenced prematurely and interrupting the making of a decision that could appropriately be reviewed. The Judicial Review Acts of both Queensland and Tasmania confer power on a court to dismiss an application for review of an administrative proceeding, ‘in order to avoid interference with the due and orderly conduct’ of that proceeding, if ‘the balance of convenience … so requires’ and it is in ‘the interests of justice’ to do so: JR Act (Qld) s 14; JR Act (Tas) s 13. These provisions are based on ARC Report No 32 (see 2.2.35) which has not been implemented by the Commonwealth. 2.4.13  Examples of decisions in which it has been held that a preliminary step was not reviewable include Carter v Minister for Aboriginal Affairs (2005) 143 FCR 383 (advice given by the minister that he would consider whether to exercise a power granted by legislation to make a declaration of preservation of Aboriginal artifacts); Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) (2007) 97 ALD 652 (the issue to Telstra of a consultation notice as a prerequisite to the issue of a competition notice under trade practices legislation); Glasshouse Mountains Gubbi Gubbi People v Native Title Tribunal (2008) 169 FCR 13 (a letter advising that a further extension of time would not be granted for material to be submitted before a decision would be made); and Chief of Navy v Angre (2016) 244 FCR 457 (an interim ruling by a tribunal on an evidentiary issue). The fine line that can sometimes divide those examples from an ‘operative’ and ‘substantive’ step — that is, a reviewable decision — is illustrated by the following extract from the decision in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (Right to Life Association) 2.4.14C. 2.4.14C

Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50; 128 ALR 238; 37 ALD 357 Federal Court of Australia (Full Court)

[The Right to Life Association wrote to the secretary objecting that clinical trials being conducted on an ‘abortion drug’ were contrary to state law. The association requested the secretary to take action under Sch 5A(e)(ii) to the Therapeutic Goods Act 1989 (Cth), which imposed as a condition on the use of a drug in Australia that the secretary had not directed that a clinical trial of the drug be stopped as being contrary to the public interest. After considering its request, the secretary wrote to the association informing it that he would not direct that the clinical trial be stopped. The court held by majority that the secretary’s letter gave rise to a reviewable decision under the ADJR Act (although the court further held per curiam that the association did not have standing to challenge that decision: see Right to Life Association 18.3.11C at 66).]

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Lockhart J: [T]he Secretary is the guardian of the public interest under condition (e). If he becomes aware of matters or circumstances which would lead him to conclude that to conduct or continue the trial would be contrary to the public interest, how can he ignore them, even if he may have been under no duty to have made himself aware of them in the first place? But where matters and circumstances have been brought to his attention which relevantly bear on the question of the public interest and he then proceeds to form an opinion and reach a conclusion with respect to them, it seems to me that he may have made a reviewable decision under the ADJR Act. Whether he has done so or not depends very much upon the circumstances of the particular case. No general or ‘hard and fast’ rule can be laid down. In the present case, the appellant brought various matters to the attention of the Secretary bearing upon the question of the legality under State law of the conduct or continuation of the trials with respect to the drug Mifepristone. The Secretary regarded them as relevant and reached a conclusion in my view that he would not give a direction under condition (e) (ii) to stop the trials … If the Secretary had reached the opposite conclusion, namely that to continue the trials would be contrary to the public interest and that a direction should be given to stop them, and thereupon gave that direction, surely that must be a reviewable decision under the ADJR Act … Why should the position be different if the Secretary reaches the opposite conclusion, as he did in this case? … In the ADJR Act, a reference to the making of a decision includes a reference to the doing or refusing to do a relevant act or thing: ADJR Act, s 3(2)(a), (b) and (g). It was a decision which had the ‘character or quality of finality’; it was an ultimate or operative decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 336 and 338. [Beaumont J agreed that the secretary had made ‘a final and ultimate decision not to give the direction’. Gummow J dissented, holding there was no reviewable decision.]

2.4.15  A second and related area of difficulty in applying Bond 2.4.8C concerns investigation reports. Section 3(3) of the ADJR Act makes specific mention of reports and recommendations, but deems them to be a ‘decision’ only ‘where provision is made by an enactment for the making of a report or recommendation before a decision is made’. This has been construed narrowly, and applies only where ‘there is a provision in an enactment that a particular report or recommendation be made as a condition precedent to the making of a decision under that enactment or another law’: Edelsten 2.4.22C at 70; and see Eastman v Australian Capital Territory (2008) 163 ACTR 14 discussed at 2.4.18. Legislation is not always so specific, and often provides for an investigation to be prepared without spelling out what action if any is to be taken on the report. In that situation, the court is thrown back on the distinction drawn in Bond between an action that is ‘final or operative and determinative’, or ‘a mere expression of opinion or a statement which can of itself have no effect on a person’. An example is SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 in which a report under s 46A of the Migration Act 1958 (Cth), made by the Independent Merits Reviewer as to whether the minister should grant a protection visa, was not a decision since the report had no statutory or other legal force but was simply information to enable the minister to exercise decision-making powers. The distinction between those two categories, at times a fine one, is illustrated by the contrasting decisions in Kelson v Forward 2.4.16C and Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission 2.4.17C. 104

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Kelson v Forward (1995) 60 FCR 39; 39 ALD 303 Federal Court of Australia

[Section 56 of the Merit Protection (Australian Government Employees) 1984 (Cth) conferred power on the Merit Protection and Review Agency (MPRA), at the request of the minister, to inquire into and report to the minister on any matter relating to the employment of Commonwealth employees. The MPRA duly conducted an inquiry into allegations of workplace harassment at the Australian War Memorial (AWM), and prepared a report to the minister. The director and deputy director of the AWM instituted the present proceedings (in which they were successful) alleging that the AWM had breached natural justice and applied an incorrect test of harassment in preparing the report. The court held that the making of this particular report by the MPRA was a reviewable decision under the ADJR Act.] Finn J: It is not, in my view, possible to say that because a Report is made in consequence of a request under … s 56, it is or is not for that reason a ‘reviewable decision’ for ADJR Act purposes. Depending upon the terms of the request made, its subject matter, the nature of the rights and interests it is capable of affecting, and the relationship of the request to other decisions or actions in train or in contemplation, a particular Report may be capable of having any one of the three characters given to decisions by Northrop and Lockhart JJ in the Full Court of this Court in Edelsten [2.4.22C] at 68: ‘Some decisions will have real impact upon a person’s rights, privileges or obligations; some will have no such impact, whilst others are mere stepping stones which may lead ultimately to the making of a decision which does affect the person’s position.’ The nature of the Minister’s request in this case was, at the least, to establish the possible existence of workplace harassment at the AWM. If that phenomenon was found and if identifiable individuals were found to be its perpetrators (and were so reported upon) that, without more in my view, would in this instance constitute a reviewable decision — irrespective of whether the Minister considered it necessary or desirable to initiate consequential steps, whether against those individuals or otherwise; and irrespective of whether the MPRA in its Report recommended consequential measures. My reasons for this conclusion are these … There is … nothing in the legislative scheme or in the actual request made that compels the conclusion that to treat the Report as a discrete decision would itself result in ‘a fragmentation’ of such process of administrative decision-making as may have been envisaged for the matter to which the request related: cf Bond’s case at 337 per Mason CJ. The Report can properly be said to stand alone as a separate and discrete decision. That subsequent decisions may be taken in consequence of it, does not rob it of this character … [T]he Report has operative effect in that ‘of itself’ … it can have an effect on interests of the applicants that are protected by law. This effect alone would not result in the Report being a reviewable decision: cf the personal findings against Mr Bond in Bond’s case. It is the combination of the qualities of finality and of substantive determination which is necessary to produce that result: see Edelsten at 66 … [N]otwithstanding that the Report has been kept confidential to date, the ‘risk to reputation’ — cf Ainsworth [11.3.4C] at 585 per Brennan J — it poses, begins at the moment the Report is submitted to the Minister … Finally, and even if the Report is kept relatively confidential … it may nevertheless constitute a factor in subsequent decisions taken in relation to the applicants individually or

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to the AWM by those who have been made privy to its contents. Such subsequent decisions need not necessarily be linked explicitly to the Report in the sense of being based upon, or growing out of, it. It thus has the independent capacity to be the instrument of silent and/or collateral injurious affection to the applicants.

2.4.17C

Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230; 189 ALR 109; 68 ALD 107 Federal Court of Australia

[Section 28 of the Trade Practices Act 1974 (Cth) provided that a function of the commission (ACCC) was to make available to the public general information about matters affecting the interests of consumers and concerning the rights and obligations of businesses. Based on legal advice it had received, the ACCC issued two media releases (the ‘Publication Decisions’) stating that electricity suppliers could be liable under the Act for damage caused to electrical appliances by power surges. The association (ESAA), after receiving contrary legal advice and unsuccessfully urging the ACCC to correct its publicised view, commenced proceedings under, inter alia, the ADJR Act claiming that the ACCC was in breach of s 28 in publishing an incorrect statement of the law. The court, though critical of the ACCC from a public administration perspective, dismissed the ADJR action on the ground that the Publication Decisions were not a reviewable decision.] Finn J: [The Publication Decisions] did not, and could not of themselves, determine anything. They were not decisions of a substantive nature … They neither gave rights to a consumer nor imposed obligations upon a supplier, though they expressed opinions in relation to rights and obligations. They decided no factual issue. They were, and could only be, in the nature of opinion no matter how strongly and unqualifiedly expressed … [E]ven if it be assumed that the views expressed [by the ACCC] were relied upon and did influence behaviour (so enhancing the risk of claims being made against suppliers) this would not give to the Publication Decisions themselves such ‘real and practical consequences’ as would transform them into reviewable decisions. … Those consequences may have been likely effects to be expected — and even intended — from the performance of the information providing and educational functions that the Act required of the ACCC. But the heightening of the risk of consumer claims as a consequence of the provision of information and education that the Legislature intended be provided cannot reasonably be said to bestow on the Publication Decisions a determinative character … The Publication Decisions themselves changed nothing in relation to the subject matter to which they were addressed — ie the rights and obligations of consumers and suppliers in relation to damage caused by power surges. Nor did they have any operative function to perform in establishing what those rights and obligations might be in a given case: cf the ruling in … the report to the Minister in Kelson [2.4.16C]. The decisions did not in themselves have such real and practical consequences as could justify characterising them as having the ‘quality of finality’. And such likely but incidental consequences flowing from consumers etc being informed and deciding to act upon the ACCC’s published views cannot be relied upon to give the Publication Decisions this quality of finality. These were merely effects

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of the provisions of information and education. They were not hallmarks of a final or operative and determinative decision … [T]here are several additional considerations bearing on that conclusion to which it is appropriate that I refer briefly. The range of ‘decisions’ taken by the ACCC and its officers in providing information and guidance to consumers etc is so diverse and sufficiently voluminous as to raise the spectre of significant ‘disruption of the [ACCC’s] activities’ were such decisions to be characterised as ‘reviewable decisions’ for ADJR Act purposes: cf Salerno v National Crime Authority (1997) 75 FCR 133, 143. To make every such ‘decision’ examinable by the Court could put in peril the very information and educational services that the TP Act requires. For my own part, it would require significant textual and contextual considerations (which clearly are lacking here) before I would be prepared to conclude that such decisions were nonetheless properly to be characterised as reviewable decisions.

2.4.18  A gloss on the operation of this aspect of the ADJR Act can be seen in Eastman v  Australian Capital Territory. Mr  Eastman had been convicted of the murder of the ACT Police Commissioner. The ACT executive directed that an inquiry be held by the ACT Chief Justice into whether Mr Eastman had been fit to plead. Section 475 of the Crimes Act 1900 (ACT) provided that such an inquiry could be held if there was a doubt or question arising as to a person’s guilt. Section 475(4) provided that upon the report being provided to the executive ‘the matter shall be disposed, as to the Executive … shall appear to be just’. The report in this case by Miles CJ concluded that it had not been shown that Mr Eastman was unfit to plead nor that any miscarriage of justice had occurred. The ACT Court of Appeal ruled that it did not have jurisdiction under the ADJR Act to consider a challenge by Mr Eastman against the report, as a decision of the executive under s 475(4) was not itself a decision that was reviewable under the ADJR Act — it was not a decision under an enactment that conferred, altered or otherwise affected legal rights or obligations. Consequently, Miles CJ’s report to the executive did not fall within s 3(3) of the ADJR Act, which provides a report is taken to be a decision where an enactment provides ‘for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law’. 2.4.19 In Nona v Barnes [2013] 2 Qd R 528, the brother of one of those who died when a vessel was lost in the Torres Strait in 2005 sought review under the Judicial Review Act 1991 (Qld). He claimed that the State Coroner failed to send to the Director of Public Prosecutions (DPP) information relevant to the recommendation whether to prosecute those involved. That was despite a finding from the inquest that loss of the vessel and the deaths were a ‘totally avoidable disaster’ caused by people failing to carry out duties over many months. Under s 48(2) of the Coroner’s Act 2003 (Qld) the coroner ‘must give … information’ to the DPP if the coroner ‘reasonably suspects a person has committed an offence’. The application was unsuccessful as the court found that the coroner’s thought processes could not properly be regarded as a decision or a failure to make a decision. As the court observed, s 48(2) does not imply that an uncommunicated state of mind, which might change before it is acted upon, amounts to a ‘determination’. Nor did the decision confer, alter or otherwise affect legal rights or obligations ‘under an enactment’. 2.4.20 In SZQDZ v  Minister for Immigration and Citizenship (2012) 200 FCR 207 the Full Federal Court decided that the findings of an independent merits reviewer were not decisions, but recommendations and procedural steps in the course of the minister reaching a substantive decision. 107

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2.4.21  The third area of difficulty arising from Bond 2.4.8C has dealt with the need to refine the point made by Mason CJ that ‘a reviewable decision is a decision which a statute requires or authorises’. In the following extract from Edelsten 2.4.22C the court held that not every decision-making step laid down by statute will necessarily be a ‘decision’, a point also made by Finn J in Kelson 2.4.16C. Deciding at what point in the continuum preliminary action becomes a ‘decision’ requires attention to when the outcome has an adverse impact on a person’s rights or interests. 2.4.22C

Edelsten v Health Insurance Commission (1990) 27 FCR 56; 96 ALR 673; 21 ALD 710 Federal Court of Australia (Full Court)

[The Health Insurance Commission Act 1973 (Cth) and Regulations laid down a multi-step process for deciding whether a medical practitioner had claimed Medicare benefits for an excessive number of services. Dr Edelsten was under investigation, and sought judicial review under the ADJR Act of the first two steps in that process (described in the following extract as steps taken by Drs Nearhos and Dash). The court held that those steps, which were a preliminary investigation and report, were not ‘decisions’, since by themselves they resolved nothing. It was not until the preliminary reports reached a committee, which would make a report and recommendation to the minister, that a reviewable ‘decision’ was first made.] Northrop and Lockhart JJ: The rationale underlying Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 is that Parliament could not have intended the Judicial Review Act to be a vehicle for judicial review of every decision of a decision-maker under a Commonwealth enactment. Some decisions will have real impact upon a person’s rights, privileges or obligations; some will have no such impact, whilst others are mere stepping stones which lead ultimately to the making of a decision which does affect the person’s position … No rights of Dr Edelsten are affected by Dr Nearhos’ decision, nor does any ‘legitimate expectation’ arise from it. During the course of the investigations being made by Dr Nearhos, Dr Edelsten spent much time and energy in supplying information to Dr Nearhos and other officers of the Commission. This action by Dr Edelsten can be understood, but that action does not ‘constitute rights of Dr Edelsten’ in any relevant sense. Nor does that action form the basis for any ‘legitimate expectation’. Dr Edelsten was not required by law to take that action or to give any information or explanation. The legal ‘rights’ of Dr Edelsten were not affected by what the officers did. Dr Edelsten could have refused to cooperate and in so doing would not have committed any offence. For similar reasons, neither did the subsequent decision of Dr Dash to refer, as delegate of the Minister, the matter to the Committee pursuant to s 82 affect any rights of Dr Edelsten or give rise to any legitimate expectation. … It is only when the Committee reaches an affirmative view [that Dr Edelsten may have rendered excessive services] that it is required to conduct a hearing into the matter … The machinery of the Health Insurance Act then comes into operation, requiring the Committee to give notice of the hearing to Dr Edelsten and particulars of the matter to which the hearing relates (s 95); empowering it to issue summonses to Dr Edelsten and others for the production of documents and the giving of evidence at the hearing; and giving Dr Edelsten the right to legal representation at the hearing which must be conducted in private … An adverse report of the Committee pursuant to s 104 and adverse recommendation under s 105 may clearly lead to serious injury to Dr Edelsten, his livelihood and reputation.

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But the decisions of Dr Nearhos and Dr Dash are at very early stages of the administrative process for determining if Dr Edelsten has rendered excessive services, and they are no more than steps in an administrative process that may lead to an ultimate or operative determination affecting his position. In themselves the decisions of Dr Nearhos and Dr Dash are steps remote from any such consequences. Those decisions lack any quality of finality and they are not substantive determinations. [Davies J agreed that Dr Nearhos’s action was not reviewable as a decision or conduct, but held that the reference by Dr Dash was reviewable conduct ‘for it activated the duties which the Act imposed on the committee of inquiry’.]

2.4.23  An example of a case with similar findings to Edelsten 2.4.22C is Dunstan v  Orr (2008) 171 IR 135 (a report by an officer advising his opinion that another officer might have failed to fulfil his duty as an officer of the public service). By contrast, the exercise of a statutory power during the course of an investigation or adjudication was regarded as a substantive and determinative action and thus a ‘decision’ in its own right in Pancontinental Mining Ltd v Burns (1994) 52 FCR 454 (a decision by the AAT to issue a summons for documents to be produced for a hearing) and Otter Gold Mines Ltd v Forrest (1997) 47 ALD 89 (a decision to stay the operation of a decision under appeal). 2.4.24  A proposal for legislative reform of the jurisdictional scheme in the ADJR Act was put forward by the ARC in its Report No 32 (see  2.2.34). The ARC proposed that a court should have an explicit power to discontinue a proceeding that has been commenced prematurely and inappropriately: ch 3, [104] at 27. The proposal was rejected by the Commonwealth Senate, but as noted above has been taken up in Queensland and Tasmania: JR Act (Qld) s 14; JR Act (Tas) s 13. 2.4.25  For its most recent report on judicial review, Report No 50 (see  2.2.9E), the ARC received submissions both in favour and against any change to the ADJR Act concerning preliminary decisions. That led it to conclude at 98: The application of the Administrative Decisions ( Judicial Review) Act 1977 (Cth) to reports and recommendations should be dealt with in the following way: a) A report or recommendation that is made in the exercise of a power conferred by an enactment, prior to the making of a decision under that enactment, should be a decision to which the Act applies, as currently required by s 3(3) of the Act) b) A schedule to the Act that can be amended by regulation should list other reports and recommendations that are decisions to which the Act applies.

The reports which might come within the schedule were identified as those which are made by an ‘officer of the Commonwealth’, attract natural justice, and have a ‘conclusive effect for the purposes of the final decision’: at 97–98. 2.4.26  A fourth area of difficulty arises in characterising the administrative action as ‘selfexecuting’. Provisions of this kind occur when a statutory provision stipulates a penalty which applies automatically on the happening of some event. For example, a person immediately becomes liable to a fine if their car is parked alongside an expired meter: see M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, Thomson 109

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Reuters, Sydney, 2017, pp 83–5. The view taken in some cases is that the administrative application of such a provision is not a ‘decision’ made under the statute that is determinative and substantive. The better view is that generally ‘self-executing’ provisions are reviewable provided a jurisdictional fact (see 13.3.9–13.3.19) has triggered the self-executing provision. 2.4.27  As Finn J observed in Chowdhary v  Bayne (1999) 29 AAR 100, when there is a jurisdictional fact question involved in a determination of whether there can be review of a self-executing provision, the tribunal is bound to determine that question which is accordingly a reviewable decision: at 102–3. The administrative assessment of the occurrence of the precondition is reviewable under the ADJR Act: see Peverill 2.4.32C; Australian Postal Corporation v  Forgie (2003) 130 FCR 279; 76 ALD 578 (Forgie) 2.4.33; and Chowdhary v  Bayne. The issue is discussed in Century Yuasa Batteries Pty Ltd v  Federal Commissioner of Taxation (Century Yuasa) 2.4.31C. An example arose in Forgie in the context of a provision in the Safety, Rehabilitation and Compensation Act 1988 (Cth) which states: ‘Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program … the employee’s rights to compensation … are suspended until the employee begins to undertake the program’: s 37(7). The suspension action was said to be self-executing. However, the Full Federal Court concluded: [55] … certain administrative processes must precede the suspension of compensation and proceeding rights. Some officer in the determining authority must form an opinion that there has been an unreasonable refusal or failure to undertake the rehabilitation program such that s 37(7) applies … [56] … [A] conclusion that an employee has refused or failed to comply with a rehabilitation program, and that there is no reasonable excuse for such failure or refusal, has real practical effect. It is only when such a conclusion, however it is characterised, has been reached that what is said to be the self-executing aspect of s 37(7) is triggered.

2.4.28  The classification depends on an opinion being formed that the jurisdictional fact has arisen. As Gibbs J said, in the context of a financial benefit to the employer under an export incentive scheme, ‘“[w]here the Commissioner is satisfied that arrangements have been made between any persons” to meet the criteria in the scheme, the entitlement to the financial benefit “only operates if the Commissioner is satisfied and forms an opinion”’: Brambles Holdings Ltd v Federal Commissioner of Taxation (1977) 138 CLR 467 at [8]. 2.4.29  Whether a provision is self-executing is often a matter of dispute. For instance, in Coutts v  Commonwealth (1985) 157 CLR 91, Coutts was an officer in the RAAF. His employment (and termination) was ‘at pleasure’ (Air Force Regulations 1927 (Cth) reg 72), but according to the Governor-General’s order was exercised on medical grounds in accordance with the opinion of a medical officer: reg  628(1). The relevant provision in the Air Force Regulations 1927 (Cth), which the Commonwealth had argued was self-executing, stated: 628(1) Where a member … (b) is, in the opinion of the confirming medical authority, unfit for further service; …. the member shall be retired … at the earliest possible date after the opinion of the confirming medical authority has been expressed.

Despite the decision being based on medical ‘opinion’, as his appointment was ‘at pleasure’, the High Court doubted that the retirement had been based on reg  628, the 110

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claimed ‘self-executing’ provision, and found that there was no opportunity to challenge the termination since it was made ‘at pleasure’. The ARC Report No 50 (2012) (see 2.2.9E) recommended that decisions of the Governor-General relating to statutory appointments and termination decisions should continue to be excluded from judicial review under the ADJR Act by their inclusion in Sch 1: at 111. 2.4.30 In Ruddock v Taylor (2005) 222 CLR 612, Mr Taylor was a British citizen who had lived in Australia since 1996 but was not an Australian citizen. He had pleaded guilty to eight sexual offences and had served a period in prison. As a consequence his visa was cancelled and he was automatically detained in immigration detention under s 189(1) of the Migration Act 1958 (Cth) which provided: ‘If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person’. The New South Wales Court of Appeal had found that this provision was self-executing. On two occasions the decisions to cancel Mr Taylor’s visa were quashed by the High Court. He sought damages for wrongful detention on the ground that he was not ‘an unlawful non-citizen’ during his periods of invalid incarceration. Chief Justice Gleeson, Gummow, Hayne and Heydon JJ found that if ‘the detention of those who are unlawful non-citizens’ was known, a claim that their detention was unlawful would have been successful: at [26]. However, s 189(1) was also satisfied by the officer having a reasonable suspicion that the person was an unlawful non-citizen. The majority of the High Court held that this was not a self-executing provision because of the subjective nature of the assessment required by the ‘reasonably suspects’ element of s 189(1). On the facts there was evidence to support the reasonable suspicion requirement, the automatic detention was lawful, and Mr Taylor could not recover for wrongful detention. The cases need to be seen in the light of more recent High Court decisions extending the ambit of jurisdictional fact: 13.3.12ff. 2.4.31C

Century Yuasa Batteries Pty Ltd v Federal Commissioner of Taxation (1997) 73 FCR 528; 143 ALR 477 Federal Court of Australia

[The court held that a letter of demand sent by the commissioner to the company notifying it that it had incurred a late payment penalty under the Income Tax Assessment Act 1936 (Cth) (ITAA) was not an ADJR-reviewable ‘decision’. Consequently, any objection to the commissioner’s determination would have to be raised some other way, for example, as a defence to any action by the commissioner to recover the penalty.] Cooper J: The ITAA does not make either express or implied provision for the Commissioner to make a determination of the applicant’s liability to make payment of an amount equal to the … penalty for late payment … The applicant’s liability, if any, to pay that amount to the Commissioner flows from the statutory operation of … s 221YN(4) of the ITAA. Whether or not the Commissioner concludes that an amount is payable by the applicant is irrelevant to its liability in fact and at law to pay the sum to the Commissioner. Nor does the demand by the Commissioner that payment be made within 14 days of notification … alter the situation. The ITAA does not provide either expressly or impliedly that the making of the demand is a condition precedent to the liability to pay, nor that such a demand is a necessary pre-condition to the Commissioner’s entitlement to sue the applicant in a court of competent jurisdiction for the money as a debt due to the Commonwealth: s 221YR(1) of the ITAA …

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Even if the view of Lockhart J in Hutchins v DCT (1996) 65 FCR 269, 276–7 is adopted, namely that the power of the Commissioner to sue for the recovery of the amount due as a debt to the Commonwealth authorises the Commissioner to do all things reasonably necessary to recover the amount and thereby characterises the demand as a decision of an administrative character made under an enactment, that does not of itself make the demand a reviewable decision. The decision to seek to recover an amount equal to the … penalty for late payment from the applicant, and the demand for payment of the same amount within 14 days, is not a substantive determination. It determines nothing. As such, the decision lacks a necessary characteristic of a reviewable decision: Bond at CLR 337; Hutchins at FCR 274, 277. Nor does the demand have any practical effect on the applicant. If the demand is not met by the applicant because of an erroneous view that it is not liable to make the payment, any liability for additional tax for late payment arises from the operation of the ITAA and not in consequence of any reviewable decision of the Commissioner.

2.4.32C

Peverill v Meir (1990) 20 ALD 491; 95 ALR 401 Federal Court of Australia

[The court rejected an argument that no ‘decision’ was made by the Health Insurance Commission in deciding that a pathology service did not qualify for the payment of Medicare benefit under one of the schedules to the Health Insurance Act 1973 (Cth).] Burchett J: The respondents submit … that the decision of the assessing officer … was not ‘a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment’ within the meaning of s 3(1) of the Judicial Review Act. It was, so it is said, but an application of the statute to the facts; no decision was required, since the terms of the Act dictated the answer. But this argument, in my opinion, mistakes the true nature of administration. A decision has always had to be made about facts, before a rule could be applied to them. The Judicial Review Act, as is made express in the passage I have quoted from s 3(1), is not concerned only with discretionary decisions; it is also concerned with decisions that are ‘required to be made’. The ascertainment of the facts may lead to some ruling or determination upon some question posed by an Act. At least where the determination issues in some action, or in a refraining from some action, there may be seen to be a decision … The breadth of what the Judicial Review Act means by the making of a decision is further emphasised by the open-ended ‘definition’ in s 3(2), paras (a) and (g) of which could be readily applied to the present case. The Health Insurance Act 1973 specifies detailed criteria to be fulfilled by pathologists, and creates rights to receive payments by reference to those criteria … [W]hat is implicitly contemplated by the statutory scheme is that the Commission will decide what was the character of a particular service performed and whether the requirements for entitlement to a particular fee have been satisfied. In deciding these matters the Commission exercises a ‘statutory function of making a determination’.

2.4.33  Preliminary rulings on questions imposed by statute, as in Lamb v Moss & Brown (1983) 5 ALD 446, have been accepted as being of an ‘administrative character’: Von Stalheim v Anti-Discrimination Tribunal [2013] TASSC 24. A similar conclusion as in Century Yuasa 112

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2.4.35

2.4.31C has been adopted in other cases, including Whim Creek Consolidated v Colgan (1991) 31

FCR 469 (concerning a provision in customs legislation specifying when goods are forfeited). By contrast, in Forgie the Full Federal Court held the application of s  37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) resulted in a reviewable ‘decision’. Section 37(7) provided: Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act … are suspended until the employee begins to undertake the program. Black CJ, Merkel and Stone JJ: The question is whether it is correct to conclude that what are said to be the self-executing aspects of s 37(7) deprive the processes required for the application of s 37(7) of any relevant decision-like character … [We] fail to see  how action to suspend payments, or to stop any proceedings under the SRC Act, can be taken otherwise than by following a decision of the determining authority that the requisite conditions are met, that steps to stop payments should be taken and that a record of the suspension of rights to institute or continue proceedings in relation to compensation should be made on the employee’s file. … Some officer in the determining authority must form an opinion that there has been an unreasonable refusal or failure to undertake the rehabilitation program such that s 37(7) applies. In cases such as the present, a conclusion that an employee has refused or failed to comply with a rehabilitation program, and that there is no reasonable excuse for such failure or refusal, has real practical effect. It is only when such a conclusion, however it is characterised, has been reached that what is said to be the self-executing aspect of s 37(7) is triggered … Moreover, as was agreed in argument, in whatever way the process of arriving at a reasonable excuse is to be characterised, ordinary administrative law principles are not excluded. Thus, the process — whatever it should be called — is one that would have to be undertaken in good faith, taking into account only relevant considerations and in accordance with procedural fairness obligations, etc.

‘[D]ecision … of an administrative character’ 2.4.34  The expression ‘administrative character’ is not defined in the ADJR Act. At an early stage the Federal Court rejected arguments to the effect that there were special categories of executive activity that were not appropriately described as ‘administrative’. Thus, for example, the court held that the term applied to the examination of students (Evans v Friemann (1981) 3 ALD 326), personnel promotion decisions (Hamblin v Duffy (1981) 3 ALD 153), dismissal of an employee (Burns v Australian National University (1982) 40 ALR 707), evidentiary and procedural rulings by a royal commission (Lloyd v Costigan (1983) 48 ALR 241), and decisions and rulings of the AAT: Pancontinental Mining Ltd v Burns (1994) 52 FCR 454 at 462–3. 2.4.35  How, then, is ‘administrative’ to be defined? The approach taken has been to define the term in the context of the three-way distinction between legislative, executive (administrative) and judicial power. In effect, the approach has been to ask whether the action under challenge is ‘legislative’ or ‘judicial’, and if not, by deduction it is ‘administrative’. As Ellicott J observed in Burns v Australian National University (1982) 40 ALR 707 at 714, the term administrative 113

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‘is at least apt to describe all those decisions, neither judicial nor legislative in character, which Ministers, public servants, government agencies and others make … in executing or carrying into effect the laws of the Commonwealth’. This approach was endorsed in the joint judgment in Tang 2.4.50C: Gummow, Callinan and Heydon JJ: The second element of the definition … is the expression ‘of an administrative character’. The evident purpose here is the exclusion of decisions of a ‘legislative’ or ‘judicial’ character. The instability of the distinctions which the statute thus preserves may be appreciated by regard to two Federal Court decisions … Queensland Medical Laboratory v  Blewett and Federal Airports Corporation v  Aerolineas Argentinas [see Aerolineas 2.4.39C].

On the distinction between administrative and legislative, see  also Jagroop v  Minister for Immigration and Border Protection (2016) 241 FCR 461. 2.4.36  As Fox ACJ observed in Evans v Friemann (1981) 35 ALR 428, after referring to the threefold distribution of powers in the Constitution: … It has in fact proved very difficult, virtually impossible, to arrive at criteria which will distinguish in all cases the three concepts I have mentioned. They at times overlap … … The Act refers to decisions of an administrative character. It is the character of the particular decision which is to be examined. Often this will present no difficulty. On the other hand, the words used do suggest an analytical approach, and this may present serious difficulties … If a strictly analytical approach were to be adopted there would, it seems, be a hopeless proliferation of categories … I believe that it is possible to become too theoretical about the definition.

2.4.37  Courts have recognised that there is little to be gained by defining ‘administrative’ narrowly, bearing in mind that legislative and executive action is customarily amenable to judicial review at common law. Moreover, under the ADJR Act the validity of an administrative decision can be challenged on the ground that it has no legislative support, for example, because the decision was made pursuant to a regulation that is itself invalid: Magno v Minister for Foreign Affairs and Trade (1992) 35 FCR 235. Equally, the validity of a legislative instrument can be challenged under s 39B of the Judiciary Act 1903 (Cth): see Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (Roche) 2.4.40C. In short, the term ‘administrative character’ does not raise any obvious jurisdictional issue. As the ARC observed: ‘The restriction of the Act to review of administrative decisions is probably due largely to the fact that the terms of reference of the Kerr Committee were confined to administrative decisions’: Report No 32 at 94 (see 2.2.35). 2.4.38  In applying the distinction between legislative, executive and judicial action, courts have frequently acknowledged that the categories overlap and that the characterisation of any function takes colour from the context in which it is exercised, including the legislative provisions and the particular circumstances of the decision. There are guiding principles, but no fixed rules or categories. This is illustrated by the following two cases, where the instrument was held to be administrative in Aerolineas 2.4.39C, yet legislative in Roche 2.4.40C.

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2.4.39C

2.4.39C

Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582; 147 ALR 649; 50 ALD 54 Federal Court of Australia (Full Court)

[Section 56(2) of the Federal Airports Corporation Act 1986 (Cth) provided that ‘the Corporation may, from time to time, make determinations fixing or varying aeronautical charges and specifying the persons by whom the charges are payable and the times when the charges are due and payable’. The FAC made a determination in 1991 imposing a landing charge for large aircraft landing at major city airports in Australia. In the present proceedings, commenced by 38 airline users who contested the validity of the charge, the Full Federal Court held that the determination of the FAC was administrative in character.] Lehane J (Beaumont and Whitlam JJ concurring): The principle for which the airlines contend is substantially that stated in de Smith, Woolf and Jowell, Judicial Review of Administrative Action 5th Ed 1995 at 1006: A distinction often made between legislative and administrative acts is that between the general and the particular. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy of expediency or administrative practice. The learned editors however continue: Since the general shades off into the particular, to discriminate between the legislative and the administrative by reference to these criteria may be a peculiarly difficult task, and it is not surprising that the opinions of judges as to the proper characterisation of a statutory function is at variance. Similarly, the pithy statement of Latham CJ in Commonwealth v Grunseit (1943) 67 CLR 58 at 82: The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases is preceded by the acknowledgment that it is ‘not always easy to draw this distinction’. [Lehane J noted the arguments in support of the contention that the 1991 determination was legislative in nature: it was ‘of general application’; ‘it created enforceable obligations binding on all’ airline users; it ‘changed the content of the law, both by the general imposition of charges not otherwise payable but also … by imposing a penalty on those who failed to pay the charges’; the determination had to be published and could be disallowed by the minister; and a charge imposed by a determination would be no different to a charge imposed under the Act by a by-law or regulation. His Honour referred to other cases, and continued:] If there is anything that the authorities make plain … it is that general tests will frequently provide no clear answer. … There is no escape, in my view, from the need to examine closely the particular provisions and the particular circumstances …

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It is significant, in my view, that the Corporation carries on a business undertaking, albeit a government enterprise, the conduct of which is in significant respects subject to ministerial direction. Among other things, it is expected to earn a reasonable return on its assets, to pay reasonable dividends to the Commonwealth and to perform its functions in accordance with sound commercial practice (subs 7(2) paras (g), (h) and (j)). It is to have a corporate plan (s 37) which is to include financial targets and ‘performance indicators’ (ss 38, 39). It has a capital (ss 43, 44) and may borrow either from the Commonwealth (s 47) or from others (s 48). It may give security (s 50) and may enter into hedging contracts in relation to its loan liabilities (s 54AB). It may invest (s 54A) in government securities, on deposit with a bank or ‘in any other manner that is consistent with sound commercial practice’. It is contemplated that it may have subsidiaries (ss 10, 55). In short, although a government undertaking, it is clearly also intended to be a commercial one. It is in that context, in my view, that s 56 must be seen. An aeronautical charge fixed under that section is a charge for or in respect of the use by an aircraft of a Federal airport (that is, generally, one the site of which is vested in the Corporation: s 28) or services or facilities provided by the Corporation; the charge is not to exceed an amount reasonably related to the expenses incurred by the Corporation in relation to the matters in respect of which the charge is payable. In other words, the charges are, essentially, to be fees for services and are to bear a reasonable relationship to the cost to the Corporation of providing those services. Certainly, the Corporation is not left to rely on a contract: the charges which it fixes are recoverable under the statute and the statute fixes a penalty (by way of a substantial interest charge) where charges remain unpaid after 28 days. But that cannot determine the answer to the question whether a determination fixing a charge is a legislative or administrative act. Once it is accepted — as I have already indicated I think it must be — that the fixing, in the exercise of a power conferred by statute, of a charge payable by all those who choose to use the facilities or services in respect of which the charges imposed may, in appropriate circumstances, be regarded as an administrative act, then in my view it is clear on which side of the line the 1991 determination falls. It is a determination made by the Corporation in the course and for the purpose of its commercial operation: that is, in the execution or administration of the FAC Act.

2.4.40C

Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451 Federal Court of Australia

[The Therapeutic Goods Act 1989 (Cth) conferred power on the National Drugs and Poisons Schedule Committee to decide what drugs could be listed on the Poisons Standard. A drug listed in Appendix H of the Standard could be sold without prescription; that is, it could be advertised for direct sale to consumers. Acting on a complaint from the Australian Medical Association and the Australian Consumers Association and others, the Committee decided under s 52D(2) of the Act to remove from the Standard a weight-control drug, Orlistat, that had been advertised on the television program Australian Idol. Roche Products Pty Ltd, which manufactured the drug, challenged that decision under the ADJR Act. The court held that a decision by the Committee to amend the Poisons Standard was a decision of a legislative character, and accordingly was not reviewable under the ADJR Act.]

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Branson J: The ADJR Act authorises judicial review of administrative decisions only. For this reason, to the extent that Roche claims relief under the ADJR Act, it is necessary for the Court to be satisfied that an exercise of the power of the Committee under s 52D(2) of the Act to amend the current Poisons Standard gives rise to a decision of an administrative character. As the Full Court observed in RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185 at 194 at [40], there is no simple rule for determining whether a decision is of an administrative or legislative character. At 194 at [44] the Court cited the following passage from the judgment of the Full Court in Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 at 265: ‘The distinction is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases: Commonwealth v Grunseit (1943) 67 CLR 58’ … In reaching a decision as to whether in exercising its powers under s 52D(2) of the Act the Committee was acting legislatively or administratively, it is necessary to have regard to considerations traditionally regarded as relevant for this purpose. Nonetheless, the task ultimately is an evaluative one; a judgment must be made taking into account all relevant considerations, but no single consideration is likely to be decisive … In Visa International Services Association v Reserve Bank of Australia (2003) 131 FCR 300 at 424 at [592] Tamberlin J summarised the matters which were regarded as relevant … as follows: • Whether the decisions determined rules of general application or whether there was an application of rules to particular cases. • Whether there was Parliamentary control of the decision. • Whether there was public notification of the making of the regulation. • Whether there has been public consultation and the extent of any such consultation. • Whether there were broad policy considerations imposed. • Whether the regulations could be varied. • Whether there was power of executive variation or control. • Whether provision exists for merits review. • Binding effect. In this case I have found the following considerations, each of which tends to suggest that an exercise of power under s 52D(2) is legislative in character, to be significant. First, the inclusion of a substance in a particular schedule of the Poisons Standard, or an appendix thereto, determines the future lawfulness of conduct in relation to that substance. [Her Honour listed some relevant provisions of the Act.] That is, a decision under s 52D determines the content of rules of general application. Secondly, although a sponsor of therapeutic goods may initiate the process which leads to a decision under s 52D(2), any decision made under the subsection will apply to the substance in general, not merely to the substance when manufactured or supplied by that sponsor. Thirdly, public consultation is an important element of the process that leads to a decision under s 52D(2) … Fourthly, the Poisons Standard is an important element of a national system of controls relating to the quality, safety, efficacy and timely availability of therapeutic goods. It is also intended to, and does, form part of a framework for the States and Territories to adopt a uniform approach to the control and regulation of poisons in Australia … Section 52B(3) of

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the Act, which provides that the Commonwealth, each State, the Northern Territory and the Australian Capital Territory are each entitled to nominate a representative on the Committee, is plainly intended to assist the achievement of uniform, national regulation of substances included in the Poisons Standard. … As indicated above, decisions under s 52B(2) have significance not only under the Act and Regulations but also under legislation enacted by the States and Territories to regulate the availability of therapeutic goods and poisons … Not surprisingly in this context, the matters to which the Committee may have regard in exercising its power under s 52D(2) include broad policy considerations concerning public health. Moreover, having regard to this statutory framework it would be surprising if the legislature did not intend that the jurisdictional members of the Committee should be free, particularly on controversial issues, to advance the views of their respective governments on the matters identified in s 52E(1). This is particularly the case, in my view, since the jurisdictional members include persons nominated by agencies of another sovereign polity, namely the New Zealand Government. Fifthly, there is no provision for merits review of the decision of the Committee — other than by the Committee itself … Finally, as mentioned above, decisions under s 52B(2) are required to be published in the Gazette and, subject to the special positions of the jurisdictional members of the Committee, are not amenable to executive variation or control. … In particular, I regard it as significant that s 52E(1)(i) requires the Committee to take into account ‘any other matter that the Committee considers necessary to protect public health’. Considerations necessary to protect public health, as the paragraph recognises, includes risks, whether imminent or long term, of death, illness or injury from the use of the substance in question but may extend beyond these considerations. Taken together, the matters identified in s 52E(1) call for the evaluation of broad policy considerations touching upon an important area of public administration. I accept that the failure of the legislature to provide for disallowance by Parliament of decisions made under s 52D(2) of the Act is a factor which tends in favour of a finding that the decisions are administrative, rather than legislative, in character (Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100 at 110). … Nonetheless, no single consideration is determinative of the proper characterisation of an exercise of power under s 52D(2). I conclude that an exercise of power under s 52D(2) of the Act is legislative, rather than administrative in character. For this reason the application in this matter is incompetent to the extent that it seeks to invoke the jurisdiction of the Court under the ADJR Act. [Her Honour went on to hold that the court could judicially review the amendment of the Poisons Standard under s 39B(1)(c) of the Judiciary Act 1903 (Cth), but found that the amendment was valid.]

2.4.41  Prior to Roche 2.4.40C, and contrary to the argument presented to the court, the view within government was that the Poisons Standard was an administrative and not a legislative instrument. Accordingly, the standard was not listed on the Federal Register of Legislative Instruments, established by the Legislative Instruments Act 2003 (Cth). The failure to register the standard meant that it was not enforceable (ss 31, 32), and it was deemed to have been repealed: s  30. A new Poisons Standard had to be made and registered, and the Therapeutic Goods Act 1989 (Cth) amended retrospectively to validate the former standard. In Seafish Tasmania Pelagic Pty Ltd v Minister for Sustainability, Environment, Water, Population and Communities (No  2) (2014) 140 ALD 142 Logan  J found that ministerial declarations 118

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under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) prohibiting the vessel, the Abel Tasman, from operating in a fishery zone managed by the Commonwealth, or operating as a ‘floating freezer’ for other ships, was legislative, not administrative and hence not subject to judicial review. 2.4.42  The ADJR Act cases holding that a determination was legislative rather than administrative in character have commonly fastened on the general nature of the determination in question. Examples include Schwennesen v Minister for Environment and Resource Management (2010) 176 LGERA  1 (decision of the minister to draft a resource operation plan for the Condamine and Balonne Rivers), Queensland Medical Laboratory v Blewett (1988) 16 ALD 440 (a variation of a pathology fee service table), and Central Queensland Land Council Aboriginal Corporation v Attorney-General (Cth) (2002) 116 FCR 390 (determinations made under the Native Title Act 1993 (Cth) that specified the criteria for the grant of mineral licences). Aerolineas 2.4.39C, by contrast, provides an example of a determination of general application that was held to be administrative in nature. To the same effect was the decision of the Queensland Supreme Court in Braemar Power Project Ltd v The Chief Executive, Department of Mines and Energy [2008] QSC 241, arising under the Queensland JR Act. The court held that a decision of the chief executive to set a Queensland Usage Factor (QUF) as an incentive to produce gasfired power was a decision of an administrative and not a legislative character. An influential factor was that the decision was ‘largely a mathematical exercise’ and there was an ‘absence of policy considerations in fixing a QUF’. The discretion of the chief executive to base a QUF on estimates rather than existing facts was nevertheless ‘a discretion as to the execution of a law rather than a discretion to decide what the law shall be’: at [24]. In an extensive discussion of the case law in Applied Medical Australia Pty Ltd v Minister for Health (2016) 246 FCR 555, the Federal Court held that a decision to make a set of medical benefit insurance rules was a decision of a legislative character, as too was a decision to vary or revoke those rules; by contrast, a decision to reject an application to make a new rule or variation, or to include (or not include) a new product in a list in the rules, was a decision of an administrative character. 2.4.43  Other cases have warned that the generality or particularity of a decision is by itself an unsafe guide as to whether it is legislative or administrative. For example, in Minister for Industry and Commerce v Tooheys Ltd (1982) 4 ALD 661 at 666, the Full Federal Court observed that: ‘The capacity of by-laws, like regulations, orders and rules, to assume either a legislative or an administrative character, is well recognised’. Likewise, in Queensland Medical Laboratory v Blewett (1988) 16 ALD 440 Gummow J eschewed the proposition that: … to qualify as a law, a norm must formulate a rule of general application. The concept of law as a general command was a feature of Austinian positivism … ‘individual norms’ which apply only to the action of a single person on a single occasion may still be classed as laws.

2.4.44  The divide between decisions of an administrative and judicial nature can be equally hard to draw. Cases that have classified decisions as being judicial rather than administrative are Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34 (a registrar deeming an action to be abandoned in accordance with the court rules), and Jomal Pty Ltd v Commercial & Consumer Tribunal [2009] QSC 3 (an adjudication by the tribunal). A contrasting decision is Anti-Discrimination Commissioner v Acting Ombudsman (2003) 11 Tas R 343, holding that a decision by the chairperson to reject a complaint was administrative not judicial, because it was 119

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not made by a magistrate, the tribunal was not a court, third parties were not directly affected, and the decision was to not conduct an investigation. The relevant case law is summarised in Manolakis v District Registrar, South Australian District Registry, Federal Court of Australia (2008) 170 FCR 426. In Kosteska v Webber [2010] QCA 138 the Queensland Court of Appeal rejected an argument that decisions made by the Magistrates Court were not judicial. Similarly in Kentish Council v Wood (2011) 21 Tas R 59 the decision by the Tasmanian Anti-Discrimination Tribunal that a complaint of discrimination was substantiated, and the decision to order the payment of compensation, were decisions of a judicial character, not of an administrative character.

‘[D]ecision … made … under an enactment’ 2.4.45  The most direct effect of this restriction is to exclude review under the ADJR Act of non-statutory decisions, such as decisions made under executive and prerogative power (see Ex-Christmas Islanders Assoc Inc v Attorney-General (2005) 149 FCR 170), and decisions made under contracts to which a government agency is a party: ANU v Burns (1982) 43 ALR 25 2.4.53. The explanation for the restriction is probably to be found in two factors — the prevailing assumption, at the time the ADJR Act was enacted, as to the restricted province of judicial review; and the uncertainty then and since about explicitly applying a judicial review code to decisions for which there are no legislative guidelines on how the decision is to be made. 2.4.46  Two issues have been prominent in litigation under the ADJR Act: what is an ‘enactment’ and when is a decision made ‘under’ that enactment? As the discussion will show, there is an overlap in the answers to both questions. 2.4.47  As to the first issue, ‘enactment’ is defined in s  3(1) of the ADJR Act to mean a Commonwealth Act and ‘an instrument (including rules, regulations or by-laws) made under such an Act’. It is therefore clear that ‘enactment’ includes subordinate legislation. But what is meant by the broader term ‘instrument’? Does it include any or all of the large number of government documents, policies and manuals that are sourced, directly or indirectly, in legislation, some of which are listed on the Federal Register of Legislative Instruments under the Legislative Instruments Act  2003 (Cth)? The guiding principles, which strike a middle course, were laid down early by the Full Federal Court in Chittick v Ackland (1984) 1 FCR 254. The court held that, on the one hand, the term ‘instrument’ is apt to include documents of an administrative as well as a legislative character, since even ‘rules, regulations and by-laws’ can have that dual character: see Minister for Industry and Commerce v Tooheys Ltd (1982) 4 ALD 661 at 665. On the other hand, not all administrative documents are caught by the term, but only those which satisfy the following three requirements: Lockhart and Morling JJ: [F]or a document to answer the description of an instrument made under an Act … it must first be a document made ‘under’ an Act … The word ‘under’, in the context of the Judicial Review Act, means ‘in pursuance of ’ or ‘under the authority of ’: see Evans v Friemann (1981) 35 ALR 428, per Fox J (at 436) … Further, for a document to be an instrument for the purposes of s 3(1) it must be a document under which decisions of an administrative character may be made. We think that some additional quality is required to give a document the status of an instrument for the purpose of s 3(1) … We agree with the following passage from the judgment of Ellicott J in Burns v Australian National University (1982) 40 ALR 707 (at 716–17) with which Bowen  CJ and Lockhart  J agreed on appeal: ‘The clear object 120

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of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment on Ministers, public servants, statutory authorities and others.’ … [T]o qualify as an instrument for the purposes of the Judicial Review Act the document must be of such a kind that it has the capacity to affect legal rights and obligations.

The principles are consistent with subsequent case law relating to statutes: see Tang 2.4.50C. Applying those principles, the court in Chittick held that a document made by the Health Insurance Commission setting out the terms and conditions of employees of the commission was an instrument that fell within the term ‘enactment’. The critical features were that the document was made pursuant to statute, it governed the employment of staff either as a supplement or as an alternative to contractual terms of engagement, and it could be changed unilaterally by the commission from time to time. 2.4.48  In many other cases applying Chittick, the conclusion has been reached that a document lacked one or more of those features and accordingly was not an ‘instrument’ — for example, Australian National University v Lewins (1996) 68 FCR 87 (a university policy on the criteria and procedures for promotion of staff ), and Eastman v The Hon Besanko J [2009] ACTSC 70 (decision not to grant an inquiry under s  425 of the Crimes Act  1900 (ACT) since the decision did not have the capacity to affect rights). Chapmans v  Australian Stock Exchange Ltd (1996) 67 FCR 402 provides another, but different, illustration. The court held that a decision by the Australian Stock Exchange under its rules (‘listing requirements’) to delist a company from trading on the exchange was not a reviewable decision made under an instrument. It was not enough, the court held (at 409), that the exchange, originally a private body which had made rules with contractual force among members, had been given statutory recognition by the Securities Industry Act 1980 (Cth). 2.4.49  The second requirement, that a decision be made ‘under’ an enactment, has been construed in a similar manner, as requiring a link between the decision to be reviewed and a power conferred by an enactment to make that decision. The way in which that link has been expressed has varied over time, as noted in the cases discussed in Tang 2.4.50C. The test adopted in Tang is that a decision will only be made ‘under an enactment’ for ADJR purposes if it ‘derive[d] from the enactment the capacity to affect legal rights and obligations’ (at 124 (Gummow, Callinan and Heydon JJ)) or ‘took its legal force or effect from statute’: at 110 (Gleeson CJ). An important gloss on that test, adopted in Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 and affirmed in Tang, is that the power to make the decision need not be spelt out precisely in the enactment, but can be implied. In Mayer it was held that a decision to refuse refugee status was made ‘under an enactment’ because s 6A of the Migration Act 1958 (Cth) impliedly conferred upon the minister a power to make such a determination. 2.4.50C

Griffith University v Tang (2005) 221 CLR 99; 213 ALR 724; 79 ALJR 627 High Court of Australia

[Ms Tang was a postgraduate student at Griffith University. A committee of the university made a decision that she had engaged in academic misconduct, namely presentation of falsified or improperly obtained data, and that she was excluded as a PhD candidate. She sought judicial review of that decision under the Judicial Review Act 1991 (Qld). The High Court held by

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majority that the action should be dismissed on the basis that the decision to exclude her was not a decision made ‘under an enactment’, principally the Griffith University Act 1998 (Qld).] Gleeson CJ: The Griffith University Act 1998 … provides that the functions of the appellant include providing education at a university standard, providing facilities for and encouraging study and research, providing courses of study and instruction, and conferring higher education awards (s 5). That Act gives the appellant all the powers of an individual, including the power to enter contracts, acquire and deal with property, fix charges and other terms for the services it supplies, and do anything necessary or convenient in connection with its functions (s 6). The appellant’s governing body is a Council, which has wide powers to manage the University’s affairs (ss 7, 8, 9). It may delegate its powers to an appropriately qualified committee (s 11). The Council is empowered to make university statutes, which may cover, among other things, the admission, enrolment and disciplining of students and other persons undertaking courses, fees, and the making and notifying of university rules (s 61). There are no such statutes of relevance to this appeal. [His Honour explained that the University Council had established an Academic Committee that had made policies on academic misconduct and student grievances and appeals, and these had been applied by a sub-committee in excluding Ms Tang from PhD candidature.] There is nothing in the Griffith University Act which deals specifically with matters of admission to or exclusion from a research programme or any course of study, academic misconduct, or intra-mural procedures for dealing with issues of the kind that arose in the case of the respondent. The powers that were exercised in establishing policies and procedures relating to research higher degrees, academic standards, investigation of alleged academic misconduct, and exclusion from programmes, all appear to flow from the general description in s 5 of the Griffith University Act of the University’s functions, the general powers stated in s 6 and the general power to do anything necessary or convenient in connection with those functions, and the powers of the Council as the University’s governing body, including its powers of delegation. … The structure of the Griffith University Act follows a familiar form. In all Australian jurisdictions there are statutes which establish or incorporate particular institutions, such as schools, or hospitals, or universities, or charitable organisations, describe their functions, confer on them powers appropriate to those functions, and provide for their governance. Whatever the principal functions of such an institution may be, the statute by which it is established ordinarily confers upon some governing authority general powers appropriate to the discharge of those functions. It does not follow that any administrative decision made in the exercise of those powers is a decision made under the relevant enactment for the purposes of the ADJR Act, or legislation expressed in the same terms … The case was argued on the assumption that the appellant was entitled to invoke and apply its policies in relation to academic misconduct, and its procedures for deciding whether academic misconduct had occurred and for internal review of such a decision. The precise legal basis of that common assumption was not examined in argument. There is no reason to doubt that the assumption is correct. There is a dispute, on the merits, as to whether the policy and procedures were fairly and regularly applied, but that is presently beside the point. The character of the decision, for purposes of the Judicial Review Act, would be the same even if it were clear beyond argument that there had been academic misconduct, and that the decision to exclude the respondent had been fairly and properly made in every respect. Would it have been a decision that took its legal force or effect from statute?

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In Scharer v State of New South Wales (2001) 53 NSWLR 299 at 313 Davies AJA, referring to questions under the ADJR Act as to whether a decision is under an enactment, said: The crux of the issue in each case is whether the enactment has played a relevant part in affecting or effecting rights or obligations. A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient. So, to revert to Australian National University v Burns (1982) 43 ALR 25, a grant of authority to make contracts and employ staff does not mean that when a staff member is dismissed for breach of contract the statute under which the employer is operating has played a relevant part in the legal force or effect of the decision … So far as appears from the evidence, the relationship between the appellant and the respondent was voluntary. Neither party was bound to continue in the relationship, although the respondent would have had a legitimate expectation that certain procedures would be followed before the appellant terminated the relationship. The Griffith University Act provided the legal context in which the relationship existed. The Higher Education (General Provisions) Act [which conferred an exclusive right on universities to confer higher educational awards] also provided part of the wider context. On the other hand, the decision of the appellant, which was to terminate that relationship, was not a decision which took legal force or effect, in whole or in part, from the terms of either statute … The question in the present case turns upon the characterisation of the decision in question, and of its legal force or effect. That question is answered in terms of the termination of the relationship between the appellant and the respondent. That termination occurred under the general law and under the terms and conditions on which the appellant was willing to enter a relationship with the respondent. The power to formulate those terms and conditions, to decide to enter the relationship, and to decide to end it, was conferred in general terms by the Griffith University Act, but the decision to end the relationship was not given legal force or effect by that Act. Gummow, Callinan and Heydon JJ: It has been common ground throughout the present litigation that the enrolment of the respondent at the University as a PhD candidate did not give rise to a contractual relationship between the parties. In the Court of Appeal, Jerrard JA said ([2003] QCA 571 at [29]): ‘In the instant appeal … there is no evidence of any payment made by [the respondent] to [the University] for admission to the PhD course, or of any terms or conditions agreed to between the parties when she was (presumably) admitted or accepted as a PhD candidate.’ … The definition The defining expression ‘a decision of an administrative character made … under an enactment’ has given rise to a considerable body of case law under the ADJR Act, some of it indeterminate in outcome. The focus has been upon three elements of the statutory expression. The first is ‘a decision’; the second, ‘of an administrative character’; and the third, ‘made … under an enactment’. The cases, particularly in the Federal Court, have tended to see these as discrete elements. But there are dangers in looking at the definition as other than a whole … This appeal involves particular consideration of the third element; that presented by the requirement that the decision be ‘made … under an enactment’. Here again, as with the earlier two elements just discussed, there is involved a question of characterisation of

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the particular outcome which founds an application for review under the statute. Questions of characterisation provide paradigm examples of the application of the precept that matters of statutory construction should be determined with regard to the subject, scope and purpose of the particular legislation, here the Review Act. [Their Honours gave two examples from federal constitutional law of where a law could have a dual characterisation, one of which brought it within the terms of the Constitution and the other which did not.] ‘Proximate source of power’? The considerations just mentioned point against acceptance of a construction of the legislation here in question which turns upon the identification of ‘the immediate or proximate source of power’ to make the decision in question, rather than an ‘ultimate source residing in … legislation’ … The search for ‘immediate’ and ‘proximate’ relationships between a statute and a decision deflects attention from the interpretation of the Review Act and the ADJR Act in the light of their subject, scope and purpose … The preferred construction There is a line of authority in the Federal Court, beginning with the judgment of Lockhart and Morling JJ in Chittick v Ackland (1984) 1 FCR 254 at 264 and including the judgments of Kiefel J and Lehane J in Australian National University v Lewins (1996) 68 FCR 87 at 96–7, which assists in fixing the proper construction of the phrase ‘decision of an administrative character made … under an enactment’. As noted earlier in these reasons, the presence in the definition in the ADJR Act of the words ‘(whether in the exercise of a discretion or not …)’ indicates that the decision be either required or authorised by the enactment … The decision so required or authorised must be ‘of an administrative character’. This element of the definition casts some light on the force to be given by the phrase ‘under an enactment’. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved? The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute? If the decision derives its capacity to bind from contract or some other private law source, then the decision is not ‘made under’ the enactment in question … [A] statutory grant of a bare capacity to contract does not suffice to endow subsequent contracts with the character of having been made under that enactment. … The legal rights and obligations which are affected by the authority of the decision derived from the enactment in question may be those rights and obligations founded in the general or unwritten law. For example, in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 565, it was the decision to issue the search warrants pursuant to s 10 of the Crimes Act 1914 (Cth) which provided the police officers executing them with lawful authority to commit what otherwise were acts of trespass and conversion and attracted the operation of the ADJR Act.

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However, that which is affected in the fashion required by the statutory definition may also be statutory rights and obligations. An example is that given by Toohey and Gaudron JJ in Bond of a requirement, as a condition precedent to the exercise of a substantive statutory power to confer or withdraw rights (eg a licence), that a particular finding be made. The decision to make or not to make that finding controls the coming into existence or continuation of the statutory licence and itself is a decision under an enactment … The determination of whether a decision is ‘made … under an enactment’ involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be ‘made … under an enactment’ if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice … The present case Counsel for the University correctly submitted that … there had subsisted between the parties no legal rights and obligations under private law which were susceptible of affection by the decisions in question. There was at best a consensual relationship, the continuation of which was dependent upon the presence of mutuality. That mutual consensus had been brought to an end, but there had been no decision made by the University under the University Act. Nor, indeed, would there have been such a decision had the respondent been allowed to continue in the PhD programme. … The decisions of which the respondent complains were authorised, albeit not required, by the University Act. The Committees involved depended for their existence and powers upon the delegation by the Council of the University under ss 6 and 11 of the University Act. But that does not mean that the decisions of which the respondent complains were ‘made under’ the University Act in the sense required to make them reviewable under the Review Act. The decisions did not affect legal rights and obligations. They had no impact upon matters to which the University Act gave legal force and effect. The respondent enjoyed no relevant legal rights and the University had no obligations under the University Act with respect to the course of action the latter adopted towards the former. Kirby J (dissenting): [After criticising the majority judgments for adopting ‘an unduly narrow approach to the availability of statutory judicial review direction to the deployment of public power’ (at 133), Kirby J propounded the following as the correct test to apply:] [T]he question whether a decision challenged in the Review Act proceedings was ‘made … under an enactment’ is answered by first determining whether the lawful source of the power to make the ‘decision’ lies in the enactment propounded and, secondly, deciding whether an individual would, apart from that source, have the power outside of the enactment (either under the common law or by some other statute) to make the ‘decision’ concerned. If the answer to that question is in the affirmative, the ‘decision’ was not made ‘under’ the propounded enactment. If it is in the negative, the source of power in the statute is established as governing the case. The ‘decision’ is therefore made ‘under’ the statute or it is made without power.

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2.4.51  The outcome in Tang 2.4.50C — that Ms Tang could not challenge under the JR Act (Qld) the decision to exclude her from a PhD program — would not prevent the same decision being challenged in other ways. For example, as noted at 2.2.51, the Queensland Supreme Court has retained its general law jurisdiction to issue prerogative orders and declaratory and injunctive remedies. More generally, judicial review of university decisions about student candidature are commonplace: see, for example, Ex parte Forster; Re University of Sydney [1963] SR(NSW) 723; Harding v University of NSW [2002] NSWCA 325. 2.4.52  Many cases prior to Tang 2.4.50C had declined an application for judicial review under the ADJR Act on the basis that the decision in question was not made ‘under an enactment’. The High Court in Tang did not disapprove the ruling in any of those cases, although the test applied in Tang was expressed differently from the test applied in some earlier cases. It is probable therefore that the same decision would be reached in the earlier cases, applying the test in Tang. Following are some examples of those cases preceding and following Tang, and the reasoning adopted in them. 2.4.53 In General Newspapers Pty Ltd v  Telstra Corporation (1993) 45 FCR 164, the Full Federal Court held that a decision by Telecom, a statutory authority, to let a contract for printing telephone directories was not a decision under an enactment. Although Telecom had authority conferred by statute ‘to enter into contracts’, the decision was not ‘given force or effect by the enactment’: at 172. In NEAT Domestic Trading Pty Ltd v AWB Ltd 2.5.12C the High Court held that a decision by a private company that was given statutory effect was not a decision made under an enactment. Although the decision had statutory significance, the power to make the decision derived from the company’s incorporation and the applicable companies legislation. In Australian National University v Burns (1982) 43 ALR 25; 5 ALD 67, the Full Federal Court held that the termination by the university of the contract of a professor was a decision made under the contract between the university and the professor, and not under the general powers in the university statute to manage the university and appoint staff. It has similarly been held in other cases that a decision was not ‘made under an enactment’ when the statutory provision in question provided in general terms that: ‘The Commissioner shall have the general administration of this Act’: Hutchins v Deputy Commissioner of Taxation (1996) 65 FCR 269. Similar reasoning prevailed in King v Director of Housing (2013) 23 Tas SR 353 in which the Full Court held that a decision not to renew Mr King’s public housing lease was made under the general law (being ‘a decision that any landlord could make’) and was not a decision deriving from the Homes Act 1935 (Tas). Underpinning that reasoning was the fact that, although under s 16 of the Homes Act 1935 (Tas) the Director of Housing was authorised to deal with land under that Act, including to let dwelling houses, the force and effect of the decision did not derive from that statute. As the court observed: [64] The decisions derived their force from the contractual relationship between the parties. … The lease agreement provided for an expiry date. A decision not to extend or renew the lease beyond that expiry date has force because of the ordinary relationship between parties in that position. … The decisions operate because of the general law.

2.4.54 In Smillie v Legal Aid Commission of Tasmania [2014] TASSC 19, a recipient of legal aid requested the Legal Aid Commission of Tasmania to transfer his grant of aid to a private practitioner who had previously represented him. The request was refused by the Legal Aid 126

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Commission, a decision affirmed on review by a Review Committee of the Commission. The application under the Judicial Review Act 2000 (Tas) was dismissed, the court finding that there was no ‘decision of an administrative character made under an enactment’: JR Act s 4(1). The Legal Aid Commission Act 1990 (Tas) conferred on a person no right to legal aid and although once legal aid had been granted a person had a right to legal aid, the Act said nothing about the person having a right to choice of lawyer. 2.4.55 In Nona v Barnes [2013] 2 Qd R 528 the court observed of the tests established in Tang 2.4.50C: [6] The determination of whether a decision is ‘made … under an enactment’ involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be ‘made … under an enactment’ if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.

A consequence of the Tang line of cases is that it can be difficult to obtain judicial review of the decision of a government business enterprise (GBE) that is incorporated by statute. The statute establishing a GBE commonly goes little further than spelling out the functions of the corporation, and conferring power upon it to employ staff, acquire property and enter into contracts and the like. Decisions of the GBE that are referable to those powers will not generally be regarded as decisions that are reviewable under the ADJR Act. As noted below, it is also unlikely that they are reviewable under s 39B of the Judiciary Act 1903 (Cth), as the GBE may not be characterised as an ‘officer of the Commonwealth’: see 2.4.59. 2.4.56  Whether judicial review should extend to government contracting, general administration and to GBEs raises broader issues still, some of which are taken up in the discussion of judicial review across the public/private divide in 2.5.1ff. The issue was considered also by the ARC in its Report No 32 (1989) on the ambit of the ADJR Act: see  2.2.35. The ARC considered but finally rejected a proposal to extend ADJR coverage to any ‘decision of an administrative character made by an officer of the Commonwealth’. Although, superficially, that formula would merge the jurisdiction under the ADJR Act and s 39B of the Judiciary Act  1903 (Cth), the ARC considered (at 36) that the proposal could have the unintended appearance of extending judicial review to a broad range of non-statutory decisions that are not presently amenable to judicial review under s 39B or at common law. Consequently, the ARC made a more cautious recommendation to extend ADJR coverage only to decisions made by an officer of the Commonwealth under a non-statutory scheme or program that is authorised by an exercise of Commonwealth executive power and is funded by a specific parliamentary appropriation (for example, schemes for job assistance and apprentice training). Many such schemes, as the ARC noted, are created by statute and judicial review rights should not depend on ‘an accident of birth’: at 38.

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2.4.57  The ARC’s proposal has not been implemented by the Commonwealth but has been implemented in ss 4(b) and 9 of the Queensland JR Act which has extended the jurisdiction under that Act to decisions made in ‘the exercise of a power, or performance of a function, under a non-statutory scheme or program involving funds that are provided or obtained’ by parliament. In its Report No 50 (2012) 2.2.9E, the ARC resiled from its earlier view, stating at [5.49] (at 89): ‘Overall, the Council no longer considers the specific extension of review to non-statutory schemes funded by an appropriation by Parliament, as previously recommended by the Council and adopted in Queensland, to be the most appropriate approach.’ At the same time, the ARC noted that its proposed model in which the ADJR Act would parallel the High Court’s jurisdiction under s 75(v) of the Constitution ‘would provide for judicial review of executive schemes … where it is also available under the Constitution’ and would allow for limited exclusions, for example, of decisions under the scheme for Compensation Caused by Defective Administration: Report No 50 [5.49] at 89. The ARC’s proposed model (at 77) was: The Administrative Decisions ( Judicial Review) Act 1977 (Cth) (ADJR Act) should provide that, subject to limited exceptions, a person who otherwise would be able to initiate a proceeding in the High Court under s 75(v) of the Australian Constitution may apply for an order of review under the ADJR Act. Sections 5, 6, 7 and 13 of the ADJR Act would not apply in those proceedings, but other provisions of the ADJR Act would apply subject to some modifications.

Jurisdiction under the Constitution s 75(v) and the Judiciary Act 1903 (Cth) s 39B 2.4.58  The jurisdictional criteria in s 75 of the Constitution (conferring jurisdiction on the High Court: see  2.2.42) and s 39B of the Judiciary Act 1903 (Cth) (conferring jurisdiction on the Federal Court: see  2.2.11) are different from those in the ADJR Act, being broader in some respects. A  familiar example is that ss  75 and 39B can support judicial review of decisions of a legislative nature and decisions made pursuant to executive and prerogative power. Nor is there a prescribed time limit to commence proceedings under s 39B: Aboriginal Community Fund Pty Ltd v  Chief Executive Centrelink (2016) 153 ALD 104 at [23]. The jurisdictional criteria explicit in ss 75 and 39B nevertheless impose limitations on the scope of federal judicial review. 2.4.59  Sections 75 and 39B(1) are phrased identically and contain three requirements:

• Jurisdiction is conferred in respect of ‘matters’. There must therefore be a controversy about rights, duties or liabilities that can be quelled by the exercise of judicial power: McBain 2.3.9C and 2.3.5.

• The jurisdiction is to issue a remedy — a writ of mandamus, a writ of prohibition or an injunction. A litigant invoking this jurisdiction must therefore establish an entitlement to one of those remedies, even if seeking an ancillary remedy such as certiorari or declaration: see  2.2.46. Mandamus and prohibition are available only to correct a jurisdictional error, which is notionally a narrower concept than the grounds of review under the ADJR Act: see 17.4.1ff. Other jurisdictional criteria are that prohibition is to prevent a court or tribunal from acting in excess of power; mandamus orders a person to perform a public duty; and the ancillary remedy of certiorari only quashes a decision or deprives the decision of legal effect. In addition, in the constitutional context, certiorari is available solely for an error on the face of the record, provided that error was also jurisdictional. Injunction and declaration are not confined to the correction of jurisdictional error: Commissioner of Taxation v Futuris 128

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Corporation Ltd (2008) 247 ALR 605 at 616. An injunction may be used to restrain action, or less commonly, require that action be taken; a declaration is a statement of existing rights or obligations at law.

• Relief must be sought against ‘an officer of the Commonwealth’. The expression clearly includes officers in the Australian Public Service (R v Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co Ltd (No  1) (1914) 18 CLR 54 at 66); ministers (Church of Scientology v Woodward 8.2.9C at 65) and their delegates. There is no definitive High Court ruling on the scope of this term. In Plaintiff M61/2010E 11.2.20C, the High Court acknowledged but did not resolve whether an independent contractor discharging administrative functions on behalf of the Commonwealth is an officer of the Commonwealth: see  J  Boughey and G  Weeks, “‘Officers of the Commonwealth” in the Private Sector: Can the High Court Review Outsourced Exercises of Power?’ (2013) 36 University of New South Wales Law Journal 316; M Groves, ‘Outsourcing and s  75(v) of the Constitution’ (2011) 22 Public Law Review  3. Numerous Federal Court decisions have proceeded on the footing that a statutory corporation is not an officer of the Commonwealth: for example, Post Office Agents Association v  Australian Postal Commission (1988) 16 ALD 428 at 438; Vietnam Veterans’ Association of Australia (NSW Branch) v Cohen (1996) 70 FCR 419. The rationale for this approach has not been fully reasoned, and has been much criticised. Aronson, Groves and Weeks, for example, argue that the scope of judicial review should not depend on whether the decision-maker has corporate status, adding that the Commonwealth ‘should not … be competent to remove its agencies from the reach of s 75(v) by the simple expedient of corporatising them’: M  Aronson, M  Groves and G  Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, Thomson Reuters, Sydney, 2017, pp  46–51, 109–11. Anomalies can also arise: for example, a statutory corporation is ‘the Commonwealth’ for the purposes of s 75(iii) of the Constitution (Edensor: see  2.2.45); and in an appropriate case a decision made by a staff member of a statutory corporation could be classified as a decision of a Commonwealth officer: cf Cohen, above. See also CPCF 11.3.38C (see 2.2.45). Other issues concerning the coverage of ‘officer of the Commonwealth’ also arise. For example, a judge of a federal court is an officer of the Commonwealth (R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190), but a state court exercising federal jurisdiction is not (R v Murray and Cormie; Ex parte Commonwealth (1916) 22 CLR 437; cf Vasiljkovic v Commonwealth (2006) 227 CLR 61 at [102] (Gummow & Hayne JJ)), nor is a High Court justice: Re Carmody; Ex parte Glennan (2003) 198 ALR 259 at [6]. In Re Reid; Ex parte Bienstein (2001) 182 ALR 473 at 475, Kirby J doubted whether the President of the Senate was an officer of the Commonwealth because: ‘She is, in fact, an officer of the Parliament’. A solicitor of a panel firm supplying legal services to the Minister for Immigration was not in a public office and hence not ‘an officer of the Commonwealth’: Leerdam v Noori (2009) 227 FLR 210. Equally, the officers, agents and employees of the University of Southern Queensland, despite exercising functions under Commonwealth legislation, were not ‘officers of the Commonwealth’. Whether a person or body meets the description was not decided according to whether they exercised federal power, but rather whether their connection to the Commonwealth involved an ‘office’ with tenure, an appointment, and usually a salary: Luck v University of Southern Queensland (2014) 145 ALD 1 at 13. An ‘office’ does not include the relationship between a person and an international organisation, such as employment under a contract with the United Nations: Commissioner of Taxation v Jayasinghe [2017] HCA 26. 129

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2.4.60  Section 39B(1A)(c) of the Judiciary Act 1903 (Cth) imposes a different jurisdictional requirement, namely, ‘any matter … arising under any laws made by the Parliament’. The same phrase occurring in s  76(ii) of the Constitution has been interpreted as requiring that the right or duty in question must owe its existence to the federal law or depend upon it for its enforcement, rather than merely involve or touch upon the interpretation of the federal law: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154. The joint judgment in Tang 2.4.50C at [67] and [90] noted the similarity between whether a matter arises under a law for the purposes of s 76(ii) and whether a decision is made under an enactment for the purposes of the ADJR Act. The High Court has also observed that ‘matter’ is an analogue for standing: Plaintiff S10/2011 v  Minister for Immigration and Citizenship 9.3.7C. The breadth of s 76(ii) is illustrated by Ruhani v Director of Police (2005) 222 CLR 489, holding that s 76(ii) supported a Commonwealth law conferring jurisdiction on the High Court to hear an appeal from the Supreme Court of Nauru.

Jurisdiction under state and territory judicial review legislation 2.4.61  Queensland, Tasmania and the Australian Capital Territory have a statutory system of judicial review based on the Commonwealth ADJR Act: see  2.2.47–2.2.55. Similar jurisdictional concepts are employed, and have generally been interpreted in a similar fashion. The term ‘decision’ has been construed in like fashion in Queensland, as illustrated in Tang 2.4.50C, as has the term ‘administrative character’: Corrigan v Parliamentary Criminal Justice Committee [2001] 2 Qd  R 23. Specific categories of decision have also been excluded from review under the Act; for example, Sch  1 of the Tasmanian Act excludes decisions relating to the administration of criminal justice, taxation assessment and regulation of gambling and racing. However, there are important statutory modifications. For example, in Queensland, decisions of the Governor are not excluded from review, and s 9 of the Act facilitates review of decisions made under a ‘non-statutory scheme’ or ‘program’ funded by parliament: see Re Anghel and Minister for Transport (No 1) [1995] 1 Qd R 465, concerning a ministerial approval for construction of a rail link. Justice Derrington considered that ‘scheme’ included a single enterprise whereas ‘program’ had a more continuous funding character: at 468. 2.4.62  The jurisdiction of the Supreme Court under the Victorian Administrative Law Act 1978 is defined quite differently, extending to review of a ‘decision’ by a ‘tribunal’. Those key terms are defined in the following manner (in s 2): ‘decision’ means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision;

… ‘tribunal’ means a person or body of persons (not being a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court) who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice.

In Ta v Thompson [2013] VSCA 344, the Victorian Court of Appeal said of the somewhat opaque definition of ‘tribunal’: Osborn JA (with whom Beach JA agreed): [60] Although the definition is capable of different readings, reference to authority demonstrates that this definition, read in the 130

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context of the Administrative Law Act, is to be regarded as excluding all tribunals which are constituted by courts of law’.

See in general M Groves, ‘Reforming Judicial Review at the State Level’ (2010) 64 AIAL Forum 30.

JUDICIAL REVIEW ACROSS THE PUBLIC/PRIVATE DIVIDE Government in perspective 2.5.1  The purpose of judicial review, in a broad sense, is to control government decisionmaking in satisfaction of rule of law and separation of powers objectives. But who or what is ‘government’ for that purpose? Government agencies own and occupy property and buy and sell goods — should administrative law apply to the exercise of those private law functions? Government agencies also come in many forms and guises: on the ‘public’ side of the divide, government business enterprises compete in the market against private corporations; while on the ‘private’ side of the divide, corporations discharge government service delivery functions under ‘contracting out’ arrangements. The dividing line between government regulation and private sector regulation is often blurred too: private bodies such as the Australian Stock Exchange, law societies, and racing and jockey clubs have legislative backing for the regulatory role they perform. Nor is it easy to distinguish the impact of many decisions according to whether they are made by private or public sector bodies; a decision, for example, by a private school or university to expel a student is little different from an expulsion decision by a government school or university. What is the province of administrative law and judicial review? 2.5.2  The courts traditionally differentiated according to the source of the power. If it was statutory, any decision was subject to public law review; if not, the reverse was the case. Subsequently in R v Panel on Take-overs and Mergers; Ex parte Datafin plc (Datafin) 2.5.8C, in which the source of authority was neither statutory nor contractual, the English courts looked to the nature of the power — the public functions test. That view was not adopted in Australia in NEAT 2.5.12C, not least due to the difficulty of identifying the actual source of power for a decision: A  Buckland and J  Higgisson, ‘Judicial review of decisions by private bodies’ (2004) 42 AIAL Forum 37. Courts will generally not fashion a comprehensive theory in advance of a question arising, but rather address problems as and when they arise, sometimes changing or adapting an answer over time as a different light is shed on a problem. The following cases can, therefore, provide only an introduction to what is a mutable topic. It is, moreover, a topic that cannot be addressed by reference to legal considerations alone. The broader issues of theory were raised in 1.5.1ff, in a discussion of whether the principles of public law should straddle the public/private divide. Three of the extracts in that chapter — from S  Free 1.5.3E, the Industry Commission 1.5.4E and the Administrative Review Council 1.5.5E — make the similar point that ultimately it is a question of accountability, yet there are many different ways of ensuring effective accountability. Administrative law mechanisms are part only of the total picture.

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Non-government bodies 2.5.3  In the private arena there are many clubs, tribunals and other societies and organisations that make decisions, or exercise power, akin to those of government. Different terms are used to describe those bodies and their role. Sometimes they are described as ‘domestic’ bodies, ‘voluntary associations’ or ‘consensual’ societies. At other times they are described as ‘private sector regulation’ or ‘corporate self-regulation’ bodies. Whatever the label, the common issue that arises is whether decisions made by those bodies should be subject to judicial scrutiny at the suit of a person aggrieved, and if so, on what basis and according to what criteria. 2.5.4  There is a statutory conferral of jurisdiction upon courts in some areas: for example, decisions made by clubs and societies can be scrutinised for compliance with anti-discrimination legislation; and industrial relations legislation often empowers courts to adjudicate disputes about union rules and admission and expulsion of union members. Judicial scrutiny of ‘club’ and ‘domestic’ decisions is also well-established at common law, especially concerning decisions of a disciplinary nature, such as expulsion of a member: JRS Forbes, Justice in Tribunals, 4th ed, Federation Press, Sydney, 2014. The usual focus of the court’s scrutiny is whether the society observed its own rules in commencing disciplinary proceedings, and whether natural justice was observed in the process. The jurisprudence relating to those issues has a close affinity with the principles of administrative law applied to public sector decision-making. Courts, furthermore, insist that their role is not to review the merits of club decisions, but to examine whether those decisions were free of legal error. But the similarity with public law often stops there, as courts often explain that the jurisdictional basis for judicial scrutiny of club decisions rests on a private or civil law footing, with relief being granted in the equitable jurisdiction of the court, by a declaration or injunction. Thus, a court can intervene to protect the interest (if any) which a member has in the property of an association (Cameron v Hogan (1934) 51 CLR 358), or to enforce a membership contract (if any) between the members of an association (Hall v NSW Trotting Club Ltd [1977] 1 NSWLR 378). Judicial scrutiny and enforcement of those private law rights has become commonplace, so much so that in many cases jurisdiction to review club decisions is either assumed or conceded (for example, Forbes v  New South Wales Trotting Club Ltd 2.5.7C) with argument focusing instead on the degree of legal rigour expected of the society: see, for example, Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Inc (2008) 72 NSWLR 224. 2.5.5  The jurisdictional issue cannot be ignored entirely, however, as some cases illustrate. A  famous example was Cameron v  Hogan (1934) 51 CLR 358, in which the High Court declined to review a decision of the Australian Labor Party to expel the Victorian Premier (Edmund Hogan), after he had ignored a directive from the party to repudiate a Premiers’ Plan to reduce public sector salaries and pensions. The court held that Hogan’s membership of the party did not give rise to any contractual or proprietary interest. 2.5.6  In a few decisions courts have sought to meet those difficulties head on, by likening the disciplinary or regulatory power of a private organisation to the public power exercised by a government agency, and thus to proceed as though a public law action was being heard in the supervisory (or administrative law) jurisdiction of the court. This approach can never surmount the specific jurisdictional requirements applying in some statute-based systems of judicial review (such as the ADJR requirement that there be a decision ‘under an enactment’): see  2.4.45ff. Nor it is likely that a prerogative remedy would ever be granted against a non-government 132

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body: see  17.2.11. For example, in Agricultural Societies Council of NSW v Christie (2016) 340 ALR 560 the New South Wales Court of Appeal refused to grant a private law remedy in relation to a decision of a private tribunal (a disciplinary committee) that the respondent had breached the rules relating to use of prohibited substances in an equestrian event. For those reasons, the extension of administrative law principles to private sector decision-making is likely to be an issue arising mostly before courts of general jurisdiction granting equitable remedies. Nevertheless, judicial review of that kind is significant in pointing the direction in which public law may be moving. The following two extracts from Forbes 2.5.7C and Datafin 2.5.8C illustrate this point. Neither case presents an over-arching theory as to the jurisdictional limits of public law, and they leave unanswered as many questions as they address. Some further steps were taken in identifying the courts’ jurisdiction in Mickovski v Financial Ombudsman Service Ltd 2.5.14C and in Cromwell Property Securities Ltd v Financial Ombudsman Service Ltd 2.5.15C. The Cromwell Property decision illustrates the strong resemblance between the courts’ role in such cases with those it adopts in judicial review of government decision-making. 2.5.7C

Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 High Court of Australia

[The New South Wales Trotting Club Ltd was a non-government body, with a dual role: it owned and operated two trotting courses at Harold Park and Menangle; and it controlled trotting meetings in New South Wales, by the consent of other privately-owned trotting clubs, the Australian Trotting Council and the New South Wales Government. The club devised and administered the Rules of Trotting, which provided in rule 28 that the managing committee of the club could issue a ‘warning off’ notice to a person, thereby excluding that person from admission to any trotting course in New South Wales. A warning-off notice was issued to Mr Forbes, a professional punter. He sought a declaration in the New South Wales Supreme Court that the notice was invalid. The club conceded that it was obliged in accordance with Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 to observe natural justice in exercising the power conferred by rule 28, and that it had not done so in this case. However, the club argued that the warning-off notice could be validly supported more narrowly as an exercise by the club of its power as a landowner to exclude Mr Forbes from the two courses operated by the club. This argument was dismissed by the majority (Gibbs, Stephen, Murphy and Aickin JJ; Barwick CJ dissenting), principally by reference to the terms of the club’s decision. Stephen and Aickin JJ nevertheless acknowledged that the club could, in its capacity as landowner, refuse permission to any person to enter its two courses; however, Gibbs and Murphy JJ, in the following two extracts, did not agree.] Gibbs J: In my opinion the rules of trotting limit the exercise by the respondent of its right as landowner to exclude from its courses any person whom it does not choose to admit. [His Honour concluded that the purport of the rules was that the power to exclude a person from a trotting meeting resided with the stewards, and that the committee of the club could only exclude a person by exercising its general power to control trotting in New South Wales under rule 28.] It is not altogether surprising that the rules should fetter in this way the powers of the owner of a racecourse used for trotting. An owner who uses his land to conduct public race meetings owes a moral duty to the public from whose attendance he benefits; if he invites

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the public to attend for such a purpose, he should not defeat the reasonable expectation of an individual who wishes to accept the invitation by excluding him quite arbitrarily and capriciously. The rules recognise the public nature of the race meeting by placing some restrictions on the rights of the owner of the course. Speaking broadly, the effect of the rules is that on a day on which a race meeting is being held the respondent cannot use its powers by preventing, for no apparent reason, a member of the public who is in a decent condition and behaving properly from entering the course. The control of the course, and the power to exclude people from it, have been conferred temporarily on the stewards, and if the respondent wishes to ensure that an individual is excluded it must take action under r 28 to warn him off, but it must observe the requirements of natural justice in doing so. This may be put in another way by saying … that the effect of the rules is that, in relation to relevant persons, a power to prohibit entry of the kind which constitutes a warning off may not be exercised in any manner other than in accordance with the rules; the effect of the rules is to impose restrictions upon the manner in which the respondent may exercise its proprietary rights. Murphy J: … The respondent is not only an owner of land, it is registered under the Gaming and Betting Act 1912 (NSW), as amended, to conduct race meetings on the lands and, under the Totalizator Act 1916 (NSW), as amended, to permit tote betting on the lands. Because of this, the respondent exercises power which significantly affects members of the public, tens of thousands of whom go to watch the spectacles, many to bet as a hobby, and some, like the appellant, to try to make a living by betting. Many hundreds depend on it for their livelihood in occupations such as bookmaking, training and driving. The functions of the respondent in relation to the conduct of race meetings on its lands are qualitatively different from that of the ordinary householder exercising his private property rights. A householder, exercising his property rights, may do so against the public, and ordinarily this is sensibly regarded as the exercise of a private right and of private power, although the right stems from a public source and is ultimately enforceable through public administrative and judicial authorities. A householder exercising his property rights of exclusion is not in the same position as persons with licences to conduct public halls, restaurants, theatres or racecourses. From early times, the common law has declined to regard those who conduct public utilities, such as inns, as entitled to exclude persons arbitrarily. … However, in Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605, the Court, in my opinion wrongly, dealt with exclusion from a racecourse as if the case were concerned with private rights only. That case differs from the present case in that there the person was removed from one meeting during its course; here the exclusion is from all meetings indefinitely. When rights are so aggregated that their exercise affects members of the public to a significant degree, they may often be described as public rights and their exercise as that of public power. Such public power must be exercised bona fide, for the purposes for which it is conferred and with due regard to the persons affected by its exercise. This generally requires that where such power is exercised against an individual, due process or natural justice must be observed. There is, of course, legislative and executive powers affecting individuals which traditionally have been treated as not being required to conform to natural justice. There is a difference between public and private power but, of course, one may shade into the other. When rights are exercised directly by the government or by some agency or body vested with statutory authority, public power is obviously being exercised, but it may be exercised in ways which are not so obvious. In my opinion, a body, such as the respondent, which conducts a public racecourse at which betting is permitted under statutory authority, to which it admits

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members of the public on payment of a fee, is exercising public power. It may not arbitrarily exclude or remove such a person from the lands during a race meeting. It was conceded that there are ample powers to remove persons who misbehave. As the lands in question are used in this public way only during race meetings, the exercise of public power is confined to those times. In so far as the land reverts to a private use from which members of the public are excluded at other times, there is no reason why the respondent’s ordinary private rights may not be exercised at those times.

2.5.8C

R v Panel on Take-overs and Mergers; Ex parte Datafin plc [1987] 1 QB 815 Court of Appeal (UK)

[The Panel on Take-overs and Mergers was an unincorporated association, whose 12 or so members were appointed by various non-government organisations that participated in the financial and securities industry. The chair and deputy chair of the panel were appointed by the Bank of England. The panel had devised and operated the City Code on Take-overs and Mergers, which prescribed a code of conduct to be observed in takeovers of public companies listed on the Stock Exchange. The code provided that a material breach, as found by the panel, could result in a private reprimand or public censure, other action to prevent a trader from enjoying the facilities of the securities market, or a breach being referred to the Department of Trade and Industry, the Stock Exchange or other appropriate body for action to be taken pursuant to any appropriate statutory powers exercised by those bodies. There was no direct statutory, prerogative or common law support for the operation of the panel and the code, though its selfregulatory role had been recognised and supported by the Department of Trade and Industry. Datafin complained to the panel that two other companies had acted in breach of the code. The panel investigated but rejected the complaint, whereupon Datafin made an application (in accordance with the Order 53 procedure for judicial review applying in the United Kingdom) for leave to apply for judicial review of the panel’s decision. The Court of Appeal held that the courts had jurisdiction to undertake judicial review, but dismissed the proceedings on the ground no legal error had been committed by the panel.] Sir John Donaldson MR: ‘Self-regulation’ is an emotive term. It is also ambiguous. An individual who voluntarily regulates his life in accordance with stated principles, because he believes that this is morally right and also, perhaps, in his own long-term interests, or a group of individuals who do so, are practising self-regulation. But it can mean something quite different. It can connote a system whereby a group of people, acting in concert, use their collective power to force themselves and others to comply with a code of conduct of their own devising. This is not necessarily morally wrong or contrary to the public interest, unlawful or even undesirable. But it is very different. The panel is a self-regulating body in the latter sense. Lacking any authority de jure, it exercises immense power de facto by devising, promulgating, amending and interpreting the City Code on Take-overs and Mergers, by waiving or modifying the application of the code in particular circumstances, by investigating and reporting on alleged breaches of the code and by the application or threat of sanctions. These sanctions are no less effective because they are applied indirectly and lack a legally enforceable base. …

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The principal issue in this appeal … is whether this remarkable body is above the law. … [W]hat is to happen if the panel goes off the rails? Suppose, perish the thought, that it were to use its powers in a way which was manifestly unfair. What then? … [T]he panel is a truly remarkable body, performing its functions without visible means of legal support. But the operative word is ‘visible,’ although perhaps I should have used the word ‘direct.’ Invisible or indirect support there is in abundance. [His Honour referred to the supporting role played by the Stock Exchange and the Department of Trade and Industry, and continued:] The picture which emerges is clear. As an act of government it was decided that, in relation to take-overs, there should be a central self-regulatory body which would be supported and sustained by a periphery of statutory powers and penalties wherever non-statutory powers and penalties were insufficient or non-existent or where EEC requirements called for statutory provisions. No one could have been in the least surprised if the panel had been instituted and operated under the direct authority of statute law, since it operates wholly in the public domain. Its jurisdiction extends throughout the United Kingdom. Its code and rulings apply equally to all who wish to make take-over bids or promote mergers, whether or not they are members of bodies represented on the panel. Its lack of a direct statutory base is a complete anomaly, judged by the experience of other comparable markets world wide. The explanation is that is an historical ‘happenstance’ … The issue is thus whether the historic supervisory jurisdiction of the Queen’s courts extends to such a body discharging such functions, including some which are quasi-judicial in their nature, as part of such a system. Mr Alexander, for the panel, submits that it does not. He says that this jurisdiction only extends to bodies whose power is derived from legislation or the exercise of the prerogative. Mr Lever for the applicants, submits that this is too narrow a view and that regard has to be had not only to the source of the body’s power, but also to whether it operates as an integral part of a system which has a public law character, is supported by public law in that public law sanctions are applied if its edicts are ignored and performs what might be described as public law functions. [His Honour referred to other cases, including CCSU 2.3.10C, dealing with the jurisdiction of courts to undertake judicial review, and continued:] In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction. … [T]he panel … is without doubt performing a public duty and an important one. This is clear from the expressed willingness of the Secretary of State for Trade and Industry to limit legislation in the field of take-overs and mergers and to use the panel as the centrepiece of his regulation of that market. The rights of citizens are indirectly affected by its decisions, some, but by no means all of whom, may in a technical sense be said to have assented to this situation, eg the members of the Stock Exchange. At least in its determination of whether there has been a breach of the code, it has a duty to act judicially and it asserts that its raison d’être is to do equity between one shareholder and another. Its source of power is only partly based on moral persuasion and the assent of institutions and their members, the bottom line being the statutory powers exercised by the Department of Trade and Industry and the Bank

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of England. In this context I should be very disappointed if the courts could not recognise the realities of executive power and allowed their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted. … In reaching my conclusion that the court has jurisdiction to entertain applications for the judicial review of decisions of the panel, I have said nothing about the substantial arguments put forward by counsel for the panel based on the practical problems which are involved. These, in my judgment, go not to the existence of the jurisdiction, but to how it should be exercised and to that I now turn. [His Honour acknowledged that speed, certainty and finality were important aspects of the operation of the panel, but pointed out that these were not at risk when the supervisory jurisdiction of the court was properly understood. Specifically, decisions of the panel were fully effective unless set aside by a court; the leave of the court to undertake judicial review was required; the court had a discretion whether to grant relief; and the nature of the power of the panel was such that judicial review should be a wholly exceptional circumstance. His Honour concluded: ‘I should expect the relationship between the panel and the court to be historic rather than contemporaneous’: at 842.] Lloyd LJ: [His Honour agreed with the reasons of Sir John Donaldson MR and added the following:] [Counsel for the panel] made much of the word ‘self-regulating.’ No doubt self-regulation has many advantages. But I was unable to see why the mere fact that a body is self-regulating makes it less appropriate for judicial review. Of course there will be many self-regulating bodies which are wholly inappropriate for judicial review. The committee of an ordinary club affords an obvious example. But the reason why a club is not subject to judicial review is not just because it is self-regulating. The panel wields enormous power. It has a giant’s strength. The fact that it is self-regulating, which means, presumably, that it is not subject to regulation by others, and in particular the Department of Trade and Industry, makes it not less but more appropriate that it should be subject to judicial review by the courts. … Nor is it any answer that a company coming to the market must take it as it finds it. The City is not a club which one can join or not at will. In that sense, the word ‘self-regulation’ may be misleading. The panel regulates not only itself, but all others who have no alternative but to come to the market in a case to which the code applies. … So long as there is a possibility, however remote, of the panel abusing its great powers, then it would be wrong for the courts to abdicate responsibility. The courts must remain ready, willing and able to hear a legitimate complaint in this as in any other field of our national life. I am not persuaded that this field is one in which the courts do not belong, or from which they should retire, on grounds of public policy. And if the courts are to remain in the field, then it is clearly better, as a matter of policy, that legal proceedings should be in the realm of public law rather than private law, not only because they are quicker, but also because the requirement of leave under Ord 53 will exclude claims which are clearly unmeritorious. … I do not agree that the source of the power is the sole test of whether a body is subject to judicial review … Of course the source of the power will often, perhaps usually, be decisive. If the source of the power is a statute, or subordinate legislation made under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review …

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But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may … be sufficient to bring the body within the reach of judicial review. It may be said that to refer to ‘public law’ in this context is to beg the question. But I do not think it does. The essential distinction, which runs through all the cases to which we referred, is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other. … The distinction must lie in the nature of the duty imposed, whether expressly or by implication. If the duty is a public duty, then the body in question is subject to public law. … But suppose I am wrong; suppose that the courts are indeed confined to looking at the source of the power, as counsel of the panel submits. Then I would accept the submission of counsel for the applicants that the source of the power in the present case is indeed governmental, at least in part. Counsel for the panel argued that, so far from the source of the power being governmental, this is a case where the government has deliberately abstained from exercising power. I do not take that view. I agree with counsel for the applicants when he says that there has been an implied devolution of power. Power exercised behind the scenes is power none the less. … I do not accept [the submission of counsel for the panel] that we are here extending the law. But if we were, I would not regard that as an insuperable objection. The prerogative writs have always been a flexible instrument for doing justice. In my judgment they should remain so. [Nicholls LJ expressed entire agreement with the judgments of Sir John Donaldson MR and Lloyd LJ. After discussing the role of the panel, his Lordship concluded that ‘given the leading and continuing role played by the Bank of England in the affairs of the panel, the statutory source of the powers and duties of the Council of the Stock Exchange, the wide-ranging nature and importance of the matters covered by the code, and the public law consequences of non-compliance, the panel is performing a public duty in prescribing and operating the code’: at 852.]

2.5.9  Datafin 2.5.8C, like CCSU 2.3.10C, resolves that common law justiciability is finally determined not by the identity of a decision-maker or the source of power as in the ADJR Act, but by the nature of the power being exercised. What is the test for defining that power? The focus in Forbes 2.5.7C was principally upon the impact of a decision on the rights or expectations of a member of the public, whereas in Datafin it was principally upon the governmental nature of the power being exercised. This aspect of Datafin was highlighted by Rose  LJ in R v Insurance Ombudsman; Ex parte Aegon Life Insurance Ltd [1994] COD 426, summarising the law as developed post-Datafin: [A] body whose birth and constitution owed nothing to any exercise of governmental power may be subject to judicial review if it had been woven into the fabric of public regulation or into a system of governmental control … or was integrated into a system of statutory regulation … or is a surrogate organ of government … or but for its existence a government body would assume control.

The application of that test is neither uncontroversial nor simple: for instance, the absence of statutory regulation might equally signify that government preferred an industry regulatory body to be beyond the control of public law. Generally, see M Aronson, M Groves and G Weeks, 138

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Judicial Review of Administrative Action, 6th ed, Thomson Reuters, Sydney, 2017, 138–56. An illustration of the difficulty of drawing the line of justiciability was the later decision of the Court of Appeal in R v Jockey Club Disciplinary Committee; Ex parte Aga Khan [1993] 2 All ER 853, holding that a decision made by the Jockey Club in regulating horse racing was not subject to administrative law judicial review, as the disciplinary rule being administered by the club sprang from a contract between the members and was not governmental in nature. In R (on the application of Holmcroft Properties Ltd) v KPMG LLP [2016] EWHC 323, the High Court rejected an attempt to judicially review decisions by KPMG, a private sector body, in its role as an independent reviewer overseeing the redress scheme set up by Barclays Bank under an undertaking to the Financial Conduct Authority (FCA), a government regulatory authority. Key factors were that the redress scheme was a voluntary undertaking by the bank and the FCA could still use its own powers to award compensation. For a discussion of the experience of what has been labelled a ‘public function’ test in England, see New South Wales Department of Justice & Attorney General, Reform of Judicial Review in NSW, Discussion Paper, State of New South Wales, 2011, pp 29–33. 2.5.10  It has generally been assumed that those cases and distinctions apply in Australia, though there is no authoritative ruling: see, for example, Dorf Industries Pty Ltd v Toose (1994) 54 FCR 350 at 363–4. Even so, those distinctions — between public and private power, and between governmental and contractual power — will not necessarily answer every problem. For example, the court in Baldwin v Everingham [1993] 1 Qd R 10, in holding that it could review whether a political party had breached its own rules in deciding not to endorse a candidate, necessarily looked to a different set of circumstances, notably, in that case, the substantial public function fulfilled by the party and the statutory recognition of political parties in electoral legislation. By contrast, in Masu Financial Management P/L v Financial Industry Complaints Service (2005) 23 ACLC 215, the factors which led a court to conclude that the decisions of the Financial Industry Complaints Service were made in the exercise of public power were that the federal government appointed many of the members of the board of the service, the service was constituted in pursuance of a government policy, and government took heed of the decisions of the service in the exercise of other regulatory functions. For a discussion of the public–private issues see: Justice E  Kyrou, ‘Review of Decisions of Non-Governmental Bodies Exercising Governmental Powers: Is Datafin Part of Australian Law?’ (2012) 86 Australian Law Journal 20; J  Boughey and G  Weeks, ‘“Officers of the Commonwealth” in the Private Sector: Can the High Court Review Outsourced Exercises of Power?’ (2013) 36 University of New South Wales Law Journal 316; G Weeks, ‘Superannuation Complaints Tribunal and the Public/Private Distinction in Australian Administrative Law’ (2006) 13 Australian Journal of Administrative Law 147; M Allars, ‘Public Administration in Private Hands’ (2005) 12 Australian Journal of Administrative Law 126; and M Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’ (2007) 35 Federal Law Review 1. 2.5.11  The opportunity for the High Court to address some of those broader issues arose in NEAT 2.5.12C. The narrow issue before the court was whether a decision by a private company that had statutory effect was a decision that was reviewable under the ADJR Act. The jurisdictional alternative of commencing proceedings under s  39B of the Judiciary Act 1903 (Cth) was not available in this case, because the company was not an ‘officer of the Commonwealth’. Some members of the court nevertheless alluded to the broader issues, by discussing both the availability of public law remedies against a private company, and the application of the grounds for judicial review to an exercise of private power. 139

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NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 High Court of Australia

[Section 57 of the Wheat Marketing Act 1989 (Cth) provided that it was an offence to export wheat without the written consent of the Wheat Marketing Authority, which was created by the Act. Section 57(3B) provided that the authority was not to grant consent unless AWB (International) Ltd (AWBI) had given its prior written consent to the export. AWBI was a wholly owned subsidiary of AWB Ltd: both were companies owned by wheat growers and incorporated under the Corporations Law of Victoria. AWBI had a right to export wheat under the Act; it was thus in a position to maintain a monopoly by vetoing the export of wheat by a competitor. The scheme — described as the single-desk system of export marketing — replaced a former scheme operating since 1939 under which the Australian Wheat Board (AWB) controlled marketing of wheat in Australia. The functions conferred by s 57 were exempt from the operation of the Trade Practices Act 1974 (Cth). NEAT applied for and was refused export approval. NEAT challenged that decision under the ADJR Act, claiming that AWBI had made a decision of an administrative character under an enactment, and that AWBI was in breach of ADJR Act s 5(2)(f) by applying a policy inflexibly without regard to the merits of the case. The action was dismissed by the Federal Court, both at trial and on appeal by the Full Court: (2001) 114 FCR 1. The members of the Full Federal Court were divided as to the basis for dismissing the action: Heerey J held that AWBI was an independent commercial entity that ‘was outside the province of administrative law’; Mansfield J held that the actions of AWBI in preserving its export monopoly were authorised by statute; and Gyles J thought that some administrative law grounds might apply to AWBI (for example, lack of bona fides), but not the ground pleaded in this case. The High Court by majority dismissed an appeal from the decision of the Full Federal Court.] Gleeson CJ: There is some difficulty in relating the conduct of AWBI, and the complaint of the appellant, to the context of administrative law. AWB and AWBI are trading corporations, operated for the benefit of their corporators. However, the Act gives each a statutory role which may affect the interests of members of the public, such as the appellant. A question arises as to the extent to which that role is circumscribed. When a statute confers a discretionary power which is capable of affecting rights or interests, the identity and nature of the repository of the power may be a factor to be taken into account in deciding what are intended to be matters that must necessarily, or might properly, be considered in decision-making or whether it is intended that the power is at large (R v Anderson; Ex parte Ipec-Air Pty Ltd [12.3.3C]). [His Honour dismissed the argument that AWBI was in breach of ADJR Act s 5(2)(f): the Act authorised AWBI to veto wheat export by competitors; AWBI’s policy of vetoing exports and preserving the single-desk system of export marketing was not inconsistent with the Act, but in fact ‘closely reflected the legislative purpose’; and NEAT had not put forward an argument to the authority as to why AWBI should deviate from the policy.] That makes it strictly unnecessary to decide whether the withholding of an approval by AWBI was a decision of an administrative character made under an enactment. I should indicate, however, that my preference is for the view … that it was. While AWBI is not a statutory authority, it represents and pursues the interests of a large class of primary producers. It holds what amounts, in practical effect, to a virtual or at least potential statutory monopoly in the bulk export of

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wheat; a monopoly which is seen as being not only in the interests of wheat growers generally, but also in the national interest. To describe it as representing purely private interests is inaccurate. It exercises an effective veto over decisions of the statutory authority established to manage the export monopoly in wheat; or, in legal terms, it has power to withhold approval which is a condition precedent to a decision in favour of an applicant for consent. Its conduct in the exercise of that power is taken outside the purview of the Trade Practices Act … The argument that what is involved is not a decision of an administrative character under an enactment takes as its focus the private interests represented, and pursued, by AWBI, as distinct from the public character of the Wheat Export Authority. That appears to me to involve an incomplete view of the interests represented by AWBI, and also to leave out of account the character of what it does, which is, in substance, the exercise of a statutory power to deprive the Wheat Export Authority of the capacity to consent to the bulk export of wheat in a given case. McHugh, Hayne and Callinan JJ: AWBI does not owe its existence to the Act; it is a company limited by shares incorporated under the Corporations Law. To a very great extent, its powers, and the powers and obligations of its organs, are regulated by the applicable companies legislation … [U]nder s 57 of the 1989 Act, a company incorporated under ordinary companies legislation for the pursuit of commercial purposes is given a role to play in connection with permitting what otherwise is conduct (exporting wheat) forbidden by federal statute on pain of penalty. And the company given this role is itself exempted from the operation of this prohibition. At the least, then, there is an intersection between the private and the public. A private corporation is given a role in a scheme of public regulation … At its most general this presents the question whether public law remedies may be granted against private bodies. More particularly, do public law remedies lie where AWBI fulfils the role which it plays under the 1989 Act? We would answer this second, more particular question, ‘No’. That answer depends in important respects upon the particular structure of the legislation in question. It is not to be understood as an answer to the more general question we identified. There are three related considerations which lead us to give that answer. First, there is the structure of s 57 and the roles which the 1989 Act gives to the two principal actors — the authority and AWBI. Secondly, there is the ‘private’ character of AWBI as a company incorporated under companies legislation for the pursuit of the objectives stated in its constituent document: here, maximising returns to those who sold wheat through the pool arrangements. Thirdly, it is not possible to impose public law obligations on AWBI while at the same time accommodating pursuit of its private interests. The roles of the Authority and AWBI Section 57 gives the Authority, not AWBI, the power to give the consent to export without which an offence is committed. It is the Authority’s decision to give its consent which is the operative and determinative decision which the 1989 Act requires or authorises (Australian Broadcasting Tribunal v Bond [2.4.8C] at 336–7 per Mason CJ) … Unlike the authority, AWBI needed no statutory power to give it capacity to provide an approval in writing. As a company, AWBI had power to create such a document. No doubt

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the production of such a document was given statutory significance by s 57 (3B) but that subsection did not, by implication, confer statutory authority on AWBI to make the decision to give its approval or to express that decision in writing. Power, both to make the decision, and to express it in writing, derived from AWBI’s incorporation and the applicable companies legislation. Unlike a statutory corporation, or an office holder such as a minister, it was neither necessary nor appropriate to read s 57 (3B) as impliedly conferring those powers on AWBI. On that understanding of s 57(3B) AWBI’s determination to approve the authority’s giving consent was not a decision under an enactment for the purposes of the Judicial Review Act. The approval was a condition precedent to the authority considering whether to give its consent to export … AWBI The two other considerations we have mentioned (the ‘private’ character of AWBI and accommodating public law obligations with AWBI’s private interests) are conveniently dealt with together. AWBI, not only does not owe its existence to the 1989 Act, it, and its organs, had the various obligations we have mentioned earlier. Chief among those was, and is, the pursuit of its private objectives. So far as its constituent documents and applicable companies law principles are concerned, reference to any wider ‘public’ considerations would be irrelevant. Because the 1989 Act did not expressly or impliedly require or authorise AWBI to decide whether to approve the issue of a bulk-export permit, AWBI could not be compelled, by mandamus or otherwise, to decide whether to grant or not grant its approval. It was under no statutory, or other, obligation to consider that question. [Their Honours held that AWBI was under no duty imposed by the Act to consider ‘“public” considerations when deciding whether or not to grant approval’; nor was AWBI under an ‘obligation to take account of matters derived from the subject-matter, scope or purpose of the Act which bear upon whether a particular export should be permitted’; and that it was open to AWBI to ‘consider its own commercial interests’ and to seek ‘to maximise returns to those who sold through the pool arrangements’.] If remaining the sole bulk exporter of wheat was a consideration that might legitimately be taken into account by AWBI when deciding whether to give approval to the authority consenting to bulk export of wheat … it is a consideration which could outweigh any countervailing consideration which an applicant for consent could advance. It could outweigh any countervailing consideration derived from the context of the 1989 Act, or from the nature, scope or purpose of the 1989 Act’s provision that AWBI’s prior written approval was a necessary condition for the authority’s giving its consent. That being so, there is no sensible accommodation that could be made between the public and the private considerations which would have had to be taken to account if the 1989 Act were read as obliging AWBI to take account of public considerations. For these reasons, neither a decision of AWBI not to give approval to a consent to export, nor a failure to consider whether to give that approval, was open to judicial review under the Judicial Review Act or to the grant of relief in the nature of prohibition, certiorari or mandamus. Kirby J: [His Honour dissented, reaching the following conclusions: first, AWBI’s refusal to grant consent was a decision of an administrative character, by reason that it was made pursuant to governmental or statutory authority and enabled AWBI to pursue interests much

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wider than the private interests of an ordinary corporation; second, it was a decision made under an enactment, by reason that the Act provided for, required and gave legal effect to AWBI’s refusal of consent; and, third, AWBI was in breach of ADJR Act s 5(2)(f), as the power being exercised under s 57 of the Act was a discretionary function and it was therefore not open to AWBI to apply (as it had done) a blanket policy of refusing approval. Kirby J prefaced those conclusions with the following observation about the context in which the questions before the court were to be resolved.] In Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 503–504, Callinan J and I said: All repositories of public power in Australia, certainly those exercising such power under laws made by an Australian legislature, are confined in the performance of their functions to achieving the objects for which they have been afforded such power. No Parliament of Australia could confer absolute power on anyone … [T]here are legal controls which it is the duty of courts to uphold when their jurisdiction is invoked for that purpose. Although we were in dissent as to its application to the circumstances of that case, the general principle so stated was not questioned. This appeal presents an opportunity for this Court to reaffirm that principle in circumstances, now increasingly common, where the exercise of public power, contemplated by legislation, is ‘outsourced’ to a body having the features of a private sector corporation. The question of principle presented is whether, in the performance of a function provided to it by federal legislation, a private corporation is accountable according to the norms and values of public law or is cut adrift from such mechanisms of accountability and is answerable only to its shareholders and to the requirements of corporations law or like rules. Given the changes in the delivery of governmental services in recent times, performed earlier and elsewhere by ministries and public agencies, this question could scarcely be more important for the future of administrative law (Administrative Review Council, The Scope of Judicial Review, Discussion Paper (2003) at 112–14 [5.196]–[5.207]). [Note: The objective of the action in NEAT was to erode AWB Ltd’s monopoly control over wheat exporting. This monopoly control was removed in 2008 with the passage of the Wheat Export Marketing Act 2008 (Cth). The Act was in response to the findings of the Report of the Inquiry into certain Australian companies in relation to the UN Oil-for-Food Programme (2006) (the Cole Royal Commission Report), which found that AWB Ltd had made corrupt payments to the Iraqi Government of Saddam Hussein. See C Overington, Kick Back: Inside the Australian Wheat Board, Allen & Unwin, Sydney, 2007.]

2.5.13  The Full Court of the Supreme Court of South Australia in Khuu & Lee Pty Ltd v  Corporation of the City of Adelaide (2011) 110 SASR 235 and the Victorian Court of Appeal in Mickovski 2.5.14C have also declined to adopt the Datafin 2.5.8C principles. The High Court reached a different result in Plaintiff M61/2010E 11.2.20C (see  2.2.30). From 2001 the examination of asylum claims by ‘offshore entry persons’ arriving at an Australian territory (such as Christmas Island) was partly undertaken by independent contractors under an executive process established by the Department of Immigration. During that process the

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offshore entry person would be held in detention under the Migration Act 1958 (Cth), and the minister might later lift a statutory bar and allow the person to be granted a protection visa under the Migration Act 1958 (Cth). The court in Plaintiff M61/2010E held that assessments under the executive process were linked to the Migration Act 1958 (Cth), and could be set aside for error of law and breach of natural justice. 2.5.14C

Mickovski v Financial Ombudsman Service Ltd (2012) 36 VR 456 Victorian Court of Appeal

[The Financial Ombudsman Service Ltd (FOS) was set up privately in order to comply with the legislative requirements of the Corporations Act 2001 relating to financial advisers. ASIC required that to hold a financial services licence, a person must be a member of an alternative dispute-resolution organisation (although not necessarily the one provided by FOS). The Court of Appeal considered whether the Datafin principle applied to judicial review in Victoria and, if so, whether the FOS fell within the principle. In the result the court’s jurisdiction was denied in the face of a relevant clause of the contract between FOS and Mickovski which made a review decision exercised by FOS ‘final’.] Buchanan, Nettle JJA and Beach AJA: [30] It is convenient to deal first with the question of whether the judge erred in holding that the Datafin principle was not engaged. Counsel for Mr Mickovski argued that the judge’s reasoning was erroneous because it ignored the practical importance of FOS to consumers, the courts (by relieving the pressure of business) and the insurance industry. In counsel’s submission, FOS’s significance was manifest in the requirement in s 912A(1)(g) of the Corporation Act 2001 that a person holding a financial services licence and who services retail clients must have an external dispute resolution procedure approved by ASIC; and that ASIC had approved FOS as one of only three such organisations. … [31] Arguably, there is some force in those submissions. Putting aside doctrinal difficulties which it has been suggested could stand in the way of extending judicial review beyond the realms of statutory and prerogative decision making, the Datafin principle is appealing. In the face of increasing privatisation of governmental functions in Australia, there is a need for the availability of judicial review in relation to a wider range of public and administrative functions. The Datafin principle offers a logical, if still to be perfected, approach towards the satisfaction of that requirement. … [32] That said, however, the clear implication of the High Court’s decision in Neat Domestic Trading Pty Ltd v AWB Ltd and of the observations of Gummow and Kirby JJ in Gould v Magarey is that we should avoid making a decision about the application of Datafin unless and until it is necessary to do so. In this case, we do not consider that it is necessary to do so. For, assuming without deciding that Datafin has some operation in this country, we agree with the judge that it could not have applied in the circumstances of this case. Taken at its widest, it is doubtful that the principle has any application in relation to contractually based decisions and, even if it does, we agree with the judge that the public interest evident in having a mechanism for private dispute resolution of insurance claims of the kind mandated by s 912A is insufficient to sustain the conclusion that FOS was exercising a public duty or a function involving a public element in circumstances where FOS’ jurisdiction was consensually invoked by the parties to a complaint.

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[33] … [W]e consider that what is ultimately determinative of the issue is that [adopting and adapting the language of Rose LJ in R v Insurance Ombudsman Bureau; Ex parte Aegon Life Insurance Ltd]: Since the Act … the public do not have to use the [FOS]. They can instead sue insurers in the courts. If they go before the [FOS], because [it] is not limited to purely legal considerations, in many cases their prospects of success will be better. But they have the choice of forum … The [FOS’s] power over its members is … still, despite the Act, solely derived from contract and it simply cannot be said that it exercises government functions. In a nut shell, even if it can be said that it has now been woven into a governmental system, the source of its power is still contractual, its decisions are of an arbitrative nature in private law and those decisions are not, save very remotely, supported by any public law sanction. In the light of all these factors, the [FOS] is not in my judgment a body susceptible to judicial review.

2.5.15C

Cromwell Property Securities Ltd v Financial Ombudsman Service Ltd (2014) 313 ALR 469; [2014] VSCA 179 Victorian Court of Appeal

[Cromwell Property Securities Ltd was a licensed financial adviser and a member of the dispute resolution regime of the Financial Ombudsman Service Ltd (FOS). Under that regime, in accordance with the contract between FOS and its members, FOS could deal with a dispute against a member, or it had a discretion to refer the dispute to an external dispute resolution body such as ‘a court, tribunal or another dispute resolution scheme or the Privacy Commissioner’. The choice was at FOS’s discretion. A couple who had purchased shares in a unit trust run by Cromwell was in dispute with Cromwell. Cromwell had requested FOS to refuse to consider the complaint against Cromwell, on the ground that it was more appropriately dealt with by a court, a request refused by FOS. The Victorian Supreme Court had dismissed the application by Cromwell for relief preventing FOS from continuing to assess the claim. That decision was upheld by the Victorian Court of Appeal. In the course of its argument before the Court of Appeal Cromwell had indicated that the standard of review by FOS should be one of positive reasonableness, not the higher Wednesbury standard.] Warren CJ and Osborn JA [Tate JA dissented in the result but substantially agreed with the principles stated by their Honours]: [62] As the authorities we address below make clear, the power of a court to review the decision of a body such as FOS may be seen as deriving as a matter of law from the necessity for the attainment of justice in respect of the functions of tribunals of the general type in question, or it may be seen as deriving as a matter of fact from the necessity to give business efficacy to the particular contract in issue. In the present case, the contract contemplates that FOS will undertake an independent arbitral function in a rational manner, potentially giving rise to such an implication. [63] … FOS and Cromwell accept that, as a minimum, review can be undertaken by the Court on grounds of Wednesbury unreasonableness …. Whether this obligation derived from contract or from the application of general principles of law is, for present purposes, not important. …

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[66] In deciding this ground, we are confronted with differing conceptualisations of reasonableness. Both parties accept that there is an implied contractual provision that requires FOS to exercise its power under cl 5.2 reasonably; the dispute is about the level of reasonableness required. [Their Honours discussed the cases in which the standard adopted in such cases was Wednesbury unreasonableness. They noted a ‘long line of decisions in which the courts have declined to interfere, save on a strictly limited basis, at the instance of parties affected by decisions of domestic tribunals to which there has been consensual submission’ and on this issue referred at [72] to the judgment of Tadgell JA in Carlton Football Club [1998] 2 VR 546:] The reasons for the courts’ declining to interfere in cases [of domestic tribunals governed by contract] have been various. For one thing, where the parties have agreed to have their disputes decided by domestic tribunals designated for the purpose, the courts have been in the habit of respecting the agreement or, one might say, not countenancing a breach of it by one party wishing to desert it and to resort to the civil courts for resolution of a dispute that the tribunal was designed to decide. For another thing, the courts have been prepared to recognise that there are some kinds of dispute that are much better decided by non-lawyers or people who have a special knowledge of or expertise in the matters giving rise to the dispute than a lawyer is likely to have. Again, the courts have been willing to understand that not every aspect of community life is conducted under the auspices of the State, that it is right that this should be so and that, sometimes, it is appropriate that State-appointed judges stay outside disputes of certain kinds which a private or domestic tribunal has been appointed to decide. The courts have not taken the view that a privately-founded, privately-managed organisation — even one with numerous adherents or devotees and enjoying widespread community popularity — is necessarily to be subject to control by the courts. That is certainly not to say that such an organisation may treat itself as above the law: it is merely to acknowledge that the courts will not discourage private organisations from ordering their own affairs within acceptable limits. [73] In explicating the nature of the review of such decisions, Tadgell JA set out a number of standard categories of circumstances in which a court would intervene: Statutes aside, the courts have been disposed to interfere in a limited way with decisions of private or domestic tribunals in order to protect private rights that have been adjudged to deserve protection, including rights in property. The concept of property has been broadly interpreted for this purpose and, in cases within that category, I believe that there is no decision of a private or domestic tribunal with which the courts will refuse to interfere if interference be considered necessary for the attainment of justice. If a tribunal’s decision purports to owe its binding quality, for example, to a contract or a trust the courts, exercising jurisdiction in respect of contracts and trusts, will recognise that the making of the decision is to be consonant with the contract or trust before it is binding … There are various bases on which the courts may adjudge a decision of a domestic tribunal to be inconsistent with an express or implied contract or a trust or other arrangement (or whatever consensual basis it is) upon which the decision must depend for its binding quality. If, for example, the effect of the decision is unreasonably in restraint of trade the courts will declare it invalid. If the decision is plainly contrary to any agreement on which its binding nature depends

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it will meet the same fate. If it is a decision that is seen not to be made in good faith, or to be the product of bias or other dishonesty, or not to be made in accordance with the principles of natural justice, the courts will upset it; and the basis for doing so in these several circumstances has been variously expressed. … [Their Honours noted that the discretion whether or not to refer, exercisable by FOS, must, by analogy, be exercised in accordance with the principles in House v R. In particular the discretion must not be Wednesbury unreasonable, the test being that stated by the plurality in Minister for Immigration and Citizenship v Li 15.2.18C. They upheld the decision under appeal on the ground that the decision by FOS was not unreasonable. Their Honours concluded:] [93] In summary, we consider that the relevant standard for review … in contracts of this type by reference to reasonableness is the standard set in Wednesbury. We do so on the basis that there is long standing authority in this Court and in other jurisdictions, that where parties contract into an arbitral process with a third party, a court should only intervene where the decision is plainly unjust. The decision can only be reviewed if it is ‘one to which no reasonable tribunal could properly come on the evidence’. To set the standard of positive reasonableness, as Cromwell submitted, would defeat the intention of the contract and potentially play havoc with a scheme that is meant to be efficient, cost effective, and informal. … Tate JA [dissenting in the result]: [231] In my view, there is substance in the proposition that the role performed by FOS is tantamount to that of an independent third-party arbitrator who has no interest in the result of the disputes it determines. To that extent, the application of the standard relevant to those who perform public duties and functions, the Wednesbury standard of unreasonableness, is appropriate … [232] It is necessary to distinguish between, on the one hand, those cases where the basis for recognising an implied term in the contract is to give effect to an underlying intention of the parties and provide ‘business efficacy’ and, on the other hand, those cases where a term is either implied by operation of law or otherwise applies by principles of general law. [233] It is the latter category in which are found those decisions of domestic tribunals where the courts will assume jurisdiction to interfere on limited grounds. Examples include decisions of private domestic bodies that have been held open to challenge in a court where the decisions have been contrary to natural justice, especially where the decisions interfere with a member’s livelihood. Non-statutory domestic bodies such as social and sporting clubs and professional and voluntary associations have a long history of acting subject to the principles of natural justice in disciplining or expelling members. The rules to which the members have given consent may include a duty to observe procedural fairness as an express term or the duty may be recognised as an implied contractual term. The duty may also be expressly excluded. In these contexts the standards applied are analogous to those applied by a court in the exercise of its supervisory jurisdiction. … [243] … [His Honour cited Ipp A-JA in Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242:] … Despite the long-standing recognition of the court’s power to intervene, there is no unanimity as to its source and it has been explained on varying grounds. [His Honour disagreed with the majority on the basis that the FOS dispute settlement regime could in fact, be compromised in this case, because of the composition of the FOS review panel, thus denying Cromwell natural justice.]

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Government commercial activity 2.5.16  A significant proportion of government activity is undertaken on a commercial footing by government business enterprises (GBEs) engaged in banking, transport, communications, electricity, forestry, tourism, harbour control, performing arts and other fields of commerce. Some such bodies are created by statute or government executive action, others are incorporated under the Corporations Act  2001 (Cth), and some have been moved from one legal form to another (usually being ‘privatised’). The degree of government ownership and control can vary, from 100 per cent ownership and control to 50 per cent or less. Some bodies, such as the Australian Broadcasting Corporation, perform a regulatory function in addition to their commercial activity, that is, they exercise statutory authority to prohibit or consent to activity by others, including their competitors. 2.5.17  Government business enterprises are subject to considerable legal regulation of a non-administrative law kind. Most, for example, are subject to consumer protection, fair trading and price control legislation, administered by regulatory bodies such as the Australian Competition and Consumer Commission (Cth), the Independent Pricing and Regulatory Tribunal (NSW) and the Essential Services Commission (Vic). Industry ombudsmen now proliferate: see  Chapter 4. The Corporations Act  2001 (Cth) applies to many government enterprises. Specific public law statutes apply also, such as the Public Governance, Performance and Accountability Act  2013 (Cth), the State Owned Corporations Act  1989 (NSW), and the Government Owned Corporations Act 1993 (Qld). 2.5.18  Does administrative law also have a role to play? And if so, how and to what should it apply? The field of debate on those questions is a contest between competing objectives — preserving competitive market efficiency, on the one hand, against protecting individual rights and securing public accountability, on the other. This philosophical contest was considered at length by the ARC in Government Business Enterprises and Commonwealth Administrative Law, Report No 38, Commonwealth of Australia, Canberra, 1995 2.5.19E. The ARC concluded that government-controlled bodies (defined as those in which the government owns 50 per cent or more of shares or can control the governing board) should be subject to administrative law except in relation to commercial activities undertaken in a competitive market. 2.5.19E

Administrative Review Council, Government Business Enterprises and Commonwealth Administrative Law Report No 38, Commonwealth of Australia, Canberra,1995

The Council accepts that the benefits flowing from the administrative law package will not be as valuable in relation to a GBEs commercial activities undertaken in a market where there is real competition, and that, as a general principle, Commonwealth administrative law statutes should not apply to GBE’s in relation to activities of that type … First, in relation to the objective of ensuring that the Government acts within its lawful powers, a GBE that faces real competition would not possess government powers or immunities and in relation to its commercial activities would be as susceptible to private law as its competitors. In this respect bodies with a legal personality distinct from the Government are more likely than other Government-owned enterprises to face real competition in respect of their commercial activities. In the Council’s view, a GBE could not be subject to real

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competition unless its participation in a market is free of any special government immunities or protections. The Council notes that the Hilmer report [Report of the Independent Committee of Inquiry into National Competition Policy (1993)] recommended that government businesses should not enjoy any net competitive advantage by virtue of their ownership when competing with other businesses. Second, in relation to the objective of providing mechanisms for individual justice, consumers of goods or services provided by a GBE would be able to direct their custom elsewhere (that is, to the GBE’s competitors). They would also be able to rely upon private law remedies. The Council acknowledges, however, that private law remedies, including industry ombudsman schemes, are unlikely to be as accessible as the administrative law package in all circumstances and for all consumers. Third, in relation to improving the quality of public administration, competitive market forces may achieve a similar improvement although … they may not work as effectively to achieve fairness. And in relation to accountability for government decision making, to the extent that a GBE undertakes commercial activities in a competitive market, it is generally not in a position to make government decisions. … The Council further notes that it considers that any exemption [from administrative law] should be limited in its operation to certain decisions or activities of a GBE, and should not apply, as a matter of course, to all of a GBE’s activities, or to a GBE generally. That is, activities of a GBE that are not commercial activities undertaken in a competitive market should continue to be subject to Commonwealth administrative law statutes.

2.5.20  The practical implementation of the ARC’s view is mostly to be achieved (as the ARC notes) by statutory drafting: that is, judicial review, FOI and other administrative law statutes can be cast as applying to some bodies and activities but not others. The kind of question which can arise is illustrated by General Newspapers 2.4.53, holding that a tendering decision by Telstra was not a decision ‘made under an enactment’ for ADJR purposes. Issues of a more generic kind occasionally arise too. In the Commonwealth, for example, there is the unresolved issue of who or what is an ‘officer of the Commonwealth’ for the purposes of s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth): see  2.4.59. At common law, questions of public law jurisdiction and justiciability are principally determined by courts, as illustrated by the decision of the Privy Council in Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385. 2.5.21  The issue of ‘contracting out’ raises similar questions. Increasingly, government funds private sector organisations, through the medium of contract, to provide services to the public or to fulfil public functions on behalf of government. The range of government activities touched by this trend is extensive, and includes the delivery of postal services, management of prisons and immigration detention centres, and placement of job seekers. One way in which administrative law questions arise has to do with whether government management of the contract (and pre-contractual tendering) is judicially reviewable on administrative law grounds. There is a long-standing judicial reluctance to subject tendering and contracting to administrative law review (for example, Aga Khan 2.5.9), but there are recent exceptions: for example, Mercury Energy 2.5.20; and MBA Land Holdings Pty Ltd v Gungahlin Development Authority (2000) 206 FLR 120. The other side of the coin is whether the contracted service 149

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provider (that is, the private sector agency) is subject to administrative law review as regards its administrative behaviour on behalf of government. Again, there is no developed jurisprudence, but a growing recognition of the importance of this issue. For example, the contractor may be exercising coercive authority on behalf of government, as in the management of detention centres. Often, too, private law remedies and market control will not avail an aggrieved person because, for example, they are not a party to the contract between the government agency and the contractor. In an as yet unimplemented report, the ARC recommended that by a combination of legislative reform and contract provision, many of the features of the Commonwealth administrative law system (such as rights of complaint and challenge, and access to information) should be applied to firms that have been contracted to provide government services to the public: The Contracting Out of Government Services, Report No 42, Commonwealth of Australia, Canberra, 1998. The ARC noted that ‘the contracting out of government services should not result in a loss or diminution of government accountability or the ability of members of the public to seek redress where they have been affected by the actions of a contractor delivering a government service’: at vii. However, steps were taken to achieve that end with the bestowal on the Commonwealth Ombudsman of jurisdiction over private sector bodies supplying services to government and expansion of the Ombudsman’s powers to cover private sector postal carriers: 4.2.13.

Private law functions of government 2.5.22 In Sydney Training Depot Snapper Island Ltd v Brown (1987) 14 ALD 464 a company leased Snapper Island in Sydney Harbour from the Commonwealth and used it as a training depot for sea cadets. In accordance with the terms of the lease the Commonwealth issued a notice to quit, having decided that naval ammunition stored nearby posed a danger to the training depot. Justice Wilcox held (at 465) that the Commonwealth’s decision: was a decision relating merely to the exercise by the Commonwealth of a private property right vested in it. On the face of the matter, there was no exercise of any statutory or prerogative power, so that the rules of natural justice had no application.

An analogous approach has been taken in other cases. In Clamback v  Coombes (1986) 13 FCR 55; 78 ALR 523, the court held that it did not have jurisdiction under the ADJR Act to hear an action by the proprietors of a flying school at Bankstown Airport challenging a decision by the Commonwealth to erect a fence at the airport: ‘[T]he decision to erect the said fence was not a decision made pursuant to a power granted [by legislation] but was merely a decision … of the Commonwealth of Australia to exercise its common law rights to fence its own land’: ALR at 533. However, the governmental setting in which functions are discharged can transform the nature of those functions. For example, the decisions made by public housing authorities are generally subject to administrative law and are not regarded merely as landlord–tenant arrangements. 2.5.23  The broader debate, as to whether public law obligations should be imposed upon the commercial and private law functions of government, is illustrated by the following three contrasting comments. The first comment, from Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151, was made in the context of a discussion of whether there is a ‘public law’ dimension to government contractual arrangements: Finn J: [An] agency of government … has no private or self-interest of its own separate from the public interest it is constitutionally bound to serve … That the law 150

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entertains expectations of fair dealing of government and of public bodies is manifest in some number of spheres … In differing ways these instances reflect policies in the law, albeit in specific contexts, (a) of protecting the reasonable expectations of those dealing with public bodies; (b)  of ensuring that the powers possessed by a public body, ‘whether conferred by statute or by contract’, are exercised ‘for the public good’; cf Jones v Swansea City Council [1990] 1 WLR 54 at 71; and (c)  of requiring such bodies to act as ‘moral exemplars’: government and its agencies should lead by example: Olmstead v United States 277 US 438 (1928) at 485.

The second comment, from NEAT Domestic Trading Pty Ltd v AWB Ltd (2001) 114 FCR 1, was made in the context of a discussion by the Full Federal Court of whether a privatised government company should observe administrative law standards: Heerey J: A company engaged in trade and commerce must be free as a matter of commercial judgment to adopt what might be regarded in administrative law terms as an inflexible policy. For example, an insurer might resolve that claims in a particular category should always be resisted rather than settled. In the case of a given claim such a policy may turn out to be unwise, but it is not unlawful or beyond power. Similarly a commercial entity in carrying on its functions is not bound by the rules of natural justice or procedural fairness vis-a-vis competitors. As was said by Mason  CJ and Wilson  J in Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Limited (1989) 167 CLR 177 at 199: Competition by its very nature is deliberate and ruthless. Competitors jockey for sales, the more effective competitors injuring the less effective by taking sales away. Competitors almost always try to ‘injure’ each other in this way.

The third comment (an observation by the then Solicitor-General of New South Wales, Keith Mason QC, quoted by the ARC in Report No 32 (1989) on the ambit of the ADJR Act: see 2.2.34) points to the difficulty of reconciling different expectations of government: It seems to turn the modern approach that the Crown is entitled to no special treatment in the exercise of its private rights into a rule that the Crown is liable to suffer the worst of both worlds. If it enters into a commercial transaction it must comply with the law of contract and the law of tort in relation to pre-contractual negotiations, yet it is now said that it must also satisfy the public law requirements of administrative law. The two may not always be consistent.

2.5.24  In the ARC’s Report No 50 (2012) 2.2.9E, it noted (at 91) simply that: the scope of judicial review of the commercial decisions of government in the constitutional judicial review jurisdiction is currently unresolved. Probably some commercial decisions of government are subject to limited judicial review. The Council considers that commercial actions where the Government is acting as a private individual — such as contractual actions by government procurement decisions and tendering decisions — are subject to accountability mechanisms other than judicial review. However, the Council considers that these issues could equally be argued under an amended ADJR Act as under s  39B of the Judiciary Act, and there is therefore no reasons to specifically exclude these decisions. 151

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3

INTRODUCTION 3.1.1  Two topics — merits review and administrative tribunals — are being treated together in this chapter because of their close linkage in Australian administrative law. It has been common in Australia to commit the function of external merits review to administrative tribunals. The principal reason is that an administrative tribunal is more suited to undertaking merits review because a tribunal is constituted and functions differently from a court. Merits review requires reconsideration of a decision, taking account of issues of law, fact, policy and discretion. That is a broader role than is undertaken by courts. Tribunals too offer an independent dispute resolution facility with specialist decision-makers. Another reason is that under the separation of powers, Chapter III courts may only exercise judicial power while tribunals are not so restricted: see Chapter 5. The constitutional limitation does not formally apply in the states and territories. Nonetheless, the legal values underpinning separation of powers have a broader relevance and are reflected in aspects of state and territory tribunal and merits review arrangements. These and other attractive features have led to a strong reliance on tribunals to perform adjudicative functions in Australia. 3.1.2  As a consequence, Australia has a well-developed system of administrative tribunals. A feature of that system is the multi-purpose tribunal with jurisdiction (that is, the authority to decide) over a range of administrative matters. In the states and territories jurisdiction extends to civil matters. Alongside these broad jurisdiction tribunals are a diverse range of specialist tribunals with jurisdiction in a single topic area, operating in both the public and the private sector. These developments give rise to some of the issues examined in this chapter. These include: • Should tribunals or courts be the major forum in administrative law for adjudicating disputes between citizens and government? Do both play a similar role? Should tribunals operate in a manner that is different from courts? How closely should tribunal procedures be modelled on traditional legal and adversarial notions of dispute resolution? • What range of decisions is appropriate for merits review? Should decisions that involve, for example, the allocation of resources among competing applicants be reviewable? Should 153

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decisions that have been made at cabinet level, or following a ministerial directive, be capable of being overturned by a tribunal?

• To which branch of government do tribunals belong — are they at the top of the executive chain of decision-making, at the bottom of the judicial arm of government, or part of a fourth, integrity arm of government? • How can tribunal independence from government be sufficiently assured, particularly when many tribunal members are part-time, short-term appointments?

• What does the concept of administrative justice mean in the context of tribunal review? How far, for example, should tribunals be able to depart from traditional legal principles concerning the rules of evidence, or the principles of adversarial dispute resolution? Is there an obligation on tribunals to make inquiries? In what circumstances?

• If, as many tribunals find, they have a caseload of between 3000 and 90,000 cases a year, what are the implications for the time allocated by a tribunal for a hearing and providing the reasons for a decision? How can a tribunal with a large caseload ensure that its dominant attention is on the justice of the individual case? • Will combining the civil with the administrative review function have an adverse effect on the distinctive aspects of an administrative review tribunal? If so, how can this be avoided?

3.1.3  The focus of this chapter is the Australian framework for tribunals, their distinctive role, as well as some procedural issues that are specific to tribunals. Issues examined elsewhere in this book are also relevant to tribunals. For example, the rules on standing in tribunals have much in common with the rules on standing in judicial review and are discussed together in Chapter 18. The special influence of government policy on tribunal decision-making is examined in Chapter 12. Tribunals, as much as courts, ombudsman offices and other review bodies, are constantly engaged in legislative interpretation and the application of general administrative law standards, that is, the legal rules that are examined in Chapters 8 and 10 and jurisdictional error (Chapter 16). Appeals from tribunals are frequently limited to questions or issues of law so the law/fact distinction discussed in Chapter 13 applies. Reference has already been made to Chapter 5 and the constitutional factors affecting tribunals. In summary, administrative tribunals operate within the framework of administrative law which applies to other executive decision-makers and are subject to the same principles of administrative law. 3.1.4  This chapter is directly concerned with public sector tribunals, that is, tribunals that are part of the administrative law system for resolving disputes with government. Where tribunals resolve disputes in the private sector — for example, on tenancy, consumer, superannuation, discipline and other matters — comparable rules and principles apply, although these tribunals or elements of amalgamated tribunals have distinctive features which reflect their civil law origins. These rules and principles relate to the independence, membership, procedural style and accessibility of tribunals. 3.1.5  There have been several phases in Australian tribunal development: the ad hoc establishment of tribunals with jurisdiction over a specific area, such as dust diseases, or pensions for war veterans; the introduction of tribunals with jurisdiction over a 154

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wide  range of decisions within government; and, most recently, the development in the states and territories of tribunals with a combined civil and administrative jurisdiction — the ‘CATs’.

ADMINISTRATIVE TRIBUNALS — THEIR NATURE, ROLE, STRUCTURE AND RELATIONSHIP TO GOVERNMENT Categorising administrative tribunals 3.2.1  There are many descriptions of tribunals, but due to the variety of forms in which they are created, most define tribunals by exclusion: tribunals are not courts. The following is a more positive and contemporary Australian definition: Tribunals are statutory, independent legal institutions established to provide a forum for resolving specific types of administrative and civil disputes. • •

Administrative tribunals reconsider the merits of government decisions across Commonwealth, state and territory jurisdictions, in areas such as veterans’ entitlements, refugee applications and planning decisions. Civil tribunals are alternative forums to the courts for resolving disputes such as claims related to the supply of goods and services. Only states and territories have  tribunals  with civil jurisdiction. Many tribunals also have jurisdiction for human rights cases such as guardianship, anti-discrimination and the care of children.

[Productivity Commission, Access to Justice Arrangements, Report No 72, Commonwealth of Australia, Canberra, 2014 3.2.10E at 345]

3.2.2  The best-known example of an Australian merits review tribunal is the Administrative Appeals Tribunal (AAT), a purely administrative tribunal with jurisdiction to review decisions across the Commonwealth government. The AAT model of a general jurisdiction tribunal has been adopted, with modifications, in all states and territories except Tasmania — and even in Tasmania the Administrative Law Division of its Magistrates Court bears witness to the AAT’s legacy. In focusing on administrative review, that is, disputes concerning decisions by government, this chapter uses the AAT model to illustrate the principles, powers and procedures of tribunals generally. Although the state and territory counterparts to the AAT differ significantly by having an extensive civil jurisdiction, the AAT model remains apparent in the legislation for the amalgamated tribunals in the states and territories. Despite the moves to amalgamate individual tribunals into a single tribunal, specialist tribunals such as mental health tribunals and industrial relations bodies continue to exist within Australia. 3.2.3  Beyond that descriptive account, tribunals’ procedures and methods of dispute  resolution vary widely. Some tribunals are like courts, while others have a close similarity to executive decision-makers. Increasingly too, tribunals resolve disputes through  discussion and negotiation rather than a formal decision. Asimow exemplified this diversity in his global list of five models of bodies that adjudicate administrative disputes. The five categories are: in the United States — combined-function agencies, adversarial procedure, and closed judicial review in generalist courts; in Britain — 155

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an independent tribunal; and in France — open judicial review in a specialised court: M Asimow, ‘Five Models of Administrative Adjudication’ (2015) 63 The American Journal of Comparative Law 3. 3.2.4  One response in Australia to the definitional uncertainty has been to describe tribunals as court-like bodies that are not courts. A difficulty with this approach, however, is that the concept of a ‘court’ is also indeterminate, and ‘a body may be characterised as a “court” for one purpose and not another’: Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 103 ALD 1 at [225] (Kenny J). That comment was made in a case where the issue was whether a state tribunal was, for the purposes of s 77(iii) of the Constitution, a ‘court of a State’ in which federal jurisdiction could be vested. Such cases are likely to increase following Burns v Corbett; Burns v Gaynor 3.2.6C. In that decision the High Court confirmed that if a matter involved more than one state, such as residential tenancies, then under s 75(iv) of the Constitution the tribunal could only hear the case if the tribunal was designated as a ‘court of a State’ for the purpose of hearing such a claim. Otherwise, the case would need to be heard by the Supreme Court of that jurisdiction. Prior to Burns v Corbett, decisions had concluded that the NSW Civil and Administrative Tribunal (NCAT) was not a ‘court of a state’ for the purposes of Chapter III: Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; nor was the Victorian Civil and Administrative Tribunal (VCAT): Director of Housing v Sudi [2011] VSCA 266 at [182] (Maxwell J). By contrast, the Queensland Civil and Administrative Tribunal (QCAT), which was declared by statute to be a ‘court of record’, was found to be a ‘court of a state’: Owen v Menzies [2012] QCA 170. The Queensland approach is being considered in other states following the Burns v Corbett decision. See generally, R French, ‘Essential and Defining Characteristics of Courts in an Age of Institutional Change’ (2013) 23(1) Journal of Judicial Administration 3; D Kerr, ‘State Tribunals and Ch III of the Australian Constitution’ (2007) 31 Melbourne University Law Review 622; and S McDonald, ‘Burns v Corbett: Courts, tribunals, and a new implied limit on state legislative power’ Auspublaw, 7 May 2018. In short, it is necessary to acknowledge that ‘tribunal’ is not a fixed concept, though there are certain features that are ordinarily associated with a body called a tribunal. This approach is explained in the extracts from LW Maher 3.2.7E and Linda Pearson 3.2.16E. 3.2.5  Nevertheless, jurisdictional issues on Chapter III grounds continue to arise. The most recent case in which the issue was addressed by the High Court was whether the jurisdiction of a state civil and administrative tribunal can extend beyond state borders: Burns v Corbett 3.2.6C. Typically, such cases arise in circumstances where a landlord is in one state and the tenant in another, or in guardianship cases, where the guardian and the person under guardianship reside in different states. The issue can also arise in residential tenancies cases. In Zistis v Zistis [2018] NSWSC 722, heard after the High Court’s decision in Burns v Corbett, the Supreme Court of New South Wales concluded that NCAT was not a ‘court of a state’ for the purposes of residential tenancies law. As the exercise of relevant powers under the Residential Tenancies Act 2010 (NSW ) involved the exercise of judicial power, the matter could not be considered by NCAT. Since the case also attracted the prohibition on the exercise of the diversity jurisdiction (Constitution s 75(iv)), the matter had properly been referred to the Supreme Court. The court read down the legislation to avoid the constitutional prohibition. 156

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3.2.6C

Burns v Corbett; Burns v Gaynor [2018] HCA 15 High Court of Australia

[Burns, a resident of NSW, commenced separate proceedings under the Anti-Discrimination Act 1977 (NSW) against Corbett and Gaynor, claiming that both had engaged in conduct that vilified homosexuals. The proceedings against Corbett were commenced in the Administrative Decisions Tribunal, and were continued in the Civil and Administrative Tribunal (NCAT) which replaced that tribunal. The proceedings against Gaynor were commenced in NCAT. Corbett was resident in Victoria and Burns was resident in Queensland. The High Court affirmed the decision of the NSW Court of Appeal that NCAT was exercising judicial power in determining both matters, but could not do so as it was not a state court and lacked jurisdiction to decide a dispute between a resident of New South Wales and a resident of another state. The reasoning of the Justices differed as to whether the invalidity arose due to the provisions of the NSW Anti-Discrimination Act becoming inoperative under s 109 of the Constitution or because the exercise of judicial power by NCAT was inconsistent with s 39(2) of the Judiciary Act 1903 (Cth).] Kiefel CJ, Bell and Keane JJ: [24] Sections 38 and 39 of the Judiciary Act were enacted pursuant to s 77(ii) and (iii) of the Constitution. Section 38 provides, subject to presently immaterial exceptions, that the jurisdiction of the High Court in certain matters shall be exclusive of that of the courts of the States. [25] Section 39 of the Judiciary Act excludes the jurisdiction of the State courts where the High Court has original jurisdiction or where original jurisdiction can be conferred on it, and then invests the State courts with that jurisdiction subject to certain conditions and restrictions. [26] The effect of these provisions of the Judiciary Act is that the exercise by a State court of adjudicative authority in respect of any of the matters listed in ss 75 and 76 of the Constitution, including matters between residents of different States, is an exercise of federal jurisdiction. As was explained in Baxter v Commissioners of Taxation (NSW): The result is that the jurisdiction of the State Courts is now derived from a new source, with all the incidents of jurisdiction derived from that new source, one of which is an appeal in all cases to the High Court. … [43] … [A]djudicative authority in respect of the matters listed in ss 75 and 76 of the Constitution may be exercised only as Ch III contemplates and not otherwise. Chapter III contemplates the exercise of adjudicative power only by this Court, by other federal courts created by the Commonwealth Parliament, by State courts invested with such power by the Commonwealth Parliament or by State courts to which such adjudicative authority belongs or in which it is invested. Accordingly, even if the Commonwealth Parliament had made no law under s 77(ii) or (iii), a State law purporting to authorise an agency of the government of a State other than a court to determine, for example, a dispute between residents of different States would be invalid because Ch III left no room for such an adjudication. … [54] In K-Generation Pty Ltd v Liquor Licensing Court, Gummow, Hayne, Heydon, Crennan and Kiefel JJ said at [49]:

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Control of Government Action There is no doubt that, with respect to subject matter outside the heads of federal jurisdiction in ss 75 and 76 of the Constitution, the State legislatures may confer judicial powers on a body that is not a ‘court of a State’ and that in respect of a body that is a ‘court of a State’, they may confer non-judicial powers. However, consistently with Ch III, the States may not establish a ‘court of a State’ within the constitutional description and deprive it, whether when established or subsequently, of those minimum characteristics of the institutional independence and impartiality identified in the decisions of this Court.

[55] It may fairly be said to be a fortiori these observations that a State may not, consistently with Ch III, confer on an executive agency of the State adjudicative authority in respect of any matter listed in s 75 or s 76 of the Constitution. … Conclusion [64] [The relevant sections] of the NCAT Act are invalid to the extent that they purport to confer jurisdiction upon NCAT in relation to the matters between Mr Burns, and Ms Corbett and Mr Gaynor. Pursuant to s 31 of the Interpretation Act 1987 (NSW) they may be read down to avoid that conclusion so that they do not confer jurisdiction upon NCAT where the complainant and the respondent to the complaint are ‘residents of different States’ within the meaning of s 75(iv) of the Constitution. Gageler J: [119] On the unchallenged assumption that NCAT is not a State court, the implied constitutional exclusion of State legislative power to confer State judicial power on a noncourt State tribunal has consequences for the provisions of the NCAT Act which purport to confer State judicial power on NCAT. The provisions are invalid to the extent that they purport to confer State judicial power with respect to subject matters identified in ss 75 and 76 of the Constitution. [120] The provisions can and should be read down pursuant to s 31 of the Interpretation Act 1987 (NSW) to exclude conferral of State judicial power with respect to those subject matters. That reading down is to be achieved with respect to matters arising under the AntiDiscrimination Act 1977 (NSW) (‘the AD Act’) between residents of different States within s 75(iv) of the Constitution by excluding from the jurisdiction conferred on NCAT by the NCAT Act authority to determine a complaint by a resident of one State that a resident of another State contravened a provision of the AD Act. [Gageler J rejected the ground of invalidity based on s 109 of the Constitution.] Gordon J: [150] In 1903, the Commonwealth exercised its powers under s 77(ii) and (iii) of the Constitution by enacting ss 38 and 39 of the Judiciary Act. With the enactment of the Judiciary Act, the jurisdiction of State courts in matters between residents of different States was withdrawn by s 39(1) of the Judiciary Act and conditionally reinvested by s 39(2) of the Judiciary Act. From that point, the source of State courts’ authority to adjudicate on those matters, and the other matters in ss 75 and 76 of the Constitution, was federal – and could only be federal. As these reasons will explain, the consequence of the operation of s 39 of the Judiciary Act is not only that any authority of State courts to adjudicate on matters between residents of different States may only derive from a federal source, but also to render invalid, by operation of s 109 of the Constitution, any State law which purports to confer such authority on a body other than a State court. Such a State law undermines the intended

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operation of s 39 of the Judiciary Act insofar as s 39 is designed to ensure that the exclusive source of the authority to adjudicate on those matters is federal. [151] To the extent that the Parliament of New South Wales purported to invest NCAT with the authority to adjudicate on a dispute under the AD Act between residents of different States, that investment of jurisdiction was invalid by reason of inconsistency with s 39 of the Judiciary Act. Accordingly, NCAT did not have jurisdiction to resolve the complaints against Ms Corbett and Mr Gaynor. The appeals should be dismissed. [Nettle and Edelman JJ agreed that the appeals should be dismissed.] [The New South Wales Parliament, following the decision by the NSW Court of Appeal, provided in Pt 3A of the NCAT Act that if NCAT lacks jurisdiction to decide an application because it concerns the exercise of federal diversity jurisdiction (Constitution s 75(iv)), the matter may be transferred to the ‘authorised court’. Part 3A came into effect in December 2017.].

3.2.7E

LW Maher, ‘The Australian Experiment in Merits Review Tribunals’ in O Mendelsohn & LW Maher (eds), Courts, Tribunals and New Approaches to Justice, La Trobe University Press, Melbourne, 1994

The generic term ‘tribunal’ is frequently used in Australia as a matter of descriptive convenience. The nomenclature is, however, really only of passing interest. In Australia the terms ‘board’, ‘council’, ‘commission’, ‘agency’, or ‘authority’ are also apt to be used to denote a body which may have tribunal-like functions or characteristics. The term ‘tribunal’ is used, more often than not, across the public/private disputes divide, to describe a body carrying out a mix of judicial or quasi-judicial tasks, notably adjudicating disputes about entitlements to or infringement of pre-existing legal rights. Tribunals so described have a central role in the machinery of government in Australia. Those ‘tribunals’, like the AAT, which most closely approximate the conventional court model of dispute settlement are noted primarily for their formal adjudicative structures and responsibilities. They exhibit five structural and procedural characteristics: (a) they provide to each party appearing before them a reasonable opportunity of being heard; (b) they carefully weigh the evidence and material put before them; (c) they interpret and apply the law; (d) they expose their reasoning processes to the parties; and (e) they avoid actual bias or the appearance of bias.

3.2.8  A feature of Australian tribunals is that they share many characteristics. As Pearson noted: • • • •

They are established by statute, with legal authority to make decisions; In exercising their function of reviewing administrative decisions, they are independent of the original decision maker; They are obliged to give reasons for their decision; They may be constituted by members with expertise in the matters coming before the particular tribunal;

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• •

Control of Government Action

They are subject to supervisory or appellate powers of a court; and Their procedures are intended to be less formal than those of the courts, with an emphasis on negotiated dispute resolution.

[L Pearson ‘The Vision Splendid: Australian Tribunals in the 21st Century’ in AJ Connolly and D Stewart (eds), Public Law in the Age of Statutes: Essays in Honour of Dennis Pearce, Federation Press, Sydney, 2015, pp 161–99 at 162; see also 3.2.16E]

Although for the most part tribunals are created by statute, on occasions a tribunal has been established by executive action. Examples are the Workcover Premium Review Panel (SA), the Immigration Assessment Authority and, initially, the Social Security Appeals Tribunal and the Defence Honours and Awards Tribunal. Nonetheless, generally it is the statute which contains the rules concerning a tribunal’s mode of operation, jurisdiction, powers, membership and procedure. This permits considerable room for variety and flexibility. 3.2.9  Categorisation can, as a consequence, only be attempted at a broad level. There is nevertheless a need to distinguish between different types of tribunals, as reflected in the following two extracts, from reports of the Productivity Commission 3.2.10E and the Australian Law Reform Commission (ALRC) (Adversarial System Review) 3.2.11E. The Productivity Commission discussion of tribunals was in the context of dispute resolving bodies that provide access to justice, and the ALRC discussion was in relation to the adversarial system of litigation. The need for categorisation can arise in other contexts too. For example, Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788 provides an example of how procedural rules can apply to some tribunals but not others: see also 3.4.3. The AAT in that case decided that because of the similarity between the AAT and courts, litigation privilege should apply to AAT proceedings, although the privilege would not apply to some other tribunals. 3.2.10E

Productivity Commission, Access to Justice Arrangements Report No 72, vol 1, Commonwealth of Australia, Canberra, 2014

Key points • Tribunals are statutory, independent legal institutions established to provide a forum for resolving specific types of administrative and civil disputes. –– Administrative tribunals reconsider the merits of government decisions across Commonwealth, state and territory jurisdictions, in areas such as veterans’ entitlements, refugee applications and planning decisions. –– Civil tribunals are alternative forums to the courts for resolving disputes such as claims related to the supply of goods and services. Only states and territories have tribunals with civil jurisdiction. Many tribunals also have jurisdiction for human rights cases such as guardianship, anti-discrimination and the care of children. • Tribunals aim to provide informal, low cost and timely avenues for resolving disputes through: active case management; using alternative dispute resolution processes; limiting legal representation and costs awards’ and assisting self-represented litigants. …

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3.2.11E

Australian Law Reform Commission, Review of the Adversarial System of Litigation: Federal Tribunal Proceedings Issues Paper 24 (1998)

A distinction is often drawn between ‘policy oriented’ and ‘court-substitute’ tribunals. The main role of policy oriented tribunals is to formulate and apply policy. Tribunals that are primarily policy oriented may also have adjudicative and other functions, such as with the Australian Broadcasting Authority and the Australian Securities Commission. Court-substitute tribunals are those tribunals most closely modelled on the conventional court model and may adopt judicial procedures and methodology to varying degrees. Court-substitute tribunals primarily act as providers of dispute resolution services. The tribunals which are normally thought of as court-substitute tribunals are review tribunals, such as the Administrative Appeals Tribunal, or those State tribunals which have taken over what was formerly the jurisdiction of courts, such as consumer claims tribunals. In practice there is no strict division between policy and court-substitute tribunals. Many tribunals have these and other functions, including investigative and law enforcement functions. Other important categories of tribunals include: • review tribunals and primary decision making tribunals • first and second tier review tribunals • tribunals that adjudicate disputes about pre-existing legal rights and entitlements and tribunals that exercise arbitral power to create legal rights and obligations • tribunals that adjudicate and tribunals that use other dispute resolution processes, such as mediation • tribunals that determine rights between private parties and as between government and private parties … [T]he main role of most Commonwealth tribunals is to review primary decisions taken by an executive department or agency, that is, administrative review.

State and territory tribunal systems 3.2.12  The categorisation of tribunals by the Productivity Commission 3.2.10E and the ALRC Adversarial System Review 3.211E apply as much to state and territory tribunals as to Commonwealth tribunals. In New South Wales, for example, the Independent Pricing and Regulatory Tribunal is an example of a policy-oriented tribunal, and the Queensland Industrial Relations Commission is an example of a more court-like tribunal. An important difference is that the absence of constitutional restraint has led to greater variety in state and territory tribunal systems. 3.2.13  The most striking development is the general move in the states and territories for the amalgamation of civil and administrative (that is, private and public sector) jurisdiction in a single tribunal. This ‘one-stop shop’ approach to adjudication is unique to the states and territories. The jurisdiction of such tribunals can extend widely to civil matters such as consumer, tenancy and credit-related disputes, alongside authority to decide disputes between the citizen and government in fields such as licensing, discrimination, occupational discipline,

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tax, building registration, and conflicts in areas which span the private and public sectors such as superannuation and guardianship. The advantages of a single adjudicative tribunal include the cost-saving from having a single registry and shared membership, administrative staff, library, computer networks and, when appropriate, procedures. Typically, these state and territory civil and administrative tribunals (CATs) — often called ‘super’ or multi-purpose tribunals — are organised into divisions or streams divided broadly into civil and administrative matters. This leads to another advantage, namely, that tribunal members can sit in more than one division or stream, thus reducing the likelihood of their taking a narrow approach to legal issues, or becoming ‘captured’ by special interest groups. The advantages were cited by Justice Kevin Bell in his report One VCAT: President’s Review of VCAT (2009) 3.2.14E in words which apply to the state and territory tribunal systems generally. 3.2.14E

Justice Kevin Bell, One VCAT: President’s Review of VCAT Victorian Civil and Adminstrative Tribunal, Melbourne, 2009

[Justice Bell cited Jan Wade in the Legislative Assembly, Victoria, as saying that amalgamation would:] • improve access to justice for all Victorians including the business community; • facilitate the use of technology (such as video link-up and interactive terminals), consequently improving access to justice for Victorians living in both metropolitan and rural areas; • complement measures to increase alternative dispute resolution programs by providing a range of procedures including mediation and compulsory conferences to help parties reach agreement quickly; • streamline the administrative structures of tribunals, thereby improving their efficiency; • develop and maintain flexible, cost-effective practices; • introduce common procedures for all matters, yet retain the flexibility to recognise the needs of parties in specialised jurisdictions; and • achieve administrative efficiencies through the centralisation of registry functions, improvements of information technology systems and more efficient use of tribunals resources.

3.2.15  There are features of the CATs which differ from the original AAT model. There are variations in powers and procedure to take account of the differing civil and administrative review functions, and original and review jurisdictions — while adhering to minimum criteria such as adherence to natural justice, case management and pre-hearing dispute resolution, and often an internal appeal process. The inclusion of the civil jurisdiction leads to different enforcement powers, standards and onus of proof, and suitable membership to hear civil matters. The presence of original as well as review jurisdiction requires more complex provisions relating to appeals, and has been an incentive to provide an appeal process internal to the tribunal. There are also different approaches in relation to the weight to be given to any relevant policy. The AAT has regard to policy, but some of the state and territory CATs must apply government policy in certain circumstances: Cth: Drake v Minister for Immigration and Ethnic Affairs 3.3.10C; NSW: Administrative Decisions Review Act 1997 (ADR Act) s 64; Vic: Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) s 57; WA: State Administrative 162

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Tribunal Act 2004 (SAT Act) s 28. See in general Linda Pearson 3.2.16E, an article written prior to the availability of the Tribunals Amalgamation Act 2015 (Cth), but acknowledging the links between the AAT and the combined jurisdiction tribunals in the states and the territories. The article also predated Burns v Corbett 3.2.6C. 3.2.16E

Linda Pearson, ‘The Vision Splendid: Australian Tribunals in the 21st Century’ in AJ Connolly and D Stewart (eds), Public Law in the Age of Statutes: Essays in Honour of Dennis Pearce, Federation Press, Sydney, 2015

State tribunals evolving from the Commonwealth model The AAT inheritance is clear in the common provisions for judicial leadership (other than ACAT); diversity in membership; flexibility in process, in particular in deciding what evidence to receive; the power to inquire; and the general starting point that each party bears its own costs. There are, however, key differences, many of which are a consequence of the conferral of original jurisdiction in addition to a review jurisdiction, for example the power conferred on VCAT, QCAT, and SAT to grant injunctions and declarations. The High Court acknowledged in Kirk v Industrial Relations Commission that there will be some level of difference between tribunals at the federal and state level. How much difference can be tolerated is yet to be explored, in particular whether there are limits to the ability of a State to confer on a tribunal the exercise of State judicial power, and the further, more complex, issue of the extent to which they may exercise federal judicial power. The statement of objectives for each of the tribunals reflects the difference. The Commonwealth tribunals share the statutory objective that they are to provide ‘a mechanism of review that is fair, just economical, informal and quick’ [although, since 2015, the Commonwealth has additional objectives: see 3.2.31]. In contrast, SAT’s objectives include fair resolution of disputes and decisions, together with the objective of acting as speedily and with as little formality and technicality as practicable, and making appropriate use of members’ knowledge and experience. The objectives of QCAT and NCAT are more elaborately stated. For NCAT, the objects of the CAT Act include ensuring that NCAT is accessible, that it is enabled to resolve the real issues in proceedings ‘justly, quickly, cheaply and with as little formality as possible’, that it is accountable, that its decisions are ‘timely, fair, consistent and of high quality’, and to promote public confidence in tribunal decisionmaking. The objects of he QCAT Act also include enhancing the quality and consistency of decisions made by decision-makers. … One illustration of the complexity arising from the diversity of jurisdiction can be seen in the approach to questions of the burden of proof and the standard of proof. That approach [in McDonald v Director-General of Social Security 3.4.16C] applies for the administrative review jurisdiction of the State tribunals. … In the exercise of original civil jurisdiction, however, the approach is similar to that in the civil courts, namely, that the applicant bears the burden of proof and the civil standard of balance of probabilities applies. … For guardianship, the best interests of the person the subject of the application are paramount, and there is no legal burden of proof. In some occupational disciplinary proceedings… the burden of proof will generally be on the regulatory authority. …

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3.2.16E

Control of Government Action

A further development from the Commonwealth model comes in the diversity of membership. In contrast to the AAT, where the line between the executive and judicial functions of government is clearly drawn, in some respects the State tribunals appear to be more closely aligned with the courts than the executive. QCAT is the most distinctive of the CATs in this regard, where many minor civil disputes are determined by Magistrates, and where there are 100 justices of the peace, including 25 who are legally qualified, appointed under a trial program to determine minor civil disputes. … One aspect in which most of the CATs have departed from the Commonwealth model is provision for representation. … [T]here is no entitlement to legal representation in VCAT, NCAT or QCAT, and leave of the tribunal is required, subject to some exceptions. … ACAT, SAT, SACAT and NTCAT have adopted a different approach, permitting legal representation, and restricting representation by persons other than a lawyer.

Appeal framework 3.2.17  The ALRC Adversarial System Review 3.2.11E illustrates another classification of tribunals by reference to the appeal framework and the tribunal’s jurisdiction. Four broad models for appeals or review of government decisions can be discerned in Australia. First, there is single-tier review by a specialist tribunal such as the Australian Competition Tribunal. After review by the tribunal the next appeal stage was generally limited to judicial review by the courts. In some states and the Northern Territory, examples include the information commissioners and mental health review tribunals. In such tribunals a person can seek review on the merits of a decision before a tribunal with jurisdiction confined to a particular area of government or type of dispute. Usually there is a right to appeal from the decision of the tribunal to a court, but only on a ‘question’ (or ‘error’) ‘of law’. Second, there is single-tier review by a general jurisdiction tribunal. Examples of this model are the Commonwealth AAT, and the state and territory civil and administrative tribunals when providing the first opportunity for independent external review. Again, there is generally a right of appeal to a court on a question of law. Third, there is two-tier review within a single tribunal that has both primary and appellate jurisdiction — such as the AAT on income and child support matters. The tribunal has an appeal panel, which can hear an appeal from the first tier of the tribunal either with full merits review, or on a question of law, and, with the leave of the panel, on the merits. Fourth, there can be two-tier review by two separate tribunals. In the Commonwealth arena, the main example involves an appeal from a separate specialist tribunal (such as the Veterans’ Review Board) to the AAT.

Tribunals in the system of government 3.2.18  A core — but vexed — issue in the study of tribunals is their placement in the system of government. Within the traditional tripartite model of legislature, executive and judiciary, tribunals are located in the executive arm of government. But from a different perspective, other classifications emerge. In the early days of the AAT, the first President, Brennan J, observed: ‘The legislature clearly intends that the Tribunal, though exercising administrative power, should be constituted upon the judicial model, separate from, and independent of, the Executive’: Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 164

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3.2.21

at 161; see also Sir Gerard Brennan 3.2.60E. Such a ‘quasi-judicial’ categorisation is no longer applicable to the AAT. Nor does it apply as easily to many other tribunals, especially those which proceed primarily by written rather than oral submission, or the members of which are short-term, part-time, non-legal appointments. 3.2.19  Faced with this classification difficulty, some writers have described tribunals as ‘occupying the no-man’s land’, neither the lower rung in the judicial system, nor the upper rung in the hierarchy of executive decision-making: L Curtis, ‘Crossing the Frontier between Law and Administration’ (1989) 58 Canberra Bulletin of Public Administration 55 at 56, and P O’Connor, Tribunal Independence, Australasian Institute of Judicial Administration, Melbourne, 2013, p 3 3.2.62E. Tribunals, as that allusion indicates, straddle or occupy an uneasy position between both sectors of government. They perform administrative as well as judicial functions. The uncertainty created by this locational indeterminacy is colourfully illustrated by the extract from R Abella 3.2.20E but also has implications for tribunals’ procedures and powers. 3.2.20E

R Abella, ‘Canadian Administrative Tribunals: Towards Judicialisation or Dejudicialisation?’ (1988) 2 Canadian Journal of Administrative Law and Practice 1

Although [tribunals] have become entrenched and assert competence — no one seriously questions our right to exist — we have become, with our strength, increasingly confused over what our role is and how to play it. Picture the stage. Hovering around it are complementary players. We have the roaming courts, exercising parental supervision over their adolescent offspring and hesitating very little to curb perceived excesses. We have, too, the peripatetic bureaucrats, entering and exiting as the impulse moves them, regardless of what the script says. In the wings are the elected politicians, waiting for their cue to jump in and admonish, but not quite sure what their cue is. In the audience sits a restless public who had thought we had the starring role but sees us forcefully and regularly upstaged by what was supposed to be a supporting cast. And there we stand on centre stage, scratching our heads, with an incomplete script, too many directors, and endless rehearsals. No one wants to close us down, but we are very nervous about the reviews.

3.2.21  Following are two different perspectives on the location of tribunals in the system of government. The first, from P Bayne 3.2.22E, argues that tribunals play a dual role in the systems of both justice and administration. The second, from J McMillan 3.2.23E, argues that it is time to think of tribunals and other oversight bodies as constituting their own branch of government. See also, for justification of the alignment with a judicial model, Sir Gerard Brennan 3.2.60E. For an alternative view on the concept of an integrity branch see The Hon Wayne Martin AC, Chief Justice of WA, ‘Forewarned and Four-Armed — Administrative Law Values and the Fourth Arm of Government’, Whitmore Lecture 2013, (2014) 88 Australian Law Journal 106.

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3.2.22E

3.2.22E

Control of Government Action

P Bayne, ‘Tribunals in the System of Government’ (1990) 10 Papers on Parliament 1

[I]f we are to gain a proper appreciation of the role of tribunals and their place in the system of government we need to see that they occupy a place in both the system of justice and the system of administration. We can view tribunals as part of the system of administration because they decide appeals … The statutes which they administer require the making of judgments which call for choices which must reflect a conception of the social and economic objectives which the statutes support. The cumulative effect of their decisions determines how questions of public policy are answered; for example, just who gets the unemployment benefit, which in turn will affect matters such as the restructuring of the labour market. Thus, we see them as part of the system of administration because an appeal tribunal is doing exactly what the primary decision-maker does. We can also, however, see them as part of a system of adjudication because in deciding particular disputes about these matters they act, and are seen to act, like courts; that is, by the impartial application of the law to facts ascertained through a procedure which is essentially adversarial. It is my argument that if we take the standpoint that tribunals have a dual role, we might get a better answer to a range of questions concerning them — for example: how they should be composed; what the tenure of their members should be; how they should relate to the courts; and how far they should take account of government policy and administrative understanding of the law in the interpretation of the statutes that they administer.

3.2.23E

J McMillan, ‘The Ombudsman and the Rule of Law’ (2005) 44 AIAL Forum 1

The integrity branch of government … Chief Justice Spigelman of the NSW Supreme Court proposed that we should recognise ‘an integrity branch of government as a fourth branch, equivalent to the legislative, executive and judicial branches’. … This idea may seem novel to anyone schooled in the trinitarian separation of powers, but the developments in Australian law and government over the past thirty years are sufficiently momentous to raise questions about the durability of constitutional models and thinking that date from a far earlier age. There are now a great many independent statutory agencies that perform an important accountability and integrity function in the legal system. The list includes AuditorsGeneral, ombudsmen, administrative tribunals, independent crime commissions, privacy commissioners, information commissioners, human rights and anti-discrimination commissioners, public service standards commissioners, and inspectors-general of taxation, security intelligence and military discipline. The functions they discharge embrace legal compliance, good decision-making and improved public administration. But the shared concern of these agencies goes further to embrace institutional integrity The constitutional practice in Australia has been to classify these accountability or integrity agencies as being part of the executive branch of government. When the classification seems

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strained, unsatisfactory hybrid categories such as ‘quasi-judicial’ have been coined (more particularly for adjudicative tribunals). But is the tension now too great? It is misleading to classify many of these agencies as ‘executive’; both their independence and the watchdog role they play in government differentiate them from other agencies in the executive branch. The alternative … is to re-think their classification by taking stock of the enormous change that has occurred in the framework of government.

3.2.24  There may be disputes about the place of tribunals in the framework of government, but there is less dispute about the important role they play. Canadian Chief Justice McLachlin 3.2.26E acknowledges that tribunals are now an indispensable element of the modern state, a change which has arisen, according to former Australian Chief Justice Murray Gleeson 3.2.25E, against a background of the culture of justification that pervades liberal democracies. Similar sentiments have been expressed within Australia. For example, the Council of Australasian Tribunals (COAT) has stated: ‘Tribunals play an essential role in our systems of civil and administrative justice’: COAT, Best Practice Guide to Tribunal Independence in Appointments, Discussion Paper, COAT, Hobart, 2015, at 5. The Productivity Commission has also noted that the three major dispute resolution mechanisms in Australia are the ‘Ombudsmen and complaint bodies; tribunals, and civil courts’: Productivity Commission, Access to Justice Arrangements Report No 72, 2014, Overview at 5. 3.2.25E

Chief Justice Murray Gleeson AC, ‘Outcome, Process and the Rule of Law’

Speech delivered to the Administrative Appeals Tribunal 30th Anniversary, Canberra, 2 August 2006 It would be dangerous for any modern government to disregard what some commentators … have come to describe as the ethos or culture of justification which pervades modern liberal democracies. This has been identified as an aspect of the rule of law. The present Chief Justice of Canada, Chief Justice McLachlin, writing extra-judicially in 1998 on the role of administrative tribunals in that country said: Where a society is marked by a culture of justification, an exercise of public power is only appropriate where it can be justified to citizens in terms of rationality and fairness. Arbitrary decisions and rules are seen as illegitimate. Rule by fiat is unaccepted. But these standards do not just stand as abstract rules. Indeed, most importantly, the ability to call for such a justification as a precondition to the legitimate exercise of public power is regarded by citizens as their right, a right which only illegitimate institutions and laws venture to infringe. The prevalence of such a cultural expectation is, in my view, the definitive marker of a mature Rule of Law. [Emphasis in original.] The development in the Australian community of a cultural expectation that those in authority are able and willing to justify the exercise of power is one of the most important aspects of modern public life. There are, of course, different techniques of justification, appropriate to different conditions and circumstances. Justification does not merely mean explanation. I have been at pains to reject any suggestion that I regard merits review of decision-making by the judicial method as the paradigm of public justification. It is appropriate in some circumstances, and not in others. My point is that unless both merits review, and

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judicial review of administrative action are understood against the background of a culture of justification, they are not seen in their full context … It seems to me that a system of administrative merits review that meets the expectations fostered by a culture of justification relieves the judicial branch of government of pressures to expand judicial review beyond its proper constitutional and legal limits.

3.2.26E

Chief Justice McLachlin, ‘Administrative Tribunals and the Courts: An Evolutionary Relationship’

Speech delivered at the 6th Annual Conference of the Council of Canadian Administrative Tribunals, Ontario, 27 May 2013 On the traditional model of governance, Parliament and the legislatures pass laws. The executive implements and enforces these laws. The courts … interpret and apply the laws … in the course of adjudicating a particular dispute. … Under this traditional model, the executive played a relatively modest role. … But this simple model has increasingly given way to a more complex form of governance. In this new model … the legislatures did not content themselves with passing laws that told people what they must do or not do. Instead, governments began setting up administrative frameworks designed to govern a particular area of human activity. … But unlike the traditional model, most of the heavy lifting was now done by regulations. To administer these government-made rules, various bodies were created. … But inevitably, always, there was a tribunal …to decide issues arising under the scheme. The result was a dramatic shift in who did society’s judging. Vast and unlimited stretches of law and conduct that formerly fell under the jurisdiction of common law courts were swallowed-up by these new schemes. Legislatures could not remove the constitutional power of the courts. But they proved that they could shift much of their work to administrative tribunal. More and more, administrative tribunals regulated the problems created by modern society. It was they who enforced the new laws and interpreted their ambit and provisions.

3.2.27  The remainder of this chapter elaborates a theme which is common to those extracts, namely that tribunals are established to provide a method of dispute resolution generally characterised by speedy processes, minimal fees, reduced reliance on legal representation, and less formal procedures and evidentiary rules. They are expected to be an accessible forum for the adjudication of disputed decisions made by government agencies. The nature of the issue dealt with by a tribunal will sometimes require an adversarial process, and at other times an inquisitorial process. But as French CJ and Kiefel J said in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 603, ‘the term “inquisitorial” has been applied to tribunal proceedings to distinguish them from adversarial proceedings and to characterise the tribunal’s statutory functions’. In other words, tribunals were intended to be different from courts, although they also play a significant, generally adjudicative, role. As a report in 1994 by the Access to Justice Advisory Committee concluded, in a comment applying equally to the Commonwealth, states and territories, ‘a comprehensive, principled and accessible system of merits review’ is essential to an ‘administrative justice system’: at [13.9]. That system of review 168

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is essential because it is the adjudicative system most commonly encountered by the public. In short, tribunals are often the face of justice in government’s dealings with the public: see S Forgie 3.2.28E. 3.2.28E

S Forgie, ‘Commonwealth Tribunals: Past, Present and Future’ Paper presented at the Queensland Law Symposium, Gold Coast, 3 March 2000

The majority of the Australian community would not generally expect to have any involvement with courts. In stark contrast, the AAT is a place to which many Australians have access simply as part of conducting their businesses and professions, meeting their responsibilities and conducting their daily lives. This is so because the decisions subject to review by the AAT are concerned with a broad range of matters that affect people in such matters. This is certainly true of decisions that are described generally as ‘income maintenance decisions’, which concern the various pensions, benefits and allowances payable under the Social Security Act 1991. … the pensions and benefits payable to veterans and war widows payable under the Veterans’ Entitlements Act 1986 and taxation decisions under the Taxation Administration Act 1953. Those engaged in particular businesses or activities may well be affected by decisions made under legislation such as the Customs Act 1901 or the Excise Act 1901. Those decisions may relate to tariffs, bounties and even diesel fuel rebates. A pharmacist may be affected by the pharmacy restructuring scheme instituted by the National Health Act 1953 and may seek review. A pilot or licensed aircraft maintenance engineer may have a licence suspended or revoked and may seek review under the Civil Aviation Act 1988. Similarly, a person who is licensed as a dealer or investment adviser may seek review of a banning order made under the Corporations Law. A person engaged in mariculture or a tour operator may seek review of certain decisions of the Great Barrier Reef Marine Park Authority refusing permission under the Great Barrier Reef Marine Park Act 1975. A person engaged in industry may seek review of decisions made under the Industry Research and Development Act 1986. Those who have been denied access to Commonwealth documents under the Freedom of Information Act 1982 may apply to the AAT for a review of the denial of access. Employees of certain Commonwealth agencies and instrumentalities who are injured during the course of their employment may seek review of decisions made in relation to their entitlements to compensation under the Safety, Rehabilitation and Compensation Act 1988. Even the food we eat and the liquids we drink may become the subject of review proceedings in the AAT, because certain decisions made under the National Food Authority Act 1991 are reviewable in the Tribunal.

Administrative Review Council 3.2.29  The Commonwealth tribunal system was monitored by a government research and advisory body called the Administrative Review Council (ARC) (established by Pt V of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)). The ARC conducted seminal research into the operation of tribunals such as A Guide for Standards of Conduct for Tribunal Members in 2001, updated in 2009, as well as other aspects of administrative justice. The ARC’s reports were widely disseminated within Australia and in other common law countries. The ARC is now inoperative, although the AAT Act has not been amended to delete reference to it. 169

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The tribunal framework in each Australian jurisdiction 3.2.30  There have been, and despite amalgamation there still are, many administrative tribunals in Australia. It is superfluous to list them all. The following summary provides a brief history of the development of the tribunal system in each jurisdiction, with a special focus on the general jurisdiction merits review tribunals that are a distinguishing feature of Australian administrative law. Justification for the introduction of such tribunals was the ad hoc proliferation of tribunals with their additional costs, the attendant confusion for the community, and that having multiple specialist tribunals was antithetical to the accessibility, efficiency, and quality of decisionmaking by tribunals. A larger administrative structure — the ‘one-stop shop’ tribunal — was seen as avoiding these disadvantages. A point common to all tribunals (specialist and general jurisdiction) is that they can review only those decisions specifically identified in legislation. For  that reason, the range of government administrative activity reviewable by tribunals is narrower than those scrutinised by courts undertaking judicial review or ombudsman offices conducting an investigation. At the same time, the volume of civil and administrative matters dealt with by tribunals means they are significant providers of dispute-resolution services. As Linda Pearson 3.2.16E notes there are notable differences between the AAT and the CATs. These are reflected in their objectives, the approach to the burden and the standard of proof, the diversity of membership, and provision for representation. These differences are outlined in the discussion of the states’ and territories’ tribunal systems which follows. The following account of administrative review frameworks around Australia is necessarily brief, and more detail can be found in the articles and reports referred to in this chapter.

Commonwealth 3.2.31  The turning point in the development of the Commonwealth tribunal system was the report of the Commonwealth Administrative Review Committee (Kerr Committee) in 1971 (see 1.4.1 and 1.4.3E) which proposed the creation of the AAT as a single tribunal to review decisions across government, thus replacing many of the specialist tribunals that had earlier been established. The AAT commenced operation in 1976: Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The jurisdiction of the AAT has grown steadily, and the tribunal now reviews administrative decisions under more than 450 different Commonwealth enactments. The AAT has no civil jurisdiction, partly for the constitutional reason that it cannot exercise judicial power. Major areas of AAT review include social security and child support, veterans’ affairs, migration and refugee matters, taxation, employees’ compensation and freedom of information. A full list of relevant statutes is given in The Australian Administrative Law Service (LexisNexis, looseleaf ). An emphasis on pre-hearing dispute resolution processes is a feature of the AAT’s operations. Prior to amalgamation in 2015, over 80 per cent of applications to the AAT were disposed of without a hearing, including through a range of pre-hearings procedures: AAT Act Pt IV Div 3. Since 2015, with the addition to the AAT of migration and refugee reviews, and social services and child support matters, in which the AAT is not required to finalise matters through pre-hearing processes, the overall proportion of matters that are finalised without a hearing has dropped to just over one-quarter of applications: AAT Annual Report 2016–2017 at 23. 3.2.32  Despite the establishment of the AAT, from the 1980s specialist tribunals were created in areas of high-volume administrative decision-making. These included the Social Security Appeals Tribunal (SSAT), the Veterans’ Review Board (VRB), the Refugee Review 170

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Tribunal (RRT) and the Migration Review Tribunal (MRT). The SSAT and the VRB were intermediate external tribunals with a right of appeal to the AAT; there was a limited right of review in relation to migration and refugee matters. The proliferation led to a recommendation in 1995 by the ARC to amalgamate the high volume Commonwealth specialist tribunals into a new tribunal, to be called the Administrative Review Tribunal (ART): ARC, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39, Commonwealth of Australia, Canberra, 1995. The legislation implementing this proposal was defeated in the Senate in 2001. However, the proposal was not forgotten. A Tribunal Efficiencies Working Group Report in 2004 recommended co-location as a measure to reduce costs and streamline the efficiency of Commonwealth tribunals. In 2012, the government instituted the recommendations of the Strategic Review of Small and Medium Agencies in the Attorney-General’s Portfolio: Report to the Australian Government (Skehill Review). The Skehill Review included a suggestion that the ART proposal in its original form be ‘endorsed as the Government’s desired end-state’: Recommendation 7.1 at 90. 3.2.33  The National Commission of Audit in 2014 again recommended merging the Commonwealth’s ‘civilian merits review tribunals’: National Commission of Audit report, Towards Responsible Government, Phase I, 2014, at 211–2. The government accepted the recommendation and announced in the May 2014 budget that amalgamation of the AAT and key federal tribunals was to be implemented by 1 July 2015. The legislation to introduce the amalgamated body, the Tribunals Amalgamation Act 2015 (Cth) (TAA), which amended the AAT Act, was assented to on 26 May 2015 and the nominated tribunals, other than the Classification Review Board, were merged on 1 July 2015. The amalgamated tribunal continues to be known as the AAT. The Veterans’ Review Board (VRB), a high volume tribunal, was a signal omission from the enlarged AAT. Other specialist national tribunals not included were the Australian Competition Tribunal, the Copyright Tribunal of Australia, the Defence Force Discipline Appeal Tribunal and the National Native Title Tribunal. Their caseloads are low, and funding for these bodies, and the management of native title claims, are administered by the Federal Court: Skehill Review [7.47]–[7.49] at 95. 3.2.34  The AAT has an expanded set of objectives in s 2A of the AAT Act, namely: In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review of administrative decisions that: is accessible, is fair, just, economical, informal and quick, is proportionate to the importance and complexity of the matter and promotes public trust and confidence in the decision-making of the Tribunal.

3.2.35  The amalgamated AAT is divided into eight divisions: general; migration and refugee; national disability insurance scheme; security; social services and child support; taxation and commercial; freedom of information; and a ‘prescribed’ division which includes the veterans’ appeals division. Under the new arrangement there is a designated Deputy President for the migration and refugee division, and for the social services and child support division, signalling the intention that those jurisdictions will have a significant degree of autonomy. The President remains a Federal Court judge. Deputy Presidents are to be judges of the Federal Court or the Family Court, legal practitioners of at least five years’ standing, or persons with special knowledge or skills relevant to the duties of a Deputy President: AAT Act s 7. The migration and refugee division, and to a lesser extent the social services and child support division, at first review maintain, for the most part, their existing guidelines and operative procedures, although 171

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tribunal-wide guidelines generally apply: AAT Act s 18B. There is a second, internal right of review (second review) on social services and child support matters from the initial consideration by the tribunal. This is the only area in which there is a right to AAT internal review. The procedures for second review are those generally applicable in the current general division of the tribunal: AAT Act s 44(1A). There is a right of appeal from the AAT to the Federal Court under s 44 on a ‘question of law’, except for certain migration and refugee decisions. Review for these matters is confined to judicial review: AAT Act s 43C. In some instances, a party to a child support first review may appeal to the Federal Circuit Court instead: AAT Act s 44(1A). The Immigration Assessment Authority, set up by executive power after 13 August 2012 to fast-track protection visa applications and decisions on unauthorised maritime arrivals, is to continue under the nominal control of the AAT’s President: TAA Sch 2; AAT Act s 24N. See also R Creyke, ‘Tribunal Amalgamation 2015: An Opportunity Lost?’ (2016) 84 AIAL Forum 7.

Australian Capital Territory 3.2.36  On self-government the Australian Capital Territory set up an AAT in the Commonwealth model: Administrative Appeals Tribunal Act 1989 (ACT). Since 2009, however, the ACT has had a combined civil and administrative tribunal, the ACT Civil and Administrative Tribunal (ACAT) which comprised 16 former review jurisdictions and tribunals and the Small Claims Court: ACT Civil and Administrative Tribunals Act 2008 (ACT) (ACAT Act). The creation of the ACAT builds on a series of reports since 1990 that debated the options either of amalgamating tribunal functions in one larger tribunal, or instead vesting the merits review function in the Magistrates Court and the Supreme Court. A theme common to both options is that the cost of the justice system can be a financial burden for a small jurisdiction, and that, in the absence of a constitutional barrier, administrative and civil functions can be combined in an efficient manner. 3.2.37  The objects of the ACAT Act include the requirements for accessibility, cheapness, fairness, and speediness of review, to enhance the quality of government decision-making, to encourage compliance with legislation, and to notify the Attorney-General of systemic problems in the operation of legislation: ACAT Act s 6. The major areas of jurisdiction of the ACAT include land planning, freedom of information, stamp duty, liquor licensing, tree preservation and housing assistance. The new tribunal also takes over the work of 15 other specialist tribunals, such as the Guardianship and Management of Property Tribunal, the Credit Tribunal, and some disciplinary-specific tribunals. There is a Code of Practice which ensures that people whose interests are affected by a decision of the ACT government are advised of their right of review in the tribunal. Unlike its counterparts in the states and the Northern Territory, the ACAT is not headed by a judicial officer. There is a full de novo right of internal appeal, with limited exemption, from its original jurisdiction (ACAT Act s 79), and a right of appeal to the Supreme Court on a question of fact and law: s 86.

New South Wales 3.2.38  Despite government reports as early as 1973 recommending the setting up of a general jurisdiction merits review tribunal, it was not until 1998 that the Administrative Decisions Tribunal (ADT) was established with both civil and administrative functions: see Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act). The ADT had jurisdiction under some 130 Acts. However, the majority of its work related to occupational licences, state taxation, access 172

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to government information or privacy, and decisions of the Public Guardian or the Protective Commissioner. A feature of the ADT was the Appeal Panel, which heard appeals on a question of law and, with the leave of the panel, the merits of the decision. Throughout its existence the caseload of the ADT was relatively slight. That situation was unlikely to change with the establishment in 2002 of the Consumer, Trader and Tenancy Tribunal (CTTT): Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). The CTTT, as its name suggests, spanned several specialist, mostly civil, areas and it became one of the busiest tribunals in the country. 3.2.39  Following a parliamentary report in 2012 (NSW Legislative Council Standing Committee on Law and Justice, Opportunities to Consolidate Tribunals in NSW, Report No 49, 2012) the CTTT, the ADT, and over 20 other tribunals were amalgamated into the New South Wales Civil and Administrative Tribunal (NCAT): Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The NCAT commenced operations on 1 January 2014. For NCAT, the objects of the NCAT Act include ensuring that NCAT is accessible, that it is enabled to resolve the real issues in proceedings ‘justly, quickly, cheaply and with as little formality as possible’, that it is accountable, that its decisions are ‘timely, fair, consistent and of high quality’, and that it ‘promote[s] public confidence in tribunal decision-making’: NCAT Act s 3. A feature of NCAT is that, unlike some of the other multi-purpose tribunals, it has chosen to preserve features of some of the specialist tribunals which have been amalgamated rather than taking a ‘one size fits all’ approach. This recognition of the diversity of its jurisdictions is reflected in its legislative framework. Provision for its differing jurisdictions is made in the New South Wales Administrative Decisions Review Act 1997 (ADR Act), a version of the ADT Act recast to take account of the amalgamation for the NCAT, the Civil and Administrative Tribunals Regulations 2013 (NSW), the Civil and Administrative Tribunal Rules 2014 (NSW), as well as the NCAT Act itself. A small number (seven) of specialist tribunals, including the Mental Health Review Tribunal, the Industrial Relations Commission and the Workers Compensation Commission, were not included. 3.2.40  NCAT operates in four divisions: administrative and equal opportunity, consumer and commercial, occupational, and guardianship: NCAT Act s 16. The internal appeal equates to the ADT’s appeal panel, and the external appeal jurisdiction permits appeal from an ‘appealable external decision’ or an ‘external appeal’ as provided for in other legislation: NCAT Act s 31. External appeals, enforcement and civil penalty decisions may not be the subject of an internal appeal: NCAT Act s 32(3). The President must be a judicial officer: NCAT Act ss 4, 9(2). In 2014, its first year of operation, NCAT conducted 92,000 hearings. NCAT operates in close to 80 sites in outer urban areas and throughout New South Wales. See T Smyth, ‘A Less Complex, Less Bewildering Avenue for Merits Review: NCAT in New South Wales’ Paper presented at the National Conference, Australian Institute of Administrative Law (AIAL), Perth, July 2014.

Northern Territory 3.2.41  The Northern Territory has a general jurisdiction tribunal, the Northern Territory Civil and Administrative Tribunal (NTCAT): Northern Territory Civil and Administrative Tribunal Act 2014 (NT) (NTCAT Act). The tribunal commenced on 1 January 2015, with its jurisdiction progressively being granted as legislation is amended. The reform followed a recommendation for such a body by the Northern territory Law Reform Committee, in 1991, repeated in a report in 2004. The President is either a magistrate or someone eligible to be a 173

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magistrate: NTACT Act ss 3, 13. The first President is a barrister. The new tribunal absorbs the functions of some 35 commissioners, tribunals, committees and boards. The NTCAT has both original and review jurisdiction (ss 31, 32, 33) and an internal review function which includes review of the tribunal’s own decisions: s 140. Jurisdiction extends over civil disputes, administrative review, regulation of the professions, and protection of civil rights. External appeals go to the Northern Territory Supreme Court on a question of law: s 141. Novel elements of its objectives include to ‘promote the best principles of public administration’; ‘be responsive to parties, especially to people with special needs’; and to ‘use straightforward language and procedures’: NTCAT Act s 10.

Queensland 3.2.42  In 1989 the Fitzgerald Report (Report of the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct) criticised the absence of a general process of review by an independent external review body or bodies in Queensland. In 1993, the Electoral and Administrative Review Commission in its Report on Review of Appeals from Administrative Decisions recommended the introduction of a general jurisdiction tribunal in Queensland: Vol 1, [2.154]. The recommendations bore fruit in 2009 with the establishment of a Queensland Civil and Administrative Tribunal (QCAT) combining the functions of over 19 different administrative review bodies as well as the civil justice function of courts at all levels in the hierarchy. QCAT commenced operations in 2010: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The objects of the QCAT Act also include enhancing the quality and consistency of decisions made by decision-makers, and the openness and accountability of public administration: QCAT Act s 3. The QCAT Act emphasises pre-hearing dispute settlement, and QCAT has original and review jurisdiction. Legal representation is prohibited except with leave in most matters (s 43), and the President of QCAT may make recommendations to the head of an agency as to the agency’s ‘policies, practices and procedures’: s 24(3). There is a right of appeal internally against a QCAT decision, and a right to appeal, externally, to the Queensland Court of Appeal with leave. The appeals provisions are complex but may include questions of law or of fact, or of mixed law and fact: ss 142, 149–150. A few tribunals, including the Queensland Industrial Relations Commission, have not been included in QCAT.

South Australia 3.2.43  The creation of a General Appeals Tribunal was recommended in 1984 by the Law Reform Committee. This proposal was not implemented, and instead in 1991 a merits review function was conferred on a newly established Administrative and Disciplinary Division of the District Court of South Australia: District Court Act 1991 (SA) s 7. However, in 2013 the South Australian Civil and Administrative Tribunal Act 2013 (SA) (SACAT Act) came into effect, providing for a multi-purpose civil and administrative tribunal (SACAT). SACAT has taken over the functions of the Administrative and Disciplinary Division of the District Court. Jurisdiction is divided into three streams: community matters, housing and civil matters, and administrative and disciplinary matters. The jurisdiction will progressively expand as legislation granting review or dispute resolution powers is allocated to the new tribunal. The SACAT is headed by a judge of the Supreme Court or the District Court: SACAT Act s 10. Magistrates

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may also be designated as members of the tribunal: s 18. The SACAT has both original and review jurisdiction and there is internal review of tribunal decisions: s 70. There is a full right of appeal, generally by leave, to the South Australian Supreme Court: s 71. The tribunal aims to be accessible and cases can be heard in regional areas and via video-conferencing or telephone. Members will travel to locations such as hospitals if applicants are not mobile. Alternative dispute resolution is encouraged and there are facilities for lodgment of documents online, with assistance being provided as required.

Tasmania 3.2.44  As in other states, various proposals have been put forward for reform of the administrative appeals framework. These first resulted in the enactment of the Magistrates Court (Administrative Appeals Division) Act 2001 (Tas) which commenced operation on 1 July 2002. The model, adopted largely for cost reasons, was the creation of an administrative appeals division of the Magistrates Court, headed by a magistrate, rather than a stand-alone general jurisdiction administrative tribunal. The division took over the jurisdiction of about 50 industry and public sector boards, tribunals and courts. An innovative feature of the Act is that it establishes a general framework for internal review of all decisions over which the court has jurisdiction. The right to internal review must be exercised before the jurisdiction of the court is invoked. In 2015 the Department of Justice published a detailed blueprint for an amalgamated tribunal, A Single Tribunal for Tasmania: Discussion Paper. The proposal remains under active consideration. Presently in Tasmania there are also many specialist review bodies. A list is available on the website of the Tasmanian Justice Department.

Victoria 3.2.45  In 1984 Victoria was the first state jurisdiction to establish an Administrative Appeals Tribunal. In a move designed to rationalise the tribunal system it was replaced in 1998 by the Victorian Civil and Administrative Tribunal (VCAT): Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). VCAT, the first of the CATs and the model for other state and territory multi-purpose tribunals, was given both a civil and an administrative jurisdiction. VCAT has four divisions: administrative, civil, human rights, and residential tenancies. The Civil Division is a ‘court substitute’ body with an original jurisdiction to adjudicate minor civil disputes between citizens in areas such as consumer matters, domestic building works, and retail tenancies. The Administrative Division undertakes merits review of government decisions in selected areas such as professional conduct inquiries, land and environment, transport accidents, taxation, freedom of information, occupational licensing and business regulation. A Human Rights Division handles matters relating to guardianship and administration, equal opportunity, health and privacy, and mental health. There is also a residential tenancies division. There is no right of internal review or appeal. Features of VCAT include that it is headed by a Judge of the Supreme Court; it is required to undertake compulsory conferences and mediation and may refer matters to experts; it is obliged to decide consistently with government policy, where the policy has been gazetted or the citizen is likely to be aware of the policy; and its accessibility is enhanced through regional circuits and hearings in non-traditional venues such as hospitals and aged-care facilities. Its objects are to act fairly, informally and speedily: VCAT Act ss 97, 98(1).

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Western Australia 3.2.46  In 1982 the Law Reform Commission of Western Australia had recommended against introduction of a tribunal with jurisdiction over administrative decisions by government, opting instead to allocate the jurisdiction to the courts: The Law Reform Commission of Western Australia, Report on Review of Administrative Decisions: Appeals, Project No 26, Pt 1 at [4.1]. Ten years later in 1992 a royal commission recommended there be an administrative appeals tribunal: Report of the Royal Commission into Commercial Activities of Government and Other Matters, 1992, at [3.52]. Subsequent reports, including the Gotjamanos report (Report of Tribunals Review to the Attorney General) in 1996, affirmed that recommendation. In 2005 the state government implemented a further proposal of the Western Australian Civil and Administrative Review Tribunal Taskforce and established a State Administrative Tribunal (SAT). The SAT replaced most of the existing administrative review, civil and disciplinary functions of existing industry and public sector boards and tribunals: State Administrative Tribunal Act 2004 (WA) (SAT Act). 3.2.47  The SAT is headed by a President who is a Supreme Court Judge; it has both an original jurisdiction in civil matters and an administrative review function; it operates within four streams — commercial and civil, development and resources, human rights, and vocational regulation. The objectives of the SAT include fair resolution of disputes and decisions, acting as speedily and with as little formality and technicality as practicable, and making appropriate use of members’ knowledge and experience: SAT Act s 9. The SAT has jurisdiction under approximately 150 pieces of legislation. The President can recommend matters which should be added to the tribunal’s jurisdiction and for law reform generally: s 150(5). There is no internal appeal mechanism. Appeals may be brought with leave on a question of law to the Western Australia Court of Appeal if the tribunal included a judicial member, or otherwise to the trial division of the Supreme Court: s 105. The SAT does not have jurisdiction over industrial relations or freedom of information. If a minister certifies that a primary decisionmaker took into account government policy, the SAT must also have regard to that policy: s 28(2). Regional areas in this largest of Australian states is managed by hearings on circuit, or use of telephone and video conferences. The state ombudsman and the tribunal cooperate in relation to public education, training of tribunal members, and referral of cases.

Integration of Commonwealth, state and territory administrative review schemes 3.2.48  The jurisdiction of most Australian tribunals is confined to issues arising under the laws of the local legislature. There are some exceptions. Cooperative or integrated review schemes have been established by legislatures in different jurisdictions adopting or enacting legislation which provided that appeals will go to a single tribunal in one location. For example, administrative appeals under s 1317B of the Corporations Act 2001 (Cth) go to the AAT, as do disputes under joint Australian/New Zealand legislation relating to food standards and occupational qualifications in each country, while appeals on financial institutions regulation go to a tribunal established by the Queensland Parliament: see Australian Financial Institutions Commission Act 1992 (Qld). (This integration is not affected by the decision in 1999 in Re Wakim; Ex parte McNally (1999) 198 CLR 511 (see 2.2.58) as tribunals do not exercise federal judicial power, being located in the executive branch of 176

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government: Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85.) Harmonisation of review rights also occurs, an example being the Health Practitioner Regulation National Law set out in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld), substantially replicated in each state or territory. That law provides that reviews are to be conducted by a ‘responsible tribunal’ as designated in the corresponding law of participating states and territories. These moves towards integration and harmonisation were encouraged by the Hilmer Report in 1993, which proposed the removal of internal barriers to domestic competition and of inconsistent regulatory standards: National Competition Policy — Report by Independent Committee of Inquiry, 1993. This objective has been repeated regularly in the communiques of the Council of Australian Governments (COAG). 3.2.49  The harmonisation trend has been bolstered by other developments. In 2002 the Council of Australasian Tribunals (COAT) was established to facilitate information exchange among tribunals, joint research and training, and development of national performance standards and model procedural rules. For example, COAT published the Australia and New Zealand Tribunals Excellence Framework in 2017. COAT has also produced a practice manual covering statutory interpretation, procedural fairness, conducting hearings and making decisions, has done comparative surveys of remuneration levels of tribunal members, and appointment and reappointment processes, and has produced the report Recommended National Standards for Working with Interpreters in Courts and Tribunals, 2017. In 2008 the Victorian Law Reform Commission made recommendations on the harmonisation of the rules of civil procedure within and across jurisdictions: Civil Justice Review, Report No 14, 2008. 3.2.50  The integration of administrative review rights can also cross national or jurisdictional boundaries. In bilateral trade agreements to which Australia is a party, such as the United States/Australia Free Trade Agreement, there is recognition that administrative review bodies in each country can hear disputes arising in either country.

Appeals 3.2.51  A further common aspect of the merits review framework in each jurisdiction is the right to appeal against a tribunal decision: 3.2.17. For a discussion of the meaning of ‘appeal’ and ‘review’ see 3.3.1ff. Some tribunal systems provide a right to appeal on the merits (that is, on issues of fact and law), either internally to an appeal panel of the tribunal, or externally to another tribunal or court: see 3.2.17. In each jurisdiction, legislation commonly provides a right of appeal from its tribunals to the courts on a ‘question’, or ‘error’ of law. An example is the right to appeal from the Commonwealth AAT to the Federal Court on a question of law: AAT Act s 44. In the states and territories, the appeal is usually to the Supreme Court or the Court of Appeal. The restricted right of appeal at the federal level — on legal rather than factual issues — rests on the constitutional separation of judicial and executive power. As the High Court in Repatriation Commission v Owens (1996) 70 ALJR 904 noted of the federal jurisdiction: Brennan CJ, Gaudron and Gummow JJ: The purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with not by the Federal Court but by the Administrative Appeals Tribunal. This distribution of function is critical to the correct operation of the administrative review process. 177

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The issue of what constitutes a ‘question of law’, and the contrasting concept of issue of fact, is examined in Chapter 13. The different legislative formulae for conferring rights of appeal are also examined in 3.3.38ff. 3.2.52  Section 44(1) of the AAT Act provides that a party may appeal from a decision of the AAT on a question of law from a decision of the tribunal, other than certain decisions in the migration and refugee division, and in the social services and child support division where previously an appeal lay to the Federal Court or the Federal Circuit Court. What is meant by ‘decision’ in the AAT Act was discussed in Director-General of Social Services v Chaney (1980) 30 ALD 161 in which Deane J (with whom Fisher J agreed generally) said: The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s  43 of the Act. The qualifications referred to are an appeal pursuant to s 44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent ‘decisions’ may properly be given.

3.2.53  The ‘decision’ may be that no interests are affected or relate to part only of a matter in dispute: Commissioner of Taxation v Cancer and Bowel Research Association (2013) 305 ALR 534 at [8]–[10]. There is a restricted right for the Federal Court also to make findings of fact: AAT Act s 44(7)–(9). Little use has been made of these provisions: R Creyke, ‘Judicial Review and Merits Review: Are the Boundaries Being Eroded?’ (2017) 45 Federal Law Review 627.

Tribunal independence of government 3.2.54  The starting point for discussion of independent adjudication is the separation of powers doctrine. That doctrine provides for the independence of courts from direct control by the legislature and the executive in discharging their functions. That independence, constitutionally confirmed by the Act of Settlement 1701 (UK), is chiefly protected by the security of tenure given to judicial appointees supplemented by other practices and conventions such as courts’ control of their administration, budget and rules, and governments’ acknowledgment of the need for restraint in public discussion of the performance of judicial officers. 3.2.55  What of tribunals? Today the constitutional orthodoxy is that they are part of the executive branch of government. Accordingly, it might be expected that tribunals would be responsive to the same policy, resource and other pressures that bear upon government officials. However, tribunals are expected to exhibit impartiality and fairness. Public confidence would be undermined if tribunals were subject to governmental influence in the same direct way as other executive officers. Tribunal independence is, therefore, a constant theme that has been echoed in landmark Australian reviews, such as the ARC’s Better Decisions report (see chs 4, 7, and 8 at [8.80]–[8.82]) 3.2.32; the ALRC’s Managing Justice report in 2000 3.4.2E (see [9.15]–[9.20]); P O’Connor, Tribunal Independence 3.2.62E; and COAT’s Australia and New Zealand Tribunal Excellence Framework (2017) and Tribunal Independence in Appointments – A Best Practice Guide (2016). 178

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3.2.56  The practical imperative for tribunal independence was referred to in the Skehill Review 3.2.32 as due to the need to avoid a perception of conflict of interest: [2.17(b)(iii)] … acceptance of the outcome of review of decisions of the Executive sought by citizens who remain aggrieved even after internal review within the executive requires the existence of independent tribunals.

As Justice Iain Ross noted in his foreword to P O’Connor’s report 3.2.62E: Like other justice institutions, tribunals rely ultimately on public confidence and the consent of the governed. The extent to which a tribunal is independent of the Executive influences public perception about the tribunal’s impartiality. Impartiality is essential for the determination of just, predictable decisions and the acceptance of those decisions by the community. It is for this reason that tribunal independence matters.

3.2.57  Indicators that tribunals were intended to be independent were discussed by Justice Morris, then President of VCAT, who said tribunals often have features indicating they are ‘designed to promote both institutional and individual independence’: VCAT Annual Report 2004–05 at 10. For example: VCAT is headed by judges. Members are properly remunerated. Full-time members are precluded from taking other employment. Members have immunity from being sued for things done in exercising power. In exercising power, members of VCAT are obliged to act fairly and in accordance with the rules of natural justice.

3.2.58  Pamela O’Connor in Tribunal Independence 3.2.62E noted that tribunal independence is ‘an area of tribunal quality that raises difficult conceptual questions’ because ‘[w]e lack a developed theoretical and empirical understanding of the institutional design elements required to secure independence’: Preface, ix. Her monograph expanded the aspects of tribunal independence to include administrative independence (funding, premises, resources, including staff ), institutional independence (appointments, security of tenure and remuneration), and adjudicative independence (duty of impartiality, compliance with codes of conduct, confidentiality of information, professional development, and power to review policy). Whether an appropriate balance has been struck between tribunals’ placement in the executive branch of government, and the need for them to be perceived as independent, has, in every age, been a controversial issue. 3.2.59  The Australian Government’s ART proposal in 2000 (see 3.2.32ff) reflected in part the government’s concern that tribunal adjudication should better reflect the needs and objectives of the democratically accountable executive government. The parliament’s refusal to pass the ART Bills reflects a schism in thinking about the structural model for tribunal decisionmaking, illustrated in two of the following extracts. In one extract, 3.2.60E, Sir Gerard Brennan, the first President of the Commonwealth AAT, advocates that tribunals should embrace the judicial model. In the other extract, 3.2.61E, S Skehill, then Secretary of the Commonwealth Attorney-General’s Department, and formerly the Principal Member of the Veterans’ Review Board, emphasised that tribunals must function as part of the executive branch of government. At the same time, both are in agreement that tribunal independence is important. A third view is that the independence of tribunals must be secured in a context that takes account of other tribunal features, such as flexibility in appointments and use of part-time, expert members. This 179

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view finds expression in the ARC’s Better Decisions report (see ch 4); P O’Connor, Tribunal Independence 3.2.62E; and COAT, Australia and New Zealand Tribunal Excellence Framework, 2nd ed, 2017, where independence is listed as the first of eight indicia: at 11. 3.2.60E

Sir Gerard Brennan, ‘Foreword’ in R Creyke (ed), Administrative Tribunals: Taking Stock, CIPL, 1992

Public confidence in, and independent decision-making by, tribunals are better secured by their embracing the judicial model … [M]ost importantly, the tribunal must be and be seen to be independent of the executive branch of government … It is only if the tribunal sees itself as independent of the executive branch of government that it will be so regarded by the executive; it is only if it regards itself as an elite repository of power, supported by public confidence in its integrity, that it will ensure respect for its status. If the tribunal does not see itself in this role, its status will be diminished. Its offices will be filled by nominees of convenience and ultimately the institution will lack support and its resources will be withdrawn. By contrast, a tribunal of independence and competence provides great benefits: it releases the political system from the burden of reviewing administration case by case and allows the political system to concentrate on the making of laws and broad policies. Such a tribunal provides a manifest benefit to the community by giving an assurance of integrity and legality in administrative justice. I would respectfully agree with the observations of Mr Robert Todd, a distinguished Deputy President of the Commonwealth Administrative Appeals Tribunal and President of the Administrative Appeals Tribunal of the Australian Capital Territory: … when the chips are down, it is not the Parliament that secures our freedom and our rights; it is certainly not executive government that does so; it is the law in the hands of a fearless and independent judiciary and, nowadays, in the hands also of members of a peak administrative tribunal.

3.2.61E

S Skehill, ‘The Impact of the AAT on Commonwealth Administration: A View from the Administration’ in J McMillan (ed), The AAT — Twenty Years Forward, AIAL, 1998

Clearly the pursuit of the correct or preferable decision is at the heart of [a tribunal’s] role, but is it coextensive with and definitive of the role? I believe that any administrative tribunal which sees its role in this limited light falls into serious error. There is no constitutional principle of separation of powers that applies to administrative tribunals. They are, and need to see themselves as, part of the executive arm. As such, they have, and need to see themselves as having, a role of working with the other elements of the executive arm in promoting normative or systemic change and enhancement in the quality of decision-making across the board … [A tribunal] should actively be seeking to work with agencies whose decisions it reviews to help them to develop decision-making systems and training and to enhance policies and processes with a view to minimising the risk of further mistaken or inappropriate

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decisions. In a sense, administrative tribunals should be working with the other elements of the executive arm to so improve the quality of primary decision-making that the need for the continued existence of the tribunal becomes an issue in itself. I believe it is not sufficient for tribunals to say that they already fulfil this role through their statements of reasons for decision. Seldom do these adequately address the issues. Too frequently they are simply negative. What is needed is a far more positive and productive discourse between tribunal and agency … I believe this role can be undertaken with propriety and without prejudice to the independence of tribunals. Undoubtedly it requires care and deliberation, but that is not a reason for avoiding the challenge.

3.2.62E

P O’Connor, Tribunal Independence Australasian Institute of Judicial Administration, Melbourne, 2013

The model used in this study comprises the three aspects of independence as outlined below … Administrative independence The concept of branch independence for the judiciary includes a claim by the courts to control their governance, finances and personnel. Tribunals, like courts, require resources to maintain effective adjudication. Lack of control over resources can reduce the tribunal’s ability to maintain the administrative, procedural, staffing and spatial arrangements that ensure impartial and effective adjudication. Institutional independence Institutional independence is concerned with the tribunal’s structural and institutional relationship to the executive… The executive is empowered to make key decisions relating to tribunal members, including appointment, reappointment, promotion, term of office, rates of remuneration and allowances, conditions of office, suspension and removal from office. … Institutional independence is about arrangements to ensure that executive power to appoint and remunerate members do not influence the outcome of tribunal decisions or impair the perception of impartiality. Adjudicative independence Adjudicative independence derives from the ‘individual’ aspect of judicial independence. It is concerned with the ability of tribunal members and panels to make decisions impartially, free from external interference or improper influence from any source, including the executive, the parties, other external persons, and even from the tribunal head and other members. Formal safeguards include judicial review and its grounds, including the common law bias rule, tribunal codes of conduct, and provisions in tribunal legislation relating to matters such as oath of office, immunity from suit, disclosure of interests, disqualifications and restrictions on employment. Integration of elements in a conceptual model The focus of each of the three aspects of independence can be distinguished as follows. Administrative independence … is about the arrangements that enable the tribunal as an entity to perform its statutory functions. Institutional independence … is about executive power that affect the members of the tribunal as constituted from time to time. Adjudicative

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independence … is about relationships that affect members and panels in operation as adjudicators. … [I]nstitutional and adjudicative independence maintain the impartiality required for effective adjudication. Administrative independence supports impartiality by securing control of the resources required for institutional and adjudicative independence. It also contributes to effective adjudication in other ways, such as by enabling the provision of competent and effective registry services.

3.2.63E

G Fleming, ‘Tribunals in Australia: How to Achieve Independence’ in R Creyke (ed), Tribunals in the Common Law World, Federation Press, 2008, p 86

[N]o single factor can be said to secure or defeat tribunal independence. The context of a tribunal, in terms of its unique jurisdiction, statutory framework, and relationship to judicial review and membership, will dictate the appropriate mix of characteristics that demonstrate independence … There is general agreement on the factors that impinge upon [the] achievement [of tribunal independence]. Structural, institutional and systemic issues include: legal guarantees that allow the tribunal to operate at ‘arms length’ from the executive; the terms of appointment of members; administrative independence from the primary decisionmaking agency; the degree of policy control over the decision-making process; restrictions on appellate and judicial review of tribunal decisions; and the extent of legislative and regulatory control of tribunal members by parliament and the executive (including the degree of discretion conferred on the tribunal member by legislation, regulation or direction) … Tribunal objectives also reflect a fundamental difference between notions of judicial accountability and tribunal member accountability. Judges are held accountable, inter alia, through the public hearing of cases, the publication of written reasons and the supervision of appellate courts. Tribunals often operate differently. Hearings may not be in public and written reasons may be discouraged in the interests of timeliness and efficiency. There may be statutory or resource restrictions on the publication of reasons. Tribunal members, unlike judges, are appointed for limited terms and may be removed from office under the provisions of their enabling acts. Concern has been expressed that this risks the dilution of the principle of judicial independence, has the potential to erode its value in the judicial context and thus fundamentally erodes the application of the rule of law to the review of administrative action. But the nature of tribunal review requires a different understanding of independence and accountability in terms of the performance of a tribunal’s statutory function Ten Characteristics of Independence [T]en characteristics [are] relevant to the determination of whether any particular tribunal is independent ‘enough’ to honour the underlying values of fairness and impartiality in decisionmaking. Judicial leadership, administrative and financial autonomy and appellate review, are essentially structural, institutional concerns. They establish the standing of a tribunal

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relative to both the broader justice system and the machinery of government. Characteristics four to seven concern tribunal membership: the need for transparent member appointment processes, members’ tenure, the fair determination of member remuneration and conditions, and the establishment of a performance management system that does not interfere with decision-making in the instant case. The need for a clear statement of legislative intent in relation to independence, the development of statutory consultative structures and public reporting go to issues of tribunal accountability. They promote public trust and confidence in the tribunal system and articulate tribunal independence to users and the broader community.

3.2.64  As G Fleming 3.2.63E acknowledges, no single one of the elements she identified is sufficient to indicate tribunal independence. There is a spectrum of need for and possession of independence by tribunals. The result is a constellation of elements which contribute to independence, defined somewhat differently, but essentially focusing on the same categories. P O’Connor’s model of tribunal independence 3.2.62E identifies three categories: administrative independence; institutional independence; and adjudicative independence. There are common themes in each definition of independence. 3.2.65 First, membership: how should tribunal members be appointed, and what term of membership and conditions of appointment should they enjoy? Tribunal members are, of necessity, appointed by an executive officer such as a minister. In a few Australian tribunals the members have the same security of tenure as judicial officers, but more commonly the members (particularly part-time members) are appointed for a fixed term only. The term is usually in the range of three to seven years, though has been as low as six months. The issue is taken up in the ARC’s Better Decisions report (ch 4) and in the following extracts. The Better Decisions report of the ARC at 81–5 takes the view that independence, important though it is, has to be secured differently for tribunals as contrasted with courts, a view supported by G Fleming 3.2.63E and by P O’Conner 3.2.62E who commented: ‘Independence is not absolute but exists as a matter of degree’: at 26. 3.2.66  Second, there is the issue of management: how should a tribunal be managed, and what relationship should exist between the tribunal and the agencies whose decisions are being reviewed? It has generally been assumed that a tribunal should be housed separately from the agency whose decisions it is reviewing, and that the tribunal should have some control over its own budget and staff: see P O’Connor 3.2.62E. A tentative suggestion in the Skehill Review that corporate services be centralised within government would limit that level of control: Skehill Review, rec 7.11. Should the portfolio responsibility in government still reside with the relevant agency, on the basis that the adjudication by the tribunal must, at the end of the day, contribute to better decision-making in that agency? Or should it be associated with a neutral agency such as the ministry of justice? Or the premier’s department? Another aspect of internal management that impinges on the question of independence has to do with the evaluation of the performance and efficiency of tribunal members. Should this be left to each tribunal member, in recognition of their independence, or should objective standards for performance appraisal be applied to all those who exercise public sector power? The ARC’s Guide to Standards of Conduct for Tribunal Members (2001) is relied on by many tribunals and individual tribunals for performance benchmarks for members. 183

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3.2.67  Third is the issue of government policy: should a tribunal decision be sensitive to the administrative context in which it occurs, by taking account of — even being aligned with — the policy environment in which the decision is made? The controversy surrounding this issue has been an enduring theme in the development of merits review by tribunals in Australia. It overlaps with the similar debate about the status of executive policy in administrative decisionmaking: see 12.5.1ff, where it is noted that in Tasmania, Victoria and Western Australia there is a statutory mechanism by which a tribunal may be required to decide consistently with a government policy: Magistrates Court (Administrative Appeals Division) Act 2001 (Tas) s 27: VCAT Act s 57; SAT Act s 28. In other jurisdictions such as the Northern Territory, Queensland and South Australia, there are provisions specifically stating that the tribunal is not subject to the control of the relevant minister: NTCAT Act s 11; QCAT Act s 162; SACAT Act s 11(4).

Tribunal membership and panels 3.2.68  One aspect of tribunal membership has been discussed above — the tenure and independence of tribunal members: see 3.2.65. Another important aspect is the qualifications of tribunal members. Two related issues are prominent: the role of legal members and the role of lay members. All the major tribunals in the Commonwealth and the states are headed by a judge and some have judicial officers as deputy presidents. However, NTCAT’s first president is a barrister and the ACAT is not headed by a judicial officer. A threefold justification for judicial headship is commonly given: that a judge can lend authority and respect to the tribunal, particularly in its early days; that judicial independence is a valuable attribute on the occasions that a tribunal makes decisions that are antagonistic to the executive or the government of the day; and that judicial experience is advantageous in handling complex legal issues, thus avoiding the prospect of further appeals. The ARC in the Better Decisions report, while acknowledging those attributes, suggested that the case for judicial leadership was no longer as strong: ‘There is now a general view that review tribunals are an accepted feature of the administrative law landscape and that therefore this need [for judicial leadership] has diminished, without perhaps having entirely disappeared’: at 73. Notwithstanding non-judicial appointments to the territory’s CATs, that position was not endorsed by the Skehill Review which recommended the continuation of the appointment of judges as President of the AAT and presidential members of that body: Skehill Review 3.2.61E at [7.56]. 3.2.69  The diversity of skills of tribunal members is a prized feature of tribunal adjudication, designed, as it is, to provide subject matter experience in tribunals’ multiple jurisdictions. The debate about the qualifications of tribunal members surfaces in the issue of whether legal qualifications should be an essential or dominant criterion in the selection of tribunal members. The Better Decisions report (at 71–3) observed that it was more important for tribunal members to have legal awareness than legal qualifications, with more emphasis being given to other desirable skills and experience. Two former Chief Justices criticised this view. Sir Anthony Mason warned of ‘a passport to disaster’ if legal skills were diminished in importance (Sir A Mason, ‘Reflections on the Development of Australian Administrative Law’ in R Creyke and J McMillan (eds), The Kerr Vision of Australian Administrative Law — At the Twenty-Five Year Mark, Australian National University, Centre for International and Public Law, 1999, p  122 at p 125); and Sir Gerard Brennan cautioned that the authority of tribunals such as the AAT would be lost if they could not maintain their reputation for assiduous application of the legal method: 184

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Sir G Brennan, ‘Twentieth Anniversary of the AAT: Opening Address’ in J McMillan (ed), The AAT – Twenty Years Forward, AAT/AIAL, 1998, pp 12–15. The emphasis on the importance of a tribunal attracting the trust of the community and of the need for a perception of impartiality in tribunal decision-making if that trust is to be earned are also given as reasons for having members with legal training: see P O’Connor 3.2.62E at pp 10–12.

MERITS REVIEW — THE CONCEPT AND SCOPE 3.3.1  The concept of independent merits review of government administrative decisions is an ancient one. The language of ‘merits review’, however, came into vogue with the establishment in 1976 of the Commonwealth Administrative Appeals Tribunal (AAT). The AAT was the first of its kind — ‘a bold innovation by the Federal Government for which there [was] no precedent elsewhere in the common law world’: A Hall, ‘Administrative Reviews before the Administrative Appeals Tribunal: A Fresh Approach to Dispute Resolution’ (1981) 12 Federal Law Review 71 at 76. A similar acknowledgment was made by Chief Justice Gleeson in an address to mark the 30th anniversary of the AAT: The establishment of the Administrative Appeals Tribunal in 1976 was … the most innovative and controversial element of a group of proposals designed to promote the rule of law and good governance by enabling citizens to call in question administrative decisions. It was controversial because the tribunal was to review decisions ‘on the merits of questions of fact and law’, because such review could extend to questions of policy, and because the judicial method was adopted as a model for the Tribunal’s decision-making. It was innovative because it was to have a wide-ranging jurisdiction extending beyond specific areas within the purview, and control of separate Departments. I would say also that it was innovative because it conferred a function of merits review upon a body that was expected to have expertise in the process of review itself, as distinct from expertise in one particular subject of decision-making. [Chief Justice Murray Gleeson, ‘Outcome, Process and the Rule of Law’, speech delivered at the Administrative Appeals Tribunal 30th Anniversary, Canberra, 2 August 2006]

See too M Allars ‘The Nature of Merits Review: A Bold Vision Realised in the Administrative Appeals Tribunal’ (2013) 41 Federal Law Review 197. 3.3.2  The distinguishing feature of the AAT was that it had a general jurisdiction to review a diversity of administrative decisions. It was assumed from the outset that those decisions would be reviewed by the AAT ‘on the merits’: Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 at 91. Intriguingly, however, the AAT Act nowhere mentioned the phrase ‘merits review’ or defined its nature. Surprisingly, it took over 30  years before the High Court in 2008 in Shi v Migration Agents Registration Authority 3.3.11C endorsed the correctness of the decision in Re Control Investment. This posed issues for the AAT, as noted by Kirby J in Shi: The grant of a power of decision ‘on the merits’ presented questions similar to those to be addressed in the instant context. According to whose view of the merits? What weight, if any, should be given to the decision of the primary administrator with the ordinary responsibility for making such decisions? Upon what evidence should the tribunal act? At what point of time are the ‘merits’ to be examined? 185

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Nor, indeed, did the AAT Act give explicit guidance on a great range of other issues that would inevitably arise in defining the concept of merits review — which party should bear the burden of proof in administrative review; what criteria should be applied by a tribunal in deciding whether to substitute a new decision; whether errors of law can be corrected by a non-judicial tribunal; and so on. Those matters were left to be resolved by the AAT and, in the event of an appeal, the courts. It was for the AAT to carve out a philosophy of its own existence. Nonetheless, the advantages of merits review were appreciated from 1971 when the blueprint for the AAT was spelt out by the report of the Commonwealth Administrative Review Committee (the Kerr Committee): see Kirby J in Shi 3.3.11C at 397. It was clear from its inception that the style of review — merits review — to be conducted by the AAT was to be different from judicial review: see P Cane 3.3.3E; and Downes J in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship 3.3.12C. 3.3.3E

P Cane, ‘Judicial Review in the Age of Tribunals’ [2009] Public Law 479 at 494–5

In Australian law … merits review by tribunals is considered to be categorically different from judicial review by courts, at least in procedural and remedial terms. Whereas the characteristic merits review remedy is to vary a decision or make a substitute decision, the characteristic judicial review remedy is to set the decision aside and remit it for reconsideration. In dispensing the characteristic merits review remedy, the AAT exercises by proxy the powers available to the primary decision-maker, whereas in dispensing the characteristic judicial review remedy courts exercise inherent (or statutory) judicial power. Judicial review is typically based on the material available to and the reasons for decision given by the primary decision-maker. By contrast, the AAT can take account of material available at the time of review even if it was not available at the time the decision was made; and the AAT’s reconsideration of the decision is not limited to the power exercised or the reasons given by the primary decision-maker.

3.3.4  The starting point for the AAT was s 43 of the AAT Act: 43(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

Section 43 became the model for conferring a merits review jurisdiction upon a tribunal: see, for example, ACT: ACAT Act s 68(2); NSW: NCAT Act ss 79(2), 81(1), ADR Act s  63(3); NT: NTACT Act s 50; QLD: QCAT Act s 24; SA: SACAT Act s 37; Tas: Magistrates Court (Administrative Appeals Division) Act 2001 s 26; Vic: VCAT Act s 51; WA: SAT Act s 29.

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3.3.5  In a string of early cases the AAT spelt out the implications of s 43 and other sections of the Act. Chief among these implications are that the tribunal is reviewing a decision, and not the reasons given for that decision; that the tribunal is generally not restricted either to the case stated by the parties, or to the material before the primary decision-maker; that the tribunal is bound to apply the law, but is not required to decide consistently with executive policy; that neither party bears the legal onus of proving that the decision under review was prima facie right or wrong; and that the rules of judicial proceedings relating to pleadings and evidence are not to be transported into administrative review: see also Evidence Act 1995 (Cth) s 4 and Dictionary. An expression that gained a hallowed use was that there was a presumption that the review would be de novo — ‘anew’, that is, that the tribunal ‘stands in the shoes of the primary decisionmaker’ (first used in Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 943). In relation to the decision under review, the tribunal exercises the same powers as the original decision-maker: Shi 3.3.11C at 405 (Kirby J), 424 (Kiefel J). The High Court has endorsed these cases while reminding that the nature and extent of the review jurisdiction is always a question of statutory construction: Shi. An early decision of the AAT which encapsulates many of those principles is Re Greenham and Minister for Capital Territory 3.3.6C. 3.3.6C

Re Greenham and Minister for Capital Territory (1979) 2 ALD 137 Administrative Appeals Tribunal

[Dr Greenham sought review by the tribunal of the high valuation of his Canberra residential property. He alleged that the property was susceptible to earthquake damage, and that its proximity to diplomatic premises caused problems of noise, access and security. The tribunal rejected all those grounds of objection, but found that on other evidence before the tribunal the valuation should be reduced from $28,000 to $27,000. The respondent minister argued that it would be inappropriate for the tribunal to substitute a new decision to that effect, contending that the tribunal should not go outside the grounds of objection stated by the applicant in his application for review. The tribunal rejected that argument.] AN Hall (Senior Member), VJ Skermer and CA Woodley (Members): Under s 29 of the [Administrative Appeals Tribunal Act 1975 (Cth)], it is provided that an application to the Tribunal for review of a decision shall be in writing and shall (inter alia) ‘set out a statement of the reasons for the application’ … Prima facie, therefore, it is open to an applicant to include in the statement of reasons referred to in s 29 of the Act any reasons which might tend to support the view that the Minister’s decision was erroneous … The … emphasis in the Act is upon the Tribunal reviewing a ‘decision’. … It is not just the reasons for the decision which are under review, however important to the Tribunal’s deliberations those reasons may be. In reaching its decision, the Tribunal is not restricted to the material that was before the decision-maker any more than the decision-maker himself is so restricted. The decision-maker may adduce evidence that was not available to him when he made his decision and he may, in the light of that evidence, or upon re-consideration of the decision, even abandon or modify the reasons upon which he originally relied. The absence of a hearing before the decision-maker and the Tribunal’s powers to gather evidence make it unthinkable that the Tribunal should be limited to the material before the decision-maker: see

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Builders’ Licensing Board (NSW) v Sperway Constructions (Syd) Pty Ltd (1976) 51 ALJR 260 at pages 262, 264. Far less, in our view, are the reasons set out by an applicant in the application for review the primary focus of the Tribunal’s consideration. True it is that those reasons may form an important part of the Tribunal’s consideration, but the scope of the review function exercisable by the Tribunal is no more limited on the one hand by the statement of reasons of the decision-maker than it is on the other by the statement of reasons lodged by an applicant. It is the decision itself which falls for review in the light of the reasons advanced by the decision-maker and the applicant, together with any other facts, circumstances or considerations which are relevant to the decision under review and which emerge during the Tribunal’s consideration of that decision. The function of this Tribunal is administrative review. In contrast with judicial proceedings, pleadings and the rules of evidence form no part of the procedures of the Tribunal (see s 33 of the Act). Were it otherwise, one of the important objectives of administrative review in allowing access to the Tribunal by an unrepresented citizen whose ‘interests are affected’ by the decision under review might be endangered or frustrated. Some applicants may lack the requisite ability or the knowledge to be able to express in precise terms the reasons for their dissatisfaction with a particular decision. But they are not, on that account, to be denied the opportunity of presenting their case to the Tribunal. Neither should this Tribunal be inhibited in its review functions by any inadequacy in the expression of the reasons for review or any lack of understanding by an applicant of the relevant issues. … It is required to conduct a proceeding before it ‘with as little formality and technicality … as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit’ (see s 33(1)(b) of the Act). It is armed with extensive powers to enable it to ascertain the reasons for the decision (see ss 37 and 38) and to summons witnesses where deemed necessary or appropriate (s 40(1A)). The Tribunal is, in addition, empowered to exercise ‘all the powers and discretions that are conferred by any relevant enactment’ on the person who made the decision under review (see s 43(1) of the Act) … Unless, in relation to a particular jurisdiction, there is an express limitation either upon the grounds which an applicant may raise or the grounds which the tribunal may consider, we do not consider that the tribunal is precluded from considering any matter which is relevant to the decision under review. It will be a matter for the tribunal to determine in each case whether, in the light of the whole of the evidence before it, it is appropriate that the decision should be reviewed.

3.3.7  The first President of the AAT, Sir Gerard Brennan, played a key role in elaborating the concept of administrative review on the merits, both in decisions of the AAT and in extracurial writings: an extract from those writings is included in Justice FG Brennan 3.3.9E; see also the decision of Brennan J in the AAT decision of Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 12.5.5C. The principles that were elaborated in those early cases and writings were affirmed at the time by the Full Federal Court in Drake 3.3.10C. The added significance of the Federal Court’s decision in Drake is that it coined the phrase ‘correct or preferable’ to define the scope of merits review. There has been general acceptance of the meaning of ‘correct’ as referring to correct in law or fact. The meaning of ‘preferable’ has been essayed by Downes J in the context of discretionary decisions in Visa Cancellation Applicant 3.3.12C. For a critical analysis of that explanation, see: B McCabe, ‘Community Values and 188

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Correct or Preferable Decisions in Administrative Tribunals’ (2013) 32 University of Queensland Law Journal 103, 113; and M Harkin, ‘Balancing the discretionary seesaw: Are community values an appropriate guide for the AAT’s “preferable” decisions?’ (2017) 24 Australian Journal of Administrative Law 7. 3.3.8  The expression that has come to immortalise merits review, ‘correct or preferable’, is now firmly established in the cases. As Gleeson CJ and Kirby J said in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, the expression refers to ‘the correct or (in the case of discretionary decisions) the preferable one’: at 427. The conjunction ‘or’ was used in Drake 3.3.10C and confirmed in Shi 3.3.11C. By contrast, ‘correct and preferable’ has been used in s 63(1) of the ADR Act (NSW), s 27(2) of the SAT Act, and s 20 of the QCAT Act, possibly reflecting usage of that expression in the ARC’s Better Decisions report, a usage which the ARC abandoned in later reports; see, for example, Automated Assistance in Administrative Decision-Making, Report No 46, 2004, at [4.3]. The newer CATs in the states and territories (SACAT and NTCAT, as well as VCAT) have used the ‘correct or preferable’ formulation. See generally R Creyke, ‘The Criteria and Standards for Merit Review by Administrative Tribunals’ (1998) 9 Law and Policy Papers 1 at 13–14; and L Pearson, ‘The Vision Splendid: Australian Tribunals in the 21st Century’ in AJ Connolly and D Stewart (eds), Public Law in the Age of Statutes: Essays in Honour of Dennis Pearce, Federation Press, 2015, pp 161–199 3.2.16E. Statutory variants also exist: for example, the Commonwealth Superannuation Complaints Tribunal is required to affirm the decision under review if it was ‘fair and reasonable’ in the circumstances: Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 37(6), 37(4). Another example is ‘limited merits review’ not involving a de novo hearing, introduced for a period under the National Electricity Law and the National Gas Law for applications to the Australian Competition Tribunal. This form of merits review was abolished by the Competition and Consumer Amendment (Abolition of Limited Merits Review) Act 2017 (Cth). 3.3.9E

Justice FG Brennan, ‘The Anatomy of an Administrative Decision’ (1980) 9 Sydney Law Review 1

The powers of the Tribunal with respect to the making of review orders are, for the most part, defined by s 43. It provides, inter alia, that for the purpose of reviewing a decision the Tribunal may exercise all the powers and discretions that are conferred on the primary administrator who made the decision under review. So the question for the Tribunal is the same question as that which faces the primary administrator: what is the correct or preferable decision in this case? The question is answered by reference to the elements of an administrative decision: the facts of the case, the applicable law, and (if appropriate) the exercise of a discretion. Before the Tribunal intervenes to set aside or vary a decision under review it must come to the view that — • the facts are different from what they were believed to be by the primary administrator; • the law applies differently from the way in which the primary administrator applied it; or • if there be a discretion, there is a way of exercising it preferable to the way in which the primary administrator exercised it. In order to perform its functions, the Tribunal was armed with different powers from those possessed by the primary decision-maker. The powers with which the Tribunal was armed

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are the powers ordinarily vested in courts, but not ordinarily vested in administrators. It is not surprising, then, if the same question is answered in a different way by the Tribunal, which is differently constituted, has different powers, and may have a different approach to the exercise of a discretion.

3.3.10C

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577; 2 ALD 60 Federal Court of Australia (Full Court)

[The Administrative Appeals Tribunal had affirmed a decision of the minister to deport Mr Drake, a United States citizen, who had been convicted and sentenced to one year’s imprisonment for cultivation of cannabis in the Northern Territory. On appeal, the Full Federal Court held that the tribunal had failed properly to perform its function by reason that it had applied the minister’s criminal deportation policy without making an independent assessment of its propriety: see 12.5.2. In the course of reaching that conclusion, the Federal Court defined the merits review role of the tribunal.] Bowen CJ and Deane J: The function of the Tribunal is … an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has lawfully been made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal. The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subject to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists … that regard must be had to the relevant considerations, and that matters ‘absolutely apart from the matters which by law ought to be taken into consideration’ must be ignored: R v Cotham [1898] 1 QB 802 at 806 … [Smithers J delivered a concurring judgment, in which he found that the duty of the Tribunal is to satisfy itself whether the decision under review ‘was objectively the right one to be made’, not whether it was a decision ‘which an administrator acting reasonably might have made’: at 429–30.]

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3.3.11C

Shi v Migration Agents Registration Authority (2008) 235 CLR 286 High Court of Australia

[Mr Shi was a registered migration agent. Following complaints to the Migration Agents Registration Authority (MARA), MARA cancelled his registration in 2003 under the Migration Act 1958 (Cth) on the basis that he had breached the Migration Agents Code of Conduct and was not a fit and proper person to be registered as a migration agent. Mr Shi appealed to the AAT, which in 2005 set aside the MARA decision and substituted a new decision to administer a caution to Mr Shi. The AAT relied on evidence of Mr Shi’s changed conduct between 2003 and 2005. MARA appealed to the Federal Court, contending that the AAT had fallen into error by asking whether Mr Shi was a fit and proper person in 2005 rather than 2003. The Federal Court upheld MARA’s appeal, both at first instance and in the Full Court (by majority). The High Court upheld Mr Shi’s appeal, and reinstated the decision of the AAT.] Kirby J: It is clear from the reasons of the Tribunal that it based its conclusion, and decision in this regard, not on the state of the evidence as it stood at the time of the Authority’s decision but on the circumstances prevailing at the date of the Tribunal’s own decision … To resolve the question of whether the Tribunal has exceeded or mistaken its jurisdiction and powers a court must give close attention to the enabling legislation. It is undesirable to attempt universal or unqualified propositions. Here, the issue is how to define the jurisdiction and powers of the Tribunal in conducting a review of a decision of the Authority, having regard both to the general provisions of the AAT Act, affording the power of review, and to the more specific provisions of the Migration Act defining the characteristics of the decision that is subject to review. Only when all of the relevant features of the two inter-related statutes are understood can a correct decision be arrived at as to the ambit of the review in question and the manner in which it should be conducted … Nature of the Tribunal: First, it is essential to appreciate the radical objectives that lay behind the enactment of the AAT Act. That Act grew out of a series of official reports directed towards a major change in federal administrative law and practice. The first (and possibly the most significant) of these reports was that delivered in 1971 by the Commonwealth Administrative Review Committee. In the course of discussing the then applicable principles of judicial review, that Committee observed [at [58], p 20]: It is generally accepted that this complex pattern of rules as to appropriate courts, principles and remedies is both unwieldy and unnecessary. The pattern is not fully understood by most lawyers; the layman tends to find the technicalities not merely incomprehensible but quite absurd. A case can be lost or won on the basis of choice of remedy and the non-lawyer can never appreciate why this should be so. The basic fault of the entire structure is, however, that review cannot as a general rule, in the absence of special statutory provisions, be obtained ‘on the merits’ — and this is usually what the aggrieved citizen is seeking. It was for this reason that the Committee recommended the establishment of what it called an ‘administrative review tribunal’ … The proposal to create such a tribunal, with the power to make decisions ‘on the merits’, represented a bold departure from the pre-existing law, with its focus on constitutional and statutory ‘prerogative’ remedies of judicial review …

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Function of the Tribunal: Secondly, in the earliest days of the operation of the Tribunal, questions naturally arose as to how, under s 43 of the AAT Act (not relevantly altered since), the Tribunal should proceed with its function of review … The grant of a power of decision ‘on the merits’ presented questions similar to those to be addressed in the instant context. [Then follows the extract which appears at 3.3.2.] … [His Honour next referred to the decision of Davies J in Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (1981) 3 ALD 88, citing Drake 3.3.10C and Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd 3.3.14C.] Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the ‘material before the Tribunal’, particularly where it involved special expertise or knowledge. But ultimately, it was for the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review. There was no error in this analysis. … Purpose of s 43 of the AAT Act: Thirdly, a conclusion that, ordinarily, the Tribunal might have regard to new, fresh, additional or different evidence in reaching its own decision is reinforced by the apparent purpose of s 43 of the AAT Act. Under that section, when the Tribunal decides to set the decision under review aside, it must consider whether to remit the decision to the Tribunal for reconsideration (with or without directions or recommendations) or whether to make a fresh decision ‘in substitution for the decision so set aside’ … When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make ‘a decision in substitution for the decision so set aside’, as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard … Nature of the decision under review: Fourthly, although the foregoing considerations lead to a conclusion that the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of events that had occurred up to the time of its decision, the fact that the review contemplated by s 43 of the AAT Act is one addressed to a ‘decision’, inferentially arising under a different federal enactment, makes it necessary in each case to identify the precise nature and incidents of the decision that is the subject of the review. Sometimes, it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events. If, for example, under federal legislation, a pension is payable at fortnightly rests, by reference to particular qualifications that may themselves alter over time, a ‘review’ of an administrative ‘decision’ to grant or refuse such a pension, by reference to statutory qualifications, may necessarily be limited to the facts at the particular time of the decision. … The nature and incidents of the decision under review in the present case do not support a contention that the review was limited to the particular time in the past when the decision was made by the Authority. The present was not a case where, of its nature, a decision was made falling to be determined by reference to the state of evidence at a particular time. Both the language of s 303 of the Migration Act and its purpose suggest otherwise … This reasoning is further strengthened by an appreciation that the fundamental object of the exercise of the Authority’s power to cancel or suspend the registration of an

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agent under the Migration Act is the protection of the section of the public that deals with migration agents. It is not, as such, the punishment of 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. Moreover, to the extent that the essential function of the Tribunal is to provide a review ‘on the merits’, conducting such a review on the basis of the most up-to-date evidence available is conformable with the basic objectives of the AAT Act. In this particular context, the contrary approach, urged by the Authority, would be likely to attract the very criticisms addressed to the law predating that Act in the report of the Commonwealth Administrative Review Committee. Kiefel J: Section 43(1) expresses clearly that the Tribunal may exercise all of the powers and discretions conferred upon the original decision-maker. The Tribunal has been said to stand in the shoes of the original decision-maker, for the purpose of its review. … The term ‘merits review’ does not appear in the AAT Act, although it is often used to explain that the function of the Tribunal extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision. The object of the review undertaken by the Tribunal has been said to be to determine what is the ‘correct or preferable decision’. ‘Preferable’ is apt to refer to a decision which involves discretionary considerations. A ‘correct’ decision, in the context of review, might be taken to be one rightly made, in the proper sense. It is, inevitably, a decision by the original decision-maker with which the Tribunal agrees. … In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. … Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time. [Kiefel J referred to Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 3.3.29.] There is another restriction which operates with respect to the evidence the Tribunal may consider … The Tribunal does not acquire all the powers of the Authority, but only those necessary to review the decision made by it. The Authority’s decision concerned particular conduct of the appellant, which it had investigated. The Tribunal does not have all the Authority’s disciplinary powers and does not have its investigatory powers for the purposes given by the Migration Act. The question for the Tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the Authority are established. It may use its own evidence-gathering powers to further inform itself about those matters, but those powers do not translate to general investigatory powers and cannot be used to ascertain other, inculpatory, conduct. [Hayne and Heydon JJ delivered a joint judgment to the same effect as Kirby J and Kiefel J. Crennan J agreed with the extract from Kiefel J’s judgment.]

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Control of Government Action

Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690

[A delegate of the minister had cancelled the applicant’s visa on character grounds because he had a substantial criminal record, that is, had been sentenced to a term of imprisonment of 12 months or more. The sentences occurred in New Zealand. He had not been imprisoned in Australia. On review the tribunal, in accordance with the Migration Act 1958 (Cth) s 499(1), (2A), was required to take into account the considerations in ‘Ministerial Direction No 41: Visa refusal and cancellation under s 501 of the Act’ that are relevant to the character test. The tribunal found that the applicant did not pass the character test and should be deported. In the course of his judgment, Downes J, President of the AAT, took the opportunity to discuss the meaning of ‘preferable’ in the context of the expression ‘correct or preferable’.] Downes J (President) and Bernard McCabe (Senior Member): [54] Where the alternative obligation to arrive at ‘the preferable decision’ arises, the Tribunal is exercising a general discretion. Such a discretion arises frequently in the Tribunal’s jurisdiction … These are cases in which, for example, it can be said that the question for the Tribunal is whether the better (or preferable) decision is that a financial adviser should be banned or a visa should be cancelled. There will always be specific matters to be assessed and taken into account in these cases, but there will remain a judgment as to whether the balance ultimately tips one way or the other. … [56] The essential characteristic of a discretionary decision is that there will be alternatives which will be equally lawful. The decision chosen may not be the best decision, but the decision will have been made without error of law and will accordingly be final. That will be so even if an alternative which is not chosen is, in fact, the preferable decision, or, perhaps more accurately, the decision which another considers to be the preferable decision. That this is so serves to emphasise the importance of the selection of the preferable decision and the fundamental importance of addressing the right considerations in making the selection. … [58] The Tribunal, in its determinations, must be informed by matters of good administration. It needs to be conscious that it is in this case, for example, contributing to the many decisions made within government which together determine how the population of Australia should be made up. [59] None of this is to deny the very important role of the Tribunal in ensuring that individual justice is done. … [60] Ideals of individual justice do not, however, replace the demands of good administration. … The Preferable Decision [62] This leads to the question of just how the preferable decision is to be arrived at. Decisionmakers are apt to say that they are satisfied about a discretionary matter. They may offer ‘an opinion’ or ‘view’ as to what is appropriate. The test, however, cannot be subjective. It cannot admit of idiosyncratic ideas. Evaluation in accordance with the decision-maker’s own personal standards or philosophy must not guide the determination. [63] … Very often the only clearly applicable measure or touchstone is the public interest. So how is the public interest to be determined? [64] It must be the case that the proper basis of evaluation, of reaching the preferable decision, in these cases, is reference to community standards or community values. It is

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not the decision-maker’s personal or idiosyncratic view of what will adequately protect the public which is relevant, but what the decision-maker determines will achieve that result in accordance with community standards or values. … [73] A difficult question arises as to how judges inform themselves of community standards and expectations; not to mention the further difficulty that in a plural society there may not always be a community standard or expectation … [74] There may be some occasions, although rare, when community standards can be established by evidence. Most importantly, factors which go to making up community standards, will sometimes be capable of being established by evidence. These occasions will also be rare. It must be recognised, as well, that assessing community standards calls for judgment as much as evidence. … [79] Relevant community values will not depend on transient or fashionable thinking. They will not be found in the publications of vocal minorities or the fulminations of the media, motivated by short term considerations and the improvement of circulation or ratings. They will not necessarily reflect the views of individual politicians. Community standards will be found in more permanent values. They will be informed in part by legislation of the parliaments, and especially legislation applicable to the decision-making. Formal statements by ministers will be relevant, but not when they are not speaking officially or when their remarks are not carefully considered or do not appear to reflect ‘a broad consensus of opinion’ (Mason, Courts and Public Opinion at 36). Decisions will also be informed by the decision-maker’s belief based on experience. Evidence will rarely be of any practical assistance. [80] It will often be impossible for decision-makers to articulate the basis for their determination of what community standards require in a particular case, because the conclusion will not be based on evidence. Nevertheless, decision-makers are members of the community and exposed to the processes of its instrumentalities. They may not always be able to empathise with particular individuals or groups, because of lack of exposure to local considerations, but they are exposed to the short term and long term thinking and dissemination of ideas which determine the way society changes and develops. [81] Drawing on these considerations, even without detailed analysis of them, in reasons for decision, will lead to better formed judgments which more truly reflect community standards. … … [83] In cases under s 501 of the Migration Act the Tribunal must carefully assess the applicant’s case in accordance with the Minister’s Direction. That is the basis for assessment of the case. But when this is done there is still an ultimate question of what is the preferable decision.

3.3.13  Many other decisions have similarly played a key role in defining the concept of merits review. The earlier decisions include Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (Lawlor) 3.3.14C, holding that an administrative tribunal is not confined to issues of fact and policy but can examine whether the decision under review was lawfully made; Re Adams and the Tax Agents’ Board 5.3.32C, holding that an administrative tribunal (as a non-judicial body) cannot grant relief on the basis that the legislation in question is unconstitutional; and Re Pochi and Minister for Immigration and Ethnic Affairs 3.4.13C (affirmed in Sullivan v Civil Aviation Safety Authority 3.4.22C), examining the application of the rules of evidence to administrative 195

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review, and ruling that a tribunal can inform itself on matters in order to reach its required state of satisfaction before making a decision. See also M Groves, ‘The power of an administrative tribunal to inform itself ’ (2015) 22 Australian Journal of Administrative Law 236. In the context of the tribunal’s role in relation to constitutional issues a more nuanced account was provided by Jarvis DP in Re Walsh and Commissioner of Taxation (2012) 130 ALD 200. In that case the commissioner had submitted that the tribunal had no jurisdiction to decide a constitutional question which should be referred to the Federal Court under the referral power in s 45 of the AAT Act. In response, Jarvis DP found (at 207): (a) the tribunal should approach matters on the assumption that the relevant legislation is constitutionally valid; (b) the tribunal is empowered to consider the constitutional validity of legislation in order to determine whether or not it has jurisdiction to review the reviewable decision, and if it considers that the legislation is unconstitutional, it should decline to exercise the jurisdiction purportedly conferred on it by that legislation; (c) the tribunal can form an opinion on whether legislation can apply within constitutional limits to particular persons or in particular circumstances, and can act on that opinion in determining applications for review of administrative decisions; (d) however, the tribunal does not have jurisdiction to reach a conclusion having legal effect that legislation is unconstitutional, and such a decision can only be made by a court exercising judicial power; and (e) the tribunal should nevertheless proceed with caution where such issues arise, and (f ) the tribunal should give consideration to referring a question of law to the Federal Court.

3.3.14C

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; 2 ALD 1 Federal Court of Australia (Full Court)

[The Collector of Customs made a decision to revoke a warehouse licence that had been granted to Brian Lawlor Automotive Pty Ltd under the Customs Act 1901 (Cth). The company sought review of that decision by the Administrative Appeals Tribunal, contending that the Customs Act did not expressly or impliedly confer power upon the collector to revoke the warehouse licence. That argument was upheld both by the tribunal constituted by Brennan J and, on appeal, by the Full Federal Court. The following extracts deal with an objection raised by the collector to the jurisdiction of the tribunal to set aside the invalid decision to revoke the licence. The collector’s argument pointed to s 25 of the AAT Act, providing that the jurisdiction of the tribunal extended to ‘review of decisions made in the exercise of powers conferred by [an] enactment’. A decision that was alleged to be invalid, it was argued, was not a ‘decision’, but a nullity. The jurisdictional objection was rejected in similar terms by both the tribunal ((1978) 1 ALD 167) and by the Full Federal Court.] Bowen CJ: In the Administrative Appeals Tribunal Act a wide meaning is given to the word ‘decision’ by s 3(3). In s 25 it appears to me that the word simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision. The difficulty lies in interpreting the words ‘made in the exercise of powers conferred by that enactment’. This

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may mean that it must be shown there was a decision made: (a) in pursuance of a legally effective exercise of powers conferred by the enactment; or (b) in the honest belief that it was in the exercise of powers conferred by the enactment; or (c) in purported exercise of powers conferred by the enactment. The words ‘purported exercise’ in (c) are used as including the notion that the official may be making his decision on the basis that he is exercising powers conferred by the enactment, whether or not on a proper interpretation of the enactment such powers are conferred. The context of the Act appears to me to point against the adoption of interpretation (a). The Act is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal, free of technicalities, against that decision on questions of fact and of law: see ss 25, 27, 28, 31, 33, 42 and 44. The adoption of interpretation (a) would remove the most significant area involving questions of law from the jurisdiction of the Tribunal. It would render the appeal in many cases useless. Whenever it appeared in proceedings before the Tribunal that there was an error of law by reason of which the decision was legally ineffective and that the applicant certainly needed relief, the Tribunal would at that point be obliged to refuse relief on the ground that it had no jurisdiction to entertain the application. It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by the determination of a court or tribunal. It appears to me that the Act is designed to give a simple remedy in all such cases. I would reject interpretation (a). [Bowen CJ went on to reject interpretation (b), pointing out that it would introduce, as a false issue, a subjective element, and impose on the applicant for review the difficult burden of proving it.] Interpretation (c) appears to me to be consistent with the context in the Administrative Appeals Tribunal Act. The Acts committed to the administration of each Minister and his Department are set forth in the Administrative Arrangements orders published from time to time in the Gazette. There might be a rare case where a decision appeared to have no relationship to one of the Acts committed to the administration of the Minister or Department concerned. However, in the ordinary course, it would be reasonably clear from the objective facts under which enactment or in the exercise of which statutory powers an official had purported to act. The adoption of this view would mean that the Administrative Appeals Tribunal would have jurisdiction to entertain an appeal from a decision in fact made, which purported to be made in the exercise of powers under an enactment. It would then proceed to determine whether the decision was properly made in fact and in law. There is nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal. … I would adopt interpretation (c) … [Smithers J delivered a similar judgment, concluding that the tribunal could review a decision ‘made by an administrator in purported or assumed pursuance of the relevant statutory provision’: at 373. If the tribunal was denied power to correct errors of law, ‘the Tribunal’s charter for uncomplicated review’ and ‘the overriding purpose of the Act … to promote good government by those carrying out the actual practical task of administering Acts of Parliament’ would be undermined. Deane J dissented, holding that the tribunal could correct a colourable exercise of power by a decision-maker, but not a usurpation of power as in the present case.]

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3.3.15

Control of Government Action

3.3.15  The principle in Lawlor 3.3.14C that a tribunal can consider a purported decision has been endorsed by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 174, especially at [39]–[41], describing the case as a ‘landmark’: at [39]. 3.3.16  The intention that tribunals’ processes be different from courts is reflected in a common statutory requirement that a tribunal is to ‘provid[e] a mechanism of review that is fair, just, economical, informal and quick’, ‘is not bound by technicalities, legal forms or rules of evidence’, and is to ‘act according to substantial justice and the merits of the case’: see, for example, Veterans’ Entitlements Act (1986) (Cth) s 133A. This litany is a core set of objectives of major Australian tribunals. Individual tribunal statutes have supplemented these core objectives: for example, s 2A of the AAT Act states that the AAT must provide a mechanism of review that ‘is accessible’, ‘is proportionate to the importance and complexity of the matter’ and ‘promotes public trust and confidence in the decision-making of the Tribunal’. For a discussion of some of the core objectives see B McCabe, ‘Perspectives on Economy and Efficiency in Tribunal Decision-Making’ (2016) 85 AIAL Forum 40, and for an analysis of the need to differentiate tribunals from courts, see R Creyke, ‘Tribunals: “Carving out the Philosophy of Their Existence”: The challenge for the 21st century’ (2012) 71 AIAL Forum 19–33. 3.3.17  The import of those key objectives is considered in 3.4.10. Discussion of them captures the distinction between an adversarial and inquisitorial mode of operations: see 15.3.19ff. Chief  Justice French and Kiefel J commented in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 that ‘the term “inquisitorial” has been applied to tribunal proceedings to distinguish them from adversarial proceedings and to characterise the Tribunal’s statutory functions’: at [23]. The objectives are facultative, not mandatory, and breach does not sound in illegality: Minister for Immigration and Citizenship v Li 3.4.9C at [11]–[16] (French CJ), [52]–[54] (Hayne, Kiefel and Bell JJ), and [96]–[98] (Gageler J).

Merits review — refining the concept 3.3.18  Administrative decision-making in government is inherently complex and diverse. It has been necessary accordingly for tribunals and courts and, on occasions, parliament to refine and modify the concept of merits review to deal with special issues. Some of the main adjustments and refinements are noted below, and in the later discussion of the application of the rules of evidence in tribunal adjudication in 3.4.11ff. 3.3.19  In examining the concept of merits review, a starting point is the nature of ‘review’. As French CJ noted in Li 3.4.9C, in relation to the powers of the former migration review tribunals, ‘the word “review” has no settled pre-determined meaning, it takes its meaning from the context in which it appears’: at [10]. The context he identified from the legislation was that: [10] … the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate. There are similarities to the kind of review provided by the Administrative Appeals Tribunal.

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3.3.20  Equally, what is meant by ‘appeal’ is always a question of statutory construction taking into account the principles that have been established by the courts. As Porter J said in Gadon v Police Review Board [2014] TASSC 23, quoting Victoria Legal Aid v Kuek (2010) 26 VR 700: ‘The word “review”, like the word “appeal” is general, and, on that account, somewhat elastic. It takes colour from its context’: at [24]. 3.3.21  The responsibility of tribunals to resolve issues of law arising in a case, as confirmed in Lawlor 3.3.14C, has meant that tribunals can give comprehensive relief and pursue administrative justice in the full sense. That means tribunals not only take account of the facts, and any relevant policy, but they also apply the legal criteria that are examined in Part C of this book, to set aside decisions on the ground that they were unlawfully made. But this role, which is akin to that exercised by a court undertaking judicial review, has not been without difficulty or controversy. Misgivings are occasionally expressed about the suitability of a tribunal dealing with a legal validity issue that could more appropriately be raised in a judicial review action: see, for example, Kennedy v AAT (2008) 103 ALD 238 at 245. A further restriction, noted in Re Adams and the Tax Agents’ Board 5.3.32C, is that a federal tribunal (as a non-judicial body) cannot declare invalid the legislation under which a decision was made, though the tribunal can comment on the lawfulness of legislation, including any constitutional limits. See also Re Walsh and Commissioner of Taxation (2012) 130 ALD 200 at 3.3.13. It has similarly been decided that a state tribunal cannot resolve issues of constitutional validity, as this would involve the exercise of federal jurisdiction: Attorney-General v 2UE Sydney Pty Ltd (2006) 97 ALD 426. Federal, including territory, tribunals cannot enforce their final orders, that being a function exercised under judicial power. Provision is commonly provided that an order is deemed to be made by a court and is accordingly enforceable: see, for example, ACAT Act ss 68, 71. State tribunals generally provide for enforcement by registration of orders of the tribunal in a court: NCAT Act s 84; NTCAT Act ss 33, 77, 82; QCAT Act s 131; SACAT Act s 93; VCAT Act ss 121, 122; SAT Act ss 85, 86. 3.3.22  Although, as Lawlor 3.3.14C illustrates, a merits review tribunal can set aside a decision on the basis that it was unlawfully made (see too Minister for Immigration and Multicultural Affairs v Bhardwaj 16.1.20C), the tribunal nevertheless has the opportunity by remaking the decision to cure the legal error and at the same time to decide that on all the facts and circumstances the decision under review was correct or preferable: see, for example, Re Russell and Conservator of Flora and Fauna (1996) 42 ALD 441 (a decision of the former ACT AAT): President LJ Curtis: [T]he failure to accord natural justice to Mr Russell … invalidates the decision to refuse him a permit to import birds. The tribunal is not, however, charged with the function of deciding upon the validity of administrative decisions; its role is the more comprehensive one of deciding what ought to have been the correct or preferable decision. A decision that is invalid because of procedural irregularity may nevertheless turn out, on a full examination of all of the facts and taking into account all of the matters that ought to have been taken into account by the decision-maker, to have been the correct decision. Procedural invalidity, stemming from a failure to accord natural justice to a person affected by an administrative decision, may be remedied by the processes of the tribunal. In this respect at least, review by the tribunal can be a more potent force in support of good administration than the exercise of judicial review by the courts. 199

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3.3.23

Control of Government Action

3.3.23  Another special issue often arising in merits review has to do with the range of issues to be addressed by the tribunal. How far can or should a merits review tribunal travel outside the issues raised by the parties or by the decision under review? In Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 the Full Federal Court held that a tribunal which is undertaking merits review has an overriding duty, independently of any submission or concession by the parties, to address all issues on which its jurisdiction or the proper exercise of the decision-making power depends. This obligation is particularly imposed when the issue, as in Kuswardana, was constitutional (the tribunal had focused solely on the merits of the decision to deport, not whether Kuswardana was an ‘immigrant’). A related point, emphasised in Re Greenham 3.3.6C, is that a tribunal which is empowered to ‘exercise all the powers and discretions’ of the decision-maker can deal with all relevant legal and factual issues, even if not dealt with by the original decision-maker or raised by the applicant: see, for example, Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 — the AAT’s review of a decision to recover an overpayment could consider whether to waive recovery action, not considered by the primary decision-maker. 3.3.24  There is nevertheless a limit as to how far a tribunal is required to go in dealing with issues not expressly raised by a party. As the Full Federal Court noted in NABE v  Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at  [58], ‘the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it’. The limitation on the scope of a tribunal’s role was noted also in Shi 3.3.11C. The AAT could only exercise the powers of the Migration Agents Registration Authority (MARA) that were necessary to review its decision. The tribunal could not, for example, exercise MARA’s investigatory powers to examine whether other Code of Conduct breaches had been committed by Mr Shi: Shi at 405 (Kirby J), 424 (Kiefel J).

Contemporaneous review 3.3.25  A key aspect of the concept of merits review, as defined in Re Greenham 3.3.6C, Drake 3.3.10C and Shi 3.3.11C, is that, unless the statute indicates otherwise, the tribunal looks at the matter anew, according to the facts and circumstances as they exist at the date of review — sometimes called contemporaneous or de novo rather than historical review. Kirby J justified this principle in Shi: [40] When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration.

3.3.26  The rationale was also explained by the Federal Court in Jebb v Repatriation Commission (1988) 80 ALR 329: Davies J: [T]he general approach of the tribunal has been to regard the administrative decision making process as a continuum and to look upon the tribunal’s function as part of that continuum so that, within the limits of a reconsideration of the decision under review, the tribunal considers the applicant’s entitlement from the date of the application, or other proper commencing date, to the date of the tribunal’s decision … 200

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3.3.27  De novo review has given rise to subsidiary issues and legal problems. Between the date of the decision to be reviewed and the tribunal proceedings, intervening changes may have occurred in the law, the facts or the approach to decision-making of the administration. An example of a ‘change in approach’ would be a reconsideration by a government agency of a decision that had been appealed to a tribunal. Upon reconsideration, the agency may think it prudent to revise the decision, thus making the tribunal proceedings unnecessary; or the agency may discover that there is a legal obstacle, previously undetected, to a favourable decision. The guiding rule is that a decision, once appealed to a merits review tribunal, becomes the responsibility of the tribunal, and the agency does not have any independent authority to alter or tamper with the decision. The principle was explained in Re Bloomfield and SubCollector of Customs, ACT (1981) 4 ALD 204: RK Todd: [O]nce the applicant applied for review of the decision in question no power to deal with the matter remained in the respondent [decision-maker]. … The whole thrust of the … AAT Act is that the decision is before the Tribunal for review and that the Tribunal must make its own decision about the matter … [I]n the absence of power suitably conferred, it is not open to a decision-maker to purport to revoke, vary or otherwise amend a decision once it has become subject to the process of review … The Tribunal’s function is to arrive at a decision, and the consent of the parties, particularly where they are legally represented, will be a valuable aid to that process but will not abrogate the role of the Tribunal.

Legislation, as that extract indicates, may override the general rule and confer power upon an agency to alter a decision. An example is s 31 of the Veterans’ Entitlements Act 1986 (Cth) which sets out the circumstances in which the Repatriation Commission may reconsider a decision while a hearing is pending before the AAT. 3.3.28  An intervening ‘change in the facts’ commonly occurs in merits review. An applicant has the right to present fresh evidence that was not before the decision-maker. In Shi 3.3.11C, changes in Mr Shi’s migration practice, conduct and supervision arrangements led the AAT to reach a different decision from MARA as to his fitness to be a migration agent. Conversely, the AAT could have received fresh evidence, such as of a recent conviction, that worked against his continuation as a migration agent. Accordingly, statutes establishing tribunals regularly confer upon them powers to obtain fresh evidence: see, for example, AAT Act ss 38, 39A, 40. (These provisions do not apply to the migration and refugee division: TAA Sch 1.) 3.3.29  At the same time, as Kiefel J acknowledged in Shi 3.3.11C, there may be a temporal element in the decision to be reviewed, preventing evidence of matters occurring after the original decision. Whether that is so will depend upon the construction of the particular statutory provision. Such decisions arise in income support cases. In Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 a decision to cancel a person’s income support benefit was assessed at the date of cancellation; the tribunal could not examine whether at a later date, after a change in circumstances, the applicant became eligible for the benefit. ‘A decision cancelling a pension or benefit brings to an end the entitlement [which] only revives on the lodgment of a proper claim for the grant of the pension or benefit’: Freeman at 675. This contrasts with the usual rule that a tribunal reviewing the merits of a decision to refuse a pension or benefit should consider the applicant’s entitlement up to the date of the tribunal’s decision. 201

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3.3.29

Control of Government Action

The principle outlined by Davies J at 3.3.26 is subject to the qualification that legislation may stipulate otherwise, for example, by providing that a person’s initial and subsequent or continuing eligibility for a benefit or licence depends upon their application having complied with relevant statutory criteria at a particular time. 3.3.30  The distinction between provisions permitting de novo review and those prohibiting such review may be a fine one. In Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 the minister had a statutory power to disallow a change to the rules of a health insurance organisation if, in the minister’s opinion, the change ‘imposes an unreasonable or inequitable condition affecting the rights of any contributors’: National Health Act 1953 (Cth) s 78(4)(b). A delegate of the minister disallowed a rule change that imposed a waiting period of five years before new contributors could obtain benefit coverage for in-vitro fertilisation. The Hospital Benefit Fund appealed to the AAT against the delegate’s decision. The Full Federal Court held that the AAT could look at facts occurring subsequent to the date of the delegate’s decision but only for the limited purpose of shedding light on whether the rule change could be disallowed as unreasonable at the date of that decision. 3.3.31  An intervening change in the law can arise when the legislation to be applied by a merits review tribunal is amended while a matter is before the tribunal. Commonly the amending law will contain a transitional provision that states whether the new provisions apply to proceedings that are underway. If not, the principle ordinarily applied is that the tribunal, consistently with its function of reviewing a decision contemporaneously, is to decide the case by reference to the facts and matters (including the law) as they stand at the date of the tribunal’s decision. Thus, in Kavvadias v Commonwealth Ombudsman (1984) 1 FCR 80 the Full Federal Court noted that the AAT, in reviewing whether a document is exempt from disclosure under freedom of information legislation, should apply the exemptions in the Act in force at the date of the tribunal’s decision. Frequently, too, an amending provision may lay down new procedural rules that will bind the tribunal, for example, prescribing the manner in which the tribunal proceedings are to be conducted or that lay down new evidentiary rules for ascertaining whether an applicant qualifies for a benefit or licence: Rodway v R (1990) 169 CLR 515 at 518–19. The main exception, arising from a presumption of statutory interpretation that is echoed in most interpretation statutes, is that accrued rights are not diminished by a change in the law: see, for example, Esber v Commonwealth 3.3.32C. 3.3.32C

Esber v Commonwealth (1992) 174 CLR 430; 106 ALR 577 High Court of Australia

[Mr Esber received weekly compensation payments under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). Section 49 of the 1971 Act provided that the Commissioner for Employees’ Compensation, upon application by the recipient, could pay a lump sum to the recipient to redeem the weekly payments if, inter alia, it would be ‘particularly advantageous’ to the recipient and would be ‘desirable’ in the person’s interests. After Mr Esber’s request was refused by a delegate of the commissioner, he appealed to the AAT. After the appeal was lodged, but before the tribunal conducted a hearing, the 1971 Act

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was repealed by the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act). The 1988 Act did not contain a redemption procedure similar to s 49 of the 1971 Act. The High Court held (by majority) that Mr Esber’s application was to be determined under the 1971 Act.] Mason CJ, Deane, Toohey and Gaudron JJ: Section 8 of the Acts Interpretation Act, so far as it was relied on by the appellant, reads: Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not; … (c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or … (e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid … [T]he appellant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined pursuant to Pt V of the 1971 Act. It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal. The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, at 589) … But that is not to the point here. If it be assumed that the appellant did not have a right to redemption … he had a right to have his claim to redemption determined in his favour if the delegate wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in New South Wales Aboriginal Land Council v Minister Administering Crown Lands (Consolidation) Act and Western Lands Act (1988) 14 NSWLR 685, at 694: ‘The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional’. Once the appellant lodged an application to the Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely ‘a power to take advantage of the enactment’ (Mathieson v Burton (1971) 124 CLR 1, per Gibbs J at 23). Nor was it a mere matter of procedure …; it was a substantive right … Section 8 of the Acts Interpretation Act protects anything that might truly be described as a right, ‘although that right might fairly be called inchoate or contingent’ (Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541, at 552). This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act. [Brennan J dissented, holding that Mr Esber did not have an accrued right to a redemption payment at the time of the legislative change. He had no more than a hope or expectation that he would become entitled to a redemption payment upon persuading the delegate or the tribunal to exercise the statutory discretion in his favour. The normal principle should apply, that the AAT acts:] … on the materials before it when it makes its determination … Where, on a hearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time … The distinction between a judicial proceeding to enforce an accrued right and an administrative proceeding to determine whether a right should be granted is critical in this case.

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Control of Government Action

3.3.33  The distinctions to which Esber 3.3.32C and similar cases give rise — between accrued rights and other claims, and between substantive and procedural changes in the law — can be fine ones that are difficult to apply. In Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 the AAT Full Tribunal held that a review of a decision refusing a pilot’s licence ‘does not involve a consideration of accrued rights or liabilities but rather involves an investigation whether the applicant has a present entitlement to the grant of a right or privilege’ (at 944); accordingly, the law in force at the date of the AAT’s decision was to be applied. The same rule is usually applied where a tribunal is reviewing a decision to deny development or planning approval (Robertson v City of Nunawading [1973] VR 819), or the denial of an entitlement that is dependent upon the exercise of a discretion (Re Secretary, Department of Social Security and Bradley (1992) 28 ALD 400), or in occupational disciplinary proceedings where the safety of the public is of concern: for example, Hocking v Medical Board of Australia (2014) 287 FLR 54. By contrast, and in line with Esber 3.3.32C, claims for social security are usually determined by applying the legislation in force at the date a claim was lodged, at least, if the legislation was more beneficial at that date: Re Cirkovski and Secretary, Department of Social Security (1992) 25 ALD 564. In effect, the lodgment of a claim is usually treated as giving rise to an accrued right — which, on the surface at least, substantially undermines the governing principle that a merits review tribunal assesses a claim and applies the law in force at the date of the tribunal’s decision.

The scope of the jurisdiction to undertake merits review 3.3.34  Other methods of administrative law review covered in this book — judicial review and ombudsman-type investigations — presumptively apply to all administrative decision-making. Areas regarded as non-justiciable or unsuitable for review or investigation are specifically excluded, either by legislation or legal doctrine. The reverse position applies to merits review by administrative tribunals. The more cautious approach has been adopted of designating in legislation the specific categories of decision that can be reviewed by the tribunal: see: AAT Act s 25; ACAT Act s 9; NCAT Act ss 28–32; QCAT Act s 6; SACAT Act s 31; Magistrates Court (Administrative Appeals Division) Act 2001 (Tas) s 10; VCAT Act s 42; SAT Act s 17. The mechanism adopted is to list in the statute the decisions which are reviewable, or to provide that decisions are reviewable subject to nominated exceptions: see, for example, Veterans’ Entitlements Act 1986 (Cth) s 4B(1A). The justification that is given for limiting merits review in this way is that it is a demanding and specialist method of review that should apply in selected areas in accordance with individualised procedures and criteria. 3.3.35  Deciding what decisions should be subject to administrative review has not been left wholly to the executive or the parliament. The Commonwealth’s Administrative Review Council (ARC) had a core function to provide advice to the government on the categories of administrative decision that should be subject to merits review and those for which review would be inappropriate. The experience of the ARC was consolidated in guidelines that were published in 1999: 3.3.36E. As the ARC is defunct and its place has not been taken by equivalent bodies at any level of government within Australia, this role is no longer being undertaken. Nevertheless, many of the ARC’s existing publications are still influential.

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3.3.36E

Administrative Review Council, What Decisions Should be Subject to Merits Review? Commonwealth of Australia, Canberra, 1999

Identifying a merits reviewable decision As a matter of principle, the Council believes that an administrative decision that will, or is likely to, affect the interests of a person should be subject to merits review … Decisions that are unsuitable for merits review There are two types of decisions that, by their nature, are unsuitable for merits review. They are: • legislation-like decisions of broad application (which are subject to the accountability safeguards that apply to legislative decisions); and • decisions that automatically follow from the happening of a set of circumstances (which leave no room for merits review to operate) … Factors that may justify excluding merits review … Factors that may exclude merits review, that lie in the nature of the decision, touch upon: • • • • • • •

preliminary or procedural decisions; decisions to institute proceedings; decisions allocating a finite resource between competing applicants; decisions relating to access to parliamentary or judicial records; policy decisions of a high political content; decisions of a law enforcement nature; and financial decisions with a significant public interest element …

Factors that may exclude merits review that lie in the nature of the effect of the decision concern: • decisions to delegate a power or to appoint a person to undertake a specified function; • recommendations to ultimate decision-makers; and • decisions where there is no appropriate remedy … Factors that may exclude merits review that lie in the costs of review of the decision include instances of: • decisions involving extensive inquiry processes; and • decisions which have such limited impact that the costs of review cannot be justified … Factors that do not justify excluding merits review … Factors that will not exclude merits review, that lie in the nature of the decision, touch upon: • • • •

decisions decisions decisions decisions

affecting the national sovereignty or prerogative power; made, or reviewed, in geographically isolated places; that are legislatively unstructured; and made by reference to government policy …

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Factors that will not exclude merits review that lie in the nature of the decision-maker include: • the decision-maker is an expert, or requires specialised expertise; and • the decision-maker is of high status … Factors that will not exclude merits review, that lie in the effect of the decision, include that: • review may lead to the publication of reports affecting individuals; • large numbers of people may take advantage of review; and • there is potential for the original decision to be subject to judicial review.

3.3.37  Definitional difficulties in ascertaining the scope of a tribunal’s review jurisdiction still arise, notwithstanding that the categories of reviewable decision are defined by legislation. Frequently the issues are similar to those arising in relation to the jurisdiction of courts to undertake review of ‘decisions’ or ‘conduct’ under statutes conferring a judicial review jurisdiction: see 2.4.2, 2.4.6–2.4.7. The critical issue in many cases is whether the administrative actions to be reviewed by the tribunal form part of a final determination of a claimant’s rights that has an operative effect. In Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15, the High Court unanimously held that the AAT was required to consider information adduced during the cross-examination of a witness during an oral hearing of the AAT, notwithstanding s 500(6H) of the Migration Act 1958 (Cth) which provided that the AAT must not have regard to any information presented orally in support of a person’s case unless it has been provided in a written statement to the minister at least two days before the hearing. The court held that s 500(6H) does not fetter the power of the AAT to grant an adjournment to enable the applicant to give the required notice to the minister, where this is necessary to ensure that a review is conducted thoroughly and fairly. This decision reversed the accepted view that the terms of the section were to be interpreted literally.

Merits review and other forms of statutory appeal 3.3.38  The merits review function of an administrative tribunal needs to be viewed in a broader legal context. There is an endless variety of appeal bodies and forms of appeal: see 3.2.17. Justice Glass identified at least six forms of appeal in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297. The only essential feature in common is that each system of appeal is created by a statute that determines the scope and the form of appeal. In Re Greenham 3.3.6C, Drake 3.3.10C, and Shi 3.3.11C, for example, the merits review function of the Commonwealth AAT was divined from various aspects of the AAT Act, particularly s 43. It is necessary also, as noted in Shi, to have regard to the legislation under which the initial decision was made. In the absence of statutory indication to the contrary, an ‘appeal’ from an administrative tribunal to a court confers original, not appellate, jurisdiction on the court, and is not confined to review for error of law: Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320 at 331–2. 3.3.39  Legislation will sometimes specify the form that an appeal will take. An example is Sch 3, Pt 6, cl 14 of the Civil and Administrative Tribunal Act 2013 (NSW) under which external appeals are to be by way of rehearing. More commonly, legislation will not define the scope of appeal, and may say little more than that the appeal body is to hear an ‘appeal’, or 206

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‘review’ a decision, or conduct a ‘rehearing’. The meaning of these terms is not easy to discern. As Mason J said in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 (Sperway), ‘[p]rimarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing’: at 622. A solution to this problem was suggested by Murphy  J in Sperway: ‘Statutory definitions of the various methods of appeal perhaps in a general Interpretation Act would save much judicial time and public expense’: at 630. That recommendation was made in relation to a right of appeal ‘by way of rehearing’ to a licensing board set up under the Builders Licensing Act 1971 (NSW). To date the recommendation has not been heeded. 3.3.40  The law has developed various principles and presumptions to provide guidance, as explained in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission 3.3.43C; see also Sperway 3.3.39. The principal categories of appeal as described in relation to courts are found in the following extract from Fox v Percy (2003) 214 CLR 118: Gleeson CJ, Gummow and Kirby JJ: Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word ‘rehearing’.

3.3.41 In Kostas v HIA Insurances Services Pty Ltd (2010) 241 CLR 390 French CJ said: ‘An appeal by way of rehearing requires that the appellant demonstrate “that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error”’: at 400. The High Court in this extract also split ‘rehearing’ into two categories, which further illustrates that the terms used in a statute to describe a form of appeal provide a useful starting point, but no more. In The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 the High Court distinguished between a review that ‘is a re-hearing of a matter’, and a review that ‘is a reconsideration of the matter’. The review by way of rehearing involves a hearing and ‘requires deciding an issue afresh on whatever material is placed before the new decision maker’, while a ‘reconsideration’ requires ‘reviewing what the original decision maker decided and doing that by reference to the material that was placed before the original decision maker (supplemented … only by whatever material the [tribunal] provides in answer to requests made by the Tribunal [as authorised by the statute])’: at [60]. 3.3.42  These broad principles apply to tribunals, although as the Western Australian Court of Appeal pointed out in Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32 at [59]: [G]enerally, where a right of appeal by way of ‘rehearing’ is given to a court, from a decision of an administrative authority, the court will undertake a hearing ‘de novo’. On the other hand, where the administrative body itself is required to determine justiciable issues formulated in advance, to conduct a hearing at which the parties are represented and in which evidence

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Control of Government Action

under oath and subject to cross-examination is given, to keep a transcript record, to apply the rules of evidence, and to give reasons for determination, a direction that any appeal from the administrative body is to be by way of ‘rehearing’ may well assume a different significance.

The Court of Appeal also noted at [61]: Where the statutory provision indicates that the appellate body is required to ‘make such order as it thinks fit’, this is an indication that the appellate body’s powers are not constrained by the need to identify error on the part of the decision-maker, but, rather, it is obliged to give its own decision on the evidence before it.

3.3.43C

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 174 ALR 585 High Court of Australia

Gleeson CJ, Gaudron and Hayne JJ: It was pointed out in Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267 at 230 that ‘the nature of [an] appeal must ultimately depend on the terms of the statute conferring the right [of appeal]’. The statute in question may confer limited or large powers on an appellate body; it may confer powers that are unique to the tribunal concerned or powers that are common to other appellate bodies. There is, thus, no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another. It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this court under s 73 of the Constitution is an appeal of that kind (see Mickelberg v R (1989) 167 CLR 259; Eastman v R (2000) 203 CLR 1). In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance. If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of rehearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing. Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error (see CDJ v VAJ (1998) 197 CLR 172 at 201–2 [111]). However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance. [Kirby and Callinan JJ delivered separate judgments, each containing a similar discussion.]

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3.3.44  There are many familiar examples that illustrate those different categories. An example of an appeal in the strict sense (also called appeal stricto sensu, or purely appellate jurisdiction) as mentioned in Coal and Allied 3.3.43C is the appeal from a superior court to the High Court under s 73 of the Constitution. At the other end of the spectrum, an example of the hearing de novo (a form of original jurisdiction) is the merits review undertaken by the AAT. The mid-point in the spectrum — dubbed the ‘appeal by way of rehearing’ — most commonly applies to an appeal from a specialist tribunal to a court. It has also been held to apply to an appeal from a single judge of the Federal Court to the Full Court, because of the statutory powers of the Full Court to take further evidence on appeal and to make such orders as the court thinks fit: Forrest & Forrest at [61] 3.3.42. 3.3.45  The main point emphasised by the High Court in Fox v Percy (2003) 214 CLR 118, Coal and Allied 3.3.43C, and Shi 3.3.11C is that the extent of a statutory appeal must be discerned from the terms of each statute, taking account of the nature of the appeal body and the decision under appeal, the grounds of appeal and the powers of the appeal body. Two issues that arise prominently in the cases are whether the appeal body can receive fresh evidence and, allied to that, whether the function of the appeal body is to correct error or to make a fresh determination, features which may depend on the characterisation of the right of appeal. 3.3.46  The importance of those considerations in the context of the particular statutory framework is illustrated by this example. The Witness Protection Act 1991 (Vic) provided that a person who had been removed from the witness protection program by the Chief Commissioner of Police could ‘appeal’ to the Director of the Office of Police Integrity. The decision of the director was to be made within 72 hours of receiving the appeal. In Applicants A1 & A2 v Brouwer (2007) 16 VR 612, the Victorian Court of Appeal rejected the director’s limited approach of examining whether the termination decision was one that was reasonably open to the Chief Commissioner of Police, and instead held that the director was to undertake a hearing de novo. Factors that influenced the court’s decision were the gravity of a decision to remove a person from witness protection, the independent role of the director, and the director’s power to make any decision that the chief commissioner could have made. (The court commented that the difficulty facing the director in deciding the scope of the review could have been avoided had the legislature specified and defined the recognised categories of appeal in the Interpretation Act.) 3.3.47  Cases which illustrate other factors include NSW Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691 (tribunal limited to correction of error, not de novo review); Calman v Commissioner of Police (1999) 59 ALD 366 (Government and Related  Employees Appeal Tribunal was to undertake an appeal de novo, by reason of its power to take evidence on oath, to compel the production of evidence, and to conduct a full hearing); and Gadon v Police Review Board [2014] TASSC 23 (the board’s powers included a summons power for evidence and witnesses, that new material could be received without leave, a wide discretion as to the decision to be reached, and a need to take account of the public interest and community confidence, which together implied full merits review).

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PROCEDURE AND EVIDENCE — THEIR ROLE IN MERITS REVIEW BY ADMINISTRATIVE TRIBUNALS 3.4.1  Administrative tribunals (as an institution) and merits review (as a concept) are intertwined in many ways. Issues to do with tribunal procedure and evidence illustrate that point strongly. Put another way, the procedural style of tribunals — how they hear the parties, elicit facts, work through a problem and explain their decisions — is central to fulfilling their function of making the correct or preferable decision in any disputed context. They perform that role against a backdrop explained by the Productivity Commission put in its report No 72 Access to Justice Arrangements (2014) at 345: Tribunals aim to provide informal, low cost and timely avenues for resolving disputes through: active case management; using alternative dispute resolution processes; limiting legal representation and costs awards; and assisting self-represented litigants.

The following extract from the ALRC Managing Justice report 3.4.2E emphasises the integration between the substantive and procedural features of merits review by tribunals. 3.4.2E

Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System Report No 89, 2000

In review tribunal proceedings there is no necessary conflict between the interests of the applicant and of the government agency. Tribunals and other administrative decision making processes are not intended to identify the winner from two competing parties. The public interest ‘wins’ just as much as the successful applicant because correct or preferable decision making contributes, through its normative effect, to correct and fair administration and to the jurisprudence and policy in the particular area. The values underpinning administrative review are said to encompass the desire for a review system which promotes lawfulness, fairness, openness, participation and rationality. The provision of administrative review can be seen to fit neatly into a model of pluralist and participatory democracy … The Commission considers that the legislation and practice of review tribunals should further emphasise the administrative and investigative character of tribunal processes. Tribunal processes can and should be arranged to permit enhanced inquiry by tribunals, discontinuous hearing processes, and resolution of certain issues on the papers. Cooperative training and working arrangements between tribunals and the government departments and agencies whose decisions are under review may also be beneficial. The Commission’s proposals in this regard should not be taken to threaten the flexible decision making processes adapted to different types of case or to undermine tribunal independence. Rather these are proposed to enhance and render more effective the distinguishing characteristics of administrative review.

3.4.3  The legal rules established by the courts about procedure, including the taking of evidence, are often no different for tribunals than for administrative decision-makers. Much, of course, depends on the nature of the tribunal: a tribunal, for example, that is closer to the judicial than the executive end of the spectrum will usually be expected to adopt evidentiary standards closer to those of courts. This is illustrated by Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788, holding that litigation privilege applied in the AAT although it might not apply in other tribunals: 210

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Downes J (President) and RJ Groom (Deputy President): [T]he appropriate course seems to us to be to look at the nature of proceedings in the Tribunal and to see whether they have characteristics sufficiently analogous to court proceedings to compel a conclusion that the proceedings attract legal professional privilege. In this process the nature of the exercise being undertaken will be more important than the procedure by which it is achieved.

3.4.4  The statute creating a tribunal will be the first point of reference in ascertaining the procedure to be followed by that tribunal. The features outlined below are not mutually exclusive: a tribunal may resolve one type of dispute in an adversarial manner, and another in an inquisitorial manner; or the tribunal might employ mediation at one stage of a dispute and, if that is unsuccessful, adjudicate in an adversarial manner thereafter. Nor, as that suggests, are the models one-dimensional; they can shade one into another. That point is brought out in the extract from Re Hennessy and Secretary to Department of Social Security 3.4.5C. 3.4.5C

Re Hennessy and Secretary to Department of Social Security (1985) 7 ALN N113 Administrative Appeals Tribunal

RK Todd (Deputy President), PJ Gibbes and HN Pavlin (Members): Consistently with meeting the basic requirements of natural justice …, the Tribunal has been given a degree of flexibility to deal with the proceedings before it as it sees fit. The experience of the Tribunal has been that, given the wide variety of issues which arise for decision, there is no one level of formality or informality which is appropriate for all cases. Plainly, a customs tariff classification dispute involving substantial amounts of duty is likely to involve legal representation on both sides and may well require a relatively formal hearing. Cases involving difficult medical questions may require similar treatment. But not all cases attract or require legal representation, and where the nature of the issues allows the Tribunal operates at a less formal level. We are satisfied that a structured form of hearing, ordered, orderly and dignified, leaves plenty of room for informality. Equally, there is room for patience with the difficulties of, and for kindness to, applicants, respondents and their representatives who come before the Tribunal and of whom the Tribunal is servant and not master. Considerable experience has demonstrated that a degree of so-called formality in fact serves to confer, and not to detract from, that equality of treatment to which applicants, particularly unrepresented applicants, are entitled.

Tribunal procedures generally 3.4.6  The expectation that tribunals should not be confined by the rules of procedure and evidence observed by courts is usually spelt out explicitly in the legislation establishing a tribunal, as exemplified by s 33(1) of the AAT Act: 33(1) In a proceeding before the Tribunal:

(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal; (b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and (c) the Tribunal is not bound by the rules of evidence but may inform itself in such manner as it thinks appropriate. 211

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For similar provisions in other jurisdictions and tribunals see: ACAT Act ss 7, 8; NCAT Act s 38; NTCAT Act ss 52, 53; QCAT Act ss 28–30; SACAT Act s 39; Magistrates Court (Administrative Appeals Division) Act 2001 (Tas) s 34; VCAT Act ss 97, 98; SAT Act s 32. Those provisions are commonly supplemented by other statutory provisions that spell out the objectives to be pursued by a tribunal, for example, as stated in s 2A of the AAT Act: ‘In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is ... (b) fair, just, informal, economical and quick’. 3.4.7  Guideline provisions of these kinds are meant to release tribunals from a legal obligation that they might otherwise have to act in a more formal and judicial manner. But just how far does that release go? Does the direction to be ‘fair and just’ or to act according ‘to substantial justice’ (for example, see Migration Act 1958 (Cth) s 420) impose a legal obligation of some kind upon a tribunal? The High Court considered and rejected that approach in Minister for Immigration and Multicultural Affairs v Eshetu 3.4.8C, and confirmed this view in Li 3.4.9C. 3.4.8C

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289 High Court of Australia

[Section 476 of the Migration Act specified the grounds on which an application could be made to the Federal Court for review of a decision of the Refugee Review Tribunal. Among those grounds was s 476(1)(a) of the Act, providing ‘that procedures that were required by this Act … to be observed in connection with the making of the decision were not observed’. The High Court reversed a decision of the Federal Court to the effect that s 420 of the Act specified a procedure for the purposes of s 476(1)(a). Section 420 provided that (1) ‘The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case’.] Gleeson CJ and McHugh J: [L]egislative provisions similar to s 420 … are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question. Section 420 is to be understood in its statutory context. In describing the general nature of the procedures the Tribunal is to adopt, s 420 informs the grounds of review specified in s 476 of the Act … Thus, for example, it would be an error of law reviewable under s 476(1)(e) for the Tribunal to decline jurisdiction because of some technical error in the application for review. Conversely, it would neither be an error of law nor a procedural irregularity for the Tribunal to reach a decision on the basis of hearsay information which would not be admissible in legal proceedings. These examples are not exhaustive. They suffice, however, to illustrate that s 420 has an effect, but only an indirect effect, on review proceedings. Gaudron and Kirby JJ: It is important to note that s 420(2) of the Act is in two parts … Together, those paragraphs describe the general nature of review proceedings and require

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the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals. [Gummow J described s 420 as containing ‘general exhortatory provisions, the terms of which do not conform to the common understanding of a “procedure”’. His Honour referred to the judgment of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324, which his Honour said signified ‘the steps, more or less precisely identified, which are or may be involved in particular proceedings’. In particular Gummow J approved the observations of Lindgren J that the direction in s 420(1) for the Tribunal to pursue the objective of ‘providing a mechanism of review that is fair, just, economical, informal and quick’ did not amount to a requirement that the Tribunal observe a procedure in connection with the making of a particular decision ‘for the purposes of par (a) of s 476(1)’, and the fact that Lindgren J reached that conclusion because the objectives were, to an extent, inconsistent between themselves: at 642–3. Hayne J agreed with the judgment of Gleeson CJ and McHugh J, observing that he ‘agree[d] that s 420 of the Act does not create rights or a ground of review additional to those given in s 476’: at 659. Callinan J agreed with the reasons of Lindgren J in Sun Zhan Qui, observing that it was ‘unnecessary to reach a conclusive decision on the interpretation of s 420(1)’: at 668.]

3.4.9C

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; [2013] HCA 18 High Court of Australia

[A summary of the facts is found at 15.2.18C. In the course of his judgment French CJ referred to the interpretation of ss 353 and 420 of the Migration Act setting out the powers of the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT): see Eshetu 3.4.8C. Broadly, the issue was whether these provisions gave rise to an obligation to comply with procedural fairness or natural justice.] French CJ: [11] The objective set out in s 353(1) is replicated, in relation to the administration of the MRT, in s 397(2)(a), which defines one of the responsibilities of the Principal Member of the tribunal as ‘monitoring the operations of the Tribunal to ensure that those operations are as fair, just, economical, informal and quick as practicable’. [12] Section 420 of the Act gives the same legislative directions to the RRT as s 353 gives to the MRT. The direction in subs (1) of each provision is, as was said in SZGUR, a ‘requirement imposed on the Tribunal, in the discharge of its core function’. That requirement is formulated in terms of broad legislative objectives which are, to some degree, ‘inconsistent as between themselves.’ They are not expressed in terms or in a context which would support a claim of jurisdictional error based on the non-observance of any of them. … [I]t was the broad facultative language of s 420 that supported the conclusion that it did not give rise to grounds for judicial review based on a failure to comply with its exhortations. [French CJ referred to the views of Gleeson CJ and McHugh J in Eshetu, relating to s 420(1) and went on:] Gaudron and Kirby JJ described s 420 as determining the general nature of review proceedings and held that there was no basis for concluding that it operated to mandate specific procedures to be observed by the RRT or the method by which it was to reach its decision. Gummow J agreed with what Lindgren J had said … Although his analysis was based upon the interaction with s 476, it threw up the general difficulty of invoking s 420(1) and similarly s 353(1) as giving rise to grounds for judicial review. …

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Control of Government Action

[13] The requirements of s 353(2) are in the same terms as those applied to the RRT by s 420(2) of the Act. The language is familiar. Its ancestry dates back to statutory directions to Courts of Requests in the 17th century to make such orders ‘as they shall find to stand with equity and good conscience’. That statutory formula evolved and was applied to tribunals in Australia both before and after Federation. … [14] The rolled-up direction to ‘act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms’ … is to be understood in its statutory context. That context makes clear that it cannot operate to allow the MRT to act other than according to the law set out in the Act in the exercise of its function of review, including the exercise of the powers and discretions conferred upon it in aid of that function. The MRT is not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law. [15] Section 353(2) shares with s 353(1) a facultative rather than restrictive purpose. The two paragraphs of s 353(2) ‘describe the general nature of review proceedings and require the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals.’ … [16] Section 353(2) does not import substantive common law requirements of procedural fairness. Nothing said in SZGUR supports such a conclusion. To the extent that the Full Court of the Federal Court treated the direction in s 353 as giving rise to grounds for judicial review, it was in error. A fortiori, no substantive operation applicable to individual review proceedings is to be attributed to s 397(2)(a) of the Act. On the other hand, nothing in s 353 is adverse to the application of the requirements of procedural fairness in the exercise of the MRT’s functions. A limiting definition of their application in certain respects is to be found in s 357A. … Hayne, Kiefel and Bell JJ: [Their Honours in their joint judgment concurred with the view ‘that s 420 must be understood in its statutory context’: at [53]. That context included Div 5 of the Act which provided for the conduct of the review, including a power to invite the person to attend a hearing and give evidence. The Division also included s 357A(3) which provides that in ‘applying this Division, the Tribunal must act in a way that is fair and just’. The majority concluded that on its own these provisions did not give rise to an obligation.] [58] ‘[W]hat is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the tribunal in the conduct of a review. The act of the tribunal in question may involve a step taken in satisfaction of a duty imposed by Div 5. The act may be the exercise of a discretion, as in the present case. What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole. [59] A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision of the review, there may be other consequences which flow from that act. [The majority then discussed the issue of unreasonableness as a substantive ground which may have been raised by the facts. Gageler J confined his judgment to consideration of the issue of unreasonableness.]

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3.4.10 As Li 3.4.9C illustrates, the courts have continued to resist any suggestion that a breach of the provisions setting out these general procedural powers are more than ‘facultative’. No transgression of such provisions, on its own, could give rise to any breach of a ground of review. This does not mean, however, that a tribunal is absolved from its obligation to act lawfully. This point was made in the decision of the Victorian Court of Appeal in Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29, that a provision authorising the board to ‘inform itself in any way it thinks fit’ did not absolve the board of the obligation to accord natural justice, and in particular to inform the parties of any evidence which it proposed to consider, these being common law obligations required of tribunals unless their legislation provided otherwise. A  similar approach was adopted by the New South Wales Court of Appeal in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 which described such an expression as a guideline section but nevertheless important in defining the legal obligations of a decision maker: Gleeson CJ and Handley JA: The words ‘equity, good conscience and the substantial merits of the case’ are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found … In some circumstances the presence of this language may indicate that the decision-maker is free from any obligation to apply rules of law so that any decision will be executive rather than judicial and not subject to appeal even if that is otherwise available. … In other contexts such words have been construed as requiring the tribunal to apply the ordinary law.

Their Honours went on to hold that, in the context of that Act which provided that a party aggrieved by a decision of the Equal Opportunity Tribunal could appeal to the Supreme Court on a question of law, the tribunal was not freed of its duty to apply substantive rules of law in arriving at its decisions: at 30. See M Groves, ‘The power of an administrative tribunal to inform itself ’ (2015) 22 Australian Journal of Administrative Law 236.

Evidence, fact-finding and onus of proof 3.4.11  Virtually every statute establishing a tribunal provides that the tribunal is not bound by the rules of evidence. In addition, the Evidence Act 2005 (Cth) does not apply to Commonwealth tribunals: Hood v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 555 at [18]– [20] (Ryan J). But should a tribunal nevertheless meet a more rigorous standard of fact-finding than a primary decision-maker? And if so, how is that standard to be defined: will a special ‘tribunal’ standard inevitably reintroduce rules of evidence by the back door? And who bears the onus of proof ? The statute creating a tribunal may partially address those issues — for example, the Veterans’ Entitlements Act 1986 (Cth) specifically provides in s 120(6) that there is no onus of proof on either party to an application. Generally, too, being freed of an obligation to apply rules of evidence does not mean, as Diplock LJ remarked in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488, that a tribunal can ‘spin a coin or consult an astrologer’ but rather that it must ‘take into account any material which, as a matter of reason, has some probative value’. 3.4.12  The application of evidentiary standards in tribunal decision-making was taken up early by the AAT in Re Pochi and Minister for Immigration and Ethnic Affairs 3.4.13C — a decision that was upheld on appeal by a majority of the Federal Court in Minister for Immigration and 215

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Ethnic Affairs v Pochi (1980) 44 FLR 41. Two other decisions — McDonald v Director-General of Social Security 3.4.16C and Epeabaka v Minister for Immigration and Multicultural Affairs 3.4.18C — deal with the onus of proof. 3.4.13C

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 Administrative Appeals Tribunal

[Mr Pochi appealed to the AAT against a decision of the minister to deport him under s 12 of the Migration Act. Section 12 provided that the minister may order the deportation of a non-citizen who had been convicted and sentenced to imprisonment for one year or more. Mr Pochi had been convicted of the supply of marijuana after being arrested while cultivating a 30-acre plantation of marijuana in the Griffith region in New South Wales. Before the tribunal, the minister sought to establish that Mr Pochi had played an entrepreneurial role in marijuana cultivation that went beyond the facts of his conviction. The points relied upon by the minister included the significant short-term increase in Mr Pochi’s wealth; the inadequate explanation given by Mr Pochi for the source of that wealth; his association with other people from Calabria convicted of similar offences; and in camera evidence (partly hearsay) given by a police officer who had worked for the New South Wales Royal Commission into Drugs. Brennan J concluded that the evidence raised only a suspicion but not a positive finding that Mr Pochi was involved in commerce in marijuana. For that reason, together with Mr Pochi’s 20 years’ residence in Australia, the grave damage that deportation would cause to his wife and children, and the fact that Mr Pochi had earlier been accepted for but (through administrative oversight) had not taken up Australian citizenship, Brennan J concluded that it was not in the best interests of Australia that Mr Pochi be deported and recommended accordingly. In doing so, Brennan J invoked the evidentiary rule in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 that the civil standard may be increased in rigour according to the consequences of an adverse finding. (At that time the AAT could only recommend that a deportation order be revoked. The tribunal’s recommendation was later accepted by the government.)] Brennan J (President): When the Minister, or this Tribunal on review, goes beyond the conduct which founded the conviction in order to make an appraisal as to where the best interests of Australia lie, questions necessarily arise as to the manner in which the facts of the particular case are to be found. … But what degree of proof is required before facts will be found adversely to an applicant? These are facts which, if found against an applicant, may carry adverse consequences of the most serious kind. Although deportation is not itself a criminal punishment, the consequences of deportation may often be more destructive of the lives of the deportee and his family than the period of imprisonment to which he is sentenced. Before the Tribunal, the burden of proving the circumstances which warrant his deportation should be borne by the Minister who, in order to advance the best interests of Australia, would subject the applicant to deportation — a liability additional to the imprisonment which his conviction entailed … The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that ‘this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force’, as Hughes CJ said in Consolidated Edison Co v National Labour Relations Board 305 US 197 at 229. To depart from the rules of evidence

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is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J pointed out, though in a dissenting judgment, in R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott [17.4.9C] at 256: Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, ‘bound by any rules of evidence’. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer ‘substantial justice’ … That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence … The majority judgments in Bott’s case, supra, show that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not. Starke J said at 249, 250: The Appeal Tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent medical opinion, for instance, upon oath, and whether cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence, and is authorized to act according to substantial justice and the merits of the case. [Brennan J considered the evidence and submissions presented to the tribunal, and concluded]: [T]he confidential information, in conjunction with the other circumstances of the case including my finding as to the applicant’s access to clandestine funds, does not warrant a positive finding that he was involved in commerce in marihuana. There are ample grounds for suspecting that the applicant was so involved, but the evidence does not prove it. When an alien who is an established resident becomes liable to deportation under s 12, the general rule 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.

3.4.14  The need for tribunals to make decisions on evidence which is logically probative is the advice given by the ARC in its Decision Making: Evidence, Facts and Findings, Best Practice Guide No 3, Commonwealth of Australia, Canberra, 2007, at 6. This means that the evidence relied upon must logically prove the existence or non-existence of a fact, and that findings must be supported by reasoning that is not self-contradictory. That is not only a rule of good practice, but it may also amount to an error of law if the failure to find facts on a logically probative basis forms the basis for a ground of review. The probative evidence rule shades into other principles and requirements of administrative law, such as Wednesbury unreasonableness (see 15.2.1ff), the principles discussed by the majority in Li 3.4.9C, the no evidence rule (see 13.2.1), and jurisdictional error: see FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1. At the same time, the degree to which facts found by 217

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a tribunal must meet these standards, as the Pochi litigation indicates, will also need to take into consideration the variable levels of evidence consequent upon the procedural diversity within tribunals. An early debate sparked by Pochi and similar cases about formality versus informality, and adversarial versus inquisitorial technique, feeds into these issues. See also the view expressed by Bedford and Creyke at 3.4.25 that the right to appeal to the courts against tribunal decisions has contributed to the pressure on tribunals to proceed in a more formal manner. 3.4.15  The ultimate task for a tribunal is to decide whether, on the facts and evidence before it, the tribunal is satisfied or persuaded (one way or the other) of the issues to be resolved. In McDonald 3.4.16C the court makes the point that a tribunal is not to undertake that task by requiring one of the parties before it to discharge a burden of proving or disproving a fact in contention. Rather, the tribunal shoulders the responsibility of being reasonably satisfied on each component issue. That means if the tribunal regurgitates material from submissions or previous decisions, the decision may be invalidated on the ground that the tribunal did not bring an independent mind to its task: MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154. As a practical matter, however, it is in the interest of a party to lead evidence to persuade the tribunal. The court in Epeabaka 3.4.18C adds the further rider that it will be difficult for a tribunal to reach a conclusion — that is, to be persuaded of an issue — unless the tribunal chooses a standard of proof to guide its analysis of the evidence before it. The civil standard — the balance of probability — is ordinarily the appropriate standard to be applied by an administrative tribunal: see, for example, Repatriation Commission v Smith (1987) 15 FCR 327. 3.4.16C

McDonald v Director-General of Social Security (1984) 1 FCR 354; 6 ALD 6 Federal Court of Australia (Full Court)

[In the following case the court dismissed an argument that the AAT, in reviewing a decision to cancel Ms McDonald’s invalid pension on the basis that she was not permanently incapacitated for work, had wrongly imposed a burden of proof on Ms McDonald.] Woodward J: The first point to be made is that the onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. One of the chief difficulties of the concept has been the necessity to distinguish between its so-called ‘legal’ and ‘evidential’ aspects. The concept is concerned with matters such as the order of presentation of evidence and the decision a court should give when it is left in a state of uncertainty by the evidence on a particular issue. The use outside courts of law of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative tribunal which, by its statute ‘is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate’ (AAT Act s 33(1)(c)). Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating

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to onus of proof developed by the courts. However, these may be of assistance in some cases where the legislation is silent. Whether the principles adopted by such a tribunal, arising from these various considerations, are appropriately dealt with under the heading ‘onus of proof’, becomes a matter of choosing labels. It would probably be more convenient to avoid using that expression in cases such as the present. There is certainly no legal onus of proof arising from the fact that this is an ‘appeals’ tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT (not the material before the administrator, Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419), make its own decision in place of the administrator’s … Obviously someone must set in motion the process which establishes the entitlement, and that will normally be done by or on behalf of the person concerned, but the Act does not create a legal onus to prove all relevant aspects of a claim of permanent incapacity such, for example, as the state of the labour market for disabled persons … It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts may lead to an unfavourable inference being drawn — but it is not helpful to categorise this common sense approach to evidence as an example of an evidential onus of proof. The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go. Putting such cases to one side there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it … If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that any pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work. [Northrop and Jenkinson JJ each delivered a judgment in similar terms to the judgment of Woodward J.]

3.4.17  The same point was made succinctly by the AAT in Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303: RK Todd (Senior Member): [W]hile no general responsibility of proof rests upon an applicant in an application to the Tribunal for review … yet, when either party to such an application raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge.

See also Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 which contains useful remarks on the problems of the notion of ‘proof ’ and of the burden of proof in administrative law. 219

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Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 Federal Court of Australia

Finkelstein J: A proceeding before the [Refugee Review] Tribunal … may best be described as inquisitorial: compare Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 where Brennan J so described proceedings before the Administrative Appeals Tribunal. One consequence of a proceeding not being adversarial is that an applicant does not carry any burden of proof: see McDonald v Director-General of Social Security (1984) 6 ALD 6 at 9; Bushell at 425 … Thus, the Tribunal must simply listen to all of the evidence and decide the case on the basis of that evidence. … When deciding a case the Tribunal must have regard to what is an appropriate standard of persuasion. In Sodeman v R (1936) 55 CLR 192 at 216 Dixon J said that the common law only knew of two such standards, that applicable to criminal cases, beyond a reasonable doubt, and that applicable to civil cases, the preponderance of probability. However, Dixon J pointed out that ‘questions of fact vary greatly in nature and, in some cases, greater care in scrutinising the evidence is proper than in others, and a greater clearness of proof may be properly looked for’. In Wu Shan Liang the High Court observed that the decision-making processes that are applicable to civil litigation, such as notions of burden of proof and the like, are not always applicable to administrative decision-making: see 185 CLR 282. In some contexts, such as when the tribunal is seeking to determine what might happen in the future or even what has already happened, the use of the term burden of proof might be misleading. But when the tribunal is required, as a step in the process of arriving at its decision, to determine whether a fact does or does not exist generally the civil standard should be held to apply to its decision-making with due regard being paid to serious issues. … Unless the tribunal is required to apply some standard of proof it is not easy to see how the tribunal should direct itself in determining whether the evidence before it permits it to make a particular finding of fact. On one view the tribunal could approach the matter solely by reference to ‘natural justice and common sense’ (see McDonald at 9) but this does not give a sufficiently clear guide to the tribunal in my opinion. It is more likely to arrive at the correct or preferable decision if its obligation is to determine the existence of facts in accordance with the civil standard except in respect of those matters where the nature of what must be decided makes this inappropriate. [The Full Federal Court in Epeabaka reversed the decision of Finkelstein J on a different aspect of his Honour’s reasoning (the scope of the probative evidence rule) but did not comment on the standard of proof. The High Court dismissed an appeal but solely on the natural justice ground: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128.]

3.4.19  The court in McDonald 3.4.16C makes the point that a statute may declare that one or other party bears an onus of proof. An example is s 55D of the Freedom of Information Act 1982 (Cth), which provides that an agency has the onus of establishing that a document was exempt from disclosure. Similarly, a statute may define the standard of satisfaction that a decision-maker must attain in applying the statute. An example is s 120 of the Veterans’ Entitlements Act 1986 (Cth), which provides that a veteran’s injury or disease shall be taken to be war caused and to qualify for payment of a veterans’ benefit if there is ‘a reasonable hypothesis’ connecting the veteran’s injury with their war service which has not been disproved beyond reasonable doubt: see Bushell v Repatriation 220

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Commission (1992) 175 CLR 408. The interaction of statutory and evidentiary standards is captured also in the following observation in Attorney-General’s Department v Cockroft (1986) 10 FCR 180 concerning the application of a phrase in the Freedom of Information Act 1982 (Cth): Bowen CJ, Sheppard and Beaumont JJ: [T]he words could reasonably be expected to prejudice the future supply of information were intended to receive their ordinary meaning. … [T]hey require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of the words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. … [This would] place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based …

3.4.20  Another time-honoured principle, invoked by the AAT in Re Pochi 3.4.13C, is a principle often referred to as the rule in Briginshaw v Briginshaw (1938) 60 CLR 336: Dixon J: In civil cases … when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … [I]t is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect inferences … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is obtained.

3.4.21  In a more recent pronouncement on the status of particular rules of evidence such as found in Briginshaw v Briginshaw (1938) 60 CLR 336, Browne v Dunn (1893) 6 R 67, or Jones v Dunkel (1959) 101 CLR 298, the Full Court of the Federal Court in Sullivan 3.4.22C rejected an argument that these represented general principles of law which applied to tribunals. 3.4.22C

Sullivan v Civil Aviation Safety Authority (2014) 141 ALD 540; (2014) 226 FCR 555 Federal Court of Australia (Full Court)

[Sullivan was a pilot with a helicopter licence issued by the Civil Aviation Safety Authority. He crashed a helicopter shortly after take-off and was charged with three offences under the Civil Aviation Act 1988 (Cth) to which he pleaded guilty. His licence was cancelled as he was found not to be a ‘fit and proper person’ to hold a licence. He unsuccessfully sought judicial review

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of the decision on the ground that the AAT in its decision had not complied with the rules in Briginshaw v Briginshaw and Browne v Dunn, and this was to fall into error. His argument was that the general duty of fairness, the power of cancellation, particularly when the licence was for commercial purposes, and the duty to provide reasons for its decision, meant that the tribunal was bound to apply general principles of law.] Flick and Perry JJ (with whom Logan J agreed): [93] [Q]uestions have been repeatedly raised as to whether the reasons standing behind the common law rules of evidence may guide an administrative tribunal in the procedure which best facilitates the discharge of its statutory functions. In many instances, the common law rules of evidence are founded upon principles of common sense, reliability and fairness. [94] So much has long been recognised. … … [107] Albeit expressed as a general ‘principle of law’ — as opposed to a rule of evidence — the submissions, with respect, seek impermissibly to achieve the result whereby ‘the rules of evidence which have been excluded expressly by statute creep back through a domestic procedural rule’: Re Pochi [3.4.13C] (at 492). … … [114] More importantly, however, is the conclusion that the general ‘principle of law’ being advanced on behalf of Mr Sullivan would: • be inconsistent with the well-entrenched acceptance of the proposition that curial proceedings are inherently different from the tasks entrusted to decision-making by administrative tribunals and the Administrative Appeals Tribunal in particular; and would be: • inconsistent with the flexibility of procedure deliberately entrusted by the Legislature to the Tribunal; and • a potentially serious encroachment upon the statutory limitation on an appeal from decisions of the Tribunal to a ‘question of law’. … [115] The attempt on the part of Mr Sullivan to side-line the fundamental importance of provisions such as ss 2A, 33 and 39 of the Administrative Appeals Tribunal Act — and to shift the focus of attention to the ultimate task of the Tribunal in making the ‘correct or preferable’ decision as to whether it is ‘satisfied’ for the purposes of reg 269(1)(d) of the Civil Aviation Regulations — should be soundly rejected. Such a submission, with respect, fails to recognise that: • the rule in Briginshaw is a rule of evidence derived from curial proceedings; • the Tribunal is not ‘bound by the rules of evidence’; and • a party to proceedings before the Tribunal has no ‘onus of proof’, let alone an ‘onus’ to establish facts to any particular or pre-determined standard. Moreover, the submission fails to also recognise the fact that the procedure of the Tribunal is within its own discretion. [116] What procedure the Tribunal decides to follow in any particular case, and whether the Tribunal decides to either apply or inform itself by reference to the common law rules of evidence, is a matter which has been left by the legislature to the Tribunal itself to determine. The manner in which the Tribunal proceeds cannot, with respect, be pre-determined by any generally expressed ‘principle of law’ which is to be applied to some indeterminate fact findings which may be characterised as ‘grave’ or ‘serious’.

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[117] To endorse the general ‘principle of law’ it is respectfully concluded, would only serve to confuse the fundamental division of functions between the Tribunal as a body vested with administrative power and the function of this court when entertaining an ‘appeal’ from a decision of the tribunal. This division is respected in the statutory limitation upon the subject matter of an ‘appeal’ from a Tribunal decision to a ‘question of law’: s 44(1) of the Administrative Appeals Tribunal Act. … … [120] Within these already accepted principles, the tribunal is otherwise free to make findings of fact which cannot be set aside by this court. When making findings of fact which have ‘serious’ consequences to a party, or ‘grave’ consequences, the tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached. The absence of any crossexamination on the evidence and the absence of any indication being given to a party that such evidence is under challenge, may well be factors taken into account initially by the tribunal and thereafter this court on ‘appeal’. … [122] The imposition of the requirement now sought to be imposed by the appellant’s general ‘principle of law’, it is concluded, would be an unnecessary constraint upon the freedom of the Tribunal to employ such procedures as it sees fit in undertaking its fact-finding role. It is a ‘principle of law’ unsupported by authority and, indeed, contrary to authority. [Logan J agreed with the majority and also said: ‘Having regard to Li, a requirement in a case where particular conclusions may be attended with grave consequences to advert to a need not lightly to reach such conclusions is but a corollary of the need for the decision-maker to act reasonably’: at [10].]

Adversarial vs inquisitorial adjudication 3.4.23  In an adversarial model the primary role of the tribunal is to resolve the dispute as presented by the parties. The parties are chiefly responsible for defining the issue to be resolved, assembling and presenting evidence, and making submissions to the tribunal. This is usually done at a public hearing, at which the parties appear to present evidence and submissions, oral evidence is presented on oath, and the parties are often represented by lawyers. While the tribunal may conduct independent research into the legal issues to be resolved, it relies principally on the parties and the hearing to elicit the facts. In short, the hearing is all important. Some hearings in peak tribunals like the Commonwealth AAT exhibit features of the adversarial model. 3.4.24  Non-adversarial and inquisitorial dispute resolution covers a range of possibilities, but with two recurring features. The first (the non-adversarial end of the spectrum) is that the respondent agency does not make an oral presentation of evidence or argument to the tribunal, but instead provides it with a file of evidence and submissions. If a hearing is held, the purpose is to allow the applicant for review (the non-government party) to appear; the hearing is as likely to be informal and held primarily to allow the applicant an opportunity to discuss the case with the tribunal and to clarify the issue to be resolved. The second recurring feature is that the tribunal plays a more active role in identifying evidence for the parties 223

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to find, and the tribunal can also obtain evidence through its own research. This approach is moving towards the inquisitorial end of the spectrum. For example, the former Refugee Review Tribunal had its own research unit to compile ‘country information’ on the political and social environment in other countries, a facility preserved after amalgamation: TAA Sch 2. For a criticism of the usefulness of country information see D McDonald-Norman and JL Wilson, ‘Removing the Goal Posts: Manipulation of “Country Information” and Public Law’ Auspublaw, 18 June 2018. 3.4.25  The classification of a tribunal, either generally or in a particular case, as adversarial, inquisitorial or something else, can be a matter of individual opinion. For example, Brennan J, while extolling the need for the AAT to follow the curial model (see Justice FG Brennan 3.3.9E), also described its proceedings as inquisitorial in Bushell v Repatriation Commission (1992) 175 CLR 408: Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the AAT may request or itself compel the production of further material.

A contrasting view of the operation in tribunals of the inquisitorial model is presented in N Bedford and R Creyke, Inquisitorial Processes in Australian Tribunals, Australasian Institute of Judicial Administration, Melbourne, 2006, p 66: [G]enerally speaking tribunals do not operate in an inquisitorial fashion. The culture of adversarialism in Australia is too strong for an alternative mode of procedure to be adopted. Although there is a range of processes which are adopted within tribunals, the trend in contested proceedings, particularly when parties are represented, is for the parties to behave much as they would in a courtroom. This result is in part due to the strength of legal culture, in part, the unwillingness to move from the known and well-established rules of evidence, and in part the fact that tribunals are sited in an adjudicative system the final tiers of which traditionally operate in an adversarial fashion. Too little thought was given to this aspect of the architecture of the system when inquisitorial tribunals were established for this experiment in procedure to be wholly successful.

3.4.26  Principles which guide courts in deciding where a tribunal is located along the inquisitorial spectrum were identified by Mark Smyth, who concluded: This duty to inquire has emerged because it is characteristic of the core function of tribunals: providing merits review via a form of inquisitorial adjudication. However, institutional limitations and managerial pressures have curtailed the willingness of courts to hold that a failure to inquire is judicially reviewable. Consequently, the courts have found a duty in only strictly limited circumstances, where the inquiries are centrally relevant and straightforward, and where the statutory structure, circumstances of the hearing and/ or position of the applicant necessitate a proactive role for decision-makers. This limited duty to inquire is consistent with ensuring that tribunals carry out their core function of 224

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3.4.29

inquisitorial adjudication on the merits, while not unduly infringing flexibility, efficiency, procedural fairness and the legality–merits distinction. The core principles and conceptual basis of the duty to inquire identified in this article provide a timely analysis of the important niche role of a limited duty to inquire in merits review tribunals. More generally, the duty’s strained development but persistent operation is illustrative of the competing aspects of merits review, and the institutional tensions and differentiated functions of courts and tribunals in Australia’s system of administrative justice. [M Smyth, ‘Inquisitorial Adjudication: ‘The Duty to Inquire in Merits Review Tribunals’ (2010) 34 Melbourne University Law Review 230 at 267]

3.4.27  The place of a tribunal along the inquisitorial spectrum is a matter of statutory construction. Tribunals which are empowered to obtain such information as they consider relevant are considered to have an inquisitorial function: Minister for Immigration and Citizenship v SZIAI 15.3.20C at 16. The AAT when hearing a claim under the Migration Act  1958 (Cth) s 500(6H) is firmly in the inquisitorial band, and the High Court has indicated that for it to adopt adversarial procedures ‘is inappropriate to the kind of review undertaken by the Tribunal’: Uelese 3.3.37 at [62] (French CJ, Kiefel, Bell, and Keane JJ; Nettle J agreeing). For a criticism of the adversarial/inquisitorial distinction in relation to tribunal procedure, see C Mantziaros, ‘Client Legal Privilege in Administrative “Proceedings”: Killing Off the Adversarial/Inquisitorial Distinction’ (2008) 82 Australian Law Journal 397. 3.4.28  A related matter is the ‘model litigant’ policies adopted by the Commonwealth, the Australian Capital Territory, New South Wales, Queensland, South Australia, and Victoria. The policies control the conduct and choices made by government agencies when involved in litigation, including in tribunal proceedings: see, for example, Judiciary Act 1903 (Cth) s 55ZF which empowers the Attorney-General to issue Legal Services Directions that are binding on Australian government departments and some statutory agencies. The Directions impose an obligation on agencies to act as a model litigant and eschew adversarial conduct in courts and tribunals, and to support resolution of claims by means of alternative dispute resolution and settlement negotiations. A similar injunction, for all parties appearing before a tribunal to use their ‘best endeavours’ to assist the tribunal to meet its statutory objectives, applies in AAT proceedings: AAT Act s 33 (1AA), (1AB).

Alternative (or assisted) dispute resolution (ADR) 3.4.29  Most cases filed in tribunals are resolved by means other than a formal ruling following an adjudication or hearing. Indeed, in the AAT, prior to amalgamation, over 80 per cent of cases were resolved without the need for a formal contested hearing. That was partly a product of the conference procedures or of more formal alternative dispute resolution (ADR) processes used to assist the parties to resolve disputes. Alternative or assisted decision-making may take multiple forms including conferences, mediation, arbitration, neutral evaluation, case appraisal and conciliation. In mediation, for example, the parties to a dispute meet with an accredited mediator who encourages and assists them to agree upon a solution to the dispute. Attendance at the meeting is voluntary, processes are informal, confidentiality is assured, the terms of agreement are not published, and the mediator plays a neutral role of facilitating agreement between the parties on their terms. 225

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There are limits, however, to the use of mediation in settling public sector disputes: for example, a government agency could not agree to pay a person a benefit to which the person is not lawfully entitled. As French J observed in Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323 at [11]: It is well established that in making a consent order or indeed in accepting undertakings the Court must have regard to the limits of its power. The parties cannot, by consent, confer power on the Court to make orders which the Court lacks power to make.

This principle is an important safeguard against abuse of the ADR process. See generally 4.7.1ff.

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4

INTRODUCTION 4.1.1  Many of the problems that people encounter in their dealings with government are better or more easily resolved by means other than review by a court or tribunal. Sometimes that is because of the nature of the problem — lost records, delay, unclear explanation, or official rudeness. Other times it is because of the cost, difficulty or time involved in seeking review. Problems that beset government decision-making can also be of a kind not easily cured by court or tribunal orders in individual cases. 4.1.2  Parliaments and governments have responded by establishing other methods and agencies to control government decision-making. One response is the creation of ombudsman offices, to investigate complaints from members of the public about government administrative action, and to conduct ombudsman-initiated inquiries into administrative problems. 4.1.3  Other independent oversight agencies investigate administrative action in specific areas of government, sometimes after receipt of a complaint from a member of the public. At the Commonwealth level, the Inspector-General of Intelligence and Security oversees and can receive complaints about the agencies that constitute the Australian intelligence community; the Inspector-General of Taxation investigates taxation complaints and reports to government on systemic issues in the administration of taxation laws; the Australian Commission for Law Enforcement Integrity investigates corruption in federal law enforcement activity; the Information Commissioner handles privacy and freedom of information complaints and reviews; the Australian Human Rights Commission examines compliance by government agencies with human rights and anti-discrimination standards; and the Merit Protection Commissioner (located within the Australian Public Service Commission) handles personnel employment matters in the Australian Public Service. There are many similar specialist state oversight agencies, some of which are mentioned later in this chapter. 4.1.4  The work of these independent oversight agencies is replicated internally within agencies, by customer complaint and internal review units and procedures, and other facilities for resolution of problems by mediation and alternative dispute procedures. These mechanisms are supplemented by service charters and codes of conduct that define standards for official 227

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behaviour in dealing with members of the public. Nor do these mechanisms exhaust the avenues available to people for questioning and challenging government decisions. Other formal and informal options include complaints to members of parliament, to small business commissioners, and to non-government assistance bureaus and legal aid centres, and public advocacy of grievances through the media and other channels. 4.1.5  This chapter looks at the administrative justice role played by some of those agencies and mechanisms in controlling government action. Large issues lie at the base of this analysis: • Is government action more effectively controlled by external oversight, by internal quality assurance, or by a combination of both?

• How important is independence to the role and effectiveness of external oversight bodies? Should the ombudsman, for example, be an officer of the parliament, and what would that mean? Should there be constitutional protection for these bodies, just as there is for courts? • Should external oversight bodies focus mainly on individual complaint handling, or on instigating systemic change to government administrative processes? Or on conducting audits of government decision-making?

• What powers should external oversight bodies have? Recommendatory powers only? Or determinative powers to change decisions and award compensation?

• Should the jurisdiction of ombudsman and similar agencies extend to the actions of contracted service providers? Or is this a role for a specialist industry ombudsman?

OMBUDSMAN OFFICES — THEIR STRUCTURE, ROLE AND POWERS Establishment of ombudsman offices in Australia 4.2.1  The ombudsman was in origin a Swedish institution — the ‘Justitieombudsman’ — established in 1809: see 4.2.10E at 7. The following three definitions, though similar in nature, emphasise different aspects of the ombudsman role: [T]o protect the people against violation of rights, abuse of powers, error, negligence, unfair decisions and maladministration and to improve public administration while making the government’s actions more open and its administration more accountable to the public. [International Ombudsman Institute, ‘About the IOI’ ] [A]n office provided for by the constitution or by action of the legislature or parliament and headed by an independent high level public official who is responsible to the legislature or parliament, who receives complaints from aggrieved persons against government agencies, officials and employees, or who acts on his own motion, and who has the power to investigate, recommend corrective action, and issue reports. [International Bar Association (1974), quoted in Senate Standing Committee on Finance and Public Administration, Review of the Office of Commonwealth Ombudsman, Report, 1991] Ombudsmen are impartial organisations that receive and resolve complaints, and conduct inquiries into individual or systemic cases based on those complaints. [Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, September 2014, vol 1, p 312] 228

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4.2.5

4.2.2  The first Australian ombudsman office was established by statute in Western Australia in 1971, titled the Parliamentary Commissioner for Administrative Investigations. Other Australian jurisdictions quickly followed: South Australia in 1972, Victoria in 1973, Queensland in 1974 (also titled a Parliamentary Commissioner at the time), New South Wales in 1975, the Commonwealth in 1976, the Northern Territory in 1977, Tasmania in 1978 and the Australian Capital Territory in 1983 (a position discharged by the Commonwealth Ombudsman). The legislation establishing those offices is: Cth: Ombudsman Act 1976; ACT: Ombudsman Act 1989; NSW: Ombudsman Act 1974; NT: Ombudsman Act; Qld: Ombudsman Act 2001; SA: Ombudsman Act 1972; Tas: Ombudsman Act 1978; Vic: Ombudsman Act 1973; WA: Parliamentary Commissioner Act 1971. 4.2.3  Over the past 30 years, the ombudsman model has firmly taken root in Australia: see  K  del Villar 4.2.11E. One mark of its stability is that all the offices established in the 1970s still exist in the same form and with the same core function. Other functions have been added. The Commonwealth Ombudsman, for example, discharges the separately titled roles of the Defence Force, Immigration, Law Enforcement, Postal Industry, Overseas Students, Private Health Insurance, Vocational Education and Training Student Loans, Australian Capital Territory, and Norfolk Island Ombudsman: Ombudsman Act  1976 (Cth) ss  4(3), (4), (5), (6), 19B, 19L, 19ZI, 20C, 20ZL. In addition, the office oversees the work of the Fair Work Building Industry Inspectorate, and receives whistleblower complaints under the Public Interest Disclosure Act 2013 (Cth). The state and territory ombudsmen also have multiple functions. For example, the Tasmanian Ombudsman hosts the functions of Energy Ombudsman and Health Complaints Commissioner. The Western Australian Ombudsman is also the Energy and Water Ombudsman and reviews certain child deaths, and family and domestic violence fatalities. 4.2.4  A large number of industry ombudsman offices have also been established, such as the Telecommunications Industry Ombudsman, Australian Financial Complaints Authority (a merger of the Financial Ombudsman Service, Credit and Investments Ombudsman and Superannuation Complaints Tribunal), Energy and Water Ombudsman (NSW, Vic), Energy and Water Ombudsman (Qld, SA), Legal Ombudsman (Qld, Vic, Tas), Public Transport Ombudsman (Vic) and Employee Ombudsman (SA). Some of those ombudsman schemes keep watch over industries that include both public and private sector providers of services. Proposals for new ombudsman offices continue to be made. The Productivity Commission estimated that in combination, public and industry ombudsman offices ‘resolved around 542,000 complaints in 2011–12’: Access to Justice Arrangements, Inquiry Report No  72, September 2014, vol  1, p  312. The co-operative relationship between industry and government ombudsman offices is reflected in their joint membership of the Australian and New Zealand Ombudsman Association. 4.2.5  Over three decades, the office of ombudsman has been developed and refined in Australia, becoming a distinctive institution. While there is no settled model, the framework and concept is relatively stable in Australia, though still evolving. The Ombudsman’s value as a dispute resolution body is indicated in the features listed in the extract from the Productivity Commission 4.2.6E.

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Control of Government Action

Productivity Commission, ‘How Do Ombudsmen Promote Access to Justice?’ Access to Justice Arrangements, Inquiry Report No 72, September 2014, vol 1

Providing a mechanism for resolving low value disputes In order to deliver access to justice, it is necessary to provide mechanisms that deal with issues in a proportional manner. For example, a court or tribunal is not the appropriate forum to deal with a dispute over a train ticket. Addressing issues at this lower end of the spectrum is important because a number of people could suffer the same treatment, causing significant cost to society yet insufficient cost to any one individual to justify legal action. Further, early dispute resolution can prevent small problems becoming big problems. … Helping to overcome power imbalances Some consumers may feel powerless to assert their rights when dealing with large service providers or government agencies. Ombudsmen can help overcome these power imbalances. … Providing a process that is simple to use Ombudsmen are independent and impartial, so they do not provide advocacy as such. However, they actively pursue the resolution of disputes rather than leaving primary control of the case to the parties, as has occurred historically in courts (and to a lesser extent, tribunals). This model removes the need for professional advocates or representatives. … Identifying and addressing systemic issues A further way in which ombudsmen provide access to justice is through the conduct of system investigations. Ombudsmen are not limited to the investigation of individual complaints, but may instigate their own investigations in order to identify systemic issues. This generally occurs when a number of similar complaints are received. … Resolving both legal and non-legal issues Ombudsmen are also able to resolve non-legal issues. Ombudsmen do not determine disputes based on the law alone — they also consider good industry practice and what is just, fair and reasonable, as well as whether the matter was within the service provider’s reasonable control.

4.2.7  In earlier days, there was greater uncertainty about the role an ombudsman would play, as reflected in two reports that led to the creation of the Commonwealth Ombudsman. The Kerr Committee (see  1.4.1) proposed in 1971 that the office be titled the General Counsel for Grievances, with a more activist role of initiating legal proceedings either on behalf of complainants, on referral from members of parliament, or on the General Counsel’s own volition. Two years later, the Bland Committee 4.2.12E opted for a model closer to the model we know today. Yet even that model was largely untested in Australia, as illustrated by the Committee’s open-ended discussion of the qualities required of a person discharging the position. Debate on fundamental issues still continues, as noted in the topics addressed in 4.3.1ff. 4.2.8  The institution of ombudsman has flourished in other countries too. Broadly, the institution has crossed language, cultural and political barriers, being part of the framework of government in countries notable for their diversity. This is reflected in the various titles of the office, which include the Parliamentary Commissioner for Administrative Investigations in the United Kingdom, the Control Yuan in Taiwan, the Médiateur in France, the National Commission of Human Rights in Mexico, the Defensores del Pueblo in Spain, and the Commission on Human Rights and Administrative Justice in Ghana. Neither of the two other 230

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federal democracies with which Australia is closely aligned — Canada and the United States of America — has a national ombudsman. Internationally, the Commonwealth Ombudsman covers the largest geographical jurisdiction of any ombudsman. 4.2.9  A perennial issue in debate about the ombudsman is the title itself. The title is objected to by some because of its gender-specific connotation. The Senate Standing Committee on Finance and Public Administration, in its report in 1991, Review of the Office of Commonwealth Ombudsman, discussed and rejected two alternatives, Complaints Commissioner and Ombud (now widely used in states in the United States): The Committee accepts that ombudsman has become a generic, gender-neutral term in English. Pluralising the term as ombudsmen does have gender-specific effect but this usage can be avoided, and should be. The term Ombudsman can be used in a gender-neutral way … The Committee could not conclude that the cost and effort of attempting to establish community recognition of a new title would be justified.

A related issue, noted by the Productivity Commission, is whether the term ‘ombudsman’ is an unfamiliar term that inhibits public access. The commission concluded that it was better to focus instead on increasing the visibility of ombudsman services, through outreach programs, publishing information about consumer and complaint options, and restricting use of the ombudsman label to bodies that meet the criteria listed at 4.3.3E: see Productivity Commission, Access to Justice Arrangements, Inquiry Report No 72, September 2014, vol 1, pp 326–9. 4.2.10E

Commonwealth Ombudsman, First Annual Report 1978

Newly-appointed Ombudsmen usually pay homage to the Swedish origin of their office dating back to 1809 when the Swedish Rikstag created the office of Justitie-ombudsman. Translated loosely, such a person is a representative of the people. More than a century elapsed before a second country, Finland, appointed an ombudsman in 1919. Denmark followed in 1955, and many other European countries have since appointed ombudsmen. In 1962 New Zealand became the first English-speaking country to appoint an ombudsman. In 1967 the concept spread to some Canadian provinces and American states, legislation being passed in Alberta, New Brunswick and Hawaii. Other provinces and states have since appointed ombudsmen. Countries in the Pacific area which have ombudsmen include Papua New Guinea and Fiji … In fact, there are other means of attaining the same end and of greater antiquity than the office of ombudsman. In China in the third century BC, during the Chin Dynasty, the emperor, Shih Huang Ti, built the Great Wall. He also created the office of the Censorate, known as the U-Shih-Ta-Fu. Shih Huang Ti built the Great Wall to protect himself from his external enemies. The Censorate was to protect him internally against officials who neglected their duties. In the Han Dynasty, which succeeded the Chin Dynasty, the office of the U-Shih-Ta-Fu was raised to the same rank as that of the Prime Minister, but the salary of the office was only one-fifth that of the Prime Minister. The high rank-low salary system was thought to make it certain that the U-Shih-Ta-Fu would keep a very close watch on a Prime Minister who received five times his salary. … The Chinese institution was still functioning some 2000 years later under the name of the Control Yuan … In Sweden the word ‘Ombudsman’ means ‘representative’ or ‘agent’ … Plainly, an Ombudsman cannot be the representative or agent of a department or authority, but many

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Ombudsmen are concerned to refute the claim that they are the representatives or agents of the people. Other Ombudsmen do not acknowledge that they are the representatives of their complainants. One has suggested that the office combines the judicial functions of judge or magistrate and the administrative functions of an inquisitor. The essence of the office is that the Ombudsman be non-partisan and judicial in his treatment and investigation of facts. Another has stated that he is not so much an agent or representative as an independent arbitrator. Other Ombudsmen see themselves as umpires in a contest.

4.2.11E

K del Villar, ‘Who Guards the Guardians? Recent Developments Concerning the Jurisdiction and Accountability of Ombudsmen’ (2003) 36 AIAL Forum 25

Despite being described by judges as ‘a unique institution’ and ‘an idea which had no precise demarcation’ and by former Ombudsmen as a ‘hybrid’ or even a ‘constitutional misfit’, public ombudsmen have over 25 or 30 years of their existence, acquired a prestigious reputation. At the time of their inception, as Richardson observed, ‘most Australians had never heard of an Ombudsman, and the few that had were not sure what an Ombudsman was supposed to do’. In the intervening period, the institution has grown from obscurity to occupying an essential place in modern society. This is symbolised by the fact that [in 2001] Queensland changed the title of its 28 year old institution from ‘Parliamentary Commissioner for Administrative Investigations’, to Ombudsman, being ‘the name by which the office is popularly known in Queensland and the name used in most other comparable jurisdictions’. The more recent proliferation of ombudsmen in the private sphere is also testimony to the success of public ombudsmen, and to the attractiveness of the ombudsman style of review to both complainants and the organisations under review … [T]he emulation of public sector ombudsmen’s procedures and practices by industry is recognition of the fact that the government standards and public sector models are ‘best practice’. A final indication of the value accorded to ombudsmen today is the conferral of additional functions and powers on public ombudsmen. Although traditionally ombudsmen were confined to investigating matters of administrative injustice, recent developments have seen ombudsmen acquiring jurisdiction over matters unrelated to administration (such as the NSW Ombudsman’s power to investigate allegations of child abuse); and acquiring jurisdiction over private sector bodies (such as private schools, child care centres and foster carers in New South Wales). Ombudsmen are increasingly also being given jurisdiction to monitor or scrutinise the performance of public functions by other agencies (including the handling of whistleblowers in Victoria), sometimes without having power to investigate complaints in those areas (such as in relation to controlled operations by police … Although the growth of industry ombudsmen and the expansion of the jurisdiction of statutory ombudsmen are an expression of the confidence parliaments and business have in the institution, greater attention needs to be paid to the accountability mechanisms in place to scrutinise the performance by ombudsmen of these functions. Otherwise, there is a real risk that the very existence of ombudsmen will legitimise public decision-making without providing either accountability or administrative justice for the individual.

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4.2.13

Interim Report of the Committee on Administrative Discretions (‘Bland Committee’) Australian Government Publishing Service, Canberra, 1973

Finding the right man for the Ombudsman post could well prove even more difficult than drawing the legislation constituting his office and detailing his powers and functions. He must not see himself as the scourge of departments, a super administrator or a super censor, nor attempt to usurp the role of Parliament. Nor imagine himself the donee of some God given capabilities to reach a more ‘right’ conclusion than that under review. He has no role permitting him to take over the responsibilities of departments; he must never forget that accountability, particularly financial accountability, remains with them and their Ministers nor that political accountability rests with Ministers. While he has a role akin to that of an auditor, he must be on the lookout for means of removing grievances through improved procedures. He will rarely be in a position to halt departmental processes: he will generally deal with matters ex post facto. While his dedication to the protection of the rights of the citizen and the attainment by eligible persons of their entitlements under the law must be indubitable, he can be no policy maker or social reformer in his own cast. He must have great humility and be devoid of prejudices and convictions: his role is to draw attention to defects in process and questionable decisions, not to make fresh decisions however much he may prefer alternatives. Prima facie, an Ombudsman, who must necessarily be a generalist and cannot be provided with professional and technical resources matching those in a relevant agency, could hardly be well placed to challenge a specialist in the area of his own speciality … This does not mean that the Ombudsman does not have any role where specialists have been involved. His role is fundamentally to satisfy himself about proper process and that proper consideration has been given to all relevant considerations. Nor, for that matter, do we convey that a decision involving professional and like judgments could under no circumstances whatever be questioned. [H]e need not be a practising lawyer or for that matter have been trained in the law, yet such training could be a decided advantage.

The statutory framework for ombudsman offices 4.2.13  The statutory model for the ombudsman is largely the same in each Australian jurisdiction. The following summary of the main features of the office refers throughout to the Commonwealth Ombudsman and the Ombudsman Act 1976 (Cth) (Ombudsman Act), except where variations are noted:

• Creation: The office is created by statute. The Victorian Ombudsman is mentioned in s  94E(1) of the Victorian Constitution Act  1975, which provides: ‘The Ombudsman appointed in accordance with the Ombudsman Act  1973 is an independent officer of the Parliament’ (although s 94E(3) further provides: ‘There are no implied functions, powers, rights, immunities or obligations arising from the Ombudsman being an independent officer of the Parliament’). A similar status is given to the Ombudsman in the Australian Capital Territory and Queensland: Ombudsman Act 1989 (ACT) s 4A; Ombudsman Act 2001 (Qld) s 11(2).

• Appointment: The Ombudsman is appointed by the Governor-General for a term of up to seven years, and can only be removed by a resolution of both houses of parliament: ss 21, 28. 233

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In the states, for example, the choice of a person as New South Wales Ombudsman can be vetoed by a joint committee of both houses of parliament, the Committee on the Office of the Ombudsman, the Law Enforcement Conduct Commissioner and the Crime Commission: Ombudsman Act 1974 (NSW) s 6A.

• Function: The core function of the Ombudsman is to investigate, either on receipt of a complaint or on the Ombudsman’s own motion, ‘action that relates to a matter of administration’: s  5. The concept of administrative action is defined broadly to include a decision, act, recommendation, proposal to act, or refusal or failure to act. The functions of the Ombudsman are dealt with further in 4.2.16ff.

• Jurisdiction — public sector: The jurisdiction of the Ombudsman extends to the departments of the public service, most executive and statutory authorities that have been constituted for a public purpose, and conduct allegations against officers of the Australian Federal Police: s 5. Corruption allegations against federal law enforcement officers are handled by the Australian Commission for Law Enforcement Integrity. The jurisdiction of each state ombudsman extends to central government agencies and local authorities. Police misconduct allegations are handled in each state by other bodies — in New South Wales, the Law Enforcement Conduct Commission; in Queensland, the Crime and Misconduct Commission; in South Australia, the Office for Public Integrity; in Victoria, the Independent Broad-based Anticorruption Commission (IBAC); and in Western Australia, the Corruption and Crime Commission.

• Jurisdiction — private sector: The jurisdiction of the Ombudsman extends to the actions of non-government bodies that provide goods and services to the public under a contract with a government agency: ss 3(4B), 3BA. Examples covered by this extended jurisdiction are non-government bodies that provide job network services to the unemployed, manage immigration detention centres, and protect government premises. The Ombudsman, discharging the role of Postal Industry Ombudsman, has jurisdiction over private postal operators that are registered under the scheme (s 19M); in discharging the role of Overseas Students Ombudsman, has jurisdiction over private registered education providers that provide services to overseas students (s  19ZJ); and has a similar private sector role as the Private Health Insurance Ombudsman: s 20D. The jurisdiction of state and territory ombudsman offices over non-government agencies and certain essential services is noted at 4.2.3, 4.2.19. Some state ombudsmen offices can investigate complaints from prisoners held in privately run correction facilities: NSW: Crimes (Administration of Sentences) Act  1999 s  246; Qld: Corrective Services Act  2006 s  273(4); Vic: Corrections Act  1986 ss  8C(1)(g), 9(2)(i), (j); WA: Prisons Act 1981 s 15C(l). • Jurisdictional limitations: The Ombudsman cannot investigate action taken by a minister, by a court or tribunal, or concerning the employment of a person in the public service: s 5. There are some exceptions. For example, the Ombudsman in the role of Defence Force Ombudsman can investigate complaints concerning the current or previous service of a member of the Defence Force (s 19C); and a specific provision in each state statute excludes the ombudsman’s jurisdiction in relation to action taken by a person acting as a legal adviser. • Discretion not to investigate: The Ombudsman has a discretion to decline to investigate a complaint: for example, because the complainant became aware of the issue more than 12  months previously; the complainant does not have a sufficient interest in the matter; there is an alternative method for administrative or judicial review of the complaint; 234

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the complaint was not first raised with the agency to which it relates; or investigation is unnecessary or unjustifiable having regard to all the circumstances: ss  6,  6A. A  large majority of inquiries received by the Ombudsman are not treated as complaints and are dealt with informally and by providing advice to the caller. The ombudsman’s independence in conducting investigations is declared in some jurisdictions; for example, s  12 of the Ombudsman Act 2001 (Qld) provides that ‘the ombudsman is not subject to direction by any person’ in performing functions under the Act.

• Complaints: Complaints can be made orally or in writing (s 7), although most state statutes require the complaint to be in writing. There is no fee to make a complaint.

• Powers and procedure: Ombudsman investigations are usually conducted informally and by way of preliminary inquiries (s 7A), although the Ombudsman has the same powers as a royal commission to require the attendance and examination of witnesses, to enter premises, to administer oaths and to require documents to be produced: ss  9, 13, 14. The guiding principle is that investigations are conducted in private (s 8), and that information is not released publicly unless the Ombudsman determines that it is in the public interest to do so: s 35A. Many state ombudsman offices can only report publicly through the parliament. Special powers are conferred on some ombudsman offices; for example, the Commonwealth Ombudsman can refer an issue to the Administrative Appeals Tribunal (AAT) for an advisory opinion (s 11); and the New South Wales Ombudsman can apply to the Supreme Court for an injunction to restrain the conduct of an authority pending the completion of an Ombudsman investigation: Ombudsman Act 1974 (NSW) s 21C. • Immunities: The Ombudsman is not compellable to provide information or documents in other proceedings (s 35(8)), and a person who complains to the Ombudsman in good faith is protected against civil proceedings: s 37.

• Reports: The Ombudsman does not have determinative powers to alter an administrative decision, and can conclude an investigation only by reporting to an agency and recommending that further action of some kind be taken: ss  12, 15. The grounds for a report are listed in 4.2.14. If the Ombudsman is of the opinion that an agency has not taken appropriate action with respect to a report or recommendation, the Ombudsman can report to the Prime Minister and thereafter to the parliament: ss 16, 17. 4.2.14 The Ombudsman Act 1976 (Cth) spells out the criteria on which the Ombudsman can base a report or recommendation to an agency. In effect, these are the criteria for defective administration applied by the Ombudsman. They are, in summary, that an administrative action: • appears to have been contrary to law;

• was unreasonable, unjust, oppressive or improperly discriminatory;

• was in accordance with a law or administrative practice that itself was unreasonable, unjust, oppressive or improperly discriminatory; • was taken for an improper purpose or was based on irrelevant considerations; • was based on a mistake of law or fact;

• was one for which reasons should have been but were not given; or • was otherwise wrong in all the circumstances. 235

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The comparable state and territory provisions are: ACT: s 18(1); NSW: s 26(1); NT: s 59(1); Qld: s 49(2); SA: s 25(1); Tas: s 28(1); Vic: s 23(1); WA: s 25(1). Some of the criteria applied by the Ombudsman duplicate the criteria for lawful decision-making developed by courts. Others, such as mistake of fact, or that the decision was unjust or otherwise wrong, are potentially wider. The standard of ‘unreasonableness’ in the Ombudsman Act has been construed by the Ombudsman as being broader in scope than the legal standard of unreasonableness defined in cases such as Associated Provincial Picture Houses Ltd v Wednesbury 7.2.3C and Minister for Immigration and Citizenship v Li 15.2.18C: see 15.2.1ff. 4.2.15  Industry ombudsman offices are created and regulated in different ways. The Telecommunications Industry Ombudsman and the Energy and Water Ombudsman (NSW) are incorporated under companies legislation, but are anchored in legislation that requires service providers to belong to an ombudsman scheme: see, for example, Telecommunications (Consumer Protection and Service Standards) Act  1999 (Cth) Pt  6. Similarly, the Australian Financial Complaints Authority is a corporation that is accredited by government as an external dispute resolution service to which industry bodies must belong: Corporations Act 2001 (Cth) s 1050. The criteria applied by the minister in approving its dispute resolution scheme are accessibility, independence, fairness, accountability, efficiency and effectiveness: s 1051A; see Benchmarks for Industry-Based Customer Dispute Resolution Schemes 4.3.6E.

Functions of the ombudsman 4.2.16  The two core functions of the ombudsman are to investigate complaints from members of the public and to undertake own-motion investigations. The functions are defined in the following terms in s 5(1) of the Commonwealth Ombudsman Act 1976 (Cth): (1) Subject to this Act, the Ombudsman: (a) shall investigate action, being action that relates to a matter of administration, taken … by a Department, or by a prescribed authority, and in respect of which a complaint has been made to the Ombudsman; and (b) may, of his or her own motion, investigate any action, being action that relates to a matter of administration, taken … by a Department or by a prescribed authority; …

4.2.17  Individual complaint handling has always been the core function of ombudsman offices, and exhibits the following features:

• Ombudsman offices receive a large number of enquiries and complaints each year. Across Australia, the public sector ombudsman offices received close to 160,000 complaints and enquiries relating to government in 2016–17. There are comparably large numbers for the industry ombudsmen offices: in 2017, in combination the Telecommunications Industry Ombudsman, the Energy and Water Ombudsman in New South Wales and Victoria, and the Financial Services Ombudsman received over 250,000 approaches. Examples of the range of issues dealt with in ombudsman complaint handling are given in the extract from an Annual Report of the New South Wales Ombudsman 4.2.20E.

• The majority of enquiries and complaints (up to 70 per cent in some offices) are handled initially by advising the complainant on how to raise the issue with the agency the subject of the complaint. Only a small number — approximately 10 per cent in most public sector offices — are the subject of formal investigation. 236

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• Many complaints to the ombudsman are about matters of administrative style and behaviour that would not be directly reviewable by a court or tribunal. In addition, the ombudsman shares with courts and tribunals an ability to look at whether an individual decision is lawful or correct. To that extent, as noted in the Overview to Part C of this book, the ombudsman applies the criteria for lawful decision-making discussed in Chapters 8–15. Although the public sector ombudsmen offices lack formal power to make a new decision, the common pattern is that agencies frequently do alter decisions based on ombudsman recommendations. Special mention is made in other chapters of the ombudsman’s role in providing a remedy for incorrect advice (see  12.6.12), correcting errors of fact (see  13.6.3) and developing standards for good administration: see 15.3.41. 4.2.18  In the past decade, there has been a noticeable shift in three directions in the work of Australian ombudsman offices. First, the functions of the offices have expanded to include the discharge of specialist functions conferred by statute. Examples noted below include compliance auditing of police records, preparation of reports on long-term immigration detainees, receiving and assessing reports of reportable conduct and notifiable incidents, auditing agency complaint handling, and child death reviews. Many of the newer functions have been conferred to better enable the ombudsman to safeguard vulnerable people, as explained in the extract from John McMillan 4.2.22E. Second, ombudsman offices have given increased importance through publications and training to improving administrative decision-making, administrative conduct and complaint management. The third change is an increased number of own-motion (selfinitiated) investigations into systemic (or recurring) problems in government administration. This shift is explained in the extract from Anita Stuhmcke 4.2.21E and is illustrated by the Commonwealth Ombudsman investigation reports on topics such as agency complaint handling, the administration of executive schemes, client mental illness, compensation for administrative error, and penalties imposed on welfare recipients. Comparable state issues include conflicts of interest in local government, freedom of information administration, local government contracting, water regulation, asbestos disposal and protection of whistleblowers. The explanation given for the increased emphasis on systemic issues is that ombudsman offices regard it as a more strategic use of investigation resources, and it builds on more professional complaint handling within agencies. 4.2.19  Examples of the additional functions discharged by Australian ombudsman offices include the following:

• The offices perform periodic audits of records of law enforcement agencies, to ensure compliance with legislation authorising telecommunications interception, controlled operations, use of surveillance devices and access to stored communications: see Telecommunications (Interception and Access) Act 1979 (Cth) s 84; Crimes Act 1914 (Cth) Pt 1AB; and Surveillance Devices Act 2004 (Cth) s 55. • In 2017 the Defence Force Ombudsman — a function discharged by the Commonwealth Ombudsman — commenced a new government-supported Defence Force abuse-reporting function, under which the Ombudsman can make a reparation payment to a Defence Force member who has suffered abuse.

• Most offices discharge a special role under whistleblower protection legislation: Cth: Public Interest Disclosure Act 2013 ss 50A, 60, 62, 74; ACT: Public Interest Disclosure Act 2012 s 34; NSW: Public Interest Disclosures Act 1994 s 6B; Qld: Public Interest Disclosure Act 2010 s 58; 237

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Tas: Public Interest Disclosures Act 2002 Pts 5–9; Vic: Ombudsman Act 1973 Pt IV. A central role is given to the ombudsman as an oversight body or as an agency to which disclosures can be made: see 4.6.1ff.

• In two states the ombudsman discharges the review and oversight role of freedom of information legislation that in other states is discharged by an information commissioner: Freedom of Information Act 1991 (SA) s 39; and Right to Information Act 2009 (Tas) ss 47–50.

• Among the unique functions of the New South Wales Ombudsman’s office are to: receive and investigate reports and complaints of child abuse arising in government and nongovernment schools and child-care centres (Ombudsman Act 1974 (NSW) Pt 3A); monitor and review community services, and review reportable deaths such as the death of a child or person with a disability (Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) ss 11–12); convene the Child Death Review Committee; administer the Official Community Visitors Scheme that conducts visits to services providing accommodation support to children and people with disability; and monitor and assess the implementation of the NSW Government plan for Aboriginal affairs. • The Commonwealth Ombudsman is required to prepare a report that is tabled in the parliament on every person held in immigration detention for two years, and thereafter every six months if the person remains in detention: Migration Act 1958 (Cth) s 486O. • The Tasmanian Ombudsman reviews decisions affecting the release of information under s  86C of the Adoption Act  1988 (Tas); investigates standards of care, accommodation or treatment of juveniles in detention centres under s 129(1)(d) of the Youth Justice Act 1997 (Tas); and is the Custodial Inspector: Custodial Inspector Act 2016 (Tas) .

• Functions conferred on the Victorian Ombudsman include: inquiring whether an administrative action is incompatible with a human right set out in the Charter of Human Rights and Responsibilities Act  2006 (Vic); monitoring compliance by RSPCA inspectors with the Prevention of Cruelty to Animals Act 1986 (Vic) (see Ombudsman Act 1973 (Vic) ss  13(2)–(4), 13AA(1)(b)); and investigating the administrative actions of not-for-profit, non-government providers of welfare services: Children, Youth and Families Act 2005 (Vic) ss 347(2)(e), 482(2)(e). The Victorian Ombudsman can also investigate any matter referred by the Parliament of Victoria, including matters that are otherwise beyond the Ombudsman’s jurisdiction. An example of a contentious referral is the Victorian Ombudsman’s report on whether Australian Labor Party members of parliament misused their staff budget entitlements prior to the 2014 state election: Investigation of a matter referred from the Legislative Council on 25 November 2015, March 2018; see also 4.3.19 referring to litigation arising from this referral.

• Most Australian ombudsman offices play an active role in promoting and aiding improvements in administrative decision-making, complaint investigation, whistleblower protection and freedom of information request-handling. For example, the New South Wales Ombudsman Annual Report 2016–17 noted (p 1) that in the previous year the office had delivered 409 training workshops to 7522 participants.

For a summary of developments in the directions of ombudsman offices, see J McMillan, ‘Future Directions for Ombudsman Offices — Four Trends, Two Reflections’ (2014) 77 AIAL Forum 10; A  Stuhmcke, ‘The Ombudsman’ in M  Groves (ed), Modern Administrative Law in Australia, Cambridge University Press, Melbourne, 2014, p 326; A Stuhmcke, ‘Australian Ombudsmen: A Call to Take Care’ (2016) 44 Federal Law Review 531; Victorian Department 238

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of Premier and Cabinet, The Victorian Ombudsman – Discussion Paper, March 2016; and M  Hertog and R  Kirkham (eds), Research Handbook on the Ombudsman, Edward Elgar, Cheltenham, 2018. 4.2.20E

Ombudsman New South Wales, Annual Report 2015–16 Sydney, 27 October 2016

Each year the Ombudsman’s annual report shows how the office makes a difference. The office helps individuals resolve problems with bureaucracy. … Case studies in this report illustrate the valuable assistance people got by contacting the Ombudsman in 2015–16. We persuaded an agency to withdraw a $637 penalty notice that was issued to a person who inadvertently underpaid a debt by $1. We encouraged a council to reconnect a family’s water supply that was improperly disconnected at the request of the landlord. We intervened to stop two inmates having to work with broken asbestos. We arranged for the basketball courts at a remote school to remain open over the Christmas holiday period so that local children had a place to socialise. We conciliated a dispute between a mother and a school to facilitate a more co-operative schooling arrangement for her son. And we ensured that a prisoner with cerebral palsy was able to purchase special shoes. We reviewed the way that police handled 1,667 individual complaints, and found deficiencies in 17% of cases. The NSW Police Force acted on our criticisms to respond differently to a range of improper police conduct – sexual harassment of a woman after a traffic stop, unlawful arrest, possession by an officer of child pornography, association of an officer with a convicted sex offender, and failure to respond appropriately to a report of domestic violence. In other cases police acted to pay a vehicle towing charge that was wrongly incurred, apologised for mocking a person with disability, and acted to obtain an apprehended domestic violence order.

4.2.21E

Anita Stuhmcke, ‘Undefined and Undervalued: The Systemic Role of the Classical Ombudsman Institution’ Global Science & Technology Forum, 3rd Annual International Conference Proceedings, 2014, pp 48–54

At its most general the systemic role of the ombudsman institution refers to the functions of an ombudsman which transcend the individual complainant. It includes the recommendations and investigations which may improve procedures, policy or legislation. In essence the systemics role impacts upon many more people than a single individual complainant. Through this role a classical ombudsman aims to improve the normative decision-making processes of government administration. The system-fixing role and the individual complaint-handling role are dual roles traditionally identified as being performed by the ombudsman institution. While the roles may be interconnected — for example an individual complaint may highlight systemic deficiencies in agency practice and procedure — they are traditionally viewed as distinct. The most general point of differentiation is that the individual complaint-handling role is reactive as the ombudsman must respond to the complainant whereas the systemic role is a proactive discretionary activity where the ombudsman may choose to remedy underlying administrative faults. In this sense the systemic approach has been characterised as a proactive approach geared towards preventing future complaints. …

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This dual role of ombudsman — of conflict resolution and conflict prevention, or in other words to investigate individual complaints and to rectify systemic administrative failures — is echoed in judicial dicta. The clearest formulation of such support in an early common law decision on public sector or classical ombudsman is made in Alberta, Canada in 1970, Chief Justice Milvain states in Re Ombudsman Act (1970) (72 WWR 176, 190 and 192): … the basic purpose of an Ombudsman is provision of a ‘watchdog’ designed to look into the entire workings of administrative cases … [he] can bring the lamp of scrutiny to otherwise dark places even over the resistance of those who would draw the blinds. If [his] scrutiny and reservations are well founded, corrective measure can be taken in due democratic process, if not no harm can be done in looking at that which is good.

4.2.22E

John McMillan, ‘The Ombudsman and Vulnerable Communities’ Address to the Australian Institute of Administrative Law National Administrative Law Conference, 20 July 2017

Safeguarding vulnerable individuals and communities has always been and will remain a core Ombudsman objective. What has changed though is that new methods and techniques are required to do this effectively. This stems from a variety of factors – a heightened community concern that society has a duty to safeguard those who are vulnerable; a greater awareness in society of vulnerability risks; and the development (through technology and more sophisticated administrative systems) of practicable methods for acting on these risks. … There was early recognition by Ombudsman offices that it is harder for some people or groups to exercise this right to complain. Steps were taken many years ago to address complaint barriers such as education, language and culture. Among the ways those barriers were lessened were Ombudsman educational and outreach programs, receipt of oral complaints, use of interpreter services and online complaint forms. Some other barriers are not so easy to cross. How does a young person being sexually abused by a carer who is a respected school official make a complaint? How does a person with a profound disability persuade others that none of the residents of their facility are obtaining adequate care? How does an infant complain from the grave about the abuse or neglect that caused their death? How does a person whose fortnightly welfare income has been garnisheed find the time and resources to work through a bureaucratic maze? The answer to all those questions is the same. A person’s right to be treated lawfully and fairly by government and non-government service providers will be a hollow right unless there is an effective mechanism for bringing legal and administrative shortcomings to the attention of an external and independent oversight agency.

OMBUDSMAN OFFICES — SPECIAL ISSUES 4.3.1  The following section looks at four illustrative issues concerning the structure and functions of ombudsman offices. 240

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Ombudsman essentials and protections 4.3.2  The office of ombudsman was originally established by parliament to investigate complaints against public sector agencies. The title ‘ombudsman’ has since been applied to a large number of other bodies that depart from the original model. Industry ombudsman offices have been established to receive complaints against private sector bodies that provide public services such as banking, telecommunications and electricity. Offices called ‘internal ombudsman’ — a departure from the original model of an independent external watchdog agency — have been established by local councils, universities and other government and private sector bodies. Legislatures have also applied the ombudsman label to statutory oversight agencies that do not have traditional complaint-handling functions or that are subject to government direction, such as the Fair Work Ombudsman and the Australian Small Business and Family Enterprise Ombudsman. These trends have led to an ongoing debate about whether restrictions should be placed on the use of the title ‘ombudsman’; proposals have been made or implemented in some jurisdictions. One example was a Policy Statement issued by the Australian and New Zealand Ombudsman Association (ANZOA) 4.3.3E, which is the peak body to which most public and private sector Ombudsmen in Australia belong. 4.3.3E ANZOA, Essential Criteria for Describing a Body as an Ombudsman Policy statement endorsed in February 2010 by the members of the Australian and New Zealand Ombudsman Association, published 18 May 2010 at ANZOA is concerned to ensure appropriate use of the term Ombudsman. Our view is that a body should not be described as an Ombudsman unless it complies with six essential criteria addressing independence, jurisdiction, powers, accessibility, procedural fairness and accountability. Independence • The office of Ombudsman must be established — either by legislation or as an incorporated or accredited body — so that it is independent of the organisations being investigated. • The person appointed as Ombudsman must be appointed for a fixed term — removable only for misconduct or incapacity according to a clearly defined process. • The Ombudsman must not be subject to direction. • The Ombudsman must be able to select his or her own staff. • The Ombudsman must not be — or be able to be perceived as — an advocate for a special interest group, agency or company. • The Ombudsman must have an unconditional right to make public reports and statements on the findings of investigations undertaken by the office and on issues giving rise to complaints. • The Ombudsman’s office must operate on a not-for-profit basis. Jurisdiction • The jurisdiction of the Ombudsman should be clearly defined in legislation or in the document establishing the office. • The jurisdiction should extend generally to the administrative actions or services of organisations falling within the Ombudsman’s jurisdiction. • The Ombudsman should decide whether a matter falls within jurisdiction — subject only to the contrary ruling of a court.

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Powers • The Ombudsman must be able to investigate whether an organisation within jurisdiction has acted fairly and reasonably in taking or failing to take administrative action or in providing or failing to provide a service. • In addition to investigating individual complaints, the Ombudsman must have the right to deal with systemic issues or commence an own motion investigation. • There must be an obligation on organisations within the Ombudsman’s jurisdiction to respond to an Ombudsman question or request. • The Ombudsman must have power to obtain information or to inspect the records of an organisation relevant to a complaint. • The Ombudsman must have the discretion to choose the procedure for dealing with a complaint, including use of conciliation and other dispute resolution processes. Accessibility • A person must be able to approach the Ombudsman’s office directly. • It must be for the Ombudsman to decide whether to investigate a complaint. • There must be no charge to a complainant for the Ombudsman’s investigation of a complaint. • Complaints are generally investigated in private, unless there is reasonable justification for details of the investigation to be reported publicly by the Ombudsman — for example, in an annual report or on other public interest grounds. Procedural fairness The procedures that govern the investigation work of the Ombudsman must embody a commitment to fundamental requirements of procedural fairness: • The complainant, the organisation complained about and any person directly adversely affected by an Ombudsman’s decision or recommendation — or criticised by the Ombudsman in a report — must be given an opportunity to respond before the investigation is concluded. • The actions of the Ombudsman and staff must not give rise to a reasonable apprehension of partiality, bias or prejudgment. • The Ombudsman must provide reasons for any decision, finding or recommendation to both the complainant and the organisation which is the subject of the complaint. Accountability • The Ombudsman must be required to publish an annual report on the work of the office. • The Ombudsman must be responsible — if a Parliamentary Ombudsman, to the Parliament; if an Industry-based Ombudsman, to an independent board of industry and consumer representatives.

4.3.4  Legal controls on the use of the name are difficult to impose, at least in Australia, because of the proliferation at national and state level of a great variety of oversight, complaints and watchdog bodies. However, a limited step has been taken in South Australia, where s 32 of the Ombudsman Act 1972 prohibits the use of the word ‘Ombudsman’ to describe a scheme for internal review within a government agency:

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An agency to which this Act applies must not use the word ‘Ombudsman’ in describing a process or procedure by which the agency investigates and resolves complaints against the agency, or in describing a person responsible for carrying out such a process or procedure.

New Zealand  has gone further, and prohibited the use of the name generally, except with the permission of the Chief Ombudsman. The New Zealand  Ombudsman Act  1975 provides: 28A Protection of name

(1) No person, other than an Ombudsman appointed under this Act, may use the name ‘Ombudsman’ in connection with any business, trade, or occupation or the provision of any service, whether for payment or otherwise, or hold himself, herself, or itself out to be an Ombudsman except pursuant to an Act or with the prior written consent of the Chief Ombudsman. …

The Chief Ombudsman’s denial of an application by a financial dispute resolution scheme to call itself a Financial Ombudsman Service was the subject of a successful judicial review application: Financial Services Complaints Ltd v  Chief Ombudsman [2018] NZCA 27. The Court of Appeal of New Zealand held that the Chief Ombudsman had inflexibly applied a policy developed by former holders of the office of Chief Ombudsman without considering whether there were exceptional circumstances to approve this application. The Productivity Commission, in Access to Justice Arrangements, gave qualified support to selective use of the title ‘Ombudsman’: The Commission considers that it is largely desirable that bodies utilising the title ombudsman meet ANZOA’s criteria. This will assist in shaping shared public understanding about the role that ombudsmen play, as distinguished from other types of complaint bodies. Governments should consider these criteria when deciding upon the title of new complaint bodies.

4.3.5  The predominant focus in the discussion of industry ombudsman schemes is their effectiveness in customer complaint handling and dispute resolution. Features that are cherished by public sector ombudsman offices — such as their role in upholding the rule of law and government accountability and their relationship to parliament — receive comparatively less or no attention in discussion of industry schemes. By contrast, there is a similar emphasis in both arenas on criteria such as independence, accessibility and effectiveness, as illustrated by the benchmarks for industry dispute resolution schemes published in 1997 by the Commonwealth Government: see  4.3.6E. Those benchmarks were developed in consultation with industry ombudsman offices, and are applied by government in accrediting industry schemes: see 4.2.15. The benchmarks bear a close parallel with the Guidelines for Complaint Management in Organizations AS/NZS 10002:2014, developed by Standards Australia. See also the statutory benchmarks for eligibility to be included in the telecommunications industry scheme: ‘(a) accessibility; (b) independence; (c) fairness; (d) accountability; (e) efficiency; (f ) effectiveness; (g) such other matters (if any) as the minister considers relevant’: Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) s 128(10).

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Control of Government Action

Benchmarks for Industry-Based Customer Dispute Resolution Schemes Released by Commonwealth Minister for Customs and Consumer Affairs, the Hon Chris Ellison, 1997

The benchmarks have been developed to apply primarily to nationally-based customer dispute schemes set up under the auspices of an industry … The benchmarks have a three-fold purpose. They are meant to act as a guide to good practice for those industry sectors which intend setting up a scheme to resolve disputes between their industry members and individual consumers of their goods or services. For existing schemes they will provide objective guidance on the practices to aim for in the operation of such schemes. They will also serve as a guide for consumers in giving them some idea of what they should expect from such schemes. The Benchmarks and their Underlying Principles 1. Accessibility The scheme makes itself readily available to customers by promoting knowledge of its existence, being easy to use, and having no cost barriers. 2. Independence The decision-making process and administration of the scheme are independent from scheme members. 3. Fairness The scheme produces decisions which are fair and seen to be fair by observing the principles of procedural fairness, by making decisions on the information before it, and by having specific criteria upon which its decisions are based. 4. Accountability The scheme publicly accounts for its operations by publishing its determinations and information about complaints and highlighting any systemic industry problems. 5. Efficiency The scheme operates efficiently by keeping track of complaints, ensuring complaints are dealt with by the appropriate process or forum and regularly reviewing its performance. 6. Effectiveness The scheme is effective by having appropriate and comprehensive terms of reference and periodic independent reviews of its performance.

Recommendatory vs determinative powers 4.3.7  An issue that is keenly debated in legal circles in particular is whether an ombudsman can be truly effective without determinative powers to set aside or vary an administrative decision or to award compensation. The label ‘toothless tiger’ is a popular tag in legal discourse. Absent determinative powers, the ombudsman’s influence rests ultimately on two capacities — to persuade and to publish, reinforced by whatever stature the ombudsman brings to those tasks. In the view of a former South Australian Ombudsman, Eugene Biganovsky, the Ombudsman has been successful in that role: Agencies do listen to the Ombudsman as (a)  an authoritative body which has amassed a wealth of experience in its dealings with the public sector; (b) as a body that may provide useful recommendations based on a pattern of complaints; (c) as a body that 244

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commands a credible degree of respect and moral authority with most agencies, especially those with whom there have been common dealings; (d) and as a body that would normally be empowered to mention a concern in the annual report even when the Ombudsman lacks jurisdiction. [E Biganovsky, ‘New Values for Old? Is the Review Genie Trapped Inside the Lamp of Scrutiny?’ in S Argument (ed), Administrative Law & Public Administration: Happily Married or Living Apart under the Same Roof ?, Australian Institute for Administrative Law, Canberra, 1993]

A similar observation was made by the New South Wales Supreme Court in Ainsworth v The Ombudsman (1988) 17 NSWLR 276: Enderby J: The office is a unique institution. It does not deal directly or in any legal way with legal rights. … It has always been considered that the efficacy of [the] office and … function comes largely from the light [it] is able to throw on areas where there is alleged to be administrative injustice and where other remedies of the courts and the good offices of members of the Parliament have proved inadequate. Goodwill is essential. When intervention by an Ombudsman is successful, remedial steps are taken not because orders are made that they be taken but because the weight of its findings and the prestige of the office demands that they be taken.

4.3.8  Industry ombudsman schemes generally have determinative powers. For example, the Telecommunications Industry Ombudsman can make a binding award of up to $50,000 against an industry member participating in the scheme; and the Financial Ombudsman Service could make an even higher award of up to $280,000. A related costs aspect of the industry schemes is that they are usually funded by levies imposed on the participants according to the number of complaints received and the level at which they are resolved. The levy imposed for a complaint resolved at level 1 is less than for a complaint resolved at level 2, and so on to level 4. Some of the newer functions discharged by public sector ombudsman offices also carry determinative powers — for example, the Commonwealth Ombudsman functions relating to private health insurance providers and defence abuse reparation payments. 4.3.9  The debate about determinative versus recommendatory powers is captured in the following two extracts from Matthew Groves 4.3.10E and Clare Petre 4.3.11E (who was formerly New South Wales  Energy and Water Ombudsman, and before that a senior employee of the Commonwealth Ombudsman). The debate needs to be seen in the context of the range of ombudsman functions and the types of recommendations they make. Many of the investigations conducted by industry ombudsman offices relate to financial issues arising between customers and companies that provide banking, energy and telecommunications services. It can be a straightforward matter to give the ombudsman a determinative function in that setting; for example, to cancel a banking charge or vary a mobile phone contract. It may not be as straightforward to empower a public sector ombudsman to grant an immigration visa, recommence a welfare payment, or adjust a child support payment. Furthermore, many ombudsman recommendations are of a kind that could not easily be switched to a determination; for example, a recommendation that staff be better trained, that internal decision-making manuals be revised, or that an apology be provided to a client. Partly for those reasons, the debate has switched to place greater emphasis on the steps an ombudsman office can take to ensure that its recommendations are implemented, which is a success benchmark that receives greater attention in ombudsman reports. See also S Elias, ‘Life Beyond Legality’, address to the Australian and New Zealand Ombudsman Association, Wellington, 6 May 2010. 245

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4.3.10E

Control of Government Action

Matthew Groves, ‘Ombudsmen’s Jurisdiction in Prisons’ (2002) 28 Monash University Law Review 181

The lack of determinative powers is regarded by some as the single most important limitation on the work of Ombudsmen, though some have questioned whether it is a limitation. Pearce suggests that it is mainly lawyers who believe Ombudsmen would be more effective if granted determinative powers, because it would transform the Ombudsman into a traditional form of review. He argues that the adversarial custom of resolving disputes by way of determination in open proceedings cultivates a scepticism in lawyers towards any form of review that relies on persuasion and, in the normal course, only the possibility of publicity. The reservations that many lawyers have towards Ombudsmen may illustrate that the culture of the adversary system is not receptive to other forms of dispute resolution. Ombudsmen would clearly be more able to provide administrative justice in individual cases if they could correct individual decisions when necessary, but this power would carry other consequences. Craig suggests that Ombudsmen could begin to function as quasismall claims courts if granted determinative power. In one sense, any such change might simply formalise the current practices of Ombudsmen. Ombudsmen frequently recommend that agencies make compensatory payments to parties that have suffered loss or damage as a result of maladministration. This solution has proven an effective remedy for many complaints received by Ombudsmen from prisoners concerning the loss or damage of important items of personal property. Ombudsmen make recommendations of this nature in almost every area of their jurisdiction. On rare occasions they may recommend a substantial payment of compensation. It is worth noting that there is strong doubt whether the Commonwealth Ombudsman could be granted power to make binding determinations on such matters. At present, the influence of Ombudsmen is derived from their stature, experience and ability to work closely with administrative officials in the review of administrative practices. The grant of determinative powers to Ombudsmen might undermine their ability to influence administrative practices. If Ombudsmen possessed determinative powers they would inevitably become tempted to avoid lengthy or detailed investigations by exercising determinative powers, particularly over minor complaints. It would be easier and more convenient simply to vary or remake the relevant decision. While this form of investigation would be convenient, Ombudsmen might also be less likely to uncover the source of any problem. It is possible that Ombudsmen’s knowledge of, and influence over, administrative behaviour would decline correspondingly with the lesser extent to which they sought to change administrative decisions by persuading administrative officials to do so. The grant of determinative powers might also encourage parties to adopt an adversarial approach. Once parties appear before an adjudicator who is empowered to reconsider and remake a decision, the pressure to adopt competing positions and the associated trappings of adversarial justice begin to rise. The informal procedures currently used by Ombudsmen would not sit easily with adversarial decision making. Departments and agencies would be far less amenable to adopt the procedures that are required to settle disputes by negotiation, such as discussing the circumstances of a decision in an open manner and disclosing relevant information, if Ombudsmen could ultimately impose a solution upon parties. It is also possible that administrative officials might perceive any new decision that was imposed by way of determination in an entirely different light to one reached by consensus. An administrative official is, like any other person, more likely to resent and resist a decision

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Chapter 4  Other Methods of Administrative Law Review

that is imposed by an outside authority than one that is varied or revoked voluntarily. This resistance might not be limited to individual decisions. Administrative officials could also be less likely to consider and adopt advice provided by Ombudsmen on improving administrative practices. If Ombudsmen were able to review and remake decisions, their status as disinterested observers could be undermined. There are many adjudicators, such as courts and tribunals, where a similar criticism is regarded as irrelevant to the exercise of their determinative functions. But courts and tribunals are not required to maintain close and continued contact with one party in the same manner that Ombudsmen must with an agency whose activities generate regular complaints from the public.

4.3.11E Clare Petre, ‘Commentary: What are the Essential Features of an Ombudsman?’ in R Creyke and J McMillan (eds), Administrative Law: The Essentials, Australian Institute of Adminstrative Law, Canberra, 2002 [An] area which I want to cover is recommendatory versus determinative power. The Commonwealth Ombudsman has the former, the Energy and Water Ombudsman (EWON) the latter. I would take determinative powers any day. I remember the frustration of some of the cases at the Commonwealth Ombudsman’s office, where officers argued with some departments over many months. Letters from the Ombudsman’s office were carefully crafted and argued, and based on detailed investigation. The result was a windfall for Australia Post, but not much else. Instead, cases such as these created a high level of frustration for the investigation officer in particular, and consumed considerable time and resources without a final satisfactory outcome for the complainant. Determinative power for the EWON involves: • the constitution of the scheme which gives the Ombudsman power to make decisions which are binding on the members, not the customers; • the upgrading of matters as needed; and • increased costs for members as matters are upgraded, which has the effect of focusing their attention on the matters in dispute and giving them an incentive to resolve them at the earliest opportunity. I do not accept that those exercising recommendatory powers have to be more persuasive. Because the EWON has the potential to cost its members increasing amounts of money, there is a strong onus to argue the case and to be clear about the reasons for continuing an investigation and upgrading it. At each stage of the investigation, we are required to advise members of the basis for upgrading and to give them the chance to settle first. Although I have clear determinative powers, the number of determinations I have made in the three years since the scheme began operation is only one.

Locating the ombudsman in the framework of government 4.3.12  The public sector ombudsman offices in Australia are frequently described as administrative law review bodies that are situated in the executive branch of government. One 247

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explanation (by Saunders) as to why they are described as executive branch agencies is that ‘they fit in better here than anywhere else’: The executive branch of government is like a large pyramid. The Head of State is on the top. Just below, come the Prime Minister and other Ministers. Further down come different people and groups or bodies: public service departments; commissions or boards or other authorities established by Act of Parliament; companies which government owns. And there are other bodies, also, which you might be surprised to see. The Ombudsman, for example, or the Auditor-General … or the Administrative Appeals Tribunal … or the Federal Police. We describe all these as part of the executive because they fit in better here than anywhere else. [C Saunders, It’s Your Constitution: Governing Australia Today, Federation Press, Sydney, 1998]

4.3.13  Should the ombudsman and similar agencies continue to be viewed as being located in the executive branch of government? Two other options that have been proposed are to locate the ombudsman in the parliamentary branch, or to locate the ombudsman in a new (and headless) fourth branch of government. Both options will be briefly considered. 4.3.14  Internationally, the prevalent model for creating the ombudsman is to make the officeholder an officer of the parliament. Some Australian ombudsman offices have a parliamentary connection, yet this is of limited significance. The first such office to be established in Western Australia was titled the Parliamentary Commissioner for Administrative Investigations (as was the Queensland office until 2001). Nothing turns on that designation, except that reports and other formal communications from the ombudsman are sent to the Speaker of the Legislative Assembly rather than to a portfolio minister. In New South Wales and Queensland, a parliamentary committee is given an explicit statutory role of examining the reports of the ombudsman and monitoring and keeping the legislature informed on the operations of the office: Ombudsman Act 1974 (NSW) s 31B; Ombudsman Act 2001 (Qld) s 89. Both committees are also consulted on the appointment of an ombudsman, in New South Wales  having power to veto an appointment. The Ombudsman in each of the Australian Capital Territory, Queensland and Victoria is declared by legislation (in Victoria, by the Constitution) to be an independent officer of the parliament: see  4.2.13. Some of the state ombudsman Acts provide that a house or committee of the parliament can refer a matter to the ombudsman for investigation; for example, Ombudsman Act  1972 (SA) s  14. All Australian ombudsman offices are empowered to make both annual and special reports to the parliament. A former Commonwealth Ombudsman, Professor Pearce, argued (4.3.15E) that ombudsman offices would be strengthened if they were located institutionally within the parliamentary rather than the executive arena. The proposal to make the Commonwealth Ombudsman an officer of the parliament was not supported by the Senate Standing Committee on Finance and Public Administration in its report, Review of the Office of the Commonwealth Ombudsman (1991). Others have also been sceptical of the proposal, seeing it as largely symbolic. As they see it, the ombudsman’s effectiveness will always depend on its ability to persuade others of the correctness of its recommendations, and there is no reason to assume that formally linking the ombudsman to the parliament will make any practical diffference.

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4.3.15E

4.3.15E D Pearce, ‘The Commonwealth Ombudsman: The Right Office in the Wrong Place’ in R Creyke & J McMillan (eds), The Kerr Vision of Australian Administrative Law — At the Twenty-Five Year Mark, Centre for International & Public Law, Canberra, 1998 [The location of the Ombudsman in the legal-administrative review arm of government] represented a failure to understand the historical background to the office and to appreciate the way in which the power of the office flowed from that background. It resulted in the office being constitutionally and administratively unclassifiable in our system of government. It does not fall within the mainstream of parliamentary or executive or judicial activity, leaving it without the historical and societal support that these activities attract. It also leads to a misunderstanding of the office’s functions and promotes unwarranted criticism of the office for not doing what is seen as a part of these mainstream activities. The reaction of the legal profession to the Ombudsman is indicative of this problem of classification of function. The unique nature of the office when considered as a part of the legal/review system has caused discomfort for lawyers, because they are used to a body that has the power to resolve an issue with a determinative order. The notion that persuasion and publicity are enough to bring about the resolution of a dispute is not something with which they are easily able to come to terms. They become concerned if a matter taken to the Ombudsman does not result in a finding for or against a person whom they represent. … The courts, too, have not always seen the Ombudsman in a favourable light. Sometimes one gains the impression that the office is perceived to be an interloper, diverting citizens from the right place in which complaints against the executive should be pursued — the courts. This was particularly noticeable in the early years of the office in Victoria where the Supreme Court in a series of decisions took a very narrow view of the Ombudsman’s jurisdiction. For some parliamentarians the Ombudsman is seen as a rival. Assistance to members of their electorate is important to their survival and securing a change in a decision may be important in winning votes. The fact that the Ombudsman is in a much stronger position to influence a change by virtue of having direct access to decision-makers and also to government files is conveniently overlooked. Few complaints are referred to the Ombudsman by parliamentarians … Finally, it is worth noting that, in contrast to the position in other countries, almost all commentary on the Ombudsman by academics and others in Australia has been by lawyers. In contrast, discussion overseas is dominated by political scientists and public administration experts. This has reinforced the perspective of the Ombudsman in Australia as being an adjunct of the legal culture. The Way Forward The way forward is to go back to the beginning … The ombudsman carries out parliamentary functions, not judicial or executive functions. This is why overseas the ombudsman is an officer of the parliament … As far as the Ombudsman is concerned, the performance of his or her function would be enhanced by the association with the parliament. In addition to the possibility of being able to call in aid an ally in the determination of allocation of resources, there would be much greater opportunity to apply pressure to the executive to give effect to recommendations. Advantage could be taken of the formal and informal avenues open to parliamentarians to influence ministers, particularly where a complaint involved a member’s constituent. It would bring together the two means by which citizens’ complaints are dealt with outside the court/

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tribunal structure. As significantly, the association would enhance the ombudsman’s role in relation to systemic issues. … The ombudsman is currently in a … position to monitor changes in practices and procedures because of the office’s continuing engagement with the agency concerned. But this capacity would be increased considerably if the ombudsman could brief a parliamentary committee about the issues involved. … Association of the Ombudsman with the parliament will increase the status of the office and the public’s knowledge of it. This will serve to protect the ombudsman from the depredations of the executive. It will also assist the parliament in its struggle to retain its standing as the protector of the people … It is an office that is intended to assist the parliament carry out its constitutional function of overseeing the executive. The failure to follow this precedent when appointing the Commonwealth Ombudsman has led to the office being a constitutional misfit with consequential effects on its acceptance and functionality. It is time to repair this position.

4.3.16  A variation of the ‘officer of parliament’ designation is to regard the ombudsman as ‘a satellite of Parliament … being in the orbit of the Parliament without being an integral part of it’: P Wilkins, ‘Watchdogs as Satellites of Parliament’ (2015) 74 Australian Journal of Public Administration. Wilkins argues that the satellite model recognises that the interdependence of parliament and its watchdogs can facilitate effective co-operation, gives a strong democratic foundation to the scrutiny function, and can protect watchdog agencies from inappropriate political interference while also ensuring their scrutiny and accountability. 4.3.17  An alternative proposal is to locate the ombudsman and partner agencies within a new fourth branch of government — an oversight, review and integrity branch of government: see 1.4.5. This view rests on three points. The first is that it misdescribes the role of ombudsman and partner agencies to locate them in the executive branch: they have statutory independence from other executive agencies, and their role is to review and investigate the legality and propriety of executive decisions and actions. They have an oversight and accountability role, not a policy or service delivery role. Second, the ombudsman forms part of a new approach to accountability that has markedly changed the framework of government since the 1970s. It is no longer accurate, it is argued, to adopt a conventional constitutional stereotype that treats courts alone as upholding the rule of law and ensuring executive accountability. Third, the connection between ombudsman offices and integrity reflects another major change in the philosophy of government. Integrity and ethics are today used as concepts that describe a new dimension and expectation of government. ‘Integrity’ sets a standard for government action that is higher than traditional concepts of accountability, legality and procedural fairness. 4.3.18  The reconfiguration of the ombudsman as located within an integrity group or branch within government has been taken up in a couple of states. In Queensland the Ombudsman has been described as being part of an ‘integrity or accountability framework’ that also comprises the Information Commissioner, Crime and Misconduct Commission, Auditor-General, Office of Public Service Merit and Equity and Integrity Commissioner. In Western Australia the Ombudsman, Auditor-General, Crime and Corruption Commission, and Commissioner for Public Sector Standards have associated as the Integrity Co-ordinating Group. However, as noted at 1.4.9, the idea has been criticised by leading jurists who adhere to the view that there are only three branches of government, and that ombudsman and similar agencies lack the role and independent stature of the judiciary. 250

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Litigation and the ombudsman 4.3.19  The ombudsman has been involved in litigation in all capacities. There are occasional instances in which the ombudsman has initiated litigation. In Re Reference under Section 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services 8.5.5C, the Commonwealth Ombudsman utilised the procedure in s  11 of the Ombudsman Act  1976 (Cth) to seek an advisory opinion from the Administrative Appeals Tribunal on the validity of a decision under investigation. In Attorney-General (Victoria) v  Glass [2016] VSCA 306 the Victorian Ombudsman utilised the procedure in s  27 of the Ombudsman Act 1973 (Vic) to seek a determination from the Supreme Court as to whether ‘any matter’ otherwise beyond the Ombudsman’s jurisdiction should be investigated if referred by a house of the Victorian Parliament under s 16 of the Act. The Victorian Court of Appeal held that ‘any matter’ should be so construed and that the Ombudsman should investigate a referral about whether members of the Australian Labor Party had properly used their parliamentary expense entitlements. 4.3.20  Proceedings have sometimes been initiated by both complainants and agencies against the ombudsman (the privative clauses in some ombudsman statutes are noted below at 4.3.29). Two examples of proceedings initiated by complainants are: Kavvadias v Commonwealth Ombudsman (1984) 1 FCR 80, challenging a denial of access to documents by the Commonwealth Ombudsman under freedom of information legislation; and Ainsworth v  The Ombudsman 4.3.7, challenging a decision of the New South Wales  Ombudsman to discontinue an investigation. 4.3.21  Proceedings initiated by agencies to restrain ombudsman investigations have met with occasional success — more so in challenging the scope of the ombudsman’s jurisdiction to investigate than in challenging the views formed by the ombudsman following an investigation. Following are two cases in which a narrow view was taken of the scope of the ombudsman’s powers. The first, Booth v Dillon (No 2) 4.3.22C, was one of a number of early Victorian decisions that gave a narrow reading to the scope of the Victorian Ombudsman’s power to investigate complaints against prisons and legal officers. Other cases from the same era are discussed at 4.3.24. The second, Chairperson, Aboriginal and Torres Strait Islander Commission v  Commonwealth Ombudsman (ATSIC v  Ombudsman) 4.3.23C, gave a narrow reading to the Commonwealth Ombudsman’s power to make a ‘finding’ in a report. Contrasting decisions that have given a broader reading to the ombudsman’s investigatory powers are noted at 4.3.26.

4.3.22C

Booth v Dillon (No 2) [1976] VR 434 Supreme Court of Victoria

[The Victorian Ombudsman conducted an investigation into complaints about homosexual assault committed on young offenders in Pentridge Gaol. After preparation of the Ombudsman’s draft report, the Director-General of the Department of Social Welfare commenced proceedings, alleging the Ombudsman was acting beyond the jurisdiction conferred by the Ombudsman Act 1973 (Vic). Section 13 of the Act provided that the Ombudsman could

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investigate ‘a complaint … in respect of administrative action’, which was defined to mean ‘any action relating to a matter of administration’, and as including a decision, act, refusal or failure to decide or to act, the formulation of a proposal or intention, and the making of a recommendation. The court held that in certain respects the Ombudsman was acting beyond jurisdiction.] Dunn J: Some general conclusions may be drawn from these provisions. First, the matter to be investigated must relate to administration; a matter of policy is outside the scope of the Ombudsman’s jurisdiction. Secondly, although a very wide jurisdiction is given in matters of administration, it is not totally unrestricted as to subject matter. The definition of ‘administrative action’ in any of its extended forms is limited to a specific decision or act or specific failure to decide or act. Paragraphs (c) and (d) of the definition only ensure that certain types of decision-making relating to administration are included. Thirdly, before acting on a complaint, the Ombudsman must be satisfied that … the person making the complaint is affected by the administrative action of which he complains. [His Honour referred to the Ombudsman’s investigation of a complaint that a Senior Prison Officer had made false statements to the press concerning a prisoner, and to a circular issued by the Director-General prohibiting officers from making public statements.] In my opinion, it is clear from the foregoing statement of the material facts that if a senior prison officer did make any statement to the press as alleged in the press article it was not made in the course of or for the purposes of his employment; it was an independent and departmentally-unauthorised act; it was not an action of a kind for which he was employed. It follows, in my opinion, that the making of such an unauthorised statement to the press by a senior prison officer does not fall within the definition of ‘administrative action’ and cannot therefore form the subject of a complaint for the purposes of the Act. Consequently, the respondent does not have jurisdiction to conduct the proposed investigation. [His Honour referred to the Ombudsman’s discussion in the draft report of the sleeping arrangements at the gaol.] It is clear from an examination of the draft report that the respondent embarked on an investigation in ‘J’ Division … beyond the scope of what can properly fall within the definition of ‘administrative action’. I agree with the submission on behalf of the applicant that whether the young prisoners in ‘J’ Division should be required to sleep in dormitories or be locked in individual cells is a matter of policy, and not a matter of administration. It obviously involves consideration of a number of matters of policy as to the most appropriate method of dealing with young prisoners … I have found this a difficult problem because no clear line of demarcation exists between what is involved in policy and what is involved in administration. The course this investigation in fact took illustrates the difficulty. It is further illustrated by the letter from the [DirectorGeneral to the Ombudsman], in which matters falling within administration and matters falling within policy are both referred to without any distinction being drawn. The provision of funds for the particular purposes of a Department is not a matter of administration, and indeed is not a decision made by a Department. Whether or not funds should be provided is not a matter within the Ombudsman’s jurisdiction. The question of what should be included in the estimates of a Department, and the priority of those included, is again a matter of policy. But I have ultimately concluded that it is a matter of administration as to whether or not any action of an administrative nature was or was not taken to deal with the matter of alleged sexual assaults. It is not the present task of the Court to attempt to define further the limits to which the investigation is permissible.

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4.3.23C

4.3.23C

Chairperson, Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 134 ALR 238; 39 ALD 570 Federal Court of Australia

[Section 15 of the Ombudsman Act 1976 (Cth) provided that the Ombudsman may prepare a report containing a recommendation for corrective action to be taken by an agency ‘where the Ombudsman is of the opinion’ that an agency is in breach of one or other of the criteria listed in s 15. The Ombudsman had made a report which contained findings that some individuals of the commission were or may have been guilty of criminal or disciplinary offences by a conflict of interest and breach of public trust in showing favouritism to some contractors known to them. The Ombudsman foreshadowed that she might report the matter to the Prime Minister under s 16 of the Act, and to the parliament under s 17 of the Act. The chairperson of the commission thereupon commenced proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) for an order restraining the presentation of the report on the basis that it was prepared in breach of the Ombudsman Act. The following extract deals with the decision of the court that the Ombudsman exceeded jurisdiction by expressing a ‘finding’ of criminal guilt, as opposed to an opinion.] Einfeld J: The applicant’s second argument for excluding findings of guilt … relied on one of the fundamental principles of protection of common law rights — if the statute does not expressly provide for the Ombudsman to report findings, then a power to do so should not be read in. Nowhere in the Ombudsman Act is there an express power to make ‘findings’, the legislature having several times specifically employed the word ‘opinion’. Furthermore, the fact that the Ombudsman’s principal function is investigative and not determinative suggests that she does not need and is not intended to make findings. … The intention is that the Ombudsman investigate, report and make suggestions, not make determinations on the issues identified. I believe that the power to make findings in that sense should not be read into this statute. Difference between ‘findings’ and ‘opinions’ … On one view ‘opinions’ are ‘findings’. The applicant submitted that a ‘finding’ is a conclusion that someone ‘has’ committed a wrong, whereas an ‘opinion’ is a conclusion that someone ‘may have’ or ‘appears to have’ committed a wrong. … Perhaps to some extent the words take their character from the office and powers of the speaker. A first instance or trial judge setting out opinions is in substance making findings, whatever the nomenclature. On the other hand, the administrative nature of the office of Ombudsman and the statutory prescription of her duties preclude her from making findings in any final sense, to the extent that what she purports to do is in fact to express opinions, highly regarded and often far reaching opinions certainly, but opinions nonetheless. The greatest risk to the two individuals concerned here, presumably the reason this case is before the Court, is the risk to their reputations from the Ombudsman’s public produce. It was therefore submitted that a statement dressed up as a ‘finding’ may carry more risk of damage to the individual than the expression of the same statement couched as an ‘opinion’. But semantics cannot solve this problem. Whatever the ruminations of lawyers, the interested public may not understand the legal differences between an ‘opinion’ and a ‘finding’ and who has the power to make which. It is sufficient to say that the Ombudsman is empowered to report her opinions, which includes the reasons for the opinions. The opinions will ordinarily

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state that if the evidence upon which they are based is accepted, certain stated conclusions will or may be seen to follow. … Given the difficulty of defining the differences between ‘opinions’ and ‘findings’, it seems clear that the legislature intended not to fetter the range of opinions open to the Ombudsman. … Accordingly, it is my opinion that the Ombudsman may report opinions touching individual guilt. [His Honour went on to find that the following conclusions of the Ombudsman were unlawful as findings rather than opinions: that two officers ‘acted in a manner wholly inconsistent with ATSIC guidelines and their delegated authority’; that the actions of one official ‘appear to be knowing breaches of his duty to be truthful in his official dealings’; that certain actions were ‘prima facie … departures from the standard of impartiality required [of public servants] and constitute a serious breach of public trust’; and that there were some ‘apparent’ failures by individuals to fulfil their duties as public servants.]

4.3.24  The decision in Booth v  Dillon (No 2) 4.3.22C was one of a number of early and successful challenges to the jurisdiction of the Victorian Ombudsman. In Booth v Dillon (No 1) [1976] VR 291 the court held that the Ombudsman could investigate disciplinary oversight of prison officials but not the unlawful behaviour of those officials. Justice Lush cautioned against the Ombudsman embarking upon a ‘fishing expedition’ in order to ‘investigate himself into jurisdiction’: at 295. In Glenister v Dillon [1976] VR 550 the court held that the Ombudsman’s jurisdiction to investigate matters of ‘administration’ took colour from the separation of powers, and did not extend to matters related to the legislative and judicial functions of government. Applying that principle, the court held the Ombudsman could not investigate delays in bringing prisoners to trial, as those actions, administrative in themselves, nevertheless related to the judicial arm of government. See also Booth v Dillon (No 3) [1977] VR 143 and Glenister v Dillon (No 2) [1977] VR 151. 4.3.25  The Commonwealth Ombudsman early expressed his disagreement with the view taken in those Victorian cases. In the Fifth Annual Report 1981–82, the Ombudsman said of Glenister v  Dillon [1976] VR 550 that ‘[t]he elevation of the doctrine of separation of powers … to restrict the activities of the Ombudsman … was, no doubt, a surprise not only to Ombudsmen but to others with a particular interest in administrative law’, and that his office ‘acted on the assumption that there is no warrant for such a doctrine to be read into’ the Commonwealth statute: at p  24. Of the decision in Booth v  Dillon (No  2) 4.3.22C, the Commonwealth Ombudsman thought it could not stand against the power conferred upon his office by s 15 to prepare a report drawing attention to a rule of law, a legislative provision or a practice that is unreasonable, unjust, oppressive or improperly discriminatory: Fifth Annual Report 1981–82, p 24. 4.3.26  The main impact on ombudsman work of the ruling in ATSIC v Ombudsman 4.3.23C is that successive ombudsman offices avoided using the word ‘finding’ in expressing opinions that were critical either of agencies or of individual officers. Generally, this has not constrained the ombudsman from expressing opinions in forceful terms (and s 8(10) of the Ombudsman Act 1976 (Cth) provides that the Commonwealth Ombudsman may refer to an agency head the Ombudsman’s opinion that an officer of the agency ‘has been guilty of a breach of duty or of misconduct’). The decision in ATSIC v Ombudsman may need reassessment, in light of the decision of the High Court in Australian Communications and Media Authority v Today FM 254

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(Sydney) Pty Ltd 5.3.37C. The court in that case held that the Australian Communications and Media Authority could reach a finding that Today FM had breached a statutory condition applying to its broadcasting licence, that a licensee shall not use a licence ‘in the commission of an offence’ against a Commonwealth or state law. The joint judgment commented that ‘it is not offensive to general principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action’: at [33]. Whether a body has been so empowered will be a matter of statutory construction. For example, the court noted, but did not disapprove, the contrasting finding in Balog v Independent Commission Against Corruption (1990) 169 CLR 625, that ICAC ‘is not authorised under its statute to include in its report of an investigation a finding that a person was or may have been guilty of a criminal offence or corrupt conduct’: at [41]. (The statute establishing ICAC was subsequently amended to permit findings of criminal guilt.) 4.3.27  Other cases have also read narrowly the ombudsman’s investigatory powers. In City of Salisbury v Biganovsky (1990) 54 SASR 117 the Supreme Court of South Australia held that the ombudsman could not investigate matters of policy but only matters of administration. Applying that principle, the court held that the ombudsman could not investigate a council’s policy on renting premises to community organisations, as it was a matter of policy embracing ‘a variety of considerations including economic factors and the best use of land in the general community interest’. In Nisselle v Brouwer (2007) 16 VR 296 the Supreme Court of Victoria held that a statutory provision conferring upon a government officer ‘the same protection and immunity as a Judge of the Supreme Court’ had the effect of removing that official from the jurisdiction of the Victorian Ombudsman, since the statutory jurisdiction of the ombudsman did not extend to administrative action taken by a judge. Consequently, the ombudsman lacked jurisdiction to investigate complaints alleging conflicts of interest and bias in appointing people to medical panels that assessed claims for accident compensation. In City of Port Adelaide Enfield v  Bingham (2014) 119 SASR  1 the council successfully challenged as unreasonable a recommendation by the ombudsman that the council undertake environmental restoration work. In Boyce v Owen [2000] NTCA 7 the Northern Territory Court of Appeal held that the ombudsman did not have jurisdiction to investigate police conduct in the absence of a formal complaint from a member of the public. 4.3.28  Other decisions have not taken a narrow approach. An example was a decision of the New South Wales Court of Appeal in Botany Council v Ombudsman (1995) 37 NSWLR 357, rejecting a submission that sought to narrow the ombudsman’s role in reviewing a complaint relating to the amendment of records under freedom of information legislation: Kirby P (Sheller and Powell JJA agreeing): [The powers of the Ombudsman], as the Ombudsman Act reveals, are, as they ought to be, extremely wide. They are not powers which this Court should read down. They are beneficial provisions designed in the public interest for the important object of improving public administration and increasing its accountability, including to ordinary citizens … Sadly, the experience of the past (and not only the past) has been of the occasional misuse and even oppressive use of administrative power. One modern remedy against such wrongs has been the creation by parliaments in all jurisdictions of Australia of the office of Ombudsman. Whilst it may be expected that the Ombudsman will conform to the statute establishing his office, a large power is intended. The words of the Ombudsman Act should be given an ample meaning. 255

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A broad view of the phrase ‘matter of administration’ was taken also by the Tasmanian Supreme Court in Anti-Discrimination Commissioner v Acting Ombudsman [2002] Tas SC 24, noting that the phrase ‘is not restricted to investigating only bad, or faulty, or inefficient, or improper, administrative actions, or those which might in some other way be correctly described or categorised as maladministration’: at [76] (upheld on appeal: (2003) 11 Tas  R 343). In City of Port Adelaide Enfield v Bingham the court rejected an argument that the ombudsman could only consider the complaint of a person if a complainant’s interest was ‘direct’, narrowly defined. The court said such a construction ‘would be to limit the wide powers conferred on the Ombudsman in a manner which is not consistent with the public interest the legislation is intended to serve’: at [35]. 4.3.29  Some Australian ombudsman offices are exempt from both judicial review and freedom of information legislation under exemption or ‘privative’ clauses in the statutes establishing the offices. The general rationale for these exemptions is that it is unwise to have ‘disputes about disputes’, and that the ombudsman has recommendatory powers only. The legal effect of the judicial review limitations was partially tested in litigation concerning a fouryear investigation by the New South Wales  Ombudsman (called Operation Prospect) into historical and disputed allegations about the misuse of investigative powers in a corruption investigation undertaken jointly by the NSW Crimes Commission and the NSW Police Force. On the eve of the presentation of the Ombudsman’s report of over 900 pages to the New South Wales Parliament, a former Deputy Police Commissioner (Mr Kaldas) commenced proceedings to restrain the presentation of the report on the basis that he may be the subject of adverse findings, that he had been denied procedural fairness, and that the Ombudsman may exceed his powers by making ‘findings’ in a report to the parliament. The Supreme Court of New South Wales dismissed the application for an interlocutory injunction to restrain the presentation of the report, relying on the balance of convenience in allowing the completion of the ombudsman investigation: ‘there is a significant and strong public interest in the delivery of any report of an Ombudsman to Parliament, which may reflect the result of the bright “lamp of scrutiny” shining on “otherwise dark places”’: Kaldas v Barbour [2016] NSWSC 1880 at [50]. Following the presentation and publication of the Ombudsman’s report on the day of the court’s decision, Mr Kaldas continued the proceedings in an amended form seeking a declaration in relation to three adverse findings made against him in the report. The Ombudsman objected to the proceedings, relying in part on s  35A of the Ombudsman Act 1974 (NSW) which provided that the Ombudsman is not amenable to proceedings ‘on the ground of want of jurisdiction or on any other ground’, except in a case alleging bad faith by the Ombudsman and with the leave of the Supreme Court. The plaintiff contended that s 35A could not stand in the face of the decision of the High Court in Kirk v  Industrial Relations Commission of New South Wales: 16.3.18C. The matter was referred to the New South Wales Court of Appeal, which held that the operation of s 35A was not affected by the decision in Kirk and that judicial review proceedings against the Ombudsman were precluded without the leave of the Supreme Court: Kaldas v Barbour (2017) 326 FLR 122. This aspect of the proceedings is dealt with at 16.3.20C. 4.3.30  Industry and other ombudsman schemes are also subject to occasional judicial review proceedings, even when established by contract between the members rather than by statute. For example, in Citipower Pty Ltd v Electricity Industry Ombudsman (Vic) Ltd [1999] VSC 275 the court held that decisions of the Electricity Industry Ombudsman, alike with decisions of other private or domestic tribunals, could be set aside if ‘so aberrant as to be irrational’: at [30]. 256

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In Telecommunications Industry Ombudsman Ltd v Commissioner of State Revenue [2017] VSC 286 the Supreme Court of Victoria upheld the Victorian Ombudsman’s submission that it was a charitable institution for taxation purposes.

HUMAN RIGHTS REVIEW Defining human rights 4.4.1  Human rights legal claims can be raised in numerous different ways that are noted in this book:

• As the basis of a claim in judicial review proceedings — an example being the declaration obtained in Evans v State of New South 8.3.32C that a regulation that inhibited freedom of protest during World Youth Day events exceeded the statutory power to make regulations.

• As the basis for a complaint to the Australian Human Rights Commission (AHRC), or a comparable state or territory body, alleging that a legislative provision or the actions of a government agency contravened one of the human rights or anti-discrimination standards administered by the AHRC or comparable body. • As an aid to statutory construction — notably in accordance with the principle of legality which provides that legislation is presumed not to abrogate a fundamental right, freedom or immunity other than by express or unambiguous language: 8.3.28.

• By an application for redress to an international body such as the United Nations Human Rights Committee: 4.3.32ff.

• In a submission to a parliamentary committee with a scrutiny function of assessing whether Australian legislation complies with human rights standards: 4.4.16.

It is beyond the scope of this book to deal comprehensively with those and other pathways for raising human rights claims; only a brief treatment that illustrates the administrative law dimension of the topic will be given. 4.4.2  The importance of protecting human rights and freedoms, particularly against transgression by government, was expressed in broad terms by T Campbell: The idea of human rights is to identify those aspects of the life of all human being whose protection and furtherance ought to be guaranteed in all political systems. They are affirmations of what is valuable about all human beings and the institutional requirements for the realization of these values that both legitimize and limit the powers of government, businesses and other social institutions. Human rights establish standards against which to measure social, economic and political arrangements. They enable us to locate and correct individual and systemic injustice, oppression, inequality and suffering and establish priority goals that ought to be attained in any tolerably humane and enlightened society. While human rights have direct application as to how individuals ought to treat each other, they are particularly directed at the conduct of governments and other powerful organizations. [T  Campbell, ‘Human Rights Strategies: An Australian Alternative’ in T Campbell, J Goldsworthy and A Stone (eds), Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia, Ashgate, Farnham, 2006, p 319 at p 323] 257

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4.4.3  There is no definitive or prescriptive list of human rights. There are many lists that are framed according to the purpose for identifying the rights to be protected or respected, as illustrated by the following three examples. One familiar list is of international human rights conventions. The Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) lists the following conventions and declarations in schedules to the Act, with a view to giving effect to them through the provisions of the AHRC Act: • Convention Concerning Discrimination in Respect of Employment and Occupation • International Covenant on Civil and Political Rights (ICCPR) • Declaration of the Rights of the Child

• Declaration on the Rights of Mentally Retarded Persons • Declaration on the Rights of Disabled Persons.

Three other instruments that fall within the AHRC’s jurisdiction are the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Other international conventions proscribing discrimination on race, sex and other grounds have been adopted in Commonwealth Acts and also fall within the AHRC’s jurisdiction. 4.4.4  A second illustrative list is those human rights, freedoms and privileges listed in the government terms of reference for an inquiry undertaken by the Australian Law Reform Commission (ALRC): Traditional Rights and Freedoms—Encroachments by Commonwealth Laws, Report No  129, 2  March 2016. The terms of reference (p  5) required the ALRC to inquire into: ‘laws that encroach upon traditional rights, freedoms and privileges’ [which] are to be understood as laws that: • reverse or shift the burden of proof; • deny procedural fairness to persons affected by the exercise of public power; • exclude the right to claim the privilege against self-incrimination; • abrogate client legal privilege; • apply strict or absolute liability to all physical elements of a criminal offence; • interfere with freedom of speech; • interfere with freedom of religion; • interfere with vested property rights; • interfere with freedom of association; • interfere with freedom of movement; • disregard common law protection of personal reputation; • authorise the commission of a tort; • inappropriately delegate legislative power to the Executive; • give executive immunities a wide application; • retrospectively change legal rights and obligations; • create offences with retrospective application; • alter criminal law practices based on the principle of a fair trial; • permit an appeal from an acquittal; • restrict access to the courts; and • interfere with any other similar legal right, freedom or privilege. 258

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4.4.5  A third illustrative list was given by Heydon J (dissenting) in Momcilovic v The Queen 8.3.33C, in outlining ‘fundamental rights or freedoms’, for the purposes of construing the Victorian Charter of Human Rights and Responsibilities 2006. Justice Heydon gave the following examples: [444] … freedom from trespass by police officers on private property; procedural fairness; the conferral of jurisdiction on a court; and vested property interests. To these may be added others: rights of access to the courts; rights to a fair trial; the writ of habeas corpus; open justice; the non-retrospectivity of statutes extending the criminal law; the non-retrospectivity of changes in rights or obligations generally; mens rea as an element of legislatively-created crimes; freedom from arbitrary arrest or search; the criminal standard of proof; the liberty of the individual; the freedom of individuals to depart from and re-enter their country; the freedom of individuals to trade as they wish; the liberty of individuals to use the highways; freedom of speech; legal professional privilege; the privilege against self-incrimination; the non-existence of an appeal from an acquittal; and the jurisdiction of superior courts to prevent acts by inferior courts and tribunals in excess of jurisdiction.

4.4.6  The chief mechanisms for protecting human rights in Australian society lie not in the courtroom but in the executive arena, where a number of independent agencies have been established to promote respect for human rights and to investigate complaints about breach of human rights and anti-discrimination norms. The following analysis looks primarily at the role of the AHRC, with brief reference to comparable state and territory statutes and agencies, and to the concept of ‘discrimination’ that is a central feature of the statutes. Generally, it is worth noting the view of the National Human Rights Consultation Committee that, while Australia’s record was ‘far from perfect’ and that ‘the rights and benefits enjoyed by the majority are not shared by all’, ‘Australia measured well against many other countries in terms of its human rights protection’: National Human Rights Consultation Report, 2009, ch 5, p 97. As to the obstacles to giving effect to human rights principles through judicial review, see M Groves, ‘Judicial Review and Human Rights’ (2018) 25 Australian Journal of Administrative Law 64.

Australian human rights and anti-discrimination scheme 4.4.7  The Australian Human Rights Commission (AHRC) — until 2008, the Commonwealth Human Rights and Equal Opportunity Commission (HREOC) — has a range of functions and powers: investigating and conciliating complaints of discrimination and breaches of human rights under the instruments administered by the Commission; conducting public inquiries into human rights issues; raising public awareness of human rights and discrimination issues through publications, submissions and education resources for schools, workplaces and the community; monitoring Australia’s compliance with its international human rights obligations; and intervening in court proceedings that involve human rights principles. The AHRC’s functions are chiefly the responsibility of the President of the commission, assisted by specialist commissioners: the Human Rights Commissioner, appointed under s 8B of the AHRC Act; the Sex Discrimination Commissioner, established under the Sex Discrimination Act  1984 (Cth); the Race Discrimination Commissioner, established under the Racial Discrimination Act  1975 (Cth); the Disability Discrimination Commissioner, established under the Disability Discrimination Act 1992 (Cth); the Age Discrimination Commissioner, established under the Age Discrimination Act  2004; the Aboriginal and Torres Strait Island Social Justice Commissioner, established under s 46B of the AHRC Act; and the National Children’s Commissioner, established in 2013 under s 46MB of the AHRC Act. The Privacy 259

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Commissioner was part of the Human Rights Commission from 1998 to 2000, a  separate statutory office from 2000 to 2010, and a commissioner in the Office of the Australian Information Commissioner (OAIC) from 2010. 4.4.8  The AHRC can deal with matters relating to:

• discrimination on grounds of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding, and family responsibilities; • discrimination on grounds of race, colour, descent, or national or ethnic origin; • discrimination on grounds of physical or mental disability; • harassment on grounds of gender or disability; • discrimination on grounds of age;

• infringement of human rights standards such as liberty of movement, right to personal liberty and security, freedom of speech or association, and infringement of equal opportunity in employment; and • special measures for people of the Aboriginal and Torres Strait Islander race.

4.4.9  The typical progression of a proceeding starts with the initial receipt of a complaint by the AHRC or by a commissioner, following which the complaint is referred to the President of the AHRC for inquiry: AHRC Act ss 11, 31. The inquiry function is performed in a fashion similar to that adopted by an ombudsman and involves an attempt to conciliate or mediate between the parties: ss  11(1), 14(1), Pt  IIB. The complaint-handling role in discrimination complaints is allocated exclusively to the President, who cannot delegate the function to a specialist commissioner other than the Human Rights Commissioner (s 19(2A), (2B)) but may refer a matter to bodies such as Fair Work Australia or the Remuneration Tribunal: ss 46PW, 46PX. Complaints by groups — representative complaints — are permitted and the President may convene a compulsory conference and can order the production of documents if that would assist the process: AHRC Act Pt IIB Div 1. A limitation on the powers and procedural flexibility of the AHRC — following Brandy v Human Rights and Equal Opportunity Commission 5.3.28C — is that it is unable to make a binding declaration. The same constitutional restriction does not apply to state and territory agencies. 4.4.10  The President reports directly to the minister if a matter cannot otherwise be settled: AHRC Act ss  11(1)(f ), 13(b). Only if informal methods are unsuccessful will a formal inquiry be instituted. Findings at the conclusion of an AHRC inquiry can lead to a recommendation to an agency to change an administrative practice, reinstate or promote a person in employment, make an apology, or to pay compensation. If a complaint alleges discrimination under an industrial determination or an award, the matter must be decided by an industrial relations dispute body such as Fair Work Australia, the Remuneration Tribunal or the Defence Force Remuneration Tribunal: Pt IIC. The President may also refer inquiries and complaints about discrimination involving security intelligence agencies to the Inspector-General of Security and Intelligence (s 11(3)), or about access to information to the Australian Information Commissioner: s  11(4A)). The President must also ensure facilities are provided to enable those wishing to make a complaint, including people in custody, to do so: s 11(5)–(8). 260

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4.4.11  The President of the AHRC and the Human Rights Commissioner may undertake a broad-ranging investigation of their own motion: AHRC Act ss 11, 19(2B). This form of inquiry has been used where there may be systemic discrimination that can best be addressed by a general inquiry rather than a series of individual investigations; examples are reports published by the Human Rights Commissioner on age assessment in people smuggling cases, mental health, the treatment of women in the Australian Defence Force, and sexualisation of children by the media. The President may also arrange for functions to be performed jointly or on their own by equivalent state bodies: s 16. Actions taken by state bodies are deemed to be those of the President: s 16(2A). The role of the specialist commissioners, other than the Human Rights Commissioner, is now largely educative, although they may appear with leave as amicus curiae — literally, friend of the court — at the Federal Court or the Federal Circuit Court in human rights and discrimination proceedings: AHRC Act ss 11(1)(b), (d), 31, 46PV. 4.4.12  Although — following Brandy 5.3.28C — the AHRC as an executive agency can no longer make a formal binding determination, the AHRC noted in 2013 that since almost half of applications to it were resolved by conciliation, that disadvantage does not cause major problems: AHRC Annual Report 2012–2013, p  8. The formal determinative role previously undertaken by the AHRC and the specialist commissioners is now undertaken by the Federal Court or the Federal Circuit Court if an enforceable order is required: Human Rights Legislation Amendment Act (No 1) 1999 (Cth). Relatively straightforward cases go to the Federal Circuit Court, while more complex matters are heard by the Federal Court, and may be appealed to the High Court. However, at the Federal Court steps have been taken to simplify the process and hearings are often before a judicial registrar rather than a judge, are conducted informally, and representation by persons other than legal practitioners is permitted: AHRC Act Pt IIB. Decisions of the AHRC or of the specialist commissioners are judicially reviewable under the Administrative Decisions ( Judicial Review) Act 1977 (Cth). An example of a matter arising under the Racial Discrimination Act 1975 (Cth) that was determined by the Federal Court is Wotton v Queensland (No 5) (2016) 157 ALD 14. In a representative proceeding commenced on behalf of persons who were resident on Palm Island at the time of a disturbance following the death in custody of an Aboriginal Australian (Mr  Cameron Doomadgee — Mulrunji), the court held that the response to and investigation of the disturbance by Queensland Police contravened the Act and awarded damages to the class claimants. 4.4.13  The international instruments listed in the schedules to the AHRC Act play a role in shaping government action through the complaint, inquiry, educational and advocacy functions of the AHRC. Contravention of one of the instruments can also be reported by the AHRC to the Attorney-General (s 11(1)(f )), with the possibility of unwelcome publicity. However, the instruments are not formally part of domestic law to the extent of conferring rights or imposing obligations: Minogue v  Williams (2000) 60 ALD 366. The Full Federal Court in that case rejected a submission that the ICCPR had been given the status of domestic law as a consequence of being incorporated as a schedule to the Act establishing HREOC: Ryan, Merkel and Goldberg JJ: Although the ICCPR is found in a schedule to the HREOC Act, there is nothing in that Act which purports to incorporate the ICCPR as part of Australian domestic law or enact it as such. The ICCPR is not referred to in the HREOC Act for the purpose of creating or conferring statutory rights in accordance with its terms. It is referred to in s 11(1) of the Act but only for the purpose of identifying one of the functions of the Human Rights and Equal Opportunity Commission as being to 261

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report to the Minister as to any action that needs to be taken by Australia to comply with the provisions of the covenant, or to examine any relevant international instrument for the purpose of ascertaining whether there are any inconsistencies between that instrument and the covenant. Further, by virtue of s 46C(4) of the Act the Commissioner in performing his functions must ‘as appropriate, have regard to’ the ICCPR. … As was said by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v  Teoh (1995) 183 CLR 273 at 287: ‘a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law’. Whilst it is well recognised that international standards reflected in treaties have been drawn upon to influence the development of the common law …, the observation … that incorporation of the terms of a treaty into domestic law results merely by it being a schedule to an Act cannot be accepted.

4.4.14  One stated rationale for giving recognition, but limited legal effect, to human rights standards in international instruments is that the standards often compete with each other, and defining them as enforceable legal standards runs a risk of distorting the balancing process. The difficulty is compounded in the area of social and economic rights. A second rationale is that the rights are often couched in indeterminate language, as Brennan J noted in Gerhardy v Brown (1985) 159 CLR 70: ‘an attempt to define human rights and fundamental freedoms exhaustively is bound to fail, for the respective religious, cultural and political systems of the worlds would attribute differing contents to the notions of freedom and dignity and would perceive at least some differences in the rights and freedoms that are conducive to their attainment’: at 126. A similar observation was made in a joint judgment in Project Blue Sky Inc v  Australian Broadcasting Authority 16.2.10C at 391–2: ‘many international conventions and agreements are expressed in indeterminate language as the result of compromises made between the contracting State parties. Often their provisions are more aptly described as goals to be achieved rather than rules to be obeyed.’ See also Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 253 (Bowen CJ and Gummow J). 4.4.15  There is nevertheless a keen recognition of the importance of international human rights instruments and the guidance they provide to decision-makers in grappling with human rights problems. Chief Justice Mason and Gaudron J observed of the Disability Discrimination Act 1992 (Cth) in Waters v Public Transport Corporation (1991) 173 CLR 349 at 359, that the objects are ‘of particular significance in the case of legislation which protects or enforces human rights’ and ‘[i]n construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose’. Similarly, French CJ in Momcilovic 8.3.33C said: ‘The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law’: at [51]. 4.4.16  Another element of the Commonwealth framework for human rights recognition is the requirement that new Bills and legislative instruments are accompanied by a statement of compatibility with the main international human rights conventions: see  Human Rights (Parliamentary Scrutiny) Act  2011 (Cth) ss  8,  9. The Act also requires the appointment of a Parliamentary Joint Committee on Human Rights to consider the issue of compatibility: s  7. In the first four years the Committee identified 95 instances in which the question of compatibility with human rights standards arose: G Williams and D Reynolds, ‘The First Four Years of Australia’s Parliamentary Scrutiny Regime for Human Rights’, Auspublaw, 7  April 2016. See also D Meagher, ‘The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and the Courts’ (2014) 42 Federal Law Revew 1. 262

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Chapter 4  Other Methods of Administrative Law Review

State and territory human rights and anti-discrimination schemes 4.4.17  The states and territories have equivalent human rights and equal opportunity agencies with similar functions and powers to the AHRC. The framework for review is simpler, however, because of the absence of any constitutional obstacle to an executive agency making an enforceable order. The power of state and territory agencies to enforce decisions obviates the need for resort to the courts. As a consequence, state and territory anti-discrimination bodies are often the preferred avenue for complainants. 4.4.18  State and territory human rights and anti-discrimination bodies generally have two levels of inquiry: an investigation and determination of a complaint by a commission or board; and a right of appeal to a tribunal or court. The order of the commission or board is usually binding and enforceable, and a breach constitutes statutory contempt. Enforcement steps are only taken if a conciliated settlement is not possible. There are regional differences, but these are mostly to do with the grounds of discrimination that can be investigated. While all the schemes prohibit discrimination on grounds of sex, race and disability, others also proscribe discrimination on grounds of sexuality and sexual preference. 4.4.19  The main state and territory human rights and anti-discrimination statutes are: ACT: Discrimination Act 1991, Disability Services Act 1991, Human Rights Act 2004, Human Rights Commission Act 2005; NSW: Anti-Discrimination Act 1977, Community Services (Complaints, Reviews and Monitoring) Act 1993, Disability Inclusion Act 2014; NT: Anti-Discrimination Act, Disability Services Act, Health and Community Services Complaints Act; Qld: Anti-Discrimination Act  1991, Disability Services Act  2006, Health Ombudsman Act  2013; SA: Disability Services Act  1993, Equal Opportunity Act  1984, Health and Community Services Complaints Act  2004, Racial Vilification Act  1996; Tas: Anti-Discrimination Act  1998, Disability Services Act  2011, Health Complaints Act 1995; Vic: Equal Opportunity Act 2010, Charter of Human Rights and Responsibilities Act  2006, Disability Act  2006, Racial and Religious Tolerance Act  2001; WA: Disability Services Act 1993, Equal Opportunity Act 1984. 4.4.20  The Australian Capital Territory and Victoria have gone further than other jurisdictions in Australia in enacting a more comprehensive domestic law on human rights: Human Rights Act 2004 (ACT) (HRA); Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter). Special legal status is given to the human rights and anti-discrimination standards that are covered by both Acts: HRA Pt 3; Charter Pt 2. The Acts nevertheless provide that the rights can be limited by ‘reasonable limits’ that ‘can be demonstrably justified in a free and democratic society’: HRA s 28, Charter s 7. A balancing process is therefore required, to be undertaken principally by the legislature. In addition, the Supreme Court in each jurisdiction can make a declaration of incompatibility in respect of a law that breaches a human right as defined in the Acts, leaving it to the legislature to respond: HRA s 2; Charter s 36. The declaration does not invalidate the law: HRA s 32(3); Charter s 37. An additional feature of the HRA is that the ACT Supreme Court can award any remedy that the court considers appropriate, except damages for a breach of the Act by a public authority: HRA s 40C. It is therefore open to an aggrieved person to institute proceedings directly to challenge executive action for a breach of human rights. The Victorian Charter, by contrast, only permits a party to raise a Charter issue in the context of other court proceedings, for example, as part of a claim in tort or in an application for judicial review: Charter s 36(5)(b). A similar approach could not be adopted in Commonwealth legislation, following the view expressed by a number of 263

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Justices in Momcilovic 8.3.33C that the procedure for an advisory declaration of incompatibility would breach the separation of powers in the Australian Constitution. See  also W  Bateman and J Stellios, ‘Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights’ (2011) 36 Melbourne University Law Review 1. 4.4.21  A key feature of the Australian Capital Territory HRA and Victorian Charter is the interpretive principle they enjoin — that ‘so far as it is possible to do so … a … law must be interpreted in a way that is compatible with human rights’: HRA s 30; Charter s 32. The Acts further provide that international law, and decisions of foreign and international courts and tribunals, are relevant in interpreting the rights included in the Act: HRA s 31, Charter s 32(2). That interpretive obligation is to be followed by the judicial, executive and legislative branches of government. The effect of this interpretive principle was squarely in issue in Momcilovic 8.3.33C. The accused was convicted of possession of drugs in her apartment, notwithstanding that she claimed to be unaware of the presence of the drugs. A  Victorian Act deemed the drugs to be in her possession unless she satisfied the court to the contrary. In effect, the Act imposed a reverse onus of proof on her, contrary to the human rights presumption in the Charter. Though the High Court by majority ordered a new trial on the basis of the proper construction of the statute under which she was convicted, the court was divided on a number of issues to do with the interaction of the interpretive principle in the Charter and other legislation. For example, in the view of a majority the requirement of s 7(2) of the Charter, that human rights could only be subject to reasonable limits demonstrably justifiable in a free and democratic society, had no role to play in the interpretive process if a law expressly contravened a human right protected by the Act. In that instance the only course open to the Supreme Court of Victoria was the procedure for a declaration of incompatibility, which was upheld by a majority of the High Court. The interaction of the HRA and other laws was considered in Re Application for Bail by Isa Islam (2010) 4 ACTLR 235; this is the only such case in the Australian Capital Territory. 4.4.22  As to the legislature, a specific procedure in the Australian Capital Territory and Victoria Acts for ensuring respect for the law is that proposed laws are assessed by a committee of the parliament, to ensure they will be compatible with the human rights stipulated in the Act. If found wanting, the attorney-general must explain to parliament why the government proposes a law that will breach human rights. Parliamentary vetting, together with the judicial declaration of incompatibility, is designed to bring government compliance with human rights standards into the policy and political limelight. See M Groves and C Campbell (eds), Australian Charters of Rights A Decade On, Federation Press, Sydney, 2017.

Unlawful discrimination 4.4.23  The concept of ‘unlawful discrimination’ is a central element of Commonwealth, state and territory legislation regarding anti-discrimination and human rights. It is also a concept that arises both directly and indirectly in provisions of the Australian Constitution (for example, ss 51(ii), 92, 99, 117) and in many statutes. 4.4.24  The starting point in applying the concept is that discrimination — differentiating between or comparing persons or things — is a common occurrence and not necessarily to be disparaged. As Gummow  J observed in IW v  City of Perth (1997) 191 CLR  1 at 36, 264

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‘“discrimination” may identify the ability to observe accurately and make fine distinctions with acuity, good judgment or taste, as well as the making of unjust or prejudicial distinctions’. The concept of unlawful or proscribed discrimination, as Gaudron J observed in Street v Queensland Bar Association (1989) 168 CLR 461 at 571, ‘signifies the process by which different treatment is accorded to persons or things by reference to considerations which are irrelevant to the object to be obtained. The primary sense of the word is “discrimination between”; the legal sense is “discrimination against”.’ Discrimination in a legal sense can also occur when ‘the different treatment … assigned is not appropriate and adapted to the difference or differences which support that distinction’: Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 478 (Gaudron and McHugh JJ). 4.4.25  Those distinctions are reflected in the definition of proscribed discrimination in human rights legislation. The AHRC Act — which has a limited application to activities that fall within Commonwealth legislative power — defines ‘discrimination’ in s 3(1) to mean: (a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and (b) any other distinction, exclusion or preference that: (i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and (ii) has been declared by the regulations to constitute discrimination for the purposes of this act; but does not include any distinction, exclusion or preference: (c) in respect of a particular job based on the inherent requirements of the job; or (d) in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed.

Regulation 4 of the Australian Human Rights Commission Regulations 1989 (Cth) expands the definition of discrimination to include any distinction, exclusion or preference made on the ground of age, medical record, criminal record, impairment, marital or relationship status, mental, intellectual or psychiatric disability, nationality, physical disability, sexual orientation, or trade union activity. 4.4.26  The Victorian Equal Opportunity Act  2010 (Vic) adds the refinement that ‘[d]iscrimination means direct or indirect discrimination’ (s  7) — often described as the distinction between disparate treatment (direct discrimination) and disparate impact (indirect discrimination). Direct and indirect discrimination are defined in ss 8 and 9 of the Act, together with examples: 8 Direct discrimination (1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

Examples 1. An employer advises an employee that she will not be trained to work on new machinery because she is too old to learn new skills. The employer has discriminated against the employee by denying her training in her employment on the basis of her age.

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Control of Government Action 2.

A real estate agent refuses an African man’s application for a lease. The real estate agent tells the man that the landlord would prefer an Australian tenant. The real estate agent has discriminated against the man by denying him accommodation on the basis of his race.

(2) In determining whether a person directly discriminates it is irrelevant — (a) whether or not that person is aware of the discrimination or considers the treatment to be unfavourable; (b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason. 9 Indirect discrimination (1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice — (a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and (b) that is not reasonable. (2) The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable. (3) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following — (a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice; (b) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice; (c) the cost of any alternative requirement, condition or practice; (d) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice; (e) whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage. (4) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination. Examples 1. A store requires customers to produce photographic identification in the form of a driver’s licence before collecting an order. This may disadvantage a person with a visual impairment who is not eligible to hold a driver’s licence. The store’s requirement may not be reasonable if the person with a visual impairment can provide an alternative form of photographic identification. 2. An advertisement for a job as a cleaner requires an applicant to speak and read English fluently. This may disadvantage a person on the basis of his or her race. The requirement may not be reasonable if speaking and reading English fluently is not necessary to perform the job.

4.4.27  A key element of those definitions is that a comparison must be drawn between the person who it is alleged has been discriminated against and other people. The choice 266

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of a comparator can be critical to the outcome. A  simple example is the decision of the Full Federal Court in Qantas Airways Ltd v  Gama (2008) 101 ALD 458, that unlawful discrimination had occurred by reason of comments to the applicant, a person of dark complexion and Indian descent, who was employed by Qantas, that he looked like a ‘Bombay taxi driver’ and walked up stairs ‘like a monkey’. The appropriate comparator in that case was someone who was not of Indian race. A more complex example faced the High Court in Purvis v New South Wales (Department of Education and Training) 4.4.31C, which concerned the expulsion from school of a disabled child who was violent towards teachers and other students. The High Court held that the student’s aggressive behaviour was not part of his disability for the purposes of drawing a comparison; a comparison should be drawn with how a student without the disability would have been treated, not a student without the propensity for violence. 4.4.28  A case in which the distinction between direct and indirect discrimination arose was Waters v Public Transport Corporation (1991) 173 CLR 349. A proposal by the Victorian Public Transport Commission to remove conductors from trams in Melbourne and to introduce ‘scratch tickets’ for public transport was challenged on the basis that it discriminated against people with disabilities, because some found it impossible or difficult to use scratch tickets. The High Court held that the proposal was not directly discriminatory, since everyone was subject to the same ticketing regime. However, it amounted to indirect discrimination under s 17(5) of the Equal Opportunity Act 1995 (Vic), in that the scratch ticket system involved the imposition of a requirement or condition which could pose a compliance difficulty for a substantially higher proportion of unimpaired than impaired persons. The High Court remitted the matter to the Equal Opportunity Board to decide whether the scratch ticket system was reasonable in all the circumstances. See  also New South Wales v Amery (2006) 230 CLR 174 in which the High Court accepted that pay scales for casual teachers (mostly women) that were less favourable than the scales for permanent teachers were reasonable in the circumstances and did not constitute indirect discrimination. 4.4.29  Another element that can be important in discrimination cases is whether a person was treated differently because they did not meet the ‘inherent characteristics’ of the employment, that is, the ‘features or defining characteristics of the position’: Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 295 (Gaudron J). In that case, the High Court accepted that an inherent requirement of the position of a pilot flying on international routes, imposed by the International Air Transport Association (IATA) rules implemented by many countries, including Australia, was that the person is under 60 years of age. Similarly, the ability to see, speak or hear may be an inherent characteristic of a particular position. Special measures designed to redress existing discriminatory practices are also permitted by human rights legislation. In Gerhardy v  Brown (1985) 59 CLR 70 the High Court upheld, as a ‘special measure’, the scheme in the Pitjantjatjara Land Rights Act  1981 (SA) that prohibited nonIndigenous people being on certain Indigenous lands without a permit. 4.4.30  Compliance with statutory requirements can also be an answer to a claim of discrimination. In Lyons v Queensland (2016) 90 ALJR 1107 the High Court held that it was inconsistent with the requirements of the Jury Act 1995 (Qld) for a person who was deaf and would require the assistance of an Auslan interpreter to be included on a jury panel.

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4.4.31C

Control of Government Action

Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; 202 ALR 133; 77 ALD 570 High Court of Australia

[A teenager, Daniel Hoggan, suffered a severe illness at an early age, resulting in brain damage. He had intellectual and visual deficiencies and also suffered from epilepsy. At times, he exhibited aggressive behaviour. His foster parents enrolled him in a New South Wales high school in 1997. In the first eight months at the school he was suspended five times for violent conduct towards other students and staff, and later that year was expelled. The Disability Discrimination Commissioner upheld a complaint that the expulsion was in breach of the Disability Discrimination Act 1992 (Cth). The Federal Court and the High Court by majority reversed that decision.] Gummow, Heydon and Hayne JJ: Concepts of ‘difference’, ‘disability’ and ‘disadvantage’ all depend upon comparisons. They assume that there is a person, or a group of persons, with whom it is useful and relevant to draw the comparison which is implicit in describing one person as ‘different’, or ‘disabled’, or ‘disadvantaged’. Obviously, the utility and relevance of the comparison depends upon why it is being made. Different comparisons may have to be drawn according to whether the purpose is limited to ensuring that persons situated similarly are treated alike, or the purpose is wider than that. In particular, if the purpose of legislation is to ensure equality of treatment, the focus of inquiry will differ from the inquiry that must be made if the relevant purposes include ensuring equality in some other sense, for example, economic, social or cultural equality. ‘Substantive equality’ directs attention to equality of outcome or to the reduction or elimination of barriers to participation in certain activities. It begins from the premise that ‘in order to treat some persons equally, we must treat them differently’. Obviously there are many ways in which ‘substantive equality’ can be defined and there are many different ways in which legislatures may seek to achieve it. The principal focus of the Act, however, is on ensuring equality of treatment … In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant’s argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability. The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the ‘discriminator’. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.

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In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions: (i) How, in those circumstances, would the educational authority have treated a person without Daniel’s disability? (ii) If Daniel’s treatment was less favourable than the treatment that would be given to a person without the disability, was that because of Daniel’s disability? Section 5(1) could be engaged in the application of s 22 only if it were found that Daniel was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Daniel’s treatment. To construe the operation of s 5(1) in the way described does not frustrate the proper operation of the Act. First, and very importantly, it is necessary to recall that s 6 will be engaged if a discriminator requires compliance with a requirement or condition which is not reasonable having regard to the circumstances of the case. Secondly, in a case like the present, the construction we have described allows for a proper intersection between the operation of the Act and the operation of State and federal criminal law. Daniel’s actions constituted assaults. It is neither necessary nor appropriate to decide whether he could or would have been held criminally responsible for them. It is enough to recognise that there will be cases where criminal conduct for which the perpetrator would be held criminally responsible could be seen to have occurred as a result of some disorder, illness or disease. It follows that there can be cases in which the perpetrator could be said to suffer a disability within the meaning of the Act. [Gleeson CJ and Callinan J delivered concurring judgments. Gleeson CJ stated that it was necessary to take account of the context in which the expulsion decision was made, which included the legal responsibility of the school to protect other students from violence. Further, his Honour noted that it was wrong to work from the basis that Daniel was a student whose violent behaviour resulted from a disorder: ‘The required comparison is with a pupil without the disability; not a pupil without the violence’: at 101. McHugh and Kirby JJ delivered a joint dissenting judgment, stating that for the purposes of disability discrimination legislation the proper comparator was a student who did not misbehave, rather than a student who exhibited the behaviour that Daniel did.]

International bodies 4.4.32  Another avenue for protection of human rights in Australia is to seek redress from certain international bodies. Since 1991, when Australia acceded to the Optional Protocol to the ICCPR, Australian citizens have had access to the United Nations Human Rights Committee to raise a domestic breach of the civil and political rights defined in the ICCPR. The text of the ICCPR, which Australia ratified in 1980, is annexed as Sch 2 to the AHRC Act. 4.4.33  Toonen v Australia 4.4.35C provides an illustration, being the first case to test the applicability of the new procedure. Mr Toonen, a Tasmanian resident, complained that ss 122 and 123 of the Tasmanian Criminal Code, which prohibited sexual contact between consenting male adults, even within the home, breached the right to privacy in Art 17 of the ICCPR, which provides: ‘No one shall be subjected to arbitrary or unlawful interference with his 269

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privacy, family, home or correspondence, or to unlawful attacks on his honour and reputation’. The United Nations Human Rights Committee found that a breach had occurred. After the Tasmanian Government failed to respond to the committee’s decision, the Australian Parliament, relying on the external affairs power in the Commonwealth Constitution, enacted the Human Rights (Sexual Conduct) Act 1994 (Cth), which provided in s 4: ‘Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Art  17 of the International Covenant on Civil and Political Rights’. In the continuing absence of a response from the Tasmanian Government, the couple involved, Mr Croome and Mr Toonen, sought a declaration from the High Court that the provisions of the Tasmanian Criminal Code were inconsistent with s  4(1) of the Commonwealth Act and to that extent were invalid under s  109 of the Constitution: Croome v  Tasmania (1997) 191 CLR 119. Tasmania sought to strike out the action on the basis that there was no ‘matter’ arising in terms of s  76 of the Constitution since no proceedings were in train against either plaintiff. The High Court rejected that argument and remitted the matter for determination. In 1997, the Tasmanian Criminal Code was amended to repeal the offending code provision and to avoid the Commonwealth legislation having effect: Criminal Code Amendment Act 1997 (Tas). 4.4.34  The procedure for bringing an action before the Human Rights Committee involves two stages: stage one is procedural and involves the admissibility of complaints by either a state party to the Optional Protocol or by individuals from those states; stage two is the determination of the merits of the complaint. The remedy obtainable from the committee is a non-binding recommendation. However, considerable political pressure can be brought to bear in international forums on states that refuse to comply with a committee recommendation. A  prerequisite to taking action before the United Nations Human Rights body is that the individual has exhausted local remedies or that to seek a remedy would be fruitless. Subsequent matters involving Australia that have been raised before the committee have included the handling of the stolen generations issue (see Kruger v Commonwealth of Australia (1997) 190 CLR 1) and the refusal by the Department of Veterans’ Affairs to provide a widow/widower’s pension to a same sex partner of an entitled deceased war veteran.

4.4.35C

Toonen v Australia (1994) 1:3 Int Hum Rts Reports 97, United Nations Human Rights Committee Communication No 488/1992 CCPR/C/50/D/488/1992, 4 April 1994

[On a preliminary issue, the UN Human Rights Committee ruled in favour of Mr Toonen on the admissibility of his communication. Although the Tasmanian legislative provisions had not been enforced in Tasmania, the committee considered that Mr Toonen had made reasonable efforts to demonstrate that the threat of enforcement and the pervasive impact of the continued existence of the legislative provisions on administrative practices and public opinion had affected him and continued to affect him personally and that he could be deemed a victim within the meaning of Art 1 of the Optional Protocol. The committee went on to consider the merits of the application — in which the Australian Government was formally cited as the respondent (or ‘state party’) to the proceedings.]

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[8.1] Examination of the merits The Committee is called upon to determine whether Mr Toonen has been the victim of an unlawful or arbitrary interference with his privacy, contrary to article 17, paragraph 1, and whether he has been discriminated against in his right to equal protection of the law, contrary to article 26. [8.2] In so far as article 17 is concerned, it is undisputed that adult consensual sexual activity in private is covered by the concept of ‘privacy’, and that Mr Toonen is actually and currently affected by the continued existence of the Tasmanian laws. The Committee considers that sections 122(a) and (c) and 123 of the Tasmanian Criminal Code ‘interfere’ with the author’s privacy, even if these provisions have not been enforced for a decade. In this context, it notes that the policy of the Department of Public Prosecutions not to initiate criminal proceedings in respect of private homosexual conduct does not amount to a guarantee that no actions will be brought against homosexuals in the future, particularly in the light of undisputed statements of the Director of Public Prosecutions of Tasmania in 1988 and those of members of the Tasmanian Parliament. The continued existence of the challenged provisions therefore continuously and directly ‘interferes’ with the author’s privacy. [8.3] The prohibition against private homosexual behaviour is provided for by law, namely, sections 122 and 123 of the Tasmanian Criminal Code. As to whether it may be deemed arbitrary, the Committee recalls that pursuant to its general comment 16 (32) on article 17, the ‘introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances’. The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case. [8.4] While the State party acknowledges that the impugned provisions constitute an arbitrary interference with Mr Toonen’s privacy, the Tasmanian authorities submit that the challenged laws are justified on public health and moral grounds, as they are intended in part to prevent the spread of HIV/AIDS in Tasmania, and because, in the absence of specific limitation clauses in article 17, moral issues must be deemed a matter for domestic decision. [8.5] As far as the public health argument of the Tasmanian authorities is concerned, the Committee notes that the criminalisation of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV. The Government of Australia observes that statutes criminalising homosexual activity tend to impede public health programmes ‘by driving underground many of the people at the risk of infection’. Criminalisation of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/ AIDS prevention. Secondly, the Committee notes that no link has been shown between the continued criminalisation of homosexual activity and the effective control of the spread of the HIV/AIDS virus. [8.6] The Committee cannot accept either that for the purposes of article 17 of the Covenant, moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee’s scrutiny a potentially large number of statutes interfering with privacy. It further notes that with the exception of Tasmania, all laws criminalising homosexuality have been repealed throughout Australia and that, even in Tasmania, it is apparent that there is no consensus as to whether sections 122 and 123 should not also be repealed. Considering further that these provisions are not currently enforced, which implies that they are not deemed essential to the protection of morals in

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Tasmania, the Committee concludes that the provisions do not meet the ‘reasonableness’ test in the circumstances of the case, and that they arbitrarily interfere with Mr Toonen’s right under article 17, paragraph 1 … [The United Nations Human Rights Committee found that Mr Toonen, as a victim of a violation of art 17, was entitled to a remedy. The committee recommended that provisions in the Tasmanian Criminal Code be repealed and requested the Australian Government, the state party, to notify the committee within 90 days of receiving the communication of what measures it had taken to give effect to its views. The subsequent action of the Commonwealth and Tasmanian Parliaments is noted in 4.4.33.]

ANTI-CORRUPTION AND INTEGRITY COMMISSIONS 4.5.1  Each Australian jurisdiction other than the Commonwealth has established an independent commission with a role of combating and investigating government corruption and promoting integrity in government. The functions and powers of the commissions vary from one jurisdiction to another: additional functions of some commissions are to combat major crime, administer the public interest disclosure scheme, investigate police complaints, investigate corruption by members of parliament, conduct public education and prevention programs about corruption risks and impacts, and utilise covert investigation powers such as telephone interception and surveillance. The bodies are as follows: Australian Capital Territory Anti-Corruption and Integrity Commission; New South Wales  Independent Commission Against Corruption; Northern Territory Independent Commission Against Corruption; Queensland Crime and Corruption Commission; South Australian Independent Commission Against Corruption; Tasmanian Integrity Commission; Victorian Independent Broad-based Anti-Corruption Commission; and Western Australian Corruption and Crime Commission. The structure and functions of the commissions are outlined in The Senate, Select Committee on a National Integrity Commission: Report, Commonwealth of Australia, Canberra, September 2017, ch 3. 4.5.2  Common features of the various commissions are their focus on the public and not the private sector; their possession of coercive investigation powers similar to those of a royal commission; and their oversight by a parliamentary committee, most also by an independent inspector (for example, in New South Wales by the Committee on the Independent Commission Against Corruption, and the Inspector of the Independent Commission Against Corruption). 4.5.3  The central concept in the statutes constituting the commissions is the definition of ‘corrupt conduct’. Though differently framed, the definitions in the statutes concentrate on the same core elements. An example is the definition in s 8(1) of the Independent Commission Against Corruption Act 1988 (NSW) (NSW ICAC Act): (1) Corrupt conduct is: (a) any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the honest or impartial exercise of official functions by any public official, any group or body of public officials or any public authority, or 272

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(b) any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions, or (c) any conduct of a public official or former public official that constitutes or involves a breach of public trust, or (d) any conduct of a public official or former public official that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person.

Subsections (2) and (3) of s 8 of the NSW ICAC Act list a range of conduct that falls within the definition, such as breach of trust, bribery, blackmail, fraud, theft, perverting the course of justice, election fraud, tax evasion, forgery, collusive tendering, licence fraud, defrauding the public revenue, and fraudulently obtaining appointment as a public official. An allied feature of the Act is a mandatory reporting procedure in s 11, imposing a duty on the New South Wales  Ombudsman and the principal officers of all public authorities to report to ICAC ‘any matter that the person suspects on reasonable grounds concerns or may concern corrupt conduct’. 4.5.4  Investigations by anti-corruption commissions have been a source of controversy throughout their life. An early marker was a finding of corrupt conduct by the NSW ICAC against the Premier, Mr Greiner, whose government had established ICAC. The finding was set aside by the New South Wales Court of Appeal: see 8.3.59. Similar public controversies related to a finding by the Western Australian Corruption and Crime Commission against former Premier, Mr  Burke, and to an investigation the NSW ICAC proposed conducting into the conduct of a Deputy Director of Public Prosecutions, Ms Cunneen: see 8.2.6 and Independent Commission Against Corruption v Cunneen 8.2.10C. Litigation against commission investigations has been a regular occurrence around Australia, on matters such as the exercise of investigative powers, the terms of reference for investigations, and compliance with procedural fairness requirements: see, for example, R  v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8, Duncan v Independent Commission Against Corruption [2016] NSWCA 143, Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197, Burke v Corruption and Crime Commission [2012] WASCA 49, Lee v Crime and Corruption Commission [2016] QCA 145. See also TF Bathurst and NA Wootton, ‘The Courts and Integrity Bodies: Constitutional Conundrums’, paper presented at Symposium on Australia’s Public Integrity Institutions, 21 August 2018. 4.5.5  Other issues that have figured prominently in the debate about the role of the commissions are whether they should conduct public hearings, the small number of successful prosecutions following commission findings, whether an ‘exoneration protocol’ should apply to a finding against a public official that has not led to a successful criminal prosecution, the balance to be struck within the commissions between corruption investigation and preventative and educative strategies, and the cost of administering the commissions. Those issues are reflected in the proposals made by a National Integrity Committee for establishing a national integrity commission: 4.5.6E. By contrast, the Senate Select Committee on a National Integrity Commission was less committed to establishing a commission, as reflected in the following two recommendations: Recommendation 1: The committee recommends that the Commonwealth government prioritises strengthening the national integrity framework in order to make it more coherent, comprehensible and accessible. 273

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Recommendation 2: The committee recommends that the Commonwealth government gives careful consideration to establishing a Commonwealth agency with broad scope and jurisdiction to address integrity and corruption matters. [The Senate, Select Committee on a National Integrity Commission: Report, Commonwealth of Australia, Canberra, September 2017, p xiii]

A stronger case for establishing a national commission was advocated in an options paper published by a research project headed by a Griffith University centre in partnership with state oversight agencies: AJ  Brown et al, A National Integrity Commission – Options for Australia, August 2018. The options paper presented the findings of an opinion survey, including the following: • Trust and confidence in all levels of government fell in 2017–18, to 46 per cent for federal and state levels and 51 per cent for local government nationally.

• There were high levels of concern about officials or politicians using their position to benefit themselves or family (62 per cent of respondents) or favouring businesses and individuals in return for political donations or support (56 per cent). • Respondents who had worked in federal government more strongly supported a new federal agency (54 per cent against the national average of 48 per cent). The options paper identified the following weaknesses in the national integrity system: • a lack of co-ordinated oversight of high-risk misconduct;

• lack of supervision of strategic areas of corruption risk, such as financial crime and procurement; • no coherent system-wide corruption prevention framework;

• inadequate support for parliamentary and ministerial standards;

• low and uncertain levels of resourcing for core integrity agencies compared to international practice; • cross-jurisdictional challenges within Australia in dealing with public and private sector corruption; and

• absence of a clear gateway for officials and members of the public to report corruption and integrity concerns.

The options paper presented three options for strengthening Australia’s federal integrity system: • an Integrity and Anti-Corruption Coordination Council, to provide policy and operational coordination of existing federal agencies, and report to the Prime Minister or AttorneyGeneral;

• an Independent Commission Against Corruption, modelled on existing state bodies, and with responsibility for dealing with serious misconduct and corruption allegations in the Commonwealth public sector, by investigations and a prevention program; and

• a Commonwealth Integrity Commission, with a broad range of functions including investigation, corruption risk and prevention, whistleblower protection, oversight of parliamentary and ministerial standards and expenses, and electoral campaign regulation.

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Principles for designing a National Integrity Commission Briefing paper prepared in November 2017 by the National Integrity Committee, established by The Australia Institute and Transparency International Australia

PRINCIPLES AND RATIONALE 1. That the Commission is an independent statutory body that is provided with the required resourcing to enable it to promote integrity and accountability and to enable it to prevent, investigate and expose corruption. Rationale: establishing the National Integrity Commission as a statutory body ensures the Commission is a permanent body protected from political intervention and unjustified budgetary constraints imposed to lessen its effectiveness. It must be independent from existing federal agencies as these agencies do not have the overarching jurisdiction, investigative powers, or breadth of profile to effectively investigate and expose corruption. … 2. That the Commission has a broad jurisdiction, including the ability to investigate any conduct of any person that adversely affects or could adversely affect, directly or indirectly, the honest or impartial exercise of public administration, if the Commissioner deems the conduct to be serious or systemic. Rationale: There are significant gaps in the jurisdiction of existing federal accountability agencies. Parliamentarians, Ministers, parliamentary staff, and at least half of the public sector are not currently covered by effective accountability measures. In addition, currently no federal agency can investigate conduct of third parties attempting to improperly and unfairly influence public administration. … 3. That the Commission be granted the investigative powers of a Royal Commission to undertake its work, to be executed at the discretion of the Commissioner. Rationale: Corruption and misconduct are complex forms of wrongdoing. Corruption and misconduct are often committed by highly skilled professionals in positions of power within a system that is both well-known to them and difficult for others to penetrate. Corruption often occurs in networks of mutually beneficial relationships of powerful and influential people. The corrupt often know how to hide their trail and stay in front. … 4. That the Commission may hold a public inquiry providing it is satisfied that opening the inquiry to the public will make the investigation to which the inquiry relates more effective, and would be in the public interest. Rationale: A National Integrity Commission will not be fully effective in exposing or investigating corruption unless it has the ability to hold public inquiries. An important factor to take into account when deciding to open the hearing, is whether the public interest in opening the hearing outweighs the potential damage to a person’s reputation. Evidence from Australian state based anti-corruption commissions show that the ability to hold public inquiries has been critical to their success. Public inquiries are an important investigative tool, prompting members of the public to come forward with information that they may not have had the confidence or context to do without a public inquiry. They are also critical to exposing corruption and misconduct to the public, demonstrating publicly that corruption in public administration is taken seriously by government and that investigations are carried out fairly by the commission. …

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5. That the Commission be governed by one Chief Commissioner and two Deputy Commissioners, appointed by the Minister on recommendations from a bipartisan Parliamentary committee. The Chief Commissioner is to be appointed for fixed non-renewable 5 year terms, and must be a judge or a retired judge or be qualified for appointment as a judge. Rationale: the appointment of one Chief Commissioner ensures efficient and fast decision making, functional staff management, and a direct line of responsibility whereby the Chief Commissioner is held accountable for the proper functioning of the Commission. Appointing Deputy Commissioners is critical to ensuring that the commission has sufficient capacity to undertake its work. Appointment by the Minister on recommendations from a bipartisan committee and for a fixed term ensures political independence and freedom from fear of political retaliation. 6. That the Commission be empowered to make findings of fact, to be referred to a wellresourced and specialised unit within the DPP for consideration for prosecution. By their very nature, anti-corruption bodies are not judicial and do not exercise judicial power. Similarly to a Royal Commission, the bodies are usually empowered to receive information; to make findings; to report those findings; and to make recommendations to other agencies, including prosecuting authorities, in respect of further action to be taken arising from the information and findings. There is a risk that corruption cases are not pursued with sufficient staff, knowledge or skills once referrals are made to the Director of Public Prosecutions (DPP). Corruption cases are often complex and unique, and may not be prioritised in a resource scarce department. For this reason, it is recommended that a well-resourced and specialised unit within the DPP is established to pursue these cases.

PUBLIC INTEREST DISCLOSURES 4.6.1  Public interest disclosure (PID) legislation — also known as whistleblower protection legislation — has become increasingly important as a mechanism for uncovering executive wrongdoing, promoting integrity in government, channelling grievances and safeguarding individual rights. Legislation in this form exists in all Australian jurisdictions, titled the Public Interest Disclosure(s) Act, with the exception of Victoria (titled the Protected Disclosure Act 2012) and South Australia (titled the Whistleblowers Protection Act 1993). The legislation in the various jurisdictions is broadly similar and the following analysis looks primarily at the Commonwealth Act, the Public Interest Disclosure Act 2013 (PID Act). 4.6.2  The Commonwealth was the last jurisdiction to enact PID legislation. The Commonwealth initiative was prompted by numerous studies and proposals over many years: two influential reports were the 1994 report of the Senate Select Committee into Public Interest Whistleblowing, In the Public Interest; and the 2009 report of the House of Representatives Standing Committee on Legal and Constitutional Affairs, Whistleblower protection: a comprehensive scheme for the Commonwealth public sector. Another strong influence was a large empirical research study conducted jointly by Griffith University researchers and federal and state ombudsman offices and public sector agencies, called ‘Whistling While They Work’. The study reported in 2008 that 80 per cent of public sector employees felt personally obliged to report wrongdoing in their organisation, yet only 33 per cent of federal public servants felt 276

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they would get effective protection from their managers: AJ Brown (ed), Whistleblowing in the Australian Public Sector, Australia and New Zealand School of Government monograph series, ANU Press, 2008, ch 2. 4.6.3  The objects of the Commonwealth PID Act are stated in s 6: The objects of this Act are: (a) to promote the integrity and accountability of the Commonwealth public sector; and (b) to encourage and facilitate the making of public interest disclosures by public officials; and (c) to ensure that public officials who make public interest disclosures are supported and are protected from adverse consequences relating to the disclosures; and (d) to ensure that disclosures by public officials are properly investigated and dealt with.

As the objects indicate, the scheme of the PID Act is to provide legal protection for government agency employees who make public interest disclosures in accordance with the procedures of the Act, and to ensure that disclosures are properly investigated. The Act applies to all Australian government agencies (ss 71, 72), including the Australian Defence Force, the Australian Federal Police, the parliamentary departments (but not the parliament itself ), court and tribunal registries as regards matters of an administrative nature (s 32), and intelligence agencies such as the Australian Security Intelligence Agency but not as to conduct in the proper performance of their functions (s 33). The Act also extends to companies that provide goods and services either to the Commonwealth or on behalf of the Commonwealth (ss 29, 30). A disclosure may be made either by or against a ‘public official’, defined to include employees of agencies and companies to which the Act applies, and former public officials (ss 29, 30). An agency may deem a person to be a public official for the purpose of making a disclosure, if it is believed that the person has information to disclose but would not otherwise gain protection under the Act (s 70). 4.6.4  The PID Act extends protection to ‘public interest disclosures’ of ‘disclosable conduct’ by a public official. To qualify as a PID the disclosure must either tend to show, or the discloser must reasonably believe that it tends to show, disclosable conduct of an agency, public official or contractor: s 26. It is implicit in that statement that a discloser’s motive is irrelevant, provided they do not make a statement that is knowingly false or misleading: s 11. ‘Disclosable conduct’ is conduct that contravenes a Commonwealth or state law, is corrupt, an abuse of public trust, could give rise to disciplinary action, perverts the course of justice, is maladministration, involves research misconduct, endangers public health or safety, or involves a waste of public money: s 29. The term ‘maladministration’ is defined to include conduct that is based on an improper motive, or is unreasonable, unjust, oppressive or negligent. The Act declares that disclosable conduct does not extend to a disagreement with government policy, proposed ministerial action or an expenditure priority: s 31. 4.6.5  To gain the protection of the PID Act, a PID must be made to the discloser’s supervisor, an authorised internal agency officer, or to the Commonwealth Ombudsman if the discloser believes on reasonable grounds that it would be appropriate for external agency investigation: s  34. Disclosures relating to an intelligence agency can be made to the Inspector-General of Intelligence and Security. A disclosure can be informal — for example, orally, by email, anonymously — and is not required to state that it is a PID: s 28. A disclosure can also be made to a legal practitioner for the purpose of obtaining legal advice or professional assistance: s 26. 277

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Public disclosure is sanctioned in two instances: s 26. One is where an internal disclosure was made, but the discloser believes on reasonable grounds that the investigation was inadequate or incomplete, the disclosure goes no further than is necessary to publicly identify disclosable conduct, and public disclosure is not contrary to the public interest. The second is where there are exceptional circumstances to justify external disclosure because of a substantial or imminent danger to public health or safety or the environment, and the disclosure goes no further than is reasonably necessary. 4.6.6  Agencies have extensive obligations to ensure that PID Act requirements are met, including establishing internal investigation procedures, appointing internal recipients, ensuring that PIDs are handled properly, assessing reprisal risks against disclosers, and acting on PID report findings: ss 59–61. Upon receiving a PID an agency must allocate its handling to an agency officer or an investigative agency within 14 days (ss 42–45), ensure it is investigated within 90 days (s 52) and prepare an investigation report (the Commonwealth Ombudsman can extend these investigation timeframes). There is a discretion not to investigate if, for example, there is no disclosable conduct, investigation is impracticable, or the matter is otherwise being investigated: ss  43, 48. The Ombudsman is to be notified when a PID is accepted for investigation, and an agency may also allocate the PID to the Ombudsman for investigation: s 43. There is an obligation on agencies, buttressed by criminal penalties, to maintain the confidentiality of a discloser’s identity, except where the person’s identity is used or disclosed with the person’s consent or for the purposes of investigation: s 20. The discloser is to be advised that a matter has been allocated for investigation (s 44) and of the investigation findings: s 51. 4.6.7  A fundamental element of the PID Act is the legal protections for disclosers. In summary, a discloser enjoys immunity in respect of the act of disclosure, from criminal liability (for example, breach of a secrecy provision), administrative liability (for example, disciplinary action) and civil liability (for example, defamation or breach of confidence): s 10. The discloser is also protected against reprisal action by reason of having made a disclosure: s 13. Reprisal action can also be restrained by legal proceedings, such as a court injunction, an order for reinstatement, or payment of compensation: ss 14–19. 4.6.8  The Commonwealth Ombudsman, assisted by the Inspector-General of Intelligence and Security (IGIS), has multiple monitoring and supervisory roles: PID Act ss  62, 74, 76. These include setting investigation standards to be followed by agencies, assisting agencies, conducting education and awareness programs, investigating PIDs, monitoring agency activity, and providing an annual report to parliament. The Ombudsman’s annual report for 2016–17 reported that 684 PIDs had been made to 57 agencies, of which 67 per cent were accepted for investigation: Commonwealth Ombudsman, Annual Report 2016–17, p  102. A further 65 PIDs were made directly to the Ombudsman (33 per cent accepted for investigation) and 11 to the IGIS. Agencies investigated 809 instances of disclosable conduct, 30 per cent of which comprised conduct that may result in disciplinary action, 28 per cent involving a possible contravention of the law, and 23 per cent maladministration; only one per cent raised a corruption issue. Following investigation, 105 findings of disclosable conduct were recorded, on matters such as sexual assault, bullying and harassment, use of sexist or racist language, leaking information, unsafe work practices and use of fraudulent qualifications. A  clear theme in those results is that personnel grievance matters loomed large in PID activity. 278

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4.6.9  An independent review of the Commonwealth PID Act was published in 2016: P Moss, Review of the Public Interest Disclosure Act 2013, Department of the Prime Minister and Cabinet, Canberra, 15 July 2016. Among the findings of the review were that greater agency effort is required to provide support to disclosers, and the PID Act should be amended to exclude disclosures about personnel employment grievances in order to strengthen its focus on significant wrongdoing such as fraud, serious misconduct, and corruption. Legislation was also introduced into the Commonwealth Parliament in 2017 to broaden whistleblower protections in the corporate, financial and taxation arenas: Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017. 4.6.10  Periodic reviews have been conducted of the PID schemes in the states — for example, New South Wales  Ombudsman, Oversight of the Public Interest Disclosures Act 1994: Annual Report 2016–17; NSW Parliament Committee on the Ombudsman, the Law Enforcement Conduct Commission and the Crime Commission, Review of the Public Interest Disclosures Act 1994 (2017); Queensland Ombudsman, Review of the Public Interest Disclosure Act 2010 (2017); and Victorian Parliament Independent Broad-based Anti-corruption Commission Committee, Improving Victoria’s whistleblowing regime: a review of the Protected Disclosure Act 2012 (2017). A fresh ‘Whistling While They Work’ review was also being conducted in 2016–18 jointly by Griffith University researchers and partner agencies: see AJ Brown, N Dozo and P Roberts, Whistleblowing Processes and Procedures — A New National Snapshot, Griffith University, 2016.

ALTERNATIVE DISPUTE RESOLUTION IN ADMINISTRATIVE LAW Mediation and other forms of alternative dispute resolution 4.7.1  A formal determination by a court or tribunal, or an investigation and recommendation by an ombudsman, are not the only means of obtaining administrative justice. A  common approach in all areas of grievance and dispute resolution is to use alternative dispute resolution (ADR), which has been defined as follows: Alternative Dispute Resolution or ADR is an umbrella term for processes, other than judicial determination, in which an impartial person (or ADR practitioner) assists those in a dispute to resolve the issues between them. … The main types of ADR are mediation, conciliation and arbitration. [Attorney-General’s Department, Office of Legal Services Coordination, Guidance Note 12]

The popularity of ADR has been underpinned by strong encouragement from all Australian governments. It is seen to be a practical, effective and cost-efficient method of handling and resolving disputes, emphasising a ‘resolution culture’ rather than an ‘adversarial culture’. An indicative sign of the effectiveness of ADR is that it used not only as an alternative to court and tribunal resolution, but is now actively used by courts and tribunals as part of their standard processes. ADR processes can be effective in assisting disputed parties to reach an agreed outcome, clarifying and narrowing the issues that are in dispute, and identifying evidentiary issues.

Commonwealth 4.7.2  There is a statutory requirement to mediate imposed on Commonwealth human rights and anti-discrimination bodies, and it is the primary mechanism used in the National 279

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Native Title Tribunal. Other Commonwealth bodies have also embraced this mode of dispute resolution, as noted in the ALRC, Managing Justice: A Review of the Federal Civil Justice System, Report No 89, 17 February 2000, at [6.59]–[6.66], ch 7. For example, the Commonwealth AAT has added conciliation, mediation, neutral evaluation and case appraisal to its armory of processes and has trained mediators among its members. If the applicant is represented, conciliation has been compulsory in the workers’ compensation jurisdiction of the AAT. This is in addition to the tribunal’s compulsory conference system, which can vary from an opportunity for better management of the hearing to genuine conciliation of the dispute: Administrative Appeals Tribunal Act 1975 (Cth) ss 34, 34A. The use of these modes of dispute resolution has meant that — in AAT jurisdictions other than social security and migration — only one in five applications to the tribunal goes to a hearing. Mediation, conciliation and other methods of ADR can also be ordered by the Federal Court: Federal Court of Australia Act 1976 (Cth) s  53A. Part  4 of the Federal Circuit Court of Australia Act 1999 (Cth) lists counselling, mediation, arbitration, neutral evaluation, case appraisal, and conciliation as dispute-handling processes available to it. The Information Commissioner is also required to conciliate disputes in the privacy jurisdiction where possible: Privacy Act 1988 (Cth) ss 35A, 36A, 40A. 4.7.3  The Productivity Commission has recommended that all courts and tribunals should actively pursue ADR processes, particularly for low value disputes: Access to Justice Arrangements, Inquiry Report No 72, September 2014, vol 1, ch 8. Additional recommendations were that agencies should adopt dispute management plans, which should be reviewed every five years, and that agencies should educate officers about human rights considerations as part of their programs for upgrading skills and understanding. It is notable that the former National Alternative Dispute Resolution Advisory Commission (NADRAC) devised curricula for such courses within government, and in most universities — an initiative now pursued by the Australian Attorney-General’s Department. 4.7.4  It is Australian Government policy that ADR be used wherever possible. This policy is implemented through the Legal Services Directions 2005, issued by the Attorney-General under s 55ZF of the Judiciary Act 1903 (Cth), and the Civil Dispute Resolution Act 2011 (Cth). The Directions require agencies or those representing them ‘not to start legal proceedings unless … satisfied that litigation is the most suitable method of dispute resolution’ (cll  4.2, 12.2, 12.3) and to act as a model litigant, which includes ‘paying legitimate claims without litigation’ (App B, cl 2(b)) and ‘endeavouring to avoid … legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate’: App B, cl 2(d). The model litigant obligation is also imposed on agencies involved in merit review proceedings in tribunals: App B, cl 3. Finally, the model litigant principles require that the Commonwealth or an agency ‘is only to start court proceedings if it has considered other methods of dispute resolution (eg alternative dispute resolution or settlement negotiations)’ and both are required to participate fully and effectively in such ADR methods and to have authority to settle matters: App B, cll 5.1, 5.2. 4.7.5 The Civil Dispute Resolution Act 2011 (Cth) has as its object that as far as possible people must take ‘genuine steps’ to resolve disputes before certain civil proceedings are instituted: s 3. The obligation applies in federal courts: ss 5, 6. ‘Genuine steps’ include considering whether the dispute could be resolved by a process facilitated by another person, including an ADR 280

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process: s 4. Failure to do so may result in sanctions: Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys (2012) FCA 977 (costs order); and LVR(WA) Pty Ltd v  Administrative Appeals Tribunal (2012) 203 FCR 166 (decision set aside and remitted). As  the AAT, for example, is already subject to an obligation to resolve matters prior to a hearing, the AAT is not covered by the Act: s 15.

States and territories 4.7.6  All state and territory tribunals use mediation and other forms of ADR: ACT: Australian Capital Territory Civil and Administrative Tribunal Act 2009 Pt 5; NSW: Civil and Administrative Tribunal Act 2013 ss 3, 36, 37; NT: Northern Territory Civil and Administrative Tribunal Act  2014 Pt  4 Div  4; Qld: Queensland Civil and Administrative Tribunal Act  2009 s  4, Pt  6 Divs 2–4; SA: South Australian Civil and Administrative Tribunal Act  2013 ss  50, 51; Tas: Alternative Dispute Resolution Act  2001 ss  3,  4 (applying to the Magistrates Court which provides review of administrative decisions); Vic: Victorian Civil and Administrative Tribunal Act 1998 Pt 4 Div 5; WA: State Administrative Tribunal Act 2004 ss 9, 52, 54. Many other bodies also do so. The privacy commissioners and health complaints bodies are frequently authorised to conciliate complaints; for example, Privacy and Personal Information Protection Act 1998 (NSW) s 49; Information Act (NT) ss 111–112; Privacy and Data Protection Act 2014 (Vic) Pt 3 Div 8 Subdiv 2. The processes are regulated in some jurisdictions; for example, there is a Mediation Act 1997 (ACT) which authorises the minister to declare competency standards for mediators and provides for registration of practitioners.

Benefits of alternative dispute resolution 4.7.7  A justification for use of ADR is that a high proportion of cases commenced in the court and tribunal system are settled prior to a hearing. The Productivity Commission in 2014 reported the settlement figure to be as high as 80 per cent in some areas: Access to Justice Arrangements, Inquiry Report No 72, September 2014, vol 1, p 288. The Commission noted the following benefits and limitations of ADR (at p 283): •

•

•

Alternative dispute resolution (ADR) provides parties with a range of dispute resolution options that are procedurally simpler and potentially less adversarial than resolution by hearings in courts and tribunals. Indeed, ADR is increasingly used by courts and tribunals as an alternative or complement to formal hearings. ADR covers a broad range of facilitative, advisory and determinative processes that can be tailored to particular dispute types and circumstances. – ADR is often a more efficient and effective method to resolve disputes and can lead to both lower cost dispute resolution and mutually beneficial outcomes being achieved. The parties involved also have more control over the process, which is undertaken confidentially. – However, it is not an appropriate mechanism for resolving all disputes and the use of ADR must be accompanied by safeguards that allow for litigation if a settlement cannot be reached. Further, there are concerns that a lack of transparency in ADR processes and outcomes may limit the identification and resolution of systemic legal issues. Despite the greatly expanded use of ADR in recent years, there is significant scope to increase ADR use across the civil justice system. 281

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On the issue of cost savings, the Productivity Commission report also commented that ‘[w]hile evidence of the financial costs of alternative dispute resolution is limited, what is available suggests that early settlement provides parties with significant cost savings’: at p 113.

Internal review 4.7.8  Internal review has been defined by the Administrative Review Council (ARC) as ‘a process of review on the merits of an agency’s primary decision. It is undertaken by another officer within the same agency, usually a more senior officer’: ARC, Internal Review of Agency Decision Making, Report No  44, Commonwealth of Australia, Canberra, November 2000, at 1.4]. There are many advantages claimed for internal review. It is relatively quick; it is inexpensive; it is a simple means of ensuring, often for the first time, that there is some personal contact, even if only by telephone, between a citizen and the agency; and it ensures that proper consideration is given to an issue within an agency at a senior level before the decision is reviewed by an external agency. Peer assessment is the essence of internal review, and has the potential for a significant normative impact on fellow officers in an agency with a corresponding improvement in decision-making. Internal review can alert an agency to deficiencies or discrepancies in decision-making practices and is a first step towards addressing those issues within the agency. Steps are generally taken within an agency to insulate review officers from those whose decisions are being reviewed, which enhances confidence in the independence of internal review. Internal review is a form of auditing by management of the agency’s decision-making performance, and provides a filter to prevent gross errors occurring. 4.7.9  Internal review can be established by administrative action, but equally by statute. An example is that the freedom of information statutes in each jurisdiction mostly provide that before a decision to refuse access can be reviewed by a court, tribunal or commissioner, a prior application for internal review is necessary. Similarly, s 126 of the Social Security (Administration) Act 1999 (Cth) provides for Centrelink decisions to be reviewed by the Secretary, who may delegate the task to an authorised Review Officer before an appeal can be made to the Social Security Appeals Tribunal. The Department of Veterans’ Affairs also has a statutory form of internal review which formerly existed under executive power: Veterans’ Entitlements Act 1986 (Cth) s  31. A  similar position applies in the states and territories, with individual agencies having more or less formal schemes of internal review. In New South Wales, internal review is not mandated, but can be requested for all decisions which are reviewable: Administrative Decisions Review Act 1997 (NSW) s 53. 4.7.10  Disadvantages of internal review include that there is a risk of perception by the public of lack of impartiality on the part of review officers, and that it adds another layer to the review process, which can be confusing in a complex review framework. In addition, internal review can prevent speedy resolution of a dispute by an external review body and, if there is a charge for internal review, will add to the cost of administrative review. 4.7.11  Where internal review exists, it generally takes the form of review on the papers, although the review process may involve a telephone call to the applicant. The ARC’s Better Decisions report recommended that: agencies should continue to explore opportunities for early resolution of issues through personal contact with applicants. In many cases, this could be achieved through telephone contact. 282

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At the very least, applicants should regularly be informed of the progress of their application. [ARC, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No  39, Commonwealth of Australia, Canberra, 1995, at [6.64]]

The ARC reaffirmed that approach in its Internal Review report in Recommendation 21, which stated: ‘Agencies should encourage internal review officers to attempt to contact all applicants as a matter of course’, and in order to implement that suggestion, that ‘Internal review officers should be allocated enough time per review for this to be possible’: ARC, Internal Review of Agency Decision Making, Report No  44, Commonwealth of Australia, Canberra, November 2000, at p 37].

Customer service charters or codes of conduct 4.7.12  The general practice adopted by government agencies in Australia that provide user services is to adopt a customer service charter that contains customer commitments and sets benchmarks or standards that the agency pledges to meet. For the most part, service charters or codes of conduct deal with the provision of goods and services and are not concerned with decisions. To that extent they are not an alternative to administrative law remedies. 4.7.13  It is also common for charters or codes to contain a framework for complainthandling. Standards Australia has also developed a benchmark for complaint-handling which was intended for agencies wishing to establish an internal procedure, and which requires compliance with procedural fairness: Standards Australia, Guidelines for Complaints Handling in Organisations AS/NZ 10002: 2014. This, and the additional requirement that an appeal may be made to a court or tribunal, link such schemes to existing administrative law remedies. The deficiencies are that the effectiveness of such schemes is diminished because they often contain no effective sanctions for breach. There are exceptions — for example, sanctions can be imposed for breaches of the Australian Public Service Code of Conduct: Public Service Act 1999 (Cth) s 15. A general object of charters and codes is to contribute to the provision of low-cost and effective avenues for dealing with complaints against government agencies.

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INTRODUCTION 5.1.1  The Commonwealth Constitution says very little about administrative law. The Commonwealth and state constitutions were mostly drafted in an era when the British style of constitution-making was to place trust in democracy and the political system to control the way that power is exercised by governments. Moreover, administrative law as we now define it was not then a recognised system for controlling government action. The furthest the Commonwealth Constitution went was to create a court system, and to confer original jurisdiction on the High  Court in s  75(v) to grant the remedies of mandamus, prohibition and injunction against an officer of the Commonwealth. That jurisdiction has developed in importance over the years, so that it is now recognised as securing ‘a basic element of the rule of law’ and providing ‘an entrenched minimum provision of judicial review’: Plaintiff S157/2002 v  Commonwealth 16.3.17C at 482, 513. However, it falls short of being a comprehensive guarantee. There is otherwise no explicit constitutional foundation for open government, administrative tribunals, the ombudsman, or for judicial review in the comprehensive fashion later established by the Administrative Decisions ( Judicial Review) Act 1977 (Cth) (ADJR Act). The state constitutions exhibit much the same design, except that in Victoria the Constitution Act 1975 (Vic) gives recognition to the jurisdiction of the Supreme Court (s 85), to the court’s power to award habeas corpus (s  86) and to the independence of the ombudsman: s  94E (see also ss 18 and 85 concerning amendment of those provisions). 5.1.2  The lack of express detail in the Constitution does not mean that it is unimportant to administrative law. Features of the system of government, established by the Constitution, are relevant in different ways. An example given in 5.2.17 is that the separation of judicial and executive power in the Commonwealth Constitution embodies the legality/merits distinction that is a foundational feature of Australian administrative law. Additionally, as examined in 5.2.1ff, the constitutional framework embodies important unwritten principles and values — such as the rule of law — that convey essential meaning about the system of law and government.

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5.1.3  Those features of the Constitution — what it says, what it does not say and what it assumes and implies — broach numerous issues that arise in this chapter:

• Should the system of administrative law be secured in the Constitution, or is the gradual evolution and flexibility of that system a hallmark of its strength? • What lessons can be drawn from the similarity in Commonwealth and state administrative law, yet the dissimilarity of the Commonwealth and state constitutional framework?

• What is the practical importance of the separation of judicial power in the Commonwealth Constitution? Is it a strength or a complicating feature of the Commonwealth administrative law system? • What constitutional values inhere in the Australian constitutional system? How important are constitutional values such as the rule of law and constitutionalism to Australian administrative law?

• Does the Constitution embody minimum standards as to how executive decisions are to be made: is there an entrenched minimum provision of judicial review? 5.1.4  While constitutional law texts and courses study these topics in greater length, this chapter focuses specifically on the interaction between administrative and constitutional law. Chapter 7 considers the significance of s 75(v) of the Constitution for judicial review in further detail. Chapter 9 focuses on the scope and limitations of executive power under the Constitution.

CONSTITUTIONAL PRINCIPLES 5.2.1  The formal written rules of a constitution are only part of the constitutional framework and fabric. Unwritten conventions, principles, concepts and values can be just as important both in structuring the way that power is exercised and in influencing the thinking and behaviour of those who exercise power. This element explains how legal systems with a similar formal structure can have a strikingly different character and operation. Of  the Australian system of government, Dixon  J observed in Australian Communist Party v  Commonwealth (1951) 83 CLR 1: [I]t is government under the Constitution and that is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.

Justice Kirby observed in New South Wales v Commonwealth (2006) 229 CLR 1 (Work Choices case): [T]his Court has found implications in the Constitution to inhibit the enactment of laws deemed inconsistent with its federal structure and design. Thus, federal laws may not be enacted that are inconsistent with the separation of the judicial power provided by Ch III of the Constitution. State laws cannot be validly enacted that would be incompatible with the capacity of State courts under s 77(iii) to be invested with federal jurisdiction. Neither federal nor State laws may be enacted that are inconsistent with the implication, 286

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inherent in the creation of accountable democracy in the federal and State legislatures, of representative government necessitating open discussion of matters of political and governmental concern. … By the Constitution, [governmental] powers are to be divided between the several polities in the Commonwealth (the federal, State and Territory jurisdictions). Moreover, within each jurisdiction, most especially within the federal sphere of government, there is an express or implied division of powers, to a greater or lesser extent, between the legislatures, executive governments and courts of the nation.

5.2.2  Four principles and features of the Australian constitutional system will be discussed in this section — rule of law, separation of powers, responsible government, and constitutionalism. The particular importance of those four topics is that they are often talked about by the judiciary and others in defining Australian administrative law, and consequently are represented directly or indirectly in many of its principles. Other concepts and doctrines not discussed here also have a bearing on public law philosophy in Australia. Two examples are, first, the ideology of liberalism, which emphasises the rights that individuals retain within a community; and, second, the doctrine of parliamentary supremacy, which gives pre-eminence to legal rules over competing moral and social claims. While those concepts are not discussed in this book, their importance should not be discounted.

Rule of law 5.2.3  The rule of law is a universal legal principle, but has a meaning that is usually adjusted to the historical and cultural context of a particular country. In the English legal heritage, the rule of law acquired a special meaning and significance that owed much to the writings of an influential English legal writer and historian, Professor Albert Dicey. The following extract from the 10th edition of Dicey’s classic work on British constitutional law repeats a theory proposed in the first edition in 1885. 5.2.4E

AV Dicey, Introduction to the Study of the Law of the Constitution 10th ed, Macmillan, London, 1959 (rep 1960)

When we say that the supremacy of the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean, in the first place, that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint … We mean in the second place, when we speak of the ‘rule of law’ as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. … There remains yet a third and a different sense in which the ‘rule of law’ or the predominance of the legal spirit may be described as a special attribute of English institutions.

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We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons, in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution … Our constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made law …

5.2.5  The universality of the concept of the rule of law is reflected in the acceptance that the rule of law is inherent in the Commonwealth Constitution. As French CJ said in South Australia v Totani 5.3.16C: There are three overlapping assumptions which, as a matter of history and as a matter of inference from the text and structure of Ch III, underlie the adoption of the mechanism reflected in s 77(iii) of the Constitution. The first is the universal application throughout the Commonwealth of the rule of law, an assumption ‘upon which the Constitution depends for its efficacy’.

The extract from Dicey 5.2.4E draws attention to three aspects of the rule of law in the English legal tradition. The first — that government cannot take coercive action against any person except in accordance with clear and existing legal authority — is nowadays reflected most strongly in the principle of legality, studied in greater length in Chapter 8. Three illustrations of this aspect of the rule of law being applied are, first, Entick v Carrington 8.2.7C, holding that government action (the issue and execution of a search warrant) is unlawful unless there is legal authority to support it; second, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (Lim) 5.3.36C, holding that detention without lawful statutory authority is unlawful; and, third, Independent Commission Against Corruption v Cunneen (Cunneen) 8.2.10C, holding by a process of strict statutory construction that the Independent Commission Against Corruption (ICAC) lacked the power to investigate alleged criminal conduct which would affect the efficacy of the exercise of an official function by a public official (the ICAC’s power was instead held to be limited to investigating conduct which has the potential to impair the probity of the exercise of the official’s function). Another feature of the public law system that reflects the influence of this aspect of the rule of law is the scrutiny role played by parliamentary committees in ensuring that subordinate legislation is in accordance with the statute and does not trespass unduly on personal rights and liberties: see 6.4.9E. Dicey’s first aspect of the rule of law also captures the unease towards discretionary power that is reflected in public law tradition in Australia and England. 5.2.6  The second aspect of the rule of law as propounded by Dicey was the legal equality of government and citizens. At the time, this described the existence of a single body and system of law and the courts that applied to all. The courts that heard contract disputes between citizen and citizen could apply the same body of law to a contract dispute between citizen and government. The same courts could also undertake judicial review of government administrative action. Contemporary illustrations are the High Court’s seminal decisions in A v Hayden (No 2) 8.2.8C, holding that governments do not inherently possess power to authorise officials to act in defiance of the criminal law; Bropho v Western Australia (1990) 171 288

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CLR 1, holding that the Crown in right of Western Australia was bound by the Aboriginal Heritage Act  1972 (WA) (which prevented development of sacred Aboriginal sites without ministerial consent); and Ridgeway v R (1995) 184 CLR 19, holding that evidence resulting from the illegal conduct of law enforcement officers which ‘entrapped’ the accused should be excluded in criminal proceedings. 5.2.7  Dicey interpreted the rule of law to exclude administrative law as embodied in the French system of droit administratif. Friedmann described this interpretation as Dicey’s ‘gravest and most unfortunate error’, arguing that systems of administrative courts ‘are now universally recognised to have given greater protection to the individual than the unordered growth of administrative tribunals which, partly as a consequence of Dicey’s error, still dominate the Anglo-American legal systems’: W  Friedmann, Principles of Australian Administrative Law, Melbourne University Press, Melbourne, 1950, p 17. In the fifth edition of Friedmann’s book, published 30 years later, Whitmore argues that Dicey’s lingering influence in Australia led to administrative law being neglected, taught haphazardly and developed in an ‘irrational’ manner: H  Whitmore, Principles of Australian Administrative Law, 5th ed, Lawbook, Sydney, 1980, p 1. 5.2.8  Dicey’s third aspect of the rule of law described the English legal tradition in protecting civil liberties. Individual rights were not secured in a constitutional bill of rights, but in the decisions of the courts elaborating the common law and in construing legislation. Protection of rights grew from the ground up, in the practical rulings given by courts in resolving actual disputes, rather than from the top down in overarching principles that people were expected to observe. Foremost examples of this common law tradition are the tort doctrines of false imprisonment, assault, trespass and defamation, which respectively provide protection of personal liberty, security, property and reputation. Protection of rights is also secured through presumptions of statutory construction, which safeguard fundamental rights such as the rights to quiet enjoyment of property and access to the courts. In Dicey’s time, statutes such as the Habeas Corpus Act of 1679 were an example of statutory protection of rights: see, for example, Coco v The Queen 8.3.31C, holding that legislation is presumed not to abrogate a fundamental right, freedom or immunity other than by express or unambiguous language; and Cunneen 8.2.10C, finding that in relation to ambiguous expressions such as ‘corrupt conduct’, an interpretation should be adopted which least interferes with individual rights. 5.2.9  Dicey’s third aspect leads into a larger debate, occurring today but not in his time, as to whether there is a need for statutory and constitutional protection of rights and freedoms. Statutory protection that has since been enacted, in the form of anti-discrimination and human rights legislation, is described in 4.4.1ff. The debate about constitutional protection is beyond the scope of this work. Dicey’s essential point, though, was less contentious and remains relevant today. It was that courts in the English legal tradition play an important role in protecting individual rights. The rule of law or spirit of legality thereby pervades the constitutional system. This principle is demonstrated throughout this text in decisions by courts and tribunals relating to various topics, including local council regulation (Attorney-General (SA) v Corporation of the City of Adelaide 8.4.29C), compensation for those injured at work (Australian Postal Corporation v  Sinnaiah (2013) 213 FCR 449), and those in domestic or immigration detention: Goldie v Commonwealth 8.3.58C; Plaintiff M70 v Minister for Immigration and Citizenship (2011) 244 CLR 144. 289

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5.2.10  The meaning attributed to the rule of law ‘is bound to be influenced by changing political and social values’: W Friedmann, Principles of Australian Administrative Law, Melbourne University Press, Melbourne, 1950, p 17. The concept is used as both a descriptive and a polemical principle. Nearly all definitions, however, share a core meaning that is directly relevant to administrative law. The focus of the rule of law is upon controlling the exercise of official power by the executive government. Government agencies and officials, from the minister to the desk official, require legal authority for any action they undertake — the principle of legality — and must comply with the law in discharging their functions. Government is not above the law but is subject to it. This contrasts with the position of members of the public: they too are subject to the law, but are free to engage in any activity that is not specifically prohibited. Unlike government, individuals need not point to a source of law in order to move and operate in the world. 5.2.11  The rule of law as so defined has a strong influence on legal and judicial thinking in Australia. There is nowadays frequent mention of the rule of law in judgments and legal writing. Examples include the following observations of French  J in NAAV v  Minister for Immigration & Multicultural & Indigenous Affairs (2002) 123 FCR 298 at 415, and Gleeson CJ and Heydon J in APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 351: French J: Overarching the specific rules governing interpretation there is a constitutional and societal setting in which statutes are to be construed. … The concept of the rule of law plays a normative role as part of this background. It has been called a foundation assumption of the Commonwealth Constitution. Gleeson CJ and Heydon J: The rule of law … is an assumption upon which the Constitution depends for its efficacy. Chapter  III of the Constitution, which confers and defines judicial power … gives practical effect to that assumption.

5.2.12  The rule of law is also frequently called in aid in statutory construction, usually to support a construction that favours the individual against executive action. An illustration is Haneef v  Minister for Immigration and Citizenship (2007) 161 FCR 40, in which the court relied on the rule of law in concluding that the minister’s power to cancel the visa of a person who had an association with someone suspected of being involved in criminal conduct did not encompass an innocent or unwitting association. Beyond examples of this kind, it has been doubted whether the rule of law can have a more specific influence on the formulation of legal principles. This point was made by Gummow and McHugh JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam 11.3.14C: In Australia, the observance by decision-makers of the limits within which they are constrained by the Constitution and by statutes and subsidiary laws validly made is an aspect of the rule of law under the Constitution. It may be said that the rule of law reflects values concerned in general terms with abuse of power by the executive and legislative branches of government. But it would be going much further to give those values an immediate normative operation in applying the Constitution.

To similar effect were the observations of Gummow and Crennan JJ in Thomas v Mowbray (2007) 233 CLR 307: It has been well said that Ch III gives practical effect to the assumption of the rule of law upon which the Constitution depends for its efficacy. But what does the rule of law require? Hence much of the debate in submissions presented in the present case. 290

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Separation of powers 5.2.13  The doctrine of the separation of powers stipulates that the three major organs of the governmental system each perform a single and different function: the legislature enacts laws; the executive applies those laws in individual cases; and, in the event that a dispute arises about the meaning or application of a law, the dispute is resolved conclusively by the judiciary. 5.2.14  Broadly, the objective of the separation of powers is to place checks and balances on the exercise of governmental power, while at the same time ensuring that the different functions of government are discharged by the arm of government that is best suited to the task. The role of the judiciary, under a system of separation of powers, is to undertake judicial review of executive action: see also Attorney-General (NSW) v Quin 7.2.5C. For further discussion of the history and rationale underpinning the separation of powers, see: the observations of Gageler J in Palmer v Ayres (2017) 259 CLR 478 at [43]–[103]; Sir Gerard Brennan, ‘The Parliament, the Executive and the Courts: Roles and Immunities’ in G Carney (ed), The Brennan Lectures 1998–2001, Bond University Press, Gold Coast, 2003; J  Stellios, The Federal Judicature: Chapter III of the Constitution, LexisNexis Butterworths, Sydney, 2010. 5.2.15  The separation of powers as defined in 5.2.13 is not practised in a pure form in Australia. Responsible government is itself a fundamental breach, since ministers both constitute the executive and sit in the parliament. Another breach is the widespread delegation from the legislature to the executive of the power to make subordinate legislation. The amalgamated exercise by some independent regulatory agencies of rule-making, administrative, adjudicative and punitive powers also tilts at, if not breaches, the separation of powers. 5.2.16  The separation of powers is nevertheless important to Australian administrative law, both as to its structure and its operation. The effect is more pronounced on Commonwealth administrative law, because the separation of powers is a constitutionally entrenched doctrine; this is taken up further in 5.3.1. Beyond the constitutional requirements, the pattern generally followed at both Commonwealth and state level has been to allocate to courts the function of judicial review, and to allocate to administrative tribunals the function of merits review. There are some exceptions at state level of bodies that exercise a combination of judicial and administrative functions (for example, the New South Wales Land and Environment Court), but the general pattern is well defined. The distinction between legislative, executive and judicial functions is of structural significance in other areas also: the jurisdiction of the Commonwealth Ombudsman, the scope of the ADJR Act and the requirements of legislative instruments statutes rest on this distinction. See  M  Groves, ‘Federal Constitutional Influences on State Judicial Review’ (2011) 39 Federal Law Review 399. 5.2.17  The division between judicial and executive functions is reflected also in the criteria for lawful decision-making applied by courts, which are premised on a legality/merits distinction. The important role played by courts in the Australian constitutional system is illustrated also by the extension of judicial review into all corners of the executive government. Examples elsewhere in this book include judicial review of actions taken by a vice-regal officer (R v Toohey; Ex parte Northern Land Council 10.2.13C; and FAI Insurances Ltd v Winneke 11.2.17C), by a security intelligence organisation (Church of Scientology Inc v  Woodward 8.2.9C) and of the exercise of prerogative power: Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd 2.3.11C. The separation of legislative and executive roles also has a bearing on administrative 291

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law; an  example is that treaty-making is an executive task but incorporating the treaty into domestic law is a legislative task: see Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 11.3.11–11.3.12.

Responsible government 5.2.18  Government in Australia at both federal and state level is in accordance with the principles of responsible government (also called Westminster or parliamentary government). Responsible government entails that the ministers who control the executive departments of state are members of the parliament, and their right to function as a government continues only while they have the confidence of the lower house of the parliament. The Queen’s representative, the Governor-General or the Governor of a state, is formally the head of the executive. There is a well-established convention that the numerous powers conferred upon the vice-regal officer are exercised at the initiative of, and in accordance with the advice received from, government ministers. 5.2.19  In earlier days, responsible government was a barrier to the development of administrative law. The notional accountability of ministers to the parliament, both for their own and for departmental action, was given as a reason for limiting the scope of administrative law review. In some respects that view still survives, notably in the exclusion of ministerial action from the Commonwealth Ombudsman’s jurisdiction: see  4.2.13. However, political accountability is no longer regarded as all-encompassing and both judicial and tribunal review now extend to ministerial decisions. 5.2.20  The influence of responsible government on administrative law is still keenly felt at an operational level when the criteria for lawful decision-making are being applied. In both Toohey 10.2.13C and FAI 11.2.17C the court held that judicial review could appropriately apply to a decision made by the vice-regal officer, because the control of the function in truth rested with a minister. The view taken in Minister for Immigration and Multicultural Affairs v  Jia 11.5.31C was that the application of administrative law principles to a minister ‘may need to be evaluated in the light of his or her political role, responsibility and accountability’: at 529. Just how far that principle can be taken is not always clear-cut. For example, in Plaintiff S10/2011 v Minister for Immigration and Citizenship 9.3.7C, the High Court held that the minister was not required to observe procedural fairness in deciding whether or not to exercise powers affecting the plaintiffs, because the minister was required to exercise the discretion personally based on the ‘public interest’ and was required to table in parliament an explanation of the decision. Gummow, Hayne, Crennan and Bell JJ observed that: [54] … These provisions confer upon the Minister powers (but not duties) which are to be exercised by the Minister personally and, if exercised, dispense with requirements of the Act. [55] Exercise of these powers is attended in each case by the statutory obligation that the Minister cause a statement to be laid before each House of the Parliament. This is a particular manifestation of that aspect of responsible government which renders individual Ministers responsible to the Parliament for the administration of their departments. … … [100] … The use in the provisions of the Act in question here of language emphatic both of the distinctive nature of the powers conferred upon the Minister (as personal, non-compellable, ‘public interest’ powers), and of the availability of access to the exercise 292

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of those powers only to persons who have sought or could have sought, but have not established their right to, a visa is of determinative significance. It reveals the ‘necessary intendment’ … that the provisions are not attended by a requirement for the observance of procedural fairness.

The influence of the principles of responsible government on administrative law is reflected also in the doctrine that executive power is a source of legal authority for government action: see Chapter 9.

Constitutionalism 5.2.21  Constitutionalism is a principle of limited government. The power exercised by parliament and the executive government is limited in two main ways. The first is by rules, such as the written constitutional rules as to how and by whom laws can be made. The second is by values or principles, such as representative democracy and the rule of law. Constitutionalism is presented at times as a principle that is grounded in the sovereignty of the people, who give authority to the Constitution and whose individual interests survive alongside the collective interests that are represented by government. 5.2.22  If there are limits on government, it is axiomatic that those limits be enforced. Judicial review of both legislative and executive action has long been regarded as the proper mechanism for ensuring legal compliance. This principle is often traced to the decision of the United States Supreme Court in Marbury v  Madison (1803) 5 US (1  Cranch) 137, holding that ‘[i]t is emphatically the province and duty of the judicial department to say what the law is’: at 177. The issue was placed beyond doubt in Australia by s 75(v) of the Constitution conferring an original jurisdiction on the High Court to issue three administrative law remedies against an officer of the Commonwealth. It is also implicit in the Constitution that the limits on power deriving from that source shall be enforced, as explained by Gleeson CJ: Covering clause 5 [of the Commonwealth Constitution] provides that the Constitution, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding ‘on the courts, judges, and people of every State and of every part of the Commonwealth’. It is the binding force of the Constitution, as the basic law, upon courts, that is the source of the power which courts exercise when they review legislative and executive action. [‘Judicial Legitimacy’, address to Australian Bar Association Conference, New York, 2 July 2000]

5.2.23  The doctrines of constitutionalism and separation of powers merge when it comes  to  defining the role of the judiciary. Both conclude in the same principle, that ‘the judicature … declares and enforces the law which determines the limits of the power conferred by statute upon administrative decision-makers’: Corporation of the City of Enfield v Development Assessment Commission 7.5.10C at 152. The implications of that principle are far-reaching for administrative law. One such implication, essentially the theme of Part C of this book, is that the criteria for lawful decision-making have largely been defined and fashioned by courts, originally in discharge of their inherent common law jurisdiction to restrain unlawful executive action. Another, more particular, implication is that there is reluctance by courts to embrace a formal doctrine of judicial deference to agency interpretation of legislation: see 7.5.4ff. Statutory construction is viewed conventionally as a judicial, and not an executive, 293

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task. A related implication is that all powers have limits. A classic and oft-stated expression of that point (though, arguably, an overstated expression of it) was by Farwell LJ in R v Shoreditch Assessment Committee; Ex parte Morgan [1910] 2 KB 859: No tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such jurisdiction: such question is always subject to review by the High Court, which does not permit the inferior tribunal either to usurp a jurisdiction which it does not possess … or to refuse to exercise a jurisdiction which it has and ought to exercise. Subjection in this respect to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction; for the existence of the limit necessitates an authority to determine and enforce it: it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure — such a tribunal would be autocratic, not limited — and it is immaterial whether the decision of the inferior tribunal on the question of the existence or non-existence of its own jurisdiction is founded on law or fact.

A more succinct statement to the same effect was expressed in relation to courts by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell  JJ in Kirk v  Industrial Relations Commission of NSW 5.3.15C at [99]: ‘[T]he supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this court’. See also M Groves, ‘Federal Constitutional Influences on State Judicial Review’ (2011) 39 Federal Law Review 399 at 414. 5.2.24  Legal doctrine has adapted to take account of the fact that the judicial construction of legislation, while conclusive, is not exclusive. Administrative decision-makers face a practical need, before exercising a statutory power, to form a preliminary view as to the scope of that power: see  Re  Adams and the Tax Agents’ Board 5.3.32C. The integration of the judicial and executive roles was noted by the High Court in Corporation of the City of Enfield 7.5.10C: Gleeson CJ, Gummow, Kirby and Hayne JJ: … Brennan  J in Attorney-General (NSW) v  Quin [11.3.9C] … pointed out (at 35–6) … that an essential characteristic of the judicature is that it declares and enforces the law which determines the limits of the power conferred by statute upon administrative decision-makers. … [T]here has never been a pervasive notion that limited government mandated an all-encompassing judicial duty to supply all of the relevant meaning of statutes. Rather, the judicial duty is to ensure that the administrative agency stays within the zone of discretion committed to it by its organic act.

COMMONWEALTH CONSTITUTIONAL PROVISIONS 5.3.1  The special significance of the Commonwealth Constitution is that it is an entrenched constitution, which can be amended only by referendum in the manner stipulated in s 128. Those provisions of the Constitution that are relevant to administrative law are accordingly of overriding importance, being binding on the legislature, executive and judiciary. An alternative way of viewing those provisions is to say that they are constitutional guarantees of the principles enshrined within the provisions. 5.3.2  The features of the Commonwealth Constitution range from the express guarantee of judicial review in s  75(v) to the guarantees and restrictions that are implicit in the 294

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separation of legislative, executive and judicial power. State constitutions for the most part are not entrenched in ways that are relevant to administrative law: see, in particular, Building Construction Employees and Builders Labourers’ Federation v  Minister for Industrial Relations (1987) 7 NSWLR 372, holding that there was no entrenched separation of powers in the New  South Wales  Constitution. A minor exception is that the Victorian Constitution gives some recognition to elements of the administrative law system, and contains a special procedure for amending the Victorian Constitution. The following discussion of provisions and principles in the Commonwealth Constitution is nevertheless relevant to state administrative law. As noted in the discussion below of Kable (NSW) v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 5.3.13 and Kirk 5.3.15C, state legislation can be invalid if it contravenes the constitutional integrity of a state court as a repository of federal judicial power under Ch III of the Constitution or purports to deprive a state Supreme Court of its capacity to review the decisions of inferior courts and tribunals for jurisdictional error. The constitutional practice in states has been to observe the separation of judicial power, albeit not as strictly as occurs at the federal level. The significance of features of the Commonwealth Constitution for state judicial review in light of Kirk is considered at 5.3.14ff.

The separation of powers — legislative power 5.3.3  The Commonwealth Constitution embodies a tripartite separation of governmental functions and agencies in ss 1, 61 and 71: 1. The legislative power of the Commonwealth shall be vested in a Federal Parliament … 61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative … 71. The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other courts as the Parliament creates …

5.3.4  An issue that confronted the High Court at an early stage was whether the delegation by parliament to the executive of the authority to make subordinate legislation was inconsistent with the constitutional separation of powers. The High Court gave a negative answer to that question in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (Dignan) 5.3.5C. 5.3.5C

Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 High Court of Australia

[Section 3 of the Transport Workers Act 1928–29 (Cth) empowered the Governor-General to make regulations with respect to ‘the employment of transport workers’. There were no other substantive provisions of the Act, and the regulations could operate notwithstanding any other Act. The court held that regulations made pursuant to s 3 were valid.] Dixon J: In the course of their judgment [in Re Judiciary and Navigation Acts (1921) 29 CLR 257] Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ said (at 264): The Constitution of the Commonwealth is based upon a separation of the functions of government, and the powers which it confers are divided into three classes —

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Control of Government Action legislative, executive and judicial: New South Wales v Commonwealth at 88. In each case the Constitution first grants the power and then delimits its exercise: Alexander’s Case at 441. In British Imperial Oil Co v Federal Commissioner of Taxation (1925) 35 CLR 422 authority was again denied to the Parliament to invest any part of the judicial power in anything but a Court within Ch III.

From these authorities it appears that, because of the distribution of the functions of government and of the manner in which the Constitution describes the tribunals to be invested with the judicial power of the Commonwealth, and defines the judicial power to be invested in them, the Parliament is restrained both from reposing any power essentially judicial in any other organ or body, and from reposing any other than that judicial power in such tribunals. The same or analogous considerations apply to the provisions which vest the legislative power of the Commonwealth in the Parliament, describe the constitution of the Legislature and define the legislative power. Does it follow that in the exercise of that power the Parliament is restrained from reposing any power essentially legislative in another organ or body? In Baxter and Ah Way (1909) 8 CLR 626 legislation of the Parliament was upheld conferring upon the Executive authority by proclamation to include goods in the category of prohibited imports. The maxim Delegatus non potest delegare was held to afford no ground of objection, and the plenary nature of the legislative power was emphasized. The separation of power was not expressly mentioned … [His Honour then went on to discuss Roche v Kronheimer (1921) 29 CLR 329 and a succession of similar cases which had arisen under s 4 of the War Precautions Act 1914–1916 and in which no objection had been taken to the exercise by the executive of delegated law-making power.] I think the judgment [in Roche] really meant that the time had passed for assigning to the constitutional distribution of powers among the separate organs of government, an operation which confined the legislative power to the Parliament so as to restrain it from reposing in the Executive an authority of an essentially legislative character. I, therefore, retain the opinion which I expressed in the earlier case that Roche v Kronheimer did decide that a statute conferring upon the Executive a power to legislate upon some matter contained within one of the subjects of the legislative power of the Parliament is a law with respect to that subject, and that the distribution of legislative, executive and judicial powers in the Constitution does not operate to restrain the power of the Parliament to make such a law. This does not mean that a law confiding authority to the Executive will be valid, however extensive or vague the subject matter may be, if it does not fall outside the boundaries of Federal power. There may be such a width or such an uncertainty of the subject matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power. Nor does it mean that the distribution of power can supply no considerations of weight affecting the validity of an Act creating a legislative authority. For instance, its relevance is undeniable to the particular problem suggested in In re Initiative and Referendum Act [1919] AC at 945. The interpretation by this Court of Ch III of the Constitution and that of Chs I and II which has now been adopted in view of Roche v Kronheimer, may appear to involve an inconsistency or, at least, an asymmetry, and there are not wanting those who think a course of judicial decision no sufficient warrant for anything so unsatisfactory. But the explanation should be sought not in a want of uniformity in the application to the different organs of government of the consequences of the division of powers among them, but in the ascertainment of the nature of the power which that division prevents the Legislature

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from handing over. It may be acknowledged that the manner in which the Constitution accomplished the separation of powers does logically or theoretically make the Parliament the exclusive repository of the legislative power of the Commonwealth. The existence in Parliament of power to authorize subordinate legislation may be ascribed to a conception of that legislative power which depends less upon juristic analysis and perhaps more upon the history and usages of British legislation and the theories of English law. In English law much weight has been given to the dependence of subordinate legislation for its efficacy, not only on the enactment, but upon the continuing operation of the statute by which it is so authorized. The statute is conceived to be the source of obligation and the expression of the continuing offences against subordinate regulation are offences against the statute … and the rule that upon the repeal of the statute, the regulation fails … Major consequences are suggested by the emphasis laid in Powell’s Case at 291 and in Hodge’s Case at 132 upon the retention by the Legislature of the whole of its power of control and of its capacity to take the matter back into its own hands. After the long history of parliamentary delegation in Britain and the British colonies, it may be right to treat subordinate legislation which remains under parliamentary control as lacking the independent and unqualified authority which is an attribute of true legislative power, at any rate when there has been an attempt to confer any very general legislative capacity. But, whatever may be its rationale, we should now adhere to the interpretation which results from the decision of Roche v Kronheimer. [Gavan Duffy CJ, Starke, Rich and Evatt JJ delivered concurring judgments.]

5.3.6  The ruling in Dignan 5.3.5C that there is no constitutional barrier to the delegation of legislative authority to the executive has been confirmed by later cases and exemplified by legislative practice. Two cases are illustrative. In Radio Corporation Pty Ltd v Commonwealth (1938) 59 CLR 170 the court upheld the validity of a statute empowering the Governor-General by regulation to prohibit the importation of any goods. In Wishart v Fraser (1941) 64 CLR 470 the court upheld the validity of a statute authorising regulations for securing the public safety and defence of the Commonwealth and for prescribing all matters necessary or convenient to be prescribed for the more efficient prosecution of the war. See, generally, M  Aronson, ‘The  Great Depression, This Depression, and Administrative Law’ (2009) 37  Federal Law Review 165. Today, as noted in 6.1.6, the greater volume of legislative rules is in fact contained in subordinate legislation rather than Acts of Parliament. 5.3.7  The only constraint on delegation noted by Dixon J in Dignan 5.3.5C was that a statute enacted by the Commonwealth Parliament must answer the description of a law with respect to a topic in s 51 of the Constitution. There has been no instance in which that principle has been applied to invalidate a law on the basis only of the width of the delegation. However, in Plaintiff S157/2002 v Commonwealth 16.3.17C the joint majority judgment signalled a possible instance, but in terms that invited more questions than were addressed. The joint judgment was responding unfavourably to a submission by the Commonwealth that it would be open to the parliament to enact a law delegating power to the Minister for Immigration ‘to exercise a totally open-ended discretion as to what aliens can and what aliens cannot come to and stay in Australia’: at [101]. After referring to Dignan and noting that the Constitution does not prevent parliament from delegating power in wide and general terms, their Honours cautioned: Gaudron, McHugh, Gummow, Kirby and Hayne JJ: But what may be ‘delegated’ is the power to make laws with respect to a particular head in s  51 of the 297

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Constitution. The provisions canvassed by the Commonwealth would appear to lack that hallmark of the exercise of legislative power identified by Latham CJ in The Commonwealth v Grunseit (1943) 67 CLR 58 at 82, namely, the determination of ‘the content of a law as a rule of conduct or a declaration as to power, right or duty’. Moreover, there would be delineated by the Parliament no factual requirements to connect any given state of affairs with the constitutional head of power [viz, the power to make laws with respect to ‘aliens’: s 51(xix)]. Nor could it be for a court exercising the judicial power of the Commonwealth to supply this connection in deciding litigation said to arise under that law. That would involve the court in the rewriting of the statute, the function of the Parliament, not a Ch III court.

The principle that a power to delegate must find a source in the allocation of legislative power under the Constitution applies with even more force since the decisions in Williams v Commonwealth (No 1) 9.2.30C and Williams v Commonwealth (No 2) 9.2.31C have limited the authority of the Commonwealth Parliament to enter into funding agreements. 5.3.8  In the United States, the Supreme Court has taken a different theoretical stance from that taken in Dignan 5.3.5C; it is doubtful, however, if the practical result is greatly different. In ALA Schechter Poultry Corp v United States 295 US 495 (1935) the Supreme Court held that the constitutional separation of legislative and executive power required that a statute delegating a subordinate law-making authority must specify a standard to guide the exercise of the power. Schechter is only one of two cases in which the principle has been applied to declare a provision invalid, and widespread delegation is commonplace in the United States: see  D  Meyerson, ‘Rethinking the Constitutionality of Delegated Legislation’ (2003) 11 Australian Journal of Administrative Law 45.

The separation of powers — judicial power 5.3.9  The High Court has long treated the separation of judicial power differently from the separation of legislative power. In R  v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) 5.3.10C, the High Court by majority crystallised a dual principle that had been developing over 40 years: that federal judicial power can be conferred only upon a court mentioned in s 71 of the Constitution (a ‘Ch III’ court); and that those courts can only exercise judicial power. The principle, as applied in that case, meant that the Commonwealth Court of Conciliation and Arbitration could not impose a fine on a union that was in breach of an order of the court. To impose a fine was a judicial function and could not be mixed with a non-judicial (or arbitral) function in the way that had been done in establishing the Court of Arbitration. The ruling and the court’s rationale are given in the following brief extract from the joint majority judgment in the Boilermakers’ case. 5.3.10C

R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 High Court of Australia

Dixon CJ, McTiernan, Fullagar and Kitto JJ: In a federal form of government a part is necessarily assigned to the judicature which places it in a position unknown in a unitary system or under a flexible constitution where Parliament is supreme. A federal constitution must be rigid. The government it establishes must be one of defined powers; within those

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powers it must be paramount, but it must be incompetent to go beyond them. The conception of independent governments existing in the one area and exercising powers in different fields of action carefully defined by law could not be carried into practical effect unless the ultimate responsibility of deciding upon the limits of the respective powers of the governments were placed in the federal judicature … The powers of the federal judicature must therefore be at once paramount and limited. The organs to which federal judicial power may be entrusted must be defined, the manner in which they may be constituted must be prescribed and the content of their jurisdiction ascertained. … [I]t is beyond the competence of the Parliament to invest with any part of the judicial power any body or person except a court created pursuant to s 71 and constituted in accordance with s 72 or a court brought into existence by a State … [T]o study Chap III is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested … A number of considerations exist which point very definitely to the conclusion that the Constitution does not allow the use of courts established by or under Chap III for the discharge of functions which are not in themselves part of the judicial power and are not auxiliary or incidental thereto. First among them stands the very text of the Constitution. If attention is confined to Chap III it would be difficult to believe that the careful provisions for the creation of a federal judicature as the institution of government to exercise judicial power and the precise specification of the content or subject matter of that power were compatible with the exercise by that institution of other powers … To one instructed only by a reading of Chap III and an understanding of the reasons inspiring the careful limitations which exist upon the judicial authority exercisable in the Federal Commonwealth of Australia by the federal judicature brought into existence for that purpose, it must seem entirely incongruous if nevertheless they may be conferred or imposed upon the same judicature authorities or responsibilities of a description wholly unconnected with judicial power … [I]t is difficult to see what escape there can be from the conclusion that the Arbitration Court, though under s 51(xxxv) of the Constitution there is legislative power to give it the description and many of the characteristics of a court, is established as an arbitral tribunal which cannot constitutionally combine with its dominant purpose and essential functions the exercise of any part of the strictly judicial power of the Commonwealth. The basal reason why such a combination is constitutionally inadmissible is that Chap III does not allow powers which are foreign to the judicial power to be attached to the courts created by or under that chapter for the exercise of the judicial power of the Commonwealth. [Williams, Webb and Taylor JJ dissented. The decision of the majority of the High Court was affirmed by the Privy Council in Attorney-General (Cth) v The Queen [1957] AC 288.]

5.3.11 The Boilermakers’ case 5.3.10C was an example of a body constituted as a court being invested unconstitutionally with a mixture of arbitral and judicial functions. The later cases in which the doctrine has been applied have usually involved the unconstitutional conferral of a non-judicial function upon a Ch III court, or the unconstitutional conferral of judicial power upon an executive agency. Another situation in which the doctrine has been applied has been the unconstitutional appointment of a Ch  III judge to perform a non-judicial function. As those categories illustrate, two concepts play a defining role in applying the doctrine of separation of judicial power: the concept of a Ch III court, and the concept of judicial power. 299

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Defining a Chapter III court 5.3.12  For most practical purposes there are currently four Ch III courts: the High Court, the Federal Court, the Federal Circuit Court, and the Family Court. A proposal to establish a fifth federal court, the Military Court of Australia, was announced in 2010 following a finding of unconstitutionality of a predecessor, but has not been pursued: see 5.3.19. The distinguishing features of the Ch  III courts are that each is called a court, its members are appointed in accordance with s 72 of the Constitution (by the Governor-General, for a term expiring at a designated age) and the primary function conferred upon the body is a judicial function. 5.3.13  The issue of what can be classified as a court for the purposes of Ch III has another dimension, following the decision of the High Court in Kable (NSW) v  Director of Public Prosecutions (NSW) (1996) 189 CLR 51. The High Court in Kable held that a New South Wales statute was incompatible with Ch III of the Constitution because it authorised the New South Wales  Supreme Court to order the continued imprisonment of Mr  Kable, who had been convicted of the manslaughter of his wife, beyond his term of imprisonment. The principle in Kable was summarised by Gleeson CJ in Fardon v Attorney-General (Qld) (2004) 223 CLR 575, a later case in which the High Court upheld the validity of a state statute which made similar though more general provision for the Supreme Court to order the continuing detention of any prisoner who posed an unacceptable risk of committing a serious sexual offence: The decision in Kable established the principle that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.

5.3.14  The importance of this line of jurisprudence to state courts is illustrated by two other decisions of the High Court: Kirk 5.3.15C and Totani 5.3.16C. In Kirk the High Court held that a state legislature cannot deprive a state Supreme Court of its capacity to review the decisions of inferior courts and tribunals on the ground of jurisdictional error. In Totani the High Court held that a state legislature cannot confer upon a state court (including lower state courts) a function that is incompatible with its role as a court that can exercise federal jurisdiction pursuant to Commonwealth legislation enacted under s 77(iii) of the Constitution. The extract from Totani discusses the inherent characteristics of a ‘court’ and of independent judicial power. The discussion is relevant both to state legislatures and the Commonwealth Parliament, by providing guidance on legislation that may be incompatible with Ch III. 5.3.15C

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 High Court of Australia

[The facts of this decision are provided at 16.4.18C. The following extract from the joint judgment summarises some key points in the judgment.] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ: … (d) Chapter III of the Constitution requires that there be a body fitting the description ‘the Supreme Court of a State’.

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(e) It is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. (f) A defining characteristic of State Supreme Courts is the power to confine inferior courts and tribunals within the limits of their authority to decide by granting relief in the nature of prohibition and mandamus, and … also certiorari, directed to inferior courts and tribunals on grounds of jurisdictional error. (g) If a court has limited powers and authority to decide issues of an identified kind, a privative provision does not negate those limits on that court’s authority. (h) A privative provision in State legislation, which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error, is beyond the powers of the State legislature. It is beyond power because it purports to remove a defining characteristic of the Supreme Court of the State.

5.3.16C

South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39 High Court of Australia

[The South Australian Parliament enacted the Serious and Organised Crime (Control) Act 2008 (SA) (SOCC Act), to control criminal activity associated with motorcycle clubs. The Attorney-General, on the application of the Commissioner of Police, could make a declaration that the members of a club were associated for criminal purposes and that the club presented a risk to public safety and order: SOCC Act s 10. The commissioner could provide ‘criminal intelligence’ to the Attorney-General that was not to be disclosed. Following a declaration, the commissioner could apply to the Magistrates Court of South Australia for a ‘control order’ against a member of a declared organisation. Section 14(1) provided that: ‘The Court must, on application by the Commissioner, make a control order against a person … if the Court is satisfied that the defendant is a member of a declared organisation.’ In May 2009 the Attorney-General of South Australia made a declaration relating to the Finks Motorcycle Club. The Commissioner of Police later applied to the Magistrates Court for a control order against two persons, Hudson and Totani, alleging that each was a member of the Finks Motorcycle Club. Both commenced proceedings in the Supreme Court of South Australia claiming that s 14(1) was invalid. The Full Court upheld that submission by majority. On appeal the High Court by majority also found s 14(1) to be invalid. It was accepted that the Magistrates Court of South Australia was a ‘court of a state’ for the purposes of s 77(iii) of the Constitution, which provides that the Commonwealth Parliament may make laws ‘investing any court of a State with federal jurisdiction’.] French CJ: There is no doubt, and it was not contended otherwise, that the Magistrates Court of South Australia is a court in which the Parliament of the Commonwealth can invest federal jurisdiction under s 71 of the Constitution. Nor is there any doubt, and it was not contended otherwise, that a member of the Magistrates Court is a judge for the purposes of s 79 of the Constitution, which provides that ‘[t]he federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes’. In 2008 there were no fewer than 72 Commonwealth statutes which conferred jurisdiction on the Magistrates Court of South Australia. Established as a court by the State, the Magistrates Court cannot be deprived by the State ‘of those minimum characteristics of the institutional

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independence and impartiality identified in the decisions of this Court’. For, as appears below, the continuing existence of those characteristics is an assumption which underlies Ch III of the Constitution. … The understanding of what constitutes ‘Courts of law’ may be expressed in terms of assumptions underlying ss 71 and 77(iii) in relation to the courts of the States. There are three overlapping assumptions which, as a matter of history and as a matter of inference from the text and structure of Ch III, underlie the adoption of the mechanism reflected in s 77(iii) of the Constitution. The first is the universal application throughout the Commonwealth of the rule of law, an assumption ‘upon which the Constitution depends for its efficacy’. The second is that the courts of the States are fit, in the sense of competent, to be entrusted with the exercise of federal jurisdiction. … The generality of the wording of ss 71 and 77(iii) indicates that the assumption of competence extends to all courts of the States, albeit the supervisory role of the Supreme Courts, as was submitted by the Solicitor-General of the Commonwealth, reinforces the independence and impartiality of inferior State courts and contributes to the fulfilment of the constitutional imperative recognised in Kable. The third assumption is that the courts of the States continue to bear the defining characteristics of courts and, in particular, the characteristics of independence, impartiality, fairness and adherence to the open-court principle. This formulation is deliberately non-exhaustive. In considering the attributes of courts contemplated by Ch III of the Constitution it is necessary to bear in mind the cautionary observation of Gummow, Hayne and Crennan JJ in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 that: ‘It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court’ (at [76]). Nevertheless, as their Honours added: An important element, however, in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial. Essential to that system is the conduct of trial by an independent and impartial tribunal. At the heart of judicial independence, although not exhaustive of the concept, is decisional independence from influences external to proceedings in the court, including, but not limited to, the influence of the executive government and its authorities. Decisional independence is a necessary condition of impartiality. Procedural fairness effected by impartiality and the natural justice hearing rule lies at the heart of the judicial process. The open-court principle, which provides, among other things, a visible assurance of independence and impartiality, is also an ‘essential aspect’ of the characteristics of all courts, including the courts of the States. … The Parliament of a State does not have authority to enact a law which deprives a court of the State of one of its defining characteristics as a court, or impairs one or more of those characteristics. … Application of the principles The text and structure of Ch III of the Constitution postulate an integrated Australian court system for the exercise of the judicial power of the Commonwealth with this Court at its apex. There is no distinction, so far as concerns the judicial power of the Commonwealth, between State courts and federal courts created by the Parliament. The consequences of the constitutional placement of State courts in the integrated system include the following:

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1. A State legislature cannot confer upon a court of a State a function which substantially impairs its institutional integrity and which is therefore incompatible with its role as a repository of federal jurisdiction. 2. State legislation impairs the institutional integrity of a court if it confers upon it a function which is repugnant to or incompatible with the exercise of the judicial power of the Commonwealth. 3. The institutional integrity of a court requires both the reality and appearance of independence and impartiality. 4. The principles underlying the majority judgments in Kable and further expounded in the decisions of this Court which have followed after Kable do not constitute a codification of the limits of State legislative power with respect to State courts. Each case in which the Kable doctrine is invoked will require consideration of the impugned legislation because: the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes.

For legislators this may require a prudential approach to the enactment of laws directing courts on how judicial power is to be exercised, particularly in areas central to the judicial function such as the provision of procedural fairness and the conduct of proceedings in open court. It may also require a prudential approach to the enactment of laws authorising the executive government or its authorities effectively to dictate the process or outcome of judicial proceedings. 5. The risk of a finding that a law is inconsistent with the limitations imposed by Ch III, protective of the institutional integrity of the courts, is particularly significant where the law impairs the reality or appearance of the decisional independence of the court. The validity of s 14(1) of the SOCC Act falls for consideration against that background. French CJ: [His Honour held that s 14(1) was invalid, noting:] Section 14(1) requires the Magistrates Court to make a decision largely pre-ordained by an executive declaration for which no reasons need be given, the merits of which cannot be questioned in that Court and which is based on executive determinations of criminal conduct committed by persons who may not be before the Court. The SOCC Act thereby requires the Magistrates Court to carry out a function which is inconsistent with fundamental assumptions, upon which Ch III of the Constitution is based, about the rule of law and the independence of courts and judges. In that sense it distorts that institutional integrity which is guaranteed for all State courts by Ch III of the Constitution so that they may take their place in the integrated national judicial system of which they are part. Gummow J: … [I]n Gypsy Jokers, Gummow, Hayne, Heydon and Kiefel JJ accepted as a general proposition that legislation which purports to direct the courts as to the manner and outcome of the exercise of their jurisdiction is apt impermissibly to impair the character of the courts as independent and impartial tribunals. … There is, however, a distinction between a legislative grant of jurisdiction and a legislative direction to the courts as to the manner and outcome of the exercise of the jurisdiction. … It is true also that a law such as s 14(1) of the Act, which confers upon a court a power with a duty to exercise it if the court decides that the conditions attached to the power are met, on that ground alone is not to be classified as a legislative attempt to direct the outcome of the exercise of jurisdiction. …

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Control of Government Action

This Court should accept the submission by the respondents that the practical operation of s 14(1) of the Act is to enlist a court of a State, within the meaning of s 77(iii) of the Constitution, in the implementation of the legislative policy stated in s 4 by an adjudicative process in which the Magistrates Court is called upon effectively to act at the behest of the Attorney-General to an impermissible degree, and thereby to act in a fashion incompatible with the proper discharge of its federal judicial responsibilities and with its institutional integrity. Section 14(1) is invalid. … Hayne J: In Fardon, Gummow J made a number of points about the principle for which Kable is authority. They serve to identify a number of issues that fall for consideration in this matter. First, it was a particular combination of features of the New South Wales Act in issue in Kable that led to its invalidity: ‘[t]hese included the apparent legislative plan to conscript the Supreme Court of New South Wales to procure the imprisonment of the appellant by a process which departed in serious respects from the usual judicial process’. Secondly, the essential notion about which the principle in Kable hinges ‘is that of repugnancy to or incompatibility with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system’. Thirdly, an important indication that a particular law is repugnant to, or incompatible with, that institutional integrity is ‘that the exercise of the power or function in question is calculated, in the sense of apt or likely, to undermine public confidence in the courts exercising that power or function’. But perception as to the undermining of public confidence ‘is an indicator, but not the touchstone, of invalidity; the touchstone concerns institutional integrity’. … In summary, then, s 14(1) requires the Magistrates Court to perform functions that have the following characteristics: (a) upon application by the Executive, the Magistrates Court must make a control order against a person who is shown to be a member of a declared organisation; (b) a control order imposes significant restrictions on the defendant’s freedom of association, over and above the restrictions that are generally applicable to others dealing with members of declared organisations; (c) a control order must be imposed without any judicial determination (and without the need for any executive determination) that the defendant has engaged, or will or may engage, in criminal conduct; (d) a control order will preclude the defendant’s association with others in respect of whom there has been no judicial determination (and without the need for any executive determination) that those others have engaged, or will or may engage, in criminal conduct; (e) a control order creates new norms of conduct, contravention of which is a crime; (f) making a control order neither depends upon, nor has the consequence of, ascertaining, declaring or enforcing any existing right or liability, whether of the defendant, any other member of the subject organisation, the subject organisation itself, or any other organisation (declared or not). All of these features of the task that is given to the Magistrates Court are important to the conclusion that performance of that task is repugnant to, or incompatible with, the institutional integrity of the Court. The task is repugnant to, or incompatible with, the institutional integrity of the Court because the Court is enlisted, by the Executive, to make it a crime, for particular persons upon whom the Executive fixes, to associate together when, but for the Court’s order,

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the act of association (as distinct from repeated and persistent associations of the kind with which s 35 deals) would not be a crime. Those whom the Executive chooses, for the compulsory imposition of a special regime by order of the Magistrates Court, must be drawn from a group determined by the Executive to be an organisation that ‘represents a risk to public safety and order in [the] State’. But it is no part of the function of the Magistrates Court under SOCCA to determine what the particular defendant has done, or may do in the future. The Court is required to act on the assumption that ‘membership’ of a declared organisation requires imposition of limitations on the freedom of the defendant which are not otherwise imposed, when the legislation does not make either the fact of membership of the organisation, or the continued existence of the organisation, unlawful. That is, upon the motion of the Executive, the Court is required to create new norms of conduct, that apply to a particular member of a class of persons who is chosen by the Executive, on the footing that the Executive has decided that some among the class (who may or may not include the defendant) associate for particular kinds of criminal purposes. It is not the business of the courts, acting at the behest of the executive, to create such norms of conduct without inquiring about what the subject of that norm has done, or may do in the future. To be required to do so is repugnant to the institutional integrity of the courts. … The courts are not to be used as an arm of the Executive to make unlawful the association between individuals when their associating together is not otherwise a crime, where such prohibition is to be imposed without any determination that the association of the particular individuals has been, will be, or even may be, for criminal purposes. [Gummow J, Hayne, Crennan, Bell and Kiefel JJ delivered concurring judgments. Heydon J dissented.]

5.3.17 Following Totani 5.3.16C, in Wainohu v  State of New South Wales  5.3.51C the High Court found invalid New South Wales legislation which empowered a judge appointed persona designata to make a declaration that an organisation was a criminal organisation, including because the declaration could be made without reasons and had the consequence that control orders could be made against members of the organisation. The High Court has subsequently dismissed a number of further challenges to legislation on the basis of the Kable doctrine: • In Public Service Association and Professional Officers’ Association Amalgamated of NSW v  Director of Public Employment (2012) 250 CLR 343 the court upheld the validity of a provision of the Industrial Relations Act  1996 (NSW) that required the New South Wales Industrial Relations Commission (which included judicial members) to give effect to regulations declaring aspects of government policy.

• In Assistant Commissioner Michael James Condon v Pompano Pty Ltd (2013) 252 CLR 38 the court considered provisions of the Criminal Organisation Act 2009 (Qld) which empowered the Supreme Court, following partially closed hearings and relying on secret ‘criminal intelligence’ not disclosed to the respondents, to make a declaration that an organisation was a ‘criminal organisation’. That declaration would expose the organisation’s members and associates to various kinds of orders ‘for the purpose of disrupting and restricting the activities of organisations involved in serious criminal activity’. The High Court upheld the validity of the provisions, while acknowledging that they departed from the usual incidents of judicial process, on the basis that the Supreme Court retained the capacity to act fairly 305

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and impartially. (Compare Graham v Minister for Immigration and Border Protection 5.3.58C in which the High Court held that a legislative provision was invalid to the extent that it prevented a court from examining documents relied on by a decision-maker whose decision was being judicially reviewed.)

• In Attorney-General (NT) v Emmerson (2014) 307 ALR 174 the High Court upheld the validity of a legislative scheme which provided for the forfeiture of property of serial drug traffickers. The legislation enabled the Supreme Court to declare a person to be a ‘drug trafficker’ if they had been convicted three or more times of certain offences within a 10-year period. Once that declaration was made, the person’s property could be given away without further court order. A majority of the High Court held that the scheme was not incompatible with the maintenance of the Supreme Court’s institutional independence and impartiality because, among other things, a declaration was to be made on the basis of evidence proved to the civil standard and the legislation was not ad hominem. • In Pollentine v  Bleijie (2014) 311 ALR 332 the High Court considered the validity of legislation which empowered a trial judge to make orders for the indefinite detention of a person convicted of an offence of a sexual nature relating to a child, if two medical practitioners had assessed that person as ‘incapable of exercising proper control over [his or her] sexual instincts’. The High Court held that the Kable doctrine was not infringed because the court retained the discretion to direct detention and the court’s decision was to be informed by medical opinion on the risk of reoffending.

• In North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569, the High Court considered a challenge based on the Kable doctrine to new Northern Territory police arrest and detention powers, known as the ‘paperless arrest’ scheme. Division 4AA of the Police Administration Act (NT) empowered a police officer to arrest a person without a warrant if the officer believed, on reasonable grounds, that the person had committed or was about to commit an ‘infringement notice offence’. A person could be held for four hours (or longer if the person was believed to be intoxicated) after which time they may be released unconditionally, on bail, with an infringement notice, or brought before a justice of the peace or a court. There was no judicial oversight of the detention decision. A majority of the High Court held that, properly construed, the police were not exercising powers that were penal or punitive in character and the scheme did not impair, undermine or detract from the institutional integrity of the Northern Territory courts. Division 4AA, properly construed, allowed only authorised members of the Police Force to detain a person for so long as reasonably practicable for them to make a determination about whether the person should be released or brought before a court. • In Duncan v  ICAC (2015) 256 CLR 83, the High Court considered a challenge to New South Wales legislation that retrospectively validated acts done by ICAC before the High Court’s decision in Cunneen 8.2.10C. The High Court rejected the challenge, finding that a statute which alters substantive rights does not involve an interference with judicial power contrary to Ch III of the Commonwealth Constitution, even if the rights are in issue in pending litigation.

• Finally, in Knight v Victoria [2017] HCA 29, the High Court confirmed that a law targeted at ensuring a particular convicted person does not get parole, does not interfere with the judicial power exercised earlier in setting the criminal sentence, in circumstances where the non-parole order requires that the person not be released before a particular date. The 306

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court held that, by making it more difficult for Mr Knight to obtain a parole order after the expiration of his minimum term, the law did not contradict the minimum term fixed by the court, nor did it make the sentence more punitive or burdensome to liberty. 5.3.18  It is unresolved whether the restrictions imposed upon the Commonwealth Parliament by Ch III are stricter than those imposed on state legislatures. There were, however, suggestions to that effect in HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 at [14]; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; and by French CJ in Totani 5.3.16C. 5.3.19 In Lane v Morrison (2009) 239 CLR 230 the High Court held that the Australian Military Court set up in 2007, though called a court, was not a Ch III court because there was a right of appeal from the court to the Defence Force Discipline Appeals Tribunal, itself not a ‘court’. Other bodies that have been held not to be courts for Ch  III purposes are the New  South Wales  Administrative Decisions Tribunal (Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; Sunol v Collier (2012) 81 NSWLR 619); the Tasmanian Anti-Discrimination Tribunal (Commonwealth v  Anti-Discrimination Tribunal (Tas) (2008) 169 FCR 85); and the Victorian Civil and Administrative Tribunal (Qantas Airways Ltd v Lustig [2015] FCA 253). In Burns v Corbett; Gaynor v Burns (2017) 343 ALR 690 the New South Wales Court of Appeal held that, as the NSW Civil and Administrative Tribunal (NCAT) is not a ‘court of a state’, it is unable to exercise judicial power to determine matters between residents of two states. That is because the state law authorising the tribunal to do so is inconsistent with the conditional investment by s 39(2) of the Judiciary Act 1903 (Cth) of all such jurisdiction in state courts. The High Court affirmed the decision in Burns v Corbett [2018] HCA 15 3.2.6C. In Zistis v Zistis [2018] NSWSC 722, the New South Wales Supreme Court concluded that NCAT was not a ‘court of a state’ (see the discussion of these decisions in 3.2.5). By contrast, the New South Wales Equal Opportunity Tribunal has been classified as a court of a state for the purposes of Ch III (Australian Postal Corporation v Dao (No 2) (1986) 66 NSWLR 497 at 515), as was the Queensland Civil and Administrative Tribunal (Owen v Menzies [2013] 2 Qd R 327; (2012) 293 ALR 571). 5.3.20  There is extensive literature demonstrating the significance of Kable and Kirk to the Australian constitutional and administrative law framework: see  5.3.21. The implications of these developments for the content and scope of judicial review are considered further below and in Chapter 7. The continuing development of constitutional implications derived from the separation of powers based on the Constitution’s descriptor of a ‘court of a state’ has not been without criticism in this literature. For example, Burton Crawford notes that ‘[o]ne might be suspicious that so much legal content could be shoe-horned into relatively spartan words and phrases’: L Burton Crawford, ‘The Entrenched Minimum Provision of Judicial Review and the Limits of Law’ (2017) 45 Federal Law Review 569 at 588. Twomey notes that courts are left to ‘fill the bucket’ by providing substantive content to broad, vague notions of the institutional features of state courts (such as independence, impartiality, openness): A Twomey, ‘The Defining Characteristics of Constitutional Expressions and the Nationalisation of the State Court System’ (2013) 11(2) The Judicial Review 233 at 237. And Groves and Boughey note that ‘[t]he reasoning in Kirk surprised most observers and is not supported by either the text or history of the Constitution, but it arguably represents a logical step in Australian law … the step required to place State courts in the same constitutionally protected position [as federal courts] is a relatively small and arguably natural one’: M Groves and J Boughey, ‘Administrative Law in the Australian Environment’ in M Groves (ed), Modern Administrative 307

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Law in Australia: Concepts and Context, Cambridge University Press, Port Melbourne, 2014, ch 1 at p 21. Perhaps most stridently, Goldsworthy concludes that the leap in Kirk represents a form of ‘judicial statesmanship’, involving the subordination of legal norms to higher norms of political morality: [A]t least some of the judges have pursued a proactive agenda of expanding the scope of Chapter III of the Constitution, with respect to state courts, well beyond its actual scope. Their agenda has been a noble one — to enlarge the Constitution’s protection of judicial independence and the rule of law, creating greater symmetry between the constitutional standing of Commonwealth and state courts, and enhancing the security of due process rights. [ J Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (2014) 40 Monash University Law Review 75 at 76]

5.3.21  For further discussion of the Kable doctrine and separation of powers in the states, see D Kerr, ‘State Tribunals and Chapter III of the Australian Constitution’ (2007) 31 Melbourne University Law Review 622; M Groves, ‘Federal Constitutional Influences on State Judicial Review’ (2011) 39 Federal Law Review 399; R Sackville, ‘The Constitutionalisation of State Administrative Law’ (2012) 19 Australian Journal of Administrative Law 127; A Twomey, ‘The Defining Characteristics of Constitutional Expressions and the Nationalisation of the State Court System’ (2013) 11(2) The Judicial Review 233; M Groves and J Boughey, ‘Administrative Law in the Australian Environment’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context, Cambridge University Press, Port Melbourne, 2014, ch  1; S  Young, ‘Privative Clauses: Politics, Legality and the Constitutional Dimension’ in M  Groves (ed), Modern Administrative Law in Australia: Concepts and Context, Cambridge University Press, Port Melbourne, 2014, ch 13; J Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (2014) 40 Monash University Law Review 75; G Appleby and A Olijnyk, ‘The Impact of Uncertain Constitutional Norms on Government Policy: Tribunal Design after Kirk’ (2015) 26 Public Law Review 91; J  Basten, ‘Judicial Review in State Jurisdiction’ (2016) 84 AIAL Forum 10; L Burton Crawford, ‘The Entrenched Minimum Provision of Judicial Review and the Limits of Law’ (2017) 45 Federal Law Review 569.

Defining federal judicial power 5.3.22  The definition of federal judicial power is less straightforward. In the first place, there are some functions that are inherently or exclusively judicial. Examples are the power to sentence a person to a term of imprisonment, to impose a monetary fine, to issue a coercive order such as an injunction, or to make a binding and conclusive declaration of the law: see Brandy v  Human Rights and Equal Opportunity Commission 5.3.28C and Lim 5.3.36C. Beyond that, it  is difficult to be definitive and categorical. Definitions have been proffered, but these are largely overshadowed by a principle — the ‘borderland’ principle, as it is colloquially called — which is noted in 5.3.23 and 5.3.39. Two classic definitions of judicial power were given by Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 and Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 (Tasmanian Breweries) at 374: Griffith CJ: [T]he words ‘judicial power’ as used in sec 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power 308

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to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.

Kitto J: [ J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified.

5.3.23  Courts are quick to concede that those definitions do not establish a bright line that differentiates judicial from non-judicial power. Instead, the governing principle in applying the doctrine of separation of judicial power was stated by Kitto J in Tasmanian Breweries: The uncertainties that are met with arise, generally if not always, from the fact that there is a ‘borderland in which judicial and administrative functions overlap’ (Labour Relations Board of Saskatchewan v John East Iron Works Ltd [1949] AC 134, at p 148), so that for reasons depending upon general reasoning, analogy or history, some powers which may appropriately be treated as administrative when conferred on an administrative functionary may just as appropriately be seen in a judicial aspect and be validly conferred upon a federal court … [P]owers conferred upon a tribunal] must, of course, be performed in a judicial manner, that is to say with judicial fairness and detachment, but the same is true of many administrative powers.

A further elaboration of the ‘borderland’ principle is given in Precision Data Holdings Ltd v Wills 5.3.26C. It has also been called the ‘chameleon doctrine’: Thomas v Mowbray (2007) 233 CLR 307 at 413, 425–7 (Kirby J) and 467 (Hayne J). 5.3.24  The relevance of those principles to administrative law has been felt distinctly in a few areas that will now be examined. Federal judicial power issues also arise in many other areas not examined in this book.

Conferral of functions upon federal administrative tribunals 5.3.25  Administrative tribunals and executive agencies perform functions that are not dissimilar to the exercise of judicial power by courts: they resolve and adjudicate disputes by a process that involves determining factual claims, construing and applying legislation, making orders for the production of documents, examining witnesses and making decisions that are accepted as authoritative by the parties. A long line of cases has held that an adjudicative function of that kind can validly be given to an administrative tribunal: see, for example, 5.3.23. The decisions in those and other cases illustrate the principle that there are many powers and functions that can be conferred upon either an executive or a judicial body: the ‘power or function takes its character as judicial or administrative from the nature of the body in which the parliament has located it’: White v Director of Military Prosecutions (2007) 231 CLR 570; 309

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235 ALR 455 at 469 (Gummow, Hayne and Crennan JJ). This point and the limitations applying to it are well illustrated by the following discussion in Precision Data 5.3.26C and Brandy 5.3.28C: the former case upheld the conferral of an adjudicative function on an executive agency, while the latter declared the conferral to be invalid. Both cases focus on three features of the definitions of judicial power given in 5.3.22ff: whether the adjudication of the executive body results in a conclusive determination, whether the adjudication is about existing rights and obligations, and whether the criteria being applied have the hallmark of being legal, rather than policy, standards. 5.3.26C

Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; 104 ALR 317 High Court of Australia

[The Australian Securities Commission Act 1989 (Cth) established a Corporations and Securities Panel, which was authorised to exercise the powers referred to in ss 733 and 744 of the Corporations Law. The Australian Securities Commission could apply to the panel to declare under s 733 that conduct or acquisition of shares by a company was ‘unacceptable’, and to make consequential orders under s 744, including an order for the disposal of the shares, or to prohibit the exercise of voting rights. The High Court held that this did not constitute an invalid conferral of federal judicial power on the panel.] Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ: [T]he declarations for which s 733 provides are not binding declarations of right in the sense in which that term is used, more particularly in the context of the exercise of judicial power. That is because the adjudication which the Panel under s 733 is called upon to make is not an adjudication of a dispute about rights and obligations arising solely from the operation of the law on past events or conduct. The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. … Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power. It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised. So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power … That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles. Furthermore, if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power. … When the function to be performed by the Panel under s 733 is examined in the light of the principles stated above, it becomes apparent that the decision to be made by the Panel is

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not an adjudication of a dispute about existing rights and obligations. The Commission alone can institute proceedings before the Panel and invoke an exercise of its authority. In applying for a declaration under s 733, the Commission is not seeking the vindication of any right or obligation; a declaration, when made, does not resolve an actual or potential controversy as to existing rights. Nor does the Panel, in granting or refusing a declaration, make its decision solely by reference to the application of the law to past events or conduct. Although the function entrusted to the Panel is that of making a declaration about past events or conduct, the function is one in which the Panel is bound to take account of the considerations of commercial policy mentioned in s 731 (‘[T]he desirability of ensuring that the acquisition of shares in companies takes place in an efficient, competitive and informed market’), and ‘any other matters the Panel considers relevant’ in arriving at the conclusion that it is in the public interest to make a declaration, as well as to apply the provisions of ss 732 and 733 to the facts which it finds. Furthermore, the object of the inquiry undertaken by the Panel and of the declaration which it makes under s 733 is to enable the Panel to make one or more of the orders set out in s 734. In other words, the object of the Panel’s inquiry and determination is to create a new set of rights and obligations, that is, rights and obligations arising from such orders as the Panel may make in a particular case, being rights and obligations which did not exist antecedently and independently of the making of the orders. It follows from what has already been said that, in creating that new set of rights and obligations, considerations of policy, including commercial policy, as well as factors not specified by the legislature yet deemed relevant by the Panel, on which it may form a subjective judgment, must inevitably play a prominent part. … [W]here, as here, the function of making orders creating new rights and obligations is reposed in a tribunal which is not a court and considerations of policy have an important part to play in the determination to be made by the tribunal, there is no acceptable foundation for the contention that the tribunal, in this case the Panel, is entrusted with the exercise of judicial power. The fact that the Panel is given a power to make orders conditionally upon its having declared the acquisition to have been an unacceptable acquisition or the conduct to have been unacceptable conduct does not indicate that the Panel is exercising judicial power in making the declaration or subsequently in making orders. As the making of a declaration necessarily proceeds in part, at least, from an assessment of considerations of commercial policy, not solely from an application of the law to the facts as found, neither the making of a declaration nor the making of orders is binding in the same sense that a judicial determination would be binding. Both are subject to judicial review. The consequence is that … the Panel does not exercise judicial power in making or refusing a declaration under s 733 or in making or refusing orders under s 734.

5.3.27  The statutory scheme considered by the court in Precision Data 5.3.26C was later restructured, with the Corporations and Securities Panel being replaced by a Takeovers Panel. An objective of the new scheme was to expand the function of the panel and the orders it could make, and limit the power of a court to grant a judicial remedy during a takeover bid period. A fresh challenge to the constitutionality of this new scheme was rejected by the High Court in Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 (reversing the decision of the Full Federal Court). Three factors were noted by the High Court in concluding that the function of the Takeovers Panel was administrative and not exclusively judicial: first, in addition to ascertaining disputed factual and legal issues, the panel could create new rights and obligations by reference to policy considerations; second, the restrictions on judicial review of matters 311

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before the panel were neither permanent nor absolute; and third, the broad membership of the panel and the way that it was to go about its business indicated that it was to make commercial as well as legal judgments. 5.3.28C

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; 127 ALR 1; 37 ALD 340 High Court of Australia

[The Human Rights and Equal Opportunity Commission (HREOC), in deciding a complaint under the Racial Discrimination Act 1975 (Cth), could make a determination awarding compensation to an aggrieved party. If a determination was registered in the Federal Court (s 25ZAA), it was to have effect and be enforced ‘as if it were an order made by the Federal Court’: s 25ZAB. The person against whom the order was made could apply to the court for the determination to be reviewed. The court could review all issues of fact and law, but new evidence was not to be introduced except by leave of the court: s 25ZAC. HREOC in the present case had made a determination awarding damages to Mr Bell, an officer of the Aboriginal and Torres Strait Islander Commission (ATSIC), against another ATSIC officer, Mr Brandy. In an action commenced by Mr Brandy, the High Court held that the Act invalidly conferred judicial power upon HREOC.] Deane, Dawson, Gaudron and McHugh JJ: Difficulty arises in attempting to formulate a comprehensive definition of judicial power not so much because it consists of a number of factors as because the combination is not always the same. It is hard to point to any essential or constant characteristic. Moreover, there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not. [Their Honours referred to Precision Data 5.3.26C.] One is tempted to say that, in the end, judicial power is the power exercised by courts and can only be defined by reference to what courts do and the way in which they do it, rather than by recourse to any other classification of functions. But that would be to place reliance upon the elements of history and policy which, whilst they are legitimate considerations, cannot be conclusive. It is traditional to start with the definition advanced by Griffith CJ in Huddart, Parker and Co Proprietary Ltd v Moorehead [reproduced at 5.3.22]. … However, it is not every binding and authoritative decision made in the determination of a dispute which constitutes the exercise of judicial power. A legislative or administrative decision may answer that description. … However, there is one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal. That is the enforceability of decisions given in the exercise of judicial power. In Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR at 451 Barton J said: It is important to observe that the judicial power includes with the decision and the pronouncement of judgment the power to carry that judgment into effect between the contending parties. Whether the power of enforcement is essential to be conferred or not, when it is conferred as part of the whole the judicial power is undeniably complete. … However … it is not essential to the exercise of judicial power that the tribunal should be called upon to execute its own decision. As Dixon CJ and McTiernan J observed

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in R v Davison (1954) 90 CLR at 368, an order of a court of petty sessions for the payment of money is made in the exercise of judicial power, but the execution of such an order is by means of a warrant granted by a justice of the peace as an independent administrative act … Turning to the present case, it is apparent that the Commission’s functions point in many respects to the exercise of judicial power. It decides controversies between parties and does so by the determination of rights and duties based upon existing facts and the law as set out in Pt II of the Racial Discrimination Act. Indeed, the relevant function of the Commission is essentially to determine whether the provisions of ss 9 and 15, which prohibit certain kinds of racial discrimination, have been contravened. That is clearly indicative of the exercise of judicial power. …’ Moreover, the remedies which the Commission may award include damages as well as declaratory or injunctive relief and, according to whether they may be viewed as punitive or otherwise, make its functions closely analogous to those of a court in deciding criminal or civil cases. … However, if it were not for the provisions providing for the registration and enforcement of the Commission’s determinations, it would be plain that the Commission does not exercise judicial power. That is because, under s 25Z(2), its determination would not be binding or conclusive between any of the parties and would be unenforceable. That situation is, we think, reversed by the registration provisions. Under s 25ZAA registration of a determination is compulsory and under s 25ZAB the automatic effect of registration is, subject to review, to make the determination binding upon the parties and enforceable as an order of the Federal Court. Nothing that the Federal Court does gives a determination the effect of an order. That is done by the legislation operating upon registration. The result is that a determination of the Commission is enforceable by execution under s 53 of the Federal Court Act. It is the determination of the Commission which is enforceable and it is not significant that the mechanism for enforcement is provided by the Federal Court. The situation stands in contrast to the situation which was superseded by the 1992 amendments to the Racial Discrimination Act. Under the earlier provisions, the Federal Court had to be satisfied of a breach of the Act before making an order for itself. The Commonwealth, intervening, submitted that by virtue of the review procedure provided by s 25ZAC the registration of a determination is the commencement of proceedings in the Federal Court so that if a determination becomes enforceable it is by reason of the adjudication of the Federal Court, that being a court constituted in accordance with Ch III of the Constitution and capable of exercising judicial power. The plain answer to that submission is that a registered determination may not be subjected to review but has effect as an order of the court from the moment of registration. True it is that it cannot be enforced pending the institution or completion of a review, but it remains an order of the Court. The right to review is exercisable only by a respondent to a determination. If he or she fails to apply for review within 28 days, the determination becomes enforceable forthwith. … … [Sections] 25ZAA, 25ZAB and 25ZAC, which combine to make a determination of the Commission binding, authoritative and enforceable, invalidly purport to invest judicial power in the Commission. [Mason CJ, Brennan and Toohey JJ delivered a judgment to the same effect.]

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5.3.29  The objective of the legislative scheme declared invalid in Brandy 5.3.28C, was to simplify the procedure for hearing discrimination claims, by reducing the prospect that a complaint would be determined twice, initially by HREOC and then by the Federal Court in enforcement proceedings. Subsequent to the court’s decision in Brandy the scheme was altered to confer jurisdiction upon the Federal Court and the Federal Magistrates Court (now the Federal Circuit Court) to determine discrimination claims: see 4.4.9. The reason, in part, that a mechanism for judicial enforcement was built into this anti-discrimination scheme was the belief that parties (especially private parties who are subject to the anti-discrimination laws) might not abide by an order made by an executive agency such as HREOC (now the Australian Human Rights Commission (AHRC)). There is no similar procedure for judicial enforcement of tribunal orders contained in the statutes establishing the Administrative Appeals Tribunal (AAT). At the same time, it has become common for some of the state and territory civil and administrative review tribunals to provide that certain decisions may be registered in courts and enforced without further judicial order: Australian Capital Territory Civil and Administrative Tribunal Act  2008 (ACT) s  71; Northern Territory Civil and Administrative Tribunal Act (NT) ss 84, 84A; Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 132(2); South Australian Civil and Administrative Tribunal Act 2013 (SA) s 89; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 122; State Administrative Tribunal Act 2004 (WA) s 86. The jurisdiction of those tribunals is to make orders against government agencies and officials. It is expected that the orders will be complied with. In the event that a tribunal order was ignored, a party could commence proceedings under the ADJR Act in the Federal Court to enforce the tribunal’s order. 5.3.30  The question of enforcement of tribunal decisions arose also in Attorney-General (Cth) v Breckler (1999) 197 CLR 83. The High Court held (reversing a decision of the Full Federal Court) that the Superannuation Complaints Tribunal was not invalidly invested with judicial power. The tribunal was established by a Commonwealth Act and had jurisdiction upon receiving a complaint from a member of a superannuation fund to review a decision made by a trustee of the fund. The legislation provided that a trustee ‘must not fail, without lawful excuse, to comply with an order, direction or determination’ of the tribunal. The High Court gave three reasons for distinguishing Brandy 5.3.28C and upholding the validity of the scheme. First, a superannuation fund could elect to become part of the scheme and be subject to the jurisdiction of the tribunal; doing so would give the fund access to a taxation benefit available to funds which so elected. Second, a superannuation fund’s membership of the scheme, and the conferral upon members of the fund of the right to initiate proceedings in the tribunal, was effected by an alteration of the trust instrument between a trustee and the members. The instrument imposed an obligation upon the trustee to heed the legislative requirement to accept the decisions of the tribunal as binding. Third, the tribunal’s decisions were not conclusive for all purposes, but could be the subject of collateral challenge in proceedings to compel enforcement of a tribunal decision. The decisions were thus more appropriately described ‘as a criterion by reference to which legal norms are imposed and remedies provided for their enforcement’: at 111. 5.3.31  Adams 5.3.32C (which was the first decision of the newly-established AAT) expounded a limitation upon federal administrative tribunals that stems from the separation of judicial power. It was held in Adams that a tribunal cannot rule on the constitutional validity of legislation being applied by the tribunal. However, a tribunal (alike with any administrator) has legal competence to consider in a non-conclusive manner the limits of its own authority, including constitutional restrictions on its power, in order to mould its conduct to conform to those limits. 314

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5.3.33

Re Adams and the Tax Agents’ Board (1976) 1 ALD 251 Administrative Appeals Tribunal

[As required by s 251K(3) of the Income Tax Assessment Act 1936 (Cth), the registration of Mr Adams as a tax agent was cancelled by the Tax Agents’ Board after he was declared bankrupt. Mr Adams appealed against the decision of the board to the tribunal, arguing that s 251K(3) was unconstitutional because it was not a law relating to taxation within the meaning of s 51(ii) of the Constitution. The tribunal dismissed the appeal.] Brennan J: Neither the Tribunal nor the Board is vested with that power to which the Constitution refers as the judicial power of the Commonwealth. It is to a court in which the judicial power of the Commonwealth is vested that questions of constitutional validity of federal legislation are submitted for decision. A definitive answer to a question of constitutional validity requires the exercise of that judicial power, and can therefore be given only by a court in which that judicial power is vested … It follows that neither the Tribunal nor the Board can give a definitive answer to the question of constitutional validity. It is one thing to deny to the Tribunal and the Board the power definitively to answer the question; it is another thing to deny their competence to consider and to reach an opinion on the question. An opinion formed by an administrative body on such a question does not, however, produce any effect in point of law. It is incapable of adding to or subtracting from any authority or purported authority conferred by the challenged statute. It is incapable of affecting any legal requirement as to the exercise of an authority actually conferred upon the administrative body. Fullagar J stated the legal sterility of an administrative opinion as to the constitutional validity of a provision purportedly conferring power when he said in Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 258: ‘The validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act, that the law or the consequence of the act is within the constitutional power upon which the law in question itself depends for its validity.’ An administrative body cannot therefore lawfully exercise authority merely because it is of the opinion that it has the authority. Its opinion is not the charter of its powers and discretions. … When an administrative body declines to exercise a power in consequence of its opinion as to the limits of the authority conferred upon it by statute, the administrative body thereby seeks to conform with the expressed will of the legislature. But if an administrative body declines to exercise a power in consequence of its opinion that the legislature could not confer the relevant authority upon it, the will of the legislature expressly conferring that authority would, at least for a time, be overridden. Moreover, that will would be overridden without judicial consideration. A consequence of such gravity throws doubt upon the proposition that an administrative body ought ever to consider the constitutional validity of a statute affecting its power.

5.3.33  Some other points of special relevance to federal administrative tribunals can be noted briefly. First, as held in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd 3.3.14C, an administrative tribunal can examine whether the decision under review was lawfully made, provided the tribunal’s decision is appealable to or reviewable by a court. Second, it has been assumed (but not without doubt) that a tribunal can grant relief on the basis that subordinate 315

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legislation is ultra vires the enabling statute: Re  Jonsson and Marine Council (No 2) (1990) 12 AAR 323; Re Neviskia Pty Ltd, Saitta Pty Ltd and Department of Health and Aged Care (2000) 32 AAR 129; Radio 2UE Sydney Pty Ltd v Burns (EOD) [2005] NSWADTAP 69. The justification for that view is that subordinate legislation is made in the exercise of executive power, and the jurisdiction of a tribunal extends to deciding issues of executive validity. Third, the right to appeal to a court from the decision of a tribunal is restricted usually to ‘questions of law’: see  13.5.2. By implication, the decision of the tribunal on issues of fact is conclusive, barring judicial review. The constitutionality of this restriction has been accepted.

Conferral of functions upon federal executive agencies 5.3.34  The foregoing principles, dealing with the conferral of adjudicative functions upon tribunals, also hold true for executive agencies generally. There are many analogous functions discharged by executive officials that have survived constitutional challenge on separation of powers grounds. Notably, the disciplinary function has generally been regarded as an administrative rather than a judicial function, as the following three cases illustrate. In R v White; Ex parte Byrnes (1963) 109 CLR 665, the High Court upheld the validity of a public service disciplinary tribunal. The disciplinary function was not regarded as a judicial function, but as a definition of misconduct on the part of a public servant warranting disciplinary action by the employer. In Australian Communications and Media Authority v  Today FM (Sydney) Pty Ltd 5.3.37C the High Court held that an executive agency has the power to make an administrative finding, or express an opinion that a person has committed a criminal offence, in the course of carrying out the agency’s statutory investigative and licensing functions. Similarly, in White v Director of Military Prosecutions (2007) 231 CLR 570 the High Court confirmed a long line of authority that upheld the validity of courts martial and military tribunals, as being peculiarly part of the organisation of the defence force. See J Crowe and S Ratnapala, ‘Military Justice and Chapter III: The Constitutional Basis of Courts Martial’ (2012) 40 Federal Law Review 161. 5.3.35  Chapter III of the Constitution nevertheless imposes a substantial constraint on the functions that can be conferred upon executive agencies. An executive agency could not, for example, be empowered to make a finding of criminal guilt and to imprison a person. This point is spelt out in Lim 5.3.36C and was repeated with approval by Hayne and Bell JJ in CPCF v Minister for Immigration and Border Protection 9.2.16C at [148]. The court in Lim upheld the system of mandatory immigration detention, but only on the basis that it was non-punitive, did not rest on a finding of criminal guilt, and applied only to non-citizens arriving unlawfully in Australia. 5.3.36C

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; 110 ALR 97 High Court of Australia

[Sections 54K–54R of the Migration Act 1958 (Cth) authorised the detention without warrant of a person who arrived by boat without a visa. The person was to be detained in custody until they were granted a visa, removed from the country or released by the minister. Section 54R

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provided that ‘[a] court is not to order the release from custody’ of such a person. The court unanimously upheld the validity of the scheme, but a majority held that s 54R was invalid.] Brennan, Deane and Dawson JJ: There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to and ‘could not be excluded from’ (R v Davison (1954) 90 CLR 353, at pp 368, 383) the judicial power of the Commonwealth. That being so, Ch III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive. In exclusively entrusting to the courts designated by Ch III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution’s concern is with substance and not mere form. It would, for example, be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt. The reason why that is so is that, putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. Every citizen is ‘ruled by the law, and by the law alone’ and ‘may with us be punished for a breach of law, but he can be punished for nothing else’ (Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (1959) p 202) … There are some qualifications which must be made to the general proposition that the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts. The most important is … the arrest and detention in custody, pursuant to executive warrant, of a person accused of crime to ensure that he or she is available to be dealt with by the courts. Such committal to custody awaiting trial is not seen by the law as punitive or as appertaining exclusively to judicial power. Even where exercisable by the Executive, however, the power to detain a person in custody pending trial is ordinarily subject to the supervisory jurisdiction of the courts … Involuntary detention in cases of mental illness or infectious disease can also legitimately be seen as non-punitive in character and as not necessarily involving the exercise of judicial power. Otherwise, and putting to one side the traditional powers of the Parliament to punish for contempt … and of military tribunals to punish for breach of military discipline … the citizens of this country enjoy, at least in times of peace … a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth … In this Court, it has been consistently recognised that the power of the Parliament to make laws with respect to aliens includes not only the power to make laws providing for the expulsion or deportation of aliens by the Executive but extends to authorising the Executive to restrain an alien in custody to the extent necessary to make the deportation effective … The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth. When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident … [The statutory provisions] will

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be valid laws if the detention which they require and authorise is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorise is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch III’s insistence that the judicial power of the Commonwealth be vested exclusively in the courts which it designates. [Their Honours went on to hold that a similar scheme of detention applying to citizens would be invalid as a breach of the separation of powers. They held that the scheme of detention in the Migration Act was valid, except for s 54R which was invalid as there were circumstances when a non-citizen’s detention would no longer be lawful and s 54R would restrain a court in that instance from making an order for the person’s release.] A law of the Parliament which purports to direct, in unqualified terms, that no court, including this Court, shall order the release from custody of a person whom the Executive of the Commonwealth has imprisoned purports to derogate from that direct vesting of judicial power and to remove ultra vires acts of the Executive from the control of this Court. [Mason CJ, Toohey, Gaudron and McHugh JJ in separate judgments agreed that the scheme of detention was valid. Gaudron J agreed with the majority judgment that s 54R was invalid; Mason CJ, Toohey and McHugh JJ dissented on that point, holding that s 54R should be read down so as not to preclude the supervisory jurisdiction of a court to order the release of a person who was unlawfully detained.]

5.3.37C Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 317 ALR 279; 89 ALJR 382; [2015] HCA 7 High Court of Australia [Section 170 of the Broadcasting Services Act 1992 (Cth) (BSA) authorised the Australian Communications and Media Authority (ACMA) to conduct an investigation for the purposes of any of its broadcasting, content and datacasting functions. ACMA commenced an investigation into a Today FM broadcast which aired a recorded prank telephone call from two of its presenters to staff of the London hospital at which the Duchess of Cambridge was a patient. ACMA’s preliminary investigation report found that, in broadcasting the recording, Today FM had committed an offence under s 11 of the Surveillance Devices Act 2007 (NSW), which prohibits communication of a private conversation obtained through the use of a listening device without consent. ACMA’s preliminary finding was that Today FM had breached a condition of its licence that ‘the licensee will not use the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory’: cl 8(1)(g). ACMA had not published the report nor decided on any enforcement action. The Full Federal Court found that, in the absence of clear statutory language, an administrative body does not have the power to make a finding that a person has committed a criminal offence. The High Court unanimously overturned the Full Federal Court on appeal.] French CJ, Hayne, Kiefel, Bell and Keane JJ: [26] The starting point in the Full Court’s analysis was the statement in the joint reasons in [Lim 5.3.36C] of the exclusively judicial character

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of the adjudgment and punishment of criminal guilt under Commonwealth law. The Full Court took from Lim a wider general principle: As a matter of general principle it is not normally to be expected that an administrative body such as the [Authority] will determine whether or not particular conduct constitutes the commission of a relevant offence. It may be open to the legislature, subject to relevant constitutional constraints, to make clear that such a body is empowered to undertake that or a similar task. But under our legal system the determination of whether or not a person has committed a criminal offence can generally only be determined by a court exercising criminal jurisdiction. [27] This ‘general principle’ informed the Full Court’s construction of the provision. The Full Court said: The text of cl 8(1)(g) does not state that the [Authority] is to form an opinion on whether or not a relevant offence has been committed, let alone an opinion which is based on the balance of probabilities and not the normal criminal standard of beyond reasonable doubt. We see no warrant for reading those words into the text. (Emphasis added.) [28] It will be recalled that cl 8(1)(g) conditions the licence on the licensee not using the broadcasting service in ‘the commission of an offence’. The Full Court considered that the ordinary meaning of this phrase connotes that ‘a court exercising criminal jurisdiction has found that an offence has been committed’. The Full Court said the phrase has this connotation because, conformably with the statement in the joint reasons in Lim, ‘that matter is one for determination only by a criminal court’. … The ‘general principle’ [32] The Authority submits, correctly, that the ‘general principle’ stated by the Full Court and set out at [26] above is expressed too widely and does not follow from the constitutional constraint stated in the joint reasons in Lim on the adjudgment and punishment of criminal guilt under Commonwealth law. Not uncommonly, courts exercising civil jurisdiction are required to determine facts which establish that a person has committed a crime. Satisfaction in such a case is upon the balance of probability. In Helton v Allen, Mr Helton’s acquittal of the murder of the testatrix was no bar, on the trial of the civil suit arising out of the will, to the finding that he had unlawfully killed her. [33] More generally, and contrary to the ‘normal expectation’ stated by the Full Court, it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action. …There is no reason to suppose that a Commonwealth public housing authority might lack the capacity to terminate a lease on the ground of the tenant’s use of the premises for an unlawful purpose notwithstanding that the tenant has not been convicted of an offence arising out of that unlawful use. [34] It was an error to construe cl 8(1)(g) in light of the posited principle that ‘it is not normally to be expected that an administrative body such as the [Authority] will determine whether or not particular conduct constitutes the commission of a relevant offence’. …

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[49] In determining that a licensee has breached the cl 8(1)(g) licence condition, as a preliminary to taking enforcement action, the Authority is not adjudging and punishing criminal guilt. It is not constrained by the criminal standard of proof and it may take into account material that would not be admitted in the trial of a person charged with the relevant offence. It may find that the broadcasting service has been used in the commission of an offence notwithstanding that there has been no finding by a court exercising criminal jurisdiction that the offence has been proven. Where a person is prosecuted for the relevant offence, the Authority is not bound by the outcome of the criminal proceeding and may come to a contrary view based upon the material and submissions before it. … The judicial power of the Commonwealth … [55] On the hearing of the appeal in this Court, Today FM’s constitutional argument was refined. Today FM acknowledges that it is open to an administrative body to form an opinion as to the legal rights of an individual as a step in that body’s ultimate determination. It accepts that the formation of such an opinion does not involve the exercise of judicial power. It does not contend that the Authority’s finding in its report is a final determination giving rise to any issue estoppel or merger. Rather than characterising that finding and any consequential enforcement action as possessing all or any of the attributes of judicial power within Kitto J’s classic statement, Today FM now relies upon the exception his Honour [Kitto J] allowed in the concluding passage of his analysis [in R v Trade Practices Tribunals; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374–375]: It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified. (Emphasis added.) [56] The ‘special compelling feature’ on which Today FM relies is the power under s 143 to suspend or cancel a commercial broadcasting licence when that power is enlivened by a claimed breach of the cl 8(1)(g) licence condition. The predicate of the power in this event is the finding of the commission of the relevant offence. That finding is the essential step to the imposition of what is said to be in substance a penalty. … Although no determination to suspend or cancel Today FM’s licence has been made, the challenge to the validity of the Authority’s finding is put on the footing that the cl 8(1)(g) licence condition is part of the ‘integrated structure’ of Pt 10 of the BSA, governing the enforcement of licence conditions. … [57] The finding that Today FM’s broadcasting service was used in the commission of an offence does not resolve a controversy respecting pre-existing rights or obligations. It is a step in the determination of breach of the cl 8(1)(g) licence condition and is the foundation for the Authority to institute civil penalty proceedings in the Federal Court of Australia or to take administrative enforcement measures, including imposing further conditions on Today FM’s licence, accepting an enforceable undertaking, issuing a remedial direction, or suspending or cancelling Today FM ‘s licence. … [59] It is well settled that functions may be judicial or administrative depending upon the manner of their exercise. Edmonds J rightly concluded that none of the features of the power conferred on the Authority to investigate and report on breach of the cl 8(1)(g) licence condition and to take consequential administrative enforcement action support the conclusion that it is engaged in the exercise of judicial power. [Gageler J agreed in a separate judgment.]

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5.3.38  The issues discussed in Lim 5.3.36C have also received attention from judges in other cases, but without disturbing the distinction drawn in Lim between punitive and non-punitive detention:

• In Kruger v Commonwealth (1997) 109 CLR 1 (Stolen Generations case) Toohey, Gaudron and Gummow JJ rejected an argument that a Northern Territory law authorising the forced removal and institutional confinement of Aboriginal children was invalid. The ostensible concern of the law was with Aboriginal welfare, not punishment. • In Al-Kateb v  Godwin (2004) 219 CLR 562 a further challenge on Ch  III grounds to the system of mandatory and indefinite immigration detention was dismissed by those justices who addressed that argument on the ground that it was a non-punitive scheme of administrative detention that did not preclude a court from examining a condition precedent to the detention of a person. • In CPCF 12.3.6C a majority of the High Court held that the Maritime Powers Act 2013 (Cth) validly conferred power upon a maritime officer to detain a plaintiff asylum seeker intercepted by an Australian border protection vessel in the Indian Ocean, for the purpose of removing the plaintiff from Australia’s contiguous zone to India.

• In Plaintiff M96A/2016 v Commonwealth (2017) 155 ALD 224 the High Court unanimously held that the detention of unlawful non-citizens brought to Australia from a regional processing country for a temporary purpose of medical treatment was not incompatible with Ch III of the Constitution. The court relied on the fact that the duration of the plaintiffs’ detention could be objectively determined at any time by reference to various preconditions provided for in the Act and that the temporal limits of their detention were connected with the purpose of their detention. • In Falzon v Minister for Immigration and Border Protection [2018] HCA 2, the High Court considered a challenge to s 503(3A) of the Migration Act 1958 (Cth) on the ground that it purported to confer federal judicial power on the minister. Section 501(3A) provided that the minister must cancel a visa that had been granted to a person if the minister was satisfied that the person had a substantial criminal record and was currently serving a full-time sentence of imprisonment. Exercise of this power had the immediate effect of changing the person’s status from lawful non-citizen to unlawful non-citizen, making them liable to immigration detention. The plaintiff argued that the effect of s 501(3A) was to further punish him for the offences he committed, which contravened the principles of Lim. The High Court unanimously rejected the argument, holding that s 501(3A) did not authorise or require the detention of the plaintiff or involve a determination of criminal guilt. The section required the minister to cancel visas as part of regulating the presence in Australia of non-citizens in the national interest. This involved the exercise of administrative rather than judicial power.

Conferral of functions upon Chapter III courts 5.3.39  The discussion to this point has looked at whether there are functions that are exclusively or distinctively judicial and that cannot, consistently with Ch III, be vested in an executive agency or tribunal. This section looks at the converse question: whether there are functions that are exclusively or distinctively executive and that cannot be vested in a Ch III court. The case law on this issue is dominated once again by the ‘borderland’ principle — or ‘chameleon’ doctrine — which acknowledges that many powers and functions can be given 321

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either to a court or to an executive agency; and the power takes its character from the body to which it is given: see 5.3.25. The cases are replete with examples of functions that are exercised both by courts and by executive agencies; they include detention, quarantine, discipline, bail, bankruptcy, dissolution of marriage, compulsory acquisition of property, imposition of penalties, licence revocation, company dissolution, witness examination, modification of contractual rights, and accident compensation. 5.3.40  Three features of the definition of judicial power (see  5.2.23) have been influential in deciding what functions can be conferred on Ch III courts. They are: first, whether a court is being called upon to resolve a controversy by ascertaining the existing legal rights and obligations of the parties, as opposed to creating new rights or obligations; second, whether the court is called upon to apply legal principles or objective legal standards, as opposed to deciding by reference only to discretionary or policy considerations; and third, whether a court is able to remove or impose existing legal rights or legal obligations, and enforce these requirements. Those distinctions were adverted to in Precision Data 5.3.26C at 189, with the court intimating that a function would fall outside the realm of judicial power ‘if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also’, or ‘if the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created’. 5.3.41  Later decisions emphasise the interchangeability of many judicial and executive functions (see  5.3.25), the ‘incompatibility’ test in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs 5.3.50C as a guiding principle, and the generality of many of the legal standards now applied by courts under modern legislation. The current trend is illustrated by Thomas v Mowbray 5.3.42C which upheld the conferral upon a Ch III court of the function of granting an interim control order under counter-terrorism legislation. 5.3.42C

Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; 81 ALJR 1414 High Court of Australia

[In 2005 the Commonwealth Parliament enacted new controls and offences to combat terrorism. Section 104.4 of the Criminal Code (Cth) authorised a court, on the application of an officer of the Australian Federal Police, to make an interim control order against a person. The court could make an order if satisfied on the balance of probabilities of two matters: first, ‘that making the order would substantially assist in preventing a terrorist act, or that the person has provided training to, or received training from, a listed terrorist organisation’; and second, that the obligations, prohibitions and restrictions imposed on a person by the order are ‘reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act’. In 2006 Federal Magistrate Mowbray made an interim control order against Mr Joseph Thomas. The order required Mr Thomas to remain at his place of residence between midnight and 5am each day, report to the police three times per week, submit to fingerprinting, not leave Australia, not communicate with certain named individuals, and not acquire or manufacture explosives. Mr Thomas (referred to by the media as ‘Jihad Jack’) had earlier admitted that

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he undertook paramilitary training in 2001 at a training camp in Afghanistan run by a listed terrorist organisation. Mr Thomas challenged the validity of s 104.4 on several grounds, including that it conferred a non-judicial power upon a Ch III court. The High Court by majority dismissed the challenge and confirmed the validity of s 104.4.] Gleeson CJ: The plaintiff’s written submissions contend that Div 104 confers non-judicial power on a federal court in that it confers upon the court the power to determine what legal rights and obligations should be created, rather than the power to resolve a dispute about existing rights and obligations by determining what those rights and obligations are, and the power to deprive a person of liberty on the basis of what that person might do in the future, rather than on the basis of a judicial determination of what that person has done. It is said that, by reason of those characteristics of a control order, the governmental power that is exercised when such an order is made is peculiarly or distinctively legislative or executive, and therefore not a power that may be conferred upon the judiciary. The power to restrict or interfere with a person’s liberty on the basis of what that person might do in the future, rather than on the basis of a judicial determination of what the person has done, which involves interfering with legal rights, and creating new legal obligations, rather than resolving a dispute about existing rights and obligations, is in truth a power that has been, and is, exercised by courts in a variety of circumstances. It is not intrinsically a power that may be exercised only legislatively, or only administratively. If it were otherwise, the federal Parliament would lack the capacity to confide an exercise of such power to the judicial branch of government. … [Gleeson CJ then referred at 328 to comments by McHugh J in Fardon 5.3.13 at 596–7 upholding a power of detention ‘to ensure adequate protection of the community’ and that a court exercising state judicial power or indeed federal judicial power could decide whether there was ‘an unacceptable risk that the prisoner will commit a serious sexual offence’.] Those observations apply to the legislation in question in this case. Two familiar examples of the judicial exercise of power to create new rights and obligations which may restrict a person’s liberty are bail, and apprehended violence orders. The restraints imposed on the plaintiff by the order made against him are similar to conditions commonly found in a bail order. Of course, there are differences between bail and a control order, but the example of bail shows that imposition of restrictions of the kind imposed on the plaintiff is not foreign to judicial power. Apprehended violence orders have many of the characteristics of control orders, including the fact they may restrain conduct that is not in itself unlawful. For example, an apprehended violence order may forbid a person to approach another person, or to attend a certain place. As a matter of history, apprehended violence orders have their origin in the ancient power of justices and judges to bind persons over to keep the peace … [P]owers relevantly similar to those given by Div 104 traditionally have been, and are, exercised by the judiciary. They are not exclusively or distinctively administrative. To decide that such powers are exclusively within the province of the executive branch of government would be contrary to our legal history, and would not constitute an advance in the protection of human rights … A narrower argument for the plaintiff turns upon the Criminal Code’s criteria for the making of a control order … [T]he argument points to the stipulation that a control order may be made only if the court is satisfied on the balance of probabilities that each of the

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obligations, prohibitions and restrictions to be imposed by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act … Much attention was given in argument to the expression ‘reasonably necessary’. That expression is commonly used both by judges and in legislation. It is useful to consider examples, because they show the kinds of judgmental evaluation which are commonly undertaken in the judicial process. … [His Honour gave examples of the phrase being used in the common law doctrine of restraint of trade, in trade practices legislation, as a legal criterion of validity in constitutional law, and in real property law.] Against this background of judicial and legislative usage it cannot plausibly be suggested that the standard of reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public is inherently too vague for use in judicial decision-making. [Gummow and Crennan JJ, Heydon J and Callinan J delivered concurring judgments. A point of common emphasis was that the decision of a court to impose a control order was to be made by a judicial procedure, involving evidence, cross-examination, fact-finding, argument, legal representation, the application of legislation, and framing an order. Gummow and Crennan JJ commented (at 350) that care is needed in considering older authorities on Ch III as ‘[c]ourts are now inevitably involved on a day-to-day basis in the consideration of what might be called “policy”, to a degree which was never seen when earlier habits of thought respecting Ch III were formed’. Hayne J and Kirby J dissented, holding that the standard to be applied by the court — ‘protecting the public from a terrorist act’ — was too indeterminate to be a legal standard: at 354.]

5.3.43 In Palmer v Ayres; Ferguson v Ayres [2017] HCA 5 the High Court held that s 596A of the Corporations Act 2001 (Cth), which empowered the Federal Court to issue a summons requiring a person to attend for examination about a corporation’s examinable affairs, was not an invalid conferral of non-judicial power. The applicant had contended that the application for a liquidator examination did not involve a ‘matter’ in the constitutional sense and that the examination was an inquisitorial or investigative exercise that did not concern an immediate right, duty or liability to be determined by the court. The High Court held that, in exercising the s  596A power, the court is not involved in a fact-gathering exercise or an investigative function divorced from a controversy. The making of a summons order is a procedure designed to lead to a controversy regarding potential rights and liabilities in possible further litigation. It is a procedure directed at the future exercise of judicial power, in aid of anticipated adversarial proceedings, analogous to other pre-trial procedures. 5.3.44  The distinction between executive and judicial functions is relevant to administrative law in other ways that affect the jurisdiction and functions of courts. Following are three examples. First, the distinction can affect the construction placed on legislation. Applying the principle that ‘a construction is to be selected which would avoid rather than lead to a conclusion of constitutional invalidity’, the High Court in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 gave a restricted reading to a state statute. Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd (2007) 156 FCR 501 provides a further illustration. The Federal Court held that a section in the Corporations Act  2001 (Cth) which empowered the court 324

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to summon a person for examination about the affairs of a corporation could only be used in relation to a corporation that was being wound up or in receivership, and not to examine the affairs of a corporation more generally. The reason is that an examination which is ‘free standing’ and not connected to any judicial proceeding would not be an exercise of judicial power. As French J noted in Highstoke: Taken alone, a power to require a person to answer questions or produce documents in aid of an investigation is administrative in character. Taken alone, it neither leads to, nor is incidental to, a binding determination of rights or liabilities … It lacks the core elements of the judicial process such as the finding of facts, the making of value judgments and finding determinations as to legal rights and obligations. There are of course, functions, which can be viewed as administrative or judicial depending upon the body that discharges them … It is nevertheless a necessary condition of the attribution of this ‘chameleon’ status to a particular function that it be capable of constituting an exercise of judicial power.

5.3.45  Second, it is often suggested that it would be contrary to the federal separation of judicial power to confer a merits review function upon a court: see, for example, Quin 7.2.5C. For the same reason, there is an implicit constitutional pressure in the Australian federal system to give restricted scope to the grounds for judicial review of administrative action: see, for example, Lam 11.3.14C. The federal separation of judicial power was also given by the Kerr Committee (see 1.4.3E–1.4.4E) in explanation of its proposal that the Commonwealth system of administrative law be based upon a sharp distinction between judicial and merits review: [A]ny jurisdiction committed to the courts by the Commonwealth Parliament in the field of administrative review must, to be valid, involve the exercise of judicial power. Accordingly, courts cannot be entrusted with the unrestricted review of discretions which are not judicial; nor can the courts be called upon to review administrative decisions on any basis which requires the ultimate decision to be given by reference to policy or non-legal considerations.

5.3.46  Third, a principle of long standing is that the separation of federal judicial power prevents an advisory opinions function being conferred on a Ch III court. In Re Judiciary and Navigation Acts (1921) 29 CLR 257, the High Court declared invalid s  88 of the Judiciary Act 1903 (Cth), which provided: ‘Whenever the Governor-General refers to the High Court for hearing and determination any question of law as to the validity of any Act or enactment of the Parliament the High Court shall have jurisdiction to hear and determine the matter’. The court held that s  88 was not supported by s  76(i) of the Constitution, which provided that the parliament could confer jurisdiction upon the court ‘in any matter arising under this Constitution, or involving its interpretation’: Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ: [T]here can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court … [The legislature] cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law … [W]e can find nothing in Chapter III of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved.

That ruling makes it doubtful that the Commonwealth Parliament could confer upon a federal court a function the same as that conferred upon the Supreme Court of Victoria by 325

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ss  33, 36(2), (5) of the Charter of Human Rights and Responsibilities Act  2006 (Vic), which empower the court to make a declaration that a statutory provision is inconsistent with a human right. It might also be doubted whether the High Court would hear an appeal under s 73 of the Constitution from a decision of the Supreme Court made under s 36 of the Victorian Charter. Those doubts were addressed in Momcilovic v  The Queen 4.4.20, an issue which is explored in S Rares, ‘Judicial Power and Declarations of Rights Inconsistency’ (FCA) [2013] Federal Judicial Scholarship 36; and W Bateman and J Stellios, ‘Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights’ (2012) 36 Melbourne University Law Review 1.

Appointment of Chapter III judges to tribunals and to discharge executive functions 5.3.47  There is a long-standing tradition in Australia of federal judges being appointed to executive bodies and inquiries, such as tribunals, royal commissions and government advisory committees. Non-judicial functions, such as the issue of search warrants, have also been performed by judges. The principle (or exception) that is usually invoked to explain this non-judicial work is that the task is performed by the judge in a personal capacity (as persona designata). This is illustrated by Drake v Minister for Immigration and Ethnic Affairs 5.3.49C, dismissing a challenge to the appointment of Davies  J of the Federal Court as a Deputy President of the AAT. It has similarly been held that a magistrate performs an administrative function in deciding whether a person is eligible to be extradited, yet the function is performed as persona designata: Dutton v  O’Shane (2003) 132 FCR 352 at 385; see  also Vasiljkovic v Commonwealth (2006) 227 CLR 614. 5.3.48  In two cases, the High Court applied the same principle in dismissing a challenge to the conferral upon a Federal Court judge of the function of issuing a telephone interception warrant: see Hilton v Wells (1985) 157 CLR 57; and Grollo v Palmer (1995) 184 CLR 348. Between Hilton and Grollo, the legislation was rewritten to make it clear that the function was exercisable only by an ‘eligible judge’ who had consented in writing to discharge the function. Notwithstanding that caution, the court in Grollo drew attention to a further constraint, that the conferral of the non-judicial function must not be incompatible with the holding of judicial office. Justice McHugh (at 377) and Gummow J (at 392) cited Mistretta v United States 488 US 361 (1989): The legitimacy of the Judicial Branch ultimately depends upon its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action.

That ‘incompatibility’ principle was explained and applied by the High Court in Wilson

5.3.50C in declaring invalid the appointment of a Federal Court judge to perform the role of a

reporter to government under Aboriginal heritage protection legislation; and in Wainohu v State of New South Wales  5.3.51C in declaring invalid the appointment by the Attorney-General of a judge of the New South Wales Supreme Court to be an ‘eligible judge’ empowered to make declarations (without reasons) that an organisation was a ‘criminal organisation’.

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5.3.50C

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 2 ALD 60; 24 ALR 577 Federal Court of Australia (Full Court)

Bowen CJ and Deane J: The general argument that it was constitutionally impermissible for Davies J to be appointed a Deputy President of the Tribunal confuses the appointment of a person, who has the qualification of being a judge of a court created by the Parliament, to perform an administrative function with the purported investing of a court created under Ch III of the Constitution with functions which are properly administrative in their nature. Davies J’s appointment as a presidential member was a personal appointment. Before he could be validly appointed as a presidential member, it was necessary that he hold one of a number of designated qualifications. It so happened that the qualification which he held was that he was a judge of this Court. The appointment was of him to the office of Deputy President of the Tribunal and not a conferring of functions or duties on the court of which he was already a member. There is nothing in the Constitution which precludes a justice of the High Court or a judge of this or any other court created by the Parliament under Ch III of the Constitution from, in his personal capacity, being appointed to an office involving the performance of administrative or executive functions including functions which are quasi-judicial in their nature. Such an appointment does not involve any impermissible attempt to confer upon a Ch III court functions which are antithetical to the exercise of judicial power. Indeed, it does not involve the conferring of any functions at all on such a court. The attack on the validity of the appointment of Davies J as a Deputy President of the Tribunal must be rejected.

5.3.50C

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; 138 ALR 220 High Court of Australia

[The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) empowered the minister to make a declaration for the protection of a significant Aboriginal area that was under threat of injury or desecration. Before making a declaration, the minister was required by s 10 to appoint a person to conduct a public hearing and prepare a report in relation to the area and the threat posed to it. The minister appointed Justice Jane Mathews, a Federal Court judge, to prepare a report in relation to a proposal to construct a bridge across the Murray River to Hindmarsh Island in South Australia. The High Court held by majority that the appointment of Justice Mathews was incompatible with her judicial role as a judge of the Federal Court, and was therefore invalid.] Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ: There is nothing in the Act nor in the terms of the letter of nomination by the Minister to Justice Mathews which purports to confer, or to request her to exercise, any judicial power. Indeed, the Act confers no powers of any kind on a reporter. Nor does it grant any immunity. Clearly the function of reporting is non-judicial. Justice Mathews was not nominated to report as a Judge of the Federal Court; she was nominated simply as an individual to perform that function. Accordingly, the basis on which a challenge was made in Hilton v Wells (1985) 157 CLR 57 to the validity of a law authorising a judge to issue warrants for telephonic interception — namely, the reposing of a

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non-judicial power in a court or in a judge acting as a member of a court — does not fall for consideration under s 10. When a power is classified as non-judicial and the repository of the power is a court or judge acting as such, the problem is to determine whether the power is incidental or conducive to the exercise of judicial power. None of those questions arises in a challenge to the nomination of Justice Mathews purportedly under s 10. No power of any kind is conferred on a person appointed to report under s 10; nor is a reporter appointed otherwise than as an individual — persona designata. The question which does arise in this case is whether performance of the function of reporting to the Minister under s 10 is a function which is constitutionally compatible with the holding of office as a judge appointed under Ch III of the Constitution … The majority in Grollo v Palmer (1995) 184 CLR 348, another case relating to judicial warrants for telephonic interception, described the kinds of incompatibility which preclude the availability of a Ch III judge to perform non-judicial functions: The incompatibility condition may arise in a number of different ways. Incompatibility might consist in so permanent and complete a commitment to the performance of non-judicial functions by a Judge that the further performance of substantial judicial functions by that Judge is not practicable. It might consist in the performance of non-judicial functions of such a nature that the capacity of the Judge to perform his or her judicial functions with integrity is compromised or impaired. Or it might consist in the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual Judge to perform his or her judicial functions with integrity is diminished. Judges appointed to exercise the judicial power of the Commonwealth cannot be authorised to engage in the performance of non-judicial functions so as to prejudice the capacity either of the individual Judge or of the judiciary as an institution to discharge effectively the responsibilities of exercising the judicial power of the Commonwealth … The capacity of Ch III judges to perform their judicial duties throughout the terms of their appointment independently of the political branches of government cannot be prejudiced by their appointment to non-judicial office or to perform non-judicial functions. If an appointment to non-judicial office or performance of non-judicial functions prejudices that capacity it is incompatible with the office and function of a Ch III judge. And that is inconsistent with s 72 of the Constitution. Thus constitutional incompatibility limits legislative and executive power; it does not effect a vacation of judicial office. In the present case, the category of incompatibility that arises for consideration is ‘the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished’ (Grollo v Palmer (1995) 184 CLR 348 at 365). [Their Honours then posed a number of issues to be addressed in deciding if the test of incompatibility is breached.] [W]hether the function is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government … [W]hether the function is required to be performed independently of any instruction, advice or wish of the Legislature or the Executive Government, other than a law or an instrument made under a law … Is any discretion purportedly possessed by the Ch III judge to be exercised on political grounds — that is, on grounds that are not confined by factors expressly or impliedly prescribed by law? …

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A judge who conducts a Royal Commission may have a close working connection with the Executive Government yet will be required to act judicially in finding facts and applying the law and will deliver a report according to the judge’s own conscience without regard to the wishes or advice of the Executive Government except where those wishes or advice are given by way of submission for the judge’s independent evaluation. The terms of reference of the particular Royal Commission and of any enabling legislation will be significant. Similarly, where a judge is appointed as a presidential member of the Administrative Appeals Tribunal, the function of deciding applications must be performed independently of any instruction, advice or wish of the Executive Government. The Tribunal must give what it considers to be the correct or preferable decision. And that is so even in those cases where government policy is a relevant factor for consideration and the powers of the Tribunal are limited to the affirming of, or recommending the reconsideration of, the decisions of a Minister … Independence from the Legislature and the Executive Government in the sense thus explained is essential to the constitutional compatibility of performing a non-judicial function with the holding of office as a Ch III judge. The only power conferred by s 10 of the Act is the power conferred on the Minister to make a declaration. A report is no more than a condition precedent to the exercise of the Minister’s power to make a declaration. The function of a reporter under s 10 is not performed by way of an independent review of an exercise of the Minister’s power. It is performed as an integral part of the process of the Minister’s exercise of power. The performance of such a function by a judge places the judge firmly in the echelons of administration, liable to removal by the Minister before the report is made and shorn of the usual judicial protections, in a position equivalent to that of a ministerial adviser … Significantly, the competing interests of Aboriginal applicants and of others whose proprietary or pecuniary interests are liable to be affected by the making of a declaration have to be determined. Such a determination is essentially a political function. [Their Honours proceeded to note other features of the legislative scheme, including that the Act did not require the reporter to disregard ministerial instructions, the decisions to be made by a reporter were political in character, the report could be prepared to accord with ministerial policy, and the reporter was required to furnish advice on questions of law which was alien to the exercise of the judicial power of the Commonwealth. Their Honours concluded:] The separation of the Ch III judge acting as reporter from the Minister has been breached. The function of reporting is therefore incompatible with the holding of office as a Ch III judge. [Gaudron J delivered a separate concurring judgment. Kirby J dissented.]

5.3.51C

Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 High Court of Australia

[The Crimes (Criminal Organisations Control) Act 2009 (NSW) was enacted for the purpose of disrupting and restricting the activities of criminal organisations and their members. The Act empowered the Attorney-General of New South Wales to appoint judges of the Supreme Court as ‘eligible judges’. Eligible judges could declare an organisation to be a ‘criminal organisation’ if satisfied that the organisation’s members associated for the purposes of organising, planning, facilitating, supporting or engaging in serious criminal activity and that

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the organisation represented a risk to public safety and order. No reasons needed to be given for making the declaration. The Act further provided that the Supreme Court could, on the application of the Commissioner of Police, make control orders against members of a declared organisation, which extended to criminalising the association of members of the organisation. Members would also be prohibited from carrying on certain classes of businesses and occupations. In July 2010 the Acting Commissioner of Police for New South Wales applied to an eligible judge for a declaration in respect of the Hells Angels Motorcycle Club. Mr Wainohu was a member of the Hells Angels Motorcycle Club. He applied to the High Court for a declaration that the Act was invalid, in that it purported to confer functions on the Supreme Court and its judges which undermined the court’s institutional integrity, inconsistent with Ch III of the Commonwealth Constitution. By majority, the High Court held that the Act was invalid.] French CJ and Kiefel J: An eligible judge may make a determination under Pt 2 upon information and submissions, without regard to the rules of evidence, partly based on information and submissions not able to be disclosed to the organisation or its members, and with no obligation to provide reasons for the determination which is made. The Act thus provides for the enlistment of judges of the Supreme Court to determine applications for declarations using processes which, if adopted by the Court itself, would be repugnant to the judicial function. The making of a declaration by an eligible judge is a necessary condition for the exercise by the Court of its jurisdiction to make a control order. It is well established that a State legislature, untrammelled by a doctrine of separation of powers derived from the Constitution of the State, can confer administrative functions on a court of the State or on judges of the court. It cannot confer administrative functions on a court which are incompatible with the court’s essential and defining characteristics as a court and thereby with its place in the national integrated judicial system for which Ch III of the Constitution provides. Nor, as is explained in these reasons, can a State legislature confer upon judges of a State court administrative functions which substantially impair its essential and defining characteristics as a court. The Act effects such an impairment. It does so because it provides, in effect, that the jurisdiction of the Supreme Court to make control orders against members of an organisation will be enlivened by a decision of a judge of the Court, after an adversarial proceeding, on complex and important matters of fact, for which the Act provides that no reasons need be given. The Act also creates an impression of a connection between the performance of a non-judicial function and the following exercise of judicial power, such that the performance of that function may affect perceptions of the judge, and of the court of which he or she is a member, to the detriment of that court. The plaintiff’s challenge to the validity of the Act should succeed. … … There is no general constitutional prohibition against the appointment of judges to non-judicial offices or to carry out non-judicial functions. As an extensive literature on the subject demonstrates, there is a considerable history of such appointments in Australia. There has nevertheless long been debate about whether it is appropriate for judges to engage in such activities and, if so, under what circumstances and conditions. The same debate has taken place in other common law countries. The question whether such activities are appropriate for a judge to undertake is not the same as the question whether they fall within limits imposed by the Constitution. Nevertheless, the existence of the debate and the historical practice are consistent with the absence of bright-line rules defining those limits.

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The involvement of judges in non-judicial activities in or on behalf of the executive government was an unremarkable feature of government in the Australian colonies prior to Federation. The constitutions under which colonial legislatures, executives and judiciaries were established, and which continued and evolved as the Constitutions of the States, did not require separation of judicial from legislative and executive powers. … [French CJ and Kiefel J discussed the history of the appointment of judges to conduct royal commissions; the wartime ambassadorial appointments of Sir John Latham and Sir Owen Dixon, and in the 1970s of Fox J of the Federal Court; the fact that the major tribunals in many states are held by judicial officers, as too are a number of Commonwealth tribunals; and the statutory warrant-giving functions performed by judges.] Debate about the desirability of conferring administrative functions on serving judges has more than one dimension. There are questions of principle relating to the independence and impartiality of the courts and the need for an appropriate distance from executive government, even if that distance only accords with convention and falls short of a separation of powers in the constitutional sense. Concerns have been expressed about embroiling judges in political controversies. A practical consideration is the extent to which a judge discharging extraneous administrative duties (even if only on a part-time basis) is diverted from judicial work. Some functions, such as those relating to the issue of statutory warrants, may involve only a minor imposition on judicial time. Others may be considerably more burdensome. The issues to be determined on an application for a declaration under Pt 2 of the Act indicate that it falls into the latter category. The application to the eligible judge in the present case was accompanied by 35 volumes of material, some of which was said to be ‘criminal intelligence’. A closed preliminary hearing was held before his Honour in the absence of any representative of the Club, in order that his Honour could determine whether the asserted criminal intelligence was ‘properly classified’ as such within the meaning of s 28 of the Act. That hearing concluded on 27 September 2010 and was adjourned for further mention. It is clear that if the application proceeds it will occupy a significant amount of the judge’s time. Professor Gordon Reid, writing in 1978 about the use of judges in executive roles, said: Modern developments in Australian national government give the impression that the conventional political institutions — Parliament, Executive and Judiciary — are being treated by policy-makers as inconvenient differentiations of a single activity — government. His comment concerned trends in government at the Commonwealth level in the 1970s, but has contemporary relevance. By way of contrast, the opinion has been expressed that an unduly restrictive approach to the functions which it is appropriate for judges to undertake outside the judicial role carries with it a risk of loss of institutional ‘relevance’ for the judiciary. In the same year that Professor Reid wrote, Brennan J, who was then a judge of the Federal Court of Australia and President of the Administrative Appeals Tribunal, acknowledged that there was a risk of a loss of public confidence in the judiciary proportionate to the disparity between functions proposed for performance by a judge and the functions traditionally performed by the courts. He said, however: But the risks must be run, or the institution of the judiciary may lose its relevance or, at the least, fall short of discharging fully the functions which the community would commit to it.

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One of the risks to be balanced against apprehended loss of ‘relevance’ is the erosion of the ‘inconvenient differentiation’ between the judiciary and other branches of government, and relegation of the judicial branch to the status of one among a number of agencies charged with governmental functions. Debates about the appropriateness of conferring non-judicial functions on judges do not directly engage the constitutional question whether such offices and activities are compatible with the judicial functions of federal, State and Territory courts under Ch III of the Constitution. What the debates indicate is that questions of compatibility which require evaluative judgments are unlikely to be answered by the application of precisely stated verbal tests. As Gummow J said in Fardon v Attorney-General (Qld): ‘the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes.’ That conclusion is consistent with the imprecise scope of the judicial power, which historically was not limited to the determination of existing rights and liabilities in the resolution of controversies between subject and subject, or between subject and the Crown. It is also consistent with the shifting characterisation of the so-called ‘chameleon’ functions as administrative or judicial according to whether they are conferred upon an authority acting administratively or upon a court. Assessments of constitutional compatibility between administrative and judicial functions are not to be answered by the application of a Montesquieuan fundamentalism. [French CJ and Kiefel J went on to note the importance of the provision of reasons as an aspect of judicial power:] The provision of reasons for decision is also an expression of the open court principle, which is an essential incident of the judicial function. A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion. [Gummow, Hayne, Crennan and Bell JJ agreed with French CJ and Kiefel J, in separate reasons, that the relevant provisions were invalid. Heydon J dissented.]

5.3.52  The majority judgment in Wilson 5.3.50C had noted that the criteria of incompatibility as expressed in that case had not always been observed in practice. Trends can be difficult to pinpoint, but generally it seems that a consequence of the decisions in Wilson and Wainohu 5.3.51C is that there is now less activity by Ch III judges of an executive kind. The function of issuing interception warrants is now largely performed by members of the AAT. The incompatibility doctrine as expounded in Wilson has other implications too for the design of Commonwealth administrative law. For example, it is questionable whether the AAT could be constituted by a judge in discharging the limited role it had in the 1980s of making only a recommendation in criminal deportation cases. As noted in Wainohu, there is an extensive academic literature on the appointment of judges as personae designatae. For a recent analysis, see F Wheeler, ‘“Anomalous Occurrences in Unusual Circumstances”? Extra Judicial Activity by High Court Justices: 1903 to 1945’ (2013) 24 Public Law Review 125.

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Federal jurisdiction 5.3.53  Sections  75–77 of the Constitution define the jurisdiction of the High Court and other federal and state courts to exercise federal jurisdiction. These provisions are discussed further in Chapter 2. The most prominent feature of federal jurisdiction from an administrative law perspective is s 75(v), which confers an original jurisdiction on the High Court to grant the remedies of mandamus, prohibition and injunction against an officer of the Commonwealth. This jurisdiction is discussed at four other points in this book: 2.2.38ff, in defining the High Court’s jurisdiction to undertake judicial review of federal administrative action; 7.3.9ff, in providing a jurisprudential foundation for Australian judicial review; 16.4.7ff, in relation to the construction of federal privative clauses; and 17.1.15, in noting that the three remedies mentioned in s 75(v) are nowadays described as ‘constitutional writs’. 5.3.54  For present purposes, the importance of s 75(v) is that it provides a constitutional guarantee of federal judicial review. As explained by Gleeson J in Plaintiff S157/2002 16.3.17C: Section 75(v) of the Constitution … secures a basic element of the rule of law. The jurisdiction of the Court to require officers of the Commonwealth to act within the law cannot be taken away by Parliament. Within the limits of its legislative capacity, which are themselves set by the Constitution, Parliament may enact the law to which officers of the Commonwealth must conform … But it cannot deprive this Court of its constitutional jurisdiction to enforce the law so enacted.

The importance of the jurisdiction conferred by s 75(v) was illustrated in Plaintiff S157/2002, where the court (in the exercise of its s 75(v) jurisdiction) read down a privative clause in the Migration Act 1958 (Cth) that purported to curtail substantially the scope of judicial review of migration decision-making. The court held that the privative clause did not prevent review for jurisdictional error: see 13.4.8ff. The importance of the s 75(v) jurisdiction is illustrated also by Re Refugee Review Tribunal; Ex parte Aala 17.1.14C and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah 11.2.19C, in both of which the court declared a decision to be invalid for breach of natural justice, in circumstances where the Federal Court had no comparable jurisdiction to make such a declaration. Aside from review of migration decisions, the s 75(v) jurisdiction has been invoked frequently in review of industrial decisions and in constitutional review. 5.3.55  Section 75(v) is framed as the grant of a jurisdiction to issue a remedy. Does it have any broader operation — is it ‘concerned only with remedies or [does it create] rights’?: Abebe v Commonwealth (1999) 197 CLR 510 at [169] (Gummow and Hayne JJ).The orthodox response to that question has been to say that parliament can alter the substantive and procedural law that controls executive decision-making, and to that extent define the preconditions (if any) for a valid decision. This point was made in Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168: Deane and Gaudron JJ: [The effect of s  75(v) and (iii)] is to ensure that there is available, to a relevantly affected citizen, a Chapter III court with jurisdiction to grant relief against … an unlawful exercise of, or refusal to exercise, Commonwealth executive authority. Necessarily, there lies at the heart of that jurisdiction the authority to determine whether … an impugned administrative decision or impugned administrative conduct is or is not in fact invalid or unlawful … 333

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[T]he jurisdiction which s 75(v) confers and the right of a relevantly affected person to invoke it cannot be withdrawn, negated or diminished by the Parliament … Nonetheless, the right to invoke the jurisdiction is essentially an auxiliary or facultative one in the sense that the jurisdiction which the sub-section confers upon the Court is to hear and determine the designated matters in accordance with the independently existing substantive law. In other words, the right to invoke the jurisdiction will be unavailing unless the decision or conduct of the officer of the Commonwealth in respect of which the designated relief is sought is invalid or unlawful under that substantive law. The result of that is that, while the Parliament cannot withdraw or diminish the jurisdiction of the Court to hear and determine the matters which the sub-section designates including the jurisdiction to determine the critical issue of the validity or lawfulness of an impugned decision or conduct, it can, consistently with the sub-section and within the limits of the legislative powers conferred upon it by the Constitution, alter the substantive law to ensure that the impugned decision or conduct is in fact valid or lawful … That distinction, between what laws are and what laws are not consistent with s 75(v) is admittedly an elusive one.

There are many other statements to the same effect. An example is the following observation of Hayne J in Aala 17.1.14C: The use of the expression ‘constitutional writs’ should not distract attention from the fact that the Constitution is silent about the circumstances in which the writs may issue. What is constitutionally entrenched is the jurisdiction of this Court when the writs are sought, rather than any particular ground for the issue of the writs … [T]he Parliament may lawfully prescribe the kind of duty to which an officer of the Commonwealth is subject and may lawfully prescribe the way in which that duty shall be performed.

5.3.56  The observation of Deane and Gaudron  JJ in Richard Walter Pty Ltd 5.3.55, that ‘Parliament cannot withdraw or diminish the jurisdiction of the Court to hear and determine … the validity or lawfulness of an impugned decision’, was put to the test in Bodruddaza v Minister for Immigration and Multicultural Affairs 5.3.57C and Graham 5.3.58C. In Bodruddaza the court held invalid s 486A of the Migration Act 1958 (Cth), which provided that an application in the High Court under s 75(v) for a constitutional writ must be commenced within 84 days of a person being notified of a visa refusal decision. In Graham, the court held that s 503A of the Migration Act was invalid to the extent it purported to prevent the minister from disclosing sensitive information supplied by intelligence agencies to the court on an application for judicial review of the minister’s decision, as access to relevant information was central to the court’s judicial review function under s 75(v). 5.3.57C

Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; 234 ALR 114 High Court of Australia

Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ: It is unnecessary to decide this case at the highest level at which the plaintiff put his submissions. This appeared to be that constitutionally permissible legislative regulation of the s 75(v) jurisdiction could never support a fixed time limit upon the making of an application to this Court. It is sufficient to accept a less absolute proposition as follows. This is that a law with respect to the

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commencement of proceedings under s 75(v) will be valid if, whether directly or as a matter of practical effect, it does not so curtail or limit the right or ability of applicants to seek relief under s 75(v) as to be inconsistent with the place of that provision in the constitutional structure, as explained in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 482–483 [5], 513–514 [104]. The determination of the validity of a provision such as s 486A requires consideration of the substance or practical effect of the provision, not merely of its form … Section 486A is cast in a form that fixes upon the time of the actual notification of the decision in question. This has the consequence that the section does not allow for the range of vitiating circumstances which may affect administrative decision-making. It is from the deficiency that there flows the invalidity of the section. In Plaintiff S157/2002, Gleeson CJ emphasised in relation to the former s 486A that the time of the notification of a decision ‘may be very different from the time when a person becomes aware of the circumstances giving rise to a possible challenge to the decision’. His Honour went on to instance the discovery, after the expiry of a time limit fixed by reference to the time of notification, that the decision had been procured by a corrupt inducement. What was there said is applicable to the present operation of s 486A. Likewise the plight of an applicant where the circumstances giving rise to actual or apprehended bias are unknown and unknowable whilst the s 486A timescale is in operation but later become known to the applicant. The fixing upon the time of the notification of the decision as the basis of the limitation structure provided by s 486A does not allow for supervening events which may physically incapacitate the applicant or otherwise, without any shortcoming on the part of the applicant, lead to a failure to move within the stipulated time limit. The present case where the plaintiff was one day late, apparently by reason of a failure on the part of his migration adviser, is an example. It is no answer to say that some unfairness is to be expected and must be tolerated. The above examples are instances where the time limit subverts the constitutional purpose of the remedy provided by s 75(v). Further examples may be suggested from practical experience. Considerations of this kind may be dealt with at the level of discretion to grant or withhold the remedy under s 75(v). That is the path taken by the Rules and the case law in this Court. The path taken by the Parliament with s 486A is to deal with these considerations by the application of a rule precluding what is considered by the legislature to be an untimely application for what by hypothesis is a discretionary remedy. As the above discussion of the operation of s 486A illustrates, any attempt to follow that path is bound to encounter constitutional difficulties. Section 486A is invalid. It is so drawn as not to permit its reading down so as to sever and preserve any valid operation, and no case for severance was presented. [Their Honours then dealt with an argument that it was open to the Parliament to impose a time limit on seeking certiorari, as it was not a remedy enumerated in s 75(v) of the Constitution.] It is unnecessary to determine whether it would be open to the Parliament to legislate to withdraw from this Court any power to grant certiorari as the principal relief in the original jurisdiction of the Court. That is because here certiorari is ancillary to the principal relief of prohibition and mandamus and the Court is seized of jurisdiction with respect to that ‘matter’ … The upshot is that s 486A cannot validly diminish the authority of the Court in the present case to afford the remedy of certiorari as an ancillary remedy so as effectively to determine the ‘matter’ in respect of which jurisdiction is conferred by s 75(v). [Callinan J agreed with the joint judgment.]

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Control of Government Action

Graham v Minister for Immigration and Border Protection (2017) 347 ALR 350; (2017) 91 ALJR 890; [2017] HCA 33 High Court of Australia

[Mr Graham and Mr Te Puia were New Zealand citizens who had been residing in Australia for many years. The minister cancelled their visas under s 501(3) of the Migration Act 1958 (Cth), which confers power on the minister to cancel or refuse a visa if the minister reasonably suspects that the person does not pass the character test set out in the Act, and if the minister is satisfied that cancellation or refusal is in the national interest. In making each decision, the minister considered information purportedly protected from disclosure by s 503A of the Act. Section 503A(2)(c) prevents the minister from being required to divulge or communicate information to a court or a tribunal (among other bodies) when reviewing a purported exercise of power by the minister under the Act. Mr Graham and Mr Te Puia contended that s 503A(2) of the Act was invalid on the ground that it required a federal court to exercise judicial power in a manner inconsistent with the essential character of a court or the nature of judicial power, or on the ground that it so limited the right or ability of affected persons to seek relief under s 75(v) of the Constitution. The High Court held by majority that s 503A of the Act was invalid to the extent that it would apply to prevent the minister from being required to divulge or communicate certain information to the High Court or the Federal Court when reviewing a purported exercise of power by the minister under the Act.] Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ: [39] As the plaintiff’s argument with respect to inconsistency correctly apprehended, all power of government is limited by law. Within the limits of its jurisdiction where regularly invoked, the function of the judicial branch of government is to declare and enforce the law that limits its own power and the power of other branches of government through the application of judicial process and through the grant, where appropriate, of judicial remedies. … [43] What follows from the inclusion of s 75(v) in the Constitution is that it is “impossible” for Parliament “to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition”. The same is to be said of the impossibility of Parliament imposing a public duty with the intention that the duty must be performed and yet depriving this Court of authority by mandamus to compel performance of the duty imposed and of the impossibility of Parliament imposing a constraint on the manner or extent of exercise of a power with the intention that the constraint must be observed and yet depriving this Court of authority by injunction to restrain an exercise of that power rendered unlawful by reason of being in breach of that constraint. [44] The presence of s 75(v) thus “secures a basic element of the rule of law”. … [The court cited Plaintiff S157/2002 16.3.17C.] [45] Where Parliament enacts a law conferring a decision-making power on an officer and goes on to enact a privative clause, cast in terms that a decision of the officer cannot be called into question in a court, history shows that the privative clause has the potential to be read in different ways. The privative clause might be read as expanding the conferral of decision-making power on the officer, or it might be read as speaking only to what an officer does within the limits of the decision-making power otherwise conferred. On either of those

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non-literal readings, the privative clause would be valid. The privative clause would be invalid, however, were it to be read literally, so as to deny to a court exercising jurisdiction under or derived from s 75(v) the ability to enforce the legal limits of the decision-making power which Parliament has conferred on the officer. [46] Where Parliament enacts a law which confers a decision-making power on an officer and goes on to enact some other provision, not cast as a privative clause, that other provision must likewise be invalid if and to the extent that it has the legal or practical operation of denying to a court exercising jurisdiction under, or derived from, s 75(v) the ability to enforce the limits which Parliament has expressly or impliedly set on the decision-making power which Parliament has conferred on the officer. [47] Parliament can delimit the statutory jurisdiction which it chooses to confer under s 77(i) or invest under s 77(iii) to something less than the full scope of jurisdiction under s 75(v). Parliament can, under s 51(xxxix), regulate the procedure to be followed in the exercise of jurisdiction under s 75(v) or under s 77(i) or (iii), including by defining compulsory powers to compel disclosure of relevant information and by limiting admission of relevant evidence. [48] What Parliament cannot do under s51(xxxix) or under any other source of legislative power is enact a law which denies to this Court when exercising jurisdiction under s 75(v), or to another court when exercising jurisdiction within the limits conferred on or invested in it under s 77(i) or (iii) by reference to s 75(v), the ability to enforce the legislated limits of an officer’s power. The question whether or not a law transgresses that constitutional limitation is one of substance, and therefore of degree. To answer it requires an examination not only of the legal operation of the law but also of the practical impact of the law on the ability of a court, through the application of judicial process, to discern and declare whether or not the conditions of and constraints on the lawful exercise of the power conferred on an officer have been observed in a particular case. [The court at [49] cited Bodruddaza 5.3.57C as an illustration of that constitutional limitation being found to have been transgressed.] [50] Section 503A(2)(c) of the Act imposes a similarly blanket and inflexible limit on obtaining and receiving evidence relevant to the curial discernment of whether or not legislatively imposed conditions of and constraints on the lawful exercise of powers conferred by the Act on the Minister have been observed. [51] The legal operation of s 503A(2)(c), so far as relevant, is to prevent the Minister from being required to divulge or communicate to any court any information which can be demonstrated objectively to meet the two conditions in s 503A(1). The first of those conditions is that the information has been “communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information”. The second is that the information is “relevant to the exercise of a power under section 501, 501A, 501B or 501C”. … [52] The practical impact of that legal operation, so far as relevant, is in the application of s 503A(2)(c) to this Court when exercising jurisdiction under s 75(v) of the Constitution, and to the Federal Court when exercising under s 476A(1)(c) and (2) of the Act jurisdiction “the same as the jurisdiction of the High Court under [s] 75(v) of the Constitution”, to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C. The impact is to prevent this Court and the Federal Court from obtaining access to a category of information which, by definition, is relevant to the purported exercise of the power of the Minister that

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is under review, and which must for that reason be relevant to the determination of whether or not the legal limits of that power and the conditions of the lawful exercise of that power have been observed. This Court and the Federal Court, by the operation of s 503A(2), are denied the ability to require the information to be produced or adduced in evidence by the Minister irrespective of the importance of the information to the determination to be made and irrespective of the importance or continuing importance of the interest sought to have been protected by the gazetted agency when that agency chose to attach to its communication of information to an authorised migration officer the condition that the information be treated as confidential information. [53] To the extent s 503A(2)(c) operates in practice to deny to this Court and the Federal Court the ability to see the relevant information for the purpose of reviewing a purported exercise of power by the Minister under s 501, 501A, 501B or 501C, s 503A(2)(c) operates in practice to shield the purported exercise of power from judicial scrutiny. The Minister is entitled in practice to base a purported exercise of power in whole or in part on information which is unknown to and unknowable by the court, unless the Minister (after consulting with the gazetted agency from which the information originated) chooses to exercise the non-compellable power conferred on the Minister by s 503A(3) to declare that disclosure to the court can occur. [The court noted that the minister in this case had in fact relied on material that could be denied to a court under s 530A. The court also rejected an argument that the restrictions imposed by s 530A on divulging information to a court were analogous to public interest immunity claims and to statutory secrecy provisions. The court explained that neither prevented a court from examining documents to which a claim or provision applied.] [64] The problem with s 503A(2)(c) is limited to its application to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s 75(v) of the Constitution, and to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the Act, to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C to which the information is relevant. The problem then lies in the inflexibility of its application to withhold the information from the reviewing court irrespective of the importance of the information to the review to be conducted. To the extent that it so operates, the provision amounts to a substantial curtailment of the capacity of a court exercising jurisdiction under or derived from s 75(v) of the Constitution to discern and declare whether or not the legal limits of powers conferred on the Minister by the Act have been observed. [65] It is not necessary in this case to further analyse matters of substance and degree which may or may not result in the invalidity of a statutory provision affecting the exercise of a court’s jurisdiction under s 75(v). It may be necessary to do so in the future. In this case the effect of s 503A(2) is effectively to deny the court evidence, in the case of the applicant the whole of the evidence, upon which the Minister’s decision was based. It strikes at the very heart of the review for which s 75(v) provides.

5.3.59  The meaning of the observation that there is ‘an entrenched minimum provision of judicial review’ (Plaintiff S157/2002 16.3.17C at 482, 513) has not been spelt out by the High Court, but the cases reveal a wider picture. Plaintiff S157/2002 made clear that legislation that excludes or greatly limits supervisory review is an invalid attempt to infringe the minimum

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provision of review. The decisions in Bodrudazza 5.3.57C and Graham 5.3.58C demonstrate that s 75(v) also entrenches minimum procedural protections, which prevent erosion of judicial review through time limitations or restrictions on evidence before the court. Whether s 75(v) may extend to secure standards such as good faith and honesty as fundamental requirements for the exercise of executive power is not yet clear. Support for this possibility was hinted at in Bodruddaza in the court’s rejection of an argument that the effect of s 486A of the Migration Act 1958 (Cth) was to validate all migration decisions after 84 days, even if a decision was infected by fraud: Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ: It would be a bold exercise of legislative choice for the Parliament to enact that Ministers and their delegates were authorised to exercise fraudulently any of the powers of decision conferred upon them by statute. A legislative purpose of that kind would not be imputed in the absence of ‘unmistakable and unambiguous language’ (Plaintiff S157/2002 at 492). Further, in such an unlikely eventuality, questions of validity might well arise of the nature outlined in Plaintiff S157/2002 at 512–513.

5.3.60  Those examples, though illustrative, may have limited practical significance, since it is unlikely that the parliament would enact legislation authorising an official to proceed corruptly, fraudulently, dishonestly, capriciously or irrationally. As to some grounds, it is clear that the parliament can displace them; thus, for example, parliament can authorise an official to give binding directions to another official (see  11.4.1) and it can exclude the obligation to observe common law rules of natural justice: see  11.1.9. However, the designation of those common law rules as a code of procedural fairness raises a question as to whether there are minimum standards of fairness secured by s 75(v). In Abebe the High Court upheld the validity of legislation that limited the grounds for judicial review of migration decisions: see  2.2.26. Some other grounds — such as the relevant and irrelevant grounds — have both a narrow and a broad scope of operation. At their narrowest, they apply where an official has failed to construe or apply legislation correctly in choosing the matters to be considered: see  9.3.1. In that guise, those grounds are perhaps secured by the s  75(v) jurisdiction of the court to restrain unlawful action. At their broadest, those grounds apply also to factual irrelevancy: see 13.3.4. For discussion of the extent to which s 75(v) protects the content of the grounds of judicial review, see M Aronson, ‘Between Form and Substance: Minimising Judicial Scrutiny of Executive Action’ (2017) 45 Federal Law Review 519. 5.3.61  Aronson notes that, even following High Court decisions such as Bodrudazza 5.3.57C and Graham 5.3.58C and extensive academic commentary, ‘the meaning of the High Court’s declaration in S157 of “an entrenched minimum provision of judicial review” remains as elusive as ever’: M Aronson, ‘Between Form and Substance: Minimising Judicial Scrutiny of Executive Action’ (2017) 45 Federal Law Review 519 at 537. For commentary grappling with the scope of s 75(v) and the entrenched minimum provision of judicial review, see J Basten, ‘Constitutional Elements of Judicial Review’ (2004) 15 Public Law Review 187; Administrative Review Council, The Scope of Judicial Review, Report No 47, April 2006, at 57–60; J Stellios, ‘Exploring the Purposes of Section 75(v) of the Constitution’ (2011) 34 University of New South Wales Law Journal 70; W Bateman, ‘The Constitution and the Substantive Principles of Judicial Review: The Full Scope of the Entrenched Minimum

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Provision of Judicial Review’ (2011) 39 Federal Law Review 453; W Gummow, ‘The Scope of Section 75(v) of the Constitution: Why Injunction but No Certiorari?’ (2014) 42 Federal Law Review 241; L Muir, ‘The function of s 75(v) of the Constitution’ (2017) 24 Australian Journal of Administrative Law 21; L Burton Crawford, ‘The Entrenched Minimum Provision of Judicial Review and the Limits of “Law”’ (2017) 45 Federal Law Review 569. See generally L Burton Crawford, The Rule of Law and the Australian Constitution, Federation Press, Sydney, 2017; and D Meagher and M Groves, The Principle of Legality in Australia and New Zealand, Federation Press, Sydney, 2017.

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Rule-Making and Control of Subordinate Legislation

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6

INTRODUCTION — THE ROLE AND IMPORTANCE OF SUBORDINATE LEGISLATION 6.1.1  The Australian system of government is predicated on the existence of three arms of government: the legislature, the executive and the judiciary. Under that scheme — the separation of powers — it is the responsibility of the legislature to make rules; of the executive to administer and apply the rules in individual cases; and of the judiciary to resolve individual disputes concerning the making or administration of the rules. It is impracticable, however, for the legislature to make all legislation. Hence, a secondary — a subordinate, or delegated — role is played by the executive. Subordinate legislation made by the executive is not subject to the same parliamentary and public controls as primary legislation, and alternative methods have been devised to ensure that the executive is accountable for the way it discharges its lawmaking function. The controls include the requirement for executive adherence to statutory procedures, public consultation in subordinate law-making, the appraisal of subordinate laws by parliamentary committees, and judicial scrutiny of the validity of subordinate laws. These controls reflect the fact that the delegation of the parliament’s legislation-making power to the executive government ‘has the appearance of a considerable violation of the separation of powers, the principle that laws should be made by the elected representatives of the people in Parliament and not by the executive government’: Odgers’ Australian Senate Practice, 14th ed, Department of the Senate, Canberra, 2016, p 429. The scope and efficacy of those mechanisms will be explored in this chapter. 6.1.2  Subordinate legislation, in common with executive action generally, is dependent for its validity on proper authorisation by an Act of Parliament. That authorisation takes the form of a specific provision for the making of a subordinate law. As examined in Chapter 8, the courts have developed principles for gauging whether executive action is valid; lying behind those principles is an acceptance born of practical necessity that a law-making function must be undertaken by the executive. Indeed, the very first legal step taken by the English to establish a colony — Governor Phillip’s Proclamation at Sydney Cove — could be viewed as a subordinate legislative action. However, there is a traditional caution, if not

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suspicion, harboured by parliaments and courts of executive-made laws, especially when those laws impose obligations, detriments and other penalties upon the community. That concern is accentuated by the fact that subordinate laws are frequently made pursuant to a broadly expressed authorisation to make rules thought by the executive to be ‘necessary or convenient’ for carrying an Act into effect, coupled with public discomfort with the notion of penalties or other sanctions being authorised by officials and ministers or other bodies set up by statute. Issues of great consequence in law and government permeate any study of subordinate law-making: • Should it be for parliament to choose, without limitation or guidance, what rules to put in a statute and what subordinate rules can be developed by the executive?

• What controls should be placed on the development of subordinate laws by the executive? Should the executive be required, for example, to publicise its proposals in advance, and to consult with the public or with sectional interest groups in making subordinate laws? And if the executive has failed to comply strictly with those procedures, should the resulting subordinate laws be invalid, whatever inconvenience would thereby result? • What role should parliament play in reviewing subordinate laws? Should it be open to one house of the parliament to disallow or override a subordinate law?

• Which executive instruments or decisions should be regarded as ‘subordinate legislation’ for the purpose of applying controls on subordinate law-making?

• In deciding whether subordinate legislation is valid, should courts apply the same criteria that govern the validity of administrative decisions? Should the executive be obliged, for example, to observe natural justice in making subordinate laws? Can open-ended legal criteria such as Wednesbury unreasonableness, ‘reasonable proportionality’ or the duty to consider relevant matters suitably be applied to subordinate law-making?

• Would applying these judicial review grounds impose too much judicial control over rulemaking?

The nature of subordinate legislation 6.1.3  Subordinate legislation — also described as ‘delegated legislation’ — is a legislative rule made by an executive agency pursuant to an authority delegated by the legislature. The authority to make subordinate laws is usually contained in a section towards the end of a statute, delegating power to the Governor-General, a governor, a minister or a statutory authority to make rules to supplement the Act. A logical corollary is that repeal of the primary statute vitiates the power to make subordinate legislation: Griffin v Resource Management and Planning Appeal Tribunal and Christie (2010) 19 Tas R 424. 6.1.4  Subordinate legislation commonly deals with matters of detail and procedure to supplement the primary rules in an Act. One of the earliest High Court cases to confirm parliament’s power to make subordinate legislation supplementing the primary Act was Baxter v Ah Way (1910) 8 CLR 626. Justice O’Connor explained the basis for the power to make subordinate legislation as follows: [T]he legislature would be an ineffective instrument for making laws if it only dealt with the circumstances existing at the date of the measure. The aim of all legislatures is to 342

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project their minds as far as possible into the future, and to provide in terms as general as possible for all contingencies likely to arise in the application of the law. But it is not possible to provide specifically for all cases, and, therefore, legislation from the very earliest times, and particularly in more modern times, has taken the form of conditional legislation, leaving it to some specified authority to determine the circumstances in which the law shall be applied, or to what its operation shall be extended, or the particular class of persons or goods to which it shall be applied.

The delegation of legislative power to the executive has since been confirmed by the High Court in many other cases, most notably in Roche v Kronheimer (1921) 29 CLR 329; Victorian Stevedoring and General Contracting Co Pty Ltd v  Dignan 6.1.11C; and Wishart v  Fraser (1941) 64 CLR 470, concerning a war-time statute which virtually permitted the government to legislate by regulation during World War II. 6.1.5  Generally speaking, subordinate laws, as the name indicates, are not intended to deviate from the authorising Act. They are instead designed to supplement the wider powers expressed in statutes by providing detail, often of a quite technical nature, which does not need to be debated by parliaments, such as official forms, time limits, or details of weights and measures. Parliamentary rules committees assess the validity of subordinate laws, to ensure that they do not exceed the powers conferred by the authorising Act, that they contain principles which should properly be dealt with by an Act, and that they do not unduly trespass on rights and liberties of the person. However, there are circumstances in which subordinate legislation goes further than merely supplementing the terms of the primary Act. An example is the use of ‘Henry VIII’ clauses, which authorise rules to be made that are inconsistent with other Acts. The term derives from the extensive use of such clauses during the reign of Henry VIII, most famously in the Statute of Proclamations 1539, which provided: The King for the Time being, with the advice of his Council, or the more part of them, may set forth Proclamations under such Penalties and Pains as to him and them shall seem necessary, which shall be observed as though they were made by Act of Parliament.

The practice continues to the present, although it is infrequently used: Australian Capital Territory Legislative Assembly Standing Committee on Justice and Community Safety, Henry VIII Clauses Fact Sheet, ACT Legislative Assembly, Canberra, 2011. For examples of such clauses, see Public Governance, Performance and Accountability Act 2013 (Cth) s 104; Corporations Act 2001 (Cth) s 926B(1)(c); and Family Violence Act 2016 (ACT) s 201(2), discussed in the ACT Legislative Assembly’s Standing Committee on Justice and Community Safety, Scrutiny Report 10, ACT Legislative Assembly, Canberra, 2017, 17–18. In ADCO Constructions Pty Ltd v Goudappel (2014) 308 ALR 213 the High Court noted critically the effect in that case that a Henry VIII clause had on extinguishing compensation rights, but nevertheless gave effect to the clear meaning of the statute. Practical necessity may sometimes support the use of a Henry  VIII clause — as proposed, for example, in the United Kingdom’s European Union (Withdrawal) Bill for the purpose of amending the large quantity of legislation that needs to be changed prior to Britain’s withdrawal from the European Union. 6.1.6  There has been a steady annual increase in the volume of both primary and subordinate legislation. In 1964 the Commonwealth Parliament passed Acts comprising 943 pages; the number exceeded 6395 pages in 2014–15. In the same period the Office of Parliamentary 343

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Counsel drafted legislative instruments totalling 9738 pages (which was a fraction only of the total number of such instruments). There is a comparable volume and increase in subordinate legislation in the states and territories, though in some states the volume has been decreased significantly by recent culling programs: see 6.2.10. 6.1.7  The justifications for delegating a law-making function to the executive are borne largely of law-making convenience and executive expediency. There is not the time within parliament to make all legislative rules, or to regularly update the rules that specify forms, fees and other important practical details. The comparative ease of amendment of subordinate legislation also enables more frequent change in areas where flexibility or adaptation in legislative criteria is required. This may be particularly important in rules that regulate an industry or trade, when frequent redefinition of regulatory standards is inevitable or essential. 6.1.8  An allied consideration is that some rules have a special relevance to members of a particular industry or community — for example, the rules governing a university — and commitment of those rules to subordinate legislative status enables a much higher level of participation by the members of that community in their formulation. It is also arguably more appropriate for matters of detail to be included in subordinate laws rather than in framework legislation, as this makes the statute easier to understand, debate and implement: see  Regulations and Ordinances Committee, 40th Parliament Report, 112th Report, Commonwealth of Australia, Canberra, 2005, at [2.6], [2.8]; Administrative Review Council, Rule Making by Commonwealth Agencies, Report No  35, Commonwealth of Australia, Canberra, 1992, at [1.6]; D Pearce and S Argument, Delegated Legislation in Australia, 6th ed, LexisNexis Butterworths, Sydney, 2017, at [1.9]; and S Bottomley, ‘The Notional Legislator: The Australian Securities and Investments Commission’s Role as a Law-Maker’ (2011) 39 Federal Law Review  1. The growing bulk of regulatory rules in subordinate legislation means that complaints of ‘government red tape’ and ‘regulatory burden’ are often directed at subordinate laws. This topic is taken up at 6.1.23. 6.1.9  Another reason for the steady growth of subordinate legislation is the ease with which it can be made and amended by government. If the government does not control the upper house of the legislature, or anticipates a protracted legislative process, subordinate legislation can be a simpler, alternative method of law-making. Thus, for example, when a new Public Service Bill proposed by the Commonwealth Government in 1997 met opposition in the Senate, many of the features of the proposed Act were introduced as regulations under the existing Public Service Act 1922 (Cth) (although as subordinate legislation, the regulations ran the risk of disallowance in the Senate). 6.1.10  It will always be a lively topic of debate whether a legal rule is more appropriately placed in an Act rather than in subordinate legislation. Guidance on that issue is given in an extract from the Commonwealth Legislation Handbook 6.1.12E. The terms of reference for parliamentary scrutiny committees are generally not as extensive, as indicated by the terms of reference of the Senate Standing Committee on Regulations and Ordinances 6.1.13E.

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6.1.12E

Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 High Court of Australia

[This case concerned a challenge to the Transport Workers Act 1928–29 (Cth). The Act contained only three sections — ss 1 and 2 contained the title and commencement details, and s 3 provided as follows: 3. The Governor-General may make regulations … which, notwithstanding anything in any other Act but subject to the Acts Interpretation Act … shall have the force of law, with respect to the employment of transport workers, and in particular for regulating the engagement, service, and discharge of transport workers, and for the protection of transport workers, and for regulating or prohibiting the employment of unlicensed persons as transport workers, and for the protection of transport workers. The High Court upheld the validity of the wholesale delegation of legislative authority involved in the Act. An argument that it contravened the constitutional separation of powers was rejected by the court, essentially on the basis that delegation of legislative authority was an accepted feature of Anglo–Australian legal and constitutional development.] Dixon J: [A] statute conferring upon the Executive a power to legislate upon some matter contained within one of the subjects of the legislative power of the Parliament is a law with respect to that subject, and that the distribution of legislative, executive and judicial powers in the Constitution does not operate to restrain the power of the Parliament to make such a law. … This does not mean that a law confiding authority to the Executive will be valid, however extensive or vague the subject matter may be, if it does not fall outside the boundaries of Federal power. There may be such a width or such an uncertainty of the subject matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power. Nor does it mean that the distribution of powers can supply no considerations of weight affecting the validity of an Act creating a legislative authority.

6.1.12E

Department of Prime Minister and Cabinet, Legislation Handbook Commonwealth of Australia, Canberra, 2017

[I]t is not possible or desirable to provide a prescriptive list of matters suitable for inclusion in primary legislation and matters suitable for inclusion in subordinate legislation. The following are examples of matters implemented only through Acts of Parliament: (a) appropriations of money; (b) significant questions of policy including significant new policy or fundamental changes to existing policy; (c) rules which have a significant impact on human rights and personal liberties; (d) provisions imposing obligations on individuals or organisations to undertake certain activities (eg, to provide information or submit documentation, noting that the detail of the information or documentation required may be included in subordinate legislation) or desist from activities (eg, to prohibit an activity and impose penalties or sanctions for engaging in an activity);

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(e) provisions creating offences or civil penalties …; (f) provisions imposing administrative penalties for regulatory offences (administrative penalties are imposed automatically by force of law instead of being imposed by a court); (g) provisions imposing taxes or levies; (h) provisions imposing high or substantial fees and charges; (i) provisions authorising the borrowing of funds; (j) procedural matters that go to the essence of the legislative scheme; (k) provisions creating statutory entities …; and (l) amendments to Acts of Parliament.

6.1.13E

Senate Standing Committee on Regulations and Ordinances Senate Standing Order 23

23 Regulations and Ordinances (1) A Standing Committee on Regulations and Ordinances shall be appointed at the commencement of each Parliament. (2) All regulations, ordinances and other instruments made under the authority of Acts of the Parliament, which are subject to disallowance or disapproval by the Senate and which are of a legislative character, shall stand referred to the committee for consideration and, if necessary, report. (3) The committee shall scrutinise each instrument to ensure: (a) that it is in accordance with the statute; (b) that it does not trespass unduly on personal rights and liberties; (c) that it does not unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal; and (d) that it does not contain matter more appropriate for parliamentary enactment.

Forms of subordinate legislation and statutory instruments 6.1.14  Subordinate legislation comes in a variety of guises. These include a regulation, the term usually applied to subordinate rules made by a state governor or the Governor-General and that are general in their application (for example, Land Management Regulations); a rule, which usually specifies matters of procedure made by a court (for example, Supreme Court Rules); a by-law, the description normally given to an instrument limited to a specific geographic area (for example, the rules made by a local government council or by a university council); an Order in Council, made by a state governor or the Governor-General for a specific task; an ordinance, the term most commonly applied to laws made by the GovernorGeneral for the government of a territory, but also used — rather idiosyncratically — to describe building ordinances made under the Local Government Act  1993 (Qld) and subordinate laws made by the Brisbane City Council: see  D  Pearce and S  Argument, Delegated Legislation in Australia, 6th ed, LexisNexis Butterworths, Sydney, 2017, at [1.7]. A generic description — ‘legislative instrument’ — has been adopted by the Commonwealth following the introduction in 2005 of the Federal Register of Legislative Instruments, a 346

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database maintained by the Attorney-General’s Department. The expression is defined in s 8 of the Legislation Act 2003 (Cth): see 6.1.29. 6.1.15  Many other terms and descriptions have also been used by the legislature, including determination, order, direction, notice, plan, proclamation and declaration. It has been estimated that there are over 75 different forms of subordinate laws: D  Hamer, Can Responsible Government Survive in Australia, The Department of Senate, Canberra, 2004, ch  9. This multiplicity of categorisation has led to a blurring of the line between subordinate legislative instruments and other orders and decisions made by the executive. Attempts have been made to divine the distinction, but the resulting tests are inescapably framed in general terms that can be difficult to apply to a myriad of cases, as illustrated by the following oft-quoted clarification by the Full Federal Court in Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 at 265: The distinction [between delegated legislation and administrative instruments] is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases.

That distinction is supported by the description of ‘legislative instrument’ in s  8(4) of the Legislation Act 2003 (Cth): 6.1.29. Where the distinction can be important is when legislation attaches certain consequences to instruments of a particular description. An example is the interpretation legislation of most jurisdictions, which requires that ‘regulations’ be tabled in the parliament and be subject to disallowance. Another example, noted in 6.1.29 and 6.3.3, is Ch 2 of the Legislative Instruments Act 2003 (Cth) which requires that ‘legislative instruments’ must be publicly notified on the Federal Register of Legislation. The sanction is that a legislative instrument is not enforceable unless registered (s 15K(1)), and a legislative instrument which has been disallowed is taken to be repealed: s 45. In Chapter 2 it was noted that the Administrative Decisions ( Judicial Review) Act 1977 (Cth) (ADJR Act) facilitates review of ‘a decision of an administrative character’ (s 3), an expression which has been interpreted to exclude decisions of a subordinate legislative character: Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee 2.4.40C. The distinction between ‘legislative’, ‘executive’ and ‘judicial’ actions permeates many areas of administrative law. 6.1.16  Another categorisation that is relevant to the study of subordinate legislation is ‘disallowable instrument’. This term refers to executive instruments (not necessarily of a subordinate legislative character) that are required to be tabled in the parliament and may be disallowed by either house. A legislative instrument which has been disallowed is taken to be repealed: Legislation Act  2003 (Cth) s  42. Such instruments usually do not have to be published in advance of being made, in accordance with legislation on rules publication. Disallowable instruments are a growing source of rules, and their hybrid nature adds an element of complexity to their study. An Order in Council too usually does not have to be published in advance. An illustration of the extent of reliance on this form of statutory instrument was shown by a 1988 study by the Senate Committee on Regulations and Ordinances which identified 115 different categories of disallowable instrument: see Administrative Review Council, Rule Making by Commonwealth Agencies, Report No 35, Commonwealth of Australia, Canberra, 1992, [1.19]. The Legislative Instruments Act 2003 (Cth) (now the Legislation Act 2003) further broadened the range of instruments that are subject to tabling and disallowance: see 6.1.29. 347

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Control of Government Action

6.1.17  Further along the chain beyond disallowable instruments is a myriad of other statutory instruments of a quasi-legislative nature. As Scott LJ wryly observed in Blackpool Corporation v Locker [1948] 1 KB 349 at 368, ‘I am tempted to wonder whether someone in the Ministry of Health thought the name “circulars” would save them from recognition as delegated legislation’. Circulars, codes, guides, instructions, evidential rules, rules of practice, policies, taxation rulings — all share many of the characteristics of legislation. Indeed, as discussed in 12.1.7–12.1.10, it is increasingly common to refer to these other instruments as ‘soft law’ or ‘grey law’. Most importantly, they are rules that can be prescriptive and treated as binding by those who devise and apply them, and breach can give rise to legal consequences including administrative penalties and denial of benefits and concessions. Reviewability is variable: see 11.1.9–11.1.11. 6.1.18  The following extracts point to the broader debate relating to executive rule-making, and to the categorisation of rules as ‘legislative’, ‘executive’ or something else. The extracts below from Patchett v Leathem 6.1.19C and from R Baldwin and J Houghton 6.1.20E discuss the difficulties associated with hybrid or quasi-legislative instruments, and whether their use within government causes an accountability deficit. Another concern expressed by the Senate Standing Committee on Regulations and Ordinances, which it took up with the Office of Parliamentary Counsel (OPC), is that the statutory designation of a subordinate instrument as a ‘legislative rule’ rather than a ‘regulation’ had the effect that the OPC did not undertake the drafting of the instrument: see Delegated Legislation Monitor Nos 5, 6 and 9 of 2014. In contrast, two extracts, Administrative Review Council 6.1.21E and G Weeks 6.1.22E, point to the importance and effect that soft law rules now have in government, not least in providing practical guidance to the community on how legislation will be construed and administered. 6.1.19C

Patchett v Leathem [1949] 65 TLR 69 King’s Bench Division: High Court of England and Wales

Streatfield J: Whereas ordinary legislation, by passing through both Houses of Parliament or, at least, lying on the table of both Houses, is thus twice blessed, this type of so-called legislation [a United Kingdom Home Office circular] is at least four times cursed. First, it has seen neither House of Parliament; secondly, it is unpublished and is inaccessible even to those whose valuable rights of property may be affected; thirdly, it is a jumble of provisions, legislative, administrative, or directive in character, and sometimes difficult to disentangle one from the other; and fourthly it is expressed not in the precise language of an Act of Parliament or an Order in Council but in the more colloquial language of correspondence, which is not always susceptible of the ordinary canons of construction …

6.1.20E

R Baldwin and J Houghton, ‘Circular Arguments: The Status and Legitimacy of Administrative Rules’ (1986) Public Law 239

Before looking at what is to be done to make ‘informal legislation’ acceptable in our constitution, let us summarise the grounds on which such rules may give cause for concern.

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(i) They have legal effects (this is especially true of the evidential codes) but have largely by-passed parliamentary scrutiny. (ii) Their legal credentials are uncertain. It may not be clear whether legal effects are authorised or intended at all. (iii) They may be couched in unparliamentary language. They may be vague and nonjusticiable. (iv) They allow judges too much leeway in choosing whether to give effect to them or leave them alone. In Hart’s term, there is no workable rule of recognition. (v) They allow ministers illegitimately to instruct judges on the interpretation of statutes. (vi) They are resorted to on issues of great political contention and so render the law most vague at the points where it should be most clear. This is a retreat from law. (vii) They may be inconsistent with primary legislation. (viii) They are published haphazardly, if at all, and are inaccessible. (ix) Little provision is made for consultation or public input into many rule-making procedures. (x) Special groups and interests may exercise influence in lobbying, and representation may be weighted towards the interest of a pressure group or department. (xi) The administration may take over from the legislature the function of determining general policy. (xii) The misapplied or mistakenly-formulated rule is difficult to challenge. (i) (ii) (iii) (iv) (v) (vi)

On the other hand, there are reasons for resorting to informal rules. They guide untrained officials and so facilitate planning and management. They encourage consistency in bureaucratic decision-making. They inform the public of official attitudes. They simplify complex issues and make them intelligible to those affected. They are flexible and may be issued quickly. They deal with matters that are not amenable to strictly legal language, eg broad policies and regulatory philosophies. (vii) They are relatively free from judicial review. (viii) They allow control of official action where legislation is either inappropriate or politically undesired by the government.

6.1.21E

Administrative Review Council, Administrative accountability in business areas subject to complex and specific regulation Report No 49, Commonwealth of Australia, Canberra, 2008

Non-legislative materials – such as codes of practice and codes of ethics developed by industry bodies and other non-government entities involved in self-regulation … are important regulatory tools. They are referred to … as ‘soft law’; the expression also takes in the guidelines, codes and other non-legislative materials that are used increasingly by government regulatory agencies. Soft law is not binding by force of statute but may be binding in other ways – for example, through agreement. As a result, failure to comply with soft law rules can have legal consequences for individuals and corporations. Government soft law is generally not subject to the range of administrative law review mechanisms applicable to the ‘black letter’ law that is also administered by government agencies …

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6.1.22E

Control of Government Action

G Weeks, Soft Law and Public Authorities: Remedies and Reform Bloomsbury Publishing, Oxford, 2016

Some norms have consequences which are not formal but nonetheless remain powerful. Consider an agency’s formal statement of how it will interpret certain legislation, such as precedential views provided by the Australian Taxation Office (ATO) which represent the ATO’s interpretation of any laws administered by the Commissioner of Taxation. Alternatively, consider a Department’s guidelines as to how it will interpret certain ordinary English words, such as those which appear in legislative instruments in relation to a reference to the annual ‘turnover’ of a business, which are not defined in legislation … There can be little doubt that soft law has consequences and that they are significant. Are these consequences formal? In one sense, they are not: soft law is not directly enforceable in court proceedings. This is the orthodox understanding of the effect of soft law. However, there are two ways in which soft law has effects which cannot be dismissed as merely informal. The first is that courts take notice of soft law. It is over 20 years since the Full Federal Court noted that ‘the proposition that government policy cannot bind [a public authority] does not imply that the policy can be ignored’ … The second ‘formal’ effect of soft law is connected to the first: people will be subjected to real and legally effective consequences as a result of the operation of soft law. This may be … because soft law is given something close to normative operation by tribunals and courts. It may also be because people structure their dealings in reliance upon soft law which either undergoes a change or is subsequently interpreted in an unexpected way. Consequences which materially affect individuals are in no way reduced or removed because they are not characterized as legally ‘formal’. Soft law can also have effects which are harder to trace to precise outcomes but which are nevertheless significant. For example, soft law is frequently used as a method of confining the discretion of administrative decision-makers. In part, this is designed to bring consistency to those decisions, but soft law is also used as a method of ensuring that discretionary power is exercised accountably.

Regulatory impact and subordinate legislation 6.1.23  There has been an intense debate in Australia since the late 1990s about the burden of government regulation upon industry. The thrust of the debate is that some government regulation has become overly prescriptive, badly designed, poorly administered, inconsistent and duplicative, unduly burdensome, unnecessarily costly to industry, and a barrier to national business competition. Much of the criticism has been directed at subordinate legislation, which contains many of the regulatory rules. As the debate has progressed, the line between primary legislation, subordinate legislation and administrative instruments has become increasingly blurred. The report by the Regulation Taskforce into reducing business regulation used the term ‘regulation’ to refer to all ‘government “rules” that influence or control the way people and businesses behave’: Rethinking Regulation: Report on the Taskforce on Reducing Regulatory Burdens on Business, Commonwealth of Australia, Canberra, 2006 (Banks Report) at  3. A  recommendation in the Banks Report that Australian governments should jointly adopt a policy spelling out the principles of good regulatory practice to be followed by all levels of government in Australia was taken up by the Council of Australian Governments (COAG) 350

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in October 2007. The Commonwealth Government has intensified efforts to make regulatory practices more coherent and efficient as part of its deregulation and ‘cutting red tape’ agenda and has a target of $1 billion annually to reduce regulatory costs, a target exceeded in 2014 and 2015: Commonwealth Department of Jobs and Small Business, Annual Red Tape Reduction Report 2015. 6.1.24  In 2016 the Senate established a Select Committee on Red Tape to enquire into the effect of restrictions and prohibitions on business, on the economy, and on the community. Initial areas for enquiry include the sale, supply and taxation of alcohol; environmental assessment and approvals; child care; and financial services. Nonetheless, as the Productivity Commission acknowledged, even if there is an adverse impact from the volume of subordinate laws, ‘they are often essential in making the market work’: Shifting the dial: 5 year productivity review, Inquiry Report No 84, Commonwealth of Australia, Canberra, 2017, at [5.3]. 6.1.25  There has been substantial reform of government regulatory processes following the Banks Report and initiatives by COAG, which in 2007 developed its Guide for Ministerial Council and Standard Setting Bodies. At the national level, the reform agenda is co-ordinated by the Office of Best Practice Regulation, which oversees the obligation upon agencies to prepare, in respect of all regulatory proposals, a regulatory impact analysis of business compliance costs and competition impacts. The office produces an annual Best Practice Regulation Report, and has published a regulation handbook: Best Practice Regulation Handbook, Commonwealth of Australia, Canberra, 2007. The Commonwealth Government has also released the Australian Government Guide to Regulation 6.2.5E and the Regulator Performance Framework as part of its deregulation agenda and to complement the work of the Office of Best Practice Regulation. In addition, following the High Court’s decisions in Williams v Commonwealth (No 1) 9.2.30C and Williams v Commonwealth (No 2) 9.2.31C that spending by the executive must generally be supported by legislative authority, the Senate Regulations and Ordinances Committee now requires the explanatory statement accompanying a legislative instrument for a new program to indicate the legislative authority for the expenditure: S  Argument, ‘Executive law-making in the 21st century: Delegation not subordination’, conference paper, Australia– New Zealand Scrutiny of Legislation Conference, 11–14 July 2016, at 25. State and territory governments have taken similar steps to reform regulatory processes and require regulatory impact statements: see, for example, the Victorian Guide to Regulation Toolkit: Requirements and processes for making subordinate legislation (updated 2016), published by the Commissioner for Better Regulation. Victoria has also established the office of Red Tape Commissioner. 6.1.26  Another theme in the debate about regulatory burden that is relevant to subordinate legislation has to do with ‘alternative compliance mechanisms’ (ACMs), which are a means of regulating an industry or occupation other than by formal legislative rules. Instead, the industry to be regulated is responsible for developing its own codes, guides or other recognised standards, which are enforced on a self-regulatory basis within the industry. An example was the ACM offered to fully accredited Queensland cotton growers who could use their accreditation as evidence that they met land and water management plan requirements. It is usually required that the ACM meets a minimum legislative standard, failing which a standard or regulatory mechanism outlined in the legislation may come into operation  — dubbed ‘light touch regulation’. The minimum conditions to be met in an ACM commonly include environmental, safety and health standards. Prior consultation between the industry, government and the public can also be a part of the processes that are required before an ACM 351

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is put in place. Another example is Pt IIIB of the Privacy Act 1988 (Cth) which enables a ‘code developer’ (for example, an industry association) to adapt the Australian Privacy Principles into its own privacy code to operate in a particular area, to be approved by the Australian Information Commissioner and entered on the Codes Register.

Accountability and control of subordinate legislation 6.1.27  It is axiomatic that notions of public accountability should apply to the subordinate law-making process. It is a fundamental principle of the Westminster system that delegated legislative power is a limited power. In traditional terms, accountability is exacted through parliamentary oversight, yet practical difficulties lie in the way of applying that principle to subordinate law-making. An initial problem adverted to earlier is that of identifying which instruments are truly legislative in character such that they should be tabled in the parliament and be subject to scrutiny and disallowance. Another difficulty with direct parliamentary control is that any further increase in the volume of instruments to be scrutinised would very likely overload the parliamentary scrutiny committees and make their task impossible. The limited parliamentary time allocated to scrutiny and restrictions on debate compound the problem. Further, the very reasons that cause rules to be couched in a subordinate legislative or quasi-legislative form — flexibility in the law-making process, elaboration of technical detail, and the absence of adequate parliamentary expertise or time — militate against this being a practical option in many cases. 6.1.28  The response to these difficulties has been the adoption of several different approaches for ensuring accountability in all stages of the subordinate legislation process. In broad terms, there are different points at which control can be exercised, which are noted briefly below, then considered in greater detail in the remainder of the chapter: • Public consultation on proposed rule-making: The publication of proposed rules before they are formally made enables those who may be affected by the rules to consider their impact, to assess the costs and benefits, to influence the shape of any proposed regulatory regime, and to comment on matters of drafting and technical detail. In some Australian jurisdictions there are statutory requirements for public consultation, either applying generally to all subordinate laws or imposed in specific areas such as broadcasting, planning, and primary producer regulation. Failure to consult as required can spell invalidity. Consultative procedures are also established widely at an executive level, both in formal policy directions and by informal practice. Antecedent publicity is dealt with in more detail in 6.2.1–6.2.8.

• Internal executive controls: In most jurisdictions there are formal executive procedures to control how subordinate legislation is prepared and drafted. Commonwealth examples include the Legislation Handbook (reissued 2017), Instruments Handbook (reissued May 2018), Australian Government Guide to Regulation (2016), User Guide to the Australian Government Guide to Regulation (2016), and the Australian Regulator Performance Framework issued to Australian Government agencies. These executive guidelines stipulate that Australian Government agencies must conduct public consultation before introducing new regulations, demonstrate a net overall benefit from the new regulation, and periodically review regulations to test their continuing relevance. A common feature of the executive guidelines in all jurisdictions is an instruction to the effect that, unless warranted by special circumstances, subordinate legislation should not contravene core public law principles designed to safeguard civil liberties. 352

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• Publication of subordinate legislation: Australian jurisdictions generally require that, upon being made, statutory instruments be numbered, printed and made available for purchase by the public. In practice, this means publication either on a legislation database, such as the Federal Register of Legislation, or publication in the government Gazette either of the full text of an instrument or its name and where it can be purchased. Statutory publication is dealt with in more detail in 6.3.1ff.

• Parliamentary oversight: Most categories of subordinate legislation are required to be tabled in each house of the legislature, to enable scrutiny and possible disallowance. Parliament is assisted in this function by scrutiny committees, such as the Senate Standing Committee on Regulations and Ordinances, and the Victorian Scrutiny of Acts and Regulations Committee. The terms of reference of such committees commonly focus on whether the content and operation of a subordinate law is compatible with cardinal public law standards; for example, whether it has a retrospective operation, trespasses unduly on common law rights, or confers powers that should be subject to merits review: see  Regulations and Ordinances Committee 6.4.9E. A breach of those standards may result in an adverse report by the committee, followed by disallowance by either house of the legislature. Parliamentary control is dealt with in more detail in 6.4.1ff.

• Judicial review: It falls within the province of courts under the separation of powers to examine whether subordinate legislation was validly made. The issue usually comes before a court in the context of a challenge by a litigant to the validity of an administrative decision, on the basis that the decision was made pursuant to subordinate legislation that was itself invalid. The argument can take many forms, including that the subordinate legislation was not made in compliance with statutory publication or tabling procedures, that it is beyond the scope of the primary Act under which it was purportedly made, or that its content is inconsistent with other statutes or the Constitution. These matters are examined further in 6.5.1 and in Chapter 8.

• Other mechanisms of administrative law review: Ombudsmen, tribunals and other administrative law review agencies also play a role, though less central in nature, in the review and control of subordinate legislation. A common review criterion in ombudsman statutes is that the administrative action being investigated by the ombudsman was undertaken ‘in accordance with a rule of law, a provision of an enactment or a practice [which is] unreasonable, unjust, oppressive or improperly discriminatory’: Ombudsman Act 1976 (Cth) s 15(1)(a)(iii). Administrative tribunals likewise review decisions that are made in pursuance of subordinate legislation, and in an appropriate case — though not without some doubt — may choose to review whether the subordinate legislation was valid: see 5.3.33. By contrast, it does not fall within the merits review function of a tribunal to examine whether the subordinate legislation (as opposed to the decision made in pursuance of it) was correct or preferable.

The statutory framework in each Australian jurisdiction for control of subordinate legislation is examined in D Pearce and S Argument, Delegated Legislation in Australia, 6th ed, LexisNexis Butterworths, Sydney, 2017, chs 2–11. 6.1.29  The range of controls on the making of subordinate legislation has become more extensive, partly in response to the criticism made by the Administrative Review Council in 1992, of being ‘patchy, dated and obscure’: Rule Making by Commonwealth Agencies, Report 353

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No  35, Commonwealth of Australia, Canberra, 1992, at  ix. Subsequently, the rules relating to subordinate legislation were clarified and consolidated into a single Act, the Legislative Instruments Act 2003 (Cth), now the Legislation Act 2003 (Cth). The scheme of the Act is as follows:

• Federal Register of Legislation: The Act establishes a Federal Register of Legislation that provides for website access to Acts, legislative instruments, notifiable instruments, explanatory memoranda and associated documents and information: s 15A. The Act provides that the Register ‘is, for all purposes, taken to be a complete and accurate record of all registered Acts, legislative instruments and notifiable instruments’: s  15B. The First Parliamentary Counsel maintains the Register and website . The Counsel also has the function of encouraging high standards in the drafting of legislative and notifiable instruments by promoting steps to ensure their legal effectiveness, clarity and intelligibility to anticipated users: s 16.

• Definition of ‘legislative instrument’ and ‘notifiable instrument’: The Legislation Act contains special rules (noted below) relating to the making, publication, sunsetting and interpretation of legislative instruments and notifiable instruments. The definition of those categories is therefore important. A ‘legislative instrument’ is defined in s  8 as an instrument that is described or declared by the Legislation Act or another law to be a legislative instrument, an instrument that is registered on the Federal Register as a legislative instrument, or an instrument that satisfies the following generic definition in s 8(4) of the Act: 8(4) An instrument is a legislative instrument if: (a)

(b)

the instrument is made under a power delegated by the Parliament; and any provision of the instrument:

(i) determines the law or alters the content of the law, rather than determining particular cases or particular circumstances in which the law, as set out in an Act or another legislative instrument or provision, is to apply, or is not to apply; and

(ii) has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.

The Legislation (Exemption and Other Matters) Regulation 2015 (Cth) lists nominated individual instruments and classes of instruments that are declared not to be legislative instruments (and includes certain decisions reviewable under the ADJR Act).

Notifiable instruments are registered on the Federal Register but (unlike legislative instruments) are not subject to parliamentary scrutiny, automatic repeal ten years after registration or public consultation requirements. A ‘notifiable instrument’ is defined in s 11 as an instrument that is described or declared by the Legislation Act or another law to be a notifiable instrument, an instrument that is registered on the Federal Register as a notifiable instrument, or an instrument that commences the operation of an Act or legislative or notifiable instrument or that amends a notifiable instrument.

• Public consultation: The Legislation Act requires public consultation in the making of legislative instruments ‘where appropriate’ and ‘reasonably practicable’: s 17(1). Consultation is generally regarded as appropriate with people who have expertise in the subject of the instrument or to seek the views of those likely to be affected by the legislative instrument: s 17(2). The public consultation may include public notification of proposed rule-making, invitations to selected 354

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groups, consideration of submissions and public hearings: s 17(3). A failure to consult does not affect the validity or enforceability of a legislative instrument: s 19. However, s 15J(2) of the Act requires that that there be an explanation in the explanatory memorandum of why consultation was not undertaken. In 2016, the Senate Committee on Rules and Ordinances developed the Guideline on consultation to assist those faced with the obligation.

• Parliamentary scrutiny: The Legislation Act consolidates the existing procedures for parliamentary tabling and scrutiny, imposing some additional rigour; for example, reducing the 15-day tabling period to six sitting days: s 38.

• Enforcement: The main method of enforcement of the publication requirements of the Legislation Act is that an instrument that is not registered on the Register is not enforceable by or against any person including the Commonwealth: s 15K. Roche Products 2.4.40C is an example of a court holding that an instrument (a Poisons Standard) that was not registered and was a legislative, and not an administrative, instrument, was unenforceable and the Standard had to be remade: see D Pearce, ‘The Importance of Being Legislative: A Reprise’ (2008) 57 AIAL Forum 20. • Sunsetting: The general rule is that legislative instruments are repealed automatically — ‘sunsetted’ — 10 years after their commencement (s 50), though a rule in the same terms could then be remade. The Attorney-General may issue a certificate to extend the life of the legislative instrument: s 51. The Banks Report 6.1.23 recommended that the period be reduced to five years.

• Other provisions: The Legislation Act also contains other important rules about legislative and notifiable instruments – for example, as to commencement, that an instrument does not generally apply retrospectively if that would adversely affect rights or impose liabilities (s 12), that they are to be interpreted according to the same rules applying to Acts and can be read down to enhance their valid operation (s 13), and restrictions apply to incorporating external documents by reference into instruments: s 14.

There is no equivalent of the Legislation Act  2003 (Cth) in any of the states or territories, although, as set out below, most of the features of the Act exist in one form or another in other jurisdictions. The significance of the federal Act is explained in the following extract from S Argument 6.1.30E dealing with the Legislative Instruments Act 2003 (Cth), but in terms equally applicable to the Legislation Act 2003 (Cth) which came into force in 2016. 6.1.30E

S Argument, ‘Delegated Legislation’ in M Groves and HP Lee (eds), Australian Administrative Law, Cambridge University Press, Melbourne, 2007

[T]he regime provided for by the Legislative Instruments Act (LIA) operates by reference to what an instrument does, rather than by what it is called. … [I]n all other Australian jurisdictions, whether or not an instrument is subject to the relevant regime for publication, tabling and disallowance is governed by whether or not the instrument in question is a ‘disallowable instrument’, a ‘regulation’, a ‘statutory instrument’, a ‘statutory rule’, a ‘subordinate law’, ‘subordinate legislation’ or ‘subsidiary legislation’, depending on the jurisdiction. The effect of this approach to instruments is that all that is required for an instrument not to be subject to the relevant publication, tabling and disallowance regime is for it to be

355

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designated as something other than the term that triggers the operation of that regime. From a theoretical perspective at least, it is difficult to justify a process that operates on the basis of what legislative instruments are called, rather than what they do. Nomenclature should be irrelevant, not the least because it is a reflection of variations in bureaucratic practices and preferences, drafting approach or in what the Parliament might be prepared to allow at a particular time. This sleight-of-hand with nomenclature has, in the Commonwealth at least, been the single biggest cause of the explosion of ‘quasi-legislation’ that occurred in the twenty-five or so years prior to the enactment of the LIA. … The LIA addresses four basic problems prevailing before the enactment of the LIA. The first problem relates to the proliferation of instruments not covered by the existing regimes. Proliferation becomes irrelevant, because instruments are now covered by the LIA, irrespective of what they are called. … Secondly, the LIA by providing that instruments are recognised as having a legislative effect and have to be registered, leads to agencies taking more care to ensure that they say and do what they are supposed to do. The third problem of accessibility is arguably the most important. The LIA ensures that people can now work out what the law is by making sure that all ‘legislation’ is now publicly available. Apart from requiring that instruments be tabled in the Parliament the LIA establishes a Federal Register of Legislative Instruments (FRLI), in which all legislative instruments must be registered. Finally, the LIA ensures that instruments of a legislative character receive appropriate scrutiny by the legislature.

6.1.31  Notwithstanding the benefits of this functional approach, it presents difficulties of classification in the context of soft law, as noted in R Creyke, ‘“Soft Law” and Administrative Law: A New Challenge’ (2010) 61 AIAL Forum 15 at 15: It might have been thought that the Legislative Instruments Act  2003 (Cth) which distinguishes between legislative and non-legislative instruments would clarify the position. That assumption would be unsafe. Not only does the definition of ‘legislative instrument’ itself lead to a degree of uncertainty, referring as it does to an ‘instrument’ as legislative if it ‘determines the law’ and has an ‘indirect effect’ on rights and interests — both expansionary notions — but, in order to avoid their lack of enforceability, agencies have chosen to register as legislative instruments any instruments the legislative character of which is doubtful. The result has been to include on the register many instruments which could be categorised as soft law since they are executive, not legislative, in nature.

PUBLIC CONSULTATION ON PROPOSED RULE-MAKING 6.2.1  A hallowed aspect of constitutional tradition is that the functions of parliament, most importantly its consideration of legislation, are conducted openly. With that comes an opportunity for the public to participate in debate about the merits of legislation before it is enacted. There is no comparable tradition or democratic right applying to the making of subordinate legislation. A move to establish such a tradition by a combination of legislative and executive reform is noted below at 6.2.4. The alternative, of relying upon judicial creativity to establish a right of public consultation in the making of subordinate legislation, has not met with any success. Courts have held that the obligation to observe natural justice does not apply to executive action to make rules of a legislative character: see GJ Craven, 356

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‘Legislative Action by Subordinate Authorities and the Requirement of a Fair Hearing’ (1988) 16 Melbourne University Law Review 569. Exceptions may apply, as noted by Pearce and Argument, for example, if the content of the instrument would normally ‘be subject to the hearing rules’ or if ‘the legislation impinges on a specific person or a limited number of persons’: D  Pearce and S  Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017, at [13.4]. 6.2.2  Public consultation in the formulation of subordinate legislation is recognised, and, for example, the Senate Standing Committee on Regulations and Ordinances regularly returns subordinate laws to agencies if no appropriate consultation has been conducted. The benefits of consultation include that it enables those affected by a proposed instrument to consider its likely effect upon them, to assess the costs and benefits of an instrument, and to influence the shape of any proposed regulatory regime. This can result in greater acceptance of the need for regulation by those affected. It is thought that participation can also result in more successful policy outcomes by involving the community in policy formulation and regulation: W  Howarth, ‘Aspirations and Realities Under the Water Framework Directive: Proceduralisation, Participation and Practicalities’ (2009) 21 Journal of Environmental Law 391. 6.2.3  Public consultation, though desirable in principle, can take many forms that vary in quality from one instance to the next. Consultation can be resource intensive and undermined at any time by a lack of political or executive will to take the process seriously. The quality and integrity of the consultative process can likewise reflect the value placed upon it by the agency that is managing it. There is a further risk of ‘captured consultation’, identified by the Administrative Review Council, Rule Making by Commonwealth Agencies, Report No  35, Commonwealth of Australia, Canberra, 1992, at 36: Informal mechanisms tend to depend on the sponsoring agency contacting known groups. This runs the risk of ‘captured consultation’. The groups known to the agency expect to be consulted and the agency will anticipate and seek their responses. Both parties develop an expectation about being consulted and the likely content of that consultation. Other points of view, however legitimate, are excluded by these arrangements.

6.2.4  A major stimulus to greater consultation in the making of subordinate legislation has been the commitment of Australian governments to reduce inefficient regulation and the regulatory burden on business. Following the Banks Report 6.1.23, COAG adopted a policy on consultation in relation to regulation affecting business — with eight principles for best practice consultation. The Senate Red Tape Committee also maintains a focus on business consultation. The COAG initiative led to the adoption of new consultation mechanisms, including the conduct of a rolling five-year review of regulation by the Productivity Commission, and the establishment of a ‘business consultation website’, maintained by the Department of Industry, Innovation and Science. These mechanisms are underpinned by a consultation policy adopted by COAG in 2007, Guide for Ministerial Councils and Standard Setting Bodies. At the Commonwealth level, public consultation and regulatory benchmarking is now mandated for all proposed policies by the Australian Government Guide to Regulation (2014), supplemented by the User Guide to the Australian Government Guide to Regulation (2016), the Australian Government Regulator Performance Framework, the Productivity Commission’s Regulator Audit Framework and the Australian Audit Office’s Administering Regulation – Achieving the Right Balance: Better Practice Guide (2014). 357

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Department of the Prime Minister and Cabinet, The Australian Government Guide to Regulation Commonwealth of Australia, Canberra, 2014

[The guide outlines 10 principles for policy makers to ensure the compliance cost to individuals, business and community organisations of working with government is appropriate: p 5.] 1. Regulation should not be the default option for policy makers, the policy option offering the greatest net benefit should always be the recommended option 2. Regulation should be imposed only when it can be shown to offer an overall net benefit 3. The cost burden of new regulation must be fully offset by reductions in existing regulatory burden 4. Every substantive regulatory policy change must be the subject of a Regulation Impact Statement 5. Policy makers should consult in a genuine and timely way with affected businesses, community organisations and individuals 6. Policy makers must consult with each other to avoid creating cumulative or overlapping regulatory burdens 7. The information upon which policy makers base their decision must be published at the earliest opportunity 8. Regulators must implement regulations with common sense, empathy and respect 9. All regulation must be periodically reviewed to test its continuing relevance 10. Policy makers must work closely with their portfolio deregulation units throughout the policy making process.

Statutory consultation requirements applying to subordinate legislation 6.2.6  The United States led the way in developing formal consultative procedures, often termed ‘notice and comment’ procedures. These are described by KC  Davis in a classic publication, Discretionary Justice: A Preliminary Inquiry, Louisiana State University Press, Baton Rouge, 1969, which was a foundation text in public law that argued for the formalisation of public rule-making procedures: The usual procedure is that prescribed by the Administrative Procedure Act, the central feature of which is publishing proposed rules and inviting interested parties to make written comments. Anyone and everyone is allowed to express himself and to call attention to the impact of various possible policies on his business, activity or interest. The agency’s staff sifts and summarises the presentations and prepares its own studies. The procedure is both fair and efficient. Much experience proves that it usually works beautifully.

The European Union has mandated public participation and publication of information at all stages of legislating and decision-making in respect of environmental matters via the Aarhus Convention: United Nations Economic Commission for Europe, Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (adopted 25 June 1998 and still in force). 6.2.7  Australia has also paid attention to establishing a legislative footing for consultative procedures in subordinate law-making. The usual procedure is to require preparation of a public 358

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consultation statement to explain the scope, purpose and impact of a proposed rule. At times, this takes the guise of requiring preparation of a ‘regulatory impact statement’ (RIS) to explain the costs, benefits and impact of a proposed rule, but terms such as ‘negotiated rule-making’, ‘reg-neg’ and ‘regulatory efficiency evaluation’ are sometimes used to describe the process. There is a legislative footing for the public consultation procedures in the Australian Capital Territory, three states and the Commonwealth: Cth: Legislation Act  2003 ss  17, 19; ACT: Legislation Act  2001 Ch  5; NSW: Subordinate Legislation Act  1989 ss  5–6; Tas: Subordinate Legislation Act  1992 ss  5–6; Vic: Subordinate Legislation Act  1994 ss  6, 7–12; see  6.1.28. In Queensland the Office of Best Practice Regulation has introduced an equivalent process relying on the Queensland Government Guide to Better Regulation (2016). Similar procedures have been introduced administratively in the Northern Territory, South Australia and Western Australia. 6.2.8  The rigour and coverage of the public consultation and RIS procedures vary from one jurisdiction to the next, with broad exemptions from the process often applying. The general position is that non-compliance with the consultation procedures does not affect the validity of an instrument, although a consultation requirement can be framed as a precondition to the validity of an instrument: see, for example, Philip Morris Ltd v Victoria [1986] VR 825. The objectives that can be incorporated in an RIS process are limitless, and increasingly reflect the view in government that regulatory reform and improvement of subordinate legislation processes must be an integrated program.

Sunsetting and repeal days 6.2.9  A related theme is the trend within government towards ensuring that subordinate laws do not remain in force when they are no longer required, by providing legislatively for their automatic repeal unless a formal re-making process occurs (10 years being the most common period). This mechanism can facilitate periodic public and industry consultation in reviewing the regulatory suitability of a rule. This ‘sunsetting’ process is now common in Australia: see Cth: Legislation Act 2003 ss 50–54; NSW: Subordinate Legislation Act 1989 ss 10– 12; Qld: Statutory Instruments Act 1992 Pt 7; SA: Subordinate Legislation Act 1978 Pt 3A; Tas: Subordinate Legislation Act 1992 Pt 3, ss 11–12; Vic: Subordinate Legislation Act 1994 ss 5–6. For a discussion of the Commonwealth’s sunsetting provisions see  Attorney-General’s Department, Sunsetting Review Committee, Report on the Operation of the Sunsetting Provisions in the Legislation Act 2003, Commonwealth of Australia, Canberra, 2017, and the Department of Prime Minister and Cabinet, Office of Best Practice Regulation Sunsetting legislative instruments guidance note, Commonwealth of Australia, Canberra, 2016. 6.2.10  A reduction in the volume of subordinate laws has stemmed as well from periodic culling programs that have been undertaken by regulatory review committees. For example, the Commonwealth Government’s ‘Cutting Red Tape’ initiative aims to reduce regulation through bi-annual parliamentary repeal days to ‘cut unnecessary and costly legislation and regulation’. In the 2014 Autumn Repeal Day, over 10,000 pieces and 50,000 pages of legislation and regulation were repealed. In the 2014 Spring Repeal Day, nearly 1000 pieces and more than 7200 pages of legislation and regulation were nominated for repeal. In the 2015 Autumn Repeal Day, over 890 Acts and 160 legislative instruments were nominated for repeal. Between September 2013 and December 2016, decisions were taken that could reduce the burden of Australian Government regulation by an estimated $5.8 billion a year. The Commonwealth Government 359

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estimates that the total net deregulatory savings of these Repeal Days is over $2.45 billion and amounts to a reduction of more than 25 per cent in the number of legislative instruments in force: see . Similar initiatives have been undertaken in the states.

PUBLICATION OF SUBORDINATE LEGISLATION 6.3.1  Legislation in each jurisdiction requires that some categories of statutory rule, upon being made, must be numbered, printed, made available for purchase by the public, and be notified in the government Gazette or other otherwise published. Publication today is generally online, an example being the Federal Register of Legislation at . These requirements aim to make all forms of legislation accessible to the public, in the face of the maxim that ‘ignorance of the law is no excuse’. Public register requirements are imposed by the following statutes: Cth: Legislation Act 2013 Ch 2; ACT: Legislation Act 2001 Ch 2; NSW: Interpretation Act 1987 Pt 6A; NT: Interpretation Act s 63; Qld: Legislative Standards Act 1992 s 7; Statutory Instruments Act 1992 ss 6, 47; SA: Subordinate Legislation Act 1978 s 11; Tas: Acts Interpretation Act 1931 s 47; Legislation Publication Act 1996 ss 5, 6; Rules Publication Act 1953 ss 2, 5; Vic: Subordinate Legislation Act 1994 Pts 3A, 4; WA: Interpretation Act 1984 s 41. 6.3.2  The usual decree in each jurisdiction is that the statutory rule will commence operation on or after the date of notification in the Gazette or entry on the public register: for example, Interpretation Act 1987 (NSW) s 22. There is no general prohibition against notifying that a subordinate instrument is to have retrospective operation, although the general presumption is that instruments operate prospectively only following notification and publication. It is implicit in the statutory command that an instrument commences operation after notification, that a failure to notify properly will result in the instrument being inoperative, not invalid: see  Golden-Brown v  Hunt (1972) 19 FLR 438; Watson v  Lee (1979) 144 CLR 374. In some jurisdictions there are special rules to deal with other manifestations of this problem, particularly the failure to comply with a requirement for publication of a statutory instrument. For example, in the Commonwealth a legislative instrument is not enforceable against any person unless it is registered as a legislative instrument on the Federal Register of Legislation: Legislation Act 2003 s 15K. In New South Wales a statutory rule takes effect only from the date of actual publication (Interpretation Act 1987 (NSW) s 39(2A)), and in Victoria an individual cannot be prejudicially affected by an instrument that could not be accessed at the relevant time: Subordinate Legislation Act 1994 (Vic) s 20(3). See also: ACT: Legislation Act 2001 s 62; NT: Interpretation Act s 63(7); Qld: Statutory Instruments Act 1992 ss 32, 33; SA: Subordinate Legislation Act 1978 s 10AA; Tas: Acts Interpretation Act 1931 s 47(3), (3A); Vic: Subordinate Legislation Act 1994 s 16, Pt 3A; WA: Interpretation Act 1984 s 41. 6.3.3  The utility of the statutory rules notification and publication requirements largely hinges on two practical considerations. The first is the extent of coverage of the requirements. The obligation does not apply in all jurisdictions to every form and category of subordinate legislation. For the most part the obligation applies to the main traditional categories — regulations and ordinances — and less frequently to the growing body of other disallowable instruments and quasi-legislation, such as certain Orders in Council. Governments will, on occasion, choose a form of subordinate law which avoids publication and notification in order to forestall unwelcome publicity. This occurred in 2016 in Victoria when adult prisons were 360

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designated by Order in Council to house juveniles following riots by the young people in their normal detention centres: see  6.5.1. The second practical consideration has to do with the viability of the notification and publication mechanisms as a means of ensuring public access to subordinate laws. Historically, the mechanisms have rested on the assumption that government Gazettes and legal and other bookshops are easily consulted by members of the public. However, the focus has increasingly switched towards online access. As noted above, the Commonwealth Legislation Act 2003 (see  6.1.28) addresses both issues by providing that all legislative and notifiable instruments are to be registered online on the Federal Register of Legislation, which is the authoritative repository of legislation. Accessibility may remain an issue for those who cannot easily access online sources. 6.3.4  Legal culture has traditionally been wary of subordinate legislation. The term ‘hidden law’ or ‘secret law’ is often applied to it, signifying the difficulty which members of the public and the legal profession often encounter in accessing subordinate legislation in an up-todate form. The ease with which it can be amended by the executive compounds this problem. This complaint about subordinate legislation stretches back to the last century (see Stephen J in Watson v Lee (1979) 144 CLR 374 at 393–4), and was crystallised most famously in two books published in the earlier part of that century, Lord Hewart’s The New Despotism (E Benn, London, 1929) and CK Allen’s Bureaucracy Triumphant (Oxford, London, 1931). For Hewart, a major cause of the new despotism was that departmental legislation was being ‘manufactured to an extent which passes understanding’ (p 97), and with a goal ‘to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme’: p 17. The difficulty faced by the citizen in finding and comprehending subordinate legislation was said to exacerbate the problem. Databases which contain subordinate legislation, including point-in-time legislation, have ameliorated these issues to a significant extent. 6.3.5  The law’s distrust of subordinate legislation — whether sound or overstated — continues to the present, and is reflected in two often-quoted cases that strictly construed the notification and publication requirements: Golden-Brown v Hunt and Watson v Lee. Although largely of historical significance, given the advent of online databases of legislation, the two cases give an insight into the dilemma for courts when faced with mandatory statutory provisions that were not strictly complied with. Watson v Lee, in particular, illustrates the debate between principle (that statutory requirements concerning the making of subordinate legislation should be strictly followed, as Barwick CJ, for example, argued) and pragmatism (that inconvenience arises from strict enforcement of requirements based on an assumption of the public’s easy access to such laws: as Mason J, for example, observed). Further, as Gibbs J pointed out in Watson v Lee, an overly strict enforcement of the notification requirements could in fact be counter-productive if it had the consequence that subordinate legislation which was assumed to be operative was not. This possibility is illustrated graphically by the extract from Senate debates, Bill O’Chee 6.4.6E, which discusses the legal and administrative problems that beset the realisation that countless administrative steps concerning native title rested on a subordinate legislative instrument that was later found to be inoperative. 6.3.6  Questions to do with the adequacy of compliance with public notification requirements arise in other ways too. In Flinn v James McEwan & Co Pty Ltd [1991] 2 VR 434, the Victorian Court of Appeal of held that a statute had not commenced operation because the proclamation in the Gazette omitted any mention of the Governor, and thus did not fulfil the statutory requirement of commencing operation ‘on a day to be fixed by proclamation of the Governor in 361

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Council’. The Federal Court concluded in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362, more appropriately in this digital age, that a statutory requirement for a copy of a decision of the Australian Competition and Consumer Commission ‘to be published in the Gazette’ was not a condition precedent to the validity of the commission’s decision. Consequently, the decision was not invalid by reason that the Gazette contained no more than a brief summary of the 80-page decision with a URL reference to the full decision and where it could be obtained.

PARLIAMENTARY OVERSIGHT 6.4.1  Parliamentary scrutiny of subordinate legislation is the pre-eminent method of control. There are usually three elements involved:

• Tabling: Subordinate legislation is required to be tabled in the parliament soon after being made and notified in the Gazette, or being lodged for registration on the public register, failing which the legislation ceases to have effect. The usual time limits for tabling vary from six to 15 sitting days, depending on the jurisdiction.

• Scrutiny: After tabling, the subordinate legislation is referred to a specialist scrutiny committee within the parliament. The standard terms of reference of most scrutiny committees require them to examine whether the subordinate legislation is in accordance with the statute, does not have a retroactive operation, does not trespass unduly on personal rights and liberties, contains appropriate procedures for independent court or tribunal review, and does not contain matter more appropriate for parliamentary enactment.

• Disallowance: Within a designated period after tabling the subordinate legislation, usually 15 sitting days, a member of parliament may move, for any reason, that it be disallowed. The house in which the motion is moved (customarily the upper house), within a further 15 sitting days, considers the motion and may pass a resolution of disallowance. If the resolution is approved, the subordinate legislation ceases to have effect from that date, and any instrument that it had repealed is, in turn, revived. If the motion of disallowance is not disposed of within that time frame, the usual rule is that the subordinate legislation is deemed to have been disallowed from the date the time limit expired. 6.4.2  The important role played by those procedures in a system of parliamentary government, culminating as they do in the power of disallowance, was adverted to by Starke J in Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188: [T]he power of disallowance is to ensure the control and supervision of Parliament over regulations … [T]he object of the legislature is to preserve the legislative power of … Parliament over regulations made by the Executive … not to give a new legislative power, but to maintain the … Parliament as the dominant authority in legislative matters.

The main legislation providing for the tabling, disallowance and parliamentary scrutiny of subordinate legislation is as follows: Cth: Legislation Act 2003 ss 38, 42; ACT: Legislation Act  2001 s  61, Ch  7; NSW: Interpretation Act  1987 ss  3(1), 40, 41; NT: Interpretation Act ss 61, 63; Qld: Legislative Standards Act 1992 ss 4, 7; Statutory Instruments Act 1992 ss 49, 50; SA: Subordinate Legislation Act 1978 s 10; Parliamentary Committees Act 1991 ss 10–12; Tas: Acts Interpretation Act 1931 s 47; Subordinate Legislation Committee Act 1989 ss 8, 9; Subordinate 362

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Legislation Act  1992 s  9; Vic: Subordinate Legislation Act  1994 Pts  5, 5A,  6; Parliamentary Committees Act 2003 s 17; WA: Interpretation Act 1984 ss 5, 42, 43. 6.4.3  The procedures for parliamentary oversight of subordinate legislation have given rise to many colourful disputes in Australian political history. The source of the tension is the stipulation that subordinate legislation can commence operation before the parliament has had the opportunity to disallow it. Indeed, if parliament is in recess when the subordinate legislation is first made, months can expire before the expiration of the normal 15 sitting-day period for tabling. In one such dispute that spanned 1930–32, the Scullin Labor Government, utilising the broad power to make regulations conferred by the Transport Workers Act 1928–29 (Cth), remade on 10 separate occasions the same set of regulations designed to give preference in waterfront employment to union members. The regulations would on some occasions be made during a parliamentary recess, and then tabled on the last available sitting day. They were disallowed on each occasion. The upshot was the later enactment of s 49 of the Acts Interpretation Act 1901 (Cth) (since repealed), providing that a regulation that has been disallowed should not be remade for six months unless the relevant house of parliament provides otherwise: see now Legislation Act  2003 (Cth) s  48. Section  48 prohibits for six months the making of a later legislative instrument or provision that is ‘the same in substance’ as a disallowed instrument or provision. The expression ‘the same in substance’ was held in Perrett v Attorney-General of the Commonwealth (2015) 232 FCR 467 to mean that the instrument be ‘in substance or legal effect, identical to the previously disallowed measure’. This view has been criticised by one author as being inconsistent with Victorian Chamber of Manufactures v Commonwealth (Women’s Employment Regulations) (1943) 67 CLR 347: I Powell, ‘The concept of the ‘same in substance’: what does the Perrett judgment mean for Parliamentary scrutiny?’ (2016) 88 AIAL Forum 47. Parliamentary control has been taken a step further in Victoria. Section 22 of the Subordinate Legislation Act  1994 (Vic) provides that the Victorian Parliament’s Scrutiny of Acts and Regulations Committee can suspend the operation of a statutory rule pending consideration of an adverse committee report by the parliament, although the responsible minister and Governor-in-Council can veto the committee’s suspension. 6.4.4  Another contentious aspect of the commencement and tabling procedures is that subordinate legislation can commence operation before it is tabled in the parliament. If it is not tabled as required, thus becoming inoperative, it will nevertheless have had legal effect in the interim. This was strikingly illustrated by subordinate legislation that was made under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) for the purpose of facilitating the first election of ATSIC Regional Councils throughout Australia. The election rules made under the Act were inoperative by the date of the election, because they were tabled as required in the House of Representatives but not in the Senate. However, the Act required that the election be conducted in accordance with ‘the Regional Council election rules in force at the beginning of the election period’. At that earlier date, which occurred before the expiration of the 15-day tabling period, the rules were still in force and could provide a legal foundation for the Regional Council elections. In upholding the validity of the elections Northrop J in Thorpe v Minister for Aboriginal Affairs (1990) 26 FCR 325 was nevertheless critical of the tabling oversight: at 332. 6.4.5  The following extract  6.4.6E, from a statement made to parliament by Bill O’Chee, the Chairman of the Senate Standing Committee on Regulations and Ordinances, describes another complexity which arose after it was discovered that native title instruments, together with the decisions made under them, were invalid by reason of not being tabled in the parliament as required. 363

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Bill O’Chee Commonwealth, Parliamentary Debates, Senate (Hansard) 10 October 1996

[T]he Regulations and Ordinances Committee … ascertained that an important legislative determination made on Christmas Eve 1993, the very day that the Native Title Act received royal assent, was never tabled and so ceased to have effect 15 sitting days later. The Committee was alerted to the failure to table when a subsequent determination, made some two years later, purported to amend the earlier determination. After the Committee notified the Department of the Prime Minister and Cabinet of the, by now, more than two years invalidity, a fresh determination was gazetted and tabled, all on the same day. That fresh determination, however, could legally only operate from that date and could not validate any action taken in putative reliance on the earlier determination. Any such action taken during that period of more than two years was, of course, totally void … The invalid determination provided for mandatory action in specified circumstances by the Commonwealth Minister [for Aboriginal and Torres Strait Islander Affairs], the Commonwealth itself, the States and Territories and the Native Title Registrar. One of these circumstances was notification by governments of their intention to do a future act, such as grant a mining lease. In response to the Committee’s inquiry, the Minister advised that there may have been thousands of these actions, all of which were totally invalid. Another circumstance concerned applications for determinations of native title, in respect of which the Minister advised the Committee that there were hundreds of invalid actions. Another aspect of the invalidity related to actions by State and Territory agencies, the Minister advising the Committee that there was little likelihood that the range and extent of these could easily, if ever, be ascertained. This result is scarcely a flattering picture of Commonwealth public administration, with thousands of invalid actions, some of which date back more than two years. The Minister also advised the Committee that the Prime Minister (Mr Howard) had asked the State and Territory governments for their preferred option to correct the situation. As a result of these consultations, the proposed amendments provided for by the Native Title Amendment Bill 1996 would include a provision to validate retrospectively … these thousands of actions. The Committee in this case will not oppose such amendments, if only because to do otherwise would result in the considerable financial expenditure in this area over the last two years being wasted … Moreover, it would adversely affect thousands of people who had acted in the honestly held but incorrect belief that their actions were valid. The Committee nonetheless has substantial reservations about the Commonwealth legislation providing for prejudicial retrospectivity. The Minister did not expressly advise that the retrospectivity would be prejudicial but, if it was not prejudicial, the problem could be corrected by delegated legislation …

6.4.7  Effective parliamentary oversight hinges on the work undertaken by the specialist scrutiny committees. The first such committee to be established in Australia was the Senate Standing Committee on Regulations and Ordinances, established on 11  March 1931. That committee now publishes the Delegated Legislation Monitor at the conclusion of each sitting week of the parliament, and provides an overview of the committee’s scrutiny of delegated legislation in the preceding period. There are now similar committees established in other Australian parliaments; for example, the New South Wales Legislation Review Committee, the Tasmanian Subordinate Legislation Committee and the Victorian Scrutiny of Acts

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and Regulations Committee. The committees are established variously by legislation, by parliamentary Standing Orders, or by a resolution of the house to which they report: see D Pearce and S Argument, Delegated Legislation in Australia, 6th ed, LexisNexis Butterworths, Sydney, 2017, chs 2–10. The important role which they play in government was described by a longstanding secretary to the Senate Committee, Peter O’Keeffe, in ‘Spoilt for a Ha’p’worth of Tar — How Bureaucratic Law-Making can Undermine the Ideals of Civil Liberty’ (1988) 1 Papers on Parliament 31 at 33: Any parliament which possesses such a committee, which is supported by effective disallowance powers and which meets with a true commitment to bipartisanship in the protection of rights and liberties from executive encroachment, possesses the unique instrument on the basis of which it can, through the Executive, negotiate with the bureaucracy for the reduction or control of discretions and the protection of rights. A  Parliament without such a committee runs the risk of losing to the bureaucracy not merely an important aspect of its very sovereignty. By leaving bureaucratic law-making unchallenged it condones tendencies towards totalitarianism inherent in any public administration system and it makes officials the ultimate arbiters of a vital dimension of the rights and freedoms of the citizen.

6.4.8  Each of the scrutiny committees in the various Australian jurisdictions works under terms of reference that, while differently expressed, focus on the same core criteria that are designed to ensure that subordinate legislation is truly subordinate in character and that it neither usurps the primary legislative role of parliament nor contravenes fundamental public law principles. Set out at 6.4.9E are the four principles applied by the Senate Regulations and Ordinances Committee, with the committee’s elaboration of what each of those principles entail. Some committees have additional terms of reference. For example, the New South Wales Legislation Review Committee examines whether ‘the regulation may have an adverse impact on the business community’ or whether ‘the objective of the regulation could have been achieved by alternative and more effective means’: Legislation Review Act 1987 (NSW) s  9(1)(b)(ii),  (v). The Queensland Scrutiny of Legislation Committee examines whether subordinate legislation is compatible with ‘fundamental legislative principles … that underlie a parliamentary democracy based on the rule of law’: Parliament of Queensland Act 2001 (Qld) s 93; Legislative Standards Act 1992 (Qld) s 4. The Victorian Scrutiny of Acts and Regulations Committee also examines whether proposed statutory rules comply with s  25A of the Victorian Charter of Human Rights and Responsibilities: Subordinate Legislation Act 1994 (Vic). The Commonwealth Parliamentary Joint Committee on Human Rights examines legislative instruments to ensure that they comply with the rights contained in the seven core United Nations human rights treaties: see Senator D Smith, ‘Human Rights (Parliamentary Scrutiny) Act 2011’, Centre for Applied Philosophy and Public Ethics Symposium, Parliament House, 25  February 2014. For discussion of the impact of this scrutiny body, see  the following two papers presented at the Australia–New Zealand  Scrutiny of Legislation Conference, Perth, 11–14 July 2016: G Williams, ‘How effective is the Federal Parliament’s new scrutiny regime for human rights’; and The Hon Wayne Martin AC, ‘“Too Many cooks?” Parliament, the Courts and the scrutiny of delegated legislation’. See  too A  Edgar, ‘Administrative Regulation-making: Contrasting Parliamentary and Deliberative Legitimacy’ (2017) 40 Melbourne University Law Review 738.

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6.4.9E

Regulations and Ordinances Committee, ‘Guidelines on the Committee’s Application of its Principles’

The general requirements of personal rights and parliamentary propriety under which the Committee operates are refined by the Standing Orders into four principles. The following is a general guide to the manner in which the Committee interprets the principles. Principle A — is delegated legislation in accordance with the statute? • • • • •

Must be in accordance with the parent Act Must not be contrary to the ‘spirit’ of the authorising legislation Sub-delegated legislation must be subject to tabling/disallowance Must have certainty of meaning and operation Must not be ultra vires or beyond the authority delegated.

Principle B — does delegated legislation trespass unduly on personal rights and liberties? • • • • • • • •

Must not lessen the operation of provisions protecting human rights Sensitivity must be shown in relation to personal matters Privacy must be protected Property rights, if interfered with, must be adequately protected Excessive fees or penalties should be avoided Criminal offences should normally provide a defence of reasonable excuse Onus of proof should normally be on the Prosecutor Retrospectivity should not disadvantage anyone except the Commonwealth.

Principle C — does delegated legislation make rights unduly dependent on administrative decisions which are not subject to independent review of their merits? • Concern about delegated legislation affecting the right to practise a trade or profession or to carry on a business or otherwise affecting livelihood • Decision-making criteria should be objectively formulated • Express statement required that power must be exercised reasonably • Review on merits by independent body should be provided • Decision should be notified within 28 days • Notice of appeal rights and availability of statement of reasons for decision should be given to affected person. Principle D — does the delegated legislation contain matters more appropriate for parliamentary enactment? • Legislation which fundamentally changes the law • Legislation which is lengthy and complex • Legislation which is intended to bring about radical changes in relationships or community attitudes • Legislation which is part of a uniform laws scheme.

6.4.10  The mere existence of the scrutiny committees is a powerful influence on the way that subordinate legislation is prepared and framed by the executive. The committees also rely heavily on suggestion and persuasion to influence the executive’s practice. These informal measures 366

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are backed up by a committee’s reporting function, whereby it can make an adverse report to the parliament recommending that a statutory instrument be amended or be the subject of a motion of disallowance. It is an ultimate sanction that is used infrequently. In most cases the furthest a committee goes is to issue a notice of motion, which is usually removed upon satisfactory action by an agency. Government agencies would be keenly aware that the Senate has never failed to accept a recommendation from the Senate Regulations and Ordinances Committee in relation to disallowance: see P O’Keeffe, ‘Scrutiny of Delegated Legislation in the Australian Senate’ (1988) The Parliamentarian 69, 111 (see 6.4.12). Argument notes that between 2000 and 2014, 14 motions of disallowance were agreed to: S Argument, ‘Executive law-making in the 21st century: Delegation not subordination’, conference paper, Australia– New Zealand Scrutiny of Legislation Conference, 11–14 July 2016. The method of operation of the committee is captured in the following description by a Chair of the Committee, Senator Patterson 6.4.11E, concerning an inquiry the committee conducted into a Public Service Determination that limited the entitlements of retired public servants. 6.4.11E

Senator Patterson, ‘The Accountability of the Executive and the Judiciary to Parliament: The Role of the Senate Standing Committee on Regulations and Ordinances’

in S Kneebonea(ed), Administrative Law and the Rule of Law: Still This case illustrates number of aspects of the operations of Part the ofCommittee. First, the Same Package?, AIAL, Canberra, 1999 it is an instance of the effectiveness of the Committee in carrying out its mandate from the Senate to ensure that legislative instruments do not infringe personal rights. Most significant

case illustrates a number of aspectswhom of thethe operations of was the Committee. First, of all, This the matter was raised by an individual, Committee willing to protect it is an instance of the of the Committee outwithout its mandate from the even if he had been theeffectiveness only person affected. In fact it in is carrying clear that intervention by Senate to ensurea that legislative instruments docontinued not infringe personal rights. Most significant the Committee serious injustice would have and affected thousands. The next of all, the matter by anhas individual, whom the Committee was willing to protecta conclusion is that was the raised Committee an appropriate variety of techniques for ensuring even if he had been the onlycases. personHere affected. In fact it wrote is clear without intervention by satisfactory outcome in such the Committee to that the Minister, reported to the the Committee a serious injustice would have continued and affected thousands. The next Senate, gave notices of disallowance of the offending provisions, asked for officials to attend conclusion that for theofficials Committee has anan appropriate variety techniques for ensuring upon it andisasked to prepare options paper. TheofCommittee’s concerns werea satisfactory outcometointhe such cases. Here the Committee wrote to the Minister, reported to the also communicated Prime Minister. Senate, notices of disallowance of the offending provisions, asked officials toreceives attend This gave matter also illustrates the high level of cooperation which thefor Committee upon it and asked to prepare anMinister options for paper. The Committee’s concerns were from Ministers, withfor theofficials Prime Minister, the Industrial Relations and the Minister also communicated to the Prime Minister. for Finance all responding generously to its concerns. The reasons for this cooperation are Thisnon-partisan matter also nature illustrates high level of secondly, cooperation the the Committee receives … the of itsthe operations and thewhich fact that Committee does from Ministers, with the Prime Minister, Minister Industrialinstruments Relations and not question policy, restricting itself to the ensuring thatforlegislative dothe notMinister breach for Finance all or responding generously to its concerns. The reasons for this cooperation are personal rights parliamentary propriety. … the nature of its and secondly, the fact that Committee does Thenon-partisan case also illustrates thatoperations the concerns of the Committee arethenot theoretical or not questionHere policy, itselfoftoemployees ensuring were that legislative instruments not breach speculative. tensrestricting of thousands treated unfairly over twodo decades. The personal or parliamentary actions ofrights the Committee removedpropriety. a real and not a possible injustice. This matter also illustrates also illustrates that the and concerns of the Committee are not theoretical howThe thecase Committee complements reinforces other agencies whose charterorisspeculative. to protect Here tensrights. of thousands of employees were treated unfairly over two decades. The actions of the personal For instance, the Committee ensures that discretions in legislative instruments Committee removed a real and nottoa review possible This matter also illustrates howother the will, where appropriate, be subject by injustice. the Administrative Appeals Tribunal. On Committee complements andasked reinforces other matters agenciesshould whosebecharter protect personal occasions the Committee has that certain referredistotothe Administrative rights. instance, ensuresInthat in legislative instruments will, where ReviewFor Council andthe theCommittee Auditor-General. thediscretions present case the Committee took account of appropriate, be subject to review by the Administrative Appeals Tribunal. On other occasions findings the Committee has asked that certain matters should be referred to the Administrative Review Council and the Auditor-General. In the present case the Committee took account of findings

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by the [Merit Protection and Review Agency]. The Committee does not act in isolation but cooperates with other bodies whose function is to achieve the same outcomes as the Committee. The case also illustrates the insistence of the Committee that the Explanatory Statement which, due to previous activities of the Committee, now accompanies every legislative instrument, should genuinely explain what the instrument does and why it was made. In the present case the Explanatory Statements were misleading and this was a significant deficiency. Finally the case illustrates the need for openness, consultation and transparency, all of which were grievously lacking in the process and substance of the two Determinations.

6.4.12  The extract from Senator Patterson 6.4.11E refers to what are commonly regarded as the two principal strengths of the scrutiny committees — the bipartisan nature of their operations, and their focus on matters of ‘legislative form’ rather than the government policy imparted by the subordinate legislation. Admittedly, the line between ‘policy’ and ‘legislative form’ is not always easy to draw. Difficult though the distinction can be, it is nevertheless firmly adhered to, being accepted as essential to the continued effectiveness of scrutiny committees. This is emphasised in the following two extracts from, respectively, a Secretary to the Senate Committee and a Chair of the Committee: [T]he committee’s terms of reference … do not permit the committee to examine the policy or merits of an instrument. The effect of this limitation has been to exclude party political considerations, thereby transforming the committee into a bipartisan organ whose views have tended to carry considerable cross-party support on the floor of the Chamber when committee disallowance motions are being debated. So unfailing has been this traditional backbench support that the committee has never in its history lost a motion of disallowance. As Pearce has commented, ‘If the committee has recommended that a regulation be disallowed, the Senate has disallowed it’. [P O’Keeffe, ‘Scrutiny of Delegated Legislation in the Australian Senate’ (1988) The Parliamentarian 69, 111] [The] committee looks for wisdom, fairness, justice and restraint in the regulatory procedures to be followed in achieving that policy. The committee is concerned with the justice and propriety of ways and means … [I]t is in the business of setting standards for delegated lawmaking – standards of prior consultation, standards of clarity in drafting, standards of presentation to Parliament, standards of liberty and propriety. In setting standards the committee always runs the risk that it will offend those whose standards are lower and less sensitive to the needs of ordinary people and busy Parliamentarians … [H]owever, the committee] is not intimidated even by institutions as powerful as the government or the Public Service. [Senator B Cooney, Commonwealth, Parliamentary Debates, Senate (Hansard), 4 June 1987]

JUDICIAL CONTROL 6.5.1  The issue of judicial control is being introduced in this chapter but is taken up in detail in other chapters. It falls within the province of courts, under the separation of powers, to examine at the suit of a person with standing whether subordinate legislation can validly provide legal authority for administrative decision-making. In this way, courts are often asked to rule on whether subordinate legislation was validly made or has commenced legal operation. It is a function that courts have always discharged rigorously, because of the adverse impact that subordinate 368

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legislation can have on the community, the breadth of the statutory discretions that authorise executive law-making, and the less public procedures that are sometimes followed in the process. Judicial intervention has the advantage that a court may invalidate part only of a subordinate law: Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 at 5, where the High Court upheld the validity of provisions in the National Security (Landlord and Tenant) Regulations 1941 (Cth) that dealt with setting a fair rent for rented premises, but held invalid two regulations that dealt with recovery of possession and ejectment from rented premises. The issue of judicial control can arise before a court in a number of forms. First, was the subordinate law made in compliance with a statutory requirement for publication, notification, tabling or the like? Those requirements are examined earlier in this chapter  6.1.27–6.1.28; an example of a law being inoperative for non-compliance was the law considered in GoldenBrown v Hunt. Second, is the subordinate law consistent with other Acts and the Constitution? This issue is also examined in 8.4.2. Third, was the subordinate law authorised, both in its terms and its scope, by the parent Act under which it was made — in effect, is it intra vires that Act? This issue is examined further in 8.4.2 and in Attorney-General (SA) v Corporation of the City of Adelaide 8.4.29C, where different members of the High Court framed the test for validity as: • Unreasonableness: Whether the subordinate legislation was ‘capricious or oppressive’ or ‘a gratuitous interference with the rights of those affected’: French CJ at [49]–[54].

• Reasonable proportionality: Crennan and Kiefel JJ framed the test as follows: ‘If the means employed go further than is reasonably necessary to achieve the legislative object, they will be disproportionate and invalid for that reason’: at [198]–[202]. Justice Hayne cautioned against a ‘means and ends’ approach, emphasising that the central question is sufficiency of connection to the authorising statute, but that subordinate legislation will lack that connection if it ‘could not reasonably have been adopted as a means of attaining the ends of the power’: at [116]–[123]. Similarly, French CJ cautioned at [59] that a ‘high threshold test’ of proportionality applies. • Irrelevant considerations: An example arose in 2016 when the Victorian Government designated part of an adult prison as a youth prison by Order in Council in order to house juvenile detainees who had rioted in their existing facility. The validity of the Order in Council was challenged successfully on the basis that it failed to take account of relevant considerations, namely, the needs of young people in detention: Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur [2016] VSCA 343.

Generally, it can be difficult to apply other criteria for legal validity to subordinate lawmaking because of the breadth of the power usually conferred on the executive to make subordinate laws. This is illustrated by Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 29, in which the High Court dismissed arguments that the minister’s designation of Papua New Guinea as a regional processing country could be challenged on grounds of unreasonableness, failure to consider relevant matters, and no evidence. The only statutory requirement was the minister’s satisfaction that it was in ‘the national interest’ to do so. There is similar difficulty in applying the requirement to accord natural justice to a subordinate law-making power. 6.5.2  Another category of legal issue which arises in the Commonwealth concerns the jurisdictional basis for challenging the validity of subordinate legislation. As explained in 2.2.11ff, 369

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ordinarily this is undertaken under s 39B of the Judiciary Act 1903 (Cth), rather than under the ADJR Act, which applies only to decisions of ‘an administrative character’. In state and territory Supreme Courts, judicial review of the validity of subordinate legislation can be undertaken in the inherent common law jurisdiction of the courts. For discussion of the principle of legality and its protection of rights in the context of subordinate legislation see  D  Meagher and M Groves, ‘The common law principle of legality and secondary legislation’ (2016) 39 UNSW Law Journal 450. 6.5.3  The importance of judicial control can vary with time and circumstance. On the one hand, judicial review is a keystone of the public law system that was occurring in the common law jurisdiction of superior courts long before other methods of executive or parliamentary control over subordinate law-making were developed. On the other hand, judicial review will linger even if other methods of control are removed or downgraded. The principles developed by the courts for ascertaining whether subordinate legislation was validly made also inform in a significant way the criteria applied by the parliamentary scrutiny committees in reviewing subordinate laws: see Regulations and Ordinances Committee 6.4.9E. That said, judicial control is adventitious, both in occurrence and, at times, as to the result, as Willis observed: Under the present system a rule which Parliament itself would never have dreamed of authorising may continue for years unchallenged, if technicalities or the poverty of the person aggrieved prevents the issue from being raised before a court, while a rule which to the eye of common sense is plainly within the purview of the Act may fall before an unsympathetic or misinformed tribunal. It is so haphazard. [ J Willis, Parliamentary Powers of English Government Departments, Harvard University Press, Cambridge, 1933, p 172]

The point made by Willis is illustrated by O’Keefe v City of Caulfield [1945] VLR 227, a case in which a court set aside a by-law that had been operating for over 40 years. 6.5.4  For the most part, courts and the parliament work alongside each other in performing a similar role and applying similar criteria in scrutinising subordinate legislation. That is not to say that the relationship is always free of tension. From time to time, the complaint is made that courts, by overlapping the role played by parliament, border upon usurping or intruding upon that role. An instance of that complaint is discussed in the following extract from an article by then Attorney-General Daryl Williams 6.5.5E. 6.5.5E

D Williams, ‘Subordinate Legislation and Judicial Control’ (1997) 8 Public Law Review 77

When neither frowning nor barking will suffice, the anti-judicial lobby has other cards up its sleeve, and the use of contempt of Parliament as a deterrent has been one of the more cynical manifestations of ‘Keep Off the Grass’ mentality. Contempt of Parliament, or breach of parliamentary privilege, hovered in the background of a series of cases from the 1950s to the 1970s, several involving the activities of the Boundary Commission for England in the periodic redrawing of constituencies, when efforts were made, for instance, to circumvent direct exclusionary clauses by challenging regulations ahead of approval by both Houses of Parliament …

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The danger of assertions of contempt of Parliament, however, is that parliamentary privilege can spill over into parliamentary sovereignty, encouraging an approach to subordinate legislation wholly outside the spirit of Lord Diplock’s remarks about the crucial distinction between primary and secondary legislation. In a case in 1980, for instance, which concerned regulations made under the Control of Pollution Act 1974 prescribing the maximum amount of lead in petrol, an appellate judge said that Parliament — through scrutiny procedures — had given ‘tacit consent’ to the regulations and that the courts ‘could not properly be asked to make decisions, by way of litigation under the adversary procedure’ which could have the effect of laying down a policy inconsistent with that adopted by Parliament.

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Pt C.1  A key issue in administrative law is whether an administrative decision was lawfully made. This can be resolved by courts undertaking judicial review, but also by merit review tribunals, ombudsmen and internal review bodies. They can each require a decision-maker to point to the legal authority or basis for a decision. Thus, ombudsmen are expressly authorised by legislation to apply the criteria for lawful decision-making when undertaking investigations — for example, s 15 of the Ombudsman Act 1976 (Cth) 4.2.14. Similarly, merit review tribunals, in examining whether a decision under review is ‘correct or preferable’, look at whether there was legal error in the decision: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd 3.3.14C. Pt C.2  The criteria for lawful decision-making are principally developed by courts undertaking judicial review, and are often described as the grounds for judicial review. The criteria play a special role in judicial review, as they also mark the boundary between legality and merits. By  contrast, merit review tribunals and ombudsmen can go beyond legal issues when examining whether a decision was substantively correct, and the merit issue may be of greater practical importance. An example is that a merit review tribunal will generally not examine whether there was a breach of natural justice by a primary decision-maker, as the hearing provided by the tribunal may cure any earlier such breach (see  3.3.22). Some other legal issues dealt with in this Part — notably the error of law/error of fact distinction, and the role of policy in administrative decision-making — arise in all review forums, but give rise to different problems in each such forum. Pt C.3  The close interrelationship (both historical and practical) between judicial review and the criteria for lawful decision-making has given rise to special issues that require separate treatment. These are dealt with in Chapter 7, and include the concept and scope of judicial review, the jurisprudential foundation of judicial review, and concepts such as ‘discretion’, ‘polycentricity’ and ‘judicial deference’. Those issues are not altogether foreign to other methods of administrative law review: for example, the issue of deference to administrative judgment can confront an administrative tribunal as well as a court, but usually has a different hue. Pt C.4  A few preliminary words should also be said about how to classify the criteria for lawful decision-making. In Australia the criteria are conveniently restated in the judicial review 373

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statutes, as exemplified by s 5 of the Administrative Decisions ( Judicial Review) Act 1977 (Cth), which lists 18 separate grounds of review. The following chapters rely heavily on the language of s 5 to provide a framework for analysis. The criteria are similar at common law but are often described differently. A foremost example of this trend, espoused by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service 7.2.18C, is the classification of the grounds as ‘illegality’, ‘irrationality’, ‘procedural impropriety’, and ‘proportionality’. The expressions ‘ultra vires’ (beyond the power) and ‘jurisdictional error’ are also frequently used at common law as umbrella terms to describe unlawful activity, as too are terms such as ‘excess of power’ and ‘error of law’. Those phrases, while in common use in Australian administrative law, are generally not employed in the following analysis, as they tend to beg the question of why a particular administrative decision is erroneous, unlawful or beyond jurisdiction.

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JUDICIAL REVIEW IN CONTEXT 7.1.1  At its simplest, judicial review involves a court deciding whether a decision-maker breached a specific ground of review in making a decision. The grounds of review set the legal standards against which the authority and actions of a decision-maker are judged. Often, there is little more to a case, and most challenges are easily dismissed by courts. But the context in which judicial review is undertaken can never be ignored and sometimes lends added complexity to the task. For example, courts discharge their function against a constitutional backdrop of rules and doctrines such as the separation of powers and the rule of law. Those rules and doctrines, in defining the role of courts in reviewing executive action, impinge on the way that grounds for judicial review are to be understood and applied. The terms in which legislation is drafted are also infinitely variable, and can change the way that judicial review is to be undertaken from one area of decision-making to another. The development of elastic concepts such as jurisdictional error has added to the task. 7.1.2  The issues thrown up by the context in which judicial review is undertaken can often seem to be abstract and solidly jurisprudential in nature, but ultimately they require practical choices to be made, some of which are dealt with in this chapter: • What is meant by the legality/merits distinction? Is it possible, in a practical and meaningful way, to fashion grounds for judicial review that fully heed that distinction? Is it ever appropriate for a court to substitute a new decision, or should the final say always rest with the executive?

• Can and should the grounds for judicial review be broken down into specific and distinct categories, such as those listed in the Administrative Decisions ( Judicial Review) Act 1977 (Cth) (ADJR Act)? Are the grounds of review better conceived of under broader descriptors, such as ‘illegality’, ‘irrationality’ and ‘procedural impropriety’? Or are the grounds of review in truth just emanations of a single organising concept such as ‘jurisdictional error’?

• Is the jurisprudential foundation for judicial review an important practical issue, or is it of historical and theoretical interest only? Specifically, does it matter from one case to the next whether judicial review is viewed as an exercise in safeguarding parliamentary intent or, 375

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instead, as a common law tradition of judicial control of executive abuse? What significance does the Commonwealth Constitution hold for the jurisprudential basis of judicial review?

• Should a court pay deference to the skill or wisdom of the decision-maker in interpreting legislation and analysing the facts of a problem? What if the decision-maker has a specialist expertise, for example, in law, medicine, technology, public administration, or the environment? How closely should a court scrutinise the reasons of a decision-maker to see whether legal error can be detected? • Does the introduction of computer-based decision-making give rise to novel questions? For example, should the focus of judicial review switch from the integrity of a decision to the integrity of the expert system that produced that decision?

JUDICIAL REVIEW — CONCEPT AND SCOPE 7.2.1  The core notion in judicial review is that a court examines whether an executive agency of government contravened the law to the detriment of a person or corporation. The function is captured in some of the following classic and oft-cited remarks by Australian judges: Kitto J: It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, 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, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself: Sharp v Wakefield [1891] AC 173 at 179. The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed. Even then a court does not direct that the discretion be exercised in a particular manner not expressly required by law, but confines itself to commanding the officer by writ of mandamus to perform his duty by exercising the discretion according to law … [R v Anderson; Ex parte Ipec-Air Pty Ltd (Ipec-Air) 12.3.3C] Brennan J: Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the power and functions assigned to the executive by the law and the interests of the individual are protected accordingly. [Church of Scientology Inc v Woodward 8.2.9C]

Mason J: The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislator has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned. [Minister for Aboriginal Affairs v Peko-Wallsend Ltd 10.4.13C]

The legality/merits distinction — foundation cases 7.2.2  The preceding observations claim a role for courts that is of fundamental and constitutional importance. At the same time, it is a role that is conceived narrowly to take account of the separation of powers and other limitations on judicial method and perspective: see  Chapter 5. The legality/merits distinction is the convenient shorthand often employed to 376

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express both the scope and the limitations of judicial review. Four leading cases from Britain and Australia that have been influential in developing that distinction are extracted below: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (Wednesbury) 7.2.3C; Green v  Daniels 7.2.4C; Attorney-General (NSW) v  Quin 7.2.5C; and Minister for Immigration and Citizenship v  Li 7.2.7C. Some of those cases focus on unreasonableness as the ground of review most likely to straddle the legality/merits divide. Following those cases, some necessary refinements of the legality/merits distinction alluded to in the five cases are examined more extensively. One such refinement is the important role played by the criteria for lawful decisionmaking in capturing the legality/merits distinction: see  7.2.6. Another is the principle that a court undertaking judicial review does not substitute a new decision — a principle, it will be seen, that requires qualification. Two other features of the concept of judicial review as expounded in the cases in this section are covered in greater depth in other chapters. The first is the idea that judicial review, at least in its common law origin and setting, presumptively applies to all executive action: see 2.2.1ff, 2.3.1ff. The second is that judicial review is concerned only with the integrity of the administrative process, and not with the award of damages or compensation for unlawful executive action: see 17.8.4ff. 7.2.3C

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Court of Appeal (UK)

[The Sunday Entertainments Act 1932 (UK) provided that a licensed cinema could open on a Sunday only with permission of the local authority, ‘subject to such conditions as the authority think fit to impose’. The plaintiff company was given permission by the Wednesbury Corporation subject to a condition that ‘no children under the age of fifteen years shall be admitted to any entertainment whether accompanied by an adult or not’. The company sought a declaration that the condition was invalid, as unreasonable. The action was dismissed at first instance and on appeal.] Lord Greene MR (Somervell LJ and Singleton J agreeing): What, then, is the power of the courts? They can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition. On the face of it, a condition of the kind imposed in this case is perfectly lawful. It is not to be assumed prima facie that responsible bodies like the local authority in this case will exceed their powers; but the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of case. As I have said, it must always be remembered that the court is not a court of appeal. When discretion of this kind is granted the law recognises certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law. What then are those principles? They are well understood. They are principles which the court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority

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exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters. There have been in the cases expressions used relating to the sort of things that authorities must not do, not merely in cases under the Cinematograph Act but, generally speaking, under other cases where the powers of local authorities came to be considered. I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty — those of course, stand by themselves — unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question. If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent. For instance, we have heard in this case a great deal about the meaning of the word ‘unreasonable’. It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation [1926] Ch 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another. In the present case, it is said by Mr Gallop that the authority acted unreasonably in imposing this condition. It appears to me quite clear that the matter dealt with by this condition was a matter which a reasonable authority would be justified in considering when they were making up their mind what condition should be attached to the grant of this licence. Nobody, at this time of day, could say that the well-being and the physical and moral health of children is not a matter which a local authority, in exercising their powers, can properly have in mind when those questions are germane to what they have to consider. Here Mr Gallop did not, I think, suggest that the council were directing their mind to a purely extraneous and irrelevant matter, but he based his argument on the word ‘unreasonable’ which he treated as an independent ground for attacking the decision of the authority; but once it is conceded, as it must be conceded in this case, that the particular subject matter dealt with by this condition was one which it was competent for the authority to consider, there, in my opinion, is an end of the case. Once that is granted, Mr Gallop is bound to say that the decision of the authority is wrong because it is unreasonable, and in saying that he is really saying that the ultimate arbiter of what is and is not reasonable is the court and not the local authority. It is just there, it seems to me, that the argument breaks down. It is clear that the local authority are entrusted by Parliament with the decision on a matter which the knowledge and experience of that authority can best be trusted to deal with. The subject-matter with which the condition deals is one relevant for its consideration. They have considered it and come to a decision upon it. It is true to say that, if a decision on a

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competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. I think Mr Gallop in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.

7.2.4C

Green v Daniels (1977) 13 ALR 1; 51 ALJR 463 High Court of Australia

[Upon completing school in November 1976, aged 16, Karen Green lodged an application with the Commonwealth Employment Service (CES) in Hobart to be paid unemployment benefit under s 107 of the Social Services Act 1947 (Cth). She spoke to the CES a number of times, each time being informed that as a school leaver she would not qualify for benefit until the commencement of the next school year in February 1977. That advice was based on a policy devised by the Director-General of Social Security and stated in the ‘Unemployment and Sickness Benefit Manual’, to be applied ‘as a general rule’. The rationale for the policy was to guard against the improper payment of benefit to school leavers who later decided to return to school. In line with the policy and the CES advice, Ms Green was paid unemployment benefit from 22 February 1977, despite having made numerous unsuccessful applications for employment in the intervening period. In December 1976 Ms Green commenced proceedings in the original jurisdiction of the High Court, seeking a declaration that she was entitled to unemployment benefit from November 1976, and damages for the negligent advice she had been given concerning her entitlement. Stephen J held that the decision to deny her unemployment benefit was invalid, by reason that the Director-General’s policy routinely applied by CES officers conflicted with the terms of s 107 of the Social Services Act. However, Stephen J further held that it was not open to the court to make a declaration in the terms sought by Ms Green. The application for damages was also dismissed. Section 107 of the Act provided that: … a person who (a) has attained the age of 16 years …; (b) is residing in Australia …; and (c) satisfies the Director-General that he — (i) is unemployed …; (ii) is capable of undertaking, and is willing to undertake, work which, in the opinion of the DirectorGeneral, is suitable to be undertaken by that person; and (iii) has taken reasonable steps to obtain such work, shall be qualified to receive an unemployment benefit.]

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Stephen J: Whatever hint of flexibility and of room for consideration of exceptional cases may be thought to be conveyed by the Manual’s use of the phrase ‘as a general rule’, repeated in the standard form of letter to school leavers, the application of the general rule 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 1977. … [T]he function of the Director-General under s 107 is to be distinguished from that of tribunals, such as licensing justices, which, in their exercise of discretionary powers to grant or refuse licences, may give effect to some general policy that they see as desirable so long as in doing so they do not preclude themselves from considering on its merits the exceptional case. The Director-General is not concerned, in his administration of s 107, with the carrying out of any policy. No general discretion is conferred upon him; instead specific criteria are laid down by the Act and all that is left for him to do is to decide whether or not he attains a state of satisfaction that the circumstances exist to which each of these criteria refer. He must, no doubt, for the benefit of his delegates and in the interests of good and consistent administration, provide guidelines indicating what he regards as justifying such a state of satisfaction. But if, in the course of doing this, he issues instructions as to what will give rise to the requisite state of satisfaction on the part of his delegates and these are inconsistent with a proper observance of the statutory criteria he acts unlawfully; should his delegates then observe those instructions, their conclusions concerning an applicant’s compliance with the criteria will be vitiated. This is what has happened in the present case. The criteria in [s] 107(c)(i) and (iii), those of being ‘unemployed’ and of having ‘taken reasonable steps to obtain such work’, have had superimposed upon them a requirement which prevents them from being satisfied by any school leaver during the school holidays, a period of about three months, and which, in effect, renders them inoperative during that period. The position may be tested by examining the matters arising for consideration under each of these two statutory criteria and the effect, in each case, of the Director-General’s requirement. I take first sub-par (i) of [s] 107(c). The state of being ‘unemployed’ I regard as satisfied as soon as a student leaves school, with the intention of not returning but, instead, of entering the workforce, and begins to seek employment. The only element in that set of circumstances which is not readily ascertainable by the Director-General is the school leaver’s intention. That intention he has chosen to ascertain by waiting until the outcome reveals itself at the end of the school holidays. [His Honour explained that this was an erroneous method for ascertaining a school leaver’s intention at the time of leaving school.] The second criterion, that in sub-par (iii) relating to the taking of steps to seek work, no doubt presents considerable scope for the giving of instructions by the Director-General to his delegates as to what is involved in ‘reasonable steps’; it does not, however, in my view, entitle him to impose a quite arbitrary time of almost three months before this criterion is to be regarded as having been complied with. It is arbitrary in two respects: it depends not at all upon matters relevant to the application — upon factors such as the range of available employment opportunities consistent with the applicant’s qualifications, skills and general capacity, the current state of the employment market and the locality in which employment is being sought. Indeed, its duration is dictated by an entirely extraneous circumstance, the period which State education authorities happen to have fixed upon as the duration of school holidays in the State, a period which the evidence shows to differ from State to State, the effect of the DirectorGeneral’s direction varying accordingly. Again, it is an exclusively temporal concept. No doubt some attention must be given to the element of time, the taking of reasonable steps may well

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require sustained activity over a given period; but even if a period of three months were to be thought of as reasonable, as to which I say nothing, it cannot be proper to impose such a period in the case of one class of applicants, those who leave school within 28 days of the end of the school year, while imposing upon no other class of applicant any such requirement relating to a minimum period of job-seeking. The reason why the Director-General’s requirement produces inappropriate results, which, when viewed in the light of the criteria in sub-pars (i) and (iii), can be seen to frustrate rather than aid in their application to school leavers, becomes apparent once it is appreciated that his requirement is not, in truth, concerned with the formation of a correct state of satisfaction of mind by him. [His Honour set out the terms of the policy.] [T]he quite understandable desire to prevent what is seen as an abuse of the Act by dishonest school leavers cannot be made the occasion for disregarding the statutory criteria of eligibility in favour of a requirement which finds no place in the legislation and the effect of which is to deny, for almost three months, to the great body of honest school leavers an opportunity to qualify for unemployment benefits. … For the plaintiff, it was urged that I should form my own conclusions as to the plaintiff’s compliance with the requirements of s 107, that these should be in the plaintiff’s favour, that I should then impute to the Director-General my own state of satisfaction under s 107(c) and should accordingly declare the plaintiff to have been qualified to receive an unemployment benefit as from 27 December, 1976, being seven days after her application was rejected on 20 December 1976. Even were I minded to find the necessary facts in her favour, as to which I say nothing, the course suggested is not, I think, one which is open to me. It is to the DirectorGeneral or his delegates that the legislation assigns the task of attaining satisfaction and the Court should not seek to usurp that function. … …It is declarations concerning what ought to have thus been the action of the DirectorGeneral in response to her claim made on 20 December to which I regard the plaintiff as entitled. [Stephen J made a declaration that the Director-General upon receiving Ms Green’s application should have investigated and considered all the circumstances necessary to decide whether she met each of the criteria for benefit under s 107, including whether she ‘satisfied him as to the several matters referred to in par (c) thereof’. In deciding whether he was duly satisfied, the Director-General could regard as relevant though not decisive that she had recently left school.]

7.2.5C

Attorney-General (NSW) v Quin (1990) 170 CLR 1; 93 ALR 1 High Court of Australia

[Mr Quin was a stipendiary magistrate in New South Wales when the court of which he was a member was abolished and replaced by a new system of magistrates courts by the Local Courts Act 1982 (NSW). Along with four other magistrates, he was not appointed to the new court after allegations concerning their fitness for office were passed privately to the New South Wales Attorney-General. In Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268 the New South Wales Court of Appeal held that the magistrates had been denied natural justice, and a declaration to that effect was made. The nub of the Court of Appeal’s judgment was that the magistrates had a legitimate expectation of being treated fairly and given an opportunity to answer any allegations, consistently with the constitutional doctrine of security of judicial

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tenure and judicial independence. Soon after, the Attorney-General announced a new policy on appointment of magistrates by merit selection. Mr Quin et al were invited to apply and be considered in competition with other applicants. Mr Quin thereupon commenced proceedings, seeking a declaration, in effect, that his application be considered under the former policy that existing magistrates be reappointed unless they were unfit for judicial office. The High Court dismissed the action by majority (Mason CJ, Brennan and Dawson JJ; Deane and Toohey JJ dissenting), on the basis that Mr Quin’s expectation of being considered under the former policy could not be enforced substantively by a court (see Quin 11.3.9C) and that the government was not prevented by a principle of administrative estoppel or otherwise from changing its policy on appointment of magistrates: see Quin 12.6.8C. Brennan J, in the course of his judgment, commented generally on the concept and scope of judicial review.] Brennan J: The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government. … The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison (1803) 1 Cranch 137, at p 177 (5 US 87, at p 111): ‘It is, emphatically, the province and duty of the judicial department to say what the law is.’ The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case. There is one limitation, ‘Wednesbury unreasonableness’ …, which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power … Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined. … … If it be right to say that the court’s jurisdiction in judicial review goes no further than declaring and enforcing the law prescribing the limits and governing the exercise of power, the next question immediately arises: what is the law? And that question, of course, must be answered by the court itself. In giving its answer, the court needs to remember that the judicature is but one of the three co-ordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual. The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which

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are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious. Some advocates of judicial intervention would encourage the courts to expand the scope and purpose of judicial review, especially to provide some check on the Executive Government which nowadays exercises enormous powers beyond the capacity of the Parliament to supervise effectively. Such advocacy is misplaced. If the courts were to assume a jurisdiction to review administrative acts or decisions which are ‘unfair’ in the opinion of the court — not the product of procedural unfairness, but unfair on the merits — the courts would be assuming a jurisdiction to do the very thing which is to be done by the repository of an administrative power, namely, choosing among the courses of action upon which reasonable minds might differ: see Secretary of State for Education and Science v Tameside Metropolitan BC [1977] AC 1014, at p 1064, and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, at pp 414–15. The absence of adequate machinery, such as an Administrative Appeals Tribunal, to review the merits of administrative acts and decisions may be lamented in the jurisdictions where the legislature has failed to provide it, but the default cannot be made good by expanding the function of the courts. The courts — above all other institutions of government — have a duty to uphold and apply the law which recognises the autonomy of the three branches of government within their respective spheres of competence and which recognises the legal effectiveness of the due exercise of power by the Executive Government and other repositories of administrative power. The law of judicial review cannot conflict with recognition of the legal effectiveness of the due exercise of power by the other branches of government. If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk. The risk must be acknowledged for a reason which Frankfurter J stated in Trop v Dulles (1958) 356 US 86 at p 119: All power is, in Madison’s phrase, ‘of an encroaching nature.’ … Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is selfrestraint. If the courts were to postulate rules ostensibly related to limitations on administrative power but in reality calculated to open the gate into the forbidden field of the merits of its exercise, the function of the courts would be exceeded. … The authority of the courts and their salutary capacity judicially to review the exercise of administrative power depend in the last analysis on their fidelity to the rule of law, exhibited by the articulation of general principles.

7.2.6  The principles espoused in Wednesbury 7.2.3C, Green v Daniel 7.2.4C and Quin 7.2.5C have been cited and applied many times. As an example, the comments of Brennan J in Quin were approved in: Minister for Immigration and Ethnic Affairs v  Wu Shan Liang 7.5.20C at 272 (Brennan  CJ, Toohey, McHugh and Gummow  JJ); Corporation of the City of Enfield v  Development Assessment Commission 7.5.10C at 152–4 (Gleeson  CJ, Gummow, Kirby and Hayne  JJ); NAIS v  Minister for Immigration and Multicultural Affairs (2005) 228 CLR 470 at 477–8 (Gummow  J), 510 (Hayne  J); and Minister for Immigration and Citizenship v  Li 7.2.7C at 370 (Gageler J). The principles are also reinforced by a frequent emphasis in cases 383

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on the importance of respecting the legality/merits distinction, as illustrated in the following extract from Li. Reference to the legality/merits distinction is a notable feature of Australian jurisprudence. This is often explained by the importance in Australia of the constitutional separation of powers and the well-developed system of administrative tribunals that can (unlike courts) consider the merits of individual decisions. However, as discussed later in this chapter (see  7.5.2) and Chapter 15 (see  15.2.14 and Minister for Immigration and Citizenship v SZMDS 15.2.17C), the legality/merits distinction may not apply to review of a jurisdictional fact-finding. 7.2.7C

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 High Court of Australia

[A summary of the facts of this case can be found at 15.2.18C. The court had to consider whether the Migration Review Tribunal had properly exercised discretionary power to adjourn or refuse to adjourn a hearing (Migration Act 1958 (Cth) s 363), having regard to the general responsibilities of the tribunal provided for in ss 353 and 357A of the Act.] Hayne, Kiefel and Bell JJ: Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably. A standard of reasonableness in the exercise of a discretionary power given by statute had been required by the law long before the first statement of ‘Wednesbury unreasonableness’ in Associated Provincial Picture Houses Ltd v Wednesbury Corporation. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002, McHugh and Gummow JJ instanced the 1891 decision of Sharp v Wakefield. In Re Refugee Review Tribunal; Ex parte Aala [17.1.14C], Gaudron and Gummow JJ said that the requirement of reasonableness represents the development of legal thought which began before federation and accommodates s 75(v) to that development. In Sharp v Wakefield, it was said that when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by ‘according to law’. It is to be legal and regular, not arbitrary, vague and fanciful. The discretion must be ‘exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself’. It is pointed out in Wade and Forsyth that the legal conception of discretion dates from at least the 16th century. In Sharp v Wakefield, Lord Halsbury LC had referred to Rooke’s Case of 1598, in which it was stated that the discretion of commissioners of sewers ‘ought to be limited and bound with the rule of reason and law’. This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. … In Wednesbury, Lord Greene MR discussed the various grounds upon which an exercise of statutory power may be abused. His Lordship foreshadowed defining those grounds under a single head of unreasonableness, stating that it was ‘perhaps a little bit confusing to

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Chapter 7  Foundation Concepts of Judicial Review

find a series of grounds set out. Bad faith, dishonesty … unreasonableness, attention given to extraneous circumstances, disregard of public policy’ were all relevant to the question of whether a statutory discretion was exercised reasonably. … The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that ‘all these things run into one another’. Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is ‘manifestly unreasonable’. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense. … In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that ‘guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion’. House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent. [French CJ and Gageler J agreed with this reasoning and in the outcome.]

Framing the grounds for judicial review — statutory codification, jurisdictional error or something else? 7.2.8  Wednesbury 7.2.3C, Quin 7.2.5C and Li 7.2.7C make the similar point that the legality/ merits distinction hinges on a court’s respect for and application of objective criteria in reviewing the validity of executive action. Each case cautions against using criteria of validity that are indeterminate or inherently subjective, such as ‘fair’ or ‘reasonable’, at least in their popular sense. Each uses seemingly different criteria for identifying whether the decision is invalid. Debate about what are acceptable criteria — or, more to the point, what is the acceptable meaning of accepted criteria — is an underlying thread in many of the cases in Part C of this book. Another important thread in the same debate is the issue taken up in 7.3.1ff, as to whether the grounds for judicial review should be tied to parliamentary intent, to a common law tradition, or to both. 7.2.9  The convenient starting point in Australia in identifying the grounds for judicial review is s 5 of the ADJR Act. Section 5 lists 18 separate grounds on which a person may apply for an order of review from the Federal Court. Each of those grounds has a common law progenitor; indeed, the language of a number of the grounds (not just unreasonableness) bears a striking similarity to the language used by Lord Greene MR in Wednesbury 7.2.3C. The correlation between the ADJR Act and common law grounds has been repeatedly recognised;

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just as courts routinely draw from the common law in elaborating the scope of the ADJR Act grounds (for example, Kioa v West 11.2.16C), so do courts at common law employ the ADJR Act formulation as a convenient shorthand: NSW Judicial Commission, Civil Trials Bench Book, Sydney, 2007, at [5-8500]. There are, however, a few important contrasts between the ADJR Act grounds and the common law grounds: • The ADJR Act consciously departs from common law principles at several points, notably in s 5(1)(f ) (‘error of law’: 13.4.5ff) and s 5(1)(h), (3) (‘no evidence’: 13.2.12ff).

• At other points it is probable that the ADJR Act crystallised the existence or scope of a ground of uncertain common law dimension, notably (and ironically) s 5(2)(h) (‘uncertainty’: 8.6.6ff). • In recognition of the evolving nature of common law principles, the ADJR Act itself deliberately contains criteria to allow for an expansion of existing grounds, notably in ss 5(1) (j) (‘otherwise contrary to law’) and 5(2)(j) (‘abuse of the power’: 15.2.2). • In applying the common law to the ADJR Act, some account must also be taken of trends in definition. A foremost example is the generally accepted practice, following a lead set by Mason J in Kioa 11.2.16C, to prefer the term ‘procedural fairness’ to ‘natural justice’.

7.2.10  There is a risk of artificiality in the ADJR Act approach of spelling out the grounds separately. In applying those grounds it is immediately apparent that there is overlap among them. This point was made by Lord Greene MR in Wednesbury 7.2.3C and the plurality in Li 7.2.7C. Another perceived difficulty with the ADJR Act approach is the lack of any unifying thread or organising principle in the 18 listed grounds that intersects with the judicial review role of a court. The ADJR Act is nevertheless important. The courts have developed separate jurisprudence for the specific grounds and this has imposed a discipline on legal reasoning by courts, tribunals and the executive. This discipline contributes to maintaining the legality/merits distinction, and the ADJR Act formulation of the grounds is referred to frequently by review bodies. Those grounds of review are accordingly referred to frequently in this book. 7.2.11  The language of the ADJR Act drew from the common law and, not surprisingly, the common law tradition of reshaping the grounds continues — particularly, of course, in systems that do not have a statutory codification of the grounds. A noticeable feature of the common law approach is the adoption of broad concepts or classifications to express the grounds of review. An early Australian example is reflected in the extract from Ex parte Hebburn Ltd; Re  Kearsley Shire Council 7.2.19C, which adopts generic criteria such as ‘asking the wrong question’ and ‘applying the wrong test’. This language is still referred to frequently by courts, notably in jurisdictional error cases. Another common law formulation that attracted great interest was that of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service 7.2.18C, that the grounds can be reduced to three or four broad concepts — ‘illegality’, ‘irrationality’, ‘procedural impropriety’ and, possibly, ‘proportionality’. 7.2.12  The concept of jurisdictional error (and the allied concepts of exceeding jurisdiction and acting without jurisdiction) has become a central or governing concept in Australian administrative law since the 1980s. This development is tied to the jurisdiction of the High Court conferred by s 75(v) of the Constitution to issue the constitutional remedies of prohibition, mandamus and injunction against an officer of the Commonwealth: see  2.2.42. 386

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7.2.14

Relief under s 75(v) is available only if a decision involves jurisdictional error, at least where the remedy sought is prohibition or mandamus: for example, Plaintiff S157/2002 v Commonwealth 11.1.7C. Jurisdictional error is likewise important in the parallel jurisdiction of the Federal Court and the Federal Circuit Court conferred by s  39B of the Judiciary Act  1903 (Cth): see  2.2.11. This constitutional influence extends to judicial review in state Supreme Courts: Kirk v  Industrial Relations Commission of New South Wales  5.3.15C and South Australia v  Totani 5.3.16C. Jurisdictional error is also a separate ground of review under the ADJR Act, which provides that an order of review can be sought on the ground ‘that the person who purported to make the decision did not have jurisdiction to make the decision’: s 5(1)(c). See  also ACT: Administrative Decisions ( Judicial Review) Act  1989 s  5(1)(c); Qld: Judicial Review Act 1991 s 20(2)(c); Tas: Judicial Review Act 2000 s 17(2)(c). Jurisdictional error has not figured prominently as an ADJR Act ground of review, perhaps because it largely overlaps with other ADJR Act grounds. 7.2.13  It has become common for Australian courts to use the language of jurisdictional error, both in federal and state judicial review. A contributory factor — at the federal level — is that more actions are commenced under s 39B of the Judiciary Act than under the ADJR Act. Section  75(v) of the Constitution and s  39B of the Judiciary Act do not spell out the grounds or basis on which relief can be granted, and it has therefore fallen to the courts to develop this jurisprudence. The scope of jurisdictional error is considered in Kirk 7.2.20C, Hossain v Minister for Immigration and Border Protection 7.2.21C and in the extract below from Professor Mark Aronson 7.2.22E. A particular theme in those extracts and in other cases in this book is that the focus of jurisdictional error is on identifying the scope of a decisionmaker’s authority to decide — or, conversely, the limits on the decision-maker’s functions and powers, and whether those limits have been transgressed. Statutory construction is accordingly at the heart of jurisdictional error. Each statute is unique, but general interpretive principles are nevertheless an aid to statutory construction. That is why there is strong crossover between jurisdictional error and the list of review grounds in the ADJR Act — for example, a decisionmaker acts without authority if they consider a matter that is irrelevant to the statute that is being administered. Kirk and Aronson both note that jurisdictional error grounds can never be exhaustive or comprehensive, because the judicial review function of the court is to ascertain in a particular statutory setting the scope of a decision-maker’s jurisdiction or authority to decide. Hossain emphasises that the gravity of the error is relevant to the distinction between jurisdictional and non-jurisdictional errors, in that an error of law will not be jurisdictional in nature if the error does not materially affect the decision. 7.2.14  Strong support has been expressed for both the statutory codification and jurisdictional error approaches to grounds for judicial review. The Administrative Review Council (ARC) affirmed its support for a statutory codification approach in its report, Federal Judicial Review in Australia, Report No 50, Commonwealth of Australia, Canberra, 2012. The ARC noted that submissions to its inquiry ‘overwhelmingly supported some form of codification’ at [7.11], and concluded at [7.13]: that a codified list of grounds should be retained. The codified grounds do continue to play an educative role. They have the potential to educate decision makers about proper decision-making practices, and applicants about their legal rights. Codified grounds are more transparent and accessible than relying solely on principles set out in judicial decisions. 387

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7.2.15  The ARC noted that the statutory codification approach had been destabilised by the alternative avenue for judicial review under s 75(v) of the Constitution and s 39B of the Judiciary Act. To counteract this fragmentation, the ARC recommended an amendment to the ADJR Act to allow an application to be made under that Act where a person would otherwise be able to initiate proceedings under s 75(v). The ARC believed this would provide a simpler and more integrated procedure for judicial review, but could also lead to a closer alignment of the jurisprudence on jurisdictional error and the ADJR Act grounds of review: [4.21] It is possible, on the Council’s recommended approach, that courts would pay explicit regard to the criteria in s 5 of the ADJR Act in elaborating the concept of jurisdictional error. A closer alignment of statutory judicial review and constitutional judicial review could lead to the development of a more coherent and integrated body of legal principle to guide decision makers on the requirements for lawful decision making. This would restore the preeminence of the ADJR Act in providing that administrative law guidance.

7.2.16  The ARC’s approach has been criticised by others, partly on the basis that the problem of fragmentation is more imagined and real, and partly on the basis that jurisdictional error is a preferable conceptual model because it focuses attention on the necessity of construing the legislation that is being applied: see Justice John Griffiths 7.2.23E. A similar point is made by Justice A Robertson: I do not accept that the Federal Court is applying two bodies of substantive law according to whether a proceeding was commenced under the AD( JR) Act or s  39B [of  the  Judiciary Act]. In my opinion the bodies of substantive law are the numerous statutes  in respect of which judicial review actions are brought and which ultimately define the rights and duties of the parties, rather than the mechanism for judicial review. … [I  nevertheless] put forward a modest proposal to include as a ground of judicial review under the AD( JR) Act an express ground of ‘jurisdictional error within the meaning of s  75(v) of the Constitution’. [ Justice A  Robertson, ‘Nothing like the curate’s egg’ in N Williams (ed), Key Issues in Judicial Review, Federation Press, 2014]

The choice between a codified statutory approach and a jurisdictional error approach has also been taken up by other commentators: W Bateman and L McDonald, ‘The Normative Structure of Australian Administrative Law’ (2017) 45 Federal Law Review 153; and M Groves, ‘Should we Follow the Gospel of the ADJR Act?’ (2010) 34 Melbourne University Law Review 736 at 756–9. 7.2.17  Another dimension of the concept of jurisdictional error is examined in 16.4.1ff, in relation to the consequences of unlawful decision-making. A point made in Chapter 16 is that jurisdictional error is a statement of a conclusion — that an error by a decision-maker undermined their authority to decide an issue, with the consequence of invalidity or nullity. To reach that conclusion requires an examination of the limits on the decision-maker’s authority to decide and the gravity of the error. Other consequences can also flow from the conclusion that a decision is invalid by reason of jurisdictional error (for example, that a privative clause does not preclude judicial review of the decision, or that other actions taken on the basis of the invalid decision lack a legal foundation).

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7.2.18C

7.2.19C

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 3 All ER 935 House of Lords

[The facts and judgments in this case appear more fully in 2.3.10C.] Lord Diplock: Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice. By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ … It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system … ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review. I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.

7.2.19C

Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 Supreme Court of New South Wales

Jordan CJ: I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: R v Minister of Health (1939) 1 KB 232, at pp 245–246. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction

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which it is to exercise, and to apply ‘a wrong and inadmissible test’: Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust [1937] AC 898, at p 917; or to ‘misconceive its duty’, or ‘not to apply itself to the question which the law prescribes’: R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228, at pp 242–243; or ‘to misunderstand the nature of the opinion which it is to form’: R v Connell (1944) 69 CLR 407, at p 432, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law: R v Board of Education [1910] 2 KB 165.

7.2.20C

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 High Court of Australia

[The facts of this case are summarised at 16.4.18C.] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ: It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. … The Court in [Craig v South Australia (1995) 184 CLR 163] explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows. First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court 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’ (emphasis added). Secondly, the Court pointed out that jurisdictional error ‘is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers’ (emphasis added). (The reference to ‘theoretical limits’ should not distract attention from the need to focus upon the limits of the body’s functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court’s functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that ‘the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern’ and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks’ Union. As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional

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error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that — examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example.

7.2.21C

Hossain v Minister for Immigration and Border Protection [2018] HCA 34 High Court of Australia

[The facts of this case are summarised at 16.4.19C.] Kiefel CJ, Gageler and Keane JJ: [23] Jurisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have ‘such force and effect as is given to it by the law pursuant to which it was made’: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 613 [46]. [24] Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as ‘involving jurisdictional error’ is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a ‘nullity’, in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as ‘no decision at all’: [Bhardwaj] at 615 [51]. To that extent, in traditional parlance, the decision is ‘invalid’ or ‘void’. [25] To return to the explanation of Professor Jaffe [in Jaffe, ‘Judicial Review: Constitutional and Jurisdictional Fact’, (1957) 70 Harvard Law Review 953], jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error. In the language of Selway J, the unavoidable distinction between jurisdictional errors and nonjurisdictional errors is ultimately ‘a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised’: Selway, ‘The Principle Behind Common Law Judicial Review of Administrative Action — The Search Continues’, (2002) 30 Federal Law Review 217 at 234.

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[26] Although ultimately correct in the result, the majority in the Full Court was therefore wrong to distinguish between a decision involving jurisdictional error and a decision wanting in authority. They are one and the same. [27] Just as identification of the preconditions to and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute. The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute. … [29 That a decision-maker ‘must proceed by reference to correct legal principles, correctly applied’ is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance. [30] Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of ‘the possibility of a successful outcome’ [citing Minister for Immigration and Border Protection v WZARH 11.3.16C at 341], or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was ‘so insignificant that the failure to take it into account could not have materially affected’ the decision that was made: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [10.4.13C] at 40. [31] Thus, as it was put in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at 32 [23], ‘[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act’. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision. Nettle J: [His Honour agreed with Edelman J but added:] [42] Given the broad range of decisions in which errors are apt to be made, and the large variety of circumstances and statutory schemes which may attend them, it is impossible to divine an a priori classification of the jurisdictional errors that do not deprive a party of the possibility of a successful outcome. Perhaps the most that can or should be said on the subject is that, if an error is jurisdictional, in the scheme of things it will not infrequently be the case that it will deprive a party of a possibility of a successful outcome. [In a separate concurring judgment, Edelman J agreed that jurisdictional error requires materiality: see 11.4.7C.]

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7.2.22E

7.2.22E

Mark Aronson, ‘Jurisdictional Error and Beyond’ in M Groves (ed), Modern Administrative Law in Australia; Concepts and Context, Cambridge University Press, Melbourne, 2014

‘Jurisdictional error’ is a relative newcomer to judicial review. According to Austlii, its first High Court usage occurred in 1983. However, cognate terms such as ‘excess of jurisdiction’ and ‘want of jurisdiction’ made their first public law appearance in High Court judgments as early as 1905. ‘Ultra vires’ was in common usage at or around the same time. … There is no hard and fast list of jurisdictional errors. The leading cases have provided examples, and sometimes a catalogue of examples, but these have never been offered as watertight rules. The High Court told us in Kirk that there is no ‘rigid taxonomy’, and that: ‘It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error.’ What counts as a jurisdictional error in one context may be irrelevant in a different statutory setting. For example, it is obvious that warrants to intercept a criminal’s phone calls can be granted without first hearing from the criminal. Even the generic grounds (such as procedural fairness in this example) have exceptions. Nevertheless, one can list the standard judicial review grounds that are not unique to a specific statutory context, and it is convenient to call these the ‘generic grounds’. What counts as a jurisdictional error depends on statutory meaning, from which it follows that other grounds will be unique to a specific statute, and some might be appropriate in only a limited number of statutory contexts. The following list of generic grounds draws on the leading cases — sometimes using their own words, and sometimes paraphrasing them. This list has gained some currency, but always on the understanding that it is not exhaustive, but is only indicative. The generic instances of jurisdictional error include: 1. A mistaken assertion or denial of the very existence of jurisdiction. 2. A misapprehension or disregard of the nature or limits of the decision-maker’s functions or powers. 3. Acting wholly or partly outside the general area of the decision-maker’s jurisdiction, by entertaining issues or making the types of decisions or orders which are forbidden under any circumstances. An example would be a civil court trying a criminal charge. 4. Mistakes as to the existence of a jurisdictional fact or other requirement, when the relevant Act treats that fact or requirement as something which must exist objectively as a condition precedent to the validity of the challenged decision. The fact or requirement is not such a condition precedent if it suffices for the decision-maker to come to its own opinion or satisfaction as to whether it exists. In that case, the opinion is challengeable only on the other grounds in this list. 5. Disregarding relevant considerations or paying regard to irrelevant considerations, if the proper construction of the relevant Act is that such errors should result in invalidity. 6. Some, but not all, errors of law. In particular, if the decision-maker is an inferior court or other legally qualified adjudicative body, the error is likely to be jurisdictional only if it amounts to a misconception of the nature of the function being performed or of the body’s powers. 7. Acting in bad faith. 8. Breaching the hearing or bias rules of natural justice.

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9. Acting extremely unreasonably, whether in the exercise of a specific procedural power, or in the exercise of the substantive powers either to determine facts or determine an outcome. Other generic grounds might be added. For example, an improper purpose will invalidate the purported exercise of a power that has purposive limits, although one could argue that this already has a home within item 3 above. Then there are highly specific grounds that are unique to a particular statute. … This [is] an indicative list of the generic grounds of review — a list that bears a strong resemblance to the list to be found in the ADJR Act. Each list is useful, but they are neither exhaustive nor self-contained. The common law list is not exhaustive because the common law is continually reshaping its grounds and adding to them, and the ADJR Act’s list has two ‘catch-all’ grounds enabling it to pick up any new developments at common law. Further, there are necessarily some grounds of review that are not generic, that are instead unique to their particular statutory contexts, which set specific limits to a public official’s authority. The lists of generic grounds are not just non-exhaustive — the grounds themselves are not self-contained. A judge’s task in judicial review is to determine the legality of the official’s decision or conduct — not to replace it with an order reflecting how the judge would have decided or acted if the administrative task had been entrusted to him or her. In one sense, therefore, judicial review’s grounds are all about margins — how to determine the limits within which bureaucrats are free to make their own assessments of facts, policy or value, and even the limits within which they are free to make errors of law that might go uncorrected. Predicting where those margins will be set in any particular context is a necessarily imprecise task. Australian cases say that it all depends, in the long run, on questions of statutory interpretation. … The fact is that judicial review’s grounds (what constitutes ‘jurisdictional error’) vary across statutory contexts. The subjects of judicial review cannot all be squeezed into a ‘one size fits all’ model. The cases typically start with the particular statutory context, but add to it general interpretive principles that mould or shape the way we read statutes. Very few Acts actually tell their readers in so many words whether the bureaucracy must obey the particular Act’s rules or requirements if decisions made under them are to be valid. Statutory interpretation is said to be the mainspring of ‘jurisdictional error’ and of decisions as to the extent to which a court can retrospectively erase the adverse consequences that flow from a jurisdictionally flawed decision, but judges necessarily bring to the task of statutory interpretation an accumulation of legal principles and values. These are used to ‘flesh out’ statutory texts, as also is a court’s sense of the need to strike a balance of sorts between legal values and administrative practicalities. Complaints that ‘jurisdictional error’ provides too little guidance are therefore misguided. They boil down to complaints that statutory interpretation can be an imprecise art. Of course it is, in any country, and in administrative law as in any other field of law. Administrative law deals with the administrative state — a huge and multifaceted creature. Statutory interpretation cannot just be about statutory text. The courts have an unavoidable role in filling in the gaps left by the usual failure of drafters to distinguish between mandatory and directory provisions. And in this as in any other field of law involving the interaction of statutory and common law, the courts bring to statutory interpretation their presuppositions as to the spoken and unspoken meaning behind, or qualifying, otherwise plain statutory language.

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Aside, perhaps, from the very peculiar context of High Court review of Federal Court decisions, the High Court has told us that ‘jurisdictional error’ is here to stay — it is the irreducible minimum of the constitutionally entrenched jurisdictions of the High Court itself, and of all State Supreme Courts. The term itself does not appear in the ADJR Act, although that Act stays very close to the common law grounds except when it comes to review for any error of law. ‘Jurisdictional error’, therefore, has a very long shelf-life, but the frequency with which we need to use that terminology will vary according to whether we are forced beyond statutory restatements of the common law to the common law itself.

7.2.23E

Justice John Griffiths, ‘Judicial Review of Administrative Action in Australia’ (2017) 88 AIAL Forum 9

Kirk is a landmark decision in Australian administrative law. But it leaves open many unanswered questions as to whether any particular error by an administrative decision-maker involves a jurisdictional error. This uncertainty may frustrate some people, but it is largely unavoidable given the wide diversity of legislative contexts and factual circumstances which potentially frame a judicial review challenge to a particular exercise of executive power. Inevitably, these complexities mean that one size does not fit all. That is not to say that the task of identifying jurisdictional error is at large. Helpful guidance can be obtained from subsequent decisions which have grappled with the issue. These decisions reinforce the danger of approaching the task from the outset as involving a ‘tick the box’ exercise by front-loading established heads of review. The codification of the heads of review in the ADJR Act has undoubtedly performed an educative function, but, as Robertson J has pointed out, the listing of those heads has diverted attention from the prior necessity of construing the legislation. The task of identifying jurisdictional error is far more sophisticated. It essentially involves the following steps: (a) a close analysis of the enabling legislation which purports to authorise the particular administrative action, with a view to determining the true nature of the decision-maker’s task and authority and any relevant procedural constraints which apply; (b) an identification of the alleged error or mistake, whether it involves misconstruction of a legislative provision or some other error, including an error in fact-finding; (c) error identification may be facilitated by an available statement of reasons for the challenged decision, but the absence of such reasons does not necessarily pre-empt judicial review; and (d) bearing in mind the limits of the judicial review function, ask whether what has gone wrong is of such significance and materiality in the context of the decision-maker’s legislative powers and functions that the gravity of the error rises to the height of a jurisdictional error.

7.2.24  The following summary points can be made about the scope of jurisdictional error. Jurisdictional error arises where a decision-maker has exceeded their authority or power. It is therefore a protean concept which varies in scope according to the statutory context of the decision and the gravity of the error. The grounds of review specified in the ADJR Act are broader than jurisdictional error, as not all ADJR Act grounds will always give rise to 395

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jurisdictional error (for example, a procedural error or error of law could be an error within jurisdiction: Muin v Refugee Review Tribunal (2002) 68 ALD 257 at 296). Nevertheless, depending on the statutory context, there are instances of procedural errors and factfinding errors amounting to jurisdictional errors (for example, where a finding of fact is based on a misconstruction of the applicant’s claim: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1). These points are discussed in more detail at 13.3.8.

Judicial substitution of a new decision 7.2.25  A point made in many of the foregoing cases, either explicitly or implicitly, is that in judicial review a court stops short of substituting a new decision for the decision under review. The point was made directly by Toohey J in Johnson v Federal Commissioner of Taxation (1986) 11 FCR 351; 72 ALR 625: ‘The function of the Federal Court under the Judicial Review Act is to review the legality, not the merits, of administrative decisions and the court does not substitute its own decision for that of the decision-maker’: FCR at 354; ALR at 628. The more usual order, when a decision is held to be invalid, is for the matter to be remitted to the decision-maker for reconsideration, subject to any directions given by the court as to how the matter is to be reconsidered (for example, see the form of the order made by the court in Green v Daniels 7.2.4C). See  also regarding the reluctance of courts to make substitutive orders: R  Creyke, ‘Judicial Review and Merits Review: Are the Boundaries Being Eroded?’ (2017) 45 Federal Law Review 627. 7.2.26  The above summary of the law is broadly correct, but requires qualification. There are many instances in which a court undertaking judicial review has substituted a new decision after disagreeing with a finding of the decision-maker. Examples include:

• Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231, granting a writ of ‘peremptory’ mandamus commanding the minister to grant the applicant a protection visa. The High Court considered that peremptory mandamus should issue as the minister had given only one legally infirm reason for his refusal of the visa (based on the ‘national interest’ criterion, which the High Court rejected), and it was agreed that, apart from this, the other criteria prescribed for the visa had been satisfied. • Ipec-Air 12.3.3C, holding that an applicant had complied with statutory criteria for the grant of an aircraft charter licence.

• State of Queensland v Wyvill (1989) 25 FCR 512, holding that a person who had died in custody was not ‘Aboriginal’ within the scope of the Royal Commission into Aboriginal Deaths in Custody.

• Attorney-General (Northern Territory) v Hand (1988) 16 ALD 318, holding that land could not be the subject of an Aboriginal land claim if in the court’s view it contained ‘a road over which the public had a right of way’. • Harris v Repatriation Commission (2000) 62 ALD 161, holding that a veteran’s claim for benefit could not succeed if the correct legal test were applied by the decision-maker. 7.2.27  Generally, however, the courts are reluctant to substitute a decision. In Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320 (regarding the ambit of a broad 396

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statutory power to make substituted orders, but in terms which apply generally to the authority to make substituted orders in judicial review), French CJ, Gummow and Bell JJ observed: [20] The Court of Appeal, in the exercise of its jurisdiction under s 148 of the VCAT Act, may make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained. In that event, the Court can make the order that the Tribunal should have made. The language of s 148(7) is also wide enough to allow the Court of Appeal to make substitutive orders in other circumstances. But its powers must, as with the equivalent powers of the Federal Court in relation to the AAT, be exercised having regard to the limited nature of the appeal. Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment.

As that extract indicates, the usual circumstance in which a court is prepared to substitute its own decision is where there was essentially only one correct answer. A similar approach is adopted by courts where the legislature has made a decision conditional upon the existence or occurrence of a fact, event or circumstance — a ‘jurisdictional fact’ (see 13.3.9ff). By contrast, it is often said that substitution is not appropriate where the statute being applied uses ‘state of mind’ or ‘subjective’ language.

THE JURISPRUDENTIAL FOUNDATION OF JUDICIAL REVIEW Foundation theories: common law vs parliamentary intention 7.3.1  Judicial review originated in the ancient common law jurisdiction of courts to grant prerogative writs: see  2.2.1. To that extent, the major principles of judicial review — as to remedies, grounds of review, justiciability, standing and the role of courts — are deeply and indisputably rooted in the common law. Yet does it follow that we should continue to view the common law as evolved by courts as the wellspring of the concept of legality applied in judicial review? Or, now that we live in an age of legislative supremacy, should the conceptual focus of judicial review instead be on whether parliament’s will, as expressed in a particular statute, has been faithfully respected by those administering the statute? 7.3.2  This issue is an ancient one, but spirited debate on it in Anglo-Australian law is comparatively recent. It was brought to a head by the comments of two English judges debunking the notion (sometimes dubbed the ‘ultra vires theory’) that judicial review was an exercise in enforcing the limits on executive power imposed by parliament explicitly or implicitly. Lord Woolf 7.3.3E described the theory as a ‘fairy tale’, Sir John Laws 7.3.4E as a ‘fig  leaf ’. Their views gave combustion to an ongoing academic debate, receiving support from some academics but criticism or reappraisal from others, including leading English administrative law text writers, Christopher Forsyth 7.3.5E and Jeffrey Jowell 7.3.6E. In full 397

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measure, the debate canvasses issues (not dealt with below) that are more the concern of constitutional law than administrative law, notably the issue of whether a court can override the sovereignty of parliament by ignoring restrictions on judicial review. 7.3.3E

Lord Woolf of Barnes, ‘Droit Public — English Style’ [1995] Public Law 57

[I]t was over 20 years ago now that Lord Reid in his famous lecture about The Judge as Lawmaker made his remark that: There was a time when it was thought almost indecent to suggest that judges make law — they only declare it. Those with the taste for fairy tales seem to have thought that in some Aladdin’s Cave there is hidden the common law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words ‘Open Sesame!’. Bad decisions are given when the judge muddles the password and the wrong door opens. We do not believe in fairy tales any more. ([1972] The Journal of Public Teachers of Law 22) Are we in administrative law still to rely on fairy tales? It is possible to justify the courts demanding fairness and reasonableness in the performance of a public duty by reading into a statute which contains no such requirement an implied requirement that any powers conferred by the statute are to be exercised fairly and reasonably and then to say if they are not so exercised the public body has exceeded its powers and so acted ultra vires. No statute of which I am aware expressly states that the powers which it confers, should be exercised unfairly or unreasonably. The statute may, however, although this was not appreciated at the time, unwittingly, by its express provision, achieve this result. Where this happens it is the duty of the court to remedy the defect in the statute by supplementing the statutory code. I am far from sure whether in these circumstances the court is fulfilling an intention Parliament actually possessed or, by seeking to justify the need to achieve fairness on this basis, indulging in a fondness for fairy tales. However, if this gives the role of the court respectability, so be it … I see the courts and Parliament as being partners both engaged in a common enterprise involving the upholding of the rule of law … While the courts usually make no distinction between the level or class of administrative action which is being reviewed, increasingly the role of interpretation and application of the law has involved the courts in identifying the fundamental principles underlying the common law.

7.3.4E

Sir John Laws, ‘Law and Democracy’ [1995] Public Law 72

In the elaboration of these principles [Wednesbury unreasonableness and procedural unfairness] the courts have imposed and enforced judicially created standards of public behaviour … It cannot be suggested that all these principles, which represent much of the bedrock of modern administrative law, were suddenly interwoven into the legislature’s intentions in the 1960s and 70s and onwards, in which period they have been articulated and enforced by the courts. They are, categorically, judicial creations. They owe neither their existence nor their

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acceptance to the will of the legislature. They have nothing to do with the intention of Parliament, save as a fig-leaf to cover their true origins. We do not need the fig-leaf any more … These principles are not morally colourless — far from it. They constitute ethical ideals as to the virtuous conduct of the state’s affairs. It is … important to recognise the moral force of the basis on which control of public power is effected by the unelected judges …  [T]he fundamental sinews of the constitution, the cornerstones of democracy and of inalienable rights, ought not by law to be in the keeping of the government, because the only means by which these principles may be enshrined in the state is by their possessing a status which no government has a right to destroy … Ultimate sovereignty rests, in every civilised constitution, not with those who wield governmental power, but in the conditions under which they are permitted to do so. The constitution, not the Parliament, is in this sense sovereign … For its part judicial power in the last resort rests in the guarantee that this framework will be vindicated … We have no other choice. The dynamic settlement between the powers of the state requires, in the absence of a constitutional scripture, just such a distribution of authority.

7.3.5E

Christopher Forsyth, ‘Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review’ (1996) Cambridge Law Journal 122

Good metaphors may sometimes mislead … [F]ig leaves do not deceive anyone as to what lies beneath them. The fig-leaf, like the swimming costume on a crowded beach, is to preserve the decencies. It enables individuals to interact in an appropriate manner without threatening the social order. The doctrine of ultra vires plays a similar role in public law. No one is so innocent as to suppose that judicial creativity does not form the grounds of judicial review; but by adhering to the doctrine of ultra vires the judiciary shows that it adheres to its proper constitutional position and that it recognises that Parliament is free to dispense with the judicially developed principles of judicial review. Those who consider that the fig-leaf should be stripped away to reveal the awful truth to all the world do not, with respect, appreciate the subtlety of the constitutional order in which myth but not deceit plays so important a role and where form and function are often different. The unwritten constitution consists very largely of things that appear to be one thing but are in fact another … [The crucial role of] the fig-leaf of ultra vires … is to provide the constitutional justification of judicial review. Under our present constitution judicial review does not challenge but fulfils the intention of parliament. By their ready acceptance of ultra vires the judges show that they are the guardians, not the subverters, of this existing constitutional order. This fact is not a ‘fig-leaf’ nor is it a ‘fairy tale’; it marks the maintenance of the proper balance of powers between the elected and non-elected parts of the constitution. Adherence to ultra vires is a gentle but necessary discipline. And it is worrying that some judges chafe against it … Sir William Wade has remarked that one possible result ‘from our lack of a written constitution [is] that the closer judges come to the constitutional bedrock, the more prone to disorientation they seem to be’. The attack by some judges on the doctrine of ultra vires and the sovereignty of Parliament is but the latest example of judges missing their footing on that bedrock.

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7.3.6E

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Jeffrey Jowell, ‘Of Vires and Vacuums: The Constitutional Context of Judicial Review’ [1999] Public Law 448

[Both the ultra vires and common law] justifications bristle with problems. Ultra vires is artificial because it supplies an intention to the legislature which is wholly fictional; the legislature is unlikely ever to have considered the matter, and, if it had, might well have formed a different conclusion from the one implied by the courts. Ultra vires is also incomplete, in that it fails to explain judicial review’s dominion over prerogative power or the power of nonstatutory bodies exercising public functions. The common law doctrine has the attraction of frankness; it does not hide behind fiction and artificiality. It candidly admits the independent role of the judiciary. In doing so, however, it presents a provocative challenge to traditional British constitutional doctrine by seemingly conferring an open-ended lawmaking power on unelected judges, leading perhaps to the review even of primary legislation. If standards of judicial review are being developed apace, as they are, and if these standards are generally accepted as right and just, does it matter whether they are modestly attributed by the courts to the implied intent of the legislature, or brashly asserted as independent creations of their own? Since, after all, implied intent is a judicial construction, the judges can be as bold in their manipulation of that construct as they can under the model of the common law. So why the fuss? The proper justification for judicial review does matter, not only because it provides a reason for intervention, but also because it indicates the limits of judicial power and its legitimate scope. It is thus crucial to the future relationship between the judiciary and the legislature and to the development of standards that delineate the appropriate balance between official power and individual rights in a constitutional democracy … [T]o be seized of judicial review of a particular matter, the courts must be both constitutionally competent (in the sense that the task they seek to perform is not more appropriately conferred on another instrument of governance) and institutionally competent (in the sense of deciding on matters that are capable of resolution by means of adjudication and not requiring expertise which the courts lack). Once qualified in these ways, the courts decide matters both about procedure (which is generally accepted as being within their scope) or about the substance of a decision (where their power to review is more contested). Under either of those heads, the justification for review is ultimately based not on mere notions of fairness applied pragmatically to the instant case, but rooted in deeper constitutional principle … Judicial review is by no means an unbounded exercise allowing the judiciary freedom to impose unconstrained standards. And it requires a sensitive appreciation of the institutional and constitutional limitations of all decision-making bodies, including those of the courts themselves, as well as those of Parliament, the executive and other bodies exercising public functions.

7.3.7  Variations and modifications of those points have been made by other writers. In support of the common law theory, Craig has argued that parliamentary sovereignty over law-making — an accepted constitutional imperative — does not necessitate parliamentary monopoly in law-making: P  Craig, Administrative Law, 8th ed, Sweet & Maxwell, London, 2016, ch  1; see  also P  Craig, ‘Ultra Vires and the Foundations of Judicial Review’ (1998) 57 Cambridge Law Journal 63. In support of the ultra vires theory, Elliott has argued that parliament, by 400

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general legislative intent or tacit consent, relies on courts to ensure that legislation conforms to underlying constitutional principles of justice and fairness: M  Elliott, The Constitutional Foundations of Judicial Review, Hart Publishing, Oxford, 2001. Aronson, Groves and Weeks contend somewhat differently that parliament, as well as delegating power to the executive to administer legislation, delegates also to the courts, relying upon them to decide not only the meaning of rules, but the materiality and substantiality of error, and the consequences thereby attaching to the breach of a rule: M  Aronson, M  Groves and G  Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, Lawbook Co, Sydney, 2017, at [3.80]– [3.90]. Selway, who was critical of the common law theory, maintained that it ‘is not concerned with legality or ultra vires at all … [but] with the development and enforcement of new common law constitutional norms’: B Selway, ‘The Principle Behind Common Law Judicial Review of Administrative Action — The Search Continues’ (2002) 30 Federal Law Review 217. This comment is borne out by the observation that the debate in the United Kingdom has moved on, and the justification for judicial review in that country is now seen to be that it is a bulwark against abuse of power or maladministration: M Groves, ‘Judicial Review and the Concept of Unfairness in English Public Law’ (2007) 18 Public Law Review 233 at 247–8; see also Re Minister for Immigration and Multicultural Affairs; Ex parte Lam 11.3.14C, observing that the notion of ‘abuse of power’ in the United Kingdom appears now to provide the rationale for the ‘general principles of public law’. Other Australian writers to offer a perspective on the issue include K Stern and J Davidson, ‘Substantive Unfairness: A Case for Reconsidering the Breach Between English and Australian Law’; and M Groves, ‘Legitimate Expectations in Australia: Overtaken by Formalism and Pragmatism’ in M  Groves and G  Weeks (eds) Legitimate Expectations in the Common Law World, Hart Publishing, Oxford, 2017. 7.3.8  There can be a practical doctrinal dimension to this debate, which is taken up in other chapters of this book. It is comparatively easier for a court, drawing from the common law theory, to extend the boundaries of judicial review from time to time, variously to decision-making that is sourced in prerogative or executive power (see 2.3.13 and Chapter 9), to the decisions of non-government bodies (see 2.5.1ff) and, when appropriate, to incorporate emerging standards of review such as proportionality: see  15.3.26ff. The common law method also lies behind the reluctance of some judges to accept that a privative clause can preclude judicial review of administrative action: see  16.3.1ff. In Australia at least, the most intense judicial debate between the proponents of common law method and parliamentary intent has been in relation to the jurisprudential basis for the doctrines of natural justice and unreasonableness, and most recently in relation to the extent of jurisdictional error. As noted in Chapter 11, in relation to natural justice, Kioa 11.2.16C both crystallised and stimulated a judicial debate between those (like Mason J) who regarded the obligation to observe natural justice as a ‘fundamental rule of the common law’, and those (like Brennan J) who regarded the obligation as depending ‘upon the legislature’s intention that observance of the principles of natural justice is a condition of the valid exercise of the power’. A majority of the High Court in Plaintiff S10/2011 9.3.7C emphasised the importance of both common law method and parliamentary intent: Gummow, Hayne, Crennan and Bell  JJ: ‘[T]he common law’ usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interest may be adversely affected by the exercise of that power. If the matter be understood in that way, a debate whether procedural fairness is to be identified as a common law duty or as an implication from statute proceeds upon a false dichotomy and is unproductive. 401

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Similarly, in Plaintiff M61/2010E v Commonwealth 11.2.20C, the High Court rejected the Commonwealth’s submission that the visa eligibility assessment regime for offshore entry of persons was not subject to the requirements of natural justice, because the framework was argued to be an exercise of non-statutory power in respect of ‘unlawful non-citizens’. Because the assessment process prolonged the detention of the plaintiffs, there was a direct impact on the rights and interests of the plaintiffs, and those making the inquiries were therefore bound to act according to law and to afford procedural fairness to the plaintiffs. See also M Groves, ‘Exclusion of the Rules of Natural Justice’ (2013) 39 Monash University Law Review 285.

Constitutional foundations 7.3.9  In Australia, the debate has now shifted to the significance of the Commonwealth Constitution for the theory of judicial review. Three principal features of the Constitution have contributed in this regard: (a) the entrenched ‘minimum provision of judicial review’ under s 75(v) of the Constitution;

(b) the requirement that in each state there be a body fitting the description of ‘the Supreme Court of a State’ under s 73 of the Constitution; and (c) the separation of powers established by Ch III of the Constitution.

7.3.10  First, s  75(v) introduces into the Constitution an entrenched ‘minimum provision of judicial review’ which ‘places significant barriers in the way of legislative attempts (by way of privative clause or otherwise) to impair judicial review of administrative action’: Plaintiff S157/2002 v Commonwealth 11.1.7C at 514. The effect of this at the federal level is that the High Court’s supervisory jurisdiction to grant relief where there has been a jurisdictional error by an officer of the Commonwealth cannot be removed. 7.3.11  Second, at the state level, judicial review is entrenched by the requirement in the Commonwealth Constitution that there be a body which meets the description of ‘the Supreme Court of a State’: s 73. Judicial review is entrenched because that supervisory jurisdiction is a necessary attribute of a state Supreme Court. The High Court explained in Kirk 7.2.20C: French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ: The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. … To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of ‘distorted positions’. And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics. … [T]he observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian 402

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Chapter 7  Foundation Concepts of Judicial Review

constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.

7.3.12  Third, the separation of powers constitutionally entrenches the legality/merits distinction in Australian administrative law. The federal separation of powers under the Commonwealth Constitution is considered in 5.3.1. In summary, the separation of powers doctrine entrenches the tripartite distribution of legislative, executive and judicial functions between the three branches of government. This doctrine permeates Australian administrative law and has constrained the scope of judicial review, as stated in Lam 11.3.14C at 24–5: McHugh and Gummow JJ: In Australia, the existence of a basic law which is a written federal constitution, with separation of the judicial power, necessarily presents a frame of reference which differs from both the English and other European systems … . Considerations of the nature and scope of judicial review, whether by this Court under s 75 of the Constitution or otherwise, inevitably involves attention to the text and structure of the document in which s 75 appears. An aspect of the rule of law under the Constitution is that the role or function of Ch  III courts does not extend to the performance of the legislative function of translating policy into statutory form or the executive function of administration.

The above point was also made by Justice Gageler, writing extra-judicially, in S Gageler, ‘The Underpinnings of Judicial Review of Administrative Action’ (2000) 28 Federal Law Review 303 at 309: The adoption of the principle in Marbury v Madison, 5 US 87 (1803) into administrative law means that the judicial review of legislative and … administrative action are ultimately attributed to a common source. That source, although it can legitimately be labelled ‘the rule of law’, is more precisely identified as the constitutional separation of judicial power from legislative and executive power. Within a constitutional system which establishes and secures such a separation of powers, it is the province and duty of the judicial power to declare and enforce the law that constrains and limits the powers of the other branches of government. The common source brings with it a common limitation … stated by Marshall CJ in Marbury v Madison (at 170): The province of the Court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the Constitution and laws, submitted to the executive, can never be made in this court.

Justice Gageler points to the judgment of Brennan  J in Quin 7.2.5C, and its repeated endorsement in subsequent decisions, as a defining example of the Constitution’s impact on Australian theories of judicial review. 7.3.13  In contrast, Justice Sackville, also writing extra-judicially, has pointed out that the separation of powers doctrine has, paradoxically, encouraged the courts’ supremacy over parliament and the executive in the interpretation of legislation and subordinate rules, but has constrained judicial review’s intrusion into areas of administrative decision-making: 403

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Justice R Sackville, ‘The Limits of Judicial Review of Executive Action — Some Comparisons Between Australia and the United States’ (2000) 28 Federal Law Review 315. He terms this position the ‘twin pillars of judicial review of administrative action in Australia’: The first is that courts exercising powers of judicial review must not intrude into the ‘merits’ of administrative decision-making or of executive policy making. The second is that it is for courts and not the executive to interpret and apply the law, including the statutes governing the power of the executive … There is something of a paradox here. Australian courts defer to decision-makers on factual and policy questions, even to the point of upholding obviously erroneous decisions. Yet they pay no attention to an agency’s interpretation of the legislation it administers, even if the agency is peculiarly well-placed to analyse the issues. The orthodox answer to the paradox is that each of the twin pillars is a necessary consequence of the nature of judicial power exercised by Ch III courts. And the nature of judicial power is ultimately determined by what maintains confidence in the judicial process.

7.3.14  The importance of these uniquely Australian constitutional foundations has led many to question the ongoing relevance to Australia of English judicial review theory. Selway argued that the debate occurring in England ‘is fundamentally irrelevant to Australian judges and lawyers’ (to Selway, ‘a happy consequence’) because of the different constitutional setting: B Selway, ‘The Principle Behind Common Law Judicial Review of Administrative Action — The Search Continues’ (2002) 30 Federal Law Review 217 at 235. Selway, likewise, pointed to the steadfast adherence of Australian courts to the legality/merits distinction, and to judicial acknowledgment of the primacy of the democratic institutions of government. Sir Anthony Mason has referred to ‘the pervasive influence of the separation of powers doctrine in Australia compared with an emphasis on rule of law considerations in England’: Sir A Mason, ‘Australian Administrative Law Compared with Overseas Models of Administrative Law’ (2001) 31 AIAL Forum 1 at 46. 7.3.15  The entrenchment of judicial review in the Constitution deflects attention in Australia from the artificiality of the English debate about the ‘fig leaf ’ of implied parliamentary intention and the democratic objection to the common law approach. The role of courts in Australia in limiting the powers of the legislature and the executive is a functional expression of a fundamental constitutional assumption. Other writers who have discussed the constitutional influence on judicial review in Australia include: W  Bateman and L  McDonald, ‘The Normative Structure of Australian Administrative Law’ (2017) 45 Federal Law Review 153; L Burton Crawford, ‘The Entrenched Minimum Provision of Judicial Review and the Limits of “Law”’ (2017) 45 Federal Law Review 569; W Gummow, ‘The Scope of Section 75(v) of the Constitution: Why Injunction but No Certiorari?’ (2014) 42 Federal Law Review 241; Justice J Basten, ‘Judicial Review of Executive Action: Tiers of Scrutiny or Tears of Frustration?’ in N Williams (ed), Key Issues in Judicial Review, Federation Press, Sydney, 2014, p 35; JK Kirk, ‘The Concept of Jurisdictional Error’ in N Williams (ed), Key Issues in Judicial Review, Federation Press, Sydney, 2014, p 11; R  Sackville, ‘The Constitutionalisation of State Administrative Law’ (2012) 19 Australian Journal of Administrative Law 127; Justice J Basten, ‘Jurisdictional Error after Kirk: Has it a Future?’ (2012) 23 Public Law Review 94; M Groves ‘Federal Constitutional Influences on State Judicial Review’ (2011) 39 Federal Law Review 399; J McMillan, ‘Re-thinking the Separation of Powers’ (2010) 38 Federal Law Review 423; J Spigelman, ‘The Centrality of Jurisdictional 404

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Error’ (2010) 21 Public Law Review 77; L McDonald, ‘The Entrenched Minimum Provision of Judicial Review and the Rule of Law’ (2010) 21 Public Law Review 14; and Sir A Mason, ‘The Foundations and the Limitations of Judicial Review’ (2001) 31 AIAL Forum 1. The ARC completed in September 2012 a detailed report which considered the impact of the Constitution on judicial review: ARC, Federal Judicial Review in Australia, Report No 50, Commonwealth of Australia, Canberra, 2012.

RELATED CONCEPTS AND PRINCIPLES 7.4.1  This section looks at some concepts and principles that may have a bearing on judicial review of administrative action.

Polycentricity 7.4.2  The term ‘polycentric’ is not found in all dictionaries, but translates as ‘many centred’. As noted in J Kirk, ‘Rights, Review and Reasons for Restraint’ (2001) 23 Sydney Law Review 19 at 26, ‘polycentricity’ refers to: matters which are marked by the numerous, complex and intertwined nature of the issues, of the repercussions, and of the interests and people affected. For example, any decision requiring the allocation of economic resources is significantly polycentric, as every competing claim on government resources is a relevant factor.

There are occasional references in Australian cases to the polycentric nature of a statutory standard — for example, in K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [82] (liquor licensing), and Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v  Minister for Immigration and Citizenship 13.3.17C at [164] (offshore country settlement). The term ‘polycentric’ was popularised by philosopher Lon L Fuller 7.4.3E in an article arguing that tasks that are polycentric in nature are not suitable for adjudication — that is, for resolution by a judicial-type method. Used in that way, the term overlaps with the concept of ‘justiciability’: see  2.3.1ff. A typical example of a polycentric decision is an urbanplanning decision to site an airport at a particular place, which directly affects landowners in the locality, yet involves many other public policy choices as well. Polycentricity in a decision will not necessarily negate judicial review of one or another aspect of the decision, but will often mean that judicial scrutiny is restrained or attributes less significance to the impact of the decision on an individual. The impact on the individual may be intertwined with other dimensions of the decision, and a focus solely on the individual dimension could distort the coherency of the decision overall. This was brought out in Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 (2008) 302 ALR 299, in which the New South Wales Court of Appeal held that there was no obligation to accord natural justice to individual landowners who received a reduced water allocation under a new water allocation plan. As Spigelman CJ noted at [79]: The present is a case in which the multiplicity of considerations, together with the broad range of interconnected, conflicting and incommensurable interests, is such that the decision-making process involved in a particular component part is simply overwhelmed by the whole. 405

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Polycentric decisions may also be ill-suited to an adversarial judicial review process: see  A  Edgar, ‘Participation and Responsiveness in Merits Review of Polycentric Decisions: A Comparison of Development Assessment Appeals’ (2010) 27 Environmental and Planning Law Journal 36; E  Campbell and M  Groves, ‘Polycentricity in Administrative DecisionMaking’ in M Groves (ed), Law and Government in Australia, Federation Press, Sydney, 2005, at p 213; M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, Thomson Reuters, Sydney, 2017, at [7.170]–[7.190]; and J King, ‘The Pervasiveness of Polycentricity’ [2008] Public Law 101. 7.4.3E

Lon L Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353

This section introduces a concept — that of the ‘polycentric’ task — which has been derived from Michael Polanyi’s book The Logic of Liberty: Reflections and Rejoinders (1951) 171. In approaching that concept it will be well to begin with a few examples. Some months ago a wealthy lady by the name of Timken died in New York leaving a valuable, but somewhat miscellaneous, collection of paintings to the Metropolitan Museum and the National Gallery ‘in equal shares,’ her will indicating no particular apportionment … When the will was probated the judge remarked something to the effect that the parties seemed to be confronted with a real problem. The attorney for one of the museums spoke up and said, ‘We are good friends. We will work it out somehow or other.’ What makes this problem of effecting an equal division of the paintings a polycentric task? It lies in the fact that the disposition of any single painting has implications for the proper disposition of every other painting. If it gets the Renoir, the Gallery may be less eager for the Cezanne but all the more eager for the Bellows, etc. If the proper apportionment were set for argument, there would be no clear issue to which either side could direct its proofs and contentions. Any judge assigned to hear such an argument would be tempted to assume the role of mediator or to adopt the classical solution: Let the older brother (here the Metropolitan) divide the estate into what he regards as equal shares, let the younger brother (the National Gallery) take his pick. As a second illustration suppose in a socialist regime it were decided to have all wages and prices set by courts which would proceed after the usual forms of adjudication. It is, I assume, obvious that here is a task that could not successfully be undertaken by the adjudicative method. The point that comes first to mind is that courts move too slowly to keep up with a rapidly changing economic scene. The more fundamental point is that the forms of adjudication cannot encompass and take into account the complex repercussions that may result from any change in prices or wages. A rise in the price of aluminium may affect in varying degrees the demand for, and therefore the proper price of, thirty kinds of steel, twenty kinds of plastics, an infinitude of woods, other metals, etc. Each of these separate effects may have its own complex repercussions in the economy. In such a case it is simply impossible to afford each affected party a meaningful participation through proofs and arguments. It is a matter of capital importance to note that it is not merely a question of the huge number of possibly affected parties, significant as that aspect of the thing may be. A more fundamental point is that each of the various forms that awards might take (say, a three-cent increase per pound, a four-cent increase, a five-cent increase, etc) would have a different set of repercussions and might require in each instance a redefinition of the ‘parties affected.’

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We may visualise this kind of situation by thinking of a spider web. A pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole. Doubling the original pull will, in all likelihood, not simply double each of the resulting tensions but will rather create a different complicated pattern of tensions. This would certainly occur, for example, if the doubled pull caused one or more of the weaker strands to snap. This is a ‘polycentric’ situation because it is ‘many centred’ — each crossing of strands is a distinct centre for distributing tensions … [W]e are dealing with a situation of interacting points of influence and therefore with a polycentric problem beyond the proper limits of adjudication … It should be carefully noted that a multiplicity of affected persons is not an invariable characteristic of polycentric problems. This is sufficiently illustrated in the case of Mrs Timken’s will. That case also illustrated the fact that rapid changes with time are not an invariable characteristic of such problems. On the other hand, in practice polycentric problems of possible concern to adjudication will normally involve many affected parties and a somewhat fluid state of affairs. Indeed, the last characteristic follows from the simple fact that the more interacting centres there are, the more the likelihood that one of them will be affected by a change in circumstances, and, if the situation is polycentric, this change will communicate itself after a complex pattern to other centres. This insistence on a clear conception of polycentricity may seem to be labouring a point, but clarity of analysis is essential if confusion is to be avoided. For example, if a reward of $1000 is offered for the capture of a criminal and six claimants assert a right to the award, hearing the six-sided controversy may be an awkward affair. The problem does not, however, present any significant polycentric element as that term is here used. Now, if it is important to see clearly what a polycentric problem is, it is equally important to realise that the distinction involved is often a matter of degree. There are polycentric elements in almost all problems submitted to adjudication. A decision may act as a precedent, often an awkward one, in some situation not foreseen by the arbiter … It is a question of knowing when the polycentric elements have become so significant and predominant that the proper limits of adjudication have been reached …

Discretion 7.4.4  Most administrative law cases involve review of a decision made in the exercise of discretion. Discretion exists ‘where there is power to make choices between courses of action or where, even though the end is specified, a choice exists as to how that end should be reached’: P  Craig, Administrative Law, 8th ed, Sweet & Maxwell, London, 2016, at p 527. The most direct way that a choice has to be made is when legislation provides that a decision-maker ‘may’ grant a licence, can impose such conditions as he or she ‘thinks fit’, may take specified action if ‘satisfied’ that it would be ‘reasonable’ in the circumstances, or shall choose the dates between which a licensed activity is to commence and end. Less directly, there is a choice to be made where the facts are in dispute, or the legislative phrase or departmental policy standard being applied is inherently indeterminate (for example, whether a person is living in a ‘marriage-like relationship’ or has made ‘reasonable attempts to seek work’). For a general discussion by the High Court of the issue of discretion, see the judgments in Li 7.2.7C at [22]–[30] (French  CJ), [63]–[76] (Hayne, Kiefel and Bell  JJ), [88]–[92] (Gageler J).

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7.4.5  A study of taxation legislation in 2007 identified 825 operative discretions: see The Treasury, Review of Discretions in the Income Tax Laws, Discussion Paper, Canberra, 2007. Of those, 499 were administrative discretions (for example, granting an extension of time to lodge a taxation return, or remitting an interest charge or penalty); 114 were liability discretions (such as the discretion to allow a deduction, or to decide the taxation category a person falls into); and 212 were anti-avoidance discretions (such as the discretion to audit a taxpayer). More generally, the prevalent role that discretion now plays in the modern regulatory and welfare state is brought out in the following extract from DJ Galligan 7.4.6E. 7.4.6E

DJ Galligan, Discretionary Powers: A Legal Study of Official Discretion Clarendon Press, Oxford, 1986

A noticeable feature of modern legal systems is the extent to which officials, whether they be judicial or administrative, make decisions in the absence of previously fixed, relatively clear, and binding legal standards. Frequently it appears that decisions are made and so power exercised according to considerations which vary from one area of state activity to another, from one type of institution to another, and even from one set of circumstances to another, in the absence of that pattern of normative standards and principles which generally is thought to be so central to the very notion of legal order … It has become commonplace that a notable characteristic of the modern legal system is the prevalence of discretionary powers vested in a wide variety of officials and authorities. A glance through the statute book shows how wide-ranging are the activities of the state in matters of social welfare, public order, land use and resources planning, economic affairs, and licensing. It is not just that the state has increased its regulation of these matters, but also that the method of doing so involves heavy reliance on delegating powers to officials to be exercised at their discretion. Similarly, within areas that have long been the subject of state control, like criminal justice and the penal system, there are signs of a trend towards greater discretion. Of course, discretionary powers are not an innovation of the modern state since any system of authority relies on discretion in varying ways and degrees; the argument is only that in recent decades the quantity of discretion has increased to make it a more significant facet of state authority. This expansion can be seen not only in powers expressly delegated, but also in the levels of unauthorised discretion, in the sense that officials assume to themselves the power to depart from, change, or selectively enforce authoritative legal standards. The extended reliance upon discretionary powers has accompanied and to a large extent been a product of the growth of state regulation. There is ample evidence of that expansion in the later part of the nineteenth century and the major part of the twentieth as the state has extended its activities into a wide range of social and economic affairs. An adequate explanation of this extension would be a complex undertaking; it can clearly be linked to changing ideas about the nature of society, and about the proper role of the state in achieving ideals of social justice and welfare; it can also be related to the extended franchise. It can be linked to the increased necessity for state intervention and regulation of the economy, partly in order to achieve those social ideals, and partly in order to maintain and protect the basic structure of capitalist economies.

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7.4.9E

7.4.7  Discretion, although an accepted feature of a system of law and government, has long been a source of unease in public law tradition. The unease stretches back to the influential writing of Professor Albert Dicey in 1885, in his definition of the rule of law as a characteristic of the English legal system. The first of Dicey’s three meanings of the rule of law was ‘the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of government’: AV  Dicey, Introduction to the Study of the Law of the Constitution, 10th ed, Macmillan, London, 1959, at p 202. The same theme was taken up by other writers, notably economist Friedrich Hayek, who defined the rule of law — one of ‘the great principles’ — in the following terms: Stripped of all technicalities, this means that government in all its action is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge. [FA  Hayek, The Road to Serfdom, Routledge, London, 1944]

7.4.8  There is nowadays a more measured appreciation of the necessary role that discretion plays in government. The concern with controlling discretion nevertheless continues. One of the more influential writers in this tradition was the doyen of American academic lawyers, Kenneth Davis. In an influential work on discretionary justice, Davis proposed a comprehensive approach to controlling and structuring discretion, by reliance not only on judicial review, but also on rule-making (see  6.2.1ff) and administrative adjudication: see KC Davis 7.4.9E. The same approach dominated a later influential text, Discretionary Powers by DJ Galligan. Among the points made by Galligan 7.4.10E was that the innate propriety of most administrators is a factor that should not be overlooked. The views of Davis and Galligan in that respect will be noted briefly, before returning to the role played by judicial review in controlling administrative discretion: see 7.4.11. 7.4.9E

KC Davis, Discretionary Justice: A Preliminary Inquiry Louisiana State University Press, Baton Rouge, 1969

If … the problem about discretion at all government level in the United States is almost entirely that of excessive discretionary power and is seldom that of inadequate discretionary power, the two principal needs are the elimination of unnecessary discretionary power and better control of necessary discretionary power. The principal ways of controlling are structuring and checking. Structuring includes plans, policy statements, and rules, as well as open findings, open rules, and open precedents … Checking includes both administrative and judicial supervision and review. Our present concern is with eliminating and limiting discretionary power, that is, confining discretion. By confining is meant fixing the boundaries and keeping discretion within them. The ideal, of course, is to put all necessary discretionary power within the boundaries, to put all unnecessary such power outside the boundaries, and to draw clean lines. The ideal is seldom realised, and many of the failures are rather miserable ones, for they frequently result in avoidable injustice.

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7.4.10E DJ Galligan, Discretionary Powers: A Legal Study of Official Discretion Clarendon Press, Oxford, 1986 [I]t would be misleading to overlook the contribution of the various officials and authorities in the course of their own practice of administration. Amongst the numerous, powerful influences on officials must be counted general ideas of good administration, of not only being effective and efficient, but also of being fair and equitable, maintaining moral ideals, upholding procedural correctness, and generally showing interest in and respect for those affected by official decisions. We saw in earlier chapters the stress that officials place on matters like these; and while there are cases of gross deviation and pockets of recalcitrance, it would be unfortunate to accept an image of administrative officials trying at all costs to remain beyond the pale of general principles of law and propriety. Much of the impetus for good administration comes from within the authorities themselves: the concern to act rationally and purposively, to eliminate arbitrariness, to formulate and publicise guidelines and policy, to respect procedural fairness, to provide reasons, to treat individuals equally and fairly, are all matters likely to be considered by the administrators as important. Moreover, in addition to the commitments of particular officials to principles of good administration, there are often mechanisms within government organisations for one set of officials to provide guidance to others, and for one set of officials to review the decisions of others. The general and important point is simply that, quite apart from clear directions from the legislature, the courts, or other special bodies, administrative officials may have of their own initiative highly developed principles of good administration.

7.4.11  The abiding legal concern to control discretion permeates all aspects of judicial review.  It is explicitly mentioned in three of the grounds of review in the ADJR Act: s 5(2)(d)–(f ). Many of the foundation cases speak of controlling discretion in the same breath as they define the limits on judicial scrutiny. Thus, Lord Greene  MR in Wednesbury 7.2.3C notes that there must be ‘a real exercise of discretion’. Kitto  J in Ipec-Air 12.3.3C (see  also  7.2.1) observes that ‘a discretion … is intended to be exercised according to the rules of reason and justice’: at 189. This philosophy reaches its zenith in the judicial denial of absolute or unfettered discretion. Some statutes, more in the past, used such phraseology (for example, the Migration Act 1958 (Cth) s 7(1) (since repealed): ‘The Minister may, in his absolute discretion, cancel a temporary entry permit at any time’). The modern judicial trend is to deny such a possibility in a statute-based system under the rule of law. As Lord Upjohn observed in Padfield v Minister of Agriculture, Fisheries and Food 10.3.17C: ‘[T]he use of that adjective [‘unfettered’], even in an Act of Parliament, can do nothing to unfetter the control which the judiciary have over the executive’. To the same effect are the observations of Mason J in FAI Insurances Ltd v Winneke 11.2.17C that ‘the court will not ordinarily regard a statutory discretion the exercise of which will affect the rights of a citizen as absolute and unfettered’: at 368, and by French CJ in Li 15.2.18C that ‘[e]very statutory discretion, however broad, is constrained by law’: at 348. 7.4.12  Another lasting theme in the judicial control of discretion is the judicial reading-in of objective content into statutory standards that might otherwise be dominated by subjectivity. The resounding endorsement subsequently given to Lord Atkin’s dissenting view in Liversidge v Anderson [1942] AC 206 (see 8.3.48–8.3.49) has become a hallmark of the judicial control of discretionary phrases. This trend in Australia is captured in cases such as George v Rockett 8.3.56C; and Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125: 8.3.59. 410

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7.4.13  However, it should not be thought that the trend is all one way. As noted in Chapter 10, the notion of unconfined discretion is firmly recognised in Australia, in cases such as Water Conservation and Irrigation Commission (NSW) v Browning 10.3.10C and Murphyores Inc Pty Ltd v Commonwealth 10.3.16C. Moreover, as the High Court emphasised in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission 3.3.43C, it is in the nature of discretion that a decision-maker has some latitude as to the choice of decision to be made: Gleeson CJ, Gaudron and Hayne JJ: ‘Discretion’ … refers to a decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result’ (Jago v District Court (NSW) (1989) 168 CLR 23 at 76 per Gaudron J). Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made … The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion  … On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment … Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process (see Norbis v Norbis (1986) 161 CLR 513 at 518–519 per Mason and Deane JJ). And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal.

‘Self-executing rules’ and ‘ministerial acts’ 7.4.14  All decisions (unless wholly automated: see 7.4.18) involve some element of human choice, discretion or subjectivity. Merely selecting the facts to which a statutory standard is to be applied involves human judgement. Even so, the element of choice can vary greatly among decisions, referable usually to the nature of the issue to be resolved or the statutory standard to be applied. At one end of the spectrum are decisions that are primarily non-discretionary and involve the mechanical application of a legislative standard. Two concepts that have been devised to capture this category of decision are ‘ministerial act’ and ‘self-executing rule’. 7.4.15  The term ‘ministerial act’ describes the execution of a statute or the carrying out of an instruction, usually by way of administrative duty, as contrasted with a decision that is judicial or discretionary in nature. Examples include the duty of a polling officer to allow a registered voter to cast a vote on election day, and the execution of an arrest warrant. It is merely a term of description or classification, infrequently used today, and of limited doctrinal significance. 7.4.16  The concept of a ‘self-executing rule’ plays a more controversial role in administrative law. The term refers to a legislative provision spelling out the consequence or action that will ensue automatically in a defined situation; for example, if an annual return is not lodged by a specified date a penalty of $X will be payable. The term can be relevant to judicial review in at least two ways that have already been mentioned. First, it is often argued (with increasing success) that the administration of a self-executing decision does involve a ‘decision’ that is reviewable either judicially or by a tribunal: see 2.4.26–2.4.33. As the Full Federal Court said in Australian Postal Corporation v  Forgie (2003) 130 FCR 279, of a provision stating that an employee’s 411

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right to compensation would be suspended if the employee failed without reasonable excuse to undertake a rehabilitation program, for ‘the self-executing aspect’ of the provision to come into operation, ‘[s]ome officer in the determining authority must form an opinion that there has been an unreasonable … failure to undertake the rehabilitation program’: at [55]. Similar reasoning underlay the New South Wales Court of Appeal’s decision in Rodger v De Gelder (2011) 80 NSWLR 594, that a referral of a person for a medical assessment under compensation legislation could occur ‘only on the grounds of the deterioration of the injury or additional relevant information about the injury’, and consequently was a reviewable determination: at [58]–[71]. By contrast, in Goodman v Motor Accidents Authority of NSW (2009) 53 MVR 420 it was held that a referral that an officer was required to make upon request by either party, or by a court or claims assessor, was a ‘purely administrative’ step and therefore could not be subject to certiorari: at [57]. A second situation in which a self-executing standard can be important is that it may be classified as a jurisdictional fact (see  13.3.9ff), meaning that a court can then undertake de novo review of whether there is evidence to justify the standard being applied. Even for so-called ‘self-executing’ provisions, there may be preliminary fact-finding steps which are judicially reviewable: Trajkovski and Telstra Corporation Ltd (1998) 81 FCR 459. 7.4.17  Legislative provisions of a ‘self-executing’ nature are becoming increasingly common. An example is the Child Support (Assessment) Act 1989 (Cth), which sets out an administrative formula that predetermines the amount of child support to be provided by a separated parent and provides in s 12A for the use of a computer program to make decisions of that kind. Administrative penalties are equally common, and have been the subject of inquiry by the Australian Law Reform Commission, which has foreshadowed the need for greater standardisation in the legal treatment of such penalties: Principled Regulation: Federal Civil and Administrative Penalties in Australia, Report No  95, March 2003. Another context in which the debate has arisen was the public debate in 2015 about whether a minister should have a discretion to cancel the citizenship of an Australian who has engaged in terrorist activity in a foreign country. Some commentators suggested that a more acceptable alternative would be a self-executing provision that resulted in the loss of citizenship upon a specified occurrence (for example, conviction of a terrorism offence).

Automated decision-making 7.4.18  It is a feature of the technological age that computing systems are increasingly being used in administrative decision-making. A 2004 study by the ARC pointed to the widespread and developing use by government agencies of expert systems (computer systems that can reason and draw a conclusion): Automated Assistance in Administrative Decision-Making, Report No 46, Commonwealth of Australia, Canberra, 2004. Benefits perceived by agencies include efficiency, accuracy and consistency in decision-making, simplification of complex legislation, reduction of human prejudice in administrative judgement, better auditing of primary decision-making, and introduction of different service delivery options (such as self-assessment and communitybased decision-making). Expert systems are presently used by government agencies to calculate penalties, assess degrees of compensable incapacity, decide whether to prosecute, grant import and export permission, determine family tax benefit, and assess eligibility for community housing. Legislative recognition of the practice has been given in some areas, as illustrated by the following example from the Australian Citizenship Act 2007 (Cth): 412

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48(1) The Minister may, by writing, arrange for the use, under the Minister’s control, of computer programs for any purposes for which the Minister may, or must, under this Act or the regulations: (a) make a decision; or (b) exercise any power or comply with any obligation; or (c) do anything else related to making a decision or exercising a power or complying with an obligation.

(2) The Minister is taken to have: (a) made a decision; or (b) exercised a power or complied with an obligation; or (c) done something else related to the making of a decision or the exercise of a power or the compliance with an obligation; that was made, exercised, complied with or done by the operation of a computer program under such an arrangement. (3) The Minister may substitute a decision (the substituted decision) for a decision (the initial decision) made by the operation of a computer program under such an arrangement if: (a) a notice under section 49 relates to the computer program and to the initial decision; and (b) the notice states that the computer program was not functioning correctly; and (c) the substituted decision could have been made under the same provision of this Act or the regulations as the initial decision; and (d) the substituted decision is more favourable to the applicant.

See  also Australian Education Act 2013 (Cth) s  124; Paid Parental Leave Act 2010 (Cth) s  305; Social Security (Administration) Act  1999 (Cth) s  6A; A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) s 223; Child Support (Assessment) Act 1999 (Cth) s 12A; Veterans’ Entitlements Act 1986 (Cth) s 4B. 7.4.19  The growing reliance by government on expert systems, and the need for administrative law to adjust to this change, is taken up in the following extract from Justice M Perry 7.4.20E. 7.4.20E

Justice M Perry, ‘iDecide: Administrative Decision-Making in the Digital World’ (2017) 91 Australian law Journal 29

Automated processes employ coded logic and data-matching to make, or assist in making, decisions. By applying a combination of rules-based processes, pre-programmed logic and complex data-matching algorithms, these systems can be used to aid or guide a human decision-maker at one end of the spectrum. At the other end of the spectrum, they may be used in lieu of a human decision-maker. They may also be integrated at different stages of a decision-making process with differing degrees of human oversight and verification, including in the preparation of information for a human decision-maker such as in generating a history of financial transactions or medical treatment. The great benefit of these systems is that they can process large amounts of data more quickly, more reliably and less expensively than their human counterparts. They “come into

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their own” therefore when high frequency decisions need to be made by government. For example, when a tax return is lodged with the Australian Taxation Office, an application is made to the Department of Human Services for the age pension, austudy, or child care rebate, a passport is entered into a SmartGate system at Sydney’s International Airport, or a dynamic electronic form is completed online, computer systems are processing the input information and making decisions as part of the modern machinery of government. Like sheep being corralled through a pen, these systems effectively close-off irrelevant gateways as the applicant progresses through the matrix of pre-programmed pathways and the process is completed with the assessment, for example, of a welfare benefit, tax refund or penalty. The extent to which these systems are employed in government is illustrated by statistics from the Australian Government’s Department of Human Services which hosted over 102 million digital self-managed transactions in 2013–2014, with its self-service mobile apps being downloaded more than two million times. It is estimated that by 2020, digital channels will be used by people in 80% of transactions to access government services, compared with 30–40% at present. The benefits which such systems can achieve is illustrated by the experience of the Australian Taxation Office which utilises over 600 different systems to assist in collection of revenue. In the financial year ending 30 June 2014, the ATO’s automated systems led to data-matching audits that resulted in approximately AU$522 million in additional revenue being collected. Nonetheless the reality is that growth in this area took off well before public law lawyers and academics began properly to reflect on how these systems interrelate with administrative law principles. Indeed, it is fair to say that, generally speaking, the rise of automated decisionmaking systems per se has caught administrative lawyers off-guard. Despite their prevalence today, clients or applicants and those who advise them frequently remain unaware of their use in decisions directly affecting rights and interests. … [I]t is necessary to consider what measures are necessary: • to ensure the legality of purported actions by public bodies; • to guard against the potential erosion of procedural fairness and administrative justice; • to safeguard the transparency and accountability of government decisions by the provision of reasons and effective access to merits and judicial review; and • to ensure accountability so that decisions may be subject to external merits and judicial review (by humans). Lost in Translation: From Law to Code Questions of legality posed in the context of automated systems go beyond identifying the source of the authority for their use. One of the greatest challenges is to ensure accuracy in the substantive law applied by such processes. In any process of translation, shades of meaning may be lost or distorted. In our increasingly culturally diverse societies, the challenge of ensuring the accurate and fair translation of proceedings in a court or tribunal into different human languages is confronted daily. Yet the failure to achieve effective communication by reason of inadequate interpretation can result in a hearing that is procedurally unfair and may, in reality, be no hearing at all. The rise of automated decision-making systems raises an equivalent but potentially more complex question of what may have been lost or altered in the process of digital translation. Computer programmers effectively assume responsibility for building decision-making

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systems that translate policy and law into code. Yet computer programmers are not policy experts and seldom have legal training. How can we be sure that complex, even labyrinthal, regulations are accurately transposed into binary code? The artificial languages intelligible to computers, as one commentator has explained, have a more limited vocabulary than their human counterparts. Laws are also interpreted in accordance with statutory presumptions and meaning is affected by context. These are not necessarily simple questions and the potential for coding errors or distortions of meaning is real. Nor are laws static, and complex transitional provisions may need to be accommodated. Such systems will need to be kept up to date while maintaining the capacity to apply the law as it stands at previous points in time for decisions caught by transitional arrangements. The scale of the issue can be illustrated by the frequency of amendments to the Migration Act, the income tax laws, the Social Security Act and their associated regulations. Against this, it is no coincidence that the government agencies relying most heavily upon automated processes are the same agencies that apply the most complex, intricate and voluminous legislation. It is here that potential gains in efficiency stand to be achieved. Yet it must also be borne in mind that, while the strength of automation lies in its capacity to deliver greater efficiencies of scale, this is also its “Achilles heel”. This is particularly so given the human tendency to trust the reliability of computers. These considerations highlight the importance of lawyers being involved in the design and maintenance of software applied in these kinds of decision-making processes, and the legislative frameworks within which they operate. In a society governed by the rule of law, administrative processes need to be transparent and accountability for their result, facilitated. Proper verification and audit mechanisms need to be integrated into the systems from the outset, and appropriate mechanisms for review in the individual case by humans, put in place. Substantive Fairness Finally, when is it appropriate to use automated systems? Automated decision-making systems are grounded in logic and rules-based programs that apply rigid criteria to factual scenarios. Importantly, they respond to input information entered by a user in accordance with predetermined outcomes. By contrast, many administrative decisions require the exercise of a discretion or the making of an evaluative judgment. For example, is a person is “a fit and proper person” to hold a licence? Are a couple are in a de-facto relationship? These are complex and subtle questions incapable of being transcribed into rigid criteria or rules and, therefore, beyond the capacity of an automated system to determine. Different factors may need to be weighed against each other and may be finely balanced. If automated systems were used in cases of this kind, not only may there be a constructive failure to exercise the discretion; by their nature they apply predetermined outcomes raising questions of pre-judgment or bias. Moreover, “Programmers”, as one commentator has suggested “can build matching algorithms that have biased assumptions or limitations embedded in them. They can unconsciously phrase a question in a biased manner.” Human decision-makers must, therefore, be kept “in the loop” when decisions of this kind are being made. The debate about the use of automated processes in the making of evaluative decisions is immediate and real. An example in point at the extreme end of the spectrum is the debate on automated weapons machines which may operate independently of their human counterparts in the field once programmed.

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In resolving these kinds of issues, it is also important to bear in mind the reasons why Parliament may create powers exercisable by reference to discretionary and evaluative factors. They can equip the decision-maker with the means of reaching a decision in the individual case that best achieves the purposes of the power in question and best accords with community values and expectations, as well as considerations of fairness and common sense. These considerations point to a further risk to which lawyers, policy-makers and legislators should be alert. It is not difficult to envisage that the efficiencies which automated systems can achieve, and the increasing demand for such efficiencies, may overwhelm an appreciation of the value of achieving substantive justice for the individual. In turn this may have the consequence that rules-based laws and regulations are too readily substituted for discretions in order to facilitate the making of automated decisions in place of decisions by humans. The same risks exist with respect to decisions which ought properly to turn upon evaluative judgments. Legislative amendments directed towards facilitating greater automation by requiring the application of strict criteria in place of the exercise of a discretion or value-based judgment, should therefore be the subject of careful scrutiny in order to protect against the risk that the removal of discretionary or evaluative judgments may result in unfair or arbitrary decisions. Furthermore, the capacity for error or unjust decisions can be ameliorated by the inclusion of appropriate review mechanisms by humans. For example, when the Migration Act was amended in 2001 to authorise the use of computer programmes to make decisions and exercise powers, safeguards were included so as to enable the Minister to substitute a more favourable decision for one made by a computer should the programme not function correctly (Migration Act 1958 (Cth), ss 495A and 495B). This assumes, of course, that the error is identified in the first place and the provision anticipates and accommodates the different scenarios that may occur in the digital world.

7.4.21  Both the ARC study on automated decision-making (see 7.4.18) and Justice M Perry 7.4.20E point to the need to ensure that information technology systems and practices are aligned to principles of good decision-making and administrative law. See also the principles and practical suggestions for use of technology in K Miller, ‘The Application of Administrative Law Principles to Technology-assisted Decision-making’ (2016) 86 AIAL Forum 20. The alignment of technology with good decision-making principles was taken up in a guide produced by 24 Australian Government agencies led by the Australian Government Information and Management Office: Australian Government, Automated Assistance in Administrative DecisionMaking: Better Practice Guide, Canberra, February 2007. The guide provides practical guidance on incorporating public law principles into automated systems; for example, ensuring that legislation is properly mapped, legislative rules have primacy over policy and other rules, the decision-maker can be identified, statutory discretions are preserved by the system, reasons are recorded for decisions, and there is an audit trail for all decisions. 7.4.22  It is accepted that automated systems can improve decision-making, yet they harbour dangers also. This was illustrated in two Commonwealth Ombudsman reports. The first, a report on wrongful immigration detention, Report into Referred Immigration Cases: Data Problems, Report No 8, 2007, explained how poor design of information technology systems, and sloppy administrative practices in entering and retrieving data from the system, led to the wrongful detention of many people who were citizens or visa holders. Particular problems highlighted in the report were data recording errors, failure to update the information on 416

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systems, uncritical acceptance of information retrieved from systems and a failure to reconcile it with other inconsistent information, poor understanding of the complexities and limitations of information technology systems, and disaggregation of information across multiple systems. The second, on the ‘robo-debt’ controversy, Centrelink’s automated debt raising and recovery system, Report No 2/2017, dealt with problems that arose when Centrelink moved from a manual to an automated debt raising and recovery system. A major problem exposed in the report was a high error rate in debt assessment that was attributable to incorrect entry of information into the system, affecting more than 20,000 debt recovery notices. See  A  Le  Sueur, ‘Robot Government: Automated Decision-making and its Implications for Parliament’ in A Le Sueur (ed), Parliament: Legislation and Accountability, Hart Publishing, Oxford, 2016, ch  9; and D Hogan-Doran SC, ‘Computer says “no”: automation, algorithms and artificial intelligence in Government decision-making’ (2017) 13 The Judicial Review 1.

JUDICIAL DEFERENCE AND RESTRAINT 7.5.1  The doctrine of judicial review is itself a doctrine of judicial restraint. At its heart is the legality/merits distinction, which recognises the limited role played by courts in reviewing executive decision-making. The judiciary’s role, stated broadly, is to look only at the legality of decisions, leaving all other aspects of the decision-making process — development of administrative procedures, consultation with clients, fact-finding, policy formulation, and evaluation of individual circumstances — to be resolved by the executive branch. Sometimes, however, courts have found the need to go further, and to develop more precise principles about judicial deference and restraint. This section looks at some of those principles, raising as well the question of whether Australian courts should go even further along that path. That dimension of the study is triggered by the fact that, in one respect at least, United States and Canadian courts have developed a more elaborate doctrine of judicial deference to agency expertise than Australian courts have so far been prepared to do. 7.5.2  A phrase such as ‘judicial deference’ prompts an immediate question — ‘deference to what’? Three possible answers are analysed below: deference to an agency’s interpretation of the legislation it is administering; deference to the special position or skill of the decisionmaker; and judicial restraint in the scrutiny of administrative reasons for decisions. An allied issue is the appropriate standard or intensity of judicial review. The issue of deference or restraint also arises squarely in other aspects of administrative law review that are studied elsewhere in this book:

• Fact-finding: The distinction between questions of law and questions of fact — and, correspondingly, between errors of law and errors of fact — permeates many areas of administrative law. As noted in 13.5.4, the classification of an error as one of law will usually permit judicial invalidation or reversal of a decision, but not so if the error is classified as one of fact. Judicial restraint versus intervention is therefore an issue intertwined with the law/ fact distinction.

• Jurisdictional error: A superior court, undertaking judicial review of a decision or proceeding of an inferior court, will as a general rule set aside that decision or proceeding only if an error by the inferior court is classifiable as a jurisdictional error as opposed to an error within jurisdiction: see Chapter 16. Once again, the issue of restraint versus intervention hovers over the classification of an error. 417

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• Jurisdictional facts: If a statutory criterion is classified as a jurisdictional fact or precondition, a court can consider de novo whether the fact is established: see Chapter 13. If the statutory criterion is not so classified, a court is restricted to its normal (and more confined) judicial role of examining whether there was legal error in the application of the criterion. 7.5.3  Before considering the application of deference in the three contexts outlined above, it is important to note that the doctrine has been the subject of sustained criticism. For example, Edelman J noted that ‘the label “deference” has been deprecated in Australia. It has historical, unfortunate connotations of servility’: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [149]. Justice Hayne, writing extra-curially, contends that the label ‘deference’ is conclusory and is often used to abdicate the judicial function: It is of the very first importance to recognise what is occurring if it is said that the courts should defer to the legislative or executive branches of government in cases where the legislature or the executive have acted on information, or by reference to considerations, which the courts cannot know about and examine. The notion of ‘deference’ is being used to paper over the fact that the courts are unable or unwilling to identify the relevant facts. If this is right, I come back to the point that has already been made. If Parliament gives the courts a task, the courts have no choice except to perform it. It is the judicial power, and the judicial duty, which is invoked. If the tools and techniques available to the courts are inadequate, that is what should be pointed out. There is no legitimacy, nor fulfilment of the constitutional function bestowed on the judiciary, in a judicial method which seeks to paper over the deficiencies by invoking the language of deference. Deference in this sense would be obfuscation of the judicial method. It would be abdication of the judicial function. To borrow an expression applied to Australian constitutional law by the former SolicitorGeneral of the Commonwealth, Sir Maurice Byers, deference in such circumstances would be a ‘fraud on the power’. [ Justice KM  Hayne, ‘Deference — An Australian Perspective’ [2011] Public Law 75]

See also TRS Allan, ‘Judicial Deference and Judicial Review: Legal Doctrine and Legal Theory’ (2011) 127 Law Quarterly Review 96; A Freckelton, ‘The Concept of “Deference” in Judicial Review of Administrative Decisions in Australia – Part 1’ (2013) 73 AIAL Forum 52; C  Henckels, ‘Proportionality and the Separation of Powers in Constitutional Review: Examining the Role of Judicial Deference’ (2017) 45 Federal Law Review 181; and J Boughey, ‘Re-evaluating the Doctrine of Deference in Administrative Law’ (2017) 45 Federal Law Review 597.

Judicial deference to agency interpretation of legislation 7.5.4  Construing and applying legislation is a routine activity of government agencies. Manuals, policies and precedents are usually developed by agencies to provide guidance to staff on the meaning of unclear phrases in the legislation. Should an agency’s view as to the meaning of legislation it is responsible for administering carry any weight in the eyes of a court? 7.5.5  There are both practical and principled reasons on both sides of the debate. Considerations weighing in support of judicial deference include an agency’s experience and probable expertise in handling legislation it routinely administers; the desirability of consistency and predictability in agency decision-making; and the reasonable assumption 418

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that parliament anticipated a role for the agency in grappling with unforeseen problems. The opposing considerations are equally numerous: under the separation of powers it is for a court exercising judicial power to decide issues of law authoritatively and conclusively; executive respect for the law could be diminished if agencies not only devised but also interpreted and moulded the law; and it is not always easy from outside an agency to ascertain an internal agency view or how that view was devised and officially sanctioned and whether it is legally correct. 7.5.6  The issue of judicial deference to agency interpretation is therefore complex and raises many questions. Is deference appropriate or inappropriate? Should the answer vary according to the nature of the issue to be determined? If deference is to be paid to an agency view, how is that agency view to be defined by the agency or ascertained by the court? 7.5.7  There is a well-developed doctrine of judicial deference in the United States and Canada. The pivotal case in the United States was the decision of the Supreme Court in Chevron, USA, Inc v Natural Resources Defense Council, Inc 7.5.9C, holding that a court should defer to a reasonable agency interpretation of an ambiguous legislative phrase. The Canadian Supreme Court has trialled a number of tests for judicial review and deference over the past decade, which were crystallised into two standards — correctness and reasonableness — in Dunsmuir v New Brunswick [2008] 1 SCR 190. The doctrine of deference modifies the standard of reasonableness, and requires a court to pay deference in appropriate cases to the role, special experience or reasons of the decision-maker. As McLachlin CJ, LeBel, Fish and Abella JJ, the plurality in Dunsmuir, defined the term: [48] Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference ‘is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers’ (Canada (Attorney-General) v Mossop, [1993] 1 SCR 554 at p 596, per L’Heureux-Dubé J, dissenting). We agree … that the concept of ‘deference as respect’ requires of the courts ‘not submission but a respectful attention to the reasons offered or which could be offered in support of a decision.

Observations by the plurality on the rejection of the pre-Dunsmuir tests for deference in Canada illustrates why the tests were controversial: [1] … The recent history of judicial review in Canada has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance for litigants, counsel, administrative decision makers or judicial review judges.

In addition to these warnings, for an Australian audience, it needs to be remembered that the current Dunsmuir doctrine in Canada has emerged in a context where there is not the same emphasis placed as in Australia on distinctions between merit/legality, errors of fact and law, and jurisdictional and non-jurisdictional errors of law: A  Freckleton, ‘The Changing Concept of “Unreasonableness” in Australian Administrative Law’ (2014) 78 AIAL Forum 61 at 67. 419

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7.5.8  No similar doctrine of deference to administrators’ interpretation of legislation has yet been developed in Australian law. The doctrine was squarely rejected in a dictum of the Full Federal Court in Minister for Immigration and Citizenship v Yucesan (2008) 169 FCR 202, observing that ‘the Chevron doctrine is not a principle that applies in Australia’: at [15]; see also Enfield 7.5.10C and Brown v Tasmania (2017) 91 ALJR 1089, with Edelman J commenting at [486]: ‘Nor is the Executive afforded any deference to its preferred construction of legislation’. Judicial deference to executive interpretation has also been rejected on specific issues, such as the construction of statutory provisions relating to the constitution of a decision-making body (Australian Broadcasting Commission Staff Association v Bonner (1984) 2 FCR 561) or the scope of a jurisdictional fact: Enfield 7.5.10C. The general disinclination of Australian courts to embrace a doctrine of judicial deference to an agency’s interpretation of legislation it is administering is also captured in the following observation of the Full Federal Court in Tracy v Repatriation Commission (2000) 101 FCR 149: Burchett, Sundberg and Hely JJ: This court respects the administrator’s competence in the area of the ascertainment of the facts in all cases where the court exercises the jurisdiction conferred upon it to carry out the judicial review of decisions; it is the administrator’s duty to respect the court’s position as interpreter and guardian of the relevant law.

To similar effect are the observations of Brennan J in Quin 7.2.5C that it is the ‘province and duty’ of the courts to apply and declare the law (citing Marbury v Madison) (at 35) and Hayne J describing the principle that ‘it is for the courts to say what the law is’ as ‘the root principle that informs’ Australian judicial review: Justice KM  Hayne, ‘Deference — An Australian Perspective’ [2011] Public Law 75 at 77. 7.5.9C

Chevron, USA, Inc v Natural Resources Defense Council, Inc 467 US 837 (1984) Supreme Court of the United States

Stevens J (delivering the opinion of the court): When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. ‘The power of an administrative agency to administer a congressionally created … program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.’ Morton v Ruiz, 415 US 199, 231 (1974). If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular

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question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations ‘has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations … ‘If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned’: United States v Shimer 367 US 374, 383 (1961). … Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policy-making responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities. When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centres on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: ‘Our Constitution vests such responsibilities in the political branches.’ TVA v Hill, 437 US 153, 195 (1978).

7.5.10C Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400; 60 ALD 342 High Court of Australia [The Development Assessment Commission, before deciding whether to approve an industrial development application, had to resolve whether the proposed industry would ‘produce conditions which are, or may become, offensive or repugnant to the occupiers or users of land in the locality’. The High Court held that the question to be resolved was a jurisdictional fact. In the following extract, the court observed that it would be inappropriate to apply a doctrine of judicial deference to an issue of that kind.]

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Control of Government Action

Gleeson CJ, Gummow, Kirby and Hayne JJ: In the written submissions, reference was made to the applicability to a case such as the present of the doctrine of ‘deference’ which has developed in the United States. However, this Chevron doctrine (467 US 837 (1984)) [7.5.9C], even on its own terms, is not addressed to the situation such as that which was before [the trial judge]. Chevron is concerned with competing interpretations of a statutory provision not, as here, jurisdictional fact-finding at the administrative and judicial levels. Chevron applies in the United States where the statute administered by a federal agency or regulatory authority is susceptible of several constructions, each of which may be seen to be (as it is put) a reasonable representation of Congressional intent … It is a matter of debate in the United States whether the ‘doctrine’ applies to the interpretation by agencies of statutes which define their jurisdiction. Differing views on this subject were expressed by Scalia J … and by Brennan J, dissenting, in Mississippi Power & Light Co v Mississippi … Writing extrajudicially, whilst a judge of the United States Court of Appeals for the First Circuit, Breyer J warned that, if taken literally, the deference doctrine would suggest ‘a greater abdication of judicial responsibility to interpret the law than seems wise, from either a jurisprudential or an administrative perspective’ (Breyer, ‘Judicial Review of Questions of Law and Policy’ (1986) 38 Administrative Law Review 363 at 381). An undesirable consequence of the Chevron doctrine may be its encouragement to decision-makers to adopt one of several competing reasonable interpretations of the statute in question, so as to fit the facts to the desired result. In a situation such as the present, the undesirable consequence would be that the decision-maker might be tempted to mould the facts and to express findings about them so as to establish jurisdiction and thus to insulate that finding of jurisdiction from judicial examination. Commentary upon Chevron has seen it as indicative of a ‘delegalisation’ of the administrative process; Professor Werhan writes that: Except for the unusual case in which Congress unambiguously has settled the particularised meaning of an enabling act, Chevron gives agencies, not courts, the dominant role in interpreting and enforcing legislative authority. The Court accomplished this role reversal by reconceptualising the process under which ambiguous statutes are interpreted. Before Chevron, the traditional approach viewed the interpretation of ambiguous laws to be a ‘question of law’ …; after Chevron, this task became simply a ‘policy choice’ (see Chevron 467 US 837 at 844–5 (1984)). Having transformed the legal into the political, the justices ceded interpretative authority to the agencies. (Werhan, ‘Delegalizing Administrative Law’ (1996) University of Illinois Law Review 423 at 457). The fundamental consideration in this field of discourse was emphasised by Brennan J [Quin 7.2.5C]. His Honour pointed out (at 35–36), and with reference to the judgment of Marshall CJ in Marbury v Madison …, that an essential characteristic of the judicature is that it declares and enforces the law which determines the limits of the power conferred by statute upon administrative decision-makers … When stating the position in Quin, Brennan J also stressed (at 36): ‘The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’ However, in Australia this situation is the product not of any doctrine of ‘deference’, but of basic principles of administrative law respecting the exercise of discretionary powers … Gaudron J [Her Honour expressed agreement with the joint judgment, and added]: Once it is appreciated that it is the rule of law that requires the courts to grant whatever remedies are available and appropriate to ensure that those possessed of executive and administrative

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7.5.12

powers exercise them only in accordance with the laws which govern their exercise, it follows that there is very limited scope for the notion of ‘judicial deference’ with respect to findings by an administrative body of jurisdictional facts … [I]t is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or the factual situation does or does not exist. To do less is to abdicate judicial responsibility.

7.5.11  Chevron 7.5.9C quickly became one of the most cited cases in United States public law. Not surprisingly, there are mixed views, ranging from those critical of the decision to those approving its logic and wisdom: see JM Beermann, ‘End the Failed Chevron Experiment Now: How Chevron has Failed and Why it Can and Should be Overruled’ (2010) 42 Connecticut Law Review 779; RC Dolehide, ‘A Comparative “Hard Look” at Chevron: What the United Kingdom and Australia Reveal About American Administrative Law’ (2010) 88 Texas Law Review 1381; and Justice R Sackville, ‘The Limits of Judicial Review of Executive Action — Some Comparisons Between Australia and the United States’ (2000) 28 Federal Law Review 315. There was a matching division of opinion in the case law as to when Chevron applied and what it required. For example, in a decision given soon after, Immigration & Naturalization Service v Cardoza-Fonseca (1987) 480 US 421, the US Supreme Court held by majority that Chevron did not apply to ‘a pure question of statutory construction’, which in that case was the phrase ‘well-founded fear’ applying in refugee cases. By contrast, an empirical study pointed to the influence of Chevron, showing that the rate of judicial affirmation of administrative decisions rose from 71 per cent pre-Chevron to 81 per cent post-Chevron (though later dropping to 76 per cent): P Schuck and E Elliott, ‘To the Chevron Station: An Empirical Study of Federal Administrative Law’ (1990) Duke Law Journal 984; TJ  Miles and CR  Sunstein, ‘Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron’ (2006) 73 University of Chicago Law Review 823. The Chevron doctrine has continued to attract criticism, notably from recent appointee to the Supreme Court, Gorsuch J, on the basis that it represents an ‘abdication of the judicial duty’: Gutierrez-Brizuela v Lynch, 834 F 3d 1142, 1152 (10th Cir, 2016). 7.5.12  Whether the United States approach in Chevron 7.5.9C or the Canadian approach in Dunsmuir, or some variation thereof, is appropriate for adoption in Australia raises other questions as well. Notwithstanding the similar common law heritage in each country, there are important contextual differences. For example, the more developed system of rule-making in the United States means that legislation is often briefer and focused on broad principles, and that agencies spell out formally and distinctly in agency rules their interpretation of opaque statutory phrases. The Canadian doctrine of deference reflects the country’s far stronger tradition of specialist tribunals. It is interesting too that in both countries the elaboration of statutory meaning is regarded as an extended exercise in policy formulation, while in Australia it is more likely to be regarded as an issue of law. Other differences are due to the impact of the United States Bill of Rights and the Canadian Charter of Rights and Freedoms, and the jurisprudence in both countries has not been impacted to the degree apparent in Australia by the merits/legality distinction: see also 7.5.7. These issues are explored by Justice Gageler, writing extra-curially, who in doing so concludes that the better label is ‘respect’ for an agency’s interpretation within a zone of discretion, rather than ‘deference’ (which may connote ‘that a decision by a court as to the statutory allocation of power to an administrative decision-maker is a matter of courtesy’): S Gageler, ‘Deference’ (2015) 22 Australian Journal of Administrative Law 151 at 156. 423

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Control of Government Action

Judicial deference to the position, skill or experience of the decision-maker 7.5.13  In areas of Australian law with a long-established tradition of specialist tribunals — such as industrial law, copyright, trademarks, and professional discipline — there is an equally well-established practice of attributing special weight to the findings of those tribunals. Whether it is appropriate to regard this tradition as one of deference or simply restraint, or an applied illustration of the legality/merits distinction, is an open question. In R v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 184, a reason given by the High Court for not disturbing a finding by the commission that there was an industrial dispute was that ‘the Commission was specially equipped by reason of its knowledge and experience of industrial relations in the industry to make value judgments on some of the issues which arose’. Similarly, in Enfield 7.5.10C the High Court noted that it had often attached ‘great weight’ to the opinion of trademarks tribunals, observing: Gleeson CJ, Gummow, Kirby and Hayne JJ: The weight to be given to the opinion of the tribunal in a particular case will depend upon the circumstances. These will include such matters as the field in which the tribunal operates, the criteria for appointment of its members, the materials upon which it acts in exercising its functions and the extent to which its decisions are supported by disclosed processes of reasoning …

7.5.14  Special weight has also been given to the findings of specialist tribunals that adjudicate upon whether to take disciplinary action against professionals accused of unprofessional conduct, as illustrated in the following extracts from, respectively, Kalil v Bray (1977) 1 NSWLR 256 at 262 (Street CJ), Filo v Pharmacy Board of NSW (1975) 3 NSWDCR 269 at 276–7 (Thorley  DCJ), and Shop Distributive and Allied Employees Association v  The Australian Industry Group (2017) 350 ALR 592 at [111]–[112] (North, Tracey, Flick, Jagot and Bromberg JJ): Street CJ: The purpose of setting up the Tribunal, with its membership drawn from the ranks of veterinary surgeons, is to enable it to do the very thing that either a Bench of Justices or a Jury may not do, that is to say, to draw upon its own expert resources to resolve such questions of expert science as might emerge from the objective or lay facts proved in evidence before it … [T]he ultimate responsibility for forming an expert view upon which the disciplinary powers will be exercised or withheld is with the Tribunal itself. This is a responsibility to be discharged by drawing upon its own internal resources of knowledge of veterinary science.

Thorley DCJ: [T]he Board is comprised, apart from the legal representative, of persons who have an intimate knowledge of those considerations which would govern the standards to be observed in the practice of pharmacy and an understanding of the implications of any departures from those standards. In that background, it appears to me that the expressed view of the Board not only as to what is or is not a matter of ‘misconduct in a professional respect’ as that phrase appears in s 201(1)(b), but also its views as to the gravity of the breach, is to be given great weight … [A] long list of cases has laid down that, in broad terms, the professional Board, to which is entrusted the responsibility of saying how the questioned conduct should be regarded, is better equipped to decide such a matter than a court which, in its turn, should be slow to disagree. 424

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North, Tracey, Flick, Jagot and Bromberg JJ: [111] In the context of the present decisionmaking statutory regime, judicial recognition can be given to the expertise of the FWC [Fair Work Commission], especially in circumstances where the legislature has expressly left to the FWC the task (for example) of ‘ensur[ing] that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions’ (s 134(1)). The task of ensuring that modern awards comply with the standards set by s 134(1) and the task of making a judgment as to what is ‘fair and relevant’ is not entrusted by the legislature to this Court. [112] Whilst retaining ultimate judicial oversight of decisions of statutory decision-makers, ‘great weight’ can be given to the factual assessments made by the Full Bench in the present matter.

7.5.15  The special regard that is had to the position, skill or experience of the decision-maker is not confined to specialist tribunals, but can appropriately apply elsewhere. For example, in Giuseppe v  Registrar of Aboriginal Corporations (2007) FCR 465, the Full Federal Court conceded that there could be a ‘limited role for respect for, or deference to, an administrative decision’ of the Registrar as to what was a reasonable period of notice to an Aboriginal corporation calling on it to show cause why an administrator should not be appointed. See also PA Keane, ‘Legality and Merits in Administrative Law: An Historical Perspective’ (2009) 1 Northern Territory Law Journal 117 at 134–7. 7.5.16  Similarly, in applying administrative law standards to ministers, it is customary to take account of the context of political legitimacy and accountability in which the minister functions. In Minister for Immigration and Multicultural Affairs v Jia 11.5.31C, in responding to an argument that a minister’s public comments demonstrated prejudgment of an issue contrary to natural justice, Gleeson  CJ and Gummow  J observed that ‘the Minister functions in the arena of public debate, political controversy, and democratic accountability [and] the conduct of a Minister may need to be evaluated in the light of his or her political role, responsibility and accountability’: at 528–9. See also Murphyores 10.3.16C and South Australia v O’Shea 11.2.18C. The reasons given by a minister might not reflect all the considerations that have been taken into account: see, for example, Harburg Investments Pty Ltd v Mackenroth [2005] 2 Qd R 433. These considerations were articulated forcefully in Heydon J’s dissent in Plaintiff M70/2011 13.3.17C: [A] decision to make a declaration under s 198A(3)(a) is a decision which pertains to the conduct of Australia’s external affairs. It concerns dealings between Australia and friendly foreign states. Those dealings are within the province of the Executive. Intrusion by the courts into those dealings may be very damaging to international comity and good relations. The Minister is accountable to Parliament for his conduct of those dealings. He may be questioned. He may be criticised. He may be condemned by Parliamentary resolutions. He may have to resign. His conduct may lead to the passing of a motion of no confidence in the Government of which he is a part, and thence to the fall of that Government. As a practical matter he is also liable to condemnation before the court of public opinion. But, unless it can be shown that he has not formed in an evaluative judgment, after asking the correct questions, that what he declared was true, he is not accountable to courts of law.

Judicial restraint in the scrutiny of administrative reasons 7.5.17  It is common today that administrative decisions are explained in writing, either as a matter of administrative practice or pursuant to a statutory obligation to do so: see, for example, 425

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Control of Government Action

ADJR Act s 13; Administrative Appeals Tribunal Act 1975 (Cth) s 28; and Chapter 21. Judicial review, as a result, often focuses on what is said in any such statement, to gauge if it discloses a reviewable error. The quality of a statement of reasons can therefore be interlinked with the validity of a decision. That is especially so with tribunal decisions, as the tribunal’s statement of reasons usually provides the only public record of the tribunal’s findings and decision. 7.5.18  Important though reasons statements are, there is equal recognition that there should be judicial restraint in scrutinising them. Quite possibly a statement has not been prepared with the same deliberation and expertise lavished on a court judgment. Moreover, it can be difficult for any decision-maker to explain and justify a process of reasoning convincingly and exhaustively on paper. The prevailing judicial sentiment is depicted in the following observations: Northrop and Sheppard JJ: A court exercising supervisory jurisdiction over an administrative tribunal ought not lightly interfere with its decisions even if the court feels that the tribunal’s language may have a degree of looseness. Certainly it ought not to indulge in an exercise which over-zealously picks the Tribunal up in the way it has expressed itself. That is particularly so when it appears properly to have understood the legal principles which it is to apply. [Lennell v Repatriation Commission (1982) 4 ALN N 54] Smith J: [70] Courts must be careful not to engage in overzealous examination of the reasons of the administrative decision-makers. Courts should not be looking for reviewable error. [Santos v Wadren Pty Ltd (2009) 31 VAR 251] French CJ, Bell, Keane and Gordon JJ: [25] It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. [Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173]

7.5.19  Although there are many other judicial statements to that effect, judicial review of reasons statements has nevertheless been a contentious feature of contemporary Australian administrative law: see Chapter 21. The tension inherent in scrutinising what a decision-maker said, but not scrutinising it too keenly, came to a head in the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang 7.5.20C. The decision has in modern times become one of the most frequently cited cases on judicial review of administrative action. 7.5.20C

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; 136 ALR 481 High Court of Australia

[A delegate of the minister, in rejecting Mr Wu’s application to be accepted as a refugee, correctly set out in a statement of reasons the legal test to be applied (viz, the ‘real chance of persecution’ test, as defined by the High Court in an earlier decision). However, the Full Federal Court held that the reasons statement on close analysis disclosed that the decisionmaker was in fact incorrectly applying a different ‘balance of probabilities’ test. The High Court on appeal reversed the Full Federal Court decision.]

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Chapter 7  Foundation Concepts of Judicial Review

Brennan CJ, Toohey, McHugh and Gummow JJ: The Full Court recognised, on the face of the delegate’s assessment of the first respondent’s claim, ‘that the delegate correctly directed herself as to the test which she had to apply’: see Wu (1995) 57 FCR 432 at 442. Later in its reasons the Full Court noted (at 444): … The expression ‘real chance of persecution’ is used in the reasons … The delegate was thus aware of the test she had to apply. Her reasons are entitled to a beneficial construction. We should not take the view that she did not apply the correct test unless this appears clearly from what she has written. In other words, the delegate starts and finishes with the correct test; it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities. When the Full Court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (1993) 43 FCR 280. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decisionmaker. The Court continued (at 287): ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’ These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: see McAuliffe v Secretary, Department of Social Services (1992) 28 ALD 609 at 616. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court [including] by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–6 … The delegates should be taken to mean what they have said and a proper construction of the reasons does not disclose any surreptitious adoption of a balance of probabilities test … [Kirby J delivered a judgment to the same effect at 291.]

7.5.21  The principle of judicial restraint in the scrutiny of reasons statements is reflected in other ways as well. Subsequent to Wu Shan Liang 7.5.20C, a view emerged that a decision of the Refugee Review Tribunal would be invalid if the tribunal failed to discharge the obligation imposed by s 430(1)(c) of the Migration Act 1958 (Cth) to ‘prepare a written statement that … sets out the findings on any material questions of fact’. The Federal Court held in numerous cases that a ‘material’ fact was a concept to be determined objectively. The High Court by majority rejected that view in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323: McHugh, Gummow and Hayne JJ (Gleeson CJ agreeing): Section 430 … requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made … [I]t is not right to read ‘material’ as 427

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Control of Government Action

providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.

These views must today be seen against the increasing prevalence of the concept of jurisdictional fact, which has led courts to scrutinise tribunals’ reasons more closely: see, for example, SZMDS 15.2.17C and Li 15.2.18C.

Standard or intensity of judicial review 7.5.22  In Australian administrative law there is no over-arching principle defining the standard, style or intensity of judicial review. The conventional view (for which Quin 7.2.5C is customarily cited) is that the legality/merits and law/fact distinctions must be respected. Specific statements as to the intensity of review can be found in the context of the grounds of review, notably review under the unreasonableness ground: 15.2.3. In certain contexts, courts have accepted that the intensity of judicial review varies according to the nature of the question or interest at stake or because deference should be afforded to the decision-maker’s evaluation. 7.5.23  The debate, considered in Chapter 15, as to the standard to be applied for unreasonableness review and as to whether Australia should adopt a freestanding test of proportionality in administrative law, in truth reflects concerns as to the appropriate intensity of judicial review. Taggart described this colourfully as ‘the rainbow of review’, with deference and low intensity (Wednesbury unreasonableness) towards one end of the rainbow, higher intensity proportionality towards the other end, and variegated intensities of reasonableness review in between: M  Taggart, ‘Proportionality, Deference, Wednesbury’ [2008] New Zealand  Law Review 423. 7.5.24  The United Kingdom has adopted a variable intensity test for reasonableness review. Lord Justice Laws explained this approach in R (on the application of Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840: ‘the intensity of review in a public law case will depend on the subject-matter in hand; and so in particular any interference by the action of a public body with a fundamental right will require a substantial objective justification’: at 847–8 [18]. In R v Department of Education and Employment; Ex parte Begbie [2000] 1 WLR 1115 Laws LJ said it was ‘well established that the Wednesbury principle itself constitutes a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake’: at 1130 [78]. 7.5.25  In both Canadian and United States administrative law there has been more of an attempt by courts to develop a theory defining the intensity of judicial review. In Canada it has been crystallised in Dunsmuir as a choice between two standards: correctness and reasonableness. In SZMDS 15.2.17C at 621–2, Gummow ACJ and Kiefel J noted this development with some hesitancy. In the United States it is the ‘hard look’ doctrine, spelt out below in Citizens to Preserve Overton Park, Inc v Volpe (Overton Park) 7.5.30C. 7.5.26  Australian courts have not yet adopted a variable intensity test of review; however, there has been acceptance in some Australian cases that judicial restraint or deference is warranted in certain types of cases, whereas a more searching standard of review is warranted 428

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7.5.28

in others. In  Minister for Immigration and Border Protection v  SZVFW [2018] HCA 30, Edelman J observed at [149] that ‘in cases where judicial restraint is required, then within a range of possible, usually reasonable, decisions made in the proper way, the court is required not to interfere with the primary decision’. His Honour held at [151] that ‘[w]here the source of the power and grounds of review is statutory, then any requirement for judicial restraint should be implied from, or based upon, the terms of the statute’. In ascertaining whether the statute requires judicial restraint, ‘[a]ll matters of statutory context are relevant. Those matters include the nature of the rights in issue and the manner in which they have historically been adjudicated, the extent to which the subject matter of the decision is concerned with matters of general public interest rather than merely individual rights and interests, and the expertise of the primary decision maker in the area of adjudication’: at [153]. At the other end of the spectrum, the Full Federal Court has observed that ‘in refugee cases … it is the duty of the Federal Court to subject the [decision under review] to “more rigorous examination” than in other cases, and for obvious reasons’: W375/01A v Minister for Immigration and Multicultural Affairs (2002) 67 ALD 757 at [16]. By contrast, in SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43 the Full Federal Court rejected a submission that the intensity of review will be greater in cases in which human rights are involved. 7.5.27  In the context of cases under the Charter of Human Rights and Responsibilities Act 2006 (Vic), Victorian courts have acknowledged that deference may also have a role to play in the intensity of review. In Certain Children v Minister for Families and Children (No 2) [2017] VSC 251, John Dixon J held: [216] There is merit in VEOHRC’s submission that the objective assessment by the court requires, in both fact-finding and evaluation of competing circumstances and considerations, an intensity of review that cannot be watered down by classification as impermissible merits review, for that is not what it is. That said, there is also force in the defendants’ contention that a court may not be possessed of the necessary breadth of information, experience, or background that informed the decision maker’s conclusion and great care must be exercised by a court in its objective assessment of Charter unlawfulness. Care in this respect may be exercised by affording some weight to or latitude in the deliberations of the decision maker. [217] Precisely what ‘intensity’ is required and what that actually means is likely to depend on the particular circumstances before the court that will vary from case to case. Context and circumstances may include the experience and expertise of the primary decisionmaker, the information that a decision-maker acts on and the extent to which a decision is supported and objectively justified by a transparent process of reasoning. A detailed brief that informed the decision or detailed reasons from the decision maker may be persuasive.

See also PJB v Melbourne Health (2011) 39 VR 373 (in which Bell J considered the difference between judicial reviewing for unlawfulness against applicable human rights standards and for unlawfulness against the Wednesbury unreasonableness standard, and the role of deference in that context) and the detailed discussion in J  Boughey, ‘Re-evaluating the Doctrine of Deference in Administrative Law’ (2017) 45 Federal Law Review 597. 7.5.28  There are many decisions that illustrate a deferential approach to judicial review of commercial regulation; see, for example, Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at 498–9. There is also acknowledgment of the special issues that can arise in defence cases; see, for example, White v Director of Military Prosecutions (2007) 231 CLR 570 and Bromet v Oddie [2003] FCAFC 213. 429

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7.5.29  As is explored in Chapter 15, the question of the intensity of review is likely to receive greater focus following Li 15.2.18C. In the context of the unreasonableness ground, two commentators have noted: The dicta of the plurality in Li concerning legal unreasonableness suggests that the ground of unreasonableness may be applied in relation to any statutory discretion, whether or not it is thought to impact on fundamental rights. … [T]here is no reason to think that the particular value to be attached to a right or interest effectively or potentially denied by a decision-maker should affect the application of the Li unreasonableness test. Nothing in Li suggests that it should. That said, the value at stake is, however, likely to be regarded in the course of ascertaining the scope, subject and purpose of the statutory power in question for the purpose of deciding whether its exercise was unreasonable. [M Barker and A Nagel, ‘Legal Unreasonableness: Life after Li’ (2014) 79 AIAL Forum 1 at 9]

For a discussion of the variability of forms of judicial review, see J Basten, ‘Judicial Review: Intensity of Scrutiny’ [2008] 9 Journal of the Judicial Commission of NSW 73, and the discussion in Chapter 15. 7.5.30C

Citizens to Preserve Overton Park, Inc v Volpe 401 US 402 (1971) Supreme Court of the United States

[The plaintiffs sought judicial review of the decision of the Secretary of Transport to distribute federal funding to a proposed six-lane interstate highway through Overton Park, which was a 342-acre city park located near the centre of Memphis. Two federal statutes prevented the distribution of federal funds to any project in a public park ‘unless there is no feasible and prudent alternative to the use of such land’.] Marshall J (delivering the opinion of the court): If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems. Plainly, there is ‘law to apply’ … But the existence of judicial review is only the start: the standard for review must also be determined. For that we must look to s 706 of the Administrative Procedure Act … [A] ‘reviewing court shall … hold unlawful and set aside agency action, findings and conclusions found’ not to meet six separate standards. In all cases agency action must be set aside if the action was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ or if the action failed to meet statutory, procedural, or constitutional requirements. [Marshall J discussed two other review standards that applied to some limited categories of administrative decision, but not to a case such as the present — viz, whether the agency action was supported by ‘substantial evidence’, or was ‘unwarranted by the facts’.] Even though there is no de novo review in this case and the Secretary’s approval of the route … does not have ultimately to meet the substantial-evidence test, the generally applicable standards of s 706 require the court to engage in a substantial inquiry. Certainly the Secretary’s decision is entitled to a presumption of regularity … But that presumption is not to shield his action from a thorough, probing, in-depth review. The court is first required to decide whether the Secretary acted within the scope of  his authority … Scrutiny of the facts does not end, however, with the determination that

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the Secretary has acted within the scope of his statutory authority. Section 706(2)(A) requires a finding that the actual choice made was not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment … Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. [The court went on to find that the secretary had not compiled a contemporaneous administrative record from which the court could gauge whether the decision met the standard for review in s 706(2)(A). Accordingly, the case was remitted to the District Court ‘for plenary review of the Secretary’s decision’, including if necessary by requiring ‘the administrative officials who participated in the decision to give testimony explaining their action’. After conducting a 27-day trial, the District Court set aside the secretary’s decision under s 706. The secretary later decided not to approve the construction of the highway.]

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8

INTRODUCTION 8.1.1  The foremost principle of public law is that government agencies need legal authority for any action they undertake. This is reflected in foundation constitutional principles — notably the ‘principle of legality’, ‘rule of law’ and ‘constitutionalism’ — that embody the notion that the authority of governments is limited — by constitutions, by legislation and by common law presumptions. Another way of stating the principle is to say that the election of a government does not of itself confer comprehensive authority upon the ministry to implement its election manifesto or to take other action deemed necessary in the public interest. A different source of authority — legal authority — is needed. Mostly that authority derives from legislation. As  Edelman  J observed in Probuild Constructions (Aust) Pty Ltd v  Shade Systems Pty Ltd 16.3.19C at 270: [T]he narrow approach [to] the construction [of legislation] is today one of the working hypotheses upon which legislation is drafted. It is sometimes described as part of the principle of legality … The concept of “legality” in the principle of legality, must embrace the determination of whether decisions made with authority are legal – that is, whether they are made by a process that accords with the law.

Yet the executive authority of government — a non-statutory source of power — also supplies legal authority for a great deal of government activity. 8.1.2  The principle that governments require legal authority is, at first glance, a straightforward one. Indeed, it has been common to use terms such as ‘simple ultra vires’ and ‘excess of power’ to express this requirement. In fact, however, it is a principle of great complexity, giving rise to numerous difficult issues that are raised in this chapter, including: • From where do governments derive their legal authority — or, more particularly, when is legislation necessary, and when will executive power supply adequate authority for government action?

• When legislation is relied on, how should it be construed? Should there be a presumption in favour of government and the public interest that it represents, or in favour of the citizen and in defence of individual rights? 433

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• When legislation confers a power on a decision-maker to take action if they are satisfied that certain conditions are met or that there are ‘reasonable grounds’ for a decision, does that give unfettered discretion to the decision-maker? What is the court’s role in reviewing any decision?

• Should the power to make subordinate legislation be construed broadly, consistent with the specialist expertise and policy outlook of the body promulgating the subordinate legislation? Should subordinate legislation be interpreted in a way which does not trammel on the existing legal rights, interests or expectations of an individual citizen? • Who, in a government agency, should have power to make a decision on its behalf — only the office holder referred to in the statute, or any officer with sufficient seniority or apparent authority?

• Should government agencies be expected to prove the legality of every official action, or is there a presumption of regularity? And what if an official incorrectly cites the source of power to make a decision — should that alone invalidate the decision?

UNAUTHORISED DECISION-MAKING: GENERAL PRINCIPLES Identifying the source of legal authority for government action 8.2.1  The notion that government action is invalid if there is no legal authority to support it permeates many of the grounds of judicial review, but is perhaps best enshrined in the following grounds in s 5(1) of the Administrative Decisions ( Judicial Review) Act 1977 (Cth) (ADJR Act) upon which an order of review can be sought: (b) that procedures that were required by law to be observed in connection with the making of the decision were not observed; (c) that the person who purported to make the decision did not have jurisdiction to make the decision; (d) that the decision was not authorised by the enactment in pursuance of which it was purported to be made; … (f ) that the decision involved an error of law, whether or not the error appears on the record of the decision …

See also sub-paragraphs (b), (c), (d) and (f ) in: ACT: Administrative Decisions ( Judicial Review) Act 1989 s 5(1); Qld: Judicial Review Act 1991 s 20(2); Tas: Judicial Review Act 2000 s 17(2). 8.2.2  The foregoing grounds from the ADJR Act capture the many different ways a breach of this legal principle can occur. Chief among them is that legislation, correctly interpreted, did not support the action taken in reliance on it. Many illustrative cases are straightforward in nature, as the following examples show:

• a statutory power to run ‘tramways’ did not authorise the conduct of a bus service: London County Council v Attorney-General [1902] AC 165;

• a statutory power authorising customs officers to seize ‘goods, moveable property, or monies in the form of cash’ did not authorise seizure of monies credited to a savings bank account: Vickers v Minister for Business and Consumer Affairs (1982) 43 ALR 389; and

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• an Act that authorised a person who was a bona fide resident to conduct a business from home did not support a permission granted to a non-resident veterinary surgeon who falsely swore that he resided at the premises: Boyle v Charge (1987) 12 ALD 555. 8.2.3  In many other instances considered in this chapter, the issue is not as straightforward. On the one hand, the ADJR Act grounds only apply to decisions that are ostensibly made under statute rather than under executive power — as, for example, in Minister for Immigration and Multicultural Affairs v Vadarlis (2001) 110 FCR 491 (‘the Tampa case’; see  9.2.21C, 17.5.4C). There is a limit, however, to when executive power can be relied upon, particularly for executive action that is coercive in nature and that requires explicit statutory backing. On the other hand, a principle of contrasting effect is that statutory provisions can sometimes authorise activity that is incidental to that which is expressly mentioned in the statute: see  8.3.22. In addition, since the Williams v Commonwealth cases 9.2.30C and 9.2.31C, the Commonwealth Parliament must be able to source its spending and contracting activities in Commonwealth legislation, rather than relying on executive power. 8.2.4  In identifying the legal source of authority for government action it is necessary to bear in mind that there are different forms of government legal entity. For present purposes, there are broadly three categories:

• Executive agencies, which are established by executive action. The leading example is a government department, which is established (in the Commonwealth) by the Governor-General in Council signing an Administrative Arrangements Order pursuant to s 64 of the Constitution: see also Public Service Act 1999 (Cth) s 65. Executive agencies come in a variety of other forms, such as boards, councils, committees and the like; they are variously established by the Governor-General, ministers and departmental heads. An executive agency can derive legal authority from either of two sources — from legislation (for example, the Migration Act 1958 (Cth) confers powers on officers of the Department of Home Affairs) or from the executive power (for example, the Independent Merits Review scheme considered in Plaintiff M61/2010E v Commonwealth 11.2.20C). • Statutory agencies (also called statutory authorities and statutory corporations), which are established by or in accordance with an Act of Parliament. As a creature of statute, the agency can exercise only the powers conferred by statute: MacLeod v Australian Securities and Investments Commission (2002) 211 CLR 287 at 292, 305. However, the principle of construction, by which an agency can perform action that is incidental to the powers or functions expressly conferred upon it, means that statutory authorities have a broad authority similar to the executive power exercised by executive agencies: see 8.3.23ff.

• Government corporations (often described as government business enterprises), which are established in accordance with the Corporations Act  2001 (Cth). The Corporations Act regulates the behaviour of corporations, but otherwise a corporation has the legal capacities of a natural person (s 124) and is not subject to the doctrine applying to statutory agencies that their actions must be statutorily authorised. Legislation sometimes confers specific functions and powers, and imposes limitations, upon government corporations: for example, see the Australian Bicentennial Authority Act 1980 (Cth) considered in Davis v  Commonwealth (1988) 166 CLR 79. A corporation controlled by the Commonwealth Government is probably subject to constitutional constraints concerning the activities it can engage in: see N Seddon, Government Contracts: Federal, State and Local, 6th ed, Federation Press, 2018, at [2.20]. 435

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Foundation cases 8.2.5  The principle that government requires legal authority for any action it undertakes was neatly summarised by Lord Roskill in Council of Civil Service Unions v Minister for the Civil Service 2.3.10C: [T]he right of the executive to do a lawful act affecting the rights of the citizen, whether adversely or beneficially, is founded on the giving to the executive of a power enabling it to do that … In most cases that power is derived from statute though in some cases … it may still be derived from the prerogative.

Lord Roskill’s observation captures a dual theme: that government principally relies on statutory backing, but still derives legal authority from executive (or non-statutory) sources. The executive sources, which are examined more fully in Chapter 9, are the prerogative and the capacity of government to function as a legal person. An important limit on all sources of government power (except the prerogative) is that explicit statutory authority is required for government action that is coercive, punitive, intrusive or threatening: see 8.3.28ff. 8.2.6  The nature and scope of government legal authority is an underlying element, directly or indirectly, of nearly all public law cases. The following four cases provide a direct illustration of the principle. Entick v Carrington 8.2.7C is a foundation case of English public law, being one of the first cases to establish unequivocally that government action which intrudes on an individual’s existing rights (the issue and execution of a search warrant on private property which would otherwise amount to trespass) will be unlawful unless there is legal authority to support the action. A v Hayden (No 2) 8.2.8C, a leading Australian case, enunciates clearly a principle that governments, even in the pursuit of national security objectives, do not inherently possess power to authorise their officials to act in defiance of the criminal law. Church of Scientology Inc v Woodward (Woodward) 8.2.9C takes that theme a step further by ruling that the judiciary can examine whether administrative action undertaken by a national security agency is supported by the legislation establishing the agency. Independent Commission Against Corruption v Cunneen 8.2.10C narrowly construed the statutory remit of an anti-corruption agency with coercive investigative powers, to avoid impacting rights and freedoms of those being investigated. 8.2.7C

Entick v Carrington (1765) 19 St Tr 1030 Court of Common Pleas

[The Secretary of State issued to Mr Carrington and others a search warrant to enter Mr Entick’s house and seize papers that allegedly contained seditious writing. Mr Entick brought an action for trespass against Mr Carrington, who pleaded in justification that he was lawfully executing the warrant. The court rejected the defence, finding that the Secretary of State had no lawful authority to issue the warrant. The court awarded damages to Mr Entick for trespass.] Lord Camden CJ: I come in my last place to the point, which is made by the justification; for the defendants … are under a necessity to maintain the legality of the warrants, under which they have acted, and to shew that the Secretary of State, in the instance now before us,

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had a jurisdiction to seize the defendant’s papers. If he had no such jurisdiction, the law is clear, that the officers are as much responsible for the trespass as their superior … Before I state the question, it will be necessary to describe the power claimed by this warrant in its full extent. If honestly exerted, it is a power to seize that man’s papers, who is charged upon oath to be the author or publisher of a seditious libel; if oppressively, it acts against every man, who is so described in the warrant, though he be innocent. It is executed against the party, before he is heard or even summoned; and the information, as well as the informers, is unknown. It is executed by messengers with or without a constable … in the presence or the absence of the party, as the messengers shall think fit, and without a witness to testify what passes at the time of the transaction … If this injury falls upon an innocent person, he is as destitute of remedy as the guilty … It must not be forgot that no subject whatsoever is privileged from this search … … Such is the power, and therefore one should naturally expect that the law to warrant it should be clear in proportion as the power is exorbitant. If it is law, it will be found in our books. If it is not to be found there, it is not law. The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole … By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing … If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and see if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no such excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment. [His Lordship went on to conclude that the search warrant was not authorised by statute or the common law, and could not be justified by long-standing practice, acquiescence, the ends of government, or enforcement of the criminal law.]

8.2.8C

A v Hayden (No 2) (1984) 156 CLR 532; 56 ALR 82 High Court of Australia

[The plaintiffs participated in a security training exercise at the Sheraton Hotel in Melbourne, arranged by a Commonwealth executive agency, the Australian Secret Intelligence Service (ASIS). Four plaintiffs were ASIS officers, six were civilians under part-time employment with ASIS for training, and one was an army representative. The exercise, in which masked participants carrying weapons sought to free a ‘hostage’ from a hotel room, went awry and criminal offences were allegedly committed. The Victorian State Government asked the Commonwealth to disclose to the Chief Commissioner of Police for Victoria the identity of the participants so that he might investigate the alleged crimes and decide whether to prosecute. The plaintiffs sought to restrain the Commonwealth from disclosing their identities on the ground that their contracts of employment with the Commonwealth stipulated that their

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identities, and any act done by them in the course of their training or work for ASIS, would be kept confidential. The agreed statement of facts in this case also acknowledged that the training exercise had ministerial approval; that it was carried out in accordance with ASIS instructions; and that the team participants were all given ‘exercise cards’ which stated that the bearer was engaged on a Commonwealth exercise. The High Court refused to grant the injunctions, holding (by majority) that the confidentiality clause in the plaintiffs’ contracts of employment could not be construed as applying in a situation such as the present, and that such a term would not be enforceable in any case on public policy grounds. In so deciding, five members of the court commented generally on the legal authority of the Commonwealth to undertake a training exercise of this kind.] Murphy J: The Executive power of the Commonwealth must be exercised in accordance with the Constitution and the laws of the Commonwealth. The Governor-General, the Federal Executive Council and every officer of the Commonwealth are bound to observe the laws of the land. If necessary, constitutional and other writs are available to restrain apprehended violations and to remedy past violations. I restate these elementary principles because astonishingly one of the plaintiffs asserted through counsel that it followed from the nature of the executive government that it is not beyond the executive power, even in a situation other than war, to order one of its citizens to kill another person. Such a proposition is inconsistent with the rule of law. It is subversive of the Constitution and the laws. It is, in other countries, the justification for death squads … In Australia it is no defence to the commission of a criminal act or omission that it was done in obedience to the orders of a superior or the government. Military and civilians have a duty to obey lawful orders, and a duty to disobey unlawful orders. Brennan J: [I]t is entirely clear that neither ASIS nor the Minister nor the Executive Government could confer authority upon any of the plaintiffs to commit an offence or [provide] immunity from prosecution for an offence once committed. The incapacity of the Executive Government to dispense its servants from obedience to laws made by Parliament is the cornerstone of a parliamentary democracy. A prerogative to dispense from the laws was exercised by medieval kings, but it was a prerogative ‘replete with absurdity, and might be converted to the most dangerous purposes’ (Chitty, Prerogatives of the Crown (1820), at 95). James II was the last King to exercise the prerogative dispensing power (see Holdsworth, A History of English Law, vol vi, at 217–25), and the reaction to his doing so found expression in the Declaration of Right. It was there declared that ‘the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal’. By the Bill of Rights the power to dispense from any statute was abolished (1 Will & Mar Sess 2, c 2, s XII). Whatever vestige of the dispensing power then remained, it is no more. The principle, as expressed in the Act of Settlement, is that all officers and ministers ought to serve the Crown according to the laws. It is expressed more appropriately for the present case by Griffith CJ in Clough v Leahy (1904) 2 CLR 139, at 155–56: ‘If an act is unlawful — forbidden by law — a person who does it can claim no protection by saying that he acted under the authority of the Crown.’ This is no obsolete rule; the principle is fundamental to our law, though it seems sometimes to be forgotten when Executive Governments or their agencies are fettered or frustrated by laws which affect the fulfilment of their policies. …

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[Some] parts of the stated cases seem calculated to raise, perhaps obliquely, the plea of superior orders sometimes raised by military personnel … It may be that the ASIS officers who induced the beliefs stated and who issued the ‘exercise cards’ regarded ASIS as a para-military force and encouraged the plaintiffs so to regard it. That may be a correct view. But if that view engenders the proposition that participation in an ASIS exercise exempts ASIS officers from obedience to the ordinary laws of the land, the proposition must meet with the same reply that Hale CJ gave some 300 years ago to a captain of military who asserted exemption from the jurisdiction of the ordinary courts: ‘Whatever you military men think, you shall find that you are under civil jurisdiction, and you but gnaw a file, you will break your teeth ere you shall prevail against it.’ (The Case of Captain C (1673) 1 Ventris 250, at 251 (86 ER 167, at 168)). The Commonwealth Parliament has made no law granting to ASIS officers exemption from any law; it is unnecessary to consider whether its constitutional powers could support such a law in times of peace. It is sufficient to say that none of the approvals given is capable of affecting any criminal responsibility which a particular plaintiff may have incurred in the exercise at the Sheraton Hotel. The exercise cards with which they were issued were no passport to immunity from the operation of the ordinary laws of Victoria … … No agency of the Executive Government is beyond the rule of law. ASIS must obey the law and, if its officers do not, the Executive Government must be free to do what it thinks right in the public interest in the circumstances as they occur. It makes no difference that the Executive Government of the Commonwealth is not charged with the execution of the criminal laws of Victoria; it is incapable of promising ASIS officers that it will not assist the Crown in right of Victoria from executing those laws when ASIS officers are involved in what are reasonably suspected to be criminal offences and the Executive Government thinks that it is in the public interest to assist. Deane J: These five cases illustrate the abiding wisdom of the biblical injunction against putting one’s ‘trust in men in power’ (Psalms 146:3). The plaintiffs have been described without dissent as ‘upright, decent men serving their country’. The two rocks upon which they founder are however propositions of law which are not to be moved to meet the exigencies of hard cases. Shortly and relevantly stated, those propositions are: (i) that neither the Crown nor the Executive has any common law right or power to dispense with the observance of the law or to authorise illegality and (ii) that the courts of this country will not enforce the terms of a promise not to disclose information in circumstances where such enforcement would obstruct the due administration of the criminal law … The five plaintiffs’ trust in the Commonwealth and in those who approved the exercise or gave them their directions or instructions was completely misplaced. The ‘authority or consent necessary to make any act or thing lawful’ was not obtained and, in the absence of special statutory provision, was probably not within the power of any person or combination of persons to grant. 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. To the extent that the five plaintiffs may themselves have been involved in criminal activities, the ‘Commonwealth exercise cards’ which they were ‘instructed … to show’ should they be questioned were completely ineffectual to establish legal justification. The criminal law of this country has no place for a general defence of superior orders or of Crown or Executive fiat. [Gibbs CJ and Mason J delivered judgments to the same effect].

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8.2.9C

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Church of Scientology Inc v Woodward (1982) 154 CLR 25; 43 ALR 587 High Court of Australia

[The Church of Scientology commenced an action in the High Court to restrain the DirectorGeneral of the Australian Security Intelligence Organisation (ASIO) from conducting an investigation into the affairs of the church. The church contended 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). Briefly, s 17 provided that ASIO’s functions were ‘to obtain, correlate and evaluate intelligence relevant to security’, to communicate that intelligence to other relevant parties, and to advise ministers and other Commonwealth agencies ‘in respect of matters relating to security’. Justice Wilson struck out the church’s statement of claim, holding that there was a clear legislative intent expressed in the Act that the actions of the Director-General were not to be subject to the ordinary processes of judicial review. That ruling was reversed on appeal (by majority) by the Full Court of the High Court.] Mason J: [His Honour began by noting that s 75(v) of the Constitution meant that the jurisdiction of the High Court to undertake judicial review could be excluded only by direct and clear words, and that no such words (or privative clause) were present in the ASIO Act.] The question then is whether the doctrine of ultra vires can apply to ASIO’s activities. … [D]oes the doctrine apply to activities of ASIO which exceed its statutory functions …? If the effect of the Act is to confine ASIO’s authorised activities to something less than the full ambit of activities which might otherwise be permitted to the Commonwealth in execution of its executive power, then I see no reason for thinking that a person adversely affected by activities which are unauthorised cannot obtain relief by way of declaration and injunction. … [Section 17] is expressed in terms of functions, authorised and unauthorised. It constitutes the exclusive and comprehensive charter of ASIO’s activities. It therefore effectively limits the activities in which ASIO as a government department is authorised to engage. So long as its enactment is within the field of legislative power Parliament can deprive corporations, authorities or government departments of capacity or authority which they might otherwise possess … It is one thing to say that security intelligence is not readily susceptible of judicial evaluation and assessment. It is another thing to say that the courts cannot determine whether intelligence is ‘relevant to security’ and whether a communication of intelligence is ‘for purposes relevant to security’. Courts constantly determine issues of relevance … Intelligence is relevant to security if it can reasonably be considered to have a real connection with that topic, judged in the light of what is known to ASIO at the relevant time. This is a test which the courts are quite capable of applying. It is a test which presents a formidable hurdle to a plaintiff and not only because a successful claim for Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument — that there is no real connection between the intelligence sought and the topic. The fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials. Although the statutory statement of ASIO’s functions does not define them in terms of the Director-General’s opinion of what is relevant to security, it is obvious that the DirectorGeneral’s opinion of what is relevant to security would, if given, constitute important

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evidence in the decision of the question whether ASIO is acting ultra vires. The practical consequence of this is that a person seeking to establish that actions taken by ASIO are ultra vires may need to show that the Director-General’s opinion, based as it inevitably will be on information in ASIO’s possession, is wrong, as an element in demonstrating that the intelligence cannot reasonably be considered to have a real connection with security. But this does not mean, as seems to have been thought in argument, that the plaintiff is challenging the exercise of a statutory discretion by the Director-General and that he must therefore show that the Director-General did not form a genuine opinion that the actions were relevant to security or that his opinion was not bona fide or was formed with some ulterior purpose in mind. It means no more and no less than that 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. Although this task is rather different from that suggested by the Solicitor-General it will none the less be a formidable task. Murphy J: ASIO and its officers are also subject to the judicial constraints which apply to every other branch of the executive government. Parliament has not purported to immunise ASIO from judicial process and could not constitutionally do so. The Constitution provides that the Commonwealth and its officers are amenable to judicial process. If they violate the law, redress is achievable in this court at least by any person with sufficient interest to meet the requirements of standing. Section 75(iii) of the Constitution gives this court original jurisdiction in actions against the Commonwealth and persons sued on behalf of the Commonwealth. Section 75(v) of the Constitution authorises this court to issue writs of mandamus, prohibition and injunction against officers of the Commonwealth. The Prime Minister, ministers, justices of federal courts, officers of statutory bodies and federal public servants are officers of the Commonwealth and so are the Director-General, the officers and employees of ASIO. The Solicitor-General correctly did not assert that the actions of ASIO, its officers and employees were unconstrained by law and immune from legal redress. Brennan J: The jurisdiction of this court to give relief compelling compliance with the Act is not in question. It was conceded that the activities of the Organisation were subject to judicial review, and the concession was rightly made. As the law which sustains the Organisation in existence limits its functions, it would mock the will of parliament to deny that the functions which it has defined may be exceeded without restraint by the courts. Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly … … The remedy of declaration is available to define the limit of executive powers or functions in a particular case. It is submitted, however, that the Act commits to the Organisation the determination of what activities it will undertake within its charter, and that a decision to engage in a particular activity is not open to review merely because a mistake is made as to whether that activity is within its charter. Bad faith apart, it is said, mistakes in making decisions are necessarily incidental to or part of the Organisation’s function of deciding whether to undertake a particular activity and mistaken decisions, honestly made, are not amenable to judicial review. The submission cannot be accepted. The Organisation’s functions are not 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. No doubt it is necessary for the Organisation to decide whether a particular activity is within its functions but such a decision

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is merely the administrative step taken to ensure compliance with the Act. What Fullagar J said with respect to the constitutional validity of administrative acts in Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 258 applies equally to the statutory validity of an executive act undertaken in reliance upon a statutory power: ‘The validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act that the law or the consequence of the act is within the constitutional power upon which the law in question itself depends for its validity.’ [Brennan J went on to point to the formidable difficulty a plaintiff would nevertheless have in establishing that the Organisation was acting outside the statutory limitations.] [Gibbs CJ (dissenting) held that the statutory function of ASIO, to inquire whether a matter was ‘relevant to security’, was of such a nature that judicial review was impractical: ‘A scrap of information which, in itself, may seem to have no bearing on security may, when put together with other information, assume a vital significance … It is impossible to suggest any rational test by which one could determine the point of time at which one should ask the question whether the inquiries so far made have established that the evidence is relevant to security’: at 51. His Honour pointed to the other safeguards in the legislation to ensure that ASIO observed its statutory charter, including parliamentary oversight and tribunal review of adverse security decisions. Aickin J, following a car accident, died before judgment was delivered.]

8.2.10C

Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 High Court of Australia

[The Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act) established ICAC to investigate allegations and complaints of corrupt conduct. Section 8(2) of the ICAC Act defined ‘corrupt conduct’ inclusively as ‘any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official’ and which could involve certain kinds of misconduct, such as perverting the course of justice. ICAC announced a public inquiry into allegations that the NSW Crown Prosecutor, Margaret Cunneen SC, and her son counselled his girlfriend to fake chest pains at the scene of a car accident she was involved in so as to avoid police officers administering a blood alcohol test. Ms Cunneen and the son and girlfriend commenced proceedings in the NSW Supreme Court, seeking declaratory relief that ICAC lacked the power to conduct its inquiry because the matters did not involve ‘corrupt conduct’. ICAC’s contention was that the conduct involved ‘corrupt conduct’ because it could adversely affect the investigating police officers’ exercise of official functions. The High Court dismissed the appeal and affirmed the decision of the New South Wales Court of Appeal (Basten and Ward JJA; Bathurst CJ dissenting) that the alleged conduct did not constitute ‘corrupt conduct’ within the meaning of the Act.] French CJ, Hayne, Kiefel and Nettle JJ: [1] The principal question for determination is what is meant by the expression ‘adversely affects, or that could adversely affect … the exercise of official functions by any public official’ in the definition of ‘corrupt conduct’ in s 8(2) of the [ICAC Act]. [2] ‘Adversely affect’ is a protean expression. In this context, however, there are only two possibilities. Either it means adversely affect or could adversely affect the probity of the exercise of an official function by a public official, or it means adversely affect or could

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adversely affect the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision from that which would otherwise be the case. [3] The former meaning accords with the ordinary understanding of corruption in public administration and consequently with the principal objects of the ICAC Act as set out in s 2A. The latter would result in the inclusion in ‘corrupt conduct’ of a broad array of criminal offences and other unlawful conduct having nothing to do with the ordinary understanding of corruption in public administration or the principal objects of the ICAC Act. It would also enable the [ICAC] to exercise its extraordinary coercive powers (with consequent abrogation of fundamental rights and privileges) in areas ranging well beyond the ordinary understanding of corruption in public administration and the principal objects of the ICAC Act. For those reasons, and the reasons which follow, the former meaning is to be preferred. … [53] It is not likely that an Act which is avowedly directed to investigating, exposing and preventing corruption affecting public authorities — and for which the justification for the conferral of extraordinary powers on ICAC was said to be the difficulty of discovering and exposing corruption in the nature of a consensual crime of which there is no obvious victim willing to complain — should have the purpose or effect of extending the reach of ICAC to a broad array of crimes having nothing to do with corruption in public administration apart from such direct or indirect effect as they might conceivably have upon the efficaciousness of the honest and impartial exercise of official functions by public officials. [54] The principle of legality, coupled with the lack of a clearly expressed legislative intention to override basic rights and freedoms on such a sweeping scale as ICAC’s construction would entail, points strongly against an intention that ICAC’s coercive powers should apply to such a wide range of kinds and severity of conduct. So does the impracticality of a body with such a wide jurisdiction effectively discharging its functions. It would be at odds with the objects of the Act reflected in s 2A. It would be inconsistent with the assurances in the extrinsic materials earlier referred to that ICAC was not intended to function as a general crime commission. And, last but by no means least, as Basten JA observed, an extended meaning of ‘corrupt conduct’ would be far removed from the ordinary conception of corruption in public administration. Gageler J (dissenting): [86] Mention was made of the ‘principle of legality’ in written submissions in this Court. No attempt was made, however, to identify any right or principle said to be put in jeopardy by an interpretation of the ICAC Act which would permit ICAC to investigate criminal conduct which has the potential to impair the efficacy of an exercise of an official function by a public official as distinct from limiting ICAC to investigating criminal conduct which has the potential to impact on the probity of an exercise of an official function by a public official. [87] That ICAC can exercise coercive powers in derogation of common law rights is a reason for favouring a narrow purposive construction of the provisions of the ICAC Act which confer those coercive powers, if and to the extent that the scope of those provisions is unclear. That ICAC can exercise those coercive powers for the purpose of conducting investigations is no reason for straining to adopt a narrow interpretation of the provisions of the ICAC Act which define the scope of the corrupt conduct ICAC is empowered to investigate. There is no common law right not to be investigated for a crime. [88] Unfocused invocation of the common law principle of construction sometimes now labelled the ‘principle of legality’ can only weaken its normative force, decrease the predictability of its application, and ultimately call into question its democratic legitimacy.

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Control of Government Action

8.2.11  As those cases illustrate, the requirement for explicit legal authority for government action is often associated with the protection of fundamental rights and cast as the ‘principle of legality’. Similar considerations can arise in other contexts where rights are not directly involved, as the following extract from the judgment of French CJ in Attorney-General (SA) v Corporation of City of Adelaide 8.4.29C indicates: [42] Statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. The common law presumption against the parliamentary intention to infringe upon such rights and freedoms has been described as an aspect of a ‘principle of legality’ which governs the relationship between parliament, the executive and the courts. The presumption is of long standing and has been restated over many years. [Emphasis added]

The principle of legality and rights protection is taken up in more detail below at 8.3.1–8.3.10. Generally, however, if a right is contingent, not vested, there is no scope to rely on the principle of legality: Tabcorp Holdings Ltd v Victoria (2016) 90 ALJR 376; see also D Burke, ‘Preventing indefinite detention: Applying the principle of legality to the Migration Act’ (2015) 37 Sydney Law Review 159.

The presumption of regularity 8.2.12  It is ultimately for courts exercising judicial power to rule definitively on whether governmental action is valid. As a practical matter, however, officials are competent to consider the legal limits of their authority and to act accordingly: Re Adams and The Tax Agents Board 5.3.32C. There is, accordingly, a presumption of regularity: it is presumed, until the contrary is proven, that the decision or action of an official has been properly made or taken. This is captured in the maxim omnia praesumuntur rite et solemniter esse acta — ‘all acts are presumed to have been done rightly and regularly’ (also called the ‘indoor management’ rule: Royal British Bank v  Turquand (1856) 6 E&B 327; 119 E 886). The effect of the presumption is that evidence does not have to be led proving the validity of a statutory requirement, provided it is not an essential element of an offence that has to be affirmatively established: Dillon v  R [1982] AC 484; Mowday v  WA [2007]  176 A  Crim  R  85. The presumption of regularity as it applies to public acts or appointments to public office, or to other matters such as the validity of warrants issued by courts or tribunals (Von Arnim v Ellison (2006) 150 FCR 282), and the restrictions on its use, are described in the following judicial comments: McHugh JA: Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to the office … And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit. [Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154] Griffith CJ: Where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of the prior act. [McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835] 444

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Brennan J: The cases in which the indoor management rule has been applied can be placed within one or other of the three broad categories — appointments, conferring of authority and satisfaction of conditions — though the categories are not, of course, mutually exclusive. [Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146]

8.2.13 In Johnson v Director of Consumer Affairs Victoria [2011] VSC 595, the presumption was applied to establish that the Victorian Civil and Administrative Tribunal was properly constituted by a single member rather than the normal three members provided for in the tribunal’s Rules. Absent evidence to the contrary, it could be presumed that the member, who had a delegation to do so, had turned her mind to the issue and decided it was appropriate for her to sit alone. Similarly, in Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85 the presumption was applied to validate the status and establishment of the Tasmanian Anti-Discrimination Tribunal, despite the absence of evidence that the Minister had taken formal steps to establish the Tribunal in accordance with Tasmania’s AntiDiscrimination Act  1998. In Doyle on behalf of the Iman People  #2 v  Queensland (2016) 151 ALD 269, Reeves J rejected (at 281–5) a submission that ‘the presumption of regularity … only applies to the prerequisites that are anterior to the exercise of a statutory power’ (at 280), but could also apply to subsequent steps taken in administering a statutory scheme (in this case a declaration as to land subdivision). Legislation can invoke the presumption, for example, by providing that a document bearing the stamp or signature of an agency is deemed to be an official document unless the contrary is proven (see Schierholter v County Court of Victoria (2006) 15 VR 583, considering the Accident Compensation Act  1985 (Vic)). Limits on the application of the presumption of regularity are discussed in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic 12.6.7C. 8.2.14  Like all presumptions, the presumption of regularity is rebuttable. The onus of doing so falls initially on the party wishing to dispute the validity of an action or decision. Cubillo v Commonwealth (2000) 103 FCR 1 provides an illustration. The Commonwealth Director of Native Affairs had authority under s 6 of the Aboriginals Ordinance 1918 (NT) ‘to undertake the care, custody, or control of any aboriginal or half caste, if, in his opinion it is necessary or desirable in the interests of the aboriginal or half caste for him to do so’. The plaintiffs, Mrs  Lorna Cubillo and Mr  Peter Gunner, who as children had been removed from their parents by the Director in 1947 and 1956 respectively, failed in the Federal Court in a claim of false imprisonment against the Commonwealth. They were unable to dislodge the presumption of regularity attaching to the Director’s decisions: O’Loughlin J: [I]n any case … requiring the prior formation of a particular opinion by the donee of the power, it would be presumed from the exercise of the power, in the absence of evidence to the contrary, that the donee had the required opinion. This presumption supports the exercise of the power conferred by s  6 of the Aboriginals Ordinance. An administrative authority cannot be put to proof of the facts or conditions on which the validity of its order must depend, unless the party attacking it can produce evidence that denies the presumption. That evidence does not have to be strong; it will be sufficient if it invites investigative action. The evidence in this case cannot even be raised to that level either by Mrs Cubillo or Mr Gunner.

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Control of Government Action

UNAUTHORISED DECISION-MAKING: RELEVANT PRINCIPLES OF STATUTORY CONSTRUCTION Statutory construction and public law 8.3.1  Most administrative law cases are concerned with the exercise of statutory power. The rules, principles and presumptions applying to the construction of legislation therefore play a key role in administrative law. Indeed, de Smith and Brazier have claimed that: ‘To a large extent judicial review of administrative action is a specialized branch of statutory interpretation’: SA de Smith and R Brazier, Constitutional and Administrative Law, 8th ed, Penguin, London, 1998, p  516. Statutory interpretation is, nevertheless, a far larger topic, as much concerned with private law as public law. It is beyond the scope of this work to deal with all aspects of the topic: generally, see DC Pearce and RS Geddes, Statutory Interpretation in Australia, 8th ed, LexisNexis Butterworths, Sydney, 2014, and (for a more theoretical perspective) S Corcoran and S Bottomley, Interpreting Statutes, Federation Press, Sydney, 2005. 8.3.2  It is a commonplace that there can be a leeway of choice in elucidating the meaning of a statutory provision. To decide which shade of meaning is to be preferred, ‘the cardinal rule of statutory interpretation … requires the words of a statute to be read in their context’: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315. In a narrow sense, the context of a statutory phrase includes other sections of the statute, the title and the divisional structure. The legislative history can also be relevant: Newcastle City Council v  GIO General Ltd (1997) 191 CLR 85 at 112–13. From an administrative law perspective, the context is broader and includes aspects of government and the legal system that lie outside the statute, as well as concepts of division of powers, and representative and responsible government embedded in the Constitution: see, for example, Williams (No  1) 9.2.30C. A necessary consequence, when there are so many factors to be considered, is that different factors can work against each other. Frances Bennion, a former United Kingdom Parliamentary Counsel and author of a definitive text, Bennion on Statutory Interpretation (7th ed, LexisNexis, London, 2017), aptly made the point in ‘The Global Method: Statutory Interpretation in the Common Law World’ 85 CLEA Newsletter 30: There is no simple rule of thumb, only a thousand and one interpretative criteria … Under the Common Law system, it is taken to be the legislator’s intention that an enactment shall be construed according to the numerous general guides laid down for that purpose by law; and that where these conflict (as they often do) the problem is to be resolved by weighing and balancing the interpretative factors concerned … What the court does (or should do) is take an overall view, weigh all the relevant interpretative factors, and then arrive at a balanced conclusion.

Two decisions discussing objects that conflict are Project Blue Sky Inc v  Australian Broadcasting Authority 16.2.10C and CSL Australia Pty Ltd v  Minister for Infrastructure and Transport (2014) 221 FCR 165. Following is an introductory discussion of some statutory interpretation principles that have special relevance to administrative law.

The language of the statute 8.3.3  The words of statutory provisions are, of necessity, the starting point in the interpretive process. The guiding principle, sometimes called the literal approach to interpretation, or the 446

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plain meaning rule, requires that words in a statute be given their ordinary and natural meaning. It was explained by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297: [I]t is not unduly pedantic to begin with the assumption that words mean what they say … [I]f the language of a statutory provision is clear and unambiguous and is consistent and harmonious with the other provisions of the enactment and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that ‘it may degrade into mere judicial criticism of the propriety of the acts of the Legislature’, as Lord Moulton said in Vacher & Sons Ltd v London Society of Compositors [1913] AC 107, at p 130; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute.

8.3.4  The principal weakness of the literal approach is that words do not always have a ‘clear and unambiguous’ meaning. So, for example, in Minister for Immigration and Citizenship v  Yucesan (2008) 169 FCR 202 the issue turned on the meaning of ‘met’ in the Migration Regulations 1994 (Cth). An Australian citizen of Turkish descent applied for a prospective marriage visa to bring to Australia a Turkish resident whom she had not met in person. Her evidence was that both families had been close friends for 12 years, she was introduced to him through the families as was the Turkish custom, they had communicated through SMS, email and telephone for three months before deciding to become engaged and they planned to marry. The Full Federal Court noted that ‘the verb “to meet” has more than one meaning’ and acknowledged that ‘the meaning of words evolves with time and … with technological progress’: at [17]. Nonetheless, the Full Court found that the regulations which emphasised the need for ‘the parties genuinely’ to intend to marry, and that marriage involved physical cohabitation, indicated that ‘met’ meant a physical encounter: at [28]. 8.3.5  Working alongside the literal approach — not inconsistent with it, but capable of reflecting a different emphasis — is the purposive approach to interpretation. The purposive approach is aptly captured in s 15AA of the Acts Interpretation Act 1901 (Cth): 15AA In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

Section  15AA acknowledges that the statutory purpose may not always be explicit. As Dawson J noted in Mills v Meeking (1990) 169 CLR 214 at 235, statutory purpose must be taken into account ‘not only where … provisions on their face offer more than one construction, but also in determining whether more than one construction is open’. It is also implicit in s 15AA that the purposive approach works alongside and not in competition with the literal approach. As the High Court pointed out in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, the literal and the purposive approaches coexist. The intersection of the literal and purposive approaches was explained in Project Blue Sky Inc 16.2.10C: McHugh, Gummow, Kirby and Hayne JJ: [T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical 447

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meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

A similar observation was made by French CJ, Hayne, Kiefel and Bell JJ in Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1: ‘The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose’: at [26]. See also Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at [10]. 8.3.6  The rationale for the purposive approach was described by Kirby  J in Australian Finance Direct Ltd v Director of Consumer Affairs Victoria (2007) 234 CLR 96 at [112] when he concluded: ‘An important lesson of the past 20 years has been that statutory language better yields its meaning when its purpose is ascertained and taken into account in performing the task of interpretation’. Despite that exhortation, courts regularly adopt a more textual or literalist approach to statutory construction: see, for example, Attorney-General (SA) v Corporation of the City of Adelaide 8.4.29C. As Hayne, Heydon, Crennan and Kiefel JJ noted in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47]: ‘This Court has stated on many occasions that the task of statutory interpretation must begin with a consideration of the text itself ’ (a comment repeated in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [92]). A similar observation was made by Hayne and Heydon JJ, in Baini v R (2012) 246 CLR 469, citing a comment in Fleming v The Queen (1998) 197 CLR 250: ‘“[t]he fundamental point is that close attention must be paid to the language” of the relevant provision because “[t]here is no substitute for giving attention to the precise terms” in which that provision is expressed’: at [14]. 8.3.7  A literal approach has been applied in many immigration cases by strictly construing legislation that authorises officials to issue a notice or decide an application for a visa, particularly a refugee protection visa: for example, SAAP v  Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 11.4.2 and Saeed v  Minister for Immigration and Citizenship (2010) 241 CLR 252. 11.3.32C. Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 also illustrates that trend, with the court ruling that a provision in the Migration Act 1958 (Cth) authorising a limit to be placed on the number of visas of a particular class did not authorise a limit on the number of protection visas, which were treated in a different section of the Act, and the two provisions had to be read together. In the same vein are cases such as Coco v The Queen 8.3.31C, in which a narrow construction was given to legislation authorising the installation of a listening device on private premises. A contrasting example, where a more purposive approach was adopted, is Australian Crime Commission v  AA  Pty Ltd (2006) 149 FCR 540, in which the court took account of the purpose and history of the legislation establishing the commission, namely to combat ‘organised, sophisticated or complex’ criminal activities. The court held that a power conferred on the commission to provide criminal intelligence to ‘any law enforcement agency’ enabled it to provide information to the Australian Federal Police, a police force of a state, or ‘any other authority or person’ responsible for the enforcement of the laws of the Commonwealth or of the states. What must be avoided, however, as the High Court emphasised in Australian Education Union v Department of Education and Children’s Services, is that ‘[i]n construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and 448

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then characterise it as a statutory purpose’: at [28]. Whether the purposive approach permits a court to introduce inadvertently omitted words to a provision so as to expand the ambit of the provision is a matter of some controversy: see Taylor v The Owners – Strata Plan 11564 [2014] HCA 9 at [35]–[40].

The nature of the subject matter being regulated and interests apt to be affected 8.3.8  The area of community life to which a statute applies is an important part of the context that bears upon its construction. In Woodward 8.2.9C, for example, the subject matter of the statute — activity threatening to Australia’s national security — was mentioned by all judges as a weighty factor supporting an expansive construction of the terms used in and powers conferred by the Act. Similarly, in Swan Hill Corporation v Bradbury (Bradbury) 8.4.17C, Dixon J noted that a power to regulate an activity can vary in scope according to whether the activity being regulated is socially desirable or obnoxious. It has similarly been noted that where government is granting an exclusive right — such as the right to mine — there should be strict compliance by government officials with the statutory requirements in order to improve administrative efficiency, avoid backlogs and minimise administrative burdens: Forrest & Forrest Pty Ltd v Wilson (2017) 346 ALR 1. 8.3.9  The administrative law dimension to statutory construction has long emphasised that the impact a decision may have on individual interests is a core concern: see also ‘The principle of legality and established freedoms and immunities’ at 8.3.28ff and ‘Human rights considerations’ at 8.3.38ff. For example, as Mason J observed in FAI Insurances Ltd v Winneke 11.2.17C at 368, ‘the court will not ordinarily regard a statutory discretion the exercise of which will affect the rights of a citizen as absolute and unfettered’. Courts will generally favour a construction of a statute that protects existing statutory rights, such as those existing under a statutory workers’ compensation scheme: Australian Postal Corporation v Sinnaiah (2013) 213 FCR 449. To the same effect is the presumption endorsed in Coco 8.3.31C — that express statutory language is required ‘to authorise interference with the basic immunities which are the foundation of our freedom’: at 346. A similar observation was made in Evans v State of New South Wales 8.3.32C at 593: ‘It is an important principle that Acts be construed where constructional choices are open so as not to encroach upon common law rights and freedoms’; and in an oft-quoted passage in Potter v Minahan (1908) 7 CLR 277 at 304, that it is ‘in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness’. 8.3.10  Nevertheless, the impact that a statute can have on individual interests should not be over-emphasised as an interpretive factor. It is in the nature of legislation that it can have an impact on individual interests which is uneven and at times harsh. For example, statutes specifying minimum criteria for receipt of government benefits, concessions or approvals necessarily favour those who satisfy the criteria as against those who do not. As McHugh J observed in Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at [28]–[29]: ‘nearly every session of Parliament produces laws which infringe on existing rights. … Such is the reach of the regulatory state that it is now difficult to assume that the legislature would not infringe rights or interfere with the general system of law’. A consequence, as Basten JA observed in Shade Systems Pty Ltd v  Probuild Constructions (Aust) Pty Ltd (No  2) (2016) 344 ALR 355 at [46], is that ‘[i]t is not necessary, and is probably misguided, to construct some quasiconstitutional distinction between categories of legislation, requiring different standards of 449

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expression on the part of the legislature to achieve their apparent purpose’. An example is the majority ruling that regulations made under the National Security Act 1939 (Cth) authorising the resumption of land for military training during the Second World War extinguished native title to the area: Queensland v Congoo (2015) 256 CLR 239.

Beneficial construction 8.3.11  Courts sometimes adopt a ‘beneficial’ or liberal construction of legislation that confers benefits or rights upon the community. The rationale is that parliament intended the particular statutory regime to be construed liberally in favour of the individual. For example: McHugh, Gummow, Callinan and Heydon JJ: [51] … The provisions of the [Veterans’ Entitlements] Act are obviously beneficial, designed to afford important pension rights to members of the Australian Defence Forces. … [Roncevich v Repatriation Commission (2005) 222 CLR 115] French CJ, Crennan, Kiefel and Keane JJ: [29] It can be accepted, as was put by counsel … that the [Workers Compensation Act 1987 (NSW)’s] remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the [Act] as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. … [ADCO Constructions Pty Ltd v Goudappel (2014) 308 ALR 213]

French CJ, Gummow, Hayne, Kiefel and Bell JJ: [24] … It is generally accepted that there is a rule of construction that beneficial and remedial legislation is to be given a ‘fair, large and liberal’ interpretation. [AB v Western Australia (2011) 244 CLR 390, concerning Western Australian gender reassignment legislation]

8.3.12  ‘Beneficial construction’ of statutory language has been adopted in many areas of Australian law. An example taken up later in this book is Tickner v Bropho (1993) 40 FCR 183: see  15.3.19. There it was held that Aboriginal heritage protection legislation was intended to have a beneficial operation, with the consequence that the minister was under an implied statutory duty to initiate an inquiry into any plausible complaint that an area of Aboriginal cultural significance was under threat of destruction. For other examples of beneficial construction being used to construe an ambiguous legislative phrase in favour of the class of persons affected by the legislation, see Brennan v Comcare (1994) 50 FCR 555 at 559; State of New South Wales v Chapman-Davis [2016] NSWCA 237 at [75] (employees’ compensation); Westwood v Lightly (1984) 2 FCR 41 at 41–2 (conditions of employment); Jungarrayi v  Olney (1992) 34 FCR 496 at 506 (land rights determination); Re  Vitalone and Secretary, Department of Social Security (1995) 38 ALD 169 at 174 (social security debt recovery); Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 50 ALD 449 at 454; and Purvis v New South Wales  4.4.31C (anti-discrimination legislation). 8.3.13  A common line of criticism of ‘beneficial construction’ is that it fails to take account of the conflicting themes and interests that are often found in complex legislation.  The  criticism is echoed in the following three extracts, the first from the

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then Secretary of the Department of Social Security (Mr Blunn); the second from a decision of the Full Federal Court (Teo) in a case arising under the Migration Act  1958 (Cth); and  the  third from a decision of the High Court referring to the Veterans’ Entitlements Act 1986 (Cth): AS Blunn: [An] issue I wish to canvass is the application of the ‘beneficial legislation’ justification in adjudication … I think it needs to be recognised that the Social Security Act now contains 1,364 sections and twelve schedules. A great many sections and clauses in the Act are not about entitlements. They are about factors that will prevent payments being made. They are about recovery of debts. They are about social security offences. They are about actions the Secretary can require of a person if he or she is to earn payment. Each Part, and sometimes each Division or Subdivision of the Social Security Act has its own rationale for existence, and that rationale may be punitive or restrictive. This has become the legislative package and is attributable in part to the eradication of much of the discretion that used to be in the shorter Social Services Act 1947 (Cth). This all reflects the fact that the Act describes a complex set of relationships between the Department and its customers founded on mutual obligations and, sometimes, rights. I think these matters require specific attention in the decision-making and review processes. [AS Blunn, ‘The Impact of the AAT on Social Security Administration’ in J McMillan (ed), The AAT — Twenty Years Forward, AIAL, 1998, p 99] Black CJ, Gummow and Beazley JJ: The result, if the statute and the regulations are taken as a whole, is to disclose a compromise which represents a balance between various competing interests which are involved. The particular pattern which is set in this way is not to be distorted by treating one element in it other than in accordance with the fair meaning allowed by the language which has been used. There is no reason to give a ‘broad and generous construction’ to reg 131A. To do so may detract from the force given in the balance of the legislative scheme to the other interests which are involved. These include the view taken by other branches of government and reflected in the legislative text, being the statute and the regulations, of the social and material interests of the country as a whole in relation to the entry and settlement of aliens, and of the conditions which should be attached to permission to enter and stay in Australia. [Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194] McHugh, Gummow, Callinan and Heydon JJ: [54] [C]are has to be taken to observe the precise language of the [Veterans’ Entitlements] Act. It contains its own peculiarities and special features. Problems in the application of the Act cannot be avoided by the invocation of generalities about beneficial construction. [Roncevich v Repatriation Commission (2005) 222 CLR 115]

The nature of the power being exercised 8.3.14  Each statutory provision is unique, yet there are categories of administrative powers that prompt a consistent interpretive response by courts. An example discussed in 7.4.2 is of powers that are ‘polycentric’ in nature, such as a power to allocate scarce resources, or to rezone land for urban planning or regulation on environmental grounds: Tubbo Pty Ltd v  Minister Administering the Water Management Act  2000 (2008) 302 ALR 299. Ordinarily, polycentric powers are construed broadly so as to accommodate the range of competing claims and interests that potentially fall within their scope. So, too, a power to make subordinate legislation will often be construed expansively: South Australia v  Tanner 8.4.27C and Attorney-General (SA) v Corporation of the City of Adelaide 8.4.29C. Governmental powers with a private law orientation 451

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(such as a power conferred on a government agency to conduct a commercial business, or to lease land) are likely to reflect that dimension, rather than the impact that an exercise of the power might have on the individual interests of a member of the community: see 2.5.22–2.5.24. Finally, statutory powers with a prerogative ancestry commonly reflect that origin in their construction: see, for example, Coutts v  Commonwealth (1985) 157 CLR 91 (no action for wrongful dismissal when termination by Executive Council of appointment of military officer); and Barratt v  Howard (2000) 96 FCR 428 (termination of office held at pleasure, namely, Secretary of Department).

The nature of the decision-maker 8.3.15  The nature and scope of a power can take colour from the character of the official who is to exercise the power. As noted in Minister for Immigration and Multicultural Affairs v Jia 11.5.31C, Murphyores Inc Pty Ltd v Commonwealth 10.3.16C and Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (Peko) 2.3.11C, the conferral of a power upon a minister is relevant in discerning the standard of impartiality to be expected of the minister and the range of matters the minister can consider in reaching a decision — an approach not always extended to ministerial powers in the migration jurisdiction: 2.2.25–2.2.33. Some administrative law principles — such as the presumption against sub-delegation — apply more strictly to powers that are to be exercised by a judicial body: see 8.5.15. The conferral of a power on a vice-regal officer (FAI 11.2.17C), or a local government body (Ex parte SF Bowser & Co; Re Municipal Council of Randwick 10.3.19C), when cabinet is effectively the decision-maker (South Australia v O’Shea 11.2.18C) or when there is parliamentary oversight of the decision (Plaintiff M79/2012 v Minister for Immigration and Citizenship 10.2.5C) can equally be relevant to its construction: see Williams (No 1) 9.2.30C at [123].

Interpretation statutes 8.3.16  All jurisdictions have an interpretation statute to guide the interpretation of legislation: see Cth: Acts Interpretation Act 1901; ACT: Legislation Act 2001; NSW: Interpretation Act 1987; NT: Interpretation Act; Qld: Acts Interpretation Act 1954; SA: Acts Interpretation Act 1915; Tas: Acts Interpretation Act 1931; Vic: Interpretation of Legislation Act 1984; WA: Interpretation Act 1984. Many of the principles stated in the interpretation statutes are specially directed to public law issues. To take the Commonwealth statute as an example, the Act defines the meaning of common statutory terms such as ‘minister’ and ‘department’ (ss 2B, 19A), it defines what should be included in a statement of reasons (s 25D), it explains the effect of a delegation of power (s 34AB), and it provides direction about the construction of non-legislative instruments: s 46. 8.3.17  The human rights charters enacted in two Australian jurisdictions are relevant to the interpretation of most other legislation in those jurisdictions. Section 32(1) of the Victorian Charter of Human Rights and Responsibilities Act 2006 provides: ‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’. Section 30 of the Australian Capital Territory Human Rights Act 2004 provides similarly: ‘So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights’. The expression ‘human rights’ is defined in both laws to include civil and political rights, such as freedom of expression, minority rights, protection of privacy, and the right to liberty and personal security. In the Australian Capital Territory, ‘human rights’ extends to include economic, social and 452

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cultural rights: Human Rights Act  2004 (ACT) s  5, Pts  3,  3A. Those human rights are to be restricted only by ‘such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’: s 7 of the Victorian Charter. 8.3.18  An adjunct to this interpretive approach is the role of parliamentary committees in each jurisdiction that scrutinise legislation. An example is the Human Rights (Parliamentary Scrutiny) Act  2011 (Cth) which provides that the functions of the Parliamentary Joint Committee on Human Rights include ‘(b)  to examine Acts for compatibility with human rights’, ‘(c) to inquire into any matter relating to human rights which is referred to it by the Attorney-General’, and to report to the parliament: s 7. This scrutiny is designed to ensure that the seven international covenants and conventions on human rights referred to in the Act are taken into account when designing and amending Commonwealth Acts: see  4.4.16. For an assessment of this approach to rights protection, see G Williams and L Burton, ‘Australia’s Exclusive Parliamentary Model of Rights Protection’ (2013) 34 Statute Law Review 58.

Extrinsic materials 8.3.19  Each Australian interpretation statute, except in South Australia, confirms that it is permissible to have regard to contemporary material that is extrinsic to the Act (such as explanatory memoranda, second reading speeches, parliamentary debates, other parliamentary material, and relevant reports) to resolve ambiguity or obscurity or to confirm the ordinary meaning of the statutory language: see Cth: s 15AB; ACT: Pt 14.2; NSW: s 34; NT: s 62B; Qld: s 14B; Tas: s 8B; Vic: s 35(b); WA: s 19. Those extrinsic materials can be an especially important resource in gleaning the policy objective lying behind legislation administered by government agencies. 8.3.20  There is a growing trend in public law to have regard to international conventions to gauge their influence on domestic legislation. Nonetheless, international law is only an interpretive influence and does not override domestic law. The practical reasons for this principle were expressed in Project Blue Sky 16.2.10C at 391 (McHugh, Gummow, Kirby and Hayne JJ) and in Momcilovic v The Queen 8.3.33C. In Momcilovic, in relation to s 32(1) of the Charter of Human Rights and Responsibilities Act  2006 (Vic) which permits reference to the judgments of domestic, foreign and international courts and tribunals relevant to a human right, French CJ observed: ‘[I]nternational and foreign domestic judgments should be consulted with discrimination and care. Such judgments are made in a variety of legal systems and constitutional settings which have to be taken into account when reading them’: at 37–8. The rules for documentary construction applying to international instruments and domestic legislation vary in some respects, and it is therefore necessary to be acquainted with both. For a discussion of the rules applying to international instruments referred to or incorporated into domestic laws, see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (migration instruments) and Povey v Qantas Airways Ltd (2005) 223 CLR 189 at 202, 224–5, 230–4 (civil aviation instruments). The difficulty in distinguishing between fundamental and ordinary common law rights, discussed by McHugh J in Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, was also noted in Evans 8.3.32C, Coco 8.3.31C and Momcilovic, where French CJ expressed a preference to avoid use of the term ‘fundamental’. The distinction was regarded as significant by the majority of the NSW Court of Appeal in Harrison v Melhem (2008) 72 NSWLR 380 in the context of defining the scope of a common law right (to recover damages for loss of capacity for self-care) that had been modified by statute. 453

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Common law approaches, assumptions and presumptions 8.3.21  The following section of this chapter lists some principles devised over time to guide the construction of legislation. It is appropriate to describe the principles about to be discussed as ‘common law’ principles, because they reflect the significant role played by judicial initiative and creativity in the development of Anglo-Australian public law. The further description of these principles variously as ‘approaches’, ‘assumptions’ and ‘presumptions’, reflects the sundry nomenclature that can be used in categorising them. At their heart, they are judicially-inspired principles tantamount, as Pearce and Geddes observe, to ‘a common law bill of rights — a protection for the civil liberties of the individual against invasion by the state’: DC Pearce and RS  Geddes, Statutory Interpretation in Australia, 8th ed, LexisNexis Butterworths, Sydney, 2014 at [5.2]. Other interpretive principles that are of equal importance in public law include: legislation is presumed not to have an extraterritorial operation (Jumbunna Coal Mine NL v Victorian Coal Miners’ Assoc (1908) 6 CLR 309 at 363); the Crown is presumed not to be bound by legislation in the absence of express reference or necessary implication (Bropho v Western Australia (1990) 171 CLR 1); and legislation is presumed not to violate the rules of international law or Australia’s treaty obligations: Plaintiff M70/2011 v Minister for Immigration and Citizenship 13.3.17C at 234 (Kiefel J). 8.3.22  All common law presumptions are rebuttable. Some presumptions are easily rebutted by the words of a statute or an implication to be drawn from it; other presumptions are more resilient and prevail unless a statute contains clear, express or unambiguous words to the contrary, or there is contradictory evidence: Johnson v Director of Consumer Affairs Victoria 8.2.13. Indeed, the ‘subtle and ill-defined … yet effective’ role of common law presumptions was exemplified by Sir Owen Dixon in a question posed extra-curially: ‘Would it be within the capacity of a parliamentary draftsman to frame … a provision replacing a deep-rooted legal doctrine with a new one?’: Jesting Pilate, Lawbook, Melbourne, 1965, pp 205–6. An example, however, of how a deeply rooted principle can be rebutted was the ruling in Duncan v Independent Commission against Corruption (2015) 256 CLR 83 that the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) was effective in giving retrospective validity to past acts of ICAC that may have been invalid following an earlier High Court decision.

Implied incidental power 8.3.23  It is common to find in statutes a provision stating that an agency can undertake any activity that is incidental to or consequential upon the functions or powers conferred on the agency by the statute. Absent such a provision, there is ordinarily an implied power of similar effect. An oft-cited statement of the principle was given by Lords Selborne and Blackburn in Attorney-General v Great Eastern Railway Co [1880] 5 App Cas 473: Lord Selborne: [I]t appears to me to be important that the doctrine of ultra vires … should be maintained. But I agree … that this doctrine ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires. Lord Blackburn: [T]hose things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited. 454

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A variation of the same principle, applied in Herscu v The Queen 8.3.24C, is that an officer responsible for the administration of a statute is clothed with a general authority and capacity to administer the statute. 8.3.24C

Herscu v The Queen (1991) 173 CLR 276; 103 ALR 1 High Court of Australia

[The appellant was convicted under the Queensland Criminal Code of bribing the Queensland Minister for Local Government ‘in the discharge of the duties of his office’. On appeal, the High Court rejected the appellant’s argument that the activity for which a payment had been made to the minister was not an explicit duty of the minister’s office.] Mason CJ, Dawson, Toohey and Gaudron JJ: There is no point in enunciating all of the specific powers conferred upon the Minister … since it is common ground that no specific power is given to the Minister to make representations concerning the alteration of conditions attaching to a planning consent. It is sufficient to observe that the powers given to the Minister … are wide-ranging. [Their Honours then outlined many of the specific town planning powers conferred on the minister.] Although these specific provisions are an indication of the breadth of the responsibilities of the Minister, they do not express the limits of the functions imposed upon him by the office which he held. He was charged with the business connected with local government matters and with the administration of the relevant legislation; he bore individual ministerial responsibility for the supervision and control of his department. For these purposes, he was clothed with general authority in addition to the powers specifically conferred by statute. As McHugh JA observed in GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at p 524: A public office holder assumes the burdens and obligations of the office as well as its benefits. By accepting appointment to the office, he undertakes to perform all the duties associated with that office and, as long as he remains in office, he must perform all its duties … The duties of a public office include those lying directly within the scope of the office, ‘those essential to the accomplishment of the main purpose for which the office was created and those which, although only incidental and collateral, serve to promote the accomplishment of the principal purposes’: Nesbitt Fruit Products Inc v Wallace (1936) 17 F Supp 141 at p 143. Whilst it is possible to point to particular statutory functions which may be regarded as imposing a duty upon the Minister, these by no means exhaust the whole of his executive or administrative responsibilities. Conferred upon him by his office were many other functions of a general as well as a particular kind.

8.3.25  Many other cases illustrate the principle of implied incidental power. AttorneyGeneral v  Smethwick Corporation [1932] 1  Ch  562 held that a local government agency could, in addition to its enumerated statutory functions, purchase equipment to undertake all its printing in-house rather than contract it out. In Binse v Williams [1998] 1 VR 381 the Victorian Court of Appeal held that the statutory function conferred on a prison governor, 455

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to  be ‘responsible for the management, security and good order of the prison and the safe custody and welfare of the prisoners’, carried with it an implied power to apply physical restraints to a prisoner who had repeatedly tried to harm prison staff and inmates. In Alice Springs Town Council v Mpweteyerre Aboriginal Corporation (1997) 115 NTR 25, the Northern Territory Supreme Court held that it was not limited as to the orders it could make in hearing an appeal on a ‘question of law’: ‘there seems no reason to suppose the powers of the Supreme Court do not extend to what is incidental to giving effect to the decision’: at 36 (Martin J). The Acts Interpretation legislation also contains analogous provisions: for example, a power conferred by statute to make, grant or issue an instrument, presumptively includes a like power to repeal, rescind, revoke, amend or vary any such instrument: Acts Interpretation Act  1901 (Cth) s 33(3); and the power to appoint includes the power to appoint a substitute for that person or to otherwise vary or revoke an instrument of appointment: s 33(4). 8.3.26  The principle of implied incidental power is limited in operation by other principles of statutory construction discussed elsewhere in this book. Three such principles are especially worth noting. First, clear and unambiguous statutory language is required to authorise activity by a public official that is otherwise tortious or that interferes with a fundamental right, freedom or immunity: Coco 8.3.31C. Second, a statutory power must not be used for an unauthorised purpose: 9.2.1ff. Third, activity that is ancillary in nature must complement, not supplement, the statutory scheme: Shanahan v  Scott 8.4.13C. The distinction was stated by Isaacs J in Carbines v Powell (1925) 36 CLR 88: It is not open to the grantee of the power actually bestowed to add to its efficacy, as it is called, by some further means outside the limits of the power conferred, for the purpose of more effectively coping with the evils intended to be met … The authority must be taken as it is created, taken to the full, but not exceeded. In other words, in the absence of express statement to the contrary, you may complement, but you may not supplement, a granted power.

The following case provides an illustration of those second and third restrictions (and the overlap between them). 8.3.27C

Kent v Johnson (1972) 21 FLR 177 ACT Supreme Court

[A group of Canberra residents challenged the construction of the Telecom (now Telstra) Tower on the summit of Black Mountain, one of the hills that ring the national capital. The Postmaster-General (PMG) was to erect the tower, relying on the authority conferred by the Post and Telegraph Act 1901 (Cth) and two other statutes to provide facilities for ‘postal, telegraphic, telephonic and other like services’: Constitution s 51(5). The court held that those statutes would not authorise the erection of a tower that contained a restaurant and tourist facilities.] Smithers J: [His Honour referred to three statutes on which the PMG relied.] These statutes do not expressly authorise the PMG to conduct a restaurant or tourist services or to erect a building for purposes of it being used for those purposes. It was said however that such authority is implied as being incidental to the exercise of the authority expressly conferred by these statutes.

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A statute only authorises those acts and matters which it expressly nominates and those acts and matters which are necessarily incidental to the acts so expressly authorised. … Those acts and matters which are necessarily incidental to the exercise of the expressly granted powers may be identified as those which pass the test that they are necessary for the reasonable fulfilment of the process of performing those acts and matters which are expressly authorised. … When something is authorised, that also is authorised without which the primary authority would not be able to be exercised fully. The allegation of the lack of statutory power in the PMG arises out of the inclusion in the project of provision for a restaurant and tourist viewing facilities. The whole of the upper drum of the tower is to be used for restaurant purposes by concessionaires who are to pay their concession fees to the PMG. The floor above is to be an enclosed look-out gallery, refreshment and souvenir counter and public toilets. The floor above will be an open look-out gallery and the top-most floor is to be a panoramic gallery. The PMG frankly states that these facilities are to be incorporated in the design for the purpose of obtaining revenue to amortise the cost of erecting the tower. It is expected that in twenty to thirty years the cost of the tower will be completely amortised. It is clearly stated also that unless such revenue-earning facilities were incorporated the department could not finance the erection of the tower and would not build it. Apart from these facilities and additional parking and other visitor facilities on the ground floor and possibly some lift accommodation the whole building is devoted to providing technical services within the statutory duties and powers of the PMG. The incorporation of the visitor facilities increases the cost by only about $200,000. It has been argued that the incorporation of such facilities in a project of this kind in a place of tourist attraction is, although a unique step for the PMG, a very reasonable and sensible one. But in my opinion a project incidental to the exercise of a statutory power must in its nature have some affinity with the statutory power. It is not enough that it is economic or convenient. The remarks of Starke J in Attorney-General (Vic) v The Commonwealth (1935) 52 CLR 533, at 566, although dealing with a matter said to be incidental to the exercise of a legislative power, seem to me to provide guidance on this aspect. He said, ‘The legislative powers of the Commonwealth confer upon it no authority whatever to establish and maintain clothing factories for purposes other than those contained in its enumerated or constitutional powers. It may be desirable to do so from the point of view of efficiency and economy, but constitutional warrant is still lacking.’ And as Rich J said in the same case, ‘In all cases where incidental powers are relied upon there is a danger of the cart being harnessed before the horse’ and in such cases he pointed out, there is an inversion of the main and incidental power. In that case the use of the military clothing factory for making clothes in peace time for other than defence purposes was supported by reference to the necessity to keep skilled men available for making military clothes when necessary. To my mind when an authorised project is dependent for its implementation upon obtaining revenue from another project which has no affinity with it, the situation is in substance akin to that in which there is a kind of inversion referred to by Rich J … The view I have found is supported also, in my opinion, by the decision in Thompson v Randwick Corporation (1950) 81 CLR 87. [Discussed in Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board 10.2.15C. at 468, 470] In this case the unauthorised tourist activity is in the same sense a substantial purpose of the total activity of erecting the multiple-purpose tower.

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[Smithers J went on to find that the tower could instead be constructed (as it later was) by the Commonwealth Minister for Works, in the exercise of executive power: it was ‘ a building on Commonwealth land, for Commonwealth purposes paid for by Commonwealth money … The management of the building as property of the Commonwealth is an appropriate matter for executive action.’ In the meantime there had been an appeal to the High Court, which expressed agreement with the rulings of Smithers J on the limited scope of the PMG’s statutory authority: Johnson v Kent (1975) 132 CLR 164. Barwick CJ (McTiernan and Stephen JJ agreeing) observed at 169: A statutory power to erect any structure for “telegraphic, telephonic and other like services” is, of itself, insufficient, in my opinion, to authorise the erection of a tower of which an integral part goes beyond making provision for such services. This is so even though what is extraneous to the purpose of providing such services will afford reimbursement for the cost of the tower. It is not sound doctrine that the Commonwealth may do anything that will help it to reimburse itself for moneys lawfully spent for its purposes.]

The principle of legality and established freedoms and immunities 8.3.28  A resilient presumption of the common law — which illustrates a civil liberties tradition perhaps as strongly as any other legal principle — is that legislation is presumed not to abrogate a fundamental right, freedom or immunity other than by express or unambiguous language. This interpretive presumption can also apply to narrow the meaning of discretionary phrases in legislation that are designed to provide guidance to decision-makers. The presumption is often described as the principle of legality, as noted in the following observation of French CJ, Kiefel, Bell, Keane and Gordon  JJ in R  v Independent Broad-Based Anti-Corruption Commissioner (2016) 256 CLR 459 at [40]: ‘The principle of legality means that common law rights will not be taken by a court to have been displaced by legislation save where the intention to do so is “expressed with irresistible clearness”.’ As noted earlier, the principle of legality can also have a broader meaning, requiring legal authority for all governmental action, as explained by Basten JA in Shade Systems 8.3.10 at [39]: ‘Both its ordinary meaning and its traditional usage engage a particular aspect of the rule of law, namely that government action (whether legislative or executive) which intrudes on the rights and liberties of individuals should be justified by legal authority’. The following quotes, from K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 520 (French CJ) and Al-Kateb v Godwin (2004) 219 CLR 562 at 577 (Gleeson CJ), illustrate this presumption of statutory construction: French CJ: [A] ‘principle of legality’ governing the relationship between parliament, the executive and the courts … was explained by Lord Hoffmann in R v Secretary of State for the Home Department; Ex parte Simms: [T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. 458

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Gleeson CJ: Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question and has consciously decided upon abrogation or curtailment.

This principle of construction has become, in part, an analogue for a presumption of statutory interpretation that protects rights and freedoms in a system of representative and responsible government under the rule of law: R  v Secretary of State for Home Department; Ex parte Pierson [1998] AC 538 at 587. As with any presumption, the principle can be ousted by a clear statutory indication: Lee v New South Wales Crime Commission (2013) 251 CLR 196 at [313]–[314] (Gageler and Keane JJ). 8.3.29  Chief Justice Spigelman, writing extra-judicially in JJ Spigelman AC, ‘Principle of Legality and the Clear Statement Principle’ (2005) 79 Australian Law Journal 769, developed this notion of the principle of legality as a ‘unifying concept’ in statutory interpretation (at 775): The principle of legality is a unifying concept, which should be used to encompass a range of more specific interpretive principles that have been developed over many centuries of common law development of the law of statutory interpretation. Amongst the rebuttable presumptions which it may now be convenient to consider under the rubric of the principle of legality are the presumptions that parliament did not intend: • • • • • • • • • •

to invade fundamental rights, freedoms and immunities; to restrict access to the courts; to abrogate the protection of legal professional privilege; to exclude the rights to claims of self-incrimination; to permit a court to extend the scope of a penal statute; to deny procedural fairness to persons affected by the exercise of public power; to give immunities for governmental bodies a wide application; to interfere with vested property rights; to alienate property without compensation; to interfere with equality of religion.

8.3.30  The operation of the presumption against the interference with existing rights and immunities was considered in the following cases: Coco 8.3.31C; Evans 8.3.32C; and Momcilovic 8.3.33C. 8.3.31C

Coco v The Queen (1994) 179 CLR 427; 120 ALR 415 High Court of Australia

[Mr Coco, a Queensland businessman, was convicted of offering a bribe to a Commonwealth officer contrary to s 73(3) of the Crimes Act 1914 (Cth). The conviction hinged on evidence gleaned from telephone conversations that were tape-recorded via a listening device installed at premises occupied by Mr Coco and his business, Cosco Holdings Pty Ltd. The device was installed by police officers, posing as Telecom employees investigating a fault in the telephone lines. The police were purportedly acting in pursuance of an approval granted by a judge of

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the Supreme Court (Carter J) under s43(2)(c) of the Invasion of Privacy Act 1971 (Qld), which provided that a judge could grant approval ‘to use a listening device’. In deciding whether to grant approval the judge was to have regard (under s 43(3)) to the gravity of the matters being investigated, the extent to which an approval would interfere with a person’s privacy, and whether the approval might assist the prevention or detection of an offence. The High Court held that the power conferred by s 43(2) to approve the ‘use’ of a listening device did not extend to approving the installation of a device by unauthorised entry onto private premises. The evidence obtained from the tape-recording was therefore inadmissible under s 46(1) of the Invasion of Privacy Act, and Mr Coco’s conviction was quashed.] Mason CJ, Brennan, Gaudron and McHugh JJ: Every unauthorised entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right (Entick v Carrington [8.2.7C]). In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorised or excused by law. … Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorise what would otherwise have been tortious conduct … But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, as Gaudron and McHugh JJ observed in Plenty v Dillon (1991) 171 CLR at 654: ‘inconvenience in carrying out an object authorised by legislation is not a ground for eroding fundamental common law rights’. … … The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights … At the same time, curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights. The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasise that the test is a very stringent one … As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no

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implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope. Section 43 of the Queensland Act does not contain express words conferring power upon a Supreme Court judge to authorise conduct which would otherwise be tortious and involve interference with a fundamental common law right. In this case, the installation of the listening device in the premises of Cosco Holdings Pty Ltd (‘Cosco’) infringed the fundamental right of a person to exclude others from his or her property. Section 43 authorises an invasion of privacy by allowing, in certain circumstances, the monitoring and recording of private conversations. The question is whether it also allows a judge to authorise members of the police force to enter onto premises in such a way as would otherwise amount to a trespass in order to install the devices. … [The] compelling answer is that there is no clear expression in the legislation of an unmistakable and unambiguous intention to confer such a power. In our view, it cannot be said that there is to be implied in s 43 power in a judge to authorise conduct which otherwise would amount to a trespass. [Their Honours referred to US authorities, and described the scheme in Pt IV of the Invasion of Privacy Act 1971 (Qld), and continued:] The absence of any reference to a power of entry in this detailed and protective regime tells against the argument that such a power is to be implied. Further, it has not been suggested that such listening devices as existed at the time the legislation was enacted could not be used without making entry for installation which would amount to a trespass. Although it may be that many devices required entry to premises for installation, this cannot be said of all devices. Further, as Dickson J observed (ibid at 557), lawful entry may be gained to the premises to effect installation through the co-operation of a person who has a legal right of entry to the premises. It follows that, in our view, the Queensland Act did not confer power on Carter J to authorise entry onto the premises of Cosco. [Deane, Dawson JJ and Toohey J delivered judgments to the same effect as the majority judgment.]

8.3.32C

Evans v State of New South Wales (2008) 168 FCR 576; 104 ALD 234; 250 ALR 33 Full Court of the Federal Court

[World Youth Day (WYD) was a week-long international festival held in Sydney, organised by the Catholic Church and attended by the Pope and thousands of young people. The World Youth Day Act 2006 (NSW) established a World Youth Day Coordination Authority. Section 58 of the Act conferred authority on the Governor to make regulations ‘necessary or convenient’ for giving effect to the Act (s 58(1)), and for regulating ‘the conduct of the public [at] World Youth Day venues and facilities’: s 58(2)(b). Regulation 7 of the World Youth Day Regulation 2008 (NSW) conferred authority on an authorised officer to ‘direct a member of the public within a World Youth Day declared area to cease conduct that … causes annoyance or inconvenience to participants in a World Youth Day event’. The applicants commenced proceedings for a declaration that reg 7 was invalid. They claimed that it would inhibit their freedom of protest — for example, to distribute material

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about sexual tolerance, contraception, reproductive freedom, and the stance of the Catholic Church on those issues; to distribute condoms and other items; and to wear badges and stickers with slogans such as ‘I know Gays are great — Is that annoying?’, ‘I don’t believe Mary was a virgin — Is that annoying?’ and ‘I don’t believe the Pope is infallible — Is that annoying?’ The court granted a declaration that reg 7 was invalid.] French, Branson and Stone JJ: [Section 58(1) authorises regulations] ‘necessary or convenient … for carrying out or giving effect to this Act’. This requires that there be some rational relationship between the regulation and the powers, obligations and liabilities created by the Act [or] an object or purpose of the WYD Act … There is no definition of ‘conduct’ in the Act. In some statutes that word is given a very expansive meaning including doing or refusing to do any act … The applicable ordinary English meaning in the definition of conduct as a noun in the New Shorter Oxford English Dictionary is: ‘Manner of conducting oneself; behaviour; esp in its moral aspect.’ The term is wide enough, in its ordinary meaning, to encompass any observable act that a human being can do. It may therefore include physical actions such as running or walking. It extends to various forms of communication including speaking, singing, shouting, holding up placards, distributing pamphlets or stickers or other objects to make a point or wearing some form of apparel which conveys a message by bearing some form of writing or which otherwise conveys some sort of message. Unconstrained by any limiting principle of construction, the power conferred by s 58(2)(b), taken in isolation, could be used to make a regulation enjoining silence at World Youth Day venues and facilities or mandating prayer. However there are constraints. It is difficult to see how such a wide application of the words in s 58(2)(b) would be consistent with the requirement in s 58(1) that the regulations be ‘necessary or convenient … for carrying out or giving effect to this Act’ or within the scope and objects of the Act. In this case however there is an important principle independent of such constraints, which limits the power to regulate conduct. The term ‘regulating … the conduct of the public’ is capable of a range of constructions from the regulation of any conceivable conduct to the regulation of conduct relevant to the events on World Youth Day. It may encompass acts and some or all forms of speech and communication. There are constructional choices open. It is an important principle that Acts be construed, where constructional choices are open, so as not to encroach upon common law rights and freedoms. That principle dates back to the statement in Potter v Minahan [see 8.3.9] … There has been some discussion whether ‘fundamental principles’ constitute a reliable criterion for a principle favouring one statutory construction over another. McHugh J, who joined in the joint judgment in Coco [8.3.31C] … observed in Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 (at [28]): What is fundamental in one age or place may not be regarded as fundamental in another age or place. [The more comprehensive quotation is at 8.3.36.] And further (at [29]): Hallowed though the rule of construction referred to in Potter v Minahan may be, its utility in the present age is open to doubt in respect of laws that ‘infringe rights, or depart from the general system of law’. In those areas, the rule is fast becoming, if it is not already, an interpretative fiction. Such is the reach of the regulatory state that

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it is now difficult to assume that the legislature would not infringe rights or interfere with the general system of law … [W]e observe that the legislature, through the expert parliamentary counsel who prepare draft legislation, may be taken to be aware of the principle of construction in Potter. … In Australia, the exercise of legislative power, whether primary or delegated, takes place, as it does in England, in the constitutional setting of ‘a liberal democracy founded on the traditions and principles of the common law’: R v Secretary of State for Home Department; Ex parte Pierson [1998] AC 538 at 587 … Whatever debate there may be about particular rights there is little scope, even in contemporary society, for disputing that personal liberty, including freedom of speech, is regarded as fundamental subject to reasonable regulation for the purposes of an ordered society. The freedoms associated with personal liberty are not residual, ie what is left beyond the boundaries of legal regulation. In Haneef (2007) 163 FCR 414 the Court quoted with approval the observation that … Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction. The common law, then, has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal … Freedom of speech and of the press has long enjoyed special recognition at common law. … In the context of World Youth Day it is necessary to acknowledge that another important freedom generally accepted in Australian society is freedom of religious belief and expression. Section 116 of the Constitution bars the Commonwealth from making any law prohibiting the free exercise of any religion. This freedom is recognised in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights … It is not necessary for present purposes to define comprehensively the limits of the classes of regulations that may or may not be made under the head of power in s 58(2)(b). No doubt conduct could validly be regulated which involves disruption of, or interference with, the free expression of religious beliefs by participants in WYD events. Clause 7(1)(c) relating to obstruction of WYD events is properly directed to such ends. Nor could there be any complaint, in terms of its reach, against cl 7(1)(a) concerning conduct that is a risk to the safety of a person within a World Youth Day declared area or others. The principal issue in relation to cl 7(1) is its application under cl 7(1)(b) to conduct that ‘causes annoyance … to participants in a World Youth Day event’. The term ‘annoy’ as defined in the Shorter Oxford English Dictionary relevantly means: ‘To affect so as to ruffle, trouble, vex’. Annoyance has a corresponding meaning. The Macquarie Dictionary defines ‘annoy’ as: ‘To disturb in a way that is displeasing, troubling or slightly irritating’. Conduct which may attract a direction under cl 7(1)(b) is conduct which ‘causes annoyance … to participants in a World Youth Day event’. That is to say it is conduct which actually results in its observers being ruffled, troubled, vexed, disturbed, displeased or slightly irritated. These are responses which depend very much on the individuals concerned. Some may find protests of the kind which are proposed by the applicants mildly amusing. Others may be practising Catholics or Christians who agree with some of the protestors’ points and are not troubled by them. There may be others who find the protests irritating and who are, in the relevant sense, annoyed by them. Annoyance to ‘participants’ within the meaning of the

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Regulation may be annoyance to many or a few. There is no objective criterion to assist the judgment of ‘an authorised person’ in deciding whether to issue a direction under cl 7. There may be circumstances in which it would be difficult if not impossible for a person to whom a direction is given to know whether his or her conduct was such as to authorise the giving of the direction. It is little consolation to the person affected by a direction that he or she could argue the point later in a prosecution in a court of law as the State suggested. In our opinion the conduct regulated by cl 7(1)(b) 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 in the sense traditionally used in State criminal statutes. Breach of this provision as drafted affects freedom of speech in a way that, in our opinion, is not supported by the statutory power conferred by s 58 properly construed. Moreover there is no intelligible boundary within which the ‘causes annoyance’ limb of s 7 can be read down to save it as a valid expression of the regulating power.

8.3.33C

Momcilovic v The Queen (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 High Court of Australia

[The facts are discussed at 4.4.21. The High Court, by majority (French CJ, Gummow J, Hayne J, Crennan and Kiefel JJ, Bell J; Heydon J dissenting) found that s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which imposes a legal burden of proof on an accused person, had no application to the offence under which Ms Momcilovic was charged.] French CJ: The common law in its application to the interpretation of statutes helps to define the boundaries between the judicial and legislative functions. That is a reflection of its character as ‘the ultimate constitutional foundation in Australia’. It also underpins the attribution of legislative intention on the basis that legislative power in Australia, as in the United Kingdom, is exercised in the setting of a ‘liberal democracy founded on the principles and traditions of the common law’. It is in that context that this court recognises the application to statutory interpretation of the common law principle of legality. The principle of legality has been applied on many occasions by this court. It is expressed as a presumption that parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which parliament may be accountable to the electorate. It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law. The range of rights and freedoms covered by the principle has frequently been qualified by the adjective ‘fundamental’. There are difficulties with that designation. It might be better to discard it altogether in this context. The principle of legality, after all, does not constrain legislative power. Nevertheless, the principle is a powerful one. It protects, within  constitutional limits, commonly accepted ‘rights’ and ‘freedoms’. It applies to the rules of procedural fairness in the exercise of statutory powers. It applies to statutes affecting courts in relation to such matters as procedural fairness and the open court principle, albeit its application in such cases may be subsumed in statutory rules of interpretation which require that, where necessary, a statutory provision be read down so as to bring it within the limits of constitutional power. It has also been suggested that it may be linked to a presumption of consistency between statute law and international law and obligations.

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The common law ‘presumption of innocence’ in criminal proceedings is an important incident of the liberty of the subject. The principle of legality will afford it such protection, in the interpretation of statutes which may affect it, as the language of the statute will allow. A statute, which on one construction would encroach upon the presumption of innocence, is to be construed, if an alternative construction be available, so as to avoid or mitigate that encroachment. On that basis, a statute which could be construed as imposing either a legal burden or an evidential burden upon an accused person in criminal proceedings will ordinarily be construed as imposing the evidential burden. The rights and freedoms of the common law should not be thought to be unduly fragile. They have properly been described as ‘constitutional rights, even if … not formally entrenched against legislative repeal’. Nevertheless, statutory language may leave open only an interpretation or interpretations which infringe one or more rights or freedoms. The principle of legality, expressed as it is in terms of presumed legislative intention, is of no avail against such language. … For present purposes the relevant aspect of the presumption, both at common law and as declared in s 25(1), is that expressed in the imposition on the prosecution of the legal burden of proof of guilt in criminal proceedings. One consequence of that identity of content is that the protective operation of the common law principle of legality with respect to the common law presumption also protects the relevant expression of the Charter right to be presumed innocent. As appears below, however, that protective operation is ineffective against the clear language of s 5. Heydon J: Pursuant to the principle of legality, the common law of statutory interpretation requires a court to bear in mind an assumption about the need for clarity if certain results are to be achieved, and then to search, not for the intention of the legislature, but for the meaning of the language it used, interpreted in the context of that language. The context lies partly in the rest of the statute (which calls for interpretation of its language), partly in the pre-existing state of the law, partly in the mischief being dealt with and partly in the state of the surrounding law in which the statute is to operate. The search for ‘intention’ is only a search for the intention revealed by the meaning of the language. It is not a search for something outside its meaning and anterior to it which may be used to control it. The same is true of another anthropomorphic reference to something which is also described as a mental state but in this field is not — ‘purpose’.

8.3.34  There are two aspects to the presumption applied in Coco 8.3.31C, Evans 8.3.32C and Momcilovic 8.3.33C: legislation is presumed not to alter the common law except to the extent specified clearly in a statute, and express statutory authority is required to abrogate or curtail a fundamental right, freedom or immunity. Australian law is replete with examples that illustrate the diversity of situations to which that presumption has been applied. Potter v Minahan 8.3.9 held that the common law right of a person born in Australia to re-enter the country (20 years later) had not been extinguished by legislation requiring those seeking to enter to undertake an immigrant dictation test. Plenty v Dillon (1991) 171 CLR 635 (discussed in Coco) held that a statute authorising an officer to serve a summons personally or by leaving it at a person’s place of residence or business did not authorise the officer to enter the person’s private property against their direction. Kuru v NSW (2008) 236 CLR 1 held that legislation authorising police to enter premises on the invitation of the occupier did not authorise them to remain after permission was revoked. Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 held that the commissioner’s statutory authority to use telephone intercept information when inquiring into 465

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whether there had been misbehaviour or improper conduct by a police officer, did not extend to using that information in deciding whether to reappoint the officer. Sorby v Commonwealth (1983) 152 CLR 281 held that a general power conferred on a royal commissioner to require evidence would not compel a witness to answer a question in respect of which the witness claimed the privilege against self-incrimination. Re Minister for Immigration and Multicultural Affairs; Ex parte Miah 11.2.19C held that the creation of a statutory hearing procedure did not of itself evince a legislative intent to displace additional procedural obligations that would be imposed by the common law doctrine of natural justice. Melbourne Corporation v Barry (1923) 31 CLR 174 held that the common law right to engage in a public procession meant that a statutory power to regulate processions did not extend to banning processions. Similarly, Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343 held that a statutory power authorising compulsory acquisition of an interest in property is to be read subject to an implication that compensation must be paid. Lee v The Queen (2014) 308 ALR 252, X7 v Australian Crime Commission (2013) 248 CLR 92 and R v OC (Oliver Curtis) [2015] NSWCCA 212 similarly held that it was a fundamental principle of the common law that the prosecution must prove the guilt of the accused person, and the prosecution could not therefore use evidence obtained using compulsory examination powers. See also Cunneen 8.2.10C, requiring a narrow construction of the power to conduct a public inquiry into alleged ‘corrupt conduct’. 8.3.35  Cases and reports concerning asylum seekers illustrate these principles. In Goldie v  Commonwealth 8.3.58C statutory authorisation was required for the detention of an unlawful non-citizen. An analogue of this principle, applied in a report of the Commonwealth Ombudsman, is that it cannot be presumed that a person is an unlawful non-citizen simply because a person of foreign ancestry has failed to provide evidence of their identity or explain how or when they came to Australia. The Ombudsman recommended that a person in that situation be released from immigration detention because the known facts did not support a ‘reasonable suspicion’ to detain him as an unlawful non-citizen: [32] An official who has to decide whether the ‘reasonable suspicion’ test in s 189 is satisfied … should take account of the public law context in which s 189 operates. Inherent in the rule of law, which is a bedrock principle of Australian law and government, is that an individual in Australian society has freedom of movement, action and thought, except as limited by law. Absent any statutory control to the contrary, a person is under no compulsion to answer a question posed by a government official, or to give a frank or truthful answer to any such question. Nor is a person obliged to reveal their identity, to maintain a consistent identity, to disclose who they are, or to explain how they happen to be in a particular location. There is both a right of silence and a freedom of self-expression. [Commonwealth Ombudsman, Two Year Detention Report to the Minister for Immigration under s 486O of the Migration Act 1958, Report No 14/2005]

8.3.36  Other issues can arise in applying the presumption. As McHugh J said in Malika Holdings Pty Ltd (2001) 204 CLR 290, referred to in Evans 8.3.32C, the concept of a ‘fundamental’ freedom or right is not necessarily fixed, some rights are more treasured than others, and in an age of legislative supremacy it is to be expected that parliament will detract from established freedoms: But times change. What is fundamental in one age or place may not be regarded as fundamental in another age or place. When community values are undergoing radical change and few principles or rights are immune from legislative amendment or abolition, as is the case in Australia today, few principles or rights can claim to be so fundamental that it 466

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is unlikely that the legislature would want to change them. No doubt there are fundamental legal principles — a civil or criminal trial is to be a fair trial, a criminal charge is to be proved beyond reasonable doubt, people are not to be arrested or searched arbitrarily, laws, especially criminal laws, do not operate retrospectively, superior courts have jurisdiction to prevent unauthorised assumptions of jurisdiction by inferior courts and tribunals are examples. Clear and unambiguous language is needed before a court will find that the legislature has intended to repeal or amend these and other fundamental principles. But care needs to be taken in declaring a principle to be fundamental. Furthermore, infringement of rights and departures from the general system of law are in a different category from fundamental principles. Some rights may be the corollaries of fundamental principles. In that sense, they are fundamental rights which are presumed to continue unless the legislative language is clear and unambiguous. But nearly every session of Parliament produces laws which infringe the existing rights of individuals. Given the frequency with which legislatures now amend or abolish rights or depart from the general system of law, it is difficult to accept that it is ‘in the last degree improbable’ that a legislature would intend to alter rights or depart from the general system of law unless it did so ‘with irresistible clearness’ … Speaking generally, a much surer guide to the legislative intention in areas of legislation dealing with ordinary rights or the general system of law is to construe the language of the enactment in its natural and ordinary meaning, having regard to its context — which will include other provisions of the enactment, its history and the state of the law — as well as the purpose which the enactment seeks to achieve.

8.3.37  For the same reason, the presumption has been the subject of sustained commentary and criticism, as illustrated in the following observations of Gageler J in, respectively, Cunneen 8.2.10C at [88] and Australian Communications and Media Authority v  Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at [67]: [88] Unfocused invocation of the common law principle of construction sometimes now labelled the ‘principle of legality’ can only weaken its normative force, decrease the predictability of its application, and ultimately call into question its democratic legitimacy.

[67] The principle insists on a manifestation of unmistakable legislative intention for a statute to be interpreted as abrogating or curtailing a right or immunity protected by the common law … Outside its application to established categories of protected common law rights and immunities, that principle must be approached with caution. The principle should not be extended to create a common law penumbra around constitutionally imposed structural limitations on legislative power.

Commentators have also noted that the classification of certain rights as ‘fundamental’ and deserving of protection is contestable and uncertain, as illustrated in the following example: Some common law rights, though understandable as the legacy of a common law history, do not indisputably have intrinsic worth. That may be said, for example, of the possessory title of a person at common law to retain the proceeds of an illegal activity, such as narcotics or gambling. Is there a public interest in preserving that right against legislative intrusion unless it is ‘unmistakable and unambiguous’? Is it ‘in the last degree improbable’ that the legislature would abolish the right? To take a case in point, should courts lean towards a narrow interpretation of the forfeiture and confiscation provisions in legislation such as the Proceeds of Crime Act 1987 (Cth)? [ J McMillan, ‘Parliament and Administrative Law’ in G Lindell and R Bennett (eds), Parliament: The Vision in Hindsight, Federation Press, Sydney, 2001] 467

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Generally, the protection of the rights under the guise of presumed legislative intention raises questions about the normative basis of the principle: D  Meagher, ‘The Principle of Legality as Clear Statement Rule: Significance and Problems’ (2014) 36 Sydney Law Review 413; B Lim, ‘The Normativity of the Principle of Legality’ (2013) 37 Melbourne University Law Review 372; D Meagher, ‘The Common Law Principle of Legality in the Age of Rights’ (2011) 35 Melbourne University Law Review 449; and M Groves, ‘Judicial Review and Human Rights’ (2018) 25 Australian Journal of Administrative Law 1.

Human rights considerations 8.3.38  More explicit emphasis is now given to human rights considerations in administrative decision-making and statutory construction. There are now ‘lists’ of human rights or personal freedoms, in documents such as the International Covenant on Civil and Political Rights (ICCPR) which is scheduled to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and the seven international covenants and conventions used by the Human Rights Consultative Committee of the Australian Parliament when assessing legislation. See  also Human Rights Act  2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic) 8.3.17; and the list of ‘Traditional rights, freedoms and privileges’ identified by the Australian Law Reform Commission (ALRC) in Traditional Rights and Freedoms — Encroachments by Commonwealth Laws Final Report, Report No 129, March 2015, at [1.4]. Complaints about infringement of human rights can also be taken to a range of different bodies, including human rights and anti-discrimination commissions, the United Nation Human Rights Committee, and parliamentary committees (such as the federal Parliamentary Joint Committee on Human Rights). 8.3.39  The formal status of human rights considerations in judicial review of administrative decision-making is indeterminate. Some human rights standards are incorporated into domestic legislation (such as anti-discrimination laws) and can accordingly give rise to reviewable issues; see, for example, Wotton v Queensland (No 5) (2016) 157 ALD 14 in which damages were awarded under the Racial Discrimination Act 1975 (Cth) following the death of an Aboriginal person in custody on Palm Island. A more broad-ranging submission, that human rights considerations should be treated as a mandatory relevant consideration, was rejected by the Full Federal Court in Kioa v  West (1984) 4 FCR 40. Justice Northrop and Wilcox J commented: ‘We see no basis in law for the conclusion that, by reason of the Human Rights Commission Act, the delegate was obliged specifically to turn his attention to the various rights and principles enunciated in the relevant international agreements’: at  53; compare Jenkinson J at 62. Statements to a like effect were made in the High Court: see Kioa v West 11.2.16C at 570–1 (Gibbs CJ), 629 (Brennan J); and a similar approach was adopted by the House of Lords in R  v Secretary of State for the Home Department; Ex parte Brind [1991] 1 AC 696. Claims based on particular international conventions have also failed. For example, as French  CJ observed in Plaintiff M47/2012 v Director General of Security 8.4.7C of the Refugees Convention: ‘It is … well settled that the Convention does not impose an obligation upon Contracting States to grant asylum to refugees arriving at their borders’: at [44]. When a convention applies, there can also be differences of opinion as to whether a particular claim falls within the scope of the convention. This is illustrated by Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, in which the High Court

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split 3:2 in ruling that a couple who feared forced sterilisation under China’s ‘one child policy’ did not satisfy the definition of ‘refugee’. 8.3.40  The view of the Full Federal Court in Kioa (that human rights are not a mandatory relevant consideration) has not been disapproved in any later case. Nonetheless, principles were found that could work in an opposing direction, notably the ruling of the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh 11.3.7ff that the ratification of an international human rights convention gave rise to a legitimate expectation for Australians that administrative discretionary powers will be exercised in conformity with the terms of the convention. That principle, as a touchstone of procedural fairness, has since been discarded by the High Court, as captured in the following observation of Kiefel, Bell and Keane  JJ in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [28]: ‘The use of the concept of “legitimate expectation” as the criterion of an entitlement to procedural fairness in administrative law has been described in this Court as “apt to mislead”, “unsatisfactory” and “superfluous and confusing” [and as a concept that] “poses more questions than it answers”’. See also Plaintiff S10/2011 v Minister for Immigration and Citizenship (2003) 214 CLR 1. 8.3.41  In summary, the role to be accorded to human rights considerations in a decision can vary according to the nature of the case, the method of statutory construction that is undertaken, and the forum in which the issue is raised. This point was made by McMillan and Williams: The importance of universal human rights norms to Australian administrative law is in an uneasy balance. If Parliament is presumed to legislate consistently with those norms, if they can influence the development of the common law, and if there is a right of complaint internationally to the Human Rights Committee against Australian legislation and executive practices that contravene the International Covenant on Civil and Political Rights, it is inescapable that human rights norms will continue to play a central if unpredictable role in review of administrative decision-making. The schism between what courts do, and what courts say they are doing, is an important consideration too. In cases which involve personal liberty or human rights, or which for other reasons may attract judicial sympathy for an applicant, an approach which is based purely on legal doctrine may be an inadequate basis for predicting the outcome. The human rights dimension of the case will always be a potentially significant premise in the decision, even in ways that cannot be foreseen by reference solely to established principle or earlier cases. [ J  McMillan and N  Williams, ‘Administrative Law and Human Rights’ in D Kinley (ed), Human Rights in Australian Law, Federation Press, Sydney, 1998, p 63]

Pecuniary burdens and penalties 8.3.42  The constitutional principle, stemming from Art 4 of the Bill of Rights 1689 (Imp), that parliament must authorise the levying of money, finds expression as a principle of statutory construction, as illustrated by Attorney-General v  Wilts United Dairies Ltd (Wilts) 8.3.43C. Article 4 states ‘[t]hat levying money for or to the use of the Crown by pretence of prerogative without grant of Parliament for longer time or in other manner than the same is or shall be granted is illegal’.

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Attorney-General v Wilts United Dairies Ltd (1921) 37 TLR 884 United Kingdom Court of Appeal

[As part of the war mobilisation effort, a system was imposed by the Food Controller (a government minister) to regulate the sale and distribution of milk in the United Kingdom. Its object was to preserve the viability of the milk-producing industry nationwide, by protecting less profitable milk-producing zones against direct competition from more profitable zones. The method adopted was a licensing scheme, including a licence condition that 2d per gallon be paid for all milk purchased in a profitable zone (such as Devon and Cornwall) for sale in a less profitable zone. The Food Controller contended that the condition was supported by legislation (including the Defence of the Realm Act) which authorised him to regulate the supply and consumption of food in such manner as he thought best; and to issue licences subject to such conditions as he may determine. The Court of Appeal held that the condition was invalid and unenforceable.] Atkin LJ: [I]f an officer of the executive seeks to justify a charge upon the subject made for the use of the Crown … he must show, in clear terms, that Parliament has authorised the particular charge. The intention of the Legislature is to be inferred from the language used, and the grant of powers may, though not expressed, have to be implied as necessarily arising from the words of a statute; but in view of the historic struggle of the Legislature to secure for itself the sole power to levy money upon the subject, its complete success in that struggle, the elaborate means adopted by the Representative House to control the amount, the conditions and the purposes of the levy, the circumstances would be remarkable indeed which would induce the court to believe that the Legislature had sacrificed all the well-known checks and precautions, and, not in express words, but merely by implication, had entrusted a Minister of the Crown with undefined and unlimited powers of imposing charges upon the subject for purposes connected with his department … I have no doubt whatever as to the good faith of the Food Controller. His intentions in making this charge may have been excellent, but he adopted methods which, in my opinion, are unconstitutional and contrary to law, and his agreements cannot be enforced. [Scrutton LJ and Bankes LJ delivered a judgment to the same effect. The decision of the Court of Appeal was affirmed by the House of Lords: (1922) 91 LJKB 897. Lord Buckmaster, in whose judgment the other Lords concurred, observed that ‘the character of this payment [is] a payment which certain classes of people were called upon to make for the purpose of exercising certain privileges, and the result is that the money so raised can only be described as a tax the levying of which can never be imposed upon subjects of this country by anything except plain and direct statutory means’: at 900.]

8.3.44  Some members of the High Court applied the decision in Wilts 8.3.43C in holding invalid a wartime measure whereby the government, without explicit statutory support, consented to the sale of wool in return for a share of the profits of the transaction: Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421. Justice Isaacs noted the breadth of the principle being applied: ‘No distinction exists whether we say the money is a “tax” or a “burden”, whether it is “imposed”, “levied”, “exacted” or “extorted”. Nomenclature is immaterial; substance is all important.’: at  463. To the same effect was a finding by the 470

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Commonwealth Ombudsman, upholding a complaint that the Department of Immigration had acted unlawfully by imposing a $240 fee on anyone appealing to the Immigration Review Panel. Both the panel and the fee had been created by executive action. The Ombudsman concluded that the fee was unlawful as a tax levied without specific parliamentary approval: Annual Report 1988–89, pp 87–9. 8.3.45  How far is this principle to be applied? Can a government agency, acting only in reliance on the executive power (see  Chapter 9) or the incidental power (see  8.3.23), impose a ‘user pays’ charge on access to public museums, or for government business services? The issue was addressed by the House of Lords in McCarthy & Stone (Developments) Ltd v London Borough of Richmond on Thames [1992] 2 AC 48. The court held invalid a fee of £25 that the council charged any developer wishing to have a meeting with council officers to discuss lodging a formal application for planning permission. The court held that the principle from Wilts 8.3.43C applied because the council was imposing a charge for a council function or service, as distinct from a commercial transaction or business. It mattered not that the council had no duty to provide the consultation function. There is a fine line between a fee and a tax, as  illustrated by Marsh v  Shire of Serpentine-Jarrahdale (1966) 120 CLR 572 in which the High Court held that a statutory power to fix a licence ‘fee’ for use of a quarry did not authorise a charge based on the quantity of material quarried: a charge of that kind was a tax, not a fee.

Access to the courts 8.3.46  Access to the courts to assert a legal claim is regarded as a fundamental right or entitlement. Accordingly, there is a well-established presumption that ‘the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied’: Public Service Association (SA) v Federated Clerks’ Union (SA) (1991) 173 CLR 132 at 160 (Dawson and Gaudron JJ). Similarly, legislation that would deny access to the courts, contrary to the rule of law, is also strictly construed: R (Unison) v Lord Chancellor [2018] 3 WLR 409 at [68], [74]–[77]. This presumption of preserving access to the courts is especially relevant to the construction of privative clauses, a matter examined in Chapter 16; see Plaintiff S157/2002 v Commonwealth of Australia 16.3.17C and Kirk v Industrial Relations Commission of New South Wales  16.4.18C. The presumption is applied in other situations too. For example, Woodward 8.2.9C held that the courts’ supervisory jurisdiction to review the legality of ASIO activity had not been excluded. Shergold v Tanner (2002) 209 CLR 126 held that a statement in the FOI Act, that a certificate ‘establishes conclusively’ that a document is exempt from disclosure, did not work an implied repeal of the jurisdiction of the Federal Court conferred by the ADJR Act to review a decision to issue a certificate. It is presumed that foreign citizens in Australia have access to the courts, as noted by Heydon J in Plaintiff M47/2012 8.4.7C that an ‘unlawful non-citizen … is not an “outlaw” and … has access to the Australian legal system’: at [391]; see also Gummow J at [88]. Johnson v Director-General of Social Welfare (Vic) (1976) 135 CLR 92 held that a provision stating that the Director-General ‘shall have the sole right to the custody of any child or young person admitted to the care of the Department’ did not exclude the inherent jurisdiction of a superior court to make a guardianship order. Barwick CJ (other justices concurring) observed: If the legislatures, in their wisdom, should decide that the court ought to be entirely excluded and the matter be left entirely to departmental officers then, of course, Parliament can say so. For my part, it will need to do so in the clearest language. 471

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Statutory phraseology cast in ‘state of mind’ and in ‘subjective’ terms 8.3.47  It is common for legislation to employ what is often described as ‘state of mind’ or ‘subjective’ language. Commonplace examples include: ‘if the Minister is satisfied’, ‘if the Secretary has reasonable cause to believe’, and ‘if in the opinion of the officer’. Qualifying language of that kind is ordinarily used in legislation where the issue to be determined is discretionary, often policy-driven, or where the decision-maker must reach a state of satisfaction taking account of a range of statutory criteria which require the exercise of judgement in order to reach a decision. 8.3.48  The meaning and effect to be attributed to subjective language of that kind raises a question as to the role of a court undertaking judicial review. The issue has both an historical and a doctrinal dimension, as illustrated by the sharp differences of opinion reached by the House of Lords in a leading wartime decision, Liversidge v Anderson [1942] AC 206. A defence regulation provided that a minister could order that a person be detained if the minister had ‘reasonable cause to believe any person to be of hostile origin or associations … and that by reason thereof it is necessary to exercise control over him’. Mr Liversidge was one of over 1400 people who were detained in a four-month period in 1940 (on grounds that were shown by later archival research to have been inadequate, as known by the authorities: AWB  Simpson, In the Highest Degree Odious: Detention Without Trial in Wartime Britain, Oxford University Press, 1992, pp 333–41, 353–6, 362–6). Mr Liversidge commenced proceedings, seeking a declaration that his detention was unlawful and damages for false imprisonment. As an element of those proceedings, he sought particulars of the grounds on which the minister’s detention order was made. The House of Lords held (Lord Atkin dissenting) that particulars were not required, for the practical reason that a court could not review the manner in which the power conferred by the regulation had been exercised by the secretary. Matters that were mentioned in support of that conclusion were that the power to detain was an exceptional war measure; the power was conferred on a minister answerable to the parliament; and the issue to be decided by the minister was a matter of opinion and policy, not fact. An illustrative comment was that of Lord Wright: [A]gainst all these arguments the appellant relies on the use of the word ‘reasonable’ as qualifying the ‘cause to believe’. It is said that ‘reasonable’ necessarily implies an external standard to be applied by someone other than the Secretary, namely by a judge. I cannot accept that contention, which seems to me to subordinate the whole substance of the enactment to a single word, which itself is ambiguous and inconclusive. The word ‘reasonable’ does indeed imply instructed and intelligent care and deliberation, the choice of the course which reason dictates. But the choice is not necessarily that of an outsider. If I am right in my view of the effect of the regulation, the choice can only be the choice of the minister. All that the word ‘reasonable,’ then, means is that the minister must not lightly or arbitrarily invade the liberty of the subject. He must be reasonably satisfied before he acts, but it is still his decision and not the decision of anyone else. If in ordinary affairs I say that I reasonably believe in the truth of certain facts or in the propriety of certain conduct, I am prima facie adopting as my reason my own judgment.

8.3.49  History, however, has vindicated the forceful dissent of Lord Atkin in Liversidge in which he expresses a sentiment that reverberates through public law: It is surely incapable of dispute that the words ‘If A has X’ constitute a condition the essence of which is the existence of X and the having of it by A. … [T]he words do not mean and cannot mean ‘If A thinks that he has.’ ‘If A has a broken ankle’ does not mean and 472

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cannot mean ‘If A thinks that he has a broken ankle.’ ‘If A has a right of way’ does not mean and cannot mean ‘If A thinks that he has a right of way.’ ‘Reasonable cause’ for an action or a belief is just as much a positive fact capable of determination by a third party as is a broken ankle or a legal right. If its meaning is the subject of dispute as to legal rights, then ordinarily the reasonableness of the cause and even the existence of any cause, is in our law to be determined by the judge and not by the tribunal of fact if the functions [of ] deciding law and fact are divided. … I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive. Their function is to give words their natural meaning, not, perhaps, in war time, leaning towards liberty, but following the dictum of Pollock CB in Bowditch v Balchin (1850) 5 Ex 378 … at p 381: ‘In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.’ In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case, I have listened to arguments which might have been addressed acceptably to the Court of the King’s Bench in the time of Charles I. I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister. To recapitulate: The words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them. They are used in the Defence Regulations in the natural meaning, and, when it is intended to express the meaning now imputed to them, different and apt words are used in the regulations generally and in this regulation in particular. Even if it were relevant, which it is not, there is no absurdity, or no such degree of public mischief as would lead to a non-natural conclusion. I know of only one authority which might justify the suggested method of construction: ‘“When I use a word”, Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master — that’s all.”’ (Through The Looking-Glass, c  vi) After all this long discussion the question is whether the words ‘If a man has’ can mean ‘If a man thinks he has.’ I am of the opinion that they cannot, and the case should be decided accordingly.

Lord Atkin’s dissenting judgment has been resoundingly endorsed in subsequent cases in Britain and Australia and has led to courts restricting the exercise of discretionary powers: M  Groves, ‘The Principle of Legality and Administrative Discretion: A  New Name for an Old Approach?’ in D  Meagher and M  Groves (eds), The Principle of Legality in Australia and New Zealand, Federation Press, Sydney, 2017, ch  9. The wartime context of Liversidge is acknowledged, but otherwise the majority’s stance usually attracts firm rejection: Nakkuda Ali v Jayaratne [1951] AC 66 at 76 (Lord Radcliffe) (PC); and Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 1024 (HL). Australian courts have endorsed the dissenting judgment of Lord Atkin in Liversidge but have otherwise taken a different approach to the construction of ‘state of mind’ provisions, tying them to grounds of judicial review. The leading Australian authorities are R  v  Connell; Ex parte The Hetton Bellbird Collieries Ltd (Connell) 8.3.50C and George v Rockett 8.3.56C. 473

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R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 High Court of Australia

Latham CJ: [W]here 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 it is shown that the opinion actually formed is not an opinion of this character, 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. Thus, in the case of certain provisions in the Income Tax Assessment Act which make the opinion of the Commissioner of Taxation a condition of the imposition of liability upon taxpayers, it has been held that the opinion referred to is an opinion which is neither arbitrary nor extravagant, and which does not take into account considerations which, upon the true construction of the statute, are irrelevant. In Metropolitan Gas Co v Federal Commissioner of Taxation (1932) 47 CLR 621 Gavan Duffy CJ and Starke J, referring to a provision in the Income Tax Assessment Act which provided that a certain deduction from assessable income could not be made unless the Commissioner was satisfied of particular facts, said (at 632): ‘It is the Commissioner that must be satisfied, not this Court; but he must act “according to the rules of reason and justice, not according to private opinion …; according to law, and not humour” he must not act in a vague or fanciful manner, but legally and regularly.’ … It is therefore well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form. Unless such a rule were applied legislation of this character would mean that the person concerned had an absolutely uncontrolled and unlimited discretion with respect to the extent of his jurisdiction and could make orders which had no relation to the matters with which he was authorised to deal. It should be emphasised that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to enquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide. [Williams J commented to the same effect; Rich J agreed with Williams J.]

8.3.51  The approach outlined by Latham CJ in Connell 8.3.50C, building as it does upon other Australian case law, has been cited and applied many times by Australian courts. Yet the practical significance of this line of reasoning is not easy to gauge. On the one hand, as explained in Connell, a ‘state of mind’ formula does not prevent judicial review on the ground that an incorrect test was applied, an irrelevant matter was considered, or on one of the other judicial review grounds. How different is that from the standard role of a court undertaking judicial review? On the other hand, courts frequently state that a state of mind formula amplifies the scope of a decision-maker’s authority to decide, with a corresponding impact on the role of a 474

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court in judicial review. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang 7.5.20C at 276, Brennan  CJ, Toohey, McHugh and Gummow  JJ in a joint judgment observed that ‘while the subjective nature of [a] decision no longer can be said to immunise the decision from review, it is necessarily of relevance to the issue of whether there has been an error of law’. Their Honours also approved the following oft-cited statement by Gibbs CJ in Buck v Bavone (1976) 135 CLR 110 as an accurate statement of principle: It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.

A gloss on this passage was provided by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611: This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way … Where the issue whether a statutory power was enlivened turns upon the further question of whether the requisite satisfaction of the decision-maker was arrived at reasonably … I would prefer the scrutiny of the [decision-maker’s reasons] by a criterion of ‘reasonableness review’. This would reflect the significance attached earlier in these reasons to the passage extracted from the judgment of Gibbs J in Buck v Bavone. It would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds.

8.3.52  A similar and frequently cited view to that expressed by Gibbs CJ in Buck v Bavone was expressed by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, with particular reference to a power that was conditioned upon a state of satisfaction reached by the Commissioner of Taxation: If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent 475

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the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

Some of the points made by Dixon J intersect with other principles considered elsewhere in this book. In particular, a court may infer a decision-maker’s state of mind from actions and documents where no reasons are given: see 10.3.26 and Commonwealth v Okwume [2018] FCAFC 69 at [325]. The state of mind required to exercise a power can vary according to the principle enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336, considered at 3.4.20. Another intersecting principle is that, if the decision-maker required to form a particular state of mind is a corporate entity, an officer of that entity responsible for the decision must be identified: Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421 at [31]. 8.3.53  A state of mind formula can limit the scope for judicial review, but it can also impose a reviewable obligation on the decision-maker. This is illustrated by the High Court’s decision in Osland v Secretary to the Department of Justice (2010) 241 CLR 320 10.3.11. Section 50(4) of the Freedom of Information Act  1982 (Vic) permitted VCAT to grant access to exempt documents ‘where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act’. In construing s 50(4) the High Court said: French CJ, Gummow and Bell JJ: Relevantly to this appeal, the exercise of the power conferred by s 50(4) requires satisfaction of two conditions. The first is the condition that, as a matter of law, the material before the Tribunal is capable of supporting the formation by it of an opinion that the public interest requires that access to the documents should be granted. That condition may also be expressed as a limitation, namely, that the opinion referred to by the sub-section is an opinion which is such that it can be formed by a reasonable decisionmaker who correctly understands the meaning of the law under which that decision-maker acts. The second condition is that the Tribunal actually forms the opinion that the public interest requires that access to the documents should be granted. This is an evaluative and essentially factual judgment. If the Tribunal forms the requisite opinion, its power to grant access is enlivened. In the ordinary case, the exercise of the power will be subsumed in the formation of the necessary opinion.

The first condition identified in Osland — that there is material before a decision-maker capable of supporting a particular opinion — was applied in Congoo v Minister for Immigration and Border Protection (2015) 257 CLR 22 to invalidate a decision cancelling a student visa. The decision-maker had to be ‘satisfied’ that the student had breached a visa condition, but could not have been because the registered education provider had not recorded the student’s enrolment in the database as required under legislation. 8.3.54  Another way of qualifying a state of mind provision is to invoke the principle enunciated by French CJ in Minister for Immigration and Citizenship v Li 15.2.18C at [24]: ‘Every discretion has to be exercised, as Kitto J put it in R v Anderson; Ex parte Ipec-Air Pty Ltd, according to “the rules of reason”.’ Justice Greenwood relied on that principle in Jones v Office of 476

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the Australian Information Commissioner [2014] FCA 285 at [20] to say that an administrative discretion conditioned on the Commissioner’s satisfaction of particular matters, ‘requires the Information Commissioner to be satisfied, according to the rules of reason, that the “specific requirements” of the “express statutory conditions” are established by the material upon which he or she relies’. (Emphasis in original.)

The statutory requirement for ‘reasonable grounds’ to support a decision 8.3.55  The following four cases illustrate the pervasive and practical importance of the statutory requirement that there be ‘reasonable grounds’ to support a decision. In effect, the term ‘reasonable’ facilitates judicial review of the exercise of the power. In George v  Rockett 8.3.56C a search warrant to enter private property could be issued if there were ‘reasonable grounds’ to support the warrant; the question in McKinnon v Secretary, Department of Treasury 8.3.57C was whether there were ‘reasonable grounds’ to support a conclusive certificate issued under freedom of information legislation; in Goldie 8.3.58C an immigration officer had a duty to detain a person if the officer held a ‘reasonable suspicion’ that the person was an unlawful non-citizen; and in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 8.3.59, a finding of corrupt conduct could be made against a public official if there were ‘reasonable grounds’ for the particular finding. The point emphasised in all four cases is that the term ‘reasonable’ introduces an objective test, which increases the rigour expected of a decisionmaker and, correspondingly, sets a standard against which a court can assess compliance. For example, a decision-maker must be able to point to objective circumstances that support the decision; factors that count against a decision being made must be outweighed by factors that support the decision; and, as discussed in Goldie, there may be a duty upon an officer to conduct an inquiry to resolve an inconsistency in the material known to the officer. 8.3.56C

George v Rockett (1990) 170 CLR 104; 93 ALR 483 High Court of Australia

[Section 679 of the Criminal Code (Qld) provided that a Justice of the Peace could issue a search warrant to enter premises: ‘If it appears to a justice, on complaint made on oath, that … there are reasonable grounds for believing’ that an item within the premises would afford evidence as to the commission of an offence. A search warrant was issued to Mr Rockett to search the premises of Mr George (a solicitor) to obtain documents that might disclose perjury by the former Queensland Commissioner of Police (Sir Terence Lewis) in evidence given to the Fitzgerald Inquiry into police corruption in Queensland. The High Court held that the search warrant was invalidly issued, as the complaint on oath sworn by Mr Rockett merely asserted that an offence may have been committed without reciting facts to support a justice forming that belief.] Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ: A search warrant … authorises an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and

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property … [T]he enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation … The opening words of s 679 — ‘If it appears to a justice’ — impose on a justice to whom an application for a search warrant is made the duty of satisfying himself that the conditions for the issue of the warrant are fulfilled … When the justice is so satisfied and a warrant is issued, the warrant should express the justice’s satisfaction that there are reasonable grounds for the suspicion and belief. … When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin’s famous, and now orthodox, dissent in Liversidge v Anderson … That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers … It follows that the issuing justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind … The objective circumstances sufficient to show a reason to believe something need to point … to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

8.3.57C

McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; 229 ALR 187 High Court of Australia

[The Freedom of Information Act 1982 (Cth) conferred power upon a minister to issue a certificate that conclusively established that disclosure of an internal working document would be contrary to the public interest. There was a right of appeal on the issue of a conclusive certificate to the Administrative Appeals Tribunal. The tribunal’s role was limited to determining ‘whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest’: s 58(5). The High Court held by majority that the tribunal in this case had correctly addressed that question, as illustrated by the fact that it had inspected the exempt documents, had received evidence from senior government officials and witnesses led by the applicant, and had examined each of the grounds stated in the conclusive certificates. The following extract from the dissenting judgment of Gleeson CJ and Kirby J dealt with the nature of the obligation cast upon the tribunal in deciding whether there existed reasonable grounds for a conclusive certificate claim. As indicated below, Hayne J adopted a similar view of the tribunal’s role. Callinan and Heydon JJ took a different view of the tribunal’s role but did not otherwise express a view on the effect of a ‘reasonable grounds’ criterion.] Gleeson CJ and Kirby J: [S]tatutes which confer a power conditioned upon the existence of reasonable grounds for a state of mind such as suspicion, or belief, are common … This is

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an objective test … The point of the objectivity of such a test, when it is necessary to consider whether a primary decision-maker had reasonable grounds for a given state of mind, is that the question is not whether the primary decision-maker thinks he or she has reasonable grounds. To decide whether it was reasonably open to a decision-maker, on the evidence, to make a judgment such as a decision whether a person was (or was not) negligent, or whether the known facts are sufficient to induce in a reasonable person a suspicion or belief that someone is guilty of a crime, or whether there are reasonable grounds for a claim that a course of action (such as disclosure of a document) would be contrary to the public interest, involves an evaluation of the known facts, circumstances and considerations which may bear rationally upon the issue in question. A judgment as to whether information or argument bears rationally upon a question is also a familiar exercise. It is usually discussed by courts under the rubric of relevance. If a piece of information, or an opinion, or an argument, can have no rational bearing upon a question for decision, it is irrelevant, and must be left out of further consideration. Otherwise, being relevant, just decision-making requires that it be taken into account. Where a claim, or an argument, or a conclusion or some other state of mind (such as suspicion, or belief, or satisfaction) involves an interplay of observation (of objective facts and circumstances), opinion, and judgment (which may involve an evaluation of matters such as reasonableness of conduct, or of the public interest), the question whether there are reasonable grounds for such a claim, or argument, or state of mind requires a consideration of all relevant matters and an assessment of the reasonableness of the claim, or argument, or state of mind having regard to all relevant considerations. Suppose the question is whether there are reasonable grounds for suspecting that A killed B. Suppose that A is a person of violent propensity, who had a motive to kill B, and had declared an intention to do so. Let it be assumed that those three facts are incontestable. In the absence of any other facts they may lead to a conclusion that there are reasonable grounds for suspecting that A killed B. Suppose, however, that A has an undisputed alibi. The first three facts then cease to constitute reasonable grounds for the suspicion. The question cannot be answered without considering all four facts. It is not a hypothetical question. It is a question to be answered in the light of all the known circumstances. This applies to all relevant considerations whether they be matters of objective fact (as in the example given), or of opinion, or of argument. Until all relevant considerations, that is, all (known) considerations that could have a rational bearing upon the claim, or state of mind, or decision under review, are taken into account, it is impossible to form a just and fair judgment whether, objectively considered, there are reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest. It is not enough for the Tribunal to ask whether there are facts, or opinions, or arguments that rationally bear upon that topic. All relevant matters must be taken into account; not for the purpose of deciding whether the Tribunal agrees with the Minister, but for the more limited purpose of deciding whether there are reasonable grounds for the claim which the Minister accepted … [W]hen s 58(5) refers to ‘reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest’ it raises the question whether, having regard to all the relevant considerations available to the Tribunal, there are matters that are sufficient to induce in a reasonable person a state of satisfaction that disclosure of a document would be contrary to the public interest. [In the majority, Hayne J held that a certificate must be supported by the grounds taken together. Callinan and Heydon JJ stated that a conclusive certificate claim should be upheld by the tribunal if it stated one reasonable ground that was supported by evidence.]

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8.3.58C

Control of Government Action

Goldie v Commonwealth (2002) 117 FCR 566; 188 ALR 708 Full Court of the Federal Court

[Section 189(1) of the Migration Act 1958 (Cth) provided that an immigration officer must detain a person if the officer ‘knows or reasonably suspects’ that the person is an unlawful non-citizen. The Full Federal Court held by majority that an immigration officer had unlawfully detained Mr Goldie, who held a current visa at the time of his detention. The officer had relied on a computer record that was incorrect and two years old, had ignored contrary file information, and had failed to pursue other lines of inquiry to clarify Mr Goldie’s immigration status. As Mr Goldie’s arrest and detention was unlawful, he was entitled to damages.] Gray and Lee JJ: The definitions of the words ‘suspect’ and ‘suspicion’ in the Macquarie Dictionary make it plain that a suspicion may be formed ‘with insufficient proof or with no proof’, or ‘on little or no evidence’, or ‘on slight evidence or without evidence’. By itself, the word ‘suspects’ would be capable of being construed to include the formation of an imagined belief, having no basis at all in fact, or even conjecture. Plainly, to empower an arrest on the basis of an irrational suspicion would offend the principle of the importance of individual liberty underlying the common law. It would also allow the possibility of arbitrary arrest, with the consequence that Australia would be in breach of its international obligations pursuant to Article 9 of the International Covenant on Civil and Political Rights. To avoid these consequences, the word ‘reasonably’ has been placed before the word ‘suspects’ in s 189(1). The adverb makes it clear that, in order to justify arrest and detention, the suspicion that a person is an unlawful non-citizen must be justifiable upon objective examination of relevant material. Given that deprivation of liberty is at stake, such material will include that which is discoverable by efforts of search and inquiry that are reasonable in the circumstances. The phrase ‘reasonably suspects’ is used as an alternative to ‘knows’. Before an officer could know that a person is an unlawful non-citizen, the officer would have to have reached a level of satisfaction of that fact approaching certainty … The context of the phrase ‘reasonably suspects’ suggests that something substantially less than certainty is required. Reasonable suspicion, therefore, lies somewhere on a spectrum between certainty and irrationality. The need to ensure that arrest is not arbitrary suggests that the requirement for a reasonable suspicion should be placed on that spectrum not too close to irrationality. It is trite to say that what is reasonable in a particular case depends upon the circumstances of that case. It is worth remembering, however, that all of the circumstances must be considered … That is, the officer is not empowered to act on a suspicion reasonably formed that a person may be an unlawful non-citizen. The officer is to detain a person whom the officer reasonably suspects is an unlawful non-citizen. Stone J: In my view … there is no substantive difference between an officer reasonably suspecting that a person may be an unlawful non-citizen and reasonably suspecting that the person is an unlawful non-citizen. The word, ‘reasonable’ expresses an indeterminate standard. In deciding if an officer’s suspicion is reasonable all relevant doubts and circumstances including contradictory or insufficient evidence should be taken into account. The statement that a person ‘may be’ an unlawful non-citizen appears to admit of another layer of doubt when all doubts should already have been taken into account. As such the enquiry can have nothing to add.

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The reasonableness of a suspicion must be assessed in the light of the information that an officer has at the relevant time. Leaving the present facts aside, it is not difficult to imagine cases where despite the Department computer records showing that the non-citizen does not have a visa, it would not be reasonable to suspect that the person is an unlawful non-citizen. It might be, for example, that the relevant officer is personally acquainted with the particular case or has other knowledge that makes such a suspicion unreasonable. [Gray and Lee JJ found that Mr Goldie’s detention was unlawful from its inception. Stone J, however, found that although his initial detention was lawful, his continued detention was not.]

8.3.59  Greiner v  Independent Commission Against Corruption (1992) 28 NSWLR  125 provides another illustration of where the phrase ‘reasonable grounds’ was pivotal to the outcome of a prominent case. The commission (which had been established by the government headed by New South Wales Premier Greiner) later made a finding of ‘corrupt conduct’ against Mr Greiner. The finding related to an incident in which senior members of the government arranged for an independent member of the Legislative Council (Mr  Metherell) to resign from parliament in return for being given a senior position in the state public service without compliance with normal personnel appointment procedures. The definition of ‘corrupt conduct’ in s  9 of the Independent Commission Against Corruption Act  1988 (NSW) establishing the commission included conduct which ‘could constitute  … reasonable grounds for dismissing … a public official’. The New South Wales  Court of Appeal held that the term ‘reasonable grounds’ was to be applied objectively. As Gleeson  CJ noted, ‘the test of what constitutes reasonable grounds for dismissal is objective. It does not turn on the purely personal and subjective opinion of the Commissioner’: at 145; see also Mahoney JA at 167, and Priestley JA at 192. Applying that standard, the court held by majority (Mahoney JA dissenting) that the commission’s finding was not based upon reasonable grounds. Gleeson CJ observed: The Commissioner … did not enunciate and apply objective standards to the facts of the case. Although the Commissioner recognised that the concept of dismissal of a Premier or a Minister is attended by sensitive constitutional implications and difficulties, he never identified any objective criteria for dismissal by reference to which his conclusion could be tested. He approached the question as though the matter was to be determined by his personal and subjective opinion. In this respect he exceeded his jurisdiction and failed to apply the correct test laid down by s 9.

‘Reasonable grounds’ for a belief, although objective, does not need to reach a ‘balance of probability’ standard and may include some degree of conjecture: Prior v Mole (2017) 343 ALR 1 at [4] (Kiefel and Bell JJ), [73] (Nettle J).

UNAUTHORISED DECISION-MAKING: SUBORDINATE LEGISLATION Standard principles — special issues 8.4.1  Subordinate legislation (regulations, by-laws and the like) is made by an executive officer (often the Governor-General, a minister or a local council) under the authority of an Act  of Parliament. It is therefore subject to much the same legal rules (about validity, 481

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construction and the like) that apply to other forms of executive or administrative action. However, as noted in Chapter 6, subordinate legislation has always attracted special attention in public law because of its volume, its importance in creating legal procedures and obligations, and the potential threat it poses to the separation of powers. 8.4.2  This chapter looks at selected doctrines and principles of statutory construction developed by the courts to gauge whether subordinate legislation is validly authorised. The doctrines and principles are, for the most part, refinements of those studied earlier in this chapter. The guiding principle — as earlier stated — is that the validity of all executive action hinges on whether there is legal authority to support it. Whether subordinate legislation is validly authorised is an issue that can arise in many guises, as the following introductory summary illustrates: • Compliance with statutory procedural requirements: Statutory requirements of a procedural kind specify how subordinate legislation is to be tabled in parliament, published and notified to the public. A common (though not invariable) consequence of breach of such a requirement is that a subordinate rule will not commence operation: see Golden-Brown v Hunt (1972) 19 FLR 438 and Watson v Lee (1970) 144 CLR 374.

• Substantive statutory authorisation: A subordinate rule must find support in the parent Act under which it was made, both as to its terms and its scope. If not, the rule will be invalid. Thus, the minister’s power to grant, by determination, a general exception from the requirement that a non-citizen hold a visa if involved in an ‘offshore resources activity’ did not authorise an exception for those involved in any offshore activity. That was to exceed the authorising provision which implied a limited exception only: Maritime Union of Australia v Minister for Immigration and Border Protection (2016) 259 CLR 431. This requirement is examined at greater length in 8.4.3ff.

• Narrow statutory construction: It was noted earlier in this chapter (see 8.3.21) that courts have developed presumptions of statutory construction, ostensibly to discern the intention of the legislature concerning the scope of authority conferred by a statute. Those presumptions apply to the making of subordinate legislation alike with other executive action. Thus, authority conferred in general terms to make any subordinate rule thought ‘necessary or convenient’ will not ordinarily support a rule that imposes taxation or a penalty, condones entry onto private property, precludes access to the courts (see  Public Service Association and Professional Officers’ Association Amalgamated Union (NSW) v New South Wales (2014) 242 IR 338), is retrospective in operation or, as illustrated by Evans 8.3.32C and Plaintiff M47/2012 8.4.7C, curtails a fundamental freedom such as the right of public protest. • Compliance with administrative law criteria for legal validity: The validity of administrative action is controlled by numerous administrative law criteria that are examined in other chapters of Part C of this book. Those criteria — sometimes called grounds for judicial review — potentially apply to subordinate legislation, but to a lesser extent because of other considerations. For example, subordinate legislation is frequently made by the Governor-General pursuant to an authority to make rules thought ‘necessary or convenient’. The breadth of that authorisation inhibits any argument that the GovernorGeneral took irrelevant considerations into account (see  10.3.1ff) or, barring exceptional circumstances, was obliged by natural justice to give a prior hearing to any person: see 6.2.1, 11.2.13–11.2.14. Moreover, it is to be expected that the Governor-General will act in accordance with ministerial instructions, thus negating any duty to act free from 482

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dictation. There is, nevertheless, more scope for applying some other administrative law criteria. An example is R  v Toohey; Ex parte Northern Land Council (Toohey) 10.2.13C, where the court accepted an argument of unauthorised purpose. Two other exceptional examples examined later in this chapter are that a subordinate rule may be invalid if its effect is disproportionate, unjust or unreasonable (see  8.4.23ff), or if it impermissibly sub-delegates the authority to make rules: see 8.5.15.

• Consistency with other primary legislation: Subordinate legislation is subordinate not only to the specific provision in the Act under which it is made, but to other provisions in that Act and to other statutes. A subordinate rule will thus be invalid if it is inconsistent with another legislative provision, unless there is an ‘override’ clause. For example, in Plaintiff S297/2013 8.3.7 the High Court held that the minister’s power under s 85 of the Migration Act 1958 (Cth) to determine the maximum number of visas of a specified class in a specified financial year did not include a power to specify the number of permanent protection visas. Section 65 of the Act imposed a duty on the minister to grant a protection visa if satisfied that prescribed criteria were met and this specific provision overrode s 85, a more general provision. An example of an override clause (a ‘Henry  VIII clause’) given in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan 6.1.11C was an Act that authorised transport regulations to be made that ‘notwithstanding anything in any other Act … shall have the force of law’. Other variants are that an Act may sanction regulations that have force and effect ‘as if enacted’ in the Act, or may provide that a rule in the Act is to operate ‘subject to the regulations’: see O’Connell v Nixon (2007) 16 VR 440.

• Constitutional compatibility: It is axiomatic in Australia that a subordinate rule, in common with all legislative and executive action, must be compatible with the Constitution. For example, a Commonwealth subordinate rule will be invalid if it transcends the Commonwealth’s legislative authority (for example, Tasmania v Commonwealth (1983) 158 CLR 1) or if it infringes a constitutional guarantee such as the implied constitutional freedom of political communication: for example, Bennett v  President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334, holding invalid a provision of the Public Service Regulations 1999 (Cth) imposing a duty of secrecy. Likewise, a state subordinate rule will be invalid if it is inconsistent with a Commonwealth Act or subordinate rule: Constitution s 109.

General test of invalidity 8.4.3  The guiding test for gauging whether a subordinate rule is validly authorised by the parent Act under which it was purportedly made was explained in similar terms in the following two extracts, from Lord Diplock in McEldowney v Forde [1971] AC 632 and Brennan J in South Australia v Tanner 8.4.27C: Lord Diplock: The division of functions between parliament and the courts as respects legislation is clear. Parliament makes laws and can delegate part of its power to do so to some subordinate authority. The courts construe laws whether made by parliament directly or by a subordinate authority acting under delegated legislative powers. The view of the courts as to whether particular statutory or subordinate legislation promotes or hinders the common weal is irrelevant. The decision of the courts as to what the words used in the statutory or subordinate legislation mean is decisive. Where the validity of subordinate legislation made pursuant to powers delegated by Act of Parliament to a subordinate authority is challenged, the court has a threefold task: first, to determine the meaning of 483

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the words used in the Act of Parliament itself to describe the subordinate legislation which that authority is authorised to make, secondly, to determine the meaning of the subordinate legislation itself and finally to decide whether the subordinate legislation complies with that description. Brennan J: [His Honour referred to the test in McEldowney and Bradbury 8.4.17C and continued:] This approach is similar to the approach adopted by a court in deciding whether a law enacted by the Parliament of the Commonwealth is within the legislative powers conferred by the Constitution … but an analogy between a decision upon the validity of subordinate legislation and a decision upon the validity of a law of the parliament is imperfect. A legislative power conferred by the Constitution must be liberally construed unless there is some other constitutional warrant for a narrower construction … but in my opinion the same approach cannot be taken in construing a legislative power delegated by a parliament. Parliament is the organ of government in which legislative power is vested and parliament should not be held to have delegated to another repository more power than is clearly denoted by the words it has used. In my opinion, a delegation of legislative power should be narrowly construed unless the parliament has, by express provision or necessary intendment, revealed a contrary intention.

8.4.4  Two points are implicit in those statements: the issue of validity is decided by a process of statutory construction, applied to both the parent Act and the subordinate rule; and the court does not examine the wisdom or expediency of the subordinate rule. The cases that follow illustrate how that process of statutory construction can be a sophisticated process. In  particular, the judgments in Plaintiff M47/2012 8.4.7C, Bradbury 8.4.17C, Foley v Padley 8.4.18C and Tanner 8.4.27C illustrate that, in construing both the parent Act and the subordinate rule, it is necessary to refer to matters such as the terms of the legislation, the nature of the body entrusted with the power to make rules, the subject matter, and presumptions of statutory meaning. 8.4.5  The quotation from Brennan J in Tanner 8.4.27C raises the issue of judicial deference, examined more fully in 7.5.1ff. Should a court defer to the view of an executive body entrusted with the task of making subordinate legislation? Justice Brennan (dissenting in Tanner) favours the view that a power to make subordinate legislation should be construed narrowly rather than liberally. Plaintiff M47/2012 8.4.7C, Bradbury 8.4.17C and Paull v Munday 8.4.21C are foremost illustrations of that approach. A countervailing view is expressed by the majority in Tanner, warning that on the specialist issue there under consideration ‘a court must exercise care not to impose its own untutored judgment on the legislator’, and should accordingly adopt ‘a broad, rather than a narrow, approach in determining the nexus between the exercise of the power and the achievement of the purpose for which it is conferred’. A similar observation was made by Rich J in Footscray Corporation v Maize Products Pty Ltd (1943) 67 CLR 301: Municipalities and other representative bodies which are entrusted with power to make by-laws are familiar with the locality in which the by-laws are to operate and are acquainted with the needs of the residents of that locality and thus are, I venture to think, better fitted than judges to deal with their requirements.

See also French CJ in Corporation of the City of Adelaide 8.4.29C at [39]. 8.4.6  A related point is whether a subordinate rule should be held invalid if, on one interpretation, it could authorise conduct that falls outside the scope of the parent Act. 484

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The extracts from Seeligson v City of Melbourne 8.4.8C and Re Gold Coast City Council By-Laws 8.4.9C take a contrasting approach to that issue. Though contrasting, both cases nonetheless contain an orthodox statement of legal principle: for example, Seeligson was approved in the majority judgment in Tanner 8.4.27C, and Re  Gold Coast relies in part upon an oft-cited statement of principle by Dixon J in Williams v Melbourne Corporation (1933) 49 CLR 142. 8.4.7C

Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1; 292 ALR 243; [2012] HCA 46 High Court of Australia

[The plaintiff was assessed by a delegate of the minister as a refugee to whom Australia owed protection obligations, meeting the criteria of the Refugees Convention and s 36(2) of the Migration Act 1958 (Cth) (Migration Act). However, the plaintiff was refused a protection visa under a public interest criterion in the Migration Regulations 1994 (Cth). Schedule 2, cl 866.225, item 4002 provided that an applicant for a permanent protection visa must not be assessed to be a security risk by the Australian Security Intelligence Organisation (ASIO). The regulation was purported to be made under s 504 of the Migration Act, which provides for the making of regulations ‘not inconsistent with’ the Act. The High Court held that item 4002 was invalid by reason of inconsistency with provisions in the Migration Act.] French CJ: [54] Regulations made under s 504 must be ‘not inconsistent with’ the Migration Act. Even without that expressed constraint delegated legislation cannot be repugnant to the Act which confers the power to make it. Repugnancy or inconsistency may be manifested in various ways. An important consideration in judging inconsistency for present purposes is ‘the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned’. A grant of power to make regulations in terms conferred by s 504 does not authorise regulations which will ‘extend the scope or general operation of the enactment but [are] strictly ancillary’. In considering whether there has been a valid exercise of the regulation-making power ‘[t]he true nature and purpose of the power must be determined’. … [71] [T]he relationship between public interest criterion 4002 and the provisions of ss 500–503 of the Migration Act spells invalidating inconsistency. That is primarily because the condition sufficient to support the assessment referred to in public interest criterion 4002 subsumes the disentitling national security criteria in Art 32 and Art 33(2) [of the Refugees Convention]. It is wider in scope than those criteria and sets no threshold level of threat necessary to enliven its application. The public interest criterion requires the minister to act upon an assessment which leaves no scope for the minister to apply the power conferred by the Act to refuse the grant of a visa relying upon those articles. It has the result that the effective decision-making power with respect to the disentitling condition which reposes in the minister under the Act is shifted by cl 866.225 of the Regulations into the hands of ASIO. Further, and inconsistently with the scheme for merits review provided in s 500, no merits review is available in respect of an adverse security assessment under the ASIO Act made for the purposes of public interest criterion 4002. Public interest criterion 4002 therefore negates important elements of the statutory scheme relating to decisions concerning protection visas and the application of criteria derived from Arts 32 and 33(2). It is inconsistent with that scheme. In my opinion cl 866.225 of the Regulations is invalid to the extent that it prescribes public interest criterion 4002.

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[72] Because public interest criterion 4002 is invalid, the refusal of the plaintiff’s application for a protection visa was affected by jurisdictional error. As a result there has, at this time, been no valid decision on the plaintiff’s application for a protection visa. [The other Justices agreed that item 4002 was inconsistent with the Migration Act in two respects: it denied the review process specified in s 500(1) (Hayne  J at [221] and Kiefel J at [458]); and it reposed effective power to make a decision in ASIO rather than the Minister (Crennan J at [396] and Kiefel J at [458]).]

8.4.8C

Seeligson v City of Melbourne [1935] VLR 365 Supreme Court of Victoria (Full Court)

[Section 197(1) of the Local Government Act 1928 (Vic) provided that a council could make by-laws ‘generally for maintaining the good rule and government of the municipality’. The Melbourne City Council made a by-law providing as follows: ‘No person upon any street, footway or other public place shall give out or distribute to bystanders or passers-by any handbills, placards, notices, advertisements, books, pamphlets or papers’. The Supreme Court upheld the validity of the by-law.] Mann CJ (McFarlan and Martin JJ agreeing): [The by-law] is aimed primarily at preserving the amenities of streets and other public places and preventing their becoming untidy and littered with matter which is of no use and is offensive to the eye, and involves labour in cleaning it up. We do not know what evidence may have been before the council as to the extent of evils of this kind. There is also the probability that the council took into account the annoyance caused to bystanders in having unwanted literature thrust upon them in public places. There is one observation I would make as to these cases. It is a mistake to exercise one’s ingenuity in imagining cases which would seem to fall within the actual words of a by-law, and then to emphasise the hardships that would follow in such cases. A great many of such cases would probably be held not to be within the reasonable tenor of the by-law at all, when construed with reference to its subject-matter. But, even if some harmless act would fall within the words of the regulation, it is important to remember that all legislation must of necessity be in more or less general terms, and it is not rendered any the more or the less invalid because an attempt to suppress an evil may conceivably brand as an offence some act which in particular circumstances is harmless. It may well be a matter of opinion about many by-laws, as to whether they are not what might be called a somewhat fussy exercise of legislative powers, that they trench on the liberty of a great many people because of the use made of that liberty by comparatively few. But the court is not in the position of a council for acquiring information as to the extent to which a practice has prevailed in various parts of a city, and the necessity of regulating it. They know that a by-law is required and are the best judges of the desirability of finding some general language by which it may be prevented.

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8.4.10

Re Gold Coast City Council By-Laws [1994] 1 Qd R Supreme Court of Queensland

[Section 30 of the Local Government Act 1928 (Qld) provided that a council could make by-laws ‘in its opinion necessary or conducive to the good rule and government of the area and the wellbeing of its inhabitants’. The Gold Coast City Council made a by-law providing that ‘a person shall not engage in the selling of goods or the conduct of any other commercial activity on a road, on land adjoining a road or on land under the control of the Council’, unless the person was issued with a permit by the council. The Supreme Court held that the by-law was invalid.] Thomas J: The coverage of this by-law is astonishingly wide. It prohibits, unless one first gets a permit, all commercial activity on any road and also on any land adjoining any road in the Gold Coast area … The activities prohibited without permit would include the carriage of goods, the driving of taxis, the conducting of shops, all banking business and all obvious forms of commerce including those conducted by telephone. It would also, as it seems to me, prohibit more private examples of commerce engaged in within private homes, such as arrangements to change the ownership of family assets, any dealing between neighbours, and perhaps even the swapping of toys by children … It would seem that the Council’s main object was to prevent street touting and it was conscious of the fact that such acts are performed not only by those who walk the streets, but in some instances, by those who have desks or booths on private property within speaking range of the street. However, if that is the object of the Council, the present by-law is a graphic example of overkill. It is difficult to read down this provision or to sever or otherwise limit it to operations of any sensible proportions … Mr Myers submitted … that it could be assumed that the Council would not exercise the power further than was reasonably necessary. I am unimpressed with governmental authorities which create unreasonably wide prohibitions and justify them with the statement ‘Trust us’. Wills J expressed a similar sentiment in 1904: ‘I dislike extremely legislation which is felt to be so unfair if universally applied that it can only be justified by saying that in particular cases it will not be enforced. I think that is as bad a ground for defending legislation as one could well have.’ (Stiles v Galinski [1904] 1 KB 615, 625) … [Counsel for the applicants submitted] that the by-law has no reasonable relation to the purpose for which the power was granted. In this exercise one turns attention to the ‘true nature and purpose of the regulation making power’ (South Australia v Tanner [8.4.27C] at 164 …). This approach is consistent with the earlier well known statement of Dixon J in Williams v Melbourne Corporation (1933) 49 CLR 142 at 155 [cited in Vanstone v Clarke 8.4.28C at 340].

8.4.10  Two other legal principles can be relevant to this issue. The first is the Latin maxim ut res magis valeat quam pereat — ‘it is better for a thing to have effect than to be made void’. The maxim can apply when a subordinate rule is open to competing interpretations that can affect its validity. As noted by Griffith CJ in Widgee Shire Council v Bonney (1907) 4 CLR 977 at 983, ‘when a by-law is open to two constructions, on one of which it would be within the powers of the local authority, and on the other outside of those powers, the former construction 487

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should be adopted’. Second, it may be appropriate for a court to sever an invalid portion of a subordinate rule, leaving the valid portion standing (discussed in 16.5.1ff and in DC Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017, ch 29). 8.4.11  Where subordinate legislation is susceptible of only one meaning and is plainly authorised by statute, a court should not strain to adopt a narrower meaning which is not open on the terms of the subordinate legislation. ADCO Constructions Pty Ltd v  Goudappel (2014) 254 CLR 1 provides an illustration. The High Court had to consider the meaning of cl 11 of Sch 8 of regulations made under the Workers Compensation Act 1987 (NSW) (WCA). The clause was a transitional provision that had the effect of extinguishing Mr Goudappel’s entitlement to permanent impairment compensation under the Act. The court held that the meaning of cl 11 was clear and must be given effect. French CJ, Crennan, Kiefel and Keane JJ: [25] There is little room for debate about the construction of the new cl 11 of Sched 8 [which] applied the new s 66(1) to Mr Goudappel’s claim and, if valid, extinguished his entitlement. There was no room in the text of cl 11 for a construction that avoided that result. … [29] It can be accepted, as was put by counsel for Mr Goudappel, that the WCA’s remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the WCA as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified. The evident purpose of cl  5 was to expand the regulation-making power so as to allow regulations to be made which could affect pre-existing rights. The purpose of cl 11, made pursuant to cl 5(4), was clear enough. It applied the new s 66 to entitlements to permanent impairment compensation which had not been the subject of a claim made before 19  June  2012 that specifically sought compensation under the old s  66. Its purpose was patently not beneficial. … [32] Counsel for Mr Goudappel submitted that cl 5(2) of Pt 19H of Sched 6 to the WCA did not authorise regulations to be made affecting ‘accrued rights for any period of backdating’. There was, he argued, no displacement of s 30(1)(c) of the Interpretation Act. As already observed, however, the backdating provisions provide a context inimical to that submission. The submission is defeated by the text of cl  5(2) and its evident purpose of displacing the protection of existing rights otherwise effected by cl 1(3) of Pt 20. … [34] Although it might have been argued that cl 5(4), being a Henry VIII clause, should be construed so as to enhance parliamentary scrutiny by the imposition of a manner and form requirement, the language of the subclause was not adapted to that kind of function.

For a discussion of the implied power to delegate see R Gregson, ‘When should there be an implied power to delegate?’ [2017] Public Law 408.

The complement/supplement distinction 8.4.12  The power to make subordinate legislation is often conferred in general terms as a power to make rules that are ‘necessary or convenient’ for giving effect to the primary Act, or for ‘carrying out or giving effect to the Act’, or ‘for the purposes mentioned in this Act’, ‘with respect to’, or for ‘the good rule and government’ of an area. A power in those terms is nevertheless limited in scope to making regulations that are ancillary or incidental to administering the Act 488

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(Morton v Union Steamship Co of New Zealand 8.4.14C) or that have ‘some rational relationship’ with the objects and purposes of the Act (Evans 8.3.32C). A parallel distinction, applied in Shanahan 8.4.13C, is that the regulations can complement but not supplement the parent Act. 8.4.13C

Shanahan v Scott (1957) 96 CLR 245; [1957] ALR 171 High Court of Australia

[The Marketing of Primary Products Acts 1935–1953 (Vic) authorised egg producers in Victoria to establish an Egg Board, in which all eggs produced in Victoria would be vested, to be marketed and sold by the board and the proceeds divided among the producers. Section 43(1) provided that the Governor could make regulations ‘necessary or expedient for the administration of the Act, or for carrying out the objects of the Act’. The Governor made reg 44, which made it an offence to place eggs in cold storage or subject them to preservative treatment without the consent of the board. The evident purpose of reg 44 was to make it practically difficult in Victoria to store or sell eggs produced in New South Wales (those eggs not otherwise being subject to the control of the board). The High Court held that reg 44 was invalid.] Dixon CJ, Williams, Webb and Fullagar JJ: [Their Honours referred to ss 43(1).] [S]uch a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends … Can reg 44 be upheld as a regulation necessary or expedient for the administration of the Acts or for carrying out the objects of the Acts within s 43(1)? … It is impossible to reduce the indefinite test supplied by the words quoted from s 43(1) to precision but they are not unlimited in their operation … If the regulation were concerned only with eggs vested in the board and with them while they were so vested, there could be no objection to it. For the purpose of the legislation is to give the board control of such eggs in all respects so that they can be marketed when, how and where the board decides conformably with the provisions of the Acts. To provide by regulation against chilling or preserving the board’s eggs would be nothing but filling in a detail of the plan which the Acts describe. But the regulation extends to eggs with which the board has and can have nothing to do and it extends to those which the board has sold unconditionally. The complaint against this provision is that it means much more than an elaboration, a filling in or a fulfilment of the plan or purpose which the main provisions of the Act have laid down or, if the expressions be preferred, have ‘outlined’ or ‘sketched’. It means that an attempt has been made to add to the general plan or conception of the legislation and to extend it into a further field of regulation, namely that of the use, handling or disposition of eggs independently of the board’s marketing of the eggs vested in or otherwise acquired by the board. [Their Honours cited the quote from Carbines v Powell at 8.3.26 and continued:] [T]o impose such a restriction as that contained in reg 44 with respect to part of the commodity falling outside the board’s marketing powers is to extend the legislative plan not to carry it into effect. The regulation cannot, therefore, be justified as necessary or expedient for the administration of the Act or for carrying out its objects. Accordingly it is ultra vires. [Kitto J dissented.]

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Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402; [1951] ALR 655 High Court of Australia

[The Act under consideration provided that the Governor-General could make regulations ‘prescribing all matters … as may be necessary or convenient to be prescribed for giving effect to this Act’.] Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ: A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operations which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned. In an Act of Parliament which lays down only the main outlines of policy and indicates an intention of leaving it to the Governor-General to work out that policy by specific regulation, a power to make regulations may have a wide ambit. Its ambit may be very different in an Act of Parliament which deals specifically and in detail with the subject matter to which the statute is addressed. In the case of a statute of the latter kind an incidental power of the description contained in s 164 cannot be supposed to express an intention that the Governor-General should deal with the same matters in another way.

8.4.15  Two contrasting decisions illustrate the reach of a power to make regulations that are ‘necessary or convenient’ for carrying an Act into effect. In Deing v Tarola [1993] 2 VR 163, the relevant Act provided for the making of regulations proscribing possession or use of ‘weapons other than firearms’. The regulations listed as a weapon ‘any article filled with raised pointed studs which is designed to be worn as an article of clothing’. The regulation was held invalid on the basis that it would be surprising if ‘there are many women in the community who do not include a studded belt in their wardrobes’ and that if the parliament wished to make ‘weapon’ cover such an item more legislative precision was required: at  166. However, in O’Connell v Nixon, the Victorian Court of Appeal upheld the validity of a regulation which restricted rights of appeal in promotions decisions under the Police Regulations 2003 (Vic) to officers who had applied for the position. The police officers who wished to challenge the promotion of another sergeant to the position of Officer-in-Charge therefore had no right of appeal as they had not applied for the position themselves.

The regulate/prohibit distinction 8.4.16  The form of words used to confer power to make subordinate rules is an important element in ascertaining the scope of that power. This is illustrated by Bradbury 8.4.17C and Foley 8.4.18C, which treat a power to ‘regulate’ an activity as presumptively narrower in scope than a power to ‘prohibit’ that activity. Not surprisingly, the legislative response has been to use both words in the authorising power, so that this issue arises less commonly today. 490

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8.4.17C

Swan Hill Corporation v Bradbury (1937) 56 CLR 746; [1937] ALR 194 High Court of Australia

[Section 198(1)(a) of the Local Government Act 1915 (Vic) provided that a local council could make by-laws ‘regulating and restraining the erection and construction of buildings’. The Council of the Shire of Swan Hill made a by-law that prohibited the erection of any building except with the approval of the council. The High Court held that the by-law was invalid.] Dixon J: In considering the validity of any provision adopted in the supposed exercise of a limited power of a legislative nature, the first and often most decisive step is to ascertain the scope of the measure impugned and the legal effect it would produce. The appeal relates to one clause only of the municipal by-law governing building in the shire of Swan Hill, but probably it is the chief. The clause begins by forbidding any person, unless with the approval of the shire council, to proceed to erect or cause to be constructed any shop, house, building, tent, hoarding or addition to any existing building. It then goes on to direct that notice of intention to build shall be given to the council or its surveyor and that the notice shall be accompanied by plans of the building and particulars of the site, the cost, and materials to be used, together with such other particulars as are necessary to enable the council or its surveyor to determine if the proposal complies with the by-law. The clause ends with a statement that a permit shall expire after twelve months, unless extended by resolution of the council. There is no express qualification of the discretion which the clause appears to confer upon the council to approve or disapprove of a proposal to build … But it does not follow that the by-law should be taken to mean that the council may withhold its approval of a proposal to build for any reason whatever or for no reason at all. The approbation of the council is made an essential condition of relief from a prohibition against building otherwise general and complete. But no one supposes that the object of so framing the clause was to make building an exceptional privilege lying in the special grace of the council. In the course of the modern attempt by provisions of a legislative nature to reconcile the exercise and enjoyment of proprietary and other private rights with the conflicting considerations which are found to attend the pursuit of the common good, it has often been thought necessary to arm some public authority with a discretionary power to allow or disallow the action of the individual, notwithstanding that it has been found impossible to lay down for the guidance of the individual, or of the public authority itself, any definite rule for the exercise of the discretion. … When a provision of this kind is made, it is incumbent upon the public authority in whom the discretion is vested not only to enter upon the consideration of applications for its exercise but to decide them bona fide and not with a view of achieving ends or objects outside the purpose for which the discretion is conferred. The duty may be enforced by mandamus. But courts of law have no source whence they may ascertain what is the purpose of the discretion except the terms and subject matter of the statutory instrument. They must, therefore, concede to the authority a discretion unlimited by anything but the scope and object of the instrument conferring it. This means that only a negative definition of the grounds of the governing discretion may be given. It may be possible to say that this or that consideration is extraneous to the power, but it must always be impracticable in such cases to make more than the most general positive statement of the permissible limits within which the discretion is exercisable and is beyond legal control … The clause of the by-law now in

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question is of the same description. If it were valid, a person giving notice of intention to build would be entitled to insist that his application should receive the consideration of the council, and, if it were refused and he were able to show that the refusal was not bona fide or was activated by motives or reasons which fell outside the scope and purpose of the by-law, then he would be entitled to insist on its reconsideration. But here his legal rights would stop. So often as he could show that the refusal of approval arose from reasons foreign to the discretion given to the authority, he might by mandamus enforce a reconsideration of his case. But he would never be able to compel the council actually to decide his application in his favour. And unless and until it should do so and give its approval he would commit an offence against the by-law, supposing it to be valid, if he proceeded to build. To show that the reason for refusing his application was outside the discretion would be no easy thing. For, apart from the difficulty of establishing what in fact was the reason, no reason would, I think, be held outside the scope and purpose of the by-law unless it had no relation to municipal government … In this view of the clause it must be treated in point of law as a complete denial of the individual’s right to build, subject to a discretion of the council to permit him to build if, having regard to the general interests of the municipality, they may think fit to do so. The validity of this attempted denial of the owner’s liberty to build depends upon the question whether it does not go beyond the description, a by-law made for the purpose of regulating and restraining the erection and construction of buildings … [His Honour then examined other provisions of the Local Government Act. While those provisions shed little light on the construction of s 198(1), two such provisions did, in his Honour’s view, ‘suggest that the framers did not conceive that a council could not take under its by-laws a paramount discretion to withhold antecedent approval of a proposal to build and leave the owner subject to a complete prohibition against erecting any structure upon his land’. Dixon J continued:] However, the evidence afforded by such matters can be confirmatory only and the interpretation of the power upon which the by-law must rest depends in the end upon the language in which it is expressed and the nature of the subject matter to which it relates. Of these, the subject matter is no less important than the forms of expression adopted. For, although the erection and construction of buildings is regarded as a form of activity which, if completely unregulated, may be attended by abuses tending against the public advantage, it is not in itself a thing to be repressed and could not be so considered by the legislature. It is indispensable to the life of any community. Expressions found in a power to make by-laws in respect of things or conduct commonly regarded as in themselves an evil or at any rate as of a doubtful tendency, might well be interpreted widely enough to authorise the complete suppression or the conditional prohibition of whatever fell within the power; while the same expressions, if employed to describe a power to make by-laws in respect of a subject matter the discouragement of which could not have been intended, would naturally be understood in a very different sense. … [T]he word ‘regulating’ has been discussed repeatedly and the cases dealing with its applications have grown only too familiar. Prima facie a power to make by-laws regulating a subject matter does not extend to prohibiting it altogether or subject to a discretionary licence or consent. By-laws made under such a power may prescribe time, place, manner and circumstance and they may impose conditions, but under the prima facie meaning of the word they must stop short of preventing or suppressing the thing or course of conduct to be regulated … The word ‘restraint’ has not been the subject of the same judicial examination. But to restrain an activity or course of conduct usually means something less than its entire prohibition. To restrain a man from a course of conduct is to stop his pursuit of it. But to restrain the course of conduct is to moderate, check or restrict it. The expression ‘restrain’

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suggests the exercise of control during the progress of the activity to which it is applied, but not prevention. The meaning of such a word will depend very much upon the subject to which it relates and the context in which it occurs. The compound expression ‘regulate and restrain’ goes further than regulation. Perhaps it is used in order to describe an amount of control sufficient to restrict or hinder. But, unless context or subject matter contain indications of a larger meaning, such an expression would fall short of prohibition. Every prevention or suppression necessarily includes restraint because the greater includes the less. But, if a course of conduct were forbidden unless it were approved by an unfettered discretion vested in some authority, I should think to describe the result as a ‘restraint’ would be a very considerable understatement. When the nature of the subject matter is considered, in my opinion, a power to regulate and restrain the erection of buildings cannot be regarded as authorising the legal result produced by a general prohibition of building unless with the approval of the council. Once the legal effect is grasped of such an entire but conditional prohibition, it becomes difficult to resist the conclusion that to support it some wider power is necessary than one of regulation and restraint. Under an authority to regulate and restrain, restrictive conditions may be imposed upon the erection of buildings, the incidents may be provided for, the actual operations of building controlled, but it cannot be made prima facie unlawful to construct a building. If the power had been confined to hoardings, perhaps the words to ‘regulate and restrain’ might be susceptible of the wider interpretation they received in Levingstone v Shire of Heidelberg [1917] VLR 263, but in the context I think that interpretation cannot be justified. [Latham CJ, Rich, Evatt and McTiernan JJ each delivered a judgment reaching the same conclusion. Latham CJ observed that ‘under a power to make a by-law regulating a particular subject matter, a municipal council has no power to prescribe that the subject matter shall not be allowed to come into existence unless the council from time to time grants its approval in each particular case’: at 752. Nor, his Honour observed, did ‘restraining’ go as far as the word ‘suppressing’. Rich J agreed with Dixon J about the importance of the nature of the activity being regulated. Evatt J observed that, as a matter of general principle, a power to regulate enables a council to ‘lay down a general law or code or rule in relation to the purpose specified in the statute, and not merely attempt to reserve to the council itself discretions so wide that no general law or code or rule remains’: at 764. Evatt J also expressed the view (not necessarily shared by other judges) that a power to ‘prohibit’ would not support a by-law of the kind under consideration.]

8.4.18C

Foley v Padley (1984) 154 CLR 349; 54 ALR 609 High Court of Australia

[Section 11(1)(a) of the Rundle Street Mall Act 1975 (SA) provided that the Adelaide City Council could make by-laws ‘regulating, controlling or prohibiting any activity in the Mall or 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 council made a by-law No 8 providing 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 the permission of the council’. The High Court upheld the validity of the by-law.]

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Gibbs CJ: [His Honour noted that the council had passed a resolution expressing that it held the opinion required by s 11(1)(a).] When a power to make by-laws is conditioned upon the existence of an opinion, it is the existence of the opinion, and not its correctness, which satisfies the condition. However, that does not mean that an exercise of the power is immune from challenge, even if the opinion, which was a condition of that exercise, was made in good faith in the sense that it was honestly held. In my respectful opinion the law was correctly stated by Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, at 430–2. [His Honour quoted from the judgment of Latham CJ, as extracted at 8.3.50C.] The questions whether the necessary opinion is one which no reasonable council could have formed, and whether the council has misconstrued the statute or taken extraneous matters into account, may sometimes be connected and overlap, but in the present case it is sufficient to inquire whether the activity described in s 1 of By-law No 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 in the present case that the Council has misconstrued the effect of s 11(1)(a) or has taken into consideration matters which it was improper for it to consider. It was submitted on behalf of the appellant that the description of the activities referred to in s 1 of By-law No 8 is very wide and capable of including many activities that on any view are entirely innocent and innocuous. It was said that the words ‘bystander or passer-by’ include all persons who happen to be in or near the Mall, whether or not they had any antecedent relationship with the persons whose activity was in question, and that the words ‘give out or distribute’ may include a single act. Therefore, it was suggested that, for example, a mother handing sweets to her children, a person handing a cigarette to his friend or a storekeeper delivering goods to a customer would be giving out or distributing something to a bystander or passer-by. In my opinion the by-law does not have this effect. The reference to ‘any bystander or passer-by’ describes the relationship of the person to whom the thing is given or distributed vis à vis the person who gives it. The words ‘give out’ and ‘distribute’ are synonymous; the relevant sense of the word ‘distribute’ is ‘to deal out or bestow in portions among many’ and the expression ‘give out’ in its relevant sense means ‘to issue; to distribute’ (see Shorter Oxford English Dictionary). The composite expression does not signify an act intended to be done in isolation, but the use of the singular, ‘bystander or passer-by’, shows that an offence will occur although the article is given to one person only. However, since the recipient must be a bystander or passer-by, the intention of the by-law is to prevent the distribution of articles to members of the public who are unconnected with the person making the distribution but who happen to be in or about the Mall. Once it is understood that the by-law has this limited operation, and that it does not forbid one individual to give something to another in the ordinary course of a pre-existing relationship between them, it is not possible to say that the Council could not reasonably have formed the opinion that the prohibited activity was likely to affect the use or enjoyment of the Mall. The articles most likely to be the subject of a distribution would appear to be handbills and pamphlets designed to impart political, religious or philosophical ideas or to serve as advertising material, but it is possible to envisage that many other things — such as tickets or samples of goods — might also be distributed. The wholesale distribution of things in the Mall is likely to detract from the enjoyment of persons using it, since there are some persons who object to having unwanted articles foisted upon them, or who are embarrassed when that occurs. The possibility exists that unwanted articles distributed in this way will be abandoned, thus littering the Mall. The activities of those making the distribution may impede the ordinary flow of pedestrian traffic through the Mall, and in that way adversely affect its

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use. It is true that the by-law is drafted very widely — some might think too widely — but provided that the activities which are regulated, controlled or prohibited are of the description to which s 11(1)(a) refers, the fact that the by-law may be thought to go further than was necessary is not in itself any ground for invalidating it. [Gibbs CJ next referred to the principles in Seeligson 8.4.8C at 369–70.] It was argued that a statutory provision will not be construed as interfering with the liberty of the individual unless an intention to do so clearly appears, and as a general proposition that is correct. Then it was said that s 11(1)(a) should not be understood as giving power to make a by-law which, like s 1 of By-law No 8, may restrict the freedom of communication of ideas and opinions. However, the unrestrained exercise in or near the Mall of the freedom to speak or to communicate opinions might, in some circumstances, have an adverse affect on the use or enjoyment of the Mall. For example, the level of noise produced by the use of an amplifier in broadcasting a political address might be very great, or the insistence of persons forcing pamphlets on passers-by might be aggravating or provocative. The legislature has left it to the Council to decide whether it should regulate, control or prohibit an activity if, in the opinion of the Council, it is likely to affect the use or enjoyment of the Mall, even if the regulation, control or prohibition will to some extent limit the freedom of speech or communication of those engaging in the activity. It has been left to the Council, and not to the courts, to weigh the need to respect the freedom of speech and communication against the desirability of protecting other users of the Mall from an activity which may adversely affect their use or enjoyment of it. In the end, the question for the courts is simply whether the Council could reasonably have formed the opinion that the activity is likely to affect the use or enjoyment of the Mall. In my opinion the Council could reasonably have formed that opinion in the present case. [Gibbs CJ disagreed with the view of Evatt J in Bradbury 8.4.17C that a power to prohibit did not authorise a conditional prohibition of the kind under consideration. Dawson J delivered a judgment to the same effect as Gibbs CJ. Wilson J agreed with both Gibbs CJ and Dawson J. Murphy J and Brennan J dissented in separate judgments. Brennan J held the by-law to be invalid on the basis that, properly construed, it prohibited activities of an inoffensive kind, as to which the council could not reasonably have formed the opinion that they were likely to affect the use or enjoyment of the mall. Examples he gave were: ‘A newspaper vendor who stands on a footpath … to distribute the evening papers … a passer-by [who] asks for directions and is given a plan of where to go … a bystander [who] asks for a match to light his cigarette, or … a child [who] asks for something as he passes by an indulgent pedestrian’: at 372. Brennan J supported the view that a power to make a by-law prohibiting an activity authorises a by-law prohibiting that activity without permission; however, his Honour added a rider. After citing the view of Evatt J in Bradbury, Brennan J noted that a by-law conferring ‘a discretionary power that is too wide’ (at 368) may be invalid for the reason that it ‘might be used for a purpose other than the purpose for which the statute conferred power to make the by-law … [T]he repository of the power cannot create a discretion which would authorise discrimination among applicants for permission to engage in activities’: at 367.]

8.4.19  Bradbury 8.4.17C and Tanner 8.4.27C make the point that the form of words used to confer power to make subordinate rules is an important, but not necessarily a decisive, consideration. An example given in Bradbury is that a power to ‘regulate’ may, as to some activities or conduct, authorise a higher degree of control approaching prohibition. This is 495

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illustrated by Slattery v Naylor [1888] 13 App Cas 446, holding that a power to regulate the interment of the dead could validly authorise a subordinate rule prohibiting interment within 200 yards of a dwelling. Similarly, a partial prohibition may be consistent with regulation of a larger subject. O’Connell v Nixon held that a power to regulate appeals to a police promotions appeals board could prohibit an appeal from a person who had not applied for promotion unless the board ruled otherwise –– ‘a power to regulate an activity may include a power to prohibit part of an activity subject to discretionary dispensation’: at 451 (Nettle JA). Similar issues can arise when power to make subordinate rules is conferred in different terms, such as ‘control’, ‘restrain’, ‘suppress’ or ‘prevent’. For a fuller discussion, see DC Pearce and S Argument, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths, Sydney, 2017, ch 15.

The means/ends distinction 8.4.20  Another distinction that is influential, though not decisive, is that a power to make rules specifying the means to an end may not support rules that do no more than specify the end to be achieved or achieve the end through impermissible means. The distinction is illustrated by Paull 8.4.21C. 8.4.21C

Paull v Munday (1976) 9 ALR 245; 50 ALJR 551 High Court of Australia

[Section 94C(1)(c) of the Health Act 1935 (SA) provided that the Governor could make regulations ‘for or with respect to … regulating, controlling or prohibiting the emission of air impurities from fuel burning equipment or any air impurity source’. The Governor made reg 7 of the Clean Air Regulations, which provided that ‘no person shall … light, maintain or permit to burn any open fire on any land or premises without the written approval of the Local Board of Health’. The High Court held that the regulation was invalid.] Gibbs J: As a matter of logic and language a power to make regulations for or with respect to regulating, controlling or prohibiting the emission of air impurities from fuel burning equipment or any air impurity source does not enable regulations to be made prohibiting the use of such equipment or source. On the contrary, it is implicit in the expression of a power in those words that the equipment or source will continue to exist and function; it is assumed that equipment in use, or an operative source, will create impurities, and it is the emission of those impurities that may be regulated, controlled or prohibited. It is not in doubt that s 94C(1)(c) would not permit regulations to be made prohibiting fires from being lit or maintained in any furnace, boiler, fireplace, oven retort, incinerator or similar apparatus. The fact that a regulation prohibiting the use of a furnace might have the result that no smoke would be emitted from the furnace does not mean that such a regulation would be validly made under s 94C(1)(c). … Regulations of this kind might assist in bringing about the result which was apparently intended to be achieved by the making of regulations under s 94C, but they would do more than the section permits — they would go beyond the power granted … A power to do one thing cannot be validly exercised by doing something different, even if the effect of what is done is the same as that which would have resulted from doing what was permitted. A regulation is validly made under s 94C if it is made for or with respect to any of the matters specified in that section; it is not valid if made for or with respect to

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other matters, even if its practical consequence is the same as that of a regulation for or with respect to the specified matters. A regulation cannot be upheld as within power simply because it appears to have no wider practical effect than a valid regulation would have; where a statute allows certain means to be adopted, it does not permit the adoption of different means which happen to lead to the same end … No doubt the general purpose for which it was intended that regulations should be made under s 94C was to reduce the level of pollution in the air, but the legislature has not given power to make regulations for that purpose; rather it has stated, with particularity, the matters for or with respect to which regulations may be made … [I]f it had been intended that the Governor should have power to prohibit the lighting of open fires … it would have been very easy to insert appropriate words in the section … It should be unnecessary to add that in determining whether or not the regulation is valid, the courts are not concerned with its wisdom or expediency; they are only concerned with the question whether the statute permitted the Governor to make it. For the reasons given … I am driven to the conclusion that the regulation was beyond power. Stephen J: Here means to an end, the maintenance of air purity, are strictly marked out; the end is to be achieved … by the making and enforcing of regulations which regulate, control or prohibit the emission of air impurities. To seek to give better effect to that end by making regulations which depart altogether from this subject matter is, to my mind, to seek to use other than the specified means in order to attain the desired end and is impermissible. [Mason J agreed with the judgment of Gibbs J. McTiernan J and Murphy J dissented in separate judgments. McTiernan J observed: ‘The regulation is clearly appropriate to the furtherance and fulfilment of the purposes of the Act — “clean air”?’: at 247. Murphy J, after noting that ‘legislation … directed towards preservation of the environment and public health should be given a beneficial construction’ (at 258), concluded that: ‘Regulation 7 accords with the general purposes of the Act which is concerned with the protection of public health and … with the control of air pollution’: at 259.]

8.4.22  The means/ends distinction was applied by the Privy Council in Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629. The Privy Council held that an Act conferring power to make regulations ‘relating to the safeguards and measures to be taken for securing the safety and health of persons engaged in … excavation work’ did not support a regulation providing that: ‘Every drive and tunnel shall be securely protected and made safe for persons employed therein’. It observed that ‘the power conferred by [the Act] related only to the means for achieving an end and not to the creation of the end itself ’: at 641. The regulation did not tell a contractor what measures it was to take to secure the safety of persons, but merely imposed an absolute duty to ensure safety.

Unreasonableness as a test of invalidity 8.4.23  The diminishing hesitation of Australian courts to apply a principle of unreasonableness to invalidate executive action is examined in Chapter 15. This hesitation has, in the past, been greater in cases dealing with the validity of subordinate legislation. Factors that underlie that reluctance include the broad authority usually given to make subordinate rules, the nature of the body making those rules (in many cases an elected local council), a concern not to stray into 497

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merits review, and a reluctance by courts to substitute their opinion on the reasonableness of subordinate legislation. That reluctance, in deciding validity of both subordinate legislation and administrative action, continues: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [65], [100]; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1. 8.4.24  Unreasonableness as a test for invalidity has been discussed in the context of the ‘reasonable proportionality’ test that must be met by subordinate legislation made pursuant to a power that is purposive in nature: Corporation of the City of Adelaide 8.4.29C and Li 15.2.18C. The reasonable proportionality test is discussed in the next section at 8.4.26ff, where the point is made in Vanstone 8.4.28C that disproportionality may be considered as an example of unreasonableness. There is, nonetheless, a stream of authority (continuing to the present) in which unreasonableness is separately discussed and applied, and it is convenient to note those cases. It is possible, too, that if the test of proportionality is confined to purposive powers, unreasonableness will be the appropriate test for non-purposive powers (a distinction that is discussed at 8.4.26). One of the few instances in which an argument of unreasonableness in relation to the validity of subordinate legislation was upheld is the Full Federal Court decision in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381. A fisheries management plan for allocating fishing quotas was held to be invalid, because it was ‘fundamentally flawed by [a] statistical fallacy inherent in its operation … [T]he relevant provisions of the plan were capricious and irrational, such that no reasonable person could ever have devised it’: at 401 (Beaumont and Hill JJ). Justice Lockhart observed: Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws.

8.4.25  De Silva v  Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502, where an unreasonableness argument was rejected by the Full Federal Court, provides an appropriate contrast. Because of civil unrest in Sri Lanka, people from that country who were temporarily in Australia had been allowed to extend their stay until July 1997. Shortly before that date the Australian Government amended the Migration Regulations to allow those who had arrived prior to November 1993 to seek permanent residence in Australia. The Full Federal Court rejected an argument that the regulation change was invalid by reason of the differential and unfavourable treatment of those arriving after 1993. The court noted that there was a policy rationale for the selection of the cut-off date; it could not be said of the regulation that it was ‘so oppressive and capricious that no reasonable mind can justify it’: at 510. See also Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11, discussed at 15.2.12; and Cheryala v  Minister for Immigration and Border Protection [2018] FCAFC 43.

Reasonable proportionality and the purpose/subject-matter distinction 8.4.26  There is a trend in public law, especially constitutional law, towards applying a test of ‘reasonable proportionality’ to decide whether a valid connection exists between a legislative or executive action and the purported source of authority for that action. The application of a ‘reasonable proportionality’ test in examining the validity of subordinate legislation was first 498

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approved by the High Court in Tanner 8.4.27C in relation to a regulation-making power that was purposive in nature (viz, to prevent pollution). Vanstone 8.4.28C, which applies the reasonable proportionality test, also accepts the purpose/non-purposive distinction. (An example of a purposive power is to prevent pollution; an example of a non-purposive power is to regulate a subject matter or activity, such as ‘construction of buildings’ or ‘storage of eggs’.) The more recent decision of the High Court in Corporation of the City of Adelaide 8.4.29C discusses the subtle interrelationship of all concepts — unreasonableness, proportionality, means and ends — in relation to both purposive and non-purposive powers. A common approach is to ask whether a subordinate instrument goes beyond any restraint which could be reasonably adopted for the prescribed purpose. All cases refer approvingly to the test enunciated by Dixon J in Williams (No 1) 9.2.30C at 165, of whether a subordinate instrument is within the scope of what parliament intended in enacting the statute. See too the Hon J Griffiths, ‘Judicial Review of Administrative Action in Australia’ (2017) 88 AIAL Forum 9. 8.4.27C

South Australia v Tanner (1989) 166 CLR 161; 83 ALR 631 High Court of Australia

[Section 10 of the Waterworks Act 1932 (SA) provided that the Governor could make regulations ‘for regulating, controlling or prohibiting the use of any land within a watershed or within a watershed zone so as to reduce or prevent the deterioration or pollution of any water within a watershed or watershed zone’. The Governor made a regulation, reg 37.2.1, providing that ‘no person shall erect, construct, enlarge or establish a piggery, zoo or feedlot on any land within a watershed’. Regulation 37.2.3 defined ‘zoo’ as ‘any building, enclosure, yard or structure on any land upon or within which any animals, birds, reptiles … are kept primarily for the purpose of display or exhibition’. The High Court upheld the validity of the regulation.] Wilson, Dawson, Toohey and Gaudron JJ: The starting point of any consideration of the validity of reg 37.2.1 must be to determine the ‘true nature and purpose of the [regulationmaking] power’, to adopt the words of Dixon J in Williams v Melbourne Corporation (1933) 49 CLR 142 at 155. In order to reduce or prevent the deterioration or pollution of any water within a watershed, the Governor is empowered to regulate, control or prohibit the use of any land within that watershed. There is conferred, therefore, an extensive power governed by a far-reaching purpose. Each of these features is significant. The power is not limited to regulating or controlling the use of land; it extends to outright prohibition of the use of any land within a watershed, provided, of course, that the prohibition has a sufficient nexus to the expressed purpose. Nor is the power conferred simply to reduce the pollution or deterioration of water that has already occurred or is occurring; the object extends to its prevention. The problem of pollution or deterioration of the water may range from slight to grave, and there may be a whole range of measures that might work to reduce or prevent the problem and from which a choice must be made. In many cases it will be impossible to demonstrate that the measures which are adopted will actually be effective. The prudent choice of measures will often depend on administrative practicalities and the availability of expert advice of a scientific nature. In this context, there must be conceded a broad, rather than a narrow,

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approach in determining the nexus between the exercise of the power and the achievement of the purpose for which it is conferred. In considering the present challenge to the validity of reg 37.2.1, it is necessary for the court to form a view as to the existence and dimensions of the actual or threatened pollution or deterioration of the water in the watershed. Those are matters of fact upon which the court must be instructed by appropriate evidence. They are not questions of which the court may take judicial notice. Once armed with knowledge of the facts, the court is in a position properly to determine whether the regulation under attack is reasonably capable of being considered a measure ‘to reduce or prevent the deterioration or pollution of any water within a watershed or watershed zone’. In the course of argument, the parties accepted the reasonable proportionality test of validity (cf Deane J in Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1 at 260; 46 ALR 625), namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose. However, they differed in the answers to which their application of the test led. The same test, in relation to a power limited to regulation, was expressed by Dixon J in Williams, at 156, as being, in substance, whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose. [Their Honours described the evidence, which pointed to the fragility of the Watershed, and the danger posed to water quality by urbanisation and by zoos and other animal-keeping activities, and continued:] … The Solicitor General of South Australia, appearing for the appellant, argued that reg 37.2.1 is valid because it can reasonably be considered that by prohibiting the stated uses of the land it was likely that water deterioration within the Watershed would be reduced or prevented. The choice of means whereby the purpose is to be achieved is for the Governor, so long as there is a sufficient nexus between the means adopted and the end to be achieved. It is not to the point that the threat of pollution which is implicit in the respondents’ proposal, viewed in isolation, may be so slight as not to warrant the complete prohibition of the use of the respondents’ land for the purpose of an aviary. The aviary might be quite small. The problem of waste management might be handled without difficulty. The attraction of additional visitors to the town of Hahndorf by reason of the existence of the aviary might not increase the existing threat to water quality within the Watershed. Nevertheless, so the argument ran, the sufficiency of the nexus between the exercise of the power and the purpose for which the power is granted is not to be determined by the operation of the regulation in a particular case. The Solicitor General relied on the decision of the Supreme Court of Victoria in Seeligson [8.4.8C] at 369–70, for the proposition that all legislation must of necessity be in ‘more or less general terms’ and a regulation is not to be rendered invalid because its application to particular circumstances is not warranted in terms of the enabling purpose. … As we have said, the parties are agreed that the test of validity is whether the regulation is capable of being considered to be reasonably proportionate to the end to be achieved. The line between the opposing arguments is finely drawn. In the end, the answer is largely a matter of impression. On the one hand, in the application of reg 37.2.1 to the respondents’ land, having regard to the proposed development, one could be led to echo the exclamation of Millhouse J: ‘Talk about using a sledge hammer to crack a nut’. On the other hand, a court must exercise care not to impose its own untutored judgment on the legislator. … It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power. Nor is it enough to point, as did Jacobs J in his reasons for judgment, to other provisions in the Waterworks

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Regulations which impose only qualified prohibitions as a step leading to a conclusion that a total prohibition of the kind contained in reg 37.2.1 is unjustified. To do that is again to substitute the judgment of the court for that of the legislator. In our opinion the regulation is a valid exercise of the power conferred by s 10(1)XXIV of the Waterworks Act. The evidence of Mr Harvey shows that the problem of the quality of water in the watershed is an acute one and that quite extraordinary measures are justified in order to reduce or prevent its deterioration or pollution. For example, it could not be doubted that the establishment within the watershed of a zoo, as one ordinarily understands that term, could be prohibited absolutely in order to prevent pollution of the water supply. Considered in isolation, an aviary may represent a considerable extension of the ordinary meaning of a zoo, but we are unable to conclude that it was not reasonably open to the legislator to determine that all aviaries established primarily for the display or exhibition of birds and hence with the intention of attracting members of the public should be absolutely prohibited in furtherance of the stated purpose. [Part of Brennan J’s judgment was extracted in 8.4.3. His Honour was critical of the ‘undiscriminating nature of the regulation’ and his view that it could ‘have been framed with more particularity without adversely affecting the fulfilment of the statutory object’. His Honour referred to two aspects of the regulation that denied its validity: (1) the absence of any attempt to prescribe, even in broad terms, any factors (for example, the number or species of animals or birds) which would be material to the degree of risk to water supply to be apprehended from use of land in the watershed area in one of the forbidden ways; and (2) the uniformity of the prohibition throughout the whole of the watershed area, including the township of Hahndorf, irrespective of the distance of any part of the area from the area of the reservoir and irrespective of the access of the land to any watercourse or other means of transmitting pollution or disease to the water supply.]

8.4.28C

Vanstone v Clark (2005) 147 FCR 299; 224 ALR 666; 88 ALD 520 Federal Court of Australia (Full Court)

[Section 40 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (ATSIC Act) provided that the minister could suspend a commissioner from office for ‘misbehaviour’. Section 4A provided that ‘the Minister may make a written determination providing that specified behaviour is taken to be misbehaviour for the purposes of this Act’. Exercising that power, the minister made the ATSIC (Misbehaviour) Determination 2002 (Cth), specifying as misbehaviour certain categories of conduct that included serious disruption of an ATSIC meeting, sexual harassment, dishonesty, behaving in a way that brings the integrity and reputation of an Aboriginal body into disrepute, bribery, misuse of funds or equipment of an Aboriginal body, and (in cl 5(1)(k)) that ‘the person is convicted of an offence for which there is a penalty of imprisonment’. Mr Clark, the Chairperson of the Aboriginal and Torres Strait Islander Commission (ATSIC), was found guilty by the County Court of Victoria of obstructing police, an offence for which there was a maximum penalty of imprisonment for six months. Relying on cl 5(1)(k), in 2004 the minister suspended Mr Clark from office as a commissioner.

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The court held that cl 5(1)(k) was invalid and could not support the minister’s decision, and that the minister’s decision in reliance on s 40 was invalid for failing to have regard to a relevant consideration. ATSIC was abolished during the course of this proceeding. The court decided nonetheless to deliver judgment, to resolve both the controversy and the important questions of law raised by Mr Clark’s suspension from office.] Weinberg J: It is now tolerably clear that delegated legislation, made pursuant to a purposive empowering provision, will be struck down if it fails the test of reasonable proportionality. In some of the authorities, this principle is referred to in terms of ‘arbitrariness’, ‘capriciousness’ or ‘unreasonableness’. While these concepts can, and sometimes are, distinguished from ‘reasonable proportionality’, they can also be regarded as indicia of a failure to satisfy that test. The primary judge did not use the term ‘reasonable proportionality’. However, his finding that the relevant clause was ‘capable of operating arbitrarily or capriciously’ was tantamount to a finding that it failed that test. Pearce [viz, D Pearce & S Argument, Delegated Legislation in Australia, 2nd ed, Butterworths, Sydney, 1999] contends that there is a distinction between unreasonableness and lack of reasonable proportionality. It is argued that unreasonableness may be more difficult to establish, bearing in mind that it applies to all delegated legislation, and not merely that which is made pursuant to an empowering provision that is purposive. Pearce argues that when it comes to proportionality, there is a slightly lower threshold of invalidity. The question then is whether the delegated legislation is capable of being reasonably considered to be appropriate and adapted to achieve the prescribed purpose. A finding that the impugned clause is capable of operating arbitrarily or capriciously would seem to satisfy both tests, but certainly would meet the latter. [His Honour referred to M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 4th ed, Lawbook Co, 2009.] The 4th edition of that work notes that although used in subordinate legislation cases ‘proportionality has different meanings to that which has emerged in the English cases’ (6 139) and that ‘when it comes to non-constitutional judicial review of administrative action more generally, the Australian cases have for the most part been more tentative’ (6 140). [His Honour then referred to authorities, including the judgment of Lockhart J in Austral Fisheries 8.4.24, holding that a subordinate rule could be invalid as unreasonable if it was manifestly arbitrary, oppressive, capricious or irrational such that Parliament could not be taken to have authorised it.] Though Lockhart J spoke of ‘unreasonableness’, his Honour plainly had in mind the considerations that now tend to be subsumed within the notion of ‘reasonable proportionality’. The move from ‘unreasonableness’ to ‘lack of reasonable proportionality’ appears linked to the increasing use by the High Court of the latter concept in certain aspects of constitutional law. … This appears to reflect a divergence from the approach in the United Kingdom, where ‘unreasonableness’ per se is still regarded as a ground for invalidating subordinate legislation … A court will not easily be persuaded to strike down delegated legislation on the ground of lack of reasonable proportionality. The reason is plain. Courts are naturally wary of the dangers of becoming embroiled in merits review under the guise of judicial review. Unless ‘proportionality’, as a basis for challenge, is kept strictly in check, there is a risk that courts will transgress their legitimate function. In the context of challenges to by-laws, there is an additional consideration favouring judicial restraint. Courts must give full weight to the fact that by-laws are made by local government bodies, whose members are democratically elected and directly accountable to their constituents. Despite these considerations, courts must always be prepared to perform their constitutional duty, and declare invalid delegated legislation that has been unlawfully promulgated.

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There are plainly some analogies to be drawn between delegated legislation that lacks reasonable proportionality and delegated legislation that is logically fallacious … However, the principle goes beyond logical fallaciousness. Delegated legislation that has the potential to operate arbitrarily or capriciously has, on occasion been struck down, and solely on that basis. Some commentators have suggested that there should be a presumption that delegated legislation, no matter how oppressive it has the potential to be, will be enforced with restraint. There can be no justification for such an approach, either empirically or in principle. A belief that those entrusted with statutory power will always exercise that power in an appropriate way, is ultimately destructive of the rule of law. As Pearce notes at 238: If a legitimate interpretation of a by-law can impose an unreasonable obligation on a person, it would seem that the by-law falls within the test of invalidity … It is no answer that the by-law may be reasonably enforced. Those subject to the actions of officials know too well the use that can be made of power to harass or the pedantic view that can be taken of legislation. The question asked should be what can be required under the by-law; not what can it be expected the enforcing authority will require. The latter is speculative, and there can be no certainty that the administering authority will enforce the by-law reasonably … Insofar as the ‘reasonable proportionality test’ has come to be used as a basis for invalidating delegated legislation, it should be noted that there are other limitations upon its applicability. Selway J has suggested, by analogy with recent constitutional interpretative developments that such legislation can only be struck down on this ground if the relevant power to make such legislation is ‘purposive’. A ‘purposive power’ is one where the criterion of validity is that the law-maker achieve a certain purpose or object. Under the Constitution, the High Court has held that there are at least two such powers — external affairs and defence. The validity of a statutory provision purportedly supported by one or other of these powers is determined by whether that provision can be reasonably considered as ‘appropriate and adapted’ to carrying out an object that impresses it with the character of the particular power … The validity of delegated legislation that stems from empowering provisions that are purposive in nature is determined in much the same way. In Williams v Melbourne Corporation (1933) 49 CLR 142, Dixon J said at 155: To determine whether a by-law is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the by-law appears on its face to relate to that subject. The true nature and purpose of the power must be determined, and it must often be necessary to examine the operation of the by-law in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not have reasonably have been adopted as a means of attaining the ends of the power. In such a case, the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power. [His Honour referred to authorities discussing the test of reasonable proportionality, including Tanner 8.4.27C, and Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 (FC), and continued:] It may be accepted that these cases are very much the exception, rather than the rule. Most challenges based upon the reasonable proportionality

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test have failed. Nonetheless, each case must be decided upon its own particular facts, and as the High Court noted in Tanner, they often involve matters of impression … … Delegated legislation made pursuant to a purposive empowering provision will be invalid if it fails the test of reasonable proportionality. Admittedly this is a ‘stringent test’. It will only be satisfied in ‘an extreme case’: Austral Fisheries at 384 per Lockhart J, and at 401 per Beaumont and Hill JJ. I agree with the primary judge that the present case is just such a case. [His Honour noted that cl 5(1)(k) applied across the board to all offences that carried a term of imprisonment; thousands of Commonwealth, state and territory offences did so; conduct punishable in one state was not in another; and some offences imposed imprisonment for trivial conduct. Examples of offences given by Weinberg J were intoxication, offensive behaviour or language, disorderly conduct, consorting with thieves and prostitutes, begging, leaving an unguarded hole in a public place, posting a placard on a building without consent, singing an obscene song, disturbing religious worship, unlawfully leaving a gate open on farming land, and setting off fireworks in a public place. His Honour continued:] It is not difficult to see why, in these circumstances, the primary judge concluded that cl 5(1)(k) did not meet the standards of reasonable proportionality. His Honour correctly asked himself whether, viewed through the prism of ATSIC’s role under the Act, and its responsibilities towards indigenous people, suspension or termination could possibly be justified in such circumstances. He noted that ATSIC, while it existed, was unique among Australian statutory bodies. It was part of the executive arm of government but, at the same time, had a vital function in representing the views of indigenous people. It played an important role in policy formulation. It also took responsibility for the management of various government programs. It was, to a considerable degree, a body intended to be autonomous, and independent of government, while still being an arm of government. On that basis, parliament could not have intended that commissioners be removed for conduct that most sensible people would regard as relatively harmless. Yet, the 2002 Determination brought such conduct squarely into the ambit of misbehaviour … The vice in cl 5(1)(k) lies in its failure to filter out, as a possible basis for the Minister’s consideration, conduct that could not conceivably warrant suspension, still less termination. In that sense, cl 5(1)(k) is premised upon reasoning that is seriously flawed, almost to the same extent as reasoning containing a logical fallacy. [Black CJ held that cl 5(1)(k) was invalid, by different reasoning. Clause 5(1)(k) did not, as required by s 4A(1) of the Act, specify the behaviour that is taken to be misbehaviour. Clause 5(1)(k) did not refer to the conduct of a person, but to the consequence of that conduct (viz, conviction). Alternatively, it was a general description of conduct rather than its specification. The third member of the court, Selway J, died before judgment. The parties consented to the appeal being decided by the remaining two members of the court.]

8.4.29C

Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; 295 ALR 197; [2013] HCA 3 High Court of Australia

[The High Court upheld the validity of a by-law made by the Adelaide City Council which prohibited persons preaching or distributing printed material on any road to any passerby without council permission. The challenge to the validity of the by-law was brought by Mr Corneloup, the President of ‘Street Church’, an organisation existing for the purpose of preaching Christian principles on the streets of Adelaide.]

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French CJ: Applying the general approach to ‘unreasonableness’ set out in the preceding cases, and accepting its subsistence as a limit on delegated legislative power, the impugned provisions of By-law No 4 could not be said to have been invalid on that ground. Paragraphs 2.3 and 2.8 provided a rational mechanism for the regulation by proscription, absent permission, of conduct on roads which involves unsolicited communication to members of the public. They were not, on their face, capricious or oppressive. Nor did they represent a gratuitous interference with the rights of those affected by them. They provided a mechanism for protecting members of the public from gratuitous interference with their freedom to choose whether and, if so, when and where they would be the subject of proselytising communications. They were directed to modes and places of communication, rather than content. It was not necessary to the application of the high threshold test of unreasonableness to consider possible alternative modes of regulation. The criterion is not confined to purposive powers. Paragraphs 2.3 and 2.8 were not invalid on account of unreasonableness. The difficulties of making out a challenge to validity on the basis of unreasonableness no doubt explain the focus in the third respondent’s written submissions on the ground of contention asserting lack of reasonable proportionality. Proportionality is not a legal doctrine. In Australia it designates a class of criteria used to determine the validity or lawfulness of legislative and administrative action by reference to rational relationships between purpose and means, and the interaction of competing legal rules and principles, including qualifications of constitutional guarantees, immunities or freedoms. Proportionality criteria have been applied to purposive and incidental law-making powers derived from the Constitution and from statutes. They have also been applied in determining the validity of laws affecting constitutional guarantees, immunities and freedoms, including the implied freedom of political communication which is considered later in these reasons. … In South Australia v Tanner, which concerned the validity of delegated legislation, the majority noted, without demur, that the parties had accepted ‘the reasonable proportionality test of validity … namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose’. Their Honours equated that test with the test enunciated by Dixon J in Williams and added that it was ‘in substance, whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose’. The test sets an appropriate limit on the exercise of purposive powers entrusted to a public authority to make delegated legislation. It gives due respect to the authority entrusted by the parliament in the law-making body. Historically, it can be regarded as a development of the high threshold ‘unreasonableness’ test derived from the nineteenth century English authorities. It requires a rational relationship between the purpose for which the power is conferred and the laws made in furtherance of that purpose, whether it be widely or narrowly defined. … The high threshold test for reasonable proportionality should be accepted as that applicable to delegated legislation made in furtherance of a purposive power. The proportionality test formulated by Dixon J in Williams, adopted by Deane J in the Tasmanian Dam Case, and accepted in Tanner, makes it clear that a reviewing court is not entitled to substitute its own view of what would be a reasonable law for that of the legislature or a body exercising delegated legislative power. So formulated, the criterion of reasonable proportionality can be regarded as an application of the unreasonableness criterion, adapted to a purposive law-making power. Hayne J: Consideration of this challenge to the by-law must begin with what was said by Dixon J in Williams v Melbourne Corporation. Dixon J said that ‘[t]o determine whether

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a by-law is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the by-law appears on its face to relate to that subject’. Examination of the legal and practical operation of the by-law may reveal that ‘it could not reasonably have been adopted as a means of attaining the ends of the power’. He continued by observing that ‘[i]n such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power’. Two fundamental points follow and must not be obscured. The first is that the relevant question is the character of the relevant provisions and the sufficiency of their connection with the relevant by-law making power. And the second is related to the first: the court is concerned not with the expediency of the by-law but with the power to make it. As Fullagar J later pointed out in Clements v Bull, this court’s decision in Williams discredited the ‘idea that a by-law could be held invalid because it appeared to a court to be an “unreasonable” provision’. Because the court is here concerned with the power to make by-laws, attention must be given in the first instance to the terms of the by-law making power conferred by the statute. As Gummow J said in Minister for Resources v Dover Fisheries Pty Ltd, ‘[t]he fundamental question is whether the delegated legislation is within the scope of what the Parliament intended when enacting the statute which empowers the subordinate authority to make certain laws’. Attention can then turn to the legal and the practical effect of the by-law to determine whether it has a sufficient connection to the by-law making power. No doubt that involves a question of degree and judgment. … The legal and practical operation of the impugned provisions, in the circumstances to which they apply, prevents obstruction of roads. Contrary to the submissions of Samuel Corneloup, the impugned provisions are not ‘fundamentally directed at banning most forms of communication in most public places’. Nor are they properly characterised as embracing ‘a large portion of everyday oral and written communication and much ordinary intercourse’. They are directed, and only directed, to the prevention of obstruction in the use of roads. And because that is so, the legal and practical effect of the impugned provisions is directly and substantially directed to the object of the relevant statutory head of by-law making power, namely, the convenience power. This challenge to the validity of the impugned provisions fails. Before turning to the other submissions made by the Corneloups, something more needs to be said about the submission that less restrictive means of achieving the same object could have been devised and that, consequently, the by-law was not a reasonable and proportionate exercise of the convenience power. The correctness of the assertion that less restrictive means of achieving the same object could have been devised depends upon what is meant by ‘less restrictive means’. In particular, the assertion provokes two further questions: ‘less restrictive of what?’ and ‘less than what?’ Assuming both of those further questions could be answered satisfactorily (and no answer was proffered in argument), that less restrictive means could be designed to achieve the same object raises the question why that proposition is relevant to the validity of the by-law. It could be relevant to validity only if at least one of the following assumptions is made good. Either the by-law making power is to be construed as conferring only a power to make by-laws which have the least restrictive effect possible on some specific interest while still achieving the same object, or the possibility of less restrictive means suggests that the by-law has an insufficient connection to the by-law making power. The former assumption is not lightly to be made and was not shown to apply to the convenience power in this appeal. The assumption seeks, in another guise, to impose a narrow construction upon the convenience power when, as has already been explained, its terms do not warrant such narrowing. And if selection of less restrictive means is not a condition upon

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the convenience power, the alleged existence of less restrictive means can only be peripheral at best to determining whether a sufficient connection exists between the by-law and the convenience power. Crennan and Kiefel JJ: A test of reasonableness has been applied to the making of bylaws by local authorities under statutory power for a long time. In earlier decisions the test was severely constrained. It was thought that an attack on a by-law on the ground that it was unreasonable was not likely to succeed, because it was assumed that the local authority was to be the sole judge of what was necessary, subject only to the qualification that a by-law might be held invalid if it were such that no reasonable person could pass it. The approach which is now adopted is that of Dixon J in Williams v Melbourne Corporation. [Crennan and Kiefell JJ referred to the test in Williams.] The by-law there in question regulated the driving of cattle through the streets of the City of Melbourne. The power said to support it was a power for the regulation of traffic. Dixon J said that the ultimate question was whether, when applied to conditions in the city, the by-law involved such an actual suppression of the use of the streets as to go beyond any restraint which could reasonably be adopted for the purpose of preserving the safety and convenience of traffic in general. Dixon J’s statement of a test of reasonableness bears an obvious affinity with a test of proportionality. So much has been recognised in later cases. [Crennan and Kiefel JJ referred to Tanner 8.4.27C and Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1 at 260; 46 ALR 625]. [Bell J agreed with Hayne J.]

8.4.30  As the judgments of French CJ and Hayne J in Corporation of the City of Adelaide 8.4.29C demonstrate, there has historically been considerable caution about treating ‘reasonable proportionality’ as a separate test of invalidity. French CJ said firmly, ‘Proportionality is not a legal doctrine’ (at 37); see aso Li 15.2.18C where His Honour referred to but did not endorse the doctrine. In Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, Gummow J (Hill J agreeing) stated that the governing tests were still those enunciated 50 years earlier by Dixon  J in Williams (quoted in Vanstone 8.4.28C, Shanahan 8.4.13C and Corporation of the City of Adelaide). ‘The fundamental question’, Gummow J observed, ‘is whether the delegated legislation is within the scope of what the parliament intended when enacting the statute which empowers the subordinate authority to make certain laws’: at 577. Justice  Cooper in Dover Fisheries noted the tendency in some cases to use different language, according to whether the regulation-making power is purposive or not. If it is purposive, ‘one approach is to ask whether the delegated legislation is a reasonable means of attaining the ends of the regulation or rule making power’ (at 584); but if the power is non-purposive, ‘the question is whether there is a real and substantial connection between the delegated legislation and the subject matter of the grant of power’: at 584. Justice Cooper further observed that the different tests may come together: Whether one describes the test as one of ‘reasonable proportionality’ or ‘unreasonableness’, the object is to find the limit set by the legislature for the proper exercise of the regulation or rule making power and then to measure the substantive operation of the delegated legislation by reference to that limit. In my view there is no substantive difference between the tests as stated. 507

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Control of Government Action

8.4.31  The intimation in Tanner 8.4.27C, Vanstone 8.4.28C and Dover Fisheries that a purpose/subject-matter distinction governs whether the ‘reasonable proportionality’ test applies, follows a line of reasoning in constitutional cases. The test is there used in deciding the validity of a law made under a purposive head of power (for example, to make laws with respect to ‘defence’), but not a non-purposive head of power (for example, to make laws with respect to ‘currency’): see Leask v Commonwealth (1996) 187 CLR 579 and Theophanous v Commonwealth (2006) 225 CLR 101 at 128. One difficulty in applying the same distinction in administrative law is that most statutory powers are purposive either expressly or implicitly. As Stephen  J noted in Toohey 10.2.13C, statutory powers ‘will seldom if ever be conferred in gross, devoid of purposes or criteria, express or implied, by reference to which they are intended to be exercised’: at 204. The purpose/subject-matter distinction also runs the risk of artificiality when applied to a complex statutory scheme. De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502 provides an illustration. There it was held by the Full Federal Court that a power conferred by the Migration Act  1958 (Cth) (s  504) to make regulations necessary or convenient for giving effect to the Act was purposive in nature because the overriding purpose of the Act, as defined in the objects section (s  4), was to regulate in the national interest the coming into and presence in Australia of non-citizens. On that view, the reasonable proportionality test is capable of almost general application. See G Hooper, ‘Judicial Review and Proportionality: Making a far-Reaching Difference to Administrative Law in Australia or a Misplaced and Injudicious Search for Administrative Justice’ (2017) 88 AIAL Forum 29; J Kinslor and J English, ‘Decision-Making in the National Interest?’ (2015) 79 AIAL Forum 35. For a discussion of the principle of legality and subordinate legislation, including whether subordinate laws are capable of removing or narrowing fundamental rights, see D Meagher and M Groves, ‘The Common Law Principle of Legality and Secondary Legislation’ (2016) 39 University of New South Wales Law Journal 6.

UNAUTHORISED DECISION-MAKING: THE DECISION-MAKER Categories of authorised decision-maker 8.5.1  Legislation, in conferring power to make a decision, will invariably nominate the person authorised to exercise that power (hereafter called ‘the principal’). Commonly, the principal is a minister, secretary, board or council. Accordingly, the validity of a decision can hinge on whether it was made by the person nominated in the legislation: Re Reference under Section 11 of Ombudsman Act  1976 for an Advisory Opinion; Ex  parte Director-General of Social Services 8.5.5C. In part this result is rooted in accountability: legal control of decision-making can more easily be imposed if it is known who is responsible for exercising a statutory function. In part, also, this result is encapsulated in a Latin maxim, delegatus non potest delegare — ‘a delegate cannot delegate’. The maxim presupposes that the principal is a delegate of the legislature and is obliged to safeguard the power so entrusted to them. 8.5.2  The modern reality, in large government agencies, is that it is seldom practical for the principal nominated in legislation personally to make all decisions. Hence it is common for legislation to authorise the principal to delegate the power to make decisions to another officer or the occupant of a position (hereafter called a ‘delegate’). The legislation may variously refer to the other officers as ‘delegates’, ‘authorised officers’ or some other term, and define or limit the 508

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scope of their decision-making capacity. But even these arrangements are unlikely to cope with all issues and situations. For example, it may be that no delegate or authorised decision-maker is available to make a decision, yet there is a pressing need for a decision to be made. Or it may not be feasible to erect a framework of delegations that adequately covers every decisive step in a decision-making process. There is a further risk that the widespread delegation of a power in a large government agency can be destructive of other public law ideals: the more that power is dispersed the harder it becomes to ensure consistency and overall accountability in decisionmaking through central managerial and political control. 8.5.3  The theory that has evolved to cope with those competing considerations recognises four different categories of authorised decision-making. • Principal: This is the person nominated in the legislation as the authorised decision-maker or statutory office-holder. The principal retains the authority to make decisions, even when the power to do so has been delegated to other officers: see, for example, the Acts Interpretation Act 1901 (Cth) s 34AB(d). Part VII of the Acts Interpretation Act 1901 (Cth) contains extensive provisions concerning the powers and duties of principals and delegates.

• Delegate: A delegate is the person or officer to whom a power or function has been delegated, by written instrument signed by the principal, pursuant to an authority to delegate conferred by legislation. The delegate may be a named officer or any officer filling a nominated position or office: AB Oxford Cold Storage Co Pty Ltd v  Arnott (2005) 11 VR 298; see also, for example, Acts Interpretation Act 1901 (Cth) s 34AA. The delegate’s scope of authority will be set out in the instrument of delegation; it may replicate that of the principal or be hedged with limitations or conditions (for example, that the delegate can only make decisions under a particular provision of the legislation, of a certain kind, or below a prescribed monetary limit). Within those limits, the delegate acts independently. For instance, as a general rule a decision-maker — whether principal or delegate — cannot act at the direction or behest of another person: see  12.2.6ff. Similarly, as illustrated in Re Reference 8.5.5C, it is expected that a delegate will sign a decision in their own name and not in the name of the principal.

• Agent: A person may act as an agent (surrogate, or alter ego) to make decisions on behalf of a principal or delegate. The situations in which this is permissible have not been clearly defined but arise where there is a ‘practical administrative necessity’: Re Reference 8.5.5C. O’Reilly v  Commissioner of State Bank of Victoria 8.5.6C provides an example of where an agency arrangement was condoned by the court, whereas Re Reference and Pattenden v Commissioner of Taxation 8.5.9C provide contrasting examples of where it was not. In O’Reilly the agency arrangement was established formally in writing, though this is probably not essential, since the legal justification is that there is a practical administrative necessity for an agent to act. Another point to note, as explained by Wilson J in O’Reilly, is that an agent is subject to the direction of the person on whose behalf they are acting. Moreover, the authority of an agent ceases when the principal leaves office, unlike a delegation of power which continues until formally revoked: Johnson v Veterans’ Review Board [2006] FCAFC 15.

• Administrative assistant: A designated decision-maker can obtain assistance from others, for example, to conduct research, interview someone, prepare a briefing paper or notify a decision to those affected. The administrative assistant is a form of agency and does not need to be authorised formally or to act under delegation: see Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 (see  8.5.7). The chief difficulty, as discussed in 8.5.8, 509

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is in drawing a line between work that can be done by an assistant and action that must be undertaken by a designated decision-maker or authorised officer. The issue is taken up in Chapter 9, concerning the circumstances in which work undertaken by an assistant can amount to a failure by the decision-maker to take account of a relevant consideration. 8.5.4  The position as described above has developed over time; concepts of ‘delegation’ and ‘agency’ were explained differently or used interchangeably in some earlier cases (as noted in Re Reference 8.5.5C). The wartime decision in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 — which is referred to frequently in the cases that follow — is to be seen in this light. There it was said that a statutory power conferred on a minister can ordinarily be exercised on the minister’s behalf by another officer, without the need for any formal delegation. Nowadays it is more common to use the term ‘agent’ to describe that position, and to define more narrowly the circumstances in which an agent has authority to act. Similarly, the expression ‘implied delegation’ is now applied more circumspectly than in earlier cases: see, for example, Ex parte Forster; Re University of Sydney [1963] SR (NSW) 723. In Australia at least, the concept of delegation tends now to be confined to situations where there is an express statutory power to delegate; the concept of implied delegation has merged with the more limited notion of ‘agency’. The use in legislation of terms such as ‘authorised officer’ adds further complexity. 8.5.5C Re Reference under Section 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 Administrative Appeals Tribunal [Section 11 of the Ombudsman Act 1976 (Cth) provided that the Commonwealth Ombudsman could request an agency to refer a question to the Administrative Appeals Tribunal for an advisory opinion. The referral in this case arose from an investigation undertaken by the Ombudsman subsequent to the decision of the High Court in Green v Daniels 7.2.4C. The question referred to the tribunal concerned the validity of a decision made by a delegate of the Director-General of Social Services under s 14 of the Social Services Act 1947 (Cth) to affirm an earlier decision refusing unemployment benefit to a school leaver. The delegate, Mr Prowse, had signed a letter (dated 13 July 1977) notifying the applicant of the decision to affirm the refusal of benefit. The letter was signed as follows: ‘LJ Daniels, Director-General’. Mr Prowse signed his own initials alongside. The tribunal held that the letter evidenced an attempted but invalid exercise by Mr Prowse of his delegated power.] Brennan J (President): An act done in purported exercise of a statutory power is valid if the act falls within the statutory provision which confers the power. Prima facie an act will not fall within the statute unless it be done by the person in whom the statute reposes the power (whom I shall call ‘the authority’). Validity is thus dependent upon the identity of the authority and the doer of the act. Where the power is not delegable, but the authority could not have been expected by the Parliament to have exercised it personally in the multitude of instances when its exercise would be required, it has been held that some classes of acts done by others for and on behalf

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of the authority should be treated as though they were the acts of the authority. In Carltona Ltd v Commissioners of Works [l943] 2 All ER 560, Lord Greene MR said (at 563): It cannot be supposed that this regulation meant that, in each case, the Minister in person should direct his mind to the matter. The duties imposed upon Ministers and the powers given to Ministers are normally exercised under the authority of the Ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the Minister. The Minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the Minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that Ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. The extent to which an authority may commit to other officials the performance of duties is primarily dependent upon the nature of the power to be exercised. In Ex parte Forster; Re University of Sydney [1963] SR (NSW) 723, the court (Sugerman, Else-Mitchell and Moffitt JJ) at 733 said in reference to the maxim delegatus non potest delegare: As a matter of the construction of the statute conferring the power, the application of the maxim, and its extent, must be considered with due regard to the purpose and objects of the statute, the character of the power which is conferred, the exigencies of the occasions which may arise with respect to its exercise, and other relevant considerations. Where acts are clothed with the character of acts done by the authority, they have the legal effect of acts done personally by that authority. In R v Skinner [1968] 2 QB 700, Widgery LJ (as he then was) said at 707: ‘It is not strictly a matter of delegation: it is that the official acts as the Minister himself and the official’s decision is the Minister’s decision’. It is often difficult to ascertain whether a given act is one which the authority may authorise another to perform on his behalf … and if an act is not one which may be so authorised, it cannot be effective to exercise the statutory power … Where the relevant power is not delegable, the only acts by which the power can be exercised are the acts of the authority and acts which, having regard to the nature of the power, the authority may authorise another to perform on his behalf and which have been so authorised. But where the relevant power is delegable and has been delegated, the delegate may — without further authorisation — act in effective exercise of the power. His acts are not treated as acts vicariously done by the authority. He is not an agent to exercise the authority’s power; he may validly exercise the power vested in him. … There is a confusing similarity between the exercise of an authority’s power by the authorised acts of another, and the exercise by an authority’s delegate of the power delegated to him. In either case the act — whether the act of the authorised person or the act of the delegate — is a valid exercise of power. Nonetheless, the sources of validity are different, though it must be said that the term ‘delegation’ has frequently been used to describe either case without distinguishing between them. For some purposes, a distinction must be made.

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8.5.5C

Control of Government Action

Where an authority has not delegated his power but he has authorised another to act in exercise of his power, the act is to be done in the name of the authority. … But where a delegate is exercising the power delegated to him, he may validly exercise that power in his own name. …. May a departmental officer to whom the Director-General’s powers and functions are delegated under s 12 of the Social Services Act elect whether to act as a delegate of power (in his own name), or an officer exercising the power of the Director-General (in the name of the Director-General)? In principle, there seems to be no reason why an attempted exercise of power should not be supported on either of the bases which would give validity to his act … but that approach assumes that the officer has a dual character — one who may exercise his own power and one who may exercise the like power vested in another. Is a dual character consistent with the statutory scheme for reviewing determinations under s 14 of the Social Services Act? I think not. The practical administrative necessity which warrants an authority’s exercising his power by the acts of another disappears when the authority is empowered to delegate all of his powers and functions to that other. Although the Director-General retains the function and power of making decisions under s 14 after he delegates his powers and functions to another (s 12(3)), there is no administrative necessity for the Director-General to have s 14 matters dealt with by delegates in reliance on his powers rather than their own. The delegation of powers avoids the administrative necessity to exercise powers by the acts of others. In cases falling under s 14, the delegation of powers avoids a possible but undesirable dichotomy between the person who ascertains whether ‘it appears that sufficient reason exists for reviewing a determination’ and the person who exercises the power. The function of ascertaining whether sufficient reason exists is so connected with the exercise of the power to review that the function and the power must surely be intended to be vested in and exercised by the same person in any given case. … It follows that Mr Prowse must have acted in exercise of the powers delegated to him. Where the departmental practice, consequent upon a delegation of power to Mr Prowse, cast upon him the function of determining whether an earlier decision should be reviewed, it would be fanciful to regard him as exercising Mr Daniels’ powers rather than his own … On the footing that the letter of 13 July 1977 itself constitutes a purported review and affirmation, the signature ‘L J Daniels’ is not the signature of the person whose power was exercised by the writing of the letter. Mr Prowse’s power was intended to be exercised, but it was exercised in the name of Mr Daniels. The attempted exercise by a delegate of his own power miscarries when the very act of exercise purports to deny the power which gives validity to his act. If Mr Prowse’s letter had merely evidenced an act earlier done by him, the letter might not destroy the validity of the antecedent act: yet as a matter of administration the letter would be defective. It would on its face mislead the applicant into believing that Mr Daniels had dealt with his case and had exercised his powers adversely to him and if the applicant had been aware of his appeal rights under s 15, he might have been misled into thinking that he could not appeal to any higher official. It was said that there are good practical reasons for clothing a decision-maker with anonymity. It was said that a delegate who, exercising his delegated powers, adversely affected a citizen’s interests might be harassed by the citizen if the delegate’s identity were stated. I do not say that fears of this kind are not real, or that there is no foundation for them. But I see no justification, as a matter of general administrative policy, for lowering a curtain of anonymity between the citizen and those who are empowered to defeat or diminish his interests or

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Chapter 8  Unauthorised Decision-Making

expectations. If the responsibility for decision-making should be lifted from their shoulders, the power of decision-making should be correspondingly revoked. … If, in particular cases, some anonymity is reasonably justified, it is right that the legislature which provided for a massive devolution of the powers of the Director-General, should define the extent and conditions of the anonymity required.

8.5.6C

O’Reilly v Commissioner of State Bank of Victoria (1982) 153 CLR 1 High Court of Australia

[Section 264 of the Income Tax Assessment Act 1936 (Cth) provided that the Commissioner of Taxation may by notice in writing require a person to give evidence or produce documents. Pursuant to s 8(1) of the Taxation Administration Act 1953 (Cth), the commissioner had delegated to a deputy commissioner the power conferred by s 264. The deputy commissioner had, in turn, given a written authorisation to a tax officer (Mr Holland) to issue notices under s 264 and to ‘imprint facsimile of my signature upon such notices’. Mr Holland had issued to a taxpayer a notice that was framed as a notice issued by the deputy commissioner. At the foot it bore a facsimile of the deputy commissioner’s signature. The High Court held by majority that the notice was valid.] Gibbs CJ: The important question that falls for decision is whether the giving of the notices was a valid exercise of the power given by s 264. Section 264 in terms confers power only on the Commissioner. However, it is not disputed that the delegation by the Commissioner to the Deputy Commissioner was valid. Equally, it is common ground that the Deputy Commissioner had no power of sub-delegation. On behalf of the defendants it was submitted that the authorisation given by the Deputy Commissioner on 23 September 1980 was an invalid sub-delegation or, alternatively, that the Deputy Commissioner had no power to authorise anyone else to exercise the power on his behalf. The question whether s 264 requires that the Commissioner (or his delegate) should personally sign the notice in writing is simply one of construction. In In re Whitley Partners Ltd (1886) 32 Ch D 337, at pp 340–1, Bowen LJ said: In every case where an Act requires a signature it is a pure question of construction on the terms of the particular Act whether its words are satisfied by signature by an agent. In some cases on some Acts the Courts have come to the conclusion that personal signature was required. In other cases on other Acts they have held that signature by an agent was sufficient. The law on the subject is thus summed up by Blackburn J, in Reg v Justices of Kent (1873) LR 8 QB 305, at p 307: ‘No doubt at common law, where a person authorises another to sign for him, the signature of the person so signing is the signature of the person authorising it; nevertheless, there may be cases in which a statute may require personal signature.’ Quain J, then says, ‘We ought not to restrict the common law rule, qui facit per alium facit per se, unless the statute makes a personal signature indispensable.’ There can be no doubt that 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 …

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… The answer to the question 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: cf Re Reference under Ombudsman Act s 11 [8.5.5C] at p 93, per Brennan J. [His Honour discussed the principles in the authorities including Carltona.] Those authorities established that when a minister is entrusted with administrative functions he may, in general, act through a duly authorised officer of his department. This result depended in part on the special position of constitutional responsibility which ministers occupy, and in that respect these authorities are distinguishable from cases such as the present. However, they also rest on the recognition that the functions of a minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally. Ministers are not alone in that position. This has been judicially recognised. … I can see no reason why, in construing sections of the Act which confer powers on the Commissioner, it should not be proper to consider the undoubted fact that the Commissioner could not possibly exercise all those powers personally. Section 264 confers on the Commissioner a power whose exercise will be likely adversely to affect rights of individuals. This is a reason for inclining in favour of the view that it must be exercised personally. On the other hand, that section, and a number of other sections of the Act, confer on the Commissioner powers which may be expected to be exercised in myriads of cases. Those other sections … give power to make and amend assessments and to serve notice of assessments. Since there are literally millions of taxpayers (according to Year Book Australia 1982, p 577, there were over 5.6 million individual taxpayers in the year 1979–80) 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. It cannot be supposed that the parliament intended such a result … The existence of a power to delegate is of course an important consideration in deciding whether the designated authority may act through an authorised agent. However, the fact that the Act itself contemplates that the delegation will be to a Deputy Commissioner only … suggests that it was not intended that there should be a wholesale delegation of powers to comparatively minor officials. But in any case, it would hardly be practicable to make a delegation of that kind, and it seems to me that there exists, as the parliament must have known, a practical necessity that the powers conferred on the Commissioner by the Act should be exercised by the officers of his Department who were acting as his authorised agents. On the whole I have reached the conclusion that 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 … Wilson J: It seems to me that a clear distinction is to be drawn between the delegation of a power and the exercise of that power through servants or agents: see the informative discussion by Brennan J in Re Reference under Ombudsman Act, s 1 [8.5.5C] at pp 93–5. [His Honour discussed and rejected two arguments made by the plaintiff: that the principle enunciated in Carltona is applicable only to a minister; and that the existence of a power of delegation in s 8 of the Taxation Administration Act made it unnecessary to permit the practice under challenge. His Honour continued:] The practical administrative necessity to allow a Deputy Commissioner to exercise the powers delegated to him by the actions of officers authorised by him is evident. The opposing argument would oblige the Commissioner himself to delegate his powers, not only to the Deputy Commissioners, but to a host of departmental

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8.5.7

officers throughout Australia, rendering each of them a Commissioner in his own right. It would be wholly destructive of any semblance of administrative order and efficiency. Nor does the plaintiffs’ argument have the result that s 8 of the Taxation Administration Act is otiose, in that there is no need for a power of delegation. There is every need for such a power, in the interests of administrative efficiency and a sensible devolution of power and responsibility throughout Australia. Without the power of delegation, every act performed by departmental officers throughout Australia would be in law the act of the Commissioner, for which he would be responsible. By delegating substantially all of his powers and functions to Deputy Commissioners he transfers the power base to the geographic regions of the country, allowing the Department to operate in each of the States more or less as a separate administrative unit, with the Deputy Commissioner as its head. Without a power of delegation, this decentralisation would be impossible. Each of the notices which are under challenge is expressed to be an exercise by the Deputy Commissioner of the power under s 264 which was duly delegated to him. Each notice bears his signature. In my opinion each notice is what it purports to be. In resolving to issue the notice, Mr Holland was acting for the Deputy Commissioner, in exercise of an authority duly vested in him. His action was the action of the Deputy Commissioner, notwithstanding that the latter had no personal knowledge of it. [Murphy J agreed with Gibbs CJ. Mason J dissented, relying principally on three considerations: it was feasible for the commissioner to delegate to officers other than the deputy commissioner the power to issue notices under s 264; the issue of a notice under s 264 ‘involved a substantial exercise of discretion [and] may have a great impact on the affairs of individual persons’ (at 19); and the deputy commissioner had not exercised control over the officers issuing the notices in his name. His Honour observed that the practice adopted in the present case was appropriate for only ‘those powers and functions involving little or no exercise of discretion’ (at 18) or ‘being purely administrative in nature or having no consequences of any significance, may perhaps be entrusted to another to exercise despite a statutory proscription against delegation or sub-delegation’: at 19.]

8.5.7  An underlying point in O’Reilly 8.5.6C is that the nature of the decision being made can have an important bearing on whether an agent as opposed to a delegate can make that decision. This point is illustrated by Secretary, Department of Social Security v  Alvaro (1994) 50 FCR 213: see also 8.5.3. Section 1224 of the Social Security Act 1991 (Cth) provided that an overpayment of social security benefit was recoverable as a debt if the payment stemmed from a false statement or representation made by the recipient. Section  1237 conferred on the secretary a discretion to waive the recovery of any such debt. Section  1295 vested the general administration of the Act in the secretary. The Full Federal Court intimated that the administrative action necessary to raise a debt under s 1224 could be performed by a person acting as an agent for the secretary, whereas a decision to waive a debt under s 1237 could only be exercised by the secretary or an authorised delegate: von Doussa J (Spender and French JJ agreeing): Whilst s  1295 vests the general administration of the Act in the Secretary, it obviously was not the legislative intention that the Secretary personally perform all the functions necessary to carry the Act into effect. … A determination of which powers arising under the Act must be exercised personally by the 515

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Control of Government Action

Secretary or by his delegate, and which powers and functions may be exercised and carried out by officers acting in the course of and within the authority of their position in the Department is a matter of the construction of the Act … In the present case, the steps leading to a decision to raise a debt under s 1224 are … namely that an officer in the Department form an opinion that there has been a failure to comply with a provision of the Act …, or that there has been a false statement or representation, and that a benefit has been paid because of that, and that it would not otherwise have been paid. These are facts capable of being ascertained from objective evidence. The opinion to be formed is simply that the facts exist. Upon a review, the correctness of the opinions of the officer can be tested against the available evidentiary material. The officer in forming the requisite opinion and raising a debt under s 1224 is not exercising discretionary power. These are considerations which favour the view that an authorised officer may lawfully exercise functions of this kind in the name of the Secretary, or delegate of the Secretary, without holding a formal instrument of delegation under s 1299. If this view be correct, where a question arises whether the officer who formed the requisite opinion and raised a debt under s 1224 had authority to do so, it will be necessary to consider evidence as to the nature and scope of the duties of the position which the officer held … In contrast with the terms of s 1224, the power in s 1237(1) to waive a debt is clearly a discretionary power, and it is one vested expressly in the Secretary. The exercise of the discretion is one that significantly affects the rights and liabilities of a person who is otherwise indebted to the Commonwealth. Moreover, the discretion is one that is likely to be exercised in a manner that implements broad policy objectives under the Act, and where applicable, directions of the Minister given under s  1237(3). These are considerations which favour the view that the discretionary power is to be exercised personally and not by an authorised officer in the name of the Secretary, but they are not decisive. Even if the power is one that must be exercised personally, it is one that may be delegated to an officer by instrument under s 1299, in which case the delegate must exercise the power personally.

8.5.8  Another area of difficulty is in drawing a line between work that can be done by an assistant and action that must be undertaken by a designated decision-maker or authorised officer. As noted in  8.5.3, a person who is neither a principal nor a delegate can play a key preparatory role in a decision-making exercise. For example, Sean Investments Pty Ltd v  Mackellar 10.4.12C held that a decision-maker can adopt a substantial briefing paper prepared by another officer. Similarly, Australian Securities and Investments Commission v Loiterton (2000) 101 FCR 370 held that a person authorised by statute to conduct an inquiry or investigation can employ counsel to question witnesses. So too a minister considering amendment to a development plan requiring knowledge of technical, planning and policy matters is entitled to rely on others for advice: Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning (2009) 105 SASR 326. By contrast, Minister for Aboriginal Affairs v Peko-Wallsend Ltd 10.4.13C and Tickner v Chapman 10.4.16C both illustrate that the obligation of a decision-maker to consider all relevant matters cannot be performed on their behalf by an assistant. The same result was reached in Pattenden 8.5.9C in respect of a statutory function that required the personal attention of a designated decision-maker.

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8.5.9C

8.5.9C

Pattenden v Commissioner of Taxation (2008) 175 FCR 1; 106 ALD 482; [2008] FCA 1590 Federal Court of Australia

[Section 14S of the Taxation Administration Act 1953 (Cth) authorised the Commissioner of Taxation to issue a departure prohibition order (DPO). The effect of a DPO is to prevent a person who has an unpaid tax liability from leaving the country. The commissioner delegated the authority to issue a DPO to a deputy commissioner of taxation, who in turn signed an instrument of authorisation stating that a subordinate, Mr Benson, could issue a DPO in the name of the deputy commissioner. The Act requires that a DPO include details of a person’s tax liability. After Mr Benson approved a submission for a DPO to be issued to Mr Pattenden, another officer varied the statement of financial details in the DPO. The officer who did so was neither a delegate nor, like Mr Benson, an authorised officer. The court held that the DPO was invalid.] Logan J: [His Honour referred to O’Reilly 8.5.6C and observed that the present case proceeded on the assumption that it was lawful for Mr Benson to be authorised to issue a DPO in the name of the deputy commissioner.] The submission made on behalf of Mr Pattenden was that, accepting that the regime of delegation and authorisation was lawfully possible, it was not permissible for the authorised person, in turn, to consign substantive aspects of the making of the decision to subordinates. It was, rightly, no part of that submission that it was impermissible for an authorised person such as Mr Benson, having made a decision to make a DPO, to consign to a subordinate consequential, wholly procedural, clerical or ‘ministerial’ tasks such as the affixing of a facsimile of the Deputy Commissioner’s signature to the DPO or the communication to Mr Pattenden of the making of the DPO. Rather, the submission was that, when one examined the facts of this case, the decision as made and evidenced by the DPO was not that of Mr Benson in all key respects … Section 14S contemplates the making of a decision to issue a DPO by the Commissioner (or a delegate) who has formed a belief on reasonable grounds that it is desirable that a person subject to a particular tax liability not depart Australia without wholly discharging that tax liability; or making arrangements satisfactory to the Commissioner for that tax liability to be wholly discharged. The value judgment entailed in the decision is necessarily referable to wholly discharging or making satisfactory arrangements for wholly discharging the tax liability in respect of which the decision is made. These same requirements necessarily attend the making of a decision by an authorised person for a delegate. It is a usurpation of that authority for that person’s unauthorised subordinate to presume to insert into what purports to be a DPO made by and on behalf of and in the name of a delegate a tax liability that is different to that in respect of which the authorised officer has made his decision on behalf of that delegate … There is authority that the ability of a subordinate to exercise in the name of a Minister of State a statutory power conferred on the minister need not be found in a formal instrument of authority but may permissibly be found in departmental practice … In this case the delegate has executed a formal instrument of authority. That instrument carefully delineates the extent to which particular subordinates are entitled to exercise delegated power in the name of the delegate. It is necessarily to be inferred that the instrument evidences a considered decision by a Deputy Commissioner of Taxation as to which subordinates, having regard to the knowledge and experience required to hold particular subordinate positions, ought responsibly to be given authority to make a particular type of decision in the name of that Deputy Commissioner.

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Control of Government Action

The instrument of authorisation gives a desirable certainty of authority to subordinates, as opposed to consigning such matters to informal practice and to the uncertainty of whether that practice would be regarded as acceptable having regard to the nature of the power and the level at which authority was exercised. The deliberate exclusion in the instrument of persons of lesser seniority than Mr Benson from having authority to decide on behalf of the delegate to issue a DPO tells against such persons possessing any authority by informal practice. … [The power to issue a DPO is] a power that entails a serious intrusion on a person’s freedom of movement. There is therefore every reason to expect that the non-procedural aspects of the decision will be made only by the authorised officer. Mr Benson never made a decision to make a DPO in respect of the taxation liability specified in the purported DPO of 21 May 2008. The decision to insert a different taxation liability in that order was that of unauthorised subordinates.

8.5.10  An allied point is that instruments of delegation are, generally speaking, construed narrowly to accord with their literal meaning. The reason often given is that an instrument authorises an official to exercise the power of another, and this may have an adverse effect on an individual. For example, Perpetual Trustee Co (Canberra) Ltd v  Commissioner for ACT Revenue (1994) 123 ACTR 17 held that an instrument of delegation authorising an officer to ‘request’ information from a witness did not constitute a delegation of the principal’s statutory power to compel that person to attend and answer questions; Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450 held that a statutory power to grant or refuse development consent was indivisible, and the delegation of that power could not be confined to granting consent on specified grounds. 8.5.11  There is a field of debate as to whether these legal principles are an appropriate legal safeguard or are unrealistically technical. Arguments in support of the principles, stated in the foregoing cases, include: the principles give effect to the plain language of the legislation; they facilitate legal accountability of decision-makers by creating a clear and transparent structure for decision-making; they require management to decide which officers are suitably qualified to make decisions; and they safeguard individual rights by confining and structuring the authority to make decisions that can encroach on rights. Arguments to the contrary assert that the legal principles go further than those considerations require, and fail to acknowledge that routine administration within an agency is a collective or institutional process rather than a series of discrete actions taken by individuals. The exigencies of decision-making, it is argued, are more sympathetically treated in other areas of law, such as private law, where notions of agency and ostensible authority are more favourably received. See E Campbell, ‘Ostensible Authority in Public Law’ (1999) 27 Federal Law Review 1 8.5.23E. The compromise position, increasingly adopted in legislation, is to spell out specifically the functions that are delegable and to which officers: see, for example, Therapeutic Goods Act 1989 (Cth) s  57. A contrasting approach — primely illustrated in the Migration Act  1958 (Cth); for example, s  46A(3) — is to declare that particular powers are exercisable only by the minister personally and that there is no obligation on the minister to consider whether to do so. It is nevertheless open to the minister in those circumstances to rely on departmental officials — acting in the role of ‘assistant’ — to prepare a briefing for the minister on the options for ministerial intervention in a particular case: see Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at [99(i)] (Gummow, Hayne, Crennan and Bell JJ), [111] (Heydon J). 518

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Chapter 8  Unauthorised Decision-Making

Delegation and agency — some refinements and special issues Statutory modification 8.5.12  The position as described in the foregoing cases and discussion is a statement of general principles. It is open to the legislature in any statute to depart from or supplement those rules. An example — noted above — is that many statutes use alternative phraseology such as ‘authorised officer’ or ‘prescribed person’, with a meaning and functions (usually of limited scope) defined in the statute. AB Oxford Cold Storage Co Pty Ltd v Arnott (2005) 11 VR 298 illustrates the complexity that arose where there were multiple layers of delegation and statutory authorisation, and the question was whether an inspector who commenced prosecution proceedings was authorised to do so, and if so by signing his own name. In Corneloup v Launceston City Council [2016] FCA 974, the preacher involved in Adelaide City Corporation 8.4.29C was again denied a permit to preach in a city mall, but on this occasion because the Launceston Council decision-maker had not been appointed as an ‘authorised officer’ for the purpose of the mall’s by-law. 8.5.13  Federal and state interpretation legislation also contains numerous provisions that spell out special presumptions about delegations. Examples in the Acts Interpretation Act 1901 (Cth) include:

• section 34AA, providing that (unless the contrary intention applies) a power or duty can be delegated either to a specified person or to any person from time to time occupying a specified position (even if the position does not come into existence until after the delegation is given);

• section 34AAA, providing that if an Act confers a function or duty on a person ‘holding or occupying an office or position as such’ then the power cannot be delegated;

• section 34AB, providing that a delegation of a power does not prevent the office-holder also exercising the power, and that if legislation adds to or amends a power or duty which has been delegated, the functions of the delegate are added to or amended accordingly from the time the Act commences; • section 34A, providing that a statutory power or duty to be exercised according to the opinion or state of mind of the office holder means also the opinion or state of mind of the delegate; and

• section 19, providing that a power conferred on a minister can be exercised by another minister acting for and on behalf of such minister: see Attorney-General v Foster (1999) 84 FCR 582 (an extradition warrant issued by the Minister for Justice was not invalid despite the authorisation being given to the Attorney-General). 8.5.14  There are instances in which legislation overturns the common law principles on authorised decision-making, notably the maxim delegatus non potest delegare (a delegate cannot sub-delegate a power or function). An example is s  78(9) of the Public Service Act 1999 (Cth) which provides that a delegate under that Act has authority to sub-delegate the power to another officer. Section  236 of the Legislation Act  2001 (ACT) confirms the common law principle against sub-delegation while acknowledging that the principle may be abrogated by statute; s 242 of the Act also provides that neither a delegation nor the act of a delegate is invalid only because of a defect or irregularity in the delegation. Another 519

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common (but question-begging) statement in legislation is that a decision made by a delegate is deemed to be a decision of the principal: see, for example, Acts Interpretation Act 1901 (Cth) s 34AB(1)(c). Such a section has the probable effect that in litigation either the delegate or the principal can be nominated as the defendant. An additional effect may be that a principal cannot review the decision of a delegate unless there is a statutory mechanism allowing it, although other aspects of a statute may point the other way.

Delegation of judicial and legislative power 8.5.15  An oft-stated principle is that ‘the rule against delegation applies more rigorously to legislative and judicial functions or quasi-judicial functions, than to administrative functions’: Re Kinsey and Veterans’ Review Board (1992) 29 ALD 109 at 113. In practice, that principle is overshadowed (and probably subsumed) by another canon, that the rules about delegation and authorisation apply more strictly to powers that can be exercised in a manner detrimental to individual rights and liberties. The following two authorities illustrate that proposition. In Vine v National Dock Labour Board [1957] AC 488 it was held that the power of the board to dismiss an employee could not be exercised by a disciplinary committee to which no formal delegation had been made. In Kinsey it was held that a power conferred by statute upon the principal member of the board to dismiss an application for review could not be exercised on his behalf by the registrar. 8.5.16  There are special considerations applying to the delegation of legislative authority. The principle delegatus non potest delegare (see 8.5.1) means that a person (such as the GovernorGeneral) to whom the legislature has delegated the power to make subordinate legislation cannot sub-delegate that power to another executive officer. Thus, in Hawke’s Bay Raw Milk Producers Co-operative Co Pty Ltd v  New Zealand  Milk Board [1961] NZLR 218 (approved by the High Court in Dainford Ltd v Smith (1985) 155 CLR 342 at 349), it was held that the Governor-General, in exercising a power to make regulations setting the sale price of milk, could not make a regulation authorising a minister to set the price (see also s 34AAA of the Acts Interpretation Act 1901 (Cth)). Similarly, in Stuart v O’Connor [2016] NSWSC 1179 the court struck down subordinate legislation implementing the ‘lock-out laws’ in the central business district on the basis that the subordinate instrument sub-delegated too broad a power to an administrative official to identify premises subject to the lock-out restrictions. Nonetheless, it is a common feature of subordinate legislation that it confers a considerable range of powers and functions on other administrative officers to implement the statute and regulations. A common rationale for this devolution of power is that the powers so conferred are administrative in nature, and do not constitute a sub-delegation of the legislative authority conferred on the Governor-General: R v Lampe: Ex parte Maddalozzo (1963) 5 FLR 160. It is ultimately a matter of degree whether a subordinate rule constitutes an impermissible sub-delegation of power, or the creation of an administrative framework to supplement the statute. A test enunciated in one case is whether ‘the power to determine that value or price’ is made by reference to a ‘standard which is not certain or objective but which requires the Board to exercise a wide discretion’: Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) (1979) 142 CLR 460.

Improperly constituted body 8.5.17  Ordinarily, a multi-member body that is not properly constituted for the purpose of making a decision cannot validly do so: see  Kutlu v  Director of Professional Services 520

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8.5.19C

Review  8.5.19C. Thus, in Re  Kretchmer and Repatriation Commission (1988) 16 ALD 206 it was held that a power conferred on the Administrative Appeals Tribunal as constituted by a presidential or senior member to dismiss an application could not be exercised by the tribunal as constituted by an ordinary member: ‘the purported dismissal by a member who was not entitled to constitute a tribunal exercising power of dismissal … amounts to a nullity’: at 210. (Significantly, s 10A of the Administrative Appeals Tribunal Act 1975 (Cth) now provides specifically for the delegation of the President’s powers to members.) The problems that can arise when a body is improperly constituted were considered by the New South Wales Court of Appeal in AttorneyGeneral (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557. Special legislation had been enacted to validate decisions made by the Administrative Decisions Tribunal (the forerunner of the New South Wales  Civil and Administrative Tribunal) as the result of a procedural irregularity in the way the tribunal was constituted. However, one error in the constitution of the tribunal — the unauthorised participation in an adjudication by a non-judicial member — was a jurisdictional error of a fundamental kind that could not be classified as a procedural irregularity. 8.5.18  Legislation supplements or adjusts the application of those principles to multimember bodies. An example is s  33(2B) of the Acts Interpretation Act (1901) (Cth), which provides that the exercise by a body of its powers or functions is not affected by a vacancy in the membership of the body. Some statutes go further, providing that any defect in an appointment does not affect the validity of any action taken by the appointee: for example, Legal Profession Act  2007 (Qld) s  688; State Administrative Tribunal Act  2004 (WA) s  154. Another issue is whether the de facto officer doctrine (see  8.5.22) can repair a defect in the composition of a multi-member body. In GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503, McHugh JA expressed support for that view, on the basis that rules about composition concern matters internal to a body about which members of the public have little knowledge. The opposing view of Kirby P and Hope JA was that a defect in composition was not a mere irregularity, but a ‘complete failure … to be constituted as parliament provides’: at  520. Kutlu 8.5.19C illustrates that where there is non-compliance with a statutory prerequisite to an appointment, such as the requirement ‘to consult’, this too may lead to invalidity of the appointment. The statutory power may have both a factual and a legal aspect: A Edgar ‘The Brandis-Gleeson affair — what does “consultation” mean?’ Auspublaw, 6 December 2016. 8.5.19C

Kutlu v Director of Professional Services Review (2011) 197 FCR 177; [2011] FCAFC 94 Federal Court of Australia (Full Court)

[Sections 84(3) and 85(3) of the Health Insurance Act 1973 (Cth) stated that the minister ‘must consult’ with the Australian Medical Association (AMA) and ‘before advising’ of the appointment of a medical practitioner to be a member of the Professional Services Review (PSR) Panel. Members of the PSR Panel are drawn on for the PSR committees which make decisions about the appropriateness of the professional services of medical practitioners for which Medicare benefits are paid by the Commonwealth. Kutlu concerned several PSR committees, each of which was constituted by members of the PSR Panel appointed by two successive ministers in 2005 and 2009 without consulting the AMA. Five medical practitioners in Kutlu argued that the failure to comply with the statutory appointments procedure meant that the committees were not validly constituted and the findings by those committees against them were of no effect. The Commonwealth contended

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that the statutory provisions were merely directory or that a failure to comply with them did not result in invalidity of the committees’ decisions. Alternatively, the Commonwealth contended that the appointments were valid under the de facto officer doctrine.] Rares and Katzmann JJ: No doubt, the parliament would not have anticipated the significant, but apparently unintended, failures of each minister to consult the AMA at all on the impugned appointments … made in 2005 and 2009. Those failures appear to have resulted from an incorrect view of the meaning of consultation taken by those advising the ministers as opposed to any conscious decision not to comply with the requirements of the Act by either minister. The magnitude of the consequences of the court finding invalidity here is simply the product of the scale of the breaches of both ministers’ statutory obligations over a considerable period. It must be accepted that these consequences would not promote the express object of Pt VAA in s 79A of the Act. These factors relating to public inconvenience, on their own, are suggestive of a legislative intention that a failure to consult as required in ss 84 and 85 will not spell invalidity on any appointment made without prior consultation. … These considerations do not displace the express words of ss 84(3) and 85(3). These words impose essential preliminaries or preconditions to the exercise of the minister’s power to appoint a person, as an officer of the Commonwealth, being a panel member and a deputy director. … The Commonwealth’s argument that the power of appointment under ss 84(3) and 85(3) was better characterised as a legislative direction to appoint in accordance with matters of policy should be rejected. … In summary, the requirements of ss 84(3) and 85(3) are essential preliminaries to the minister’s exercise of the power of appointment. They have a rule-like quality that is easily identified and applied. The sections do not direct the minister to carry out … powers of appointment in accordance with matters of policy. Instead, they confer a discretion to appoint after the preconditions of consultation with, and advice by, the AMA have been fulfilled and the minister has had regard to that advice. It follows that all the impugned appointments were invalid.

Avoiding the consequence of invalidity 8.5.20  The foregoing cases illustrate that government cannot ordinarily rely on a decision made by an unauthorised officer. But what if the party wishing to rely on the decision was a member of the public who, for example, believed in good faith that the officer who made a decision to issue a development approval, or to waive the need for a written application, had the legal authority to do so? In private law, as noted by Campbell (see 8.5.23E), principles such as estoppel, ostensible authority and the indoor management rule are sometimes called in aid to protect a person in that situation. Those principles do not apply as easily in public law, because of the overarching importance of the requirement for legal authority for government action (see also the discussion of estoppel in 12.6.1ff). Nevertheless, in isolated public law cases (yet to receive definitive superior court endorsement) courts have tried to mould the private law principles to extend limited protection to a person who relied upon a decision or representation that would otherwise be invalid. The tentative position was summarised by Wells J in Jurkovic v Port Adelaide Corporation (1979) 23 SASR 434: Where a proper application for consent, permission, or approval, or for some other decision, is made to a Council, or other public authority, upon a matter of public concern governed by public law, the Authority may be estopped from denying a 522

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representation or statement as to what the decision is or was, made by one of its officers to the applicant where — (a) the Authority had previously established a practice of lawfully delegating to the officer concerned, or to officers of the same status and responsibility, the power to make decisions with respect to the subject matter of the applications, and to communicate those decisions of persons concerned, and the officer in question acted — although mistakenly — in the course, and within the scope, of his ostensible authority; or

(b) an officer or officers of the authority in arriving at the decision, or in making a representation or statement as to what the decision is or was, acted in breach of the Authority’s domestic or internal procedures, but in what the officer or officers conveyed to the applicant, there was nothing to suggest that there had been an infringement of those procedures, and the officer or officers, in making the representation or statement, was or were acting — although irregularly — in the course, and within the scope, of his or their ostensible authority.

8.5.21  Other possibilities for rescuing or correcting a decision that is invalid are discussed by P O’Connor, ‘Decisions Made in the Absence of Formal Delegation of Power’ (1997) 2(4) Local Government Law Journal 225. They include reliance on the agency concept as illustrated in O’Reilly 8.5.6C, revocation and substitution of a new decision by the principal, and retrospective ratification of the decision by the principal. For the distinction between actual authority to act as an agent and ostensible authority in private law see Quikfund Australia Pty Ltd v Prosperity Group International Pty Limited (In Liq) (2013) 209 FCR 368. As the court noted in that case: ‘A common feature of both species of authority is conduct on the part of the alleged principal which, in all the circumstances, evidences the clothing of the alleged agent with the requisite authority to bind his or her principal’: at [72]. It can be assumed that these principles would also apply in public law contexts.

The de facto officer doctrine 8.5.22  The de facto officer doctrine goes some way in addressing the problem faced by a member of the public who assumes legitimately that the government official with whom they are dealing is an authorised officer, or that a body to which they are applying is validly established: Commonwealth v Anti-Discrimination Tribunal (Tas) (2008) 169 FCR 85 8.5.25. There are three preconditions to the operation of the doctrine. These have been described as: ‘first, a de jure office had to exist, secondly, the power exercised by the de facto officer must be within the scope of that de jure office’s authority and, thirdly, the de facto officer must have the “colour of authority” in exercising the office’s power’: Kutlu 8.5.19C at [40]. The scope of the doctrine, and examples of where it can validate an otherwise invalid action, are outlined in the following extract. 8.5.23E

E Campbell, ‘Ostensible Authority in Public Law’ (1999) 27 Federal Law Review 1

When applicable, the de facto officer doctrine operates to validate the acts of persons who had no legal authority to do what they did because they were not appointed or elected to the relevant public office, or because at the relevant time they were no longer in lawful occupation of the office …

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The de facto officer doctrine can apply in cases where there has been, in some sense, a holding-out by the appointing authority that someone has been validly appointed to a particular office whereas in fact there has been no valid appointment. A case in this category might be one in which there has been a formal notification (say in a government gazette) that X has been appointed to a statutory office, but in truth no valid appointment has been made because the appointing authority failed to comply with mandatory procedural requirements, or because X did not possess the prescribed qualifications for appointment, or because X had failed to comply with a condition for assumption of the office — such as swearing the required oath of office. The de facto officer doctrine might also be invoked in cases where, although there has been no positive representation by the appointing authority that X has been validly appointed to an office, conduct on the part of that authority has signified its acquiescence in X’s exercise of powers or functions attached to the particular office. A case in this category might be one in which X had been validly appointed to the office for a term of three years, but continued to exercise the powers attached to the office after the expiration of the term, without protest by the appointing authority, or perhaps even on the strength of an assurance that steps necessary to secure re-appointment had been or would be taken.

8.5.24  MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 provides an illustration of the application of the de facto officer doctrine. Shortly after his appointment expired (and before he was reappointed), the Western Australian Commissioner for Occupational Health and Safety delegated to another officer the function of commencing a prosecution under health and safety legislation. The Full Court of the Western Australian Supreme Court held that the delegation (and subsequent prosecution) was rescued by the de facto officer doctrine. The commissioner was acting in the position, exercised the functions of the position, and was recognised by others as being the occupant of the office. Contrasting views were taken in Kutlu 8.5.19C and Balmain Association Inc v  Planning Administrator (1991) 25 NSWLR 615. In Kutlu it was held that the doctrine could not cure a defective appointment: Rares and Katzmann JJ: The Commonwealth’s argument [concerning the de facto officer doctrine] must be rejected. The principles concerning de facto officers have been applied in a variety of common law contexts. But the issue here concerns whether the acts of a person who has not been validly appointed as an officer of the Commonwealth can be treated as if they were acts of a person authorised so to act by or under the Constitution or an Act of the Parliament. … A law of the Commonwealth, such as an Act authorising an officer to bring or continue a prosecution, or an appeal, should be construed as requiring the officer or body in question to have and to exercise only such powers as the Parliament of the Commonwealth thereby has chosen to vest in them. … Once the position has been established that none of the impugned appointments was valid, it follows that the appointees were, unknowingly, usurping the public offices in which they purported to act. The parliament did not authorise persons to exercise those offices unless they had been appointed in accordance with ss 84(3) and 85(3) of the Act. The impugned appointees were not so appointed. The de facto officer’s doctrine had no application to the invalid appointments. 524

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8.5.25

The majority also noted: ‘[W]here invalidity had been established in accordance with the principles in Project Blue Sky, it was difficult to see that the de facto officer’s doctrine could ever be applicable’: at 193; see also 8.6.1. In Balmain Association it was held that the main purpose of the doctrine is to assist members of the public: Kirby P, Priestley and Handley JJA: [T]his Court, in upholding the rule of law, will be cautious in applying any doctrine protective of the acts of invalidly appointed public officers. The inclination of the Court to confine any such doctrine within narrow limits sufficiently appears from what was said by the majority in GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 519. The de facto officers doctrine affords no protection to the officer when his or her right to the office in question is challenged by quo warranto proceedings or proceedings of that nature. Moreover, in our view the doctrine is essentially one for the protection of members of the public who deal with, or who are affected by, the official acts of de facto officers. … The de facto officers principle may well be the counterpart in public law of the indoor management rule in company law. Both appear to be manifestations of the fundamental principle that acts are presumed to have been done rightly and regularly unless the contrary appears. … While outsiders who deal in good faith with de facto directors can invoke the indoor management rule, it is well-established that de facto directors themselves cannot rely upon their own unauthorised acts on behalf of the company to hold the company bound to some transaction for their own benefit.

8.5.25  Other limitations on the scope of the doctrine have been brought out in other cases. In Bond v  The Queen (2000) 201 CLR 213, the High Court noted that the doctrine can validate only actions that could lawfully be undertaken by the statutory office holder: the doctrine cannot enlarge the powers of the office. Thus, the doctrine could not validate an appeal brought by the Commonwealth Director of Public Prosecutions (DPP) against the leniency of a sentence given to Mr Bond for company fraud, for the reason that the powers of the DPP were limited to prosecuting the offence and did not extend to appealing against sentence. Second, in Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, Kirby J noted that ‘a distinction has been drawn between the validity of the acts de facto of a person invalidly appointed to a valid office and the acts of a person appointed to an office which itself has no validity’: at 384. The occasion for drawing that distinction was that Kirby J (dissenting) would have declared invalid a trial and conviction of Mr Eastman for the murder of the Australian Capital Territory Commissioner of Police, for the reason that the trial in the Australian Capital Territory Supreme Court was presided over by an acting judge, contrary (in Kirby J’s view) to s 72 of the Constitution. His Honour held that the de facto officer doctrine would not save the unconstitutional appointment of an acting judge. The same point was made in Commonwealth v  Anti-Discrimination Tribunal (Tas) (2008) 169 FCR 85: ‘the de facto officer doctrine has generally presupposed that the office itself was legally recognised (that is, that there was an office de jure), before an officer or judge could be considered to be a de facto officer or judge’: at 105 (Weinberg J). Third, existing authority on the de facto officer doctrine is confined to cases where the officer purported to act as the statutory office holder, and not as a delegate or agent. In other words, on existing authority the doctrine cannot repair a defective delegation. 525

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The case extracted below, Cassell v The Queen 8.5.26C, illustrates the combined operation of the de facto officer doctrine, the presumption of regularity (see 8.2.12), and the variability of statutory requirements. 8.5.26C

Cassell v The Queen (2000) 201 CLR 189; 169 ALR 439 High Court of Australia

[Mr Cassell was convicted in the District Court of New South Wales by Judge Downs of giving false evidence at a hearing of the Independent Commission Against Corruption (ICAC). The ICAC hearing was conducted by Assistant Commissioner Roden, pursuant to s 30(2) of the ICAC statute, which provided that a hearing shall be conducted ‘by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner’. The High Court by majority rejected Mr Cassell’s contention that the conviction was unlawful by reason that there was no formal proof before Judge Downs of the appointment to their respective offices of Mr Temby (Commissioner of ICAC) and Mr Roden.] Gleeson CJ, Gaudron, McHugh and Gummow JJ: Although counsel for the appellant announced to Judge Downs, at the commencement of the hearing, that he would put the prosecution to ‘strict proof of all matters’, if the matters to which he was referring included the appointment of Mr Temby and Mr Roden to their respective offices, he did not do so. He allowed evidence to be given without objection that they were respectively the Commissioner and an Assistant Commissioner. That having occurred, it is too late now to complain that their appointments were not formally proved. In any event, as was pointed out by Latham CJ and McTiernan J in R v Brewer (1942) 66 CLR 535 at 548: ‘Acting in a public office is evidence of due appointment to that office, not only in civil proceedings but also in a criminal case’ … Even if it had appeared that there was some defect in the appointment of the Commissioner or the Assistant Commissioner (which is not the case), the prosecutor may well have been entitled to rely upon the principle of the common law that where an office exists but the title to it of a particular person is defective the ‘acts of a de facto public officer done in apparent execution of his office cannot be challenged on the ground that he has no title to the office’ (cf GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 525 per McHugh JA). It was argued on behalf of the appellant that there was no evidence, and no available inference, that the Commissioner had determined, under s 30(2), that the hearing should be conducted by the Assistant Commissioner. There is nothing in the Act which requires a determination under s 30(2) to be in writing or to be attended by any formality. Once the Commissioner has instituted an investigation, the Commissioner may choose to conduct a hearing personally, or may take advantage of the assistance which an Assistant Commissioner is appointed to render. … What is involved is an internal administrative arrangement, similar to the arrangements that operate in courts in connection with the assignment of judges to hear cases. It was proved that Commissioner Temby instituted the investigation in question, and that hearings were conducted for the purposes of the investigation. The hearings were staffed by employees of the Commission, assisted in a variety of ways by persons whose services were engaged by the Commission, conducted at the premises of the Commission, and presided over by a person whose primary statutory duty was to assist the Commissioner. The inference

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that the Assistant Commissioner was conducting the hearing because the Commissioner had determined that he should do so was clearly available. [Kirby J dissented on the basis that the prosecution had failed to discharge the burden resting upon it of proving beyond reasonable doubt every element necessary to establish the criminal offence charged.]

UNAUTHORISED DECISION-MAKING: OTHER SPECIAL ISSUES Recital of an incorrect statutory authority to take action 8.6.1  What if an official mistakenly cites the wrong statutory provision to support a decision: is the decision nevertheless valid if it can be supported under a different statutory provision? In Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission 8.6.2C the court answered a qualified ‘yes’ to that question. In limited circumstances, it is a condition of validity that the decision-maker relies on the correct statutory provision, but generally the validity of a decision rests on whether there is statutory authority to support it. 8.6.2C

Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409; 112 ALR 463; 29 ALD 616 Federal Court of Australia (Full Court)

[A delegate of the commission purported to make a decision under s 597 of the Corporations Law, authorising an application to be made for an examination of various persons in relation to the affairs of a company (BPTC). The court held that the delegate was mistaken about the source of power to grant such an authorisation; the correct source of power was s 11(4) of the Australian Securities Commission Act 1989 (Cth) (ASC Act). The court dismissed a submission that the decision of the delegate was invalid for that reason.] Black CJ: I consider that the instrument of authorisation reflects the ASC’s mistaken assumption, but this conclusion is not fatal to the valid exercise of the power that the ASC had by reason of the combination of s 11(4) of the ASC Act and s 597 of the Corporations Law. … This case is quite different. There must of course be limits to the general principle that an act purporting to be done under one statutory power may be supported under another statutory power. The suggested other source of power may, for example, be seen to be unavailable because its exercise depends upon the fulfilment of some condition precedent peculiar to it and that event has not yet occurred. …There may also be cases in which the matters to which a decision-maker would be bound to have regard in exercising the other source of power differ materially from the matters relevant to the exercise of the assumed source of power with the result that the other source of power cannot be relied upon to support the decision. Similarly, matters may be taken into account in the purported exercise of a power that would invalidate the attempted exercise of a power derived from another source because, in the context of the other source, they were irrelevant matters. Moreover, for reasons of this nature, where the effect of the exercise of the power upon third parties may differ according to the source of the power, the exercise of the power may not be supportable as a valid exercise of power derived from another source …

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Although the instrument of authorisation reveals, in my view, that the ASC mistook the source of its power, in the sense that s 597 does not of itself confer the power sought to be exercised, it is clear that the ASC intended the discharge, in relation to BPTC, of the function of authorising persons to make an application for an order pursuant to provisions of s 597 of the Corporations Law. It was under no statutory obligation to specify the source of the power under which it was acting and no consequence attached to the specification of a source of power that did not in fact exist. The circumstances relevant to the proper exercise of the power were exactly the same whether the source of the power was s 597(1) of the Corporations Law, as it supposed, or whether the source was s 11(4) of the ASC Act operating in combination with s 597 … The instrument of authorisation was not invalidated by the incorrect statement in the recital of the source of the power or by an incorrect assumption about that source. Gummow J: In my view, the truth of the matter can only be found by analysis of the particular statute or other written law said to authorise or empower the making of the decision in question. Having regard to any specification of manner and form and, on a more general level, to the subject matter, scope and purpose of the law, is it a requirement that the decision-maker specify in writing the source of the authority relied upon? Is such a requirement made directory or mandatory by the law in question? That distinction, as now understood, is discussed in Tasker v Fullwood [1978] 1 NSWLR 20 at 23–4 … If there be no such requirement, or if the requirement be directory in character, it must be very difficult to sustain a case that the propriety of the decision in question is to be judged by that head of power expressly relied upon (if any) to the exclusion of any other enabling authority. Here, none of the heads of power suggested to support the authorisation specify any particular form, nor, indeed, that it be embodied in any written instrument. Nor does reliance upon one rather than another head of power lead to any difference in the consequences for third parties, such as the present applicants. The position was rather different with the legislation considered in Saatchi & Saatchi [8.6.3]. [Lockhart J delivered a judgment to the same effect but doubting also whether the delegate had incorrectly stated the source of power.]

8.6.3  The court in Mercantile Mutual 8.6.2C distinguished an earlier decision of the Full Federal Court, Australian Broadcasting Tribunal v Saatchi and Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1, holding invalid a decision that had been incorrectly linked to the wrong head of power. The decision in question was made by the Australian Broadcasting Control Board and laid down television program standards on Australian content. Two features invalidated the standards: they laid down rules of general application, and the sanction for breach of a standard differed according to the statutory source of power relied upon. Chief Justice Bowen observed (at 10) that ‘the citizen confronted with rules he is required to observe is entitled to know with some precision what binding authority the rules have and what the consequences of non-observance may be’. 8.6.4  A related issue, governed by much the same considerations, is whether the notification of a decision should recite the statutory elements that make up the decision. Again, the answer is generally no: see, for example, Beneficial Finance Corp Ltd v Commissioner of Australian Federal Police (1991) 31 FCR 523 upholding the validity of a search warrant that did not recite the fulfilment of all the steps required by statute for the warrant to be issued. There are exceptions, 528

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however, of which LS v Director-General of Family and Community Services (1989) 18 NSWLR 481 is an example. The minister had power to declare a person to be a ward of the state if satisfied that the person was intellectually handicapped to such a degree as to require state care, protection and supervision. The court invalidated a ministerial order on the ground that ‘with an order that restricts the freedom of the subject if and only if certain pre-conditions are fulfilled, the absence of any statement on the fulfilment of the pre-conditions is significant … the order is not valid unless these are stated in the order itself ’: at 486. 8.6.5  To much the same effect as the principles just discussed is the Latin maxim, falsa demonstratio non nocet — ‘a false description does not vitiate a document’. Applying that principle, the New South Wales  Court of Appeal held in Commissioner of Police v  Barbaro (2001) 51 NSWLR 419 that a search warrant was valid even though it stated incorrectly that it was in force from 15 December 1997 to January 1997, rather than January 1998. Nor did the reference to a repealed rather than the current Act invalidate a search warrant in State of New South Wales v Corbett (2007) 230 CLR 606. (Generally, however, strict compliance is required with legislative requirements as to the issue of search warrants: Cassaniti v Croucher (2000) 48 NSWLR 623.) See also O Dixon, ‘De Facto Officers’ (1938) 1 Res Judicatae 285 at 291.

Certainty as an implied statutory requirement 8.6.6  The ADJR Act provides that an order of review can be sought in respect of ‘an exercise of a power in such a way that the result of the exercise of the power is uncertain’: s 5(2)(h). See  also ACT: Administrative Decisions ( Judicial Review) Act  1989 s  5(2)(h); Qld: Judicial Review Act 1991 s 23(h); Tas: Judicial Review Act 2000 s 20(h). 8.6.7  Two issues have been prominent in the application of uncertainty as a criterion of legal invalidity. The first is whether, as s 5(2)(h) of the ADJR Act intimates, certainty in result is a general criterion for the validity of executive instruments. An opposing view is that, at common law at least, a requirement of certainty only ever originates, expressly or impliedly, from the statute being administered: see King Gee Clothing Pty Ltd v Commonwealth 8.6.8C. The second issue is whether uncertainty in result (the term used in s 5(2)(h) of the ADJR Act) is on the same plane as uncertainty in meaning: see 8.6.12. 8.6.8C

King Gee Clothing Pty Ltd v Commonwealth (1945) 71 CLR 184 High Court of Australia

[Regulation 23 of the National Security (Prices) Regulations (Prices Regulations) conferred power on a Prices Commissioner to ‘fix and declare the maximum price at which any … goods may be sold generally or in any part of Australia’: reg 23(1). It was an offence to sell an item above the maximum price. The High Court declared invalid the following order made under reg 23 which set a maximum price for the sale of clothing: Provided that where the value of direct labour recorded in the detailed costs records of any manufacturer to whom this paragraph applies, plus 10 per centum thereof, exceeds the value of the hours his employees were engaged on direct and indirect labour in respect of the goods to which those detailed costs relate by more than

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Control of Government Action 5 per cent in any three months, the maximum prices for the sale of men’s, youths’ or boys’ outerwear by that manufacturer in the next succeeding three months shall be the maximum prices fixed by the foregoing provisions of this paragraph less in each case 2.5 per cent of those prices for every 5 per cent by which the value of direct labour, plus 10 per centum thereof, recorded in such detailed costs records, exceeds the value of the hours his employees were engaged on direct and indirect labour as aforesaid.]

Dixon J: Under some parts of reg 23 uncertainty doubtless goes to power. For, if some of the precise authorities which it gives are to be well exercised, it will be necessary to name or specify the matters and things intended, including amounts, and to use some exactness. But I am not prepared to subscribe to the doctrine that certainty is a separate requirement which all forms of subordinate legislation must fulfil, so that an instrument made under a statutory power of a legislative nature, though it is directed to the objects of the power, deals only with the subject of the power and observes its limitations, will yet be invalid unless it is certain. The doctrine appears to me to be an innovation and to have come from a generalisation from, or transfer of, a rule or supposed rule for determining the validity of by-laws. [His Honour referred to earlier English and Australian cases.] But I cannot see how this history warrants the courts in adopting as a general rule of law the proposition that subordinate or delegated legislation is invalid if uncertain. It appears to me impossible to qualify the power conferred on the Executive Government by ss 5 and 13A of the National Security Act 1939–1943 by adding the unexpressed condition that regulations made thereunder must be certain. I should have thought that, in this matter, they stood on the same ground as an Act of Parliament and were governed by the same rules of construction. I am unaware of any principle of law or of interpretation which places upon a power of subordinate legislation conferred upon the Governor-General by the Parliament a limitation or condition making either reasonableness or certainty indispensable to its valid exercise. Our Constitution contains no due process clause and we cannot follow the jurisprudence of the United States by saying that uncertainty violates a constitutional safeguard … I should think that uncertainty, as a test of validity, arose from the nature of the power. On this footing, in the end, the question comes back to ultra vires. [His Honour referred to the terms of reg 23 (1) and (1A) of the Prices Regulations.] A perusal of the paragraphs makes it quite clear that … amounts need not be named as prices. To that extent at least greater room is allowed for uncertainty of expression. Prices may be fixed on sliding scales; on a condition or conditions; on landed or other cost with the addition of a percentage or specified amount or both; or upon or according to any principle or condition specified by the Commissioner. The powers thus reposed in the Commissioner are very wide indeed. But, having regard to certain expressions used and to the nature of the duty to be imposed by the orders upon the subject, I think that there are limitations upon the kind of standards or criteria he may employ for building up the prices he fixes. They must, I think, be standards or criteria from which a price may be calculated. It is not enough if the price, or some element entering into its composition, can be obtained only by estimation or by the exercise of judgment or discretion, as, for instance, where apportionment or allocation is required. The expressions to which I refer are ‘fix and declare,’ ‘maximum prices,’ words repeated in each power; and the expression ‘specified’, which is used in two connections. By the nature of the duty imposed upon the subject I mean the obligation to keep the prices at which he sells below definite limits, limits which of necessity must be clearly ascertainable.

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The extremely heavy punishments to which, under the Black Marketing Act, a sale above those limits exposes the seller illustrates the reasons for authorising only maximum prices that are clearly ascertainable. It needs no imagination to see that in drafting an order for the fixing of prices for an important trade many difficulties must be encountered and it would be impossible to avoid ambiguities and uncertainties which are bound to arise both from forms of expression and from the intricacies of the subject. But it is not to matters of that sort that I refer. They depend upon the meaning of the instrument and they must be resolved by construction and interpretation as in the case of other documents. They do not go to power. But it is another matter when the basis of the price, however clearly described, involves some matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgment. When that is done no certain objective standard is prescribed; it is not a calculation and the result is not a price fixed or a fixed price. That, I think, means that the power has not been pursued and is not well exercised. [Dixon J went on to find that the order in question ‘deserts clear objective standards capable of producing a result about which every man must agree if he knows the facts and figures and had made his calculations correctly’: at 198. Rich, Starke and Williams JJ delivered separate judgments reaching the same conclusion as Dixon J, that the price order failed to meet the level of certainty implicitly required by the legislation. None of the justices discussed whether uncertainty is an independent ground of review at common law.]

8.6.9  The view expressed by Dixon J in King Gee 8.6.8C, that certainty in executive instruments is not an independent criterion of legal validity at common law, has been endorsed by some other judges, though there is no definitive superior court ruling to that effect. For example, in Television Corporation Ltd v Commonwealth (1963) 109 CLR 59 Kitto J, in declaring invalid a condition imposed by a minister on a television broadcasting licence, observed: The point is not that the proposed conditions offend against a general principle that uncertainty in executive instruments spells legal invalidity, for there is no such general principle: see King Gee … The point is that a requirement of certainty in the sense I have described is inherent in the provisions by which the Minister’s power is created.

8.6.10  The same approach has been adopted in other cases, that is, looking to the statute being administered to discern the degree of certainty required in instruments issued pursuant to it. In that context, a barrier to a successful claim of uncertainty of subordinate legislation is that the power to make the subordinate instrument will often be expressed in broad terms. The same obstacle will apply to administrative decision-making if a discretionary power is being exercised that is broad in scope, as the following two cases illustrate. In Comcare v Lilley (2013) 216 FCR 214, the Full Federal Court, in considering an argument that the Guide to the Assessment of the Degree of Permanent Impairment was invalid for uncertainty, held: Kerr, Farrell and Mortimer JJ: [87] The point is uncertainty (which may often be a synonym for lack of precision) is not some kind of freestanding criterion for invalidity. Uncertainty will only invalidate because one can derive from the text, context and purpose of the statute an intention by Parliament that the power be confined in a way which requires a high level 531

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Control of Government Action

of certainty (or precision). That will not always be the case, and in our opinion it is not the case in respect of the Guide.

In Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565, the Full Federal Court explained the level of detail required in a notice issued under s  155 of the Trade Practices Act 1974 (Cth), which required a person to produce any document or information relevant to the administration of the Act: Northrop, Deane and Fisher JJ: [T]he primary question is not whether there is some external rule which will strike down as invalid any requirement which is uncertain or ambiguous in its terms. The primary question is a question of ultra vires, namely, whether, as a matter of construction of the statute creating and defining the administrative power to require that information be furnished and documents be produced, the power is to be understood as limited to the imposition of a requirement couched in reasonably clear terms … In a context where refusal or failure to comply with a s 155 notice is punishable by imprisonment or fine, there are, in our view, two … implicit conditions of validity [relating] to the form or content of the notice. The first is that the notice must convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce. The second is that the notice must disclose that the Commissioner is entitled to require that the recipient furnish the information or produce the documents which the notice describes … The requirement that a notice under s  155(1) convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce is not to be applied in a precious or hypercritical fashion … [T]he mere fact that parsing and analysis in the artificial atmosphere of the courtroom can lead to the identification of a number of latent ambiguities will not invalidate what, as a matter of common sense, is reasonably clear.

8.6.11  The degree of certainty and detail required in a notice was also addressed in Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) (2007) 97 ALD 652. After an extensive survey of the authorities, Bennett J said of a competition notice issued under the Trade Practices Act 1974 (Cth) that it ‘must not be so vaguely expressed that its meaning or application is a matter of real uncertainty’: at [36]. Department of Industrial Relations v Forrest (1990) 21 FCR 93 provides a similar illustration. 8.6.12  Another issue on which there are differing opinions is whether uncertainty in the meaning or expressions used in an instrument will be fatal, just as uncertainty in the result or operation of an instrument can result in invalidity. Again, there is no definitive resolution of this issue, but the following two observations from Dixon J and Kitto J reflect the contrast of views. First, an observation by Dixon J in Canns Pty Ltd v Commonwealth (1946) 71 CLR 210, concerning a challenge to the validity of a price order: As will appear from King Gee, I do not take the view that doubts about the construction of an instrument made under reg 23 can affect its validity. The interpretation of all written documents is liable to be attended with difficulty, and it is not my opinion that doubts and misgivings as to what the instrument intends, however heavily they may weigh upon a court of construction, authorise the conclusion that an order made under reg 23 is ultra vires or 532

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8.6.13

otherwise void. If in some respects its meaning is unascertainable, then, no doubt, it fails to that extent to prescribe effectively rights or liabilities, but that is because no particular act or thing can be brought within the scope of what is expressed unintelligibly. But to resolve ambiguities and uncertainties about the meaning of any writing is a function of interpretation and, unless the power under which a legislative or administrative order is made is read as requiring certainty of expression as a condition of its valid exercise, as the by-law-making powers of certain corporations have been understood to do, the meaning of the order must be ascertained according to the rules of construction and the principles of interpretation as with any other document. What does take an order outside the power conferred by reg 23 is, not uncertainty as to what it means, but the adoption by the order of a criterion or standard of price that is uncertain in the result that its application produces. The method of finding the maximum price must not involve discretionary elements. The order must either fix the price or lay down a method of finding it which will produce the same result whoever applies it, so long as he uses it correctly.

Next, an observation by Kitto J in Television Corporation Ltd v Commonwealth (1963) 109 CLR 59, concerning a challenge to the validity of a condition imposed by a minister on a broadcasting licence: [I]t seems to me a necessary conclusion that what the Act means by a ‘condition’ is a specification of acts to be done or abstained from by the licensee company — a specification telling the company what it is to do or refrain from doing, and thus on the one hand enabling it in regulating its conduct to know whether it is imperilling the licence or not, and on the other hand making clear to the Minister for the time being what test he is to apply in order that any judgment he may form as to compliance or non-compliance may not be vitiated by error of law. A specification cannot, I think, fulfil this dual function if it is so vaguely expressed that either its meaning or its application is a matter of real uncertainty; and for that reason it seems to me that on the proper construction of the Act the Minister’s power to impose conditions is to be understood as limited to the imposition of conditions that are reasonably certain — that is to say (as has been said in a long line of cases with respect to conditions of forfeiture created by the dealings of private persons with other forms of property) conditions such that from the moment of their creation the Court can say with reasonable certainty in what events forfeiture will be incurred: cf In re Sandbrook; Noel v Sandbrook (1912) 2 Ch 471, at 477. Such certainty includes both certainty of expression and certainty in operation …

8.6.13  The ADJR Act reflects the view of Dixon J more closely, by referring to uncertainty in ‘the result of the exercise of the power’: see 8.6.6. However, if the requirement of certainty derives from the statute being administered, the statute will itself predetermine the level of certainty required or, to put it conversely, the level of ambiguity in expression that is unacceptable. On that view, it is more a matter of degree than a choice between two options, as acknowledged in Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565: Northrop, Deane and Fisher  JJ: [U]ncertainty or ambiguity will not invalidate subordinate legislation or a written directive issued under statutory power unless a point is reached where it cannot reasonably be given any meaning. Strictly speaking, when this point is reached, what is involved is not a matter of mere ambiguity or uncertainty …

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9

INTRODUCTION 9.1.1  This chapter is about the application of administrative law principles to decisionmaking that rests on a non-statutory source of power. The term ‘executive power’ is often used (and is used in this chapter) to describe that source of power, though that term is sometimes used also to describe administrative or executive action that occurs in administering statutory powers, particularly administrative actions that rest on the incidental scope of a statutory power: see  8.3.23. The underlying legal principle is the same in all cases — that government action must find a source in the law. That law is found in the Commonwealth Constitution, legislation and the common law. Legislation is nowadays the predominant source of legal authority for government action, but the common law — a non-statutory source — is important also. 9.1.2  The principal issues relating to executive power are that it is residual and its ambit is largely undefined. It is residual because it comprises those powers of government that are not defined in or traceable to a clear source, as are legislative and judicial power. One reason that executive power is not well defined is that government reliance on it is usually uncontroversial, as it supports the day-to-day functioning of government. Lack of clarity about the nature or scope of executive power, and about allied questions of standing and justiciability, make it far less common that executive power actions are the subject of judicial challenge. When this occurs, courts may be reluctant to define its limits. These facets of executive power throw up issues that include: • How do foundational administrative law concepts — standing, justiciability, jurisdiction, and grounds of review and remedies — apply to executive power? Is it possible, for example, to apply notions of relevant and irrelevant considerations to a power which is not clearly defined? • Are there categories of executive power that should not be challengeable, such as decisions relating to international relations, defence and the grant of honours? What is the extent of executive power under s 61 of the Commonwealth Constitution, and does it encompass all executive or non-statutory power, and some or all of the prerogatives of the English Crown? • Does government power to contract sit within the broader concept of executive power? Are there inherent executive power limits on government power to contract? 535

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• In what circumstances will courts find that executive power has been wholly or partly superseded by legislation? 9.1.3  The first part of this chapter considers the sources of executive power and the constraints on its exercise. There is a short discussion of jurisdictional and justiciability issues, which are also taken up in 2.3.1–2.3.21. This is followed by an examination of how the criteria for lawful decision-making apply to an exercise of executive power; and the role ombudsman offices can play in investigating the exercise of executive power. The question of who has standing to challenge the exercise of executive power is covered in Chapter 18, specifically in 18.4.1–18.4.7; and remedies for non-statutory exercises of power are dealt with in Chapter 17.

EXECUTIVE POWER AS A SOURCE OF LEGAL AUTHORITY FOR GOVERNMENT ACTION 9.2.1  Historically, the principal sources of executive power have been described as the ‘prerogative’ and the ‘capacities’ of government: see Leslie Zines 9.2.6E. The prerogatives are those powers of government peculiarly emanating from, and associated solely with, the Crown; the capacities refer to the ability that government shares with ordinary citizens to engage in actions and transactions that do not require statutory authorisation beyond an appropriation by parliament. Aside from those broad descriptions, there is no uniformity about the nomenclature and categories of executive power.

Prerogative 9.2.2  Blackstone’s description of the prerogative is commonly accepted. He described the prerogative as ‘those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects’: W Blackstone, Commentaries on the Laws of England, Clarendon Press, 1765, Bk 1, p 232. More broadly, as the Privy Council said in Theodore v Duncan (1919) AC 696, the prerogative element of executive power ‘signifies the power of the Crown apart from statutory authority’: at 706. 9.2.3  Which of the prerogatives applies in Australia and, in particular, how they are divided within the federal system, was examined by Dr  HV  Evatt in The Royal Prerogative (1930), describing the prerogative powers of governors in the British legal system. This work, based on Evatt’s doctoral thesis, was republished in 1987 with commentary by Leslie Zines (Lawbook, Sydney). Evatt divided the prerogatives into three categories: the ‘executive prerogatives’, such as the power to enter into treaties, declare war, coin money, pardon offenders and confer honours; immunities and preferences, such as priority for Crown debts over debts due to the other creditors; and property rights, such as the entitlement to royal metals, royal fish, and treasure trove. Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (CCSU) 2.3.10C listed current examples of the prerogatives as including: The grant of pardons to condemned criminals, of honours to the good and great, or corporate personality to deserving bodies of persons, and of bounty from moneys made available to the executive government by Parliament, they extend to matters so vital to the survival and welfare of the nation as the conduct of relations with foreign states [and] national security. 536

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Chapter 9  Executive Power and Decision-Making

A difficulty faced by courts in defining prerogative powers is that they are unwritten common law powers that require historical analysis to elucidate their extent. 9.2.4  Prerogative powers are generally exercised at the highest levels of government, and this is one reason why their exercise may not be justiciable. Nonetheless, the fact that such decisions are made at senior levels in government is insufficient on its own to deny the ability of a court to review their exercise. As Wilcox J observed in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (Peko) 2.3.11C in a discussion of justiciability, the critical matter ‘is the nature and effect of the relevant decision’: at 304. In that case it was held that the exercise of the power in question was non-justiciable as its subject matter ‘involved complex policy questions relating to the environment, the rights of Aboriginals, mining and the impact on Australia’s economic position of allowing or not allowing mining as well as matters affecting private interests’ (at 278 (Bowen CJ)) and the relevance of international conventions on heritage protection. 9.2.5  The extent of prerogative power is generally beyond the scope of this work, and is touched on only briefly below. It is notable, however, that although claims based on the prerogative continue to emerge (see, for example, Minister for Immigration and Multicultural Affairs v Vadarlis 9.2.21C, Jarratt v Commissioner of Police (NSW) 9.2.18C and Cadia Holdings Pty Ltd v State of New South Wales  9.2.7C), the scope for claims based on prerogative power is diminishing, not least because the development of new prerogatives was halted in England in the 17th century. As Lord Diplock remarked in British Broadcasting Corporation v Johns [1965] 79 Ch 32 at 79: ‘It is 350 years and a civil war too late for the Queen’s Courts to broaden the prerogative’. Despite this principle, it is accepted that existing prerogatives have continued to evolve to match institutional and social changes, and that there is a presumption against their abolition in the face of statutory incursion: Barton v Commonwealth (1974) 131 CLR 477 at 484 (Barwick CJ), 501 (Mason J). In Australia, whether a prerogative continues to apply and, if so, its current scope, and whether it is exercisable by the Commonwealth or states or territories, continue to be live issues. These questions raise complex issues relating to English and colonial history, the impact of federation, and changing social and commercial conditions: Cadia 9.2.7C. What is clear is that the prerogative powers under s 61 of the Constitution comprise only ‘such of the prerogatives of the Crown as are properly attributable to the Commonwealth’: Williams v Commonwealth (No 1) 9.2.30C at 180 (French CJ). For a history of the Commonwealth’s acquisition, and exercise, of prerogative powers, see B Selway, ‘All at Sea — Constitutional Assumptions and “The Executive Power of the Commonwealth”’ (2003) 31 Federal Law Review 495; Leslie Zines 9.2.6E; and C Saunders, ‘The Concept of the Crown’ (2015) 38 Melbourne University Law Review 1. 9.2.6E

Leslie Zines, ‘The Inherent Executive Power of the Commonwealth’ (2005) 16 Public Law Review 279

Gummow J in Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 369; 83 ALR 265 said: In Australia … one looks not to the content of the prerogative in Britain, but rather to s 61 of the Constitution, by which the executive power of the Commonwealth was vested. But when one examines the terms of s 61 it does not provide much help in understanding the content of the ‘executive power of the Commonwealth’. The nature of what lies within the sphere of the executive branch of government necessarily requires an historical understanding.

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The principle that the executive government has no power at common law to levy a tax is not derived from contemplating the concept of executive power. It is because of English historical development, particularly the struggles of the 17th century. If the executive power in Britain and Australia includes the declaration of war, it is because the English Parliament was prepared to leave this power with the King, content with the control it had of the standing army and the appropriation of money to conduct the war. As one writer has said in reference to the Irish counterpart of s 61, the executive power is ‘barren ground for any analytical approach’. One has only to glance through Joseph Chitty’s A Treatise on the Law of the Prerogatives of the Crown to realise that there is no grand criterion or principle that encompasses the disparate powers and functions of the executive at common law. In this respect it differs considerably from the concepts of legislative and judicial powers. While their content is also the result of historical circumstances, they are, generally, more analytically coherent. From an early date the High Court looked to the common law to determine the rights, powers and privileges and immunities of the Crown in the right of the Commonwealth and of the States. With some esoteric exceptions, such as that in respect of the established church, the prerogatives of the Crown existed throughout the Empire. There was an issue as to which were exercisable by a governor on local advice and which could only be exercised by the sovereign on the advice of the Imperial Government, but that is now only of historical interest. All the powers and privileges that the common law confers on the Crown extend to the Commonwealth and State executive governments, subject to the federal distribution of powers and responsibilities prescribed by the Constitution. So far as the Commonwealth’s prerogative powers are concerned, they have been held to be included within the powers conferred by s 61. It seems, therefore, that anything that comes under the rubric of Crown prerogative is seen as now having a statutory, in the sense of constitutional, basis in so far as it pertains to the Commonwealth. Yet it is clear that in applying s 61 in this area one must go to common law principles to determine the existence of a prerogative power, privilege or immunity, its extent and its limitations. This is the same process that is necessary to determine State executive powers, which are not governed by any constitutional provision equivalent to s 61. Despite the above statement of Gummow J, he has written that ‘it is settled that in certain respects the executive power has limitations which follow those established in the United Kingdom’. I use the term ‘prerogative’ in its strict sense, as comprising powers and immunities that are unique to the Crown. It is clear, however, that, speaking generally, the Crown has the same capacity as other persons to engage in acts and transactions and operate enterprises subject to appropriation by Parliament of any funds required. This article will refer to these powers shared by the Crown with others as ‘capacities’ as distinct from ‘prerogatives’, following the nomenclature of Brennan J. These capacities are also said to derive from s 61, but it is necessary to look at the rules of common law, equity and, in this case, relevant statutes to determine the incidents of their exercise. For the Commonwealth to enter into a contract, buy or sell property, create a trust or register a company it must comply with relevant rules that lie outside the express terms of s 61. They are, on the whole, the same rules with which a State government would have to comply. An important difference between prerogatives and capacities is that the former, such as the declaration of war and peace, the alteration of national boundaries, acts of state, the pardoning of offenders and the various Crown immunities and privileges, are capable of interfering with what would otherwise be the legal rights of others. In the case of capacities, their exercise cannot override legal rights and duties. …

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Apart from situations of ‘emergency’ the courts have leaned against finding a prerogative power to interfere with the life, liberty or property of subjects. Coercion by the executive must be justified by law. It is commonplace that, generally, the executive cannot under its prerogative powers deprive a person of liberty or create an offence. There is no inherent power to deport, extradite or detain. Deane J has declared that ‘[t]he common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action’. Also, there is no prerogative power to require persons to give evidence or produce documents to a government inquiry. War and other emergencies provide clear exceptions to the principle that prerogatives are non-coercive. The general scope of the power in these circumstances is, however, uncertain. In wartime there seems to be a power to intern enemy aliens. Other powers are to requisition national ships required in time of war, to destroy property to avoid it falling into the control of an enemy, and to go on land to erect fortifications to repel an invasion (a right shared with citizens). In the case of the requisition, damaging or destruction of property compensation is payable. The prerogative rules in emergencies short of war or the imminence of war have been described as ‘remarkably abstruse’. In Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 at 114–115, Viscount Radcliffe said that the prerogative of protecting public safety was not necessarily confined to the imminence or outbreak of war. ‘Riot, pestilence and conflagration might well be other circumstances.’

9.2.7C

Cadia Holdings Pty Ltd v State of New South Wales (2010) 242 CLR 195; 269 ALR 204; [2010] HCA 27 High Court of Australia

[Cadia and Newcrest had mining leases over the Cadia Valley Mines, near Orange, New South Wales. The mine contained an amalgam of gold and copper; the gold produced more than 50 per cent of the mine revenue. The Mining Act 1992 (NSW), which imposed a royalty payment on minerals extracted from a mine, distinguished between recovery of a ‘publicly owned mineral’ and recovery of a ‘privately owned mineral’, to which a lower royalty rate applied. The Act preserved the prerogative as to royal metals. The High Court held that the copper was properly categorised as a ‘privately owned mineral’. The basis of the court’s reasoning was that an Act of the English Parliament of 1688 had excluded copper (a base metal) from the scope of the prerogative right to mine gold or silver (which was recognised in the Case of Mines in 1568). The Crown grant of land in New South Wales therefore included the right to extract copper as a ‘privately owned mineral’, even when mixed with gold. The following extracts do not deal fully with the court’s reasoning, but include only a selection of passages from the judgment of French CJ that illustrate how principles relating to the prerogative can still determine the result under legislation enacted in recent years.] French CJ: [1] In 1568, an English court held that the Crown had the prerogative right to mines of gold and silver and other metals, such as copper, with which gold or silver in those mines was mixed. In a context of constitutional upheaval, that right was modified, in favour of the owners of base-metal mines, by an Act of the English Parliament in 1688. It was modified

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again in 1693. Those events, which occurred more than three centuries ago, determine today the amount of royalties payable to the New South Wales Minister for Mineral Resources (‘the Minister’) in respect of copper mined by Cadia Holdings Pty Ltd (‘Cadia’) from land near Orange which is owned by it and Newcrest Operations Ltd (‘NOL’). … [4] The prerogative right to gold and the 1688 and 1693 Acts formed part of the law of the colony of New South Wales, probably from the time of its establishment and at least from 1828, and affected the scope of Crown grants of land, including the land on which the copper and gold mining operations the subject of this appeal are conducted. The Minister says that he is entitled to retain royalties payable in respect of copper recovered from Cadia’s mines on the basis that the quantity and value of gold in the ore body means that the mines cannot be regarded as mines of copper protected by the 1688 Act. The copper is said therefore to be a ‘publicly owned mineral’ within the meaning of the Mining Act 1992. [5] In my opinion, the 1688 Act had the effect that the right to copper in the land at Orange was conveyed by the Crown grants of that land in the mid-19th century. The liability to pay royalties for the copper mined from the land is therefore to be assessed on the basis that it was a ‘privately owned mineral’ within the meaning of the Mining Act 1992. … … The prerogative right to mines of gold [13] The existence of the right in the Crown to mines of gold and silver was judicially recognised by all the justices of England and Barons of the Exchequer in the Case of Mines in 1568. The judges also held, by majority, that ‘all ores or mines of copper … containing or bearing gold or silver belong to the King’. No rationale was set out in Plowden’s report of the reasons for judgment. However, his lengthy report of the argument disclosed that the Crown supported its assertion of the prerogative by reference to the excellence of the monarch’s person, which ‘draws to it things of an excellent nature’, the need to finance defence forces and the royal right to control coinage. A further justification offered was the need to avoid undue concentration of financial power in the King’s subjects. … The rationales advanced by the Crown were relevant to the nature of government when the Case of Mines was decided. The exhaustion of their relevance in later times did not affect the continuing existence of the prerogative as a settled part of the common law of England. [14] Although they recognised the existence of the prerogative, the judges in the Case of Mines rejected the contention that a royal mine was ‘an incident inseparable to the Crown’ and could not be granted or severed from it even by express words. Royal ores and royal mines could be conveyed but only by ‘patent precise words’. It was this ‘rule’ that was referred to in Woolley v AttorneyGeneral of Victoria when Sir James Colvile, delivering the judgment of the Privy Council, said: Now whatever may be the reasons assigned in the case in Plowden for the rule thereby established, and whether they approve themselves or not to modern minds, it is perfectly clear that ever since that decision it has been settled law in England that the prerogative right of the Crown to gold and silver found in mines will not pass under a grant of land from the Crown, unless by apt and precise words the intention of the Crown be expressed that it shall pass. The rule of construction enunciated by the Privy Council was applicable to legislation and to executive grants of land. It is an aspect of the more general proposition that the prerogative may only be abrogated or abridged ‘by express words, [or] by necessary implication’. …

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[17] The Crown’s prerogative right did not extend to base-metal mines. But precious and base metals were generally found together. The inconvenience that the Case of Mines visited upon those who had base-metal mines containing gold and/or silver was mitigated by a statute passed by the Convention Parliament in 1688 and by a clarifying statute in 1693. By the 1688 Act, no mine of copper, tin, iron or lead would thereafter be taken to be a royal mine on the basis that gold or silver might be extracted from it. Such gold and silver was to be sold to the Crown at the Tower of London. The 1693 Act sought to avoid taxonomical difficulties arising from the 1688 Act by allowing that the owner of a mine containing copper, tin, iron or lead could work the mine even though it might be claimed to be a royal mine. The Crown could acquire the base metals from such mines at specified rates. Blackstone declared the combined statutes to be ‘an extremely reasonable law’. The private owner was not discouraged from working a mine for fear it might be claimed as a royal mine and the King retained his right to the gold and silver. … Reception of the prerogative as part of the common law of the colonies [21] The application of the prerogative in mines of gold and silver in British colonies depended upon the application to those colonies of the common law of which the prerogative was part. It was a common law rule that the common law applied to a colony characterised as ‘settled’ to the extent applicable to the conditions of the colony and the terms of the charter or instrument providing for its government. It was subject to modification by Imperial statutes or local statutes made under their authority. The application of the prerogative in mines of gold and silver to the Australian colonies was acknowledged in New South Wales in R v Wilson and in Victoria in Millar v Wildish. … [23] There was a question in the early years of the colony of New South Wales about the application of the common law and Imperial statutes to the colony. In 1828, the Australian Courts Act 1828 (Imp) was enacted. It provided, inter alia, that all laws and statutes in force in England on 25 July 1828 should be applied in the administration of justice in the courts of New South Wales and Van Diemen’s Land ‘so far as the same can be applied within the said Colonies’. It was effective, if needed, to apply, to New South Wales and Tasmania, English laws and statutes applicable to the conditions of the colony at the time of its enactment. … [27] The 1693 Act and all but s 3 of the 1688 Act were repealed by the Imperial Acts Application Act 1969 (NSW). It was, however, common ground before the primary judge and in the Court of Appeal that the 1688 and 1693 Acts were part of the law in force in the colony of New South Wales at the time of the Crown grants of the land now owned by Cadia and NOL. … The effect of Federation upon the prerogative [30] The Constitutions of the former colonies, the powers of the former colonial Parliaments and the laws in force in the former colonies relating to matters within the powers of the Commonwealth Parliament were continued after Federation subject to the Constitution of the Commonwealth. No distribution of prerogative powers and rights between the Commonwealth and the States is spelt out in the Constitution. Indeed the word ‘distribution’ may mislead. Prerogative powers and rights enjoyed by the Crown in the colonies before Federation may be seen as informing, or forming part of, the content of the executive powers of the Commonwealth and the States according to their proper functions. …

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[33] The original justification for the prerogative in mines of gold and silver as ancillary to prerogative powers with respect to coinage and the raising of military forces might suggest, having regard to the exclusive nature of Commonwealth powers in these two areas, that it could logically have found its place as an element or incident of Commonwealth executive power. On the other hand, the prerogative right appears to have subsisted at Federation independently of the original justifications proffered in argument in the Case of Mines. Moreover, the constitutional powers of the States to dispose of waste lands of the Crown and the proprietary character of the prerogative weigh in favour of the view that it remained with the States after Federation. … Regulation of mining in New South Wales … [42] The Mining Act 1973 was repealed and replaced by the Mining Act 1992 …. The history of mining regulation in New South Wales did not affect the disposition of minerals in the land at Orange effected by the original Crown grants. That disposition, in respect of copper and gold in the land, was therefore determined by the scope of the prerogative. … The construction of the the 1688 Act … [57]… The change brought about by the 1688 Act altered, in favour of private interests, the balance of private and public rights in relation to base metals associated with gold and silver. The Act was expressly directed to the scope of the prerogative right and so provided the ‘patent precise words’ required by the common law rule of interpretation stated in the Case of Mines. [58] There can be no doubt about the large and beneficial purpose of the 1688 and 1693 Acts. The purpose of the 1693 Act, as expressed in its preamble, was to ‘prevent the discouraging’ of mining for copper, tin and lead, which had resulted from the Case of Mines. … If a mine be properly characterised as a mine of copper for the purposes of the 1688 Act and the determination of the ownership of the copper, its dual characterisation as a mine of gold allows the 1688 Act to apply without affecting the prerogative rights of the Crown to the gold. [59] … [T]he original Crown grants of the land on which the mines stand passed over the ownership of the copper such that the copper is properly characterised as a ‘privately owned mineral’ within the meaning of the Mining Act 1992. [Gummow, Hayne, Heydon and Crennan JJ delivered a joint concurring judgment.]

Capacities 9.2.8  A difficulty with the notion of executive power is that, as mentioned earlier, it is residual and its boundaries are unclear. This is illustrated in the following extract from C Saunders, ‘The Concept of the Crown’ (2015) 38 Melbourne University Law Review 1 at 9: The present difficulty is that … executive power is conceptually incoherent, as it has evolved and is presently invoked. The borderline between powers of this kind and prerogative power is by no means clear; public inquiries might, for example, be consigned to either. The actions that have been held or assumed to fall within this category of power are extraordinarily disparate: apart from forming contracts and conveying property, for example, they also include wiretapping telephones, compiling lists of persons unsuitable to work with children, consulting with local government officials, and adopting guidelines. [There is a] distinction 542

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between ‘legal’ executive powers, such as contract, which are derived from the operation of the common law, and powers without legal effect including, for example, consultation, that ‘stem from wide social recognition’. Insofar as this distinction perpetuates the notion that the former can be equated to and therefore justified by the powers exercisable by ordinary persons at common law it does not entirely resolve the problem of the scope of inherent executive power.

9.2.9  Governments rely frequently on their ability — or ‘capacity’ — to operate as a legal person in undertaking routine acts and transactions. Government can own property, make agreements, and sue and be sued. To discharge its various functions, government has to create a departmental structure, rent premises, employ staff, assemble information, conduct inquiries, formulate programs and engage in public relations. Routine administrative transactions of that kind are non-coercive and facilitative in nature and are frequently undertaken without statutory backing. As noted in MacDonald v Hamence (1984) 1 FCR 45 at 50: ‘There are many activities in the ordinary course of administering the affairs of government that may be carried on independently of any statutory provision expressly or impliedly authorising the particular activity’. These are properly considered as activity sourced in executive power. Examples include MacDonald v  Hamence (conducting public relations); Clough v  Leahy 9.2.12C (undertaking inquiries); Victoria v  Commonwealth (1975) 134 CLR 338 (AAP case) (creating community assistance programs); Johnson v  Kent (1975) 132 CLR 164 (managing and developing property); New South Wales v Bardolph (1934) 52 CLR 455 (entering into contracts); Davis v  Commonwealth (1988) 166 CLR 79 (incorporating a company to discharge government business); Dixon v  Attorney-General (1987) 15 FCR 338 (conducting legal proceedings); McManus v  Scott-Charlton (1996) 70 FCR 16 (controlling staff behaviour); CCSU 2.3.10C (controlling union activity in the workplace); Kingham v Cole (2002) 118 FCR 289 (restricting participation in an inquiry); Taranto (1980) Pty Ltd v Madigan (1988) 15 ALD 1 (implementing an anti-discrimination program); Victoria v Master Builders’ Association of Victoria [1995] 2 VR 121 (publishing a building industry blacklist); Mokbel v  Attorney-General (2007) 162 FCR 296 (requesting extradition); and R (Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland [2015] AC 1065 (maintaining a police database of people under surveillance). See generally K Hayne, ‘Non-statutory executive power’ (2017) 28 Public Law Review 333; and K Hayne, ‘Government contracts and public law’ (2017) Melbourne University Law Review 155. 9.2.10  Executive power is also commonly used to establish government agencies. Prominent Commonwealth Government agencies that were initially established by executive action and later given a statutory footing include the Australian Security Intelligence Organisation (ASIO), the Commonwealth Scientific and Industrial Research Organisation (CSIRO), the Australian Human Rights Commission, the Australian Sports Commission, and the Legal Aid Office. 9.2.11  The analogy between government and other legal persons nevertheless has limitations. As articulated in Williams (No 1) 9.2.30C, the Commonwealth Government must exercise its functions in accordance with the Constitution, and the funds that it spends are public monies. The majority concluded in that case that the Commonwealth’s capacity to enter into contracts is a public capacity, and differs from the capacity of a private individual or a corporation. As Saunders observed of Williams (No 1): [T]he court denied that conclusions about the scope of Commonwealth power could satisfactorily be derived by analogy from the capacities of legal persons, given the public 543

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character of Commonwealth funds, its accountability obligations and the coercive mechanisms at its disposal. [C  Saunders, ‘The Scope of Executive Power’, Senate Occasional Lecture, Parliament House, 28 September 2012, published in Papers on Parliament No 59, April 2013, at 27]

The basic principle concerning the scope and limitations of common law authority of the Crown to conduct inquiries is outlined in the following extract from Clough 9.2.12C. 9.2.12C

Clough v Leahy (1904) 2 CLR 139 High Court of Australia

[The court held that the New South Wales Governor, by an exercise of common law authority to issue Letters Patent, could establish a commission of inquiry into whether criminal offences had been committed by the Machine Shearers and Shed Employees Union.] Griffith CJ (Barton and O’Connor JJ concurring): I propose to deal first of all with … the lawfulness of such a Commission of inquiry, apart altogether from any statute … It is clear that the Executive Government cannot by its Commission make lawful the doing of an unlawful act. If an act is unlawful — forbidden by law — a person who does it can claim no protection by saying that he acted under the authority of the Crown. Nor can the Crown enforce the answering of a question by an individual, unless some law confers the authority to do so. Nor can the Crown justify the publication of defamatory matter merely by its authority. If, in the course of an inquiry made by the Crown, defamatory matter is published, it is actionable, and may be perhaps punishable criminally, unless it is protected by the general law … Nor can the Crown interfere with the administration of the course of justice. It is not to be supposed that the Crown would do such a thing; but, if persons acting under a Commission from the Crown were to do acts which, if done by private persons, would amount to an unlawful interference with the course of justice, the act would be unlawful, and would be punishable. So that in this respect the powers of the Crown are practically no greater than the powers of a private individual … It is quite unnecessary, indeed, to call in aid what are called the ‘prerogative’ powers of the Crown. That term is generally used as an epithet to describe some special powers, greater than those possessed by individuals, which the Crown can exercise by virtue of the Royal authority. There are some such powers exercised under the law, but the power of inquiry is not a prerogative right. The power of inquiry, of asking questions, is a power which every individual citizen possesses, and, provided that in asking these questions he does not violate any law, what Court can prohibit him from asking them? He cannot compel an answer; and, if he asks a question and gets an answer which is defamatory of anybody else, and the circumstances are such that the occasion is not privileged, the person who utters the words is liable to the consequences of an unlawful publication of defamatory matter. We start, then, with the principle that every man is free to do any act that does not unlawfully interfere with the liberty or reputation of his neighbour or interfere with the course of justice. That is the general principle. The liberty of another can only be interfered with according to law, but, subject to that limitation, every person is free to make any inquiry he chooses; and that which is lawful to an individual can surely not be denied to the Crown, when the advisers of the Crown think it desirable in the public interest to get information on any topic.

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9.2.13  The extract from Clough 9.2.12C points to the three main constraints on executive power:

• As a power sourced in the common law, executive power may be superseded by legislation which specifically or by implication is inconsistent with the legislation: see  Barton (the issue was whether the extradition prerogative was superseded by the Extradition (Foreign States) Act 1966 (Cth)). See also Vadarlis 9.2.21C at 501; and CPCF 9.2.16C at [277]–[285] (Kiefel J), [488]–[492] (Keane J).

• Executive power cannot justify a governmental act that would be actionable at common law, such as defamation or an interference with the administration of justice. For that reason, legislation in most jurisdictions confers on commissions of inquiry the coercive power to require the production of documents and evidence and to confer legal immunity on witnesses; see, for example, Royal Commissions Act 1902 (Cth); Inquiries Act 1991 (ACT). (Interestingly, by comparison, a grant by executive act of a proprietary interest that is inconsistent with the enjoyment of native title will extinguish that title: Wik Peoples v Queensland (1996) 187 CLR 1.) • Subject to an exception discussed in 9.2.19–9.2.21C, executive power will not authorise government action that is coercive, punitive, intrusive or threatening. Support for that proposition comes from other cases such as A v Hayden (No 2) 8.2.8C, Coco v The Queen 8.3.31C and CPCF 9.2.16C. See also Leslie Zines 9.2.6E and the quotation from Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs 5.3.36C in CPCF. Other generic exceptions are that:

• executive power cannot impose a financial impost without specific statutory authority: see 8.3.42ff; • exercise of executive power may be subject to at least some grounds of review, such as denial of natural justice; and • the Commonwealth does not have power to contract or to expend money without specific legislative authorisation, except for the ordinary services of government: Williams (No 1) 9.2.30C; Williams (No 2) 9.2.31C.

Statutory abrogation of the prerogative and of executive power 9.2.14  A threshold issue that arises in relation to any purported prerogative action is whether the prerogative relied on still exists. This may depend on whether the prerogative has been abrogated by statute or has fallen into disuse. That question must first be determined by a court before which the reliance on the prerogative arises: Cadia 9.2.7C. The regulation or extinguishment of a prerogative was described by Lord Parmoor in Attorney-General v De Keyser’s Royal Hotel Ltd [1920] ACT 508 in these terms: [W]hen the power of the Executive to interfere with the property or liberty of subjects has been placed under Parliamentary control and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament, and that in exercising such authority the Executive is bound to observe the restrictions which Parliament has imposed in favour of the subject. … It would be an untenable proposition to suggest that Courts of law could disregard the protective restrictions imposed by statute law where they are applicable. In this respect the sovereignty of Parliament is supreme. 545

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The extent of monarchical prerogatives was uncertain until the Case of Proclamations in 1611 confirmed that the judiciary, not the monarch, has the authority to determine the existence or otherwise of a royal prerogative. No new prerogatives have been asserted by the Crown since that time: see  9.2.5. Accordingly, it is often said that the significance of the prerogative as a source of power is diminishing, and there is limited necessity today to rely on the prerogative. Nonetheless, some prerogatives survive, such as to keep the peace, which may have a different operation in a contemporary law enforcement environment. As Cadia indicates, in the resourcerich continent of Australia, the prerogatives relating to the royal metals continue to throw up new legal issues. Vadarlis 9.2.21C provides another illustration of government resorting to a prerogative as a source of authority for a particular government activity. 9.2.15  A statutory abrogation of the prerogative must occur expressly or unambiguously, as explained by Kiefel J in CPCF 9.2.16C at [279]: [T]he constitutional principle [is] that any prerogative power is to be regarded as displaced, or abrogated, where the parliament has legislated on the same topic. When a matter is directly regulated by statute, the executive government derives its authority from the parliament and can no longer rely on a prerogative power. Where the executive government exercises such authority, it is bound to observe the restrictions which the parliament has imposed.

In CPCF it was accepted by the majority that the Maritime Powers Act 2013 (Cth) had not displaced the possibility of reliance on executive power, because s 5 of that Act stated: ‘This Act does not limit the executive power of the Commonwealth’. An issue in Vadarlis 9.2.21C was whether the Migration Act 1958 (Cth) had displaced the prerogative. Justice French held in that case that a clear and unambiguous legislative intention is required to displace an executive power, especially in circumstances in which national sovereignty is involved. The need for an unambiguous legislative intention to abrogate a prerogative is partly precautionary. There can be an unpredictable need to rely on a prerogative, as illustrated by Barton, concerning the requested extradition of an Australian fugitive from another country. Another consideration is the recognition that government power can be a hybrid of executive power (including prerogatives) and statute. It was so argued in Jarratt 9.2.18C, that the authority to dismiss a deputy commissioner of police was an amalgam of the Police Act 1990 (NSW) and the Crown’s prerogative right to dismiss Crown servants at pleasure. Notwithstanding that the statutory power to dismiss echoed the dismissal at pleasure prerogative by authorising Jarratt’s dismissal ‘at any time’ by the Governor in Council on the advice of the minister, the High Court held that the existence of the statutory power coupled with the general statutory provisions relating to appointments meant that dismissal without a hearing was a breach of natural justice. 9.2.16C

CPCF v Minister for Immigration and Border Protection (2015) 143 ALD 443; [2015] HCA 1 High Court of Australia

[CPCF was a Sri Lankan national of Tamil ethnicity who claimed to be a refugee. He and 156 other passengers were on board a vessel which became unseaworthy. The vessel was intercepted within Australia’s contiguous zone by an Australian border protection vessel and the passengers were transferred to the Australian vessel. The Maritime Powers Act 2013 (Cth) authorised a maritime officer, including the captain of the vessel, to take a person

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on a detained vessel to another country. The vessel was directed by the National Security Committee of Cabinet, including the Minister for Immigration and Border Protection, to sail to India. Australia did not have an arrangement with India about the reception of persons claiming to be refugees. Ultimately, the passengers did not disembark in India and were returned to and detained on Australian territory at Cocos (Keeling) Islands. CPCF brought proceedings for damages for wrongful imprisonment. The claim was dismissed by a majority of the court on the basis that s 72(4) of the Maritime Powers Act 2013 (Cth) authorised a maritime officer to detain the plaintiff for the purpose of taking him outside of Australia’s contiguous zone: French CJ at [50]; Crennan J at [221]–[225]; Gageler J at [360]–[361]; and Keane J at [453]–[458]. Hayne and Bell JJ, in the following extract, rejected an argument that the Commonwealth could rely on a non-statutory executive power to take that action.] Hayne and Bell JJ: [142] The relevant question is … whether the exercise of a power (described no more precisely than as a ‘non-statutory executive power’) justified what otherwise would be a false imprisonment and any associated trespass to the person. [143] This being the relevant question, it is not useful to begin by asking what power Australia as a nation, or the Executive government in particular, has to regulate the arrival of aliens within Australian territory. Nor is it useful to appeal, as so much of this aspect of the argument on behalf of the Commonwealth parties did, to notions of ‘the defence and protection of the nation’. Arguments beginning in those ideas depend ultimately on assertion: that the government of the nation must have the power to regulate who enters the nation’s territory and must have the power to repel those who seek to do so without authority. But even if it were to be accepted that it is necessary or appropriate (or even, if relevant, convenient) that the government have such a power, observations of that kind would not answer the questions about the scope of the power and the organ or organs of government which must exercise it. And no matter whether those assertions are said to be rooted in the royal prerogative or said to inhere in the notion of the executive power of the Commonwealth vested by s 61 of the Constitution in the Queen and ‘exercisable by the Governor-General as the Queen’s representative’, they remain assertions about a capacity to project force at, or in this case beyond, the geographical boundaries of the nation. Those assertions can then be tested only by resort to notions of ‘sovereignty’ and ‘jurisdiction’, which all too often are used to mask deeper questions about their meaning and application. [144] What is presently in issue is whether the so-called ‘non-statutory executive power’ provides an answer to a claim made in an Australian court that officers of the Commonwealth committed a tort against the plaintiff. That is, the Commonwealth parties seek to assert that the plaintiff’s claim for damages for wrongful imprisonment is met by saying that his detention was an exercise of a species of executive power. … [147] [T]he immediately relevant question is whether, under Australian law, the Commonwealth may meet a claim for wrongful imprisonment by saying only that the detention was effected by officers of the Commonwealth in pursuance of instructions given by the Executive government to prevent the persons concerned entering Australian territory without a visa. Does the executive power of the Commonwealth of itself provide legal authority for an officer of the Commonwealth to detain a person and thus commit a trespass? [148] That question must be answered ‘No’. It is enough to repeat what was said in Chu Kheng Lim [5.3.36C]: Neither public official nor private person can lawfully detain [an alien who is within this country, whether lawfully or unlawfully] or deal with his or her property except

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under and in accordance with some positive authority conferred by the law. Since the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest or detention, any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision. (emphasis added) … [150] To adopt and adapt what was said in Chu Kheng Lim, why should an Australian court hold that an officer of the Commonwealth Executive who purports to authorise or enforce the detention in custody of an alien without judicial mandate can do so outside the territorial boundaries of Australia without any statutory authority? Reference to the so-called non-statutory executive power of the Commonwealth provides no answer to that question. Reference to the royal prerogative provides no answer. Reference to ‘the defence and protection of the nation’ is irrelevant, especially if it is intended to evoke echoes of the power to declare war and engage in war-like operations. Reference to an implied executive ‘nationhood power’ to respond to national emergencies is likewise irrelevant. Powers of those kinds are not engaged in this case. To hold that the Executive can act outside Australia’s borders in a way that it cannot lawfully act within Australia would stand legal principle on its head.

9.2.17  The management of government and the public service, which once rested on the prerogative, is now largely regulated by legislation, such as the Public Service Act 1999 (Cth) and the Public Governance, Performance and Accountability Act  2013 (Cth). The decision in Williams (No  2) 9.2.31C makes clear that, at the Commonwealth level, such legislation ‘should be read as providing power to the Commonwealth to make, vary or administer arrangements or grants only where it is within the power of the Parliament to authorise the making, variation or administration of those arrangements or grants’: at 709. The shift from prerogative to statutory regulation is noted in Jarratt 9.2.18C, where the High Court held that the common law prerogative that officers of the Crown, including police officers, were employed at pleasure and could be dismissed at pleasure, was displaced by the Police Act 1990 (NSW ). The executive could no longer rely on the executive power, and must accord natural justice when exercising the statutory power. The decision of the United Kingdom Supreme Court in R  (Miller) v  Secretary of State for Exiting the European Union [2018] AC 61 provides another illustration of legislation overriding the prerogative. The majority judgment in that case, after acknowledging ‘the general rule … that the [prerogative] power to make and unmake treaties is exercisable without legislative authority and that the exercise of that power is not reviewable by the courts’ (at 141), held that the government could not invoke the treaty prerogative to withdraw from the European Union (EU) without parliamentary authority. The UK action of joining the EU in 1972 made a fundamental change to UK domestic law and the rights of UK citizens, by making European law an independent and overriding source of domestic law. Any consequent change to that UK domestic law should be in an appropriate statutory form and not by an exercise of prerogative power.

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9.2.18C

Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44; 221 ALR 95; 79 ALJR 1581 High Court of Australia

[The facts of this case appear in 11.1.20C.] Gleeson CJ: At common law, subject to the provisions of any statute or to the terms of any valid contract, and, in Australia, subject also to the Constitution, people in the service of the Crown held their offices during the pleasure of the Crown. This was an implied term of their appointment or engagement. This Court held in Fletcher v Nott that the rule applied to members of the police force of New South Wales. Dixon J said: ‘The general rule of the common law is that the King may refuse the services of any officer of the Crown and suspend or dismiss him from his office.’ It is no longer appropriate to account for the rule in terms redolent of monarchical patronage. The rule has a distinct rationale in its application to the armed services, but in its application to the public service generally it is difficult to reconcile with modern conceptions of government employment and accountability. McHugh, Gummow and Hayne JJ: The common law principles respecting the nature and incidents of a public office evolved before the development in the nineteenth century, both in the United Kingdom and in those colonies with representative and responsible government, of a modern system of public administration. To that new structure some of the common law principles were readily adapted; others such as that supporting dismissal at pleasure were less so. In Marks v The Commonwealth (1964) 111 CLR 549 at 586, Windeyer J, in the course of a judgment much informed by a knowledge of English constitutional history, remarked: Servants of the Crown, civil and military, are by the common law employed only during the pleasure of the Crown. Except when modified by statute, that rule has an overriding place in all engagements to serve the Crown. All offices under the Crown are so held at common law, except some ancient offices of inheritance and certain offices created by patent with a tenure for life or during good behaviour, as in the case of judges of the superior courts … Its consequence is that the Crown may dismiss its servants at will, without notice at any time … [T]he general common law rule … developed at a time and in a political system very different from that obtaining in Australia. Some of the offices spoken of above carried the right to exact fees, retained by the office-holder; others (including until 1870 military commissions) were items of property which might be bought and sold. In Marks v The Commonwealth at 568 Windeyer J remarked: The notion of an office as a form of property in which a man can have an estate is foreign to present-day ideas. But it is, I think, the key to an understanding of the legal meanings of resigning an office and of holding an office at pleasure … [T]he rationale for the ‘at pleasure principle’, namely, as Lord Diplock put it (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409): the theory that those by whom the administration of the realm is carried on do so as personal servants of the monarch who can dismiss them at will, because the King can do no wrong

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cannot now, if it ever did, adequately support that ‘principle’ in a contemporary setting of public administration. Nor can the theory that the executive government should not be hampered by contract ‘in matters which concern the welfare of the State’ (Fletcher v Nott (1938) 60 CLR 55 at 67). … The applicant held, and was dismissed from, a statutory office, not one created under what appears to be the obsolete or at least obsolescent prerogative power recognised by s 47 of the Constitution Act. By necessary implication, the prerogative found in s 47, and which might have been employed to create the applicant’s position as Deputy Commissioner as one at pleasure, was abrogated or displaced by the Act itself. … It may be accepted that this reasoning would not apply where … the statute providing for the new office and its incidents itself expressly states that the office is held during pleasure. The New South Wales Parliament did not so provide in the Act. Section 51(1) does use the term ‘at any time’ but, when read with the balance of the section, is not apt to unfetter that power of the Governor in Council which may be exercised from time to time but only subject to satisfaction of the condition attached to it respecting the Commissioner …. When these matters are appreciated, it becomes apparent that there was in the Act no displacement of an obligation of procedural fairness upon the decision-making power of the Commissioner exercised in this case. [Gleeson CJ concluded, as did McHugh, Gummow, Hayne and Callinan JJ, that in the circumstances, there had been a breach of natural justice and the decision to dismiss was invalid.]

Executive power cannot be used for coercive or intrusive purposes 9.2.19  It is generally assumed that the executive power will not authorise action that is coercive or intrusive. An exception relates to certain prerogative powers in which the authorisation of coercion is inherent. For example, the prerogative power to declare and wage war necessarily anticipates coercive action of an extreme kind: Burmah Oil Co (Burmah Trading) Ltd v Lord Advocate [1965] AC 75. At a more everyday level, some prerogative powers with a coercive dimension adapt to the exigencies of the modern age. In R v Secretary of State for the Home Department; Ex parte Northumbria Police Authority [1989] QB 26 it was held that the prerogative to keep the peace authorised the supply to police authorities of riot control equipment such as use of gas and plastic bullets. The principle, distinguishing the reach of prerogative and other non-statutory powers, was stated as follows by Gageler  J in Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 98: [135] An act done in the execution of a prerogative executive power is an act which is capable of interfering with legal rights of others. An act done in the execution of a nonprerogative executive capacity, in contrast, involves nothing more than the utilisation of a bare capacity or permission, which can also be described as ability to act or as a ‘faculty’. …

9.2.20  Is there nevertheless a broader exception that allows executive power to be used coercively in order to safeguard Australia’s sovereignty? This issue was squarely addressed in Vadarlis 9.2.21C. In that case, the government wished to take action of a kind that was not anticipated by the Migration Act  1958 (Cth). The Act contained a comprehensive scheme for the arrest, detention and deportation of any person who had entered Australian territory 550

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without a visa. However, the Act did not confer any border control powers; that is, a power to repel or prevent a person from entering Australia without a visa. Could the executive power be relied upon for that purpose? Any such exception would potentially allow executive action that interferes with the legal rights of others, as explained by Zines: An important difference between prerogatives and capacities is that the former, such as the declaration of war and peace, the alteration of national boundaries, acts of state, the pardoning of offenders and the various Crown immunities and privileges, are capable of interfering with what would otherwise be the legal rights of others. In the case of capacities, their exercise cannot override legal rights and duties. [L  Zines, ‘The Inherent Executive Power of the Commonwealth’ (2005) 16 Public Law Review 279 at 280]

9.2.21C

Minister for Immigration and Multicultural Affairs v Vadarlis (2001) 110 FCR 491; 183 ALR 1 Federal Court of Australia (Full Court)

[In August 2001 a Norwegian-registered commercial vessel MV Tampa rescued 433 people (mainly from Afghanistan) from a wooden fishing boat that was sinking in international waters between Indonesia and Australia. The MV Tampa was heading towards Singapore at the time, though the people rescued were assumed to be en route to Australia from Indonesia, with a view to making an asylum claim as refugees. After the captain of the MV Tampa ignored a request by the Australian authorities not to enter Australian territorial sea surrounding the Australian territory of Christmas Island, the vessel was boarded by 45 Special Air Services troops who took charge of the vessel to prevent its further movement towards Christmas Island. Proceedings to challenge the action of the Australian Government were then commenced in the Federal Court by the Victorian Council for Civil Liberties Inc and Mr Vadarlis, a Victorian solicitor. After an urgent hearing, the trial judge, North J, concluded that the rescuees were being unlawfully detained by the Commonwealth, and made an order that they be brought ashore to the Australian mainland. The Full Federal Court (Black CJ dissenting) reversed the decision of North J, holding that the Commonwealth action was taken in exercise of an executive power that had not been abrogated by the Migration Act 1958 (Cth). The court also held (by majority) that the rescuees were not being detained by action of the Commonwealth amenable to habeas corpus; that aspect of the court’s judgments is extracted in 17.5.4C. The High Court later refused leave to appeal against the decision of the Full Federal Court: Vadarlis v Minister for Immigration and Multicultural Affairs (M93/2001, 27 November 2001, unreported). (During the currency of these proceedings the rescuees had been transferred to an Australian ship, the HMAS Manoora, which transported them to Nauru and New Zealand for asylum processing by the United Nations High Commissioner for Refugees.)] Black CJ (dissenting): It cannot be doubted that a nation-state has a sovereign power to exclude illegally entering aliens from its borders, and to legislate for this purpose: Robtelmes v Brenan (1906) 4 CLR 395 … As a general principle, the Executive cannot expel a person from Australia without statutory authority, although whether that principle applies to nonresident unlawful non-citizens is disputed here: Brown v Lizars (1905) 2 CLR 837. But the Solicitor-General submitted that a non-statutory executive power to prevent unlawful non-citizens from entering Australia carries with it necessary ancillary powers, which may include power to detain and expel an unlawful non-citizen for the purposes of protecting Australia’s borders.

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It may be accepted that ancillary powers of detention and expulsion must travel with a power to exclude (see Attorney-General (Canada) v Cain [1906] AC 542 at 546). But on the view I take, the undoubted power of the Executive to protect Australia’s borders against the entry of unlawful non-citizens in times of peace derives only from statute. … [His Honour, after discussing earlier cases and the views of text writers, concluded that ‘it is, at best, doubtful that the asserted prerogative [to exclude aliens] continues to exist at common law’: at 500. Black CJ continued:] If it be accepted that the asserted executive power to exclude aliens in time of peace is at best doubtful at common law, the question arises whether s 61 of the Constitution provides some larger source of such a power. It would be a very strange circumstance if the at best doubtful and historically long-unused power to exclude or expel should emerge in a strong modern form from s 61 of the Constitution by virtue of general conceptions of ‘the national interest’. This is all the more so when according to English constitutional theory new prerogative powers cannot be created: see generally Winterton, Parliament, the Executive, and the Governor-General (Melbourne University Press, 1983). … The Australian cases in which the executive power has had an ‘interest of the nation’ ingredient can be contrasted with those in which such a power has been asserted for coercive purposes. Thus, this executive power has been validly used to set up the Australian Bicentennial Authority (Davis v The Commonwealth (1988) 166 CLR 79) and the CSIRO, but has been held not to be available to sustain deportation (Ex parte Walsh & Johnson; Re Yates (1925) 37 CLR 36 at 79); detention or extradition of a fugitive (Barton v Commonwealth (1974) 131 CLR 477 at 477, 483, 494); the arrest of a person believed to have committed a felony abroad (Brown); the arbitrary denial of mail and telephone services (Bradley v Commonwealth (1973) 128 CLR 557); or compulsion to attend to give evidence or to produce documents in an inquiry (McGuiness v Attorney-General (Vic) (1940) 83 CLR 73). It is against this background that I now turn to consider the argument that if there is any prerogative or other non-statutory executive power, it has been abrogated by the parliament through the enactment of the Migration Act 1958 (Cth) … [His Honour analysed the Migration Act, and cases discussing the circumstances in which a prerogative power is displaced by statute.] The conclusion to be drawn is that the parliament intended that in the field of exclusion, entry and expulsion of aliens the Act should operate to the exclusion of any executive power derived otherwise than from powers conferred by the parliament. This conclusion is all the more readily drawn having regard to what I have concluded about the nature and the uncertainty of the prerogative or executive power asserted on behalf of the Commonwealth. French J: The executive power — the gatekeeping function English courts have long recognised the general proposition of international law that: ‘the supreme power of every state has a right to make laws for the exclusion or expulsion of a foreigner’ (In Re Adam [1837] 1 Moo PC; 12 ER 889). In that case the court recognised a power in the Governor in Council of the Colony of Mauritius ‘as the depositaries of the executive authority of the Crown, to remove at pleasure all aliens not protected by any special privilege’: at 470. The power of a State under international law to remove aliens was recognised indirectly by the Privy Council in its approval of the judgment of Kerferd J in the Full Court of the Supreme Court of Victoria in Toy v Musgrove (1888) 14 VLR 349 where it was said: ‘it seems beyond question that every

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nation may exercise the right of excluding aliens without giving offence to the country to which those aliens belong’. … It is not necessary for present purposes to consider the full content of executive power and the extent to which it may operate upon the subject matter of the heads of Commonwealth legislative power. Given that the legislative powers conferred by s 51 are concurrent with those of the States, subject to the paramountcy of Commonwealth statutes, (covering cl 5 and s 109) it could not be said that, absent statutory authority, executive power may be exercised in relation to all those matters. There are legislative powers however which may be seen as central to the expression of Australia’s status and sovereignty as a nation. They include the powers to make laws with respect to naturalisation and aliens (s 51(xix)), immigration and emigration (s 51(xxvii)) and the influx of criminals (s 51(xxviii)). Australia’s status as a sovereign nation is reflected in its power to determine who may come into its territory and who may not and who shall be admitted into the Australian community and who shall not. That power may also be linked to the foundation of the Constitution in popular sovereignty implied in the agreement of the ‘people’ of the pre-federation colonies ‘to unite in one indissoluble Federal Commonwealth’. It may be said that the people, through the structures of representative democracy for which the Constitution provides, including an Executive responsible to the parliament, may determine who will or will not enter Australia. These powers may be exercised for good reasons or bad. That debate, however, is not one for this court to enter. In my opinion, the executive power of the Commonwealth, absent statutory extinguishment or abridgement, would extend to a power to prevent the entry of non-citizens and to do such things as are necessary to effect such exclusion. This does not involve any conclusion about whether the executive would, in the absence of statutory authority, have a power to expel non-citizens other than as an incident of the power to exclude. 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. [His Honour discussed earlier cases, holding that they did not resolve the issue before the Court as to whether s 61 of the Constitution confers upon the executive a power to exclude or prevent the entry of non-citizens to Australia.] In my opinion, absent statutory authority, there is such a power at least to prevent entry to Australia. It is not necessary, for present purposes, to consider its full extent. It may be that, like the power to make laws with respect to defence, it will vary according to circumstances. Absent statutory abrogation it would be sufficient to authorise the barring of entry by preventing a vessel from docking at an Australian port and adopting the means necessary to achieve that result. Absent statutory authority, it would extend to a power to restrain a person or boat from proceeding into Australia or compelling it to leave. [French J went on to hold that the executive power to exclude aliens, bearing in mind its importance to national sovereignty, was not abrogated by the Migration Act. Specifically, his Honour held:] [The Act did not evince] a clear and unambiguous intention to deprive the executive of the power to prevent entry into Australian territorial waters of a vessel carrying non-citizens apparently intending to land on Australian territory and the power to prevent such a vessel from proceeding further towards Australian territory and to prevent non-citizens on it from landing upon Australian territory.

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[His Honour also held that the action taken by the executive in relation to the MV Tampa and its occupants was within the scope of executive power, and did not amount to a restraint that was amenable to habeas corpus.] [Beaumont J, in a separate judgment, agreed with the reasons of French J.]

9.2.22  The action taken by the government in relation to the MV Tampa was retrospectively validated by the enactment of the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth). The new statutory powers to prevent entry to Australian waters did not override the executive power upheld in Vadarlis 9.2.21C. This was made clear by the enactment of a new s 7A of the Migration Act 1958 (Cth), which stated: 7A  The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting persons who have crossed those borders.

9.2.23  The post-Tampa legislation illustrates a broader point: that executive power, however important to government as a source of legal authority, is nonetheless an uncertain and fragile foundation for government action. Thus, for example, the government relied upon executive power in 1978 after the Sydney Hilton Hotel bomb blast, to invoke army assistance to safeguard the Commonwealth Heads of Government Regional Meeting. The power to take such action in future was later committed to a legislative basis, by the Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000 (Cth). Similarly, doubts about whether police sniffer dogs were engaged in searches led to the enactment of the Police Power (Drug Detection) Dogs Act 2001 (NSW): see Darby v Director of Public Prosecutions (2004) 61 NSWLR 558. 9.2.24  Another risk in relying on non-statutory executive power to support government action is that a court may regard the action being taken as interfering with fundamental principles of human rights, and thus requiring a clear statutory foundation: see  8.2.1ff. As noted in Habib v  Commonwealth (No  2) (2009) 175 FCR 350, the ‘executive power of the Commonwealth does not run to authorising … crimes [against humanity] under the guise of conducting foreign relations’: at [50]. Plaintiff M68/2015 9.2.19 provides a similar illustration of the scope and potential limits of non-statutory executive power. The High Court held by majority (6:1) that a memorandum signed by Australia with Nauru for the regional processing of asylum claimants in Nauru was authorised by s 61 of the Constitution. The Migration Act 1958 (Cth) authorised Commonwealth support of the detention of the asylum claimants in Nauru. The only two Justices to discuss the issue (Gageler J and Gordon J) observed that the non-statutory executive power would not have authorised the detention, with Gageler J observing: ‘That inherent constitutional incapacity of the Executive Government of the Commonwealth to authorise or enforce a deprivation of liberty is a limitation on the depth of the non-prerogative non-statutory executive power of the Commonwealth’: at [192].

The constitutional ambit of Commonwealth executive power 9.2.25  In the case of the Commonwealth Government, the exercise of its executive capacity is conventionally traced to s 61 of the Constitution. Section 61 provides: ‘The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the 554

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Queen’s representative, and extends to the execution and maintenance of the Constitution, and of the laws of the Commonwealth’. It has been accepted that the powers covered by s 61 refer to both the prerogatives of the Crown (Barton at 498) and the exercise of other ‘capacities’: Federal Commissioner of Taxation v Official Liquidator of FO Farley Ltd (in Liq) (1940) 63 CLR 278 (Farley) at 280. The distribution of the prerogative powers of the Crown at federation was decided according to the allocation of responsibilities made by the Constitution: Davis v  Commonwealth (1988) 166 CLR 79 at 93. Generally, however, as Mason  CJ, Deane and Gaudron JJ observed in Davis, ‘[t]he scope of the executive power of the Commonwealth has often been discussed but never defined’: at 92–3. Justice Brennan agreed: ‘The scope of s 61 has not been charted nor … is its scope amenable to exhaustive definition’: at 107. The section does not prescribe the content of the executive power nor spell out to which subjects s 61 ‘extends’. The difficulty is compounded in respect to prerogative power, since by its nature it is a residue of royal power from an earlier constitutional era, and may derive from assumptions about royal authority that are not considered appropriate in 21st-century Australia. Spry has observed that: The interpretation of section 61 is shaped by two important, but conflicting, considerations. On the one hand, there is the practical imperative of leaving with executive government adequate powers and sufficient administrative discretion to conduct the affairs of state as they arise. On the other hand, the executive power must not be so open ended as to allow for arbitrary action. The High Court has shown an abiding concern that resort to the executive power could, if not circumscribed, become a device for the Commonwealth impinging on or eroding the rights and functions of the States. [M  Spry, ‘The Executive Power of the Commonwealth: Its Scope and Limits’, Australian Parliamentary Library Research Paper 28, 1995–96, p 8]

to:

In Williams (No 1) 9.2.30C at 184, French CJ described executive power in s 61 as extending • • • • •

powers necessary or incidental to the execution and maintenance of a law of the Commonwealth; powers conferred by statute; powers defined by reference to such of the prerogatives of the Crown as are properly attributable to the Commonwealth; powers defined by the capacities of the Commonwealth common to legal persons; [and] inherent authority derived from the character and status of the Commonwealth as the national government.

9.2.26  The ambit of Commonwealth executive power was explored by the High Court in three decisions that shook conventional thinking: Pape v  Commissioner of Taxation (2009) 238 CLR 1; Williams (No 1) 9.2.30C; and Williams (No 2) 9.2.31C. In Pape the court concluded that the Commonwealth’s power to spend money could not be supported solely by the appropriations power in ss 81 and 83 of the Constitution, nor by the executive power in s  61 coupled with the express incidental power in s  51(xxxix). The Commonwealth’s expenditure in Pape was, however, accepted by the court as supported by the implied nationhood power. Specifically, providing a tax bonus to ameliorate the impact of the global financial crisis was an emergency response that could appropriately be dealt with at the national level. 555

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9.2.27  The decisions in Williams (No  1) 9.2.30C and Williams (No  2) 9.2.31C imposed constraints on Commonwealth reliance on executive power for Commonwealth programs, actions and decisions. One constraint arises generally from the rejection in Williams (No 1) of the ‘common assumption’ of the parties (and many commentators) that s  61 of the Constitution confers on the executive the power to enter into agreements and spend monies which bind the Commonwealth on subjects within the scope of Commonwealth legislative power. In Williams (No 1) a majority of the High Court held that the executive did not have the power to enter into funding agreements with private parties, absent express statutory authority to do so. This rejected the prior view that the incidental power in s  51(xxxix) of the Constitution, in conjunction with the executive power in s  61 and its reference to ‘execution’, could provide general authority for intergovernmental agreements. The decision in Williams (No 1) specifically did not cover contracts and expenditure for the ordinary services of government, grants to the states under s  96 of the Constitution, and those expenditures specifically authorised by legislation. 9.2.28  Another constraint from Williams (No 2) 9.2.31C is that it cautions against adopting too broad a view of the implied nationhood power and, in particular, allowing the executive government to deem topics to be of national interest. The High Court in Williams (No 2) rejected the Commonwealth’s argument that a school chaplaincy program could be regarded as of national benefit or concern. The implied nationhood power is nevertheless important in providing a constitutional basis for the exercise of executive power. A classic statement, by Mason J in the AAP case at 397, is that it permits government to ‘engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation’. Activities that may fall within that description include scientific research carried out by the CSIRO, ‘inquiries, investigation and advocacy in relation to matters affecting public health’ (AAP case at 397), and legal aid funding throughout the country. 9.2.29  Following the decision in Williams (No  1) 9.2.30C, the Commonwealth enacted the Financial Framework Legislation Amendment Act (No  3) 2012 (Cth), to provide a legislative basis for the chaplaincy funding agreement and other Commonwealth grants programs. However, in Williams (No  2) 9.2.31C the High Court held that the chaplaincy funding agreement was beyond the scope of Commonwealth legislative power. In addition, the Administrative Decisions ( Judicial Review) Act  1977 (Cth) (ADJR Act) was amended to preclude judicial review of decisions made under the Public Governance, Performance and Accountability Act 2013 (Cth), by listing that Act in Sch 1 cl (hf ) of the ADJR Act. Those decisions are nevertheless challengeable in the High Court under s 75(v) of the Constitution. See, generally, G Winterton, ‘The Limits and Use of Executive Power by Government’ (2003) 31 Federal Law Review 421; G Lindell, ‘The Changed Landscape of the Executive Power of the Commonwealth after the Williams Case’ (2014) 39 Monash University Law Review 348; G  Appleby and S  McDonald, ‘Looking at the Executive Power through the High Court’s New Spectacles’ (2012) 35 Sydney Law Review 253; C Saunders, ‘Intergovernmental Agreements and the Executive Power’ (2005) 16 Public Law Review 294; C Saunders, ‘The Concept of the Crown’ (2015) 38 Melbourne University Law Review  1; and N  Condylis, ‘Debating the Ambit of the Commonwealth’s Non-Statutory Executive Power’ (2015) 39 Melbourne University Law Review 385. 556

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Williams v Commonwealth (No 1) (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 High Court of Australia

[The Commonwealth Government launched the National School Chaplaincy program in 2006 to ‘assist school communities to support the spiritual, social, and emotional wellbeing of their students’. A school could apply to enter into a funding agreement with the Commonwealth to provide chaplaincy services at the school. The Darling Heights State School in Toowoomba was successful in obtaining funding from the Commonwealth Government for a school chaplaincy service. The service was to be conducted by the Scripture Union Queensland (SUQ), which entered into a funding agreement with the Commonwealth Government. The funding agreement incorporated the National School Chaplaincy Program Guidelines. Its key aspects included the provision of ‘general religious and personal advice to those seeking it, comfort and support to students and staff, such as during times of grief’. The chaplain was not to ‘impose any religious beliefs or persuade an individual toward a particular set of religious beliefs’. The plaintiff, Mr Ron Williams, was a father of four children enrolled at the school. He objected to the program, including on the grounds that it involved the expenditure of public funds in a public school on religious activities. He challenged the validity of the SUQ funding agreement in the High Court on a number of bases, including that it was beyond the Commonwealth’s executive power.] French CJ: The plaintiff, Ronald Williams, calls into question the validity of a contract made by the Commonwealth with a private service provider, and expenditure under that contract, for the delivery of ‘chaplaincy services’ into schools operated by the Queensland State Government. His claim concerns the provision of such services in the Darling Heights State School in Queensland, at which his children are students. Although the expenditure is said by the Commonwealth to have met the necessary condition of a parliamentary appropriation for each year in which it has been made, no Act of Parliament has conferred power on the Commonwealth to contract and expend public money in this way. The Commonwealth relies upon the executive power under s 61 of the Constitution. … The extent to which the executive power authorises the Commonwealth to make contracts and spend public money pursuant to them is raised in these proceedings partly because, as this Court has recently held, contrary to a long-standing assumption, parliamentary appropriation is not a source of spending power. Initially there was another common assumption underpinning the written submissions in this case that, subject to the requirements of the Constitution relating to appropriations, the Commonwealth Executive can expend public moneys on any subject matter falling within a head of Commonwealth legislative power. … For the reasons that follow, s 61 does not empower the Commonwealth, in the absence of statutory authority, to contract for or undertake the challenged expenditure on chaplaincy services in the Darling Heights State School. That conclusion depends upon the text, context and purpose of s 61 informed by its drafting history and the federal character of the Constitution. It does not involve any judgment about the merits of public funding of chaplaincy services in schools. It does not involve any conclusion about the availability of constitutional mechanisms, including conditional grants to the States under s 96 of the Constitution and inter-governmental agreements supported by legislation, which might enable such services to be provided in accordance with the Constitution of the Commonwealth

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and the Constitutions of the States. Nor does it involve any question about the power of the Commonwealth to enter into contracts and expend moneys: • • • •

in the administration of departments of State pursuant to s 64 of the Constitution; in the execution and maintenance of the laws of the Commonwealth; in the exercise of power conferred by or derived from an Act of the Parliament; in the exercise of powers defined by reference to such of the prerogatives of the Crown as are properly attributable to the Commonwealth; • in the exercise of inherent authority derived from the character and status of the Commonwealth as the national government. What is rejected in these reasons is the unqualified proposition that, subject to parliamentary appropriation, the executive power of the Commonwealth extends generally to enable it to enter into contracts and undertake expenditure of public moneys relating to any subject matter falling within a head of Commonwealth legislative power. … [His Honour referred to the absence hitherto of any ‘global account’ of the scope of the executive power under s 61 and listed the sources of executive power referred to at 9.2.26 and continued:] Neither the DHF [Darling Heights Funding] Agreement nor the expenditure made under it was done in the administration of a department of State in the sense used in s 64 of the Constitution. Neither constituted an exercise of the prerogative aspect of the executive power. Neither involved the exercise of a statutory power, nor executive action to give effect to a statute enacted for the purpose of providing chaplaincy or like services to State schools. Whatever the scope of that aspect of the executive power which derives from the character and status of the Commonwealth as a national government, it did not authorise the contract and the expenditure under it in this case. The field of activity in which the DHF Agreement and the expenditure was said, by the Commonwealth, to lie within areas of legislative competency of the Commonwealth Parliament under either s 51(xxiiiA) or s 51(xx) of the Constitution. Assuming it to be the case that the DHF Agreement and expenditure under it could be referred to one or other of those fields of legislative power, they are fields in which the Commonwealth and the States have concurrent competencies subject to the paramountcy of Commonwealth laws effected by s 109 of the Constitution. The character of the Commonwealth Government as a national government does not entitle it, as a general proposition, to enter into any such field of activity by executive action alone. Such an extension of Commonwealth executive powers would, in a practical sense, as Deakin predicted, correspondingly reduce those of the States and compromise what Inglis Clark described as the essential and distinctive feature of ‘a truly federal government’. Gummow and Bell JJ: The Commonwealth parties make the general submission that the executive power extends to entry into contracts and the spending of money without any legislative authority beyond an appropriation. The determinative question on this special case thus becomes whether the executive power is of sufficient scope to support the entry into and making of payments by the Commonwealth to SUQ under the Funding Agreement. For the reasons which follow this question should be answered in the negative. [Their Honours referred to the importance of the federal structure and position of the states in construing the scope of the executive power.] In Pape, approval was given to the statement by Mason CJ, Deane and Gaudron JJ in Davis v The Commonwealth that ‘the existence of Commonwealth executive power in areas beyond the express grants of legislative power will ordinarily be clearest where Commonwealth

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executive or legislative action involves no real competition with State executive or legislative competence’. In Davis, Brennan J invited consideration of ‘the sufficiency of the powers of the States to engage effectively in the enterprise or activity in question’. This consideration reflects concern with the federal structure and the position of the States. Further, as noted above, the NSCP [National School Chaplaincy Program] contracts, such as the Funding Agreement, present an example where within the Commonwealth itself there is a limited engagement of the institutions of representative government. The Parliament is engaged only in the appropriation of revenue, where the role of the Senate is limited. It is not engaged in the formulation, amendment or termination of any programme for the spending of those moneys. The present case, unlike Pape, does not involve a natural disaster or national economic or other emergency in which only the Commonwealth has the means to provide a prompt response. In Pape, the short-term, extensive and urgent nature of the payments to be made to taxpayers necessitated the use of the federal taxation administration system to implement the proposal, rather than the adoption of a mechanism supported by s 96. However, the States have the legal and practical capacity to provide for a scheme such as the NSCP. The conduct of the public school system in Queensland, where the Darling Heights State Primary School is situated, is the responsibility of that State. Indeed, Queensland maintains its own programme for school chaplains. [Gummow and Bell JJ also rejected an analogy between the powers of a legal person and the Commonwealth to contract and spend monies.] With the support of SUQ, and the qualified support of South Australia, the Commonwealth parties presented their ultimate submission. This was that because the capacities to contract and to spend moneys lawfully available for expenditure do not ‘involve interference with what would otherwise be the legal rights and duties of others’ which exist under the ordinary law, the Executive Government in this respect possesses these capacities in common with other legal persons. The capacity to contract and to spend then was said to take its legal effect from the general law. A basic difficulty with that proposition is disclosed by the observation by Dixon CJ, Williams, Webb, Fullagar and Kitto JJ in Australian Woollen Mills Pty Ltd v The Commonwealth that: ‘the position is not that of a person proposing to expend moneys of his own. It is public moneys that are involved’. The law of contract has been fashioned primarily to deal with the interests of private parties, not those of the Executive Government. Where public moneys are involved, questions of contractual capacity are to be regarded ‘through different spectacles’. [The High Court rejected the ‘common assumption’ of the scope of the Commonwealth’s executive power, described by Heydon J as: ‘that the executive power of the Commonwealth included a power to enter contracts without statutory authority as long as the Commonwealth had legislative power to give it statutory authority’. A majority of the High Court (French CJ, Gummow and Bell JJ, Hayne, Crennan and Kiefel JJ; Heydon J dissenting) held that absent legislation authorising the SUQ funding agreement and payments made under it, the agreement and payments were invalid because they were beyond the scope of the executive power. The majority held in separate judgments that the Commonwealth’s executive power does not include a power to do what the Commonwealth Parliament could authorise the executive to do, such as entering into agreements or contracts, irrespective of whether the parliament had actually enacted the legislation. Hayne and Kiefel JJ held (in separate judgments) that the Commonwealth’s executive power to spend money was limited to subject matters within the Commonwealth legislative competency, and that the SUQ funding agreement fell outside the scope of that power. Heydon J dissented.]

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Control of Government Action

Williams v Commonwealth (No 2) (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23 High Court of Australia

[Within eight days of the decision in Williams (No 1) the Commonwealth passed the Financial Framework Legislation Amendment Act (No 3) 2012, to add s 32B to the Financial Management and Accountability Act 1997 (Cth). That section provided that the Commonwealth has power to make, vary or administer an arrangement or grant that is listed in the regulations. The chaplaincy program was a listed program. Mr Williams instituted a second challenge to the funding program, focusing primarily on the validity of s 32B and the accompanying regulations, which purported to provide the basis for the executive to fund the chaplaincy program. The High Court in Williams (No 2) unanimously held that the legislation did not provide a basis for the chaplaincy program, as it was beyond the legislative competence of the Commonwealth (including s 51(xxiiiA) (which provides for the making of ‘benefits to students’) and s 51(xx) (trading or financial corporations)). In the course of doing so, the court affirmed and expanded upon what was said in Williams (No 1) regarding the scope of the Commonwealth executive’s power. Extracts of the court’s decision on this point are set out below.] French CJ, Hayne, Kiefel, Bell and Keane JJ: Executive power revisited The Commonwealth parties identified the central holding in Williams (No 1) as being ‘that many, but not all, instances of executive spending and contracting require legislative authorisation’. They submitted that this holding was wrong and that there were only seven limitations on the Executive’s power to spend and contract. Those limitations can be identified shortly as follows. First, the Executive may not ‘stray into an area reserved for legislative power’. Second, an exercise of executive power cannot fetter the exercise of legislative power and cannot dispense with the operation of the law. Third, there can be no withdrawal of money from the Consolidated Revenue Fund without parliamentary authority in the form of appropriation legislation. Fourth, s 51 of the Constitution ‘provides every power necessary for the Parliament to prohibit or control the activity of the Executive in spending’. Fifth, through collective and individual ministerial responsibility to the Parliament, the Parliament ‘exercises substantial control over spending’. Sixth, the Constitution assumes the separate existence and continued organisation of the States. Seventh, State laws of general application apply to spending and contracting by the Commonwealth without legislative authority. Although cast as an acknowledgment of what may be accepted to be important limitations on the power of the Executive to spend and contract, this argument was, in substance, no more than a repetition of what were referred to as the ‘broad basis’ submissions which the Commonwealth parties advanced in Williams (No 1) and which six Justices rejected. A proposed limitation on the power to spend and contract Notably absent from the list of seven limitations proffered by the Commonwealth parties was any limitation by reference to the areas in which (in the sense of subjects for or about which) the Commonwealth may spend or contract. If such a limitation was considered necessary, the Commonwealth parties submitted that the limitation should be framed as follows: [E]xecutive power to contract and spend under s 61 of the Constitution extends to all those matters that are reasonably capable of being seen as of national benefit

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or concern; that is, all those matters that befit the national government of the federation, as discerned from the text and structure of the Constitution. (Emphasis added.) This limitation was said to be ‘the corollary embedded in s 61 of the Constitution to the “purposes of the Commonwealth” referred to in s 81 (in the specific context of spending)’. So expressed, the proposition is one of great width. It may go so far as to permit the expenditure of public money for any national program which the Parliament reasonably considered to be of benefit to the nation. It is hard to think of any program requiring the expenditure of public money appropriated by the Parliament which the Parliament would not consider to be of benefit to the nation. In effect, then, the submission is one which, if accepted, may commit to the Parliament the judgment of what is and what is not within the spending power of the Commonwealth, even if, as the Commonwealth parties submitted, the question could be litigated in this Court. It is but another way of putting the Commonwealth’s oft-repeated submission that the Executive has unlimited power to spend appropriated moneys for the purposes identified by the appropriation. The reference to discerning what are the matters ‘that befit the national government of the federation’ from ‘the text and structure of the Constitution’ appears to propose a test narrower than ‘all those matters that are reasonably capable of being seen as of national benefit or concern’. It is not useful, however, to stay to attempt to resolve any internal inconsistency in the submission of the Commonwealth parties. Rather, it is more productive to identify the way in which it was sought to apply the submission in this case. The Commonwealth parties submitted that, if the breadth of the executive power to spend and contract is limited, the provision of chaplains in schools is within the executive power of the Commonwealth because it ‘is reasonably capable of being seen as a matter of national benefit or concern’. The Commonwealth parties developed this submission by reference to several considerations. Only one of them need be specially noticed. The Commonwealth parties submitted that the chaplaincy program was of national benefit or concern because the States had been consulted about and had supported the extension of the chaplaincy program considered in Williams (No 1). And the Solicitor-General of the Commonwealth began his oral submissions in this matter by referring to consultation documents which he submitted showed that the States supported the chaplaincy program. Consultation between the Commonwealth and States coupled with silent, even expressed, acquiescence by the States does not supply otherwise absent constitutional power to the Commonwealth. The Constitution contains several provisions by which the States and the Commonwealth may join in achieving common ends. It is enough to mention only s 51(xxxvii) (about referral of powers) and s 96 (about grants on condition). Neither of those provisions was engaged in relation to the matters the subject of this case. The consultations to which reference was made in argument do not support the Commonwealth parties’ submissions. But there are more fundamental defects in the argument of the Commonwealth parties about the breadth of the Executive’s power to spend and contract. An assumption underpinning the Commonwealth parties’ argument The Commonwealth parties submitted that the content of the executive power to spend and contract should be determined in two steps. It was said to be necessary to ‘commence with an understanding of executive power at common law’. The task was then described as being to identify ‘the precise source of any limitation on Commonwealth executive power’ (emphasis added). The identification of those limitations proceeded from a false assumption about the ambit of the Commonwealth’s executive power.

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The Commonwealth parties submitted that determining the content of executive power (but not the limitations on its exercise) should proceed from only two premises. First, ‘a polity must possess all the powers that it needs in order to function as a polity’. Second, ‘the executive power is all that power of a polity that is not legislative or judicial power’. Both of those premises may be accepted. But the conclusion the Commonwealth parties sought to draw from those premises about the content of Commonwealth executive power does not follow unless there is a third premise for the argument: that the executive power of the Commonwealth should be assumed to be no less than the executive power of the British Executive. This third premise is false. What the submissions called ‘executive power at common law’ was executive power as exercised in Britain. Thus the assumption from which the second inquiry (about ‘limitations’) proceeded was that, absent some ‘limitation’, the executive power of the Commonwealth is the same as British executive power. But why the executive power of the new federal entity created by the Constitution should be assumed to have the same ambit, or be exercised in the same way and same circumstances, as the power exercised by the Executive of a unitary state having no written constitution was not demonstrated. To make an assumption of that kind, as the arguments of the Commonwealth parties did, begs the question for decision. The history of British constitutional practice is important to a proper understanding of the executive power of the Commonwealth. That history illuminates such matters as why ss 53–56 of the Constitution make the provisions they do about the powers of the Houses of the Parliament in respect of legislation, appropriation bills, tax bills and recommendation of money votes. It illuminates ss 81–83 and their provisions about the Consolidated Revenue Fund, expenditure charged on the Consolidated Revenue Fund and appropriation. But it says nothing at all about any of the other provisions of Ch IV of the Constitution, such as ss 84 and 85 (about transfer of officers and property), ss 86–91 (about customs, excise and bounties), s 92 (about trade, commerce and intercourse among the States), or ss 93–96 (about payments to States). And questions about the ambit of the Executive’s power to spend must be decided in light of all of the relevant provisions of the Constitution, not just those which derive from British constitutional practice. Consideration of the executive power of the Commonwealth will be assisted by reference to British constitutional history. But the determination of the ambit of the executive power of the Commonwealth cannot begin from a premise that the ambit of that executive power must be the same as the ambit of British executive power. It may be assumed that, as the Commonwealth parties submitted, ‘what might be described as the inherent or traditional limits on executive power, as they emerged from the historical relationship between Parliament [at Westminster] and the Executive, have not hitherto been treated [in Australia or, for that matter, in Britain] as the source of any general limitation on the ability of the Executive to spend and contract without legislative authority’. But it by no means follows from this observation that the Commonwealth can be assumed to have an executive power to spend and contract which is the same as the power of the British Executive. This assumption, which underpinned the arguments advanced by the Commonwealth parties about executive power, denies the ‘basal consideration’ that the Constitution effects a distribution of powers and functions between the Commonwealth and the States. The polity which, as the Commonwealth parties rightly submitted, must ‘possess all the powers that it needs in order to function as a polity’ is the central polity of a federation in which independent governments exist in the one area and exercise powers in different fields of action carefully defined by law. It is not a polity organised and operating under a unitary system or under

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a flexible constitution where the Parliament is supreme. The assumption underpinning the Commonwealth parties’ submissions about executive power is not right and should be rejected. [The court rejected another Commonwealth submission that relied on Constitution s 51(xxxix) (the express incidental power) to support the law authorising the chaplaincy funding agreement. The court further held:] Section 32B should be read as providing power to the Commonwealth to make, vary or administer arrangements or grants only where it is within the power of the Parliament to authorise the making, variation or administration of those arrangements or grants. [The effect of this is that provisions such as s 32B cannot authorise Commonwealth funding programs in the absence of constitutional power.] [Crennan J concurred in separate reasons.]

9.2.32  The two Williams cases deal with the ‘text, context and purpose of s  61 informed by its drafting history and the federal character of the Constitution’: Williams (No 1) 9.2.30C at 179 (French CJ). The cases do not concern the scope of executive power of the states to expend public monies or enter into funding agreements, because the states are not restricted in their legislative or executive competence by the specific heads of legislative power in the Commonwealth Constitution. In State of Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172, the Full Federal Court stated (at 205) that ‘the executive government of a State has the power “to make a contract in the ordinary course of administering a recognised part of the government of the State” ’ — thus confirming that Bardolph remains good law. This criterion nevertheless raises questions as to what is an ‘ordinary’ activity of government, and whether that criterion is a limitation on the capacity of state governments to contract without legislative backing. 9.2.33  More broadly, it has been assumed that state and territory governments do have an inherent capacity to function as legal persons and to undertake a broad range of executive functions. This is made explicit in, for example, the Constitution of Queensland 2001, which provides that ‘the Executive Government of the State of Queensland … has all the powers, and the legal capacity, of an individual’: s 51(1). Whether there are any implications to be drawn from the Commonwealth Constitution applying to state executive authority is not a matter that has been explored.

Jurisdiction 9.2.34  At the federal level, judicial review of executive power is not available under the ADJR Act, since jurisdiction is confined to decisions ‘made under an enactment’: s  3(1). Recourse must be made to s  39B of the Judiciary Act  1903 (Cth) for that purpose, which confers jurisdiction on the Federal Court to issue particular remedies against ‘an officer of the Commonwealth’. In Queensland, Tasmania and, to a lesser extent, Victoria, the legislation concerning judicial review applications permits judicial review of decisions made under a nonstatutory scheme: Qld: Judicial Review Act  1991 s  4(b); Tas: Judicial Review Act  2000 s  4; Vic: Administrative Law Act 1978 s 2. These jurisdictional limits are described in an article by C Horan 9.2.36E, who also highlights the close link between the issue of jurisdiction and remedies, and the reliance on remedies for determining the extent of a court’s powers when adjudicating on a non-statutory decision. 563

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9.2.35  The jurisdiction of tribunals is generally granted by and specified in legislation, and generally refers to decisions made under a particular enactment. A tribunal may nonetheless be required to adjudicate on an issue of executive power as an adjunct to an exercise of a statutory function. The jurisdiction of the ombudsman is commonly defined as an authority to investigate a ‘matter of administration’, which extends to actions taken under both statutory and executive authority. 9.2.36E

C Horan, ‘Judicial Review of Non-Statutory Executive Powers’ (2003) 31 Federal Law Review 551

Section 75(v) of the Constitution (in the case of the High Court) and s 39B of the Judiciary Act (in the case of the Federal Court) confer jurisdiction in matters in which mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. In most cases, it is likely that an officer of the Commonwealth will be involved in the exercise of a non-statutory Commonwealth executive power. Thus, an applicant could seek prohibition or an injunction to restrain action taken, or proposed to be taken, by an officer of the Commonwealth in purported reliance on a non-statutory executive power in circumstances where it was alleged that there was no such power, or that any power had been exceeded. Section 75(iii) of the Constitution confers on the High Court jurisdiction in matters in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party. Accordingly, proceedings can be commenced against the Commonwealth in the High Court seeking relief in relation to executive action taken by or on behalf of the Commonwealth that is alleged to be beyond power. Section 76(i) of the Constitution, in combination with s 30(a) of the Judiciary Act, gives the High Court jurisdiction in matters arising under or involving the interpretation of the Constitution. Most challenges to non-statutory executive action at Commonwealth level will arise under or involve the interpretation of s 61 of the Constitution … and will therefore fall within the original jurisdiction of the High Court. An equivalent jurisdiction is conferred on the Federal Court by s 39(1A)(b) of the Judiciary Act. … It should be noted that jurisdiction at federal level is confined to ‘matters’. It will therefore be necessary to demonstrate that there is some immediate right, duty or liability to be established by the court’s decision. In some cases, this might require an applicant to show that the relevant executive action sought to be challenged affects rights, interests or (perhaps) legitimate expectations. … The position in relation to jurisdiction is somewhat different at state level. In general terms, the Supreme Court in each State has jurisdiction to review executive action taken by that State in reliance on non-statutory power, although in some states the Court’s jurisdiction to grant writs of certiorari, mandamus and prohibition has been replaced by jurisdiction to make orders in the nature of such writs. In Queensland, the Judicial Review Act 1991 (Qld) applies not only to decisions made ‘under an enactment’, but also to decisions made by the State, a state authority or a local government authority under a non-statutory scheme or program involving public funds. In contrast, the Tasmanian legislation more closely mirrors the Commonwealth ADJR Act, and is confined to decisions of an administrative character made under an enactment. In Victoria, a person affected by a decision of a ‘tribunal’ can apply for an order for review under s 3 of the Administrative Law Act 1978 (Vic). This review

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jurisdiction is capable of extending to the exercise of non-statutory powers, provided that there is a decision operating in law to determine a question affecting rights or privileges, and the decision-maker is a person who is required ‘to act in a judicial manner to the extent of observing one or more of the rules of natural justice’. In other circumstances, an applicant must resort to the general jurisdiction of the Supreme Court under O 56 of the Supreme Court (General Civil Procedure) Rules 1996 (Vic).

Justiciability 9.2.37  As the prerogative involved a special exercise of monarchical powers, courts for a long time regarded themselves as inhibited in reviewing an exercise of prerogative power. The Case of Proclamations (1611) partially eroded that view by holding that a court could examine the existence of a prerogative. The view nevertheless survived that a court could not examine the manner of exercise of a prerogative power, that is, the lawfulness of an exercise of power. That barrier was overturned in the United Kingdom in 1985 in CCSU 2.3.10C, and shortly after in Australia in 1987 in Peko 2.3.11C. There is nevertheless a surviving remnant of that history, in that questions of justiciability are carefully examined when a prerogative power is involved.

GROUNDS OF REVIEW 9.3.1  Some grounds of review are directly tied to the exercise of statutory power. Examples are grounds of review that presuppose the need for authority to make a decision, or the designation of an officer as an authorised decision-maker. Some other grounds may be difficult to apply without being able to discern parliament’s intention; for example, as to considerations that may be relevant or irrelevant in making a decision. By contrast, prerogative powers and executive powers derived from the legal capacities of the government are more diffuse, and it may not be straightforward to fit them into a category of one or other of the less certain grounds of review. These differences were explained by Mason J in R v Toohey; Ex parte Northern Land Council 10.2.13C at 219: There is … a contrast between the readiness of the courts to review a statutory discretion and their reluctance to review the prerogative. The difference in approach is none the less soundly based. The statutory discretion is in so many instances readily susceptible to judicial review for a variety of reasons. Its exercise very often affects the right of the citizen; there may be a duty to exercise the discretion one way or another; the discretion may be precisely limited in scope; it may be conferred for a specific or an ascertainable purpose; and it will be exercisable by reference to criteria of considerations express or implied. The prerogative powers lack some or all of these characteristics. Moreover, they are in some instances by reason of their very nature not susceptible of judicial review.

Nonetheless, in principle, exercises of executive power are subject to administrative law principles, including the broad principle of legality, and that a decision must not be fraudulent or made in bad faith; those are foundational requirements of lawful action. It is more difficult to be prescriptive about other grounds, as illustrated in the following two extracts, from C Horan 9.3.2E and CCSU 9.3.3C. 565

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9.3.2E

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C Horan ‘Judicial Review of Non-Statutory Executive Powers’ (2003) 31 Federal Law Review 551

In the context of statutory powers, relief may be granted where an applicant can establish ‘jurisdictional error’ (that is, a failure to exercise jurisdiction or an excess of jurisdiction) by the repository of the power, for example, by identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material. Further, such powers must be exercised for the purposes for which they were conferred. In the context of non-statutory executive powers, assuming that the existence of the relevant power has been established, the concept of excess of jurisdiction may be more difficult to define. In the case of statutory powers, judicial review on the basis of improper purposes, taking into account irrelevant considerations, or failing to take into account relevant considerations rests on the assumption that the purposes for which the power may be exercised, and the considerations which must and must not be taken into account, can be ascertained from the terms of an empowering statute. Where the source of a power is in the prerogative or common law, however, it may be more difficult to identify justiciable ‘limits’ on power which are capable of enforcement by a court in judicial review proceedings. … The problem is that the court may have no ready means of determining the content and application of such grounds, and in some cases the nature and subject matter of the nonstatutory power may render such an exercise inappropriate. For example, a court will be more cautious in concluding that a decision with a high policy content is unreasonable. The courts have long accepted that certain grounds of review should, in principle, be available against decisions made under executive power. At the same time, there is an acknowledgment, as Lord Diplock pointed out in CCSU [9.3.3C], that for practical forensic reasons challenge may be difficult.

9.3.3C

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; (1984) 3 All ER 935 House of Lords

[The facts of this case are set out at 2.3.10C. These include that the Minister for the Civil Service had executive authority under the Order in Council to change the terms of employment of civil servants employed at Government Communications Headquarters (GCHQ). At the same time, Lord Diplock had found that the civil servants who were members of a trade union had a legitimate expectation that the union could represent them in negotiations with management and that the union would be consulted before this benefit was withdrawn. In the course of his judgment, Lord Diplock identified appropriate grounds of review in cases where government action, as in this matter, was sourced in executive power, as ‘illegality, ‘irrationality’ and ‘procedural impropriety’.] Lord Diplock: My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source it should for that reason only be immune from judicial review. … My Lords, that a decision of which the ultimate source of power to make it is not a statute but the common law (whether or not the common law is for this purpose given the

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label of ‘the prerogative’) may be the subject of judicial review on the ground of illegality is, I think, established by the cases … and this extends to cases where the field of law to which the decision relates is national security … While I see no a priori reason to rule out ‘irrationality’ as a ground for judicial review of a ministerial decision taken in the exercise of ‘prerogative’ powers, I find it difficult to envisage in any of the various fields in which the prerogative remains the only source of the relevant decision-making power a decision of a kind that would be open to attack through the judicial process upon this ground. Such decisions generally involve the application of government policy. The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another — a balancing process which judges by their upbringing and experience are ill-equipped to perform. So I leave this as an open question to be dealt with on a case to case basis if, indeed, the case should ever arise. As respects ‘procedural impropriety’ I see no reason why it should not be a ground for judicial review of a decision made under powers of which the ultimate source is the prerogative. … Indeed, where the decision is one which does not alter rights or obligations enforceable in private law but only deprives a person of legitimate expectations, ‘procedural impropriety’ will normally provide the only ground on which the decision is open to judicial review. But in any event what procedure will satisfy the requirement of procedural impropriety depends upon the subject matter of the decision, the executive functions of the decision-maker (if the decision is not that of an administrative tribunal) and the particular circumstances in which the decision came to be made. [Lord Roskill agreed with the principles discussed by Lord Diplock. Lords Fraser of Tullybelton, Scarman and Brightman agreed that for reasons of national security, the action should be dismissed.]

9.3.4  The ultimate decision in CCSU 9.3.3C illustrated a reluctance of courts to review the manner of exercise of a prerogative power, particularly when concerned with matters of national security. That reluctance has diminished as illustrated by the decisions in Peko  2.3.11C, and Hicks v Ruddock 2.3.18C. The difficulty nevertheless remains of applying the grounds of review to a non-statutory power, as illustrated by the decision of the United Kingdom Supreme Court in R (Sandiford) v Secretary of State for Commonwealth Affairs [2014] UKSC 44. In rejecting a challenge to the application of a policy that financial assistance would not be provided to British citizens facing legal issues abroad (in this case, a British citizen on death row in Indonesia), the court held that the principle that a statutory discretion cannot be fettered by an inflexible policy did not apply to an exercise of non-statutory power. See A Sapienza, ‘Judicial review of non-statutory executive action: Australia and the United Kingdom reunited?’ (2018) 43 University of Western Australia Law Review 67. 9.3.5  The reluctance can, however, be circumvented by linking an exercise of executive power to a statutory scheme, as illustrated by the following extract from Plaintiff M61/2010E v Commonwealth 11.2.20C. The decisions that were being challenged (that Australia did not owe a protection obligation to the relevant applicants) involved assessments by the Independent 567

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Control of Government Action

Merit Reviewer and the Refugee Status Assessment process, which were set up substantially under executive power. The court set aside the decisions, holding that the assessments were made for the purpose of informing the minister whether to exercise statutory powers under the Migration Act 1958 (Cth). French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ: [73] [T[he inquiries undertaken in making a Refugee Status Assessment, and any subsequent Independent Merits Review, were inquiries made after a decision to consider exercising the relevant powers and for the purposes of informing the Minister of matters that were relevant to the decision whether to exercise one of those powers in favour of a claimant. Those being the circumstances in which the inquiries were conducted, it is not necessary to examine the submissions advanced on behalf of Plaintiff M69 and the Commonwealth and the Minister about whether exercise of non-statutory executive power is or may be limited by a requirement to afford procedural fairness. Rather, the inquiries having the particular statutory foundations that have been identified, the principles that govern what limits there are to the way in which the assessment and any subsequent review are conducted are well established.

A similar approach was taken by the United Kingdom Supreme Court in Youssef v  Secretary of State for Foreign and Commonwealth Affairs [2016] AC 1457. In reviewing a challenge to an executive decision to both place and remove a person’s name from a list of Al-Qaida sympathisers, the court held that it could have regard to non-statutory documents (for example, Security Council resolutions and supporting documents) as the resolutions had been incorporated into British law by the European Communities Act 1972 (UK). Compare the observation in Plaintiff S195/2016 v Minister for Immigration and Border Protection (2017) 91 ALJR 857 at 861: ‘that neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to international law’. 9.3.6  A consequence of this approach in some cases — of drawing a link between nonstatutory power and statutory sources — is that a report or recommendation by a consultant or contractor, prepared to assist a statutory decision, could possibly be treated as tied to the statutory foundation. Another case dealing with the connection between executive and statutory power is Plaintiff S10/2011 v Minister for Immigration and Citizenship 9.3.7C. The plaintiffs were unsuccessful in submitting that officers undertaking the executive function of preparing advice for the minister were required to accord natural justice; the Migration Act 1958 (Cth) excluded any such obligation in respect of decisions made under the Act. 9.3.7C

Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 High Court of Australia

French CJ and Kiefel J: [40] Assuming … that the departmental consideration of the plaintiffs’ requests occurred outside the statutory framework, the plaintiffs submitted that it could only have occurred pursuant to an exercise of non-statutory executive power under s 61 of the Constitution which was constrained by a requirement to afford procedural fairness. Further, it was argued that, in any event, the officers were exercising public functions which the Court should hold were attended by a requirement to afford procedural fairness. …

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[51] The guidelines under consideration in the present case are directions to departmental officers about the circumstances in which requests for consideration of the exercise of the Minister’s powers may be referred to the Minister. The work done by officers, acting under the guidelines, involves the acquisition of information and categorisation of requests or cases. It may be regarded, for the purposes of s 61 of the Constitution, as an executive function incidental to the administration of the Act and thus within that aspect of the executive power which ‘extends to the execution and maintenance … of the laws of the Commonwealth.’ There is, however, nothing about the character of the guideline processes, as an exercise of the executive power of the Commonwealth or otherwise, that attracts to them a requirement to observe procedural fairness. … [52] … There was no implied requirement that the guidelines be applied in such a way as to accord with the hearing rule aspect of procedural fairness. Heydon J: [119] Statutory power/executive power. The parties were in controversy about whether the inquiries made on behalf of the Minister preparatory to his decision to consider whether to exercise one of the relevant powers are to be viewed as authorised by the Act, or are instead to be viewed as derivable from the executive power of the Commonwealth, and as operating alongside but not under the Act. That controversy need not be dealt with. The statutory structure excludes any duty to give procedural fairness on the part of those who conduct preliminary inquiries in respect of requests that there be an exercise of ministerial powers under the empowering provisions. The application of such a duty to activities undertaken by officials of the Minister’s Department before the Minister considers whether to exercise those powers would sit ill with the powers themselves. The structure of the Act suggests that the powers which the empowering provisions confer on the Minister need not be exercised in compliance with the rules of procedural fairness. It would be strange if the activities of officials of the Minister’s Department preparatory to the Minister either deciding whether to consider exercising those powers or deciding to exercise them would have to comply with the rules of procedural fairness. Hence even if the source of the officials’ powers lies outside the Act, the terms of the Act point against the application of procedural fairness.

Contractual exercises of non-statutory power 9.3.8  As the examples in 9.2.9 indicate, executive power provides a source of authority for a great range of government activity, such as contracting and conducting inquiries. Constitutionally, the executive power of government resides with the Governor-General, governors and ministers of the Crown. However, in theory, the executive power can be exercised by any officer with actual or ostensible authority to act. There are few cases dealing with who can exercise government’s contract power, and mostly they deal with whether a contract entered into on behalf of a government department was valid and binding as against the government. The common law position as to contracts is summarised in the following extract from Nicholas Seddon’s Government Contracts 9.3.9E, in terms that apply as suitably to executive power generally.

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Nicholas Seddon, Government Contracts: Federal, State and Local 6th ed, Federation Press, Sydney, 2018

[3-15] Formally, the authority to contract vests in the head of the executive, that is the Governor-General at Commonwealth level … or the Governor in the States … Authority to make contracts is then conferred on the various Ministers through the mechanism by which government departments are allotted their areas of work. At Commonwealth level this is done by the Governor-General in Council through Administrative Arrangements Orders which are published in the Commonwealth of Australia Gazette … Ministers, therefore, have authority to enter into contracts on behalf of the government in connection with any subject matter which properly comes within their portfolios. The Prime Minister, or the Premier of a State or Territory, almost certainly has authority to enter into contracts which bind the Crown across the whole field of government activity … Further devolution of authority to enter contracts within departments occurs by express or implied authorisation. The department head (or Chief Executive) has the same authority as the Minister, that is, to enter into contracts properly within the subject matter of the department’s portfolio. Within government departments, it is the practice for a system of written authorisations to be employed to designate particular public servants as having the authority to commit the government to contracts. At Commonwealth level … express authorisations for making commitments of public money are required by the Accountable Authority Instructions … [E]ven when a person does not have actual authority, he or she may be treated as having implied or ostensible authority. If, from the outsider’s perspective, the particular individual is held out by the government as being a person of sufficient rank so that it is quite plausible for him or her to negotiate a contract … of the type in question, then he or she will have ostensible or apparent authority with the result that he or she can bind the government. The principle of ostensible authority does, however, have its limits. If the Minister of the department which holds out the particular public servant does not have power to enter into the type of contract, then ostensible authority cannot operate. Further, the outsider’s perspective must be a reasonable one and thus it would not be possible to argue ostensible authority when a public servant is known by the outsider to lack authority or else it would be a reasonable supposition that he or she lacked authority. A court will, it is submitted, be very much inclined to find that authority of one form or other exists so as not to thwart the legitimate expectations of commercial people who deal with government. If, however, this is not possible and a public servant, who lacks authority altogether, or else exceeds his or her authority, purports to enter into a contract to bind the government, then the contract is void. … Even when there is no actual or ostensible authority it may be possible to argue that the government has by its subsequent actions ratified the acts of the government officer who acted without authority.

9.3.10  Coogee Esplanade Surf Motel Pty Ltd v Commonwealth (1976) 50 ALR 363 provides an illustration of the foregoing points. The New South Wales Court of Appeal held that the permanent head of a Commonwealth department had authority to bind the Commonwealth in contract to purchase the Coogee Bay Motel. Their Honours observed: Hutley JA (Moffitt P agreeing): I am unable to see  why any doubt could be entertained that so senior an officer entitled to negotiate all the terms of the contract could not also make it. It is impossible, in my opinion, without express limitation to be found in 570

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some Act or Regulation, to assume that the Commonwealth intended to require ministerial making, or express ministerial delegation to the making, of every contract for the sale or purchase of land. It would be quite impractical for the affairs of the Commonwealth to be carried on with such limitations. … I am of the opinion that it is to misunderstand the whole position to approach the problem in terms of delegation. All that the appellant had to do was to prove that the transaction was one with which the department was concerned … and that the officer with whom it purported to contract was an officer of the department, purportedly acting on departmental business. In other words, that the English decisions, Carltona Ltd v  Works Commissioners [1943] 2 All ER 560; Lewisham Borough Council v Roberts [1949] 2 KB 608; and R v Skinner [1968] 2 QB 700, state the true doctrine. Glass JA: The authority of a particular officer to bind the Crown by a contract made in the ordinary course of government business may be inferred from the nature of his office (New South Wales v Bardolph (1934) 52 CLR 455, at 502–3) and requires no statutory foundation (ibid at 508). In my opinion, the permanent head of a government department, which performs the function of acquiring land on behalf of that government, has authority to enter into binding contracts for the acquisition of land which is deducible from the nature of his office.

Executive schemes and ombudsman oversight 9.3.11  The jurisdiction of the ombudsman extends to administrative actions taken under executive as well as statutory authority. The following extract from an own-motion report of the Commonwealth Ombudsman describes problems identified by the office in investigating complaints about decisions made under executive schemes, particularly those for payment of grants, subsidies and compensation. 9.3.12E

Commonwealth Ombudsman, Executive Schemes Report No 12, 2009

Executive schemes are a common feature of modern government. Their main advantages are the speed with which they can be set up and their flexibility when circumstances change. However, that very flexibility poses risks to the accountability of such schemes. … [M]any of the checks and balances on government power apply only to powers conferred by legislation. Of particular concern are the restricted review and appeal rights that are available. Our examination of complaints to this office about a range of executive schemes has found the following issues have consistently emerged: • Agencies do not always publish all the criteria they take into account in assessing eligibility for a program or grant, and sometimes fail to make updated information available to the public as promptly as they should. • Ambiguous guidelines can lead to confusion amongst the public as well as inconsistent decision-making. • The standard of drafting of program rules, including eligibility criteria, is sometimes not as high as in legislative schemes, which are subject to a range of external scrutiny processes before they come into operation. Foreseeable issues may not be addressed, and guidelines sometimes have not aligned with the program’s policy aims, as stated by the government or minister.

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• Because of inadequate liaison, there can be inconsistency in advice given by the responsible policy agency and a second agency administering the scheme on its behalf. • Decision-making processes and practices may be inadequate. Internal guidelines for investigators and decision makers may be missing or incomplete, recordkeeping practices may be poor, staffing resources may be inadequate and there can be unacceptable delays in finalising claims. • Agencies do not always have adequate processes for internal review of their decisions. This presents particular disadvantages to claimants given the absence of external review options that apply to statutory schemes. … Below are eight principles of best practice for agencies to consider when developing and administering executive schemes. Principle 1 — developing full eligibility criteria that reflect the policy intent … Principle 2 — ensuring guidelines are legally and technically sound … Principle 3 — ensuring comprehensive, accurate and up to date information is available … Principle 4 — accountability through annual reports … Principle 5 — ensuring no detriment through retrospective application … Principle 6 — liaising effectively with other organisations … Principle 7 — good decision-making processes … Principle 8 — complaint handling and review of decisions …

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10

CHAPTER

Statutory Purpose and Relevant Considerations

INTRODUCTION 10.1.1  A core concern in administrative decision-making is whether the legislation that is being administered provides authority for the decision that is being made and by the person who is making it. Many of the rules for legislative interpretation that are relevant to public law were examined in Chapter 8. This chapter takes the rules a step further, by looking at a more subtle range of issues that arise in interpreting and administering legislation. The central theme of this chapter springs from the fact that legislation can never adequately address all the situations to which it will be applied. To decide whether a situation comes within the scope of the Act it is often necessary to look beyond the language of the Act, at the context and purpose of the Act and sometimes further still at the legal setting in which the Act is to operate. 10.1.2  In administrative law there are three main criteria that address this issue: that statutory powers be exercised for an authorised purpose, that irrelevant matters are not taken into account, and that relevant matters are taken into account. Similar phrases and terms are also used interchangeably at common law; they include ‘applying the wrong test’, ‘asking the wrong question’, ‘misconceiving a duty’, and ‘misunderstanding the function’: see  Ex parte Hebburn Ltd; Re Kearsley Shire Council 7.2.19C. The central theme in all the legal standards is clear enough, but they also throw up some related and challenging issues that are examined in this chapter: • If a statute does not expressly define its purpose or the range of considerations that fall within its scope, can these be implied, and if so, how? • Is there such a thing as an absolute or unfettered discretion?

• Is it strictly a legal question for judges and lawyers to decide which matters can be considered in administering an Act, or should the executive agency that administers the legislative scheme also play a role in articulating the guiding principles?

• Should a court pay greater deference on issues of relevance if the decision-maker is a minister? Or the Governor-General? Or a tribunal member appointed because of expertise in matters considered by the tribunal?

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• If an executive decision will have an overtly political character, should it be left to the political forum to debate the propriety of the decision-making process and the outcome? Is it legitimate for a government to administer legislation so as to achieve its partisan political objectives? • If a decision is based upon multiple objectives or considerations — some permissible, but others not — should the decision stand or fall? What approach should be adopted if the statutory objectives pull in different directions?

ACTING FOR AN UNAUTHORISED PURPOSE 10.2.1  A person or body upon whom a statutory power is conferred can lawfully exercise that power only for the purpose for which it was conferred. An exercise of the power for a different or ulterior purpose will be invalid: Brownells Ltd v Ironmongers’ Wages Board (1950) 81 CLR 108 at 119–20, cited in 10.2.9. This principle is enshrined as a ground of judicial review in the Administrative Decisions ( Judicial Review) Act 1977 (Cth) (ADJR Act), which provides that an order of review can be sought in respect of ‘an exercise of a power for a purpose other than a purpose for which the power is conferred’: s 5(2)(c). See also ACT: Administrative Decisions ( Judicial Review) Act 1989 s 5(2)(c); Qld: Judicial Review Act 1991 s 23(c); Tas: Judicial Review Act 2000 s 20(c). The ground applies also to the making of subordinate laws: R v Toohey; Ex parte Northern Land Council (Toohey) 10.2.13C; Friends of Elliston — Environment & Conservation Inc v SA (2007) 96 SASR 246. As the ADJR Act formulation suggests, it is more appropriate to describe this criterion as ‘unauthorised purpose’, rather than the alternative ‘improper purpose’. There is no ethical or pejorative question arising, other than that the decision-making purpose must be authorised by the legislation. 10.2.2  Two issues will commonly arise in applying this criterion: • For what purpose can the statutory power lawfully be exercised? • For what purpose was the power actually exercised?

Authorised statutory purpose 10.2.3  Commonly a statute will define the purpose for which a power can be exercised. Municipal Council of Sydney v Campbell 10.2.13C provides an illustration of a statutory power that was defined in scope by an express statutory purpose. Absent an express purpose, it will usually be possible to imply a purpose, by familiar techniques of statutory interpretation that involve looking at the title, structure and text of an Act, and the nature of the power that is being exercised. Toohey 10.2.13C and Schlieske v Minister for Immigration and Ethnic Affairs 10.2.16C provide illustrations of statutory powers that were defined in scope by an implied statutory purpose. Constitutional considerations can also define the purpose for which an enactment can lawfully be administered: Shrimpton v Commonwealth (1945) 69 CLR 613. Interpretation statutes condone this approach by declaring that legislation should be interpreted so as to

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promote the purpose or object underlying an Act, and that regard may be had to extrinsic materials in doing so; see, for example, Acts Interpretation Act 1901 (Cth) ss 15AA and 15AB. 10.2.4  The executive and the judiciary both play a role in identifying and defining the underlying purpose and objectives of a statutory scheme. Drawing a line between the interpretive role of the judiciary and the practical implementation role of the executive is not always easy and can create tension. This is particularly apparent if the statutory power is unconstrained or devoid of an express purpose — that is, the statutory power can be exercised for any reason chosen by the decision-maker or by reference to broadly defined notions such as ‘public interest’ or ‘national interest’. These tensions have arisen in the following four categories of cases: 1. Where the statutory power is to be exercised ‘in the public interest’. The leeway to be afforded to the minister’s discretion in such a case was considered by the High Court in two leading decisions. In Plaintiff M79/2012 v Minister for Immigration and Citizenship 10.2.5C a majority of the High Court accepted that a broad purpose was inherent in a power to grant a visa ‘in the public interest’, including because the minister was accountable to parliament as a principle of responsible government. In dissent, Hayne J cautioned that accepting that a statutory power was granted for an unconstrained purpose had grave consequences for the rule of law and that even a broad ‘public interest’ power is not wholly unfettered. In Plaintiff S4/2014 v  Minister for Immigration and Border Protection (2014) 88 ALJR 847 the High Court unanimously held that the same statutory power ought not extend to granting a temporary visa when the minister was already considering granting a permanent protection visa under another statutory provision. (The interpretation of ‘public interest’ or ‘national interest’ powers is also considered in the next section in the context of ‘irrelevant considerations’: see 10.3.5.)

2. Where the statutory power is exercised at a high level by a minister with a view to achieving a political objective, or by the Governor-General (or equivalent) on matters such as appointment to or termination of an office held ‘at pleasure’. This was the major issue dealt with in Toohey 10.2.13C, where the court held that this ground of review (and, more generally, an allegation of misuse of power) could be directed at the Administrator of the Northern Territory in making subordinate legislation.

3. Where the statutory power is exercised in an overtly political context. For example, in both Botany Bay City Council v  Minister for Transport and Regional Development (1996) 66 FCR  537 and Randwick City Council v  Minister for the Environment (1998) 54 ALD 682 the courts rejected an argument that two Commonwealth ministers had acted improperly by taking action to implement an election promise. By contrast, in Padfield v Minister of Agriculture, Fisheries and Food 10.3.17C the court struck down a decision that was based on a minister’s view that adverse political consequences could arise if a different decision was made. (This issue is considered further in the next section in the context of ‘irrelevant considerations’: see 10.3.20–10.3.24.)

4. Where the legislation, such as the tax law, is complex, and involves polycentric considerations, making it difficult to ascertain a range of permissible purposes: see 10.2.22–10.2.25.

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Control of Government Action

Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336 High Court of Australia

[The plaintiff arrived by boat at Christmas Island, an excised offshore territory under the Migration Act 1958 (Cth), without a visa to enter Australia. As an unauthorised maritime arrival, the plaintiff was precluded by the Act from making an application for a protection visa: s 46A(1). The plaintiff was placed in immigration detention as an unlawful non-citizen. Under s 195A of the Act, the minister was empowered to grant a visa ‘of a particular class’ to a person in immigration detention ‘if the Minister thinks that it is in the public interest to do so’. Neither the Act nor the Migration Regulations 1994 (Cth) specified criteria for the exercise of that power. The minister granted the plaintiff (and 2382 other detainees in similar circumstances) two visas: 1. a temporary safe haven visa for 7 days; and 2. a bridging visa for 6 months. The grant of the temporary safe haven visa had the effect under the Act that the plaintiff was precluded from making a protection visa application: s 91K. The plaintiff contended that the statutory bar did not apply, because the grant of the temporary safe haven visa was for an improper purpose: in effect, to prevent him from making a valid application for a protection visa. A majority of the High Court held that the minister had not acted for an improper purpose, because the power to grant a visa in ‘the public interest’ was a broad one.] French CJ, Crennan and Bell JJ: The plaintiff [argued] that the Minister had exercised the power for an improper purpose. In substance, the plaintiff’s submission was that s 195A did not authorise the Minister to grant a temporary safe haven visa to a person who did not require temporary safe haven in response to a humanitarian emergency and that, in this case, the Minister had purported to do so for another purpose. The proposition that a temporary safe haven visa may be granted under s 195A, without application, for a purpose foreign to that for which it was created appears to be in tension with the legislative scheme for the grant of visas generally. The same is true of the related proposition that such a visa may be granted in order to prevent a person from seeking the grant of another kind of visa. However, the purposes for which a visa may be granted under s 195A are to be found in the statutory criterion of the public interest. That is a matter which, within the general scope and purposes of the Act, it is left for the Minister to judge. Neither that criterion nor the mechanism which the section creates for the grant of visas by personal ministerial decision without application are in terms confined by the general scheme of the Act for the grant of visas. It is necessary now to consider whether s 195A authorises the grants made by the Minister in this case. … The key condition for the grant of a visa of a particular class under s 195A(2) is that ‘the Minister thinks that it is in the public interest to do so’. That involves, as this Court has previously said: a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view’. [O’Sullivan v Farrer (1989) 168 CLR 210 at 216]

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It is significant that the section provides that the Minister, when exercising his power to grant a visa under it, must cause a statement to be laid before each House of the Parliament. Gummow, Hayne, Crennan and Bell JJ said of that obligation in Plaintiff S10/2011 v Minister for Immigration and Citizenship: This is a particular manifestation of that aspect of responsible government which renders individual Ministers responsible to the Parliament for the administration of their departments. That particular manifestation of responsible government in this case, over and above the general accountability that the Minister has to the Parliament for the administration of his Department, reflects the nature of the decisions made under s 195A(2) and the other dispensing provisions which were referred to in Plaintiff S10. They are decisions which depart from the detailed legislative scheme for the grant of visas of particular classes which has been created by the Parliament. Given their special dispensing character, it is not surprising that the Act provides a specific mechanism of accountability to the Parliament in relation to them. In the exercise of his power under s 195A(2) the Minister may decide to grant a particular class of visa because its legal characteristics and legal consequences serve a purpose which he has adjudged to be in the public interest. In this case, he has selected the temporary safe haven visa primarily on the basis that, consistently with the Government’s approach to protection claims by offshore entry persons in detention, it will maintain the position that, after release from detention, such persons continue to be barred from applying as of right for a protection visa but must await the application of the ministerial dispensing power, albeit now to be exercised, if at all, under s 91L rather than as previously under s 46A(2). It was open to the Minister, in this case, to grant a temporary safe haven visa by reference to its legal characteristics and consequences unconstrained by the purpose for which it was created under the Act. The purposes for which the Minister might grant such a class of visa were those purposes which would serve the public interest as the Minister judged it. In this case those purposes were not shown to be beyond the scope and purpose of the Act, nor the power conferred by s 195A. They were not improper purposes. The grant of the temporary safe haven visa to the plaintiff was a valid application of the power conferred by s 195A(2). It also follows, by operation of ss 91J and 91K of the Act, that the plaintiff’s application for a protection visa made on 18 September 2012 was not a valid application. Gageler J: The Minister had power under s 195A of the Act to grant the TSH [Temporary Safe Haven] visa to the plaintiff solely by reference to the criterion that the Minister thought that it was in the public interest to do so. The Minister was entitled to take into account that a statutory consequence of the grant would be that s 91K, subject to s 91L, would bar the plaintiff from making a valid application for a protection visa. The Minister’s purpose of achieving that consequence, in the implementation of the policy of community placement in respect of offshore entry persons who were the subject of existing RSA [Refugee Status Assessment] or IMR [Independent Merits Review] processes begun under s 46A and to be continued under s 91L, was a purpose permitted by s 195A. The TSH visa and the Bridging visa were both validly granted to the plaintiff. Section 91K applied to make the plaintiff’s subsequent application for a protection visa invalid. Hayne J: [His Honour dissented on the basis that, as a matter of statutory construction, s 195A did not exclude the minister’s obligation to take account of the statutory characteristics of the particular class of visa the minister intended to grant.] The conclusions that have been

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expressed about s 195A proceed wholly from construction of the Act according to established principles. It is important to notice, however, that, if the Act could be construed as permitting the Minister, exercising power under s 195A(2), to grant any class of visas and to do that guided only by public interest considerations, more fundamental issues may arise. This construction, which was urged by the Minister, would give the Minister a very wide power to grant visas. Section 195A applied to a person who was in detention under s 189. Section 189 requires the detention of any person known or suspected of being an unlawful non-citizen in the migration zone or in an excised offshore place. Section 195A could therefore apply to well-nigh every unlawful noncitizen. On the Minister’s construction, the power given by s 195A was confined only by public interest considerations. Yet, as noted at the outset of these reasons, the Act records the Parliament’s intention that the Act ‘be the only source of the right of non-citizens’ to enter or remain in Australia. Section 195A(3) identified the only provisions of the Act which were not to bind the Minister in the exercise of power under s 195A(2). Two points may follow from these considerations. First, it is not to be supposed that s 195A(2) (or s 195A as a whole) can be read as permitting the Minister to dispense with or relieve from the application of otherwise binding provisions of the Act. But second, it may well be that any ambiguity in or uncertainty about the reach of a provision like s 195A must be resolved in a way that confines rather than expands the relevant power. Whether that is so requires close consideration of fundamental questions about the relationship between the Parliament and the Executive. And it may be that consideration of those questions would have to begin by examining the present significance of the protest recorded in The Bill of Rights (1 Will & Mar Sess 2 c 2) against the assumed ‘Power of Dispensing with and Suspending of Lawes and the Execution of Lawes without Consent of Parlyament’ and the provisions of that Act declaring ‘That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall’ and ‘That the pretended Power of Dispensing with Laws or the Execution of Laws by Regall Authoritie as it hath beene assumed and exercised of late is illegall’. Second, reading the Act in the manner urged by the Minister would likely require examination of some issues touched on by five members of this Court, but not decided, in Plaintiff S157/2002 v Commonwealth. The plurality recorded that, in argument in that case, the Commonwealth had suggested that the Parliament might validly delegate to the Minister ‘the power to exercise a totally open-ended discretion as to what aliens can and what aliens cannot come to and stay in Australia’, subject only to this Court deciding any dispute as to the constitutional fact of alien status. The plurality said of this suggestion: The inclusion in the Act of such provisions to the effect that, notwithstanding anything contained in the specific provisions of that statute, the Minister was empowered to make any decision respecting visas, provided it was with respect to aliens, might well be ineffective. … The provisions canvassed by the Commonwealth would appear to lack that hallmark of the exercise of legislative power identified by Latham CJ in Commonwealth v Grunseit, namely, the determination of ‘the content of a law as a rule of conduct or a declaration as to power, right or duty’. Having regard to the conclusions that I have set out earlier in these reasons about the construction and application of s 195A, I need not consider these more fundamental issues.

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10.2.6C

Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 312 ALR 537; [2014] HCA 34 High Court of Australia

[This case considered the same statutory provision as Plaintiff M79/2012 10.2.5C; namely, the minister’s power under s 195A of the Migration Act 1958 (Cth) to grant a visa ‘of a particular class’ to a person in immigration detention ‘if the Minister thinks that it is in the public interest to do so’. The plaintiff had arrived at Christmas Island without a visa and was therefore an unlawful maritime arrival. Section 46A(1) of the Act prevented the plaintiff from making a valid application for any visa unless the minister determined otherwise under s 46A(2). The minister decided to consider whether to exercise his power under s 46A(2) of the Act to allow the plaintiff to apply for a permanent protection visa. The plaintiff remained in detention for more than two years while the minister’s department inquired into the plaintiff’s eligibility for permanent protection. The department concluded that the plaintiff met the criteria for the grant of the visa. However, the minister made no decision to permit or refuse the making of a valid application under s 46A(2) and instead granted two temporary visas: a temporary safe haven visa (valid for seven days) and a temporary humanitarian concern visa (valid for three years). The seven-day visa had the effect of preventing the plaintiff from making a valid application for any visa other than a temporary safe haven visa: s 91K. It was not disputed that the minister granted the seven-day visa for the purpose of engaging the prohibition under s 91K on making a valid application. The High Court unanimously held that the grant by the minister of a temporary safe haven visa to the plaintiff under s 195A was invalid in circumstances where the plaintiff’s detention had been prolonged for the purpose of the minister considering the exercise of power to allow the plaintiff to make a valid application for a visa of his choice.] French CJ, Hayne, Crennan, Kiefel and Keane JJ: [40] … The first relevant, and in this case the determinative, question is whether, the Minister having decided to consider the exercise of that power but not having decided how the power will be exercised, s 195A(2) of the Act gives the Minister power to grant a visa which forbids the very thing which was the subject of uncompleted consideration (making a valid application for a protection visa). As foreshadowed at the outset of these reasons, this question should be answered ‘No’. [41] Where, as here, an unlawful non-citizen is detained for the purpose of considering the exercise of power under s 46A, thereby prolonging detention, other powers given by the Act are to be construed as not permitting the making of a decision which would foreclose the exercise of the power under s 46A before a decision is made, thus depriving the prolongation of detention of its purpose. … [45] Section 46A governs whether and when an unauthorised maritime arrival may make a valid application for a visa. By contrast, the power given by s 195A(2) is to grant a visa whether or not the person has applied for the visa. Whether an unauthorised maritime arrival may or may not make a valid application for a visa is, therefore, the province of s 46A. If the Minister has decided, as here, to consider the exercise of power under s 46A, s 195A should be construed as not permitting the Minister to grant a visa which prevents the person making an application for any visa other than a visa of a specified class. [46] Reading s 195A as empowering the grant of a visa of the kind described wrongly assumes that the powers given by ss 46A and 195A are to be understood as wholly independent

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of each other. They are not. The Minister may not circumvent the provisions of s 46A by resort to s 195A. Not least is that so when, as in this case, the grant of a visa of the kind just described would deprive the prolongation of the plaintiff’s detention of its purpose. [47] The construction which has been identified is necessary in order to yield a harmonious operation of ss 46A and 195A and to achieve a construction of and operation for s 195A(2) which allows s 195A to take its place in a coherent statutory scheme for the detention of unlawful non-citizens. To adopt a metaphor used in relation to the Commonwealth’s power under s 51(xxxi) to make laws with respect to the acquisition of property, the power which the Act provides to the Executive to prolong the detention of a detainee for consideration of the exercise of power under s 46A must be understood as abstracting from the Minister’s power under s 195A(2) any power to grant the detainee a visa which is repugnant to the purpose for which prolongation of that detention was justified. When a person’s detention is prolonged for the purpose of considering the exercise of the power to permit the detainee to make a valid application for a visa, s 195A(2) does not give power to the Minister to grant a visa which, in effect, forbids the very thing which was the subject of uncompleted consideration warranting prolongation of the period of detention. [48] The apparent generality of the power given by s 195A(2) (‘[i]f the Minister thinks that it is in the public interest to do so’) must be read as subject to the prior exercise of power under s 46A. In this case there was a prior exercise of power under s 46A when the Minister decided to consider whether to permit the plaintiff to make a valid application for a protection visa and the plaintiff was detained for the purposes of inquiring into and deciding that question. Section 46A imports the negative proposition that the matter for which it provides (granting the ability to make a valid application for a visa) is not to be denied by exercise of power under s 195A(2). … [58] For the reasons which have been given, the Minister cannot exercise other powers under the Act in a manner which would defeat the Minister’s consideration of the exercise of power under s 46A and thereby deprive the prolongation of the plaintiff’s detention of its purpose. It follows that it is not open to the Minister to detain the plaintiff for any purpose other than the determination, as soon as reasonably practicable, of whether to permit the plaintiff to make a valid application for a protection visa. And, without the Minister deciding whether to permit the plaintiff to make a valid application for a visa, the powers to remove the plaintiff from Australia do not apply and may not be engaged.

10.2.7  Independent Commission Against Corruption v Cunneen 8.2.10C provides an illustration of the difficulties in discerning statutory purpose. In pursuance of its power to investigate ‘corrupt conduct’, the Independent Commission Against Corruption (ICAC) commenced an investigation into whether Ms Cuneen, the Deputy Director of Public Prosecutions, had advised a friend to mislead a police officer concerning a motor vehicle collision. There were two competing constructions of ‘corrupt conduct’: that the term applied narrowly to conduct that was capable of adversely affecting the probity of a public official’s exercise of an official function, or that it applied more broadly to conduct that was capable of adversely affecting the efficacy of the exercise of that function. If the narrower construction applied, ICAC could not investigate Ms Cuneen’s alleged behaviour, as the police officer was unaware that he may have been misled, and the probity of his actions was therefore not in doubt. The High Court by majority (French CJ, Hayne, Kiefel and Nettle JJ; Gageler J dissenting) adopted the narrower construction. They held that this interpretation was the more internally consistent and 580

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‘harmonious’ (at [59]); that it was ‘more logical and textually symmetrical’ (at [46]) to interpret ‘corrupt conduct’ as being confined to conduct affecting the probity of the exercise of an official function; and this interpretation conformed with the ordinary understanding of corruption in public administration and the purposes of the ICAC Act 1988 (NSW): at [46]. The majority rejected the approach to statutory construction adopted by the New South Wales Court of Appeal, noting that a plain and ordinary meaning approach adopted by Bathurst CJ was overly broad and failed to take account of the statutory context (at [32]), and that the Court of Appeal’s approach relied on an assumed meaning of corruption: at [33]–[34]. Their Honours noted that it was ‘impossible to identify the purpose of the ICAC Act (and, therefore, impossible to establish a major premise against which to compare the relative consistencies of competing constructions …)’: at [35]. 10.2.8  For further discussion of statutory interpretation in this context, see  generally J Barnes, ‘Duties and Discretions: How Have “Plain English” Legislative Drafting Techniques Fared in Administrative law?’ (2016) 83 AIAL Forum 36; The Hon Justice R French, ‘Statutory Interpretation and Rationality in Administrative Law’ (2015) 82 AIAL Forum  1; The Hon Justice S Gageler, ‘Legislative intention’ (2015) 41 Monash Law Review 1–16.

Actual purpose of the decision 10.2.9  Some decisions openly announce or disclose their purpose. In Brownells Ltd v  Ironmongers’ Wages Board (1950) 81 CLR 108 at 120, 130, the court deduced from the burdensome rate of overtime payment stipulated by a wages board, that the board had improperly used its power of setting wages to control shop opening hours. The purpose sought to be achieved by subordinate legislation is also often apparent from the face of the instrument: see  Shanahan v  Scott 8.4.13C. In other situations it may be necessary for a court to draw evidentiary inferences from such matters as the conduct or documentation of a government agency in order to identify the motivating purpose for which a decision was made: see Campbell 10.2.12C, Toohey 10.2.13C and Schlieske 10.2.16C. However, ‘[a]n  improper purpose will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power’: Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 672 (Gaudron J). 10.2.10  There are surprisingly few reported cases which raise the ground of unauthorised purpose. One probable explanation is that it is easier to establish the alternative ground that an irrelevant consideration was taken into account. Another explanation is that it can be difficult to prove that a decision-maker acted to achieve an ulterior purpose. Among the reasons for this difficulty are that the legislation may support multiple purposes (see 10.2.11), an astute decision-maker can carefully disguise their real purpose, or the evidence may simply not be strong enough to support an argument of ulterior purpose: see 10.2.17–10.2.18. These difficulties are illustrated by the different outcomes in Plaintiff M79/2012 10.2.5C and Plaintiff S4/2014 10.2.6C.

Multiple purposes 10.2.11  The application of this criterion of legal validity is vexing when the evidence establishes that the decision-maker was aware that multiple purposes would be achieved by 581

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the exercise of the statutory power, one or more of which, viewed separately, would be an unauthorised purpose. Schlieske 10.2.16C and Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board 10.2.15C both illustrate that the exercise of the power will not necessarily be invalid in those circumstances; something more will have to be established. But at what point is the threshold of invalidity crossed? The approach taken in Australia is to examine whether the unauthorised purpose was a substantial or dominant purpose in the sense that the power would not have been exercised had there not been a desire to achieve the unauthorised purpose: see Thompson v Randwick Corporation (1950) 81 CLR 87, discussed in Samrein. While that test is a useful guide, at the end of the day it will principally be a question of fact as to whether a power was exercised for the wrong purpose. The statute that is being administered may also have a bearing on the issue, by implicitly requiring that the decision-maker remain focused solely on the authorised purpose and not even advert to the extraneous purpose — a point emphasised in Schlieske. In short, there can be no hard-and-fast rule as to when an ancillary purpose will contaminate a decision that is otherwise valid. 10.2.12C

Municipal Council of Sydney v Campbell [1925] AC 338 Privy Council

Duff J: By s 16 of the Sydney Corporation Amendment Act 1905, the Municipal Council of Sydney is empowered from time to time, with the approval of the Governor, to purchase or ‘resume’ any land required for ‘carrying out improvements in or remodelling any portion of the city’ … On March 12, 1923, the Lord Mayor prepared a minute relating to the subject of the extension of Martin Place, an important thoroughfare in the centre of Sydney, and in this minute he recommended the extension of Martin Place to Macquarie Street, and the resumption of a considerable area, which embraced property belonging to the respondents. The proposals of the Lord Mayor’s minute were adopted by a resolution of the Council on June 28, and the resumption provided for by the resolution was approved by the Governor in Council. On the application of the respondents injunctions were granted by the Chief Judge in Equity, restraining the Council from proceeding under this resolution; and subsequently the Lord Mayor presented another minute, and on November 29 another resolution was passed by the Council, authorising the resumption of the identical area affected by the former resolution. Again proceedings were taken before the Chief Judge in Equity, who granted injunctions restraining the Council from proceeding under the second resolution; and at the hearing of the actions these injunctions were made permanent … The learned Chief Judge in Equity held that in point of fact these lands were not really ‘required’ for any such purpose, but that, as in the case of the other parts of the area affected which were not necessary for the extension of the street, the resumption proceedings were taken with the object of enabling the Council to get the benefit of any increment in the value of them arising from the extension, and thus, in some degree at all events, recouping to the municipality the cost of it; and that, since the resumption of lands for such a purpose alone was indisputably not within the ambit of the authority committed to the Council, the resolutions of June and November were both invalid. In the first minute presented to the Council by the Lord Mayor (in June), the proposed resumption was treated as a resumption undertaken for and in relation to the extension of

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Martin Place; and the consequential advantages accruing from the possession of the residual lands, which were supposed to recommend the Lord Mayor’s proposals, were the financial advantages alone, arising in the manner just suggested. It is quite true that in the minute of the Governor in Council approving the resolution the proposal approved is described as ‘a proposal … for the improvement and remodelling of the area in the vicinity,’ as well as for the extension of Martin Place. But these words, it is shown by the evidence, were inserted at the suggestion of the solicitor for the municipality after the resolution had been passed. The area described in the resolution of November is the identical area affected by the previous resolution; and, indeed, the proposal to which the resolution professes to give effect is identical in all respects with the previous proposal except for the pronouncement by the Lord Mayor and the declaration in the resolution that the land is required not only for the extension of Martin Place, but for improving and remodelling the area in the vicinity. No plan for improvement or remodelling was at any time decided upon; and, indeed, no such plan was ever considered by or proposed to the Council. Their Lordships think it not reasonably disputable that at the time of the passing of the resolution in June, the Council conceived it to be within its powers to resume lands not needed for the extension itself, but solely for the purpose of appropriating the betterments arising from the extension; and that, as Street CJE found, the Council had not at that time applied itself to the consideration of any other object in connection with the resumption of the residual lands. It is not at all inconsistent with this that individual members of the Council may have been actuated by some more or less definite expectation that the lands so ‘resumed’ would be dealt with not by resale to purchasers, but by leasing them, and that one advantage, arising from that mode of dealing with them, would lie in the fact that the Council would thereby retain control over the use to which the resumed lands might be put. The legal principles governing the execution of such powers as that conferred by s 16, in so far as presently relevant, are not at all in controversy. A body such as the Municipal Council of Sydney, authorised to take land compulsorily for specified purposes, will not be permitted to exercise its powers for different purposes, and if it attempts to do so, the Courts will interfere. As Lord Loreburn said in Marquess of Clanricarde v Congested Districts Board 79 JP 481: ‘Whether it does so or not is a question of fact.’ Where the proceedings of the Council are attacked upon this ground, the party impeaching those proceedings must, of course, prove that the Council, though professing to exercise its power for the statutory purpose, is in fact employing them in furtherance of some ulterior object. Their Lordships think that the conclusion of the learned Chief Judge in Equity upon this question of fact is fully sustained by the evidence. As already mentioned, it is admitted that no plan of improvement or remodelling was at any time before the Council; and their Lordships think there is great force in the argument that the course of the oral discussion, as disclosed in the shorthand note produced, shows, when the events leading up to the second minute of the Lord Mayor are considered, that in November the Council was applying itself to the purpose of giving a new form to a transaction already decided upon, rather than to the consideration and determination of the question whether the lands to be taken were required for the purpose of remodelling or improvement. Their Lordships think the learned Chief Judge was right in his conclusion, that upon this question there was no real decision or determination by the Council.

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Control of Government Action

R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; 38 ALR 439 High Court of Australia

[The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act) established a scheme whereby Aboriginals claiming to have a traditional land claim to an area of ‘unalienated Crown land’ in the Northern Territory could lodge a claim for that area: s 50(1)(a). The application would be inquired into in the first instance by an Aboriginal Land Commissioner (in this case Toohey J) who was to prepare a report for both the Minister for Aboriginal Affairs and the Administrator of the Northern Territory. The term ‘unalienated Crown land’ was defined in s 3 of the Act so as not to include land in a ‘town’. In turn, ‘town’ was defined in s 3 to have ‘the same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near the towns, and includes any area that, by virtue of regulations in force under that law, is to be treated as a town’. The High Court accepted in this case that the Northern Territory law which satisfied that definition was the Planning Act 1979 (NT) (Planning Act). Section 165 of the Planning Act provided, in standard terms, that the Administrator ‘may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act’. On two occasions in 1977–78 the Northern Land Council notified the Northern Territory Government that it intended to make a land claim for land in the Cox Peninsula (known as the Kenbi Land Claim). Formal claims were lodged in 1978 and 1979. Meanwhile, in December 1978 the Administrator made a regulation (described in the case as r 5) which provided that the town boundaries of Darwin were extended to include much of the Cox Peninsula. The effect of this regulation was that Darwin, previously covering an area of 142 sq km, was increased to a size of 4350 sq km. As described in the case, the Cox Peninsula was a sparsely populated area that was separated from Darwin by an arm of the sea. Although the nearest point of the Peninsula was only about 6 km from Darwin by sea, access by road was much longer and more difficult. The regulation also increased the size of three other towns — Alice Springs to 295 sq km; Tennant Creek to 710 sq km; and Katherine to 4690 sq km. Before the Land Commissioner, the Northern Land Council sought to challenge the validity and operation of the regulation on a number of grounds. The principal argument, covered in the following extract, was that r 5 was invalid as being made for an unauthorised purpose. The commissioner held that, on the current state of the authorities, an inquiry could not be held into the motives of the Administrator in making the regulation. Accordingly, the commissioner refused to order discovery of the government documents which might reveal the reasons why the regulation was made. The consequence was that the challenge to the validity of the regulation failed. The Northern Land Council next applied to the High Court for certiorari, mandamus and prohibition, to quash Toohey J’s ruling and to compel him to hear the land claim under the Land Rights Act. The High Court (Gibbs CJ, Stephen, Mason, Aickin and Wilson JJ) held that the exercise by the Administrator of the power conferred by s 165 of the Planning Act could be reviewed on the ground of unauthorised purpose. Aickin and Wilson JJ approached that issue on the basis that the Administrator was the representative of the Crown in the territory; Stephen and Mason JJ said that it was unnecessary to decide that issue; and Gibbs CJ, while of the view that the Administrator was not the representative, was prepared to approach the question on the basis that he was. Murphy J dissented from the view that an exercise of subordinate legislative authority could be questioned on the ground of unauthorised

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purpose, but held that r 5 was invalid on another ground, namely that the Planning Act did not authorise the definition of a town as broad as that given in r 5. The court issued mandamus to direct Toohey J to proceed to deal with the land claim, and in particular to consider the validity of r 5. The following extracts do not include the analysis by the judges of earlier High Court authority, which contained dicta denying that the decisions of the Crown could be reviewed for unauthorised purpose.] Gibbs CJ: The case is one in which the Administrator (whom I shall assume represents the Crown) has exercised a power conferred on him by statute. It is of course a power that the Administrator exercises on the advice of his Executive Council. The power is not one whose existence is expressed to depend on a subjective belief or opinion (such as is the case where a Governor-General or Governor is given power to act ‘if it appears to him …’ or ‘if he is satisfied …’), nor, on the other hand, is it granted to be exercised for a particular specified purpose. Under a statutory provision such as the present, the nature and extent of the power ‘must be inferred from a construction of the Act read as a whole’: Padfield [10.3.17C]. The principle, which is clearly settled, at least in the case of authorities subordinate to the Crown, is that a statutory power may be exercised only for the purposes for which it is conferred. As Latham CJ said in Brownells Ltd v Ironmongers’ Wages Board (1950) 81 CLR 108, at 120: No inquiry may be made into the motives of the Legislature in enacting a law, but where a statute confers powers upon an officer or a statutory body and either by express provision or by reason of the general character of the statute it appears that the powers were intended to be exercised only for a particular purpose, then the exercise of the powers not for such purpose but for some ulterior object will be invalid. … In the present case, it is not open to doubt that the powers conferred by s 165 of the Planning Act, read in conjunction with the definition of ‘town’ in s 4(1), are to be exercised only for planning purposes, using that expression widely to include such matters as subdivision and development. It is incontestable that the power is not intended by the Act to be conferred for the purpose of defeating the traditional land claims of Aboriginals. If it was used for that purpose the exercise of the power was invalid, unless the Administrator enjoys some privilege that enables him to transcend and disregard the limitations which the statute on its proper construction imposes. It would be surprising in principle if this were so. It seems fundamental to the rule of law that the Crown has no more power than any subordinate official to enlarge by its own act the scope of a power that has been conferred on it by the Parliament. One thing that is clearly settled by numerous cases is that a power expressed in terms such as those of s 165 of the Planning Act does not enable the Governor-General in Council or Governor in Council to make regulations ‘which go outside the field of operation which the Act marks out for itself’: Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, at 410. [Gibbs CJ referred also to Shanahan 8.4.13C.] These authorities establish that if it can be seen from the words of the regulations themselves that the regulations go beyond the purposes of the statute under which they were made, the regulations will be invalid, although made by the Crown in Council. In this respect the Crown stands in no different position from any official to whom a statutory power is entrusted. There are, however, a number of decisions of this Court which appear to provide authority for the view that an act done by the Crown, apparently regular on its face, cannot be impugned because it was done for a purpose unauthorised by the statute which was relied upon to provide the necessary power.

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[His Honour discussed Duncan v Theodore (1917) 23 CLR 510; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan 5.3.5C; Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37; and Australian Communist Party v Commonwealth (1951) 83 CLR 1. Gibbs CJ referred also to two Privy Council decisions, and to New Zealand and Canadian decisions, which had left open the question whether a court could investigate the purposes for which the Crown had acted. His Honour continued:] In this state of the authorities it appears to me that this Court is free to decide for itself the question that now arises. As I have shown, if the Crown in Council makes a regulation which appears on its face to be made for a purpose that was not authorised by the statute under which it purports to be made, the regulation will be invalid. It would be anomalous if a regulation which bore the semblance of propriety would remain valid even though it should be shown in fact to have been made for an unauthorised purpose; that would mean that a clandestine abuse of power would succeed when an open excess would fail. … In my opinion no convincing reason can be suggested for limiting the ordinary power of the courts to inquire whether there has been a proper exercise of a statutory power by giving to the Crown a special immunity from review. If a statutory power is granted to the Crown for one purpose, it is clear that it is not lawfully exercised if it is used for another. The courts have the power and duty to ensure that statutory powers are exercised only in accordance with the law. They can in my opinion inquire whether the Crown has exercised a power granted to it by statute for a purpose which the statute does not authorise. The onus of proving that the Crown did act for an unauthorised purpose lies on those who make that assertion: see Ningkan v Government of Malaysia (1970) AC, at 390, and McEldowney v Forde [1971] AC 632, at 660. In the present case, the appellant was in my opinion entitled to challenge the Planning Regulations … on the ground that they were made for a purpose which was not a planning, or a town planning, purpose. The challenge might be made either on the ground that the regulations were invalid on their face, or on the ground that evidence would show that they were in fact designed to defeat the traditional land claims of Aboriginals. It was necessary for the commissioner to decide on the validity of the Planning Regulations to enable himself to determine whether the application was made in respect of land to which s 50(1)(a) of the Land Rights Act applied. If the regulations were invalid, there was no justification for him to fail to continue to exercise his function under s 50(1)(a). For the reasons given the commissioner has not exercised his functions in accordance with law and the case is a proper one for mandamus. Stephen J: [His Honour first referred to a number of Australian and English cases which established that judicial review of the exercise by a minister of the Crown of a discretionary power could extend to an examination of the reasons which led to the minister’s exercise of power. The cases referred to included Padfield 10.3.17C and Murphyores Inc Pty Ltd v Commonwealth 10.3.16C. He then continued:] It is accordingly clear that had r 5 been made by a Minister of the Northern Territory Government it would have been open to the Council to seek to show that the regulation was beyond power because made for a purpose other than that for which the power was granted. Having in fact been made by the Administrator in Council the same question arises which confronted the Ontario Divisional Court in Re Doctors’ Hospital and Minister of Health (1976) 68 DLR (3d) 220, at 230: does it make any difference in law that the relevant power was one exercised not by a Minister of the Crown but by the representative of the Crown upon the advice of his Ministers? To that question I would give the answer ‘No’, as did the Ontario Divisional Court, which held that, whether it be Minister or Lieutenant-Governor in whom discretionary power is vested by statute, its

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exercise will be ‘subject to Court review’. Where a Parliament confers powers they will seldom if ever be conferred in gross, devoid of purposes or criteria, express or implied, by reference to which they are intended to be exercised. Unless a Parliament, acting constitutionally, can be seen from the terms of its grant of power to have excluded judicial review, the courts will, at the instance of a litigant, examine the exercise of powers so granted, determining whether their exercise is within the scope of Parliament’s grant of power. This will be so whether the grant of power be to the representative of the Crown, to a Minister of the Crown or to some other body or person. [His Honour considered Australian and foreign cases mentioned in the judgment of Gibbs CJ, and continued:] The trend of decisions in British and Commonwealth courts has encouraged me to conclude that, in the unsettled state of Australian authority, the validity of r 5 was open to be attacked in the manner attempted by the Council. Such a view appears to me to be in accord with principle. It involves no intrusion by the courts into the sphere either of the legislature or of the executive. … Consequences of this conclusion This Court should not, I think, attempt in the abstract to define and describe the precise limits of the regulation-making power conferred by s 165(1). It will be for the Council to adduce before the Commissioner such evidence as it can in support of its allegations of improper purpose, the Commissioner then determining in the light of that evidence whether or not r 5 was in fact made within the scope of the grant of power conferred by s 165(1). Mason J: It is incontestable that the courts will not examine the motives which inspire members of Parliament to enact laws. No doubt the courts will continue to adopt a similar approach to the exercise by a subordinate law-making body of legislative powers which are not purposive and are not conditioned on the opinion of the body as to the existence of a state of facts. But when the legislative power is purposive or conditioned on such an opinion the objection to an examination of the motives of the members of the legislative body lies not so much in the character of the function as in the relationship or lack of relationship between the motives of the individual members on the one hand and the extraneous purpose or the want of a bona fide opinion on the other hand. The problem is partly a practical problem of proof. In one case there is the difficulty of translating individual motives into objective purpose. In the other case there is the difficulty of deducing from individual motives the conclusion that a collective opinion was not a bona fide held opinion. It would be unwise in the absence of some knowledge of the facts to explore these questions further. [Murphy J, Aickin and Wilson JJ substantially agreed.]

10.2.14 Following Toohey 10.2.13C, at the resumed inquiry into the Kenbi Land Claim, the hearing before Olney J (Aboriginal Land Rights Commission, 8 December 1988) on the validity of the regulations was extensive. The evidence presented was voluminous, and included the testimony of four government ministers. The principal submission of the Northern Territory Government was that the land use of the Cox Peninsula was directly relevant to the regional planning of Darwin, that the planning connection between Darwin and the peninsula had been identified in reports and discussions during the 1970s, and that the lodgment of the Kenbi claim made the planning issues more urgent. Justice Olney agreed that an inference of ulterior purpose could not be drawn merely from the time when the regulations were made, nor from the extent of the area affected. However, on other evidence his Honour concluded 587

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that ‘the regulations were planned and implemented, from start to finish, to ensure that no Aboriginal land claim could be made to the areas specified. That was the sole reason for making the regulations’: cited in Attorney-General (NT) v  Olney  J; Ex parte Northern Land Council (FCAFC, 28 June 1989, unreported) at [14]. That finding was upheld by the Full Federal Court: Attorney-General (NT) v Olney J; Ex parte Northern Land Council. The finding of Olney J and the Full Court was based principally on the following considerations: the Northern Territory Government officers responsible for town planning were not involved in making the regulations; the Darwin Town Plan did not extend to the Cox Peninsula; no thought was given by ministers to the reasonableness of the area covered by the regulation; the contemporaneous government documents showed that the purpose of the regulations was to frustrate Aboriginal land claims; and regional planning considerations were beyond the scope of the Planning Act. This evidence only established the purpose that was pursued by the minister responsible for the regulations; however, the court ascribed this purpose to the other members of the Executive Council who were content to adopt the regulations without question and to embrace the purpose that lay behind them. The Full Court acknowledged that a different conclusion could have been reached had the evidence established that the blocking of the Kenbi claim was merely consequential, or a step towards achieving a primary and legitimate planning purpose. Leave to appeal to the High Court against the Full Court ruling was refused in September 1989. 10.2.15C Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 High Court of Australia [The Metropolitan Water Sewerage and Drainage Board was authorised by the Metropolitan Water Sewerage and Drainage Act 1924 (NSW) to undertake a compulsory resumption of land for any purpose of the Act. The board made a decision to resume a block of land owned by Samrein Pty Ltd, which thereupon commenced proceedings contending that the land had been resumed by the board for an unauthorised purpose, being to obtain finance from a joint venture with the Commonwealth Government Insurance Office to redevelop the land. The challenge to the validity of the resumption was dismissed by the Supreme Court of New South Wales, and on appeal by the High Court.] Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ: The critical question in the present case is whether the purposes for which the Board proposes to acquire the land are purposes of the Act. If the Board is seeking to acquire the land for an ulterior purpose, there will be an ostensible but not a real exercise of the power granted by the Act. The attempted exercise of power will be vitiated even if the ulterior purpose was not the sole purpose of the acquisition. It will be an abuse of the Board’s powers if the ulterior purpose is a substantial purpose in the sense that no attempt would have been made to acquire the land if it had not been desired to achieve the unauthorised purpose: see Thompson v Randwick Corporation (1950) 81 CLR 87, at 106 … Clearly, if the purpose of the acquisition of the land in the present case was to provide office accommodation for the Board’s employees now and in the future, the acquisition will

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have been for one of the purposes of the Act. The questions whether the land was acquired for another and unauthorised purpose, and if so whether that unauthorised purpose was a substantial purpose of the acquisition, are questions of fact. [Their Honours went on to describe the land and proposed acquisition and use of the land.] It is submitted that the land in question would not have been acquired but for the ulterior purpose of engaging in the joint venture with GIO, with a view to providing finance to enable the Board to acquire the office space it needed. In other words, it is said, the financing of the scheme by giving an interest to GIO was a substantial purpose actuating the acquisition. It may be accepted that it would be physically possible to build a smaller building of 21 stories on the remaining area of the block, excluding the appellant’s land. However the evidence was that that would not be desirable; a building on an area which excluded the appellant’s land would be less aesthetic, less functional and less economic. Moreover, the uncontradicted evidence was that even if a smaller building were erected it would be desirable to put it on the appellant’s land. The learned primary judge found that the true purpose, and the dominant purpose, for which the Board acquired the land was to provide it with office accommodation which it needs now and in the future. The purpose of providing accommodation for GIO in order to secure finance was, he said, entirely subsidiary. The learned Judges of Appeal were of the same opinion. We find it impossible to disagree with this conclusion. The Board obviously needed to provide office accommodation for the future. Its object in acquiring the land was to provide such accommodation. It did not acquire more land than it needed for the building in which the office accommodation was to be provided. It is true to say that it acquired more land than it would have needed had it decided to build a smaller and different building, but the owner of land the subject of a proposed resumption is not entitled to say that the resuming authority could get by with a smaller building or a building of different construction. Indeed it would be absurd to suggest that on a city block such as that in question, the Board should have constructed a building no larger than was needed for its own purposes if, as appears, a building of that size would be an under-development of a valuable city site. The proper conclusion is that the Board’s proposed acquisition was for the purpose of acquiring a city block on which it could erect a building in which it would provide accommodation for its own employees. The joint venture with GIO was simply a means to that end. The case is distinguishable from Thompson v Randwick Corporation, in which it was established that no attempt would have been made to resume the particular land in question if it had not been the desire of the council to make a profit from the resale of those lands and to reduce the cost of construction of the new road in that way: see Minister for Public Works v Duggan (83 CLR) at 445–6. On the other hand, the present case resembles C C Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365 where part of a block acquired to provide a bus terminus was to be used to develop a retail shopping centre and the acquisition was held to be valid. To apply the words of the judgment in that case to the present case, the provision of accommodation for the Board was ‘both the initiating and the abiding purpose of the resumption’ (see at 381).

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Control of Government Action

Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719; 17 ALD 101 Federal Court of Australia (Full Court)

[Mr Schlieske was a national of West Germany, and a warrant had been issued for his arrest by a West German court in relation to drugs offences. Extradition proceedings had twice been taken against Mr Schlieske by the Australian Government, and had twice failed. In the meantime, a deportation order was signed under the Migration Act 1958 (Cth) (Migration Act), and discussions were held between Australian and West German officials to arrange for Mr Schlieske to be deported to West Germany on Lufthansa and delivered into the custody of West German police officers. In the present proceedings the Federal Court held that the particular steps that had been taken amounted, improperly, to a ‘disguised extradition’. However, the court further held that Mr Schlieske could properly be deported to West Germany, provided that Australian officials did not take steps beyond those necessary for the purpose of removing Mr Schlieske from Australia, and in particular did not take steps to ensure his delivery into the custody of West German officials.] Wilcox and French JJ: The concept of ‘disguised extradition’ Section 18 of the Migration Act 1958 authorises the Minister to order the deportation of prohibited non-citizens. That authorisation is an expression of the power of the Parliament of the Commonwealth to make laws with respect to immigration and emigration: Constitution s 51(xxvii). The authority so conferred is not expressly qualified or conditioned in any way. Like all statutory discretions, however, it is to be exercised in accordance with the scope and purposes of the enactment which is its source: Murphyores [10.3.16C] at 23 (Mason J). … The amplitude of the relevant statutory powers, both in Australia and in the United Kingdom, has tempted governments to use them not merely to deport undesirable aliens, but to effect their delivery into the hands of friendly foreign governments for trial on criminal charges or for other reasons which, on the face of it, have nothing to do with regulating the movement of persons to and from the deporting country. … In the early years such conduct was sanctioned by the courts but, in recent times and corresponding with the developing willingness of the courts to confine the exercise of statutory powers to the purpose for which they were granted, the courts of both countries have generated a distinction — which is difficult of practical application — between a deportation for the purpose of extradition (‘disguised extradition’) and a deportation for immigration control purposes which incidentally effects a de facto extradition … Application of the principle of proper purpose The relevant principle is that the power to deport a prohibited non-citizen, while wide and unqualified by any statutory condition, must be exercised for the purposes of the Migration Act, that is to say, in aid of the sovereign right of this country to determine who shall be permitted to enter it and who should be excluded therefrom. Of course, in considering whether to exercise that power, the Minister may have regard to a wide range of matters personal to the particular prohibited non-citizen, such as that person’s criminal record. It is less clear that the Minister may have regard to mere allegations of criminality … [I]t is plainly extraneous to the decision to deport a person, and to deport that person to a particular country, that the person is wanted by the government of that country upon criminal charges. It is not one of the purposes of the Migration Act to aid foreign powers

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to bring fugitives to justice. There is a distinct head of constitutional authority — namely the external affairs power — and a distinct mechanism — the extradition legislation — under which that object may be pursued. The foregoing does not mean that the Minister is precluded from deporting a person to a country where, to the Minister’s knowledge, the person is likely to face criminal proceedings. Having regard only to immigration considerations, deportation of the person to that country may be a proper course; most obviously so in a case, such as the present, in which the proposed deportee is a national of that country and has travel documents valid only for entry into that country. As s 22(3) makes plain, the question whether a proposed deportee will be permitted to enter a particular country of destination is relevant to the exercise of the deportation power. It may be that a government will choose to deport a fugitive to a country seeking to extradite him, and will do so in the face of the opportunity to deport to another country which is willing to receive him and to which he is willing to travel. Such a choice is not necessarily unlawful but it may, according to the circumstances of the case, give rise to an inference that the choice has been actuated by an improper purpose. In drawing that inference, the court may take into account official conduct outside that authorised by statute, for example the communication of flight arrival details. The court must be vigilant to ensure that procedures established by extradition laws to protect individual rights are respected and followed. The inconvenience which attends compliance with those procedures is a small price to pay to maintain the primacy that the liberty of the individual should have in our legal system. In the present case a finding has been made that particular actions taken by officers of the Department of Immigration and Ethnic Affairs in July 1987 amounted to a ‘sham’ extradition; that is that, although the officers purported to be acting in the enforcement of the Migration Act, they were at that time in fact actuated by the purpose of delivering Mr Schlieske to the West German authorities in order that he might be tried upon the charges pending against him in that country. That finding does not mean that Mr Schlieske cannot now be deported to the Federal Republic. It does mean that, in implementing the deportation order, the Minister and his officers must pursue only the purpose of deportation. If the decision is made that it is proper to deport the appellant to the Federal Republic, the steps to be taken should be no more than are appropriate to that purpose. Section 22 of the Migration Act envisages that a deportee may be escorted out of Australia by an authorised officer. The apparent purposes of this provision are, first, to ensure that the deportee does in fact leave Australia and, secondly, security; the deportee may be of a violent disposition. In a case where, for these reasons, it is deemed necessary to have a particular deportee escorted by an authorised officer it would not be a valid objection to that course that the deportee is wanted on criminal charges in the country of destination. But if, having regard to all of the circumstances other than the fact that the deportee is so wanted, it would not be necessary to provide an escort, it would be objectionable to provide an escort the better to ensure that the deportee arrives in that country and there faces the criminal charges. And, even if a decision is taken that a deportee should be escorted to the country of destination, it seems to us to be no part of the exercise of the deportation power for Australian officers to arrange for the surrender of the deportee to the authorities in that country. The task of the Australian escorting officer is complete when the deportee leaves the aeroplane in the country of destination.

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Control of Government Action

The appellant’s case for restraint against deportation to the Federal Republic of Germany is put upon two bases: 1. That the ministerial purpose was so contaminated by the unlawful object of surrender to the Federal Republic that no lawful deportation to that country could now be effected. 2. In the alternative the risk of such deportation serving an unlawful purpose was so great that as a matter of discretion it should be restrained. The first of these propositions is, we think, untenable. A power once applied to an improper purpose does not thereby vanish. The power remains to serve legitimate purposes. As to the second approach, the Court considers that the restraint sought would be a disproportionate response to what were the unlawful activities of two subordinate officers in the implementation of the deportation order. [Fox J agreed with the reasons of Wilcox and French JJ, noting that ‘whether the power is being exercised bona fide in order to effect a deportation … is a question of fact, or sometimes a mixed question of law and fact’: at 720.]

10.2.17  The difficulty of establishing unauthorised purpose by a process of inference from other facts is illustrated by Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40. Dr Haneef, who had been remanded in custody on suspicion of terrorism offences, was granted conditional bail by a magistrate. On the same day, the Minister for Immigration cancelled Dr Haneef ’s visa, with the result that he was taken into immigration detention. The following day the Attorney-General issued a criminal stay certificate, which prevented Dr Haneef ’s removal from Australia. It was argued that the Minister for Immigration had not cancelled Dr Haneef ’s visa for the permitted purpose of securing his removal from Australia as soon as reasonably practicable, but for the impermissible purpose of continuing his detention pending further police investigation of his conduct. The court held that the coincidence of these events did not provide a proper basis for drawing an inference of ulterior purpose by the Minister for Immigration: at 91. (Interestingly, a later inquiry in the Haneef matter made a finding that the decision of the minister to cancel Dr Haneef ’s visa was ‘mystifying’: M Clarke, Report of the Inquiry into the Case of Dr Mohamed Haneef, Commonwealth of Australia, Canberra, 2008, (Clarke Inquiry) at viii.) A contrasting decision was reached in Park Oh Ho v Minister for Immigration and Ethnic Affairs 17.8.6C, that a deportation order had been made for the impermissible purpose of detaining a person in custody so that his evidence would be available in forthcoming criminal proceedings against another person for unlawfully arranging a migration racket. 10.2.18 In South Australia v Slipper 11.3.36C the court was prepared to draw an inference of unauthorised purpose. The Commonwealth acquired land in South Australia for a nuclear waste dump by making an ‘urgent’ declaration instead of using the normal public hearing procedure. The court held that the impermissible purpose actuating the Commonwealth action was its desire to acquire the land hastily before the South Australian Parliament legislated to make the area a public park. Similarly in Police v Clayton-Smith (2010) 107 SASR 261, the court held that a magistrate had acted for an unauthorised purpose by using the power under s 76A of the Summary Procedure Act 1921 (SA) to set aside previous convictions imposed by the Magistrates Court and then immediately re-convicting the respondent for the purpose of 592

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10.2.21

avoiding the application of a mandatory minimum three-year licence disqualification provision under the Motor Vehicles Act  1959 (SA). A contrasting decision in which an inference was not drawn was Warringah Shire Council v  Pittwater Provisional Council (1992) 26 NSWLR 491, holding that the Warringah Shire Council had not acted for an unauthorised purpose in restructuring staffing arrangements with a view to ensuring that some staff would undergo a compulsory transfer to the newly created Pittwater Municipal Council, thereby protecting the staff against redundancy and the Warringah Council against a large redundancy payout. 10.2.19  A court may not find a decision invalid by impugning the motive of parliament in making a law. The situation may be different where it is the decision-maker’s motive under consideration. The distinction between purpose, motive and effect was noted in an oft-quoted passage of News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563: Gleeson CJ: The purpose of conduct is the end sought to be accomplished by the conduct. The motive for conduct is the reason for seeking that end. The appropriate description or characterisation of the end sought to be accomplished (purpose), as distinct from the reason for seeking that end (motive), may depend upon the legislative or other context in which the task is undertaken. Thus, for example, in describing, for the application of a law relating to tax avoidance, the purpose of an individual, or of an arrangement, it will be necessary to look at what is sought to be achieved that is of fiscal consequence, not at a more remote, but fiscally irrelevant, object, such as increasing a taxpayer’s disposable income.

10.2.20  A decision that is otherwise invalid cannot be saved by proof that the decision-maker’s motive was laudable, sensible or economically rational. This is consistent with the court’s reluctance to impute improper purposes. In Woollahra Municipal Council v  Minister for the Environment (1991) 23 NSWLR 710 the court held that a decision to raise revenue by permitting a private university to operate in the Sydney Harbour National Park at Watsons Bay was incompatible with the statutory scheme which only permitted activity that advanced its use as a national park. The respondent had argued that the decision could be justified, as the university, in return for a four-year term of occupancy, had agreed to meet the cost of restoring the park grounds and a dilapidated heritage building, and to share its use with the public. The court dismissed this line of argument as irrelevant to whether the use of the park was for an authorised statutory purpose. Chief Justice Gleeson commented that ‘the use of the land … is to be judged by reference to the objects of the Act, not the motives which lie behind the decision to permit that use’: at 717. Samuels JA observed: ‘The fact that an activity which does not satisfy the criteria … will produce money capable of constructive use to improve the amenities and facilities in the park, cannot validate a grant which would otherwise be beyond power’: at 733. See also Kirby P at 728. 10.2.21  Another area of difficulty in applying the ground of unauthorised purpose arises where a decision has been made by a multi-member deliberative body, and the motives of some but not all members have been proved in evidence, or the individual members have differing motives. For example, in IW v City of Perth (1997) 191 CLR 1 at 31–3, 47–9, 61–6, an issue was whether a local council was in breach of anti-discrimination laws in refusing planning permission for a drop-in centre for HIV victims, when the evidence indicated that some councillors forming part of the majority were impermissibly motivated by what was described as ‘the AIDS factor’. See  also Australian Municipal, Administrative, Clerical and Services Union v  Greater Dandenong City Council (2000) 101 IR 143; and NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561; cf McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504. 593

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Control of Government Action

Statutory indeterminacy 10.2.22  A faithful application of the principles on unauthorised purpose presupposes that the statutory purpose can be identified with reasonable certainty. That is not always so, a point made by Kirby P in Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126, commenting on a much-amended Gaming and Betting Act 1912 (NSW): The legislation relevant to the present appeal … does nothing to add to the coherency of this body of law. It is a jumble of ill-matched and poorly integrated enactments. If there is now to be found a common thread running through it all, it would seem to be nothing more than revenue-raising. This conclusion suggests that the only safe approach when a court is required to construe a web of applicable legislation is an attention to the literal words of the legislation. A ‘purposive’ approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes.

10.2.23  Commonly, too, there can be conflicting purposes in the one statute. A chief example in the public law field is the freedom of information statutes, which declare a dual theme — to promote public disclosure of government documents, yet to preserve official secrecy in areas where there is a legitimate public interest in so doing. Another example is the recent legislative schemes for regulating gas, electricity and water, which require economic efficiency to be balanced against social and environmental concerns. As Parker J observed in Re Dr Ken Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 at 563, there was ‘an underlying harmony and consistency in the general policy objectives of the Act’, yet at every relevant point ‘there is also the tension of potentially conflicting considerations or objectives’. Similarly, in Project Blue Sky Inc v Australian Broadcasting Authority 16.2.10C the High Court detected at least three statutory objectives that could be the touchstone for a decision by the Australian Broadcasting Authority. The ABA was required by its Act to give effect to the policies and directions of the government; to ensure that Australian television is controlled by Australians for the benefit of Australians; and to perform its functions in a manner consistent with Australia’s international treaty obligations (which in this case included an obligation to give equal market access to New Zealand TV program service providers). In deciding that the latter objective prevailed, and that a broadcasting standard which gave preference to Australian content was inconsistent with that obligation, the High Court defined the test for resolving a conflict in statutory purposes: McHugh, Gummow, Kirby and Hayne JJ: [T]he process of construction must always begin by examining the context of the provision that is being construed. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court to determine which is the leading provision and which the subordinate provision, and which must give way to the other (Institute of Patent Agents v Lockwood [1894] AC 347 at 360 per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible

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Chapter 10  Statutory Purpose and Relevant Considerations

in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

10.2.24  A broader and theoretical critique of purposive construction has been undertaken by Jeffrey Barnes, in a comprehensive review of the effect of the purpose rule in statutory interpretation: JW Barnes, ‘Statutory Interpretation, Law Reform and Sampford’s Theory of the Disorder of Law — Part Two’ (1995) 23 Federal Law Review 77. He summarised the difficulties in identifying the legislative purpose in the following way: While in a strict sense [purposive construction] focuses attention on the precise objects of the legislature, in practice it commonly can have several other or more specific nuances, including the original purpose or intention, a dynamic or shifting sense, the achievement of the ‘right’ result, avoidance of the mischief, the reason or motive, the policy, the means, the consequences and the overall meaning or presumed intention.

10.2.25  The difficulty in purposive construction to which those extracts allude is often tied to the length and complexity of legislation. The trend towards detailed legislation is especially apparent in areas of high volume administrative review (such as taxation, immigration, social security, the environment, and land planning). There is frequent legislative amendment in those areas in response to the outcome of litigation, and yet the greater elaboration of the legislative text can in turn exacerbate the difficulty of purposive construction and discretionary decisionmaking. Stephanie Forgie, a Deputy President of the Administrative Appeals Tribunal, in discussing the detailed mode of drafting much Commonwealth legislation, noted that ‘the complexity of life is such that legislative provisions drafted with every possible contingency in mind often prove inadequate for the twists and turns which have not, and could not, have been foreshadowed and provided for’: S Forgie, ‘The AAT: Moving Forward’ in J McMillan (ed), The AAT — Twenty Years Forward, AIAL, Canberra, 1998, p 201, at p 207.

CONSIDERING IRRELEVANT MATTERS 10.3.1  A decision may be invalid where an irrelevant consideration has been taken into account by a decision-maker: R v Trebilco; Ex parte F S Falkiner & Sons Ltd (1936) 56 CLR 20 at 27, 32, 33. This principle is enshrined as a ground of judicial review in the ADJR Act, which provides that an order of review can be sought in respect of ‘taking an irrelevant consideration into account in the exercise of a power’: s 5(2)(a). See also ACT: Administrative Decisions ( Judicial Review) Act 1989 s 5(2)(a); Qld: Judicial Review Act 1991 s 23(a); Tas: Judicial Review Act 2000 s 20(a). 10.3.2  Two issues will commonly arise in applying this criterion: • What matters were taken into account by a decision-maker?

• Were any of the matters that were taken into account an irrelevant consideration? While the first issue is to be resolved as a question of fact, the second issue is ordinarily a question of law to be resolved by construction of the statute that confers a power. In appropriate cases the criteria of relevance can also be found outside a statute, by reference to other aspects of the legal framework within which decision-making occurs.

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Control of Government Action

Criteria of relevance 10.3.3  The second issue — whether a particular matter is an irrelevant consideration — overlaps with but is distinguishable from the issue of (mandatory) relevant considerations that is considered at 10.4.1ff. The same process of statutory construction will commonly be adopted to decide matters that are irrelevant (and cannot be considered by a decision-maker) and matters that are mandatory considerations (that must be considered by a decision-maker). In between these categories lies, in an ordinary case, a whole range of considerations that are neither impermissible nor mandatory for the decision-maker to take into account. In Lo  v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 Basten  JA described the distinction as follows: The term ‘relevant considerations’ is widely misunderstood … it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be ‘mandatory consideration’. Further, a matter traditionally described as an ‘irrelevant consideration’ is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.

Expanding on these statements in Duffy v Da Rin (2014) 87 NSWLR 495, Basten JA has also graphically observed: [53] ‘[C]onsiderations’ have different qualities which are not recognised by a simple classification as permissible, mandatory or prohibited. To identify a lion and a deer as wild animals and place them together in a zoo is unlikely to provide a satisfactory outcome (at least for the deer). Two considerations may each be relevant, but may pull in opposite directions. A particular consideration may be relevant to one aspect of the reasoning process, but not to other aspects. For example, in sentencing an offender a prior criminal record is relevant, but may only be used to diminish a plea for leniency, not to increase an otherwise appropriate sentence for the particular offence. Thus a consideration which is relevant for a specific purpose or in respect of a particular issue only may be impermissibly used for a different purpose or with respect to another issue. Such misuse could constitute an error of law.

10.3.4  To decide which matters are relevant or irrelevant, one usually need go no further than the statute that confers a power or function. In the simplest situation the legislation will enumerate exhaustively the considerations or factors that can be taken into account. Often, however, it is necessary to draw inferences from other features of the legislation — the language of the statute, its purpose or object, the subject matter of the statute, the nature of the power that is being exercised, and the nature of the office held by the decision-maker: see  the comprehensive discussion by Mason  J in Minister for Aboriginal Affairs v  PekoWallsend Ltd (Peko-Wallsend) 10.4.13C. Each of those factors can pull in different directions. For example, the scope of relevant considerations was read expansively in Murphyores Inc Pty Ltd v  Commonwealth 10.3.16C, yet restrictively in Roberts v  Hopwood 10.3.18C and Ex parte SF Bowser & Co; Re Municipal Council of Randwick (Bowser) 10.3.19C. In all three cases 596

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10.3.6

the courts laid emphasis on the same aspects of the statute, principally the character of the decision-maker and the nature of the decision to be made. 10.3.5  In some situations the statute that is being administered gives little guidance, because the discretions that it confers are unconfined or open-textured, or embody expansive notions such as ‘public interest’ or ‘national interest’. The conventional view taken in Australian courts is that a provision of that kind confers a broad discretion upon a decision-maker to determine which considerations shall be taken into account in reaching a decision. That is, a court will be cautious in concluding that an issue that was taken into account was irrelevant; the court will treat the task of striking a compromise between competing interests and perspectives as not only a legal task but also as an administrative and political responsibility. This approach to statutory construction is emphasised in Water Conservation and Irrigation Commission (NSW) v  Browning 10.3.10C; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 (R v ABT) 10.3.12; Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143 10.3.14; and C Inc v Australian Crime Commission (2010) 113 ALD 226. See also Buck v Bavone (1976) 135 CLR 110; and A v Corruption and Crime Commissioner (2013) 306 ALR 491. In Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 88 ALJR 690, the High Court unanimously held at [40] that: What is in the national interest is largely a political question … The only matter to which the Minister is obliged to have regard, in considering the national interest, is whether or not the country to be designated has given Australia any assurances as set out in s 198AB(3)(a).

In other cases, by contrast, courts have been more directive in defining the breadth of the statutory discretion and the range of permissible considerations, drawing inferences from the language of the statute (Padfield 10.3.17C), the nature of the function being exercised (Roberts 10.3.18C), and the rights dimension of the decision to be made (Evans v State of New South Wales 8.3.32C). 10.3.6  The principal focus in defining the criteria of relevance is always the words of the statute being administered, but other legal trends and assumptions have a role to play as well. There is, for example, a general legal presumption that legislation can never be administered to advance the personal interests of the decision-maker: see R v Anderson; Ex parte Ipec-Air Pty Ltd 12.3.3C. International conventions are also likely to be increasingly important in setting the framework within which statutory powers are exercised: see Minister of State for Immigration and Ethnic Affairs v Teoh 11.3.11ff; and C Inc v Australian Crime Commission (2010) 113 ALD 226. Similarly, having regard to consistency with other regulations, be they domestic or international, has been found not to be an irrelevant consideration: Eve Hemp Pty Limited v Secretary to the Department of Health [2017] FCA 1051, concerning the regulation of cannabis and the delegate’s regard to its treatment in other regulatory regimes. However, the extent to which international conventions impose mandatory relevant considerations will depend on the terms of the statute conferring the power in question: Le v Minister for Immigration & Border Protection (2015) 149 ALD 582 at [34], [56]. Humanitarian considerations, including absence of discrimination, are also increasingly important: see  8.3.28–8.3.37. Racial and sexual bias would today be irrelevant as a consequence of the enactment in Australia of a general framework of anti-discrimination legislation: see  Chapter 4. Finally, there is a line of authority explained elsewhere in this book that equates serious factual errors with irrelevant considerations (for example, Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 597

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18 ALD 77, discussed in Australian Broadcasting Tribunal v Bond 2.4.8C), or with irrationality or unreasonableness giving rise to jurisdictional error (for example, Minister for Immigration and Citizenship v SZMDS 15.2.17C): see generally Chapter 15.

Matters that were considered 10.3.7  What does it mean to ‘consider’ a matter? A conclusion that a particular matter was ‘considered’ can often be drawn from such evidence as a statement of reasons, contemporaneous administrative documents, reliance by the decision-maker upon an irrelevant policy statement (as in Green v Daniels 7.2.4C), or the adoption by a minister of a briefing paper that mis-states the law to be applied (as in Re Patterson; Ex parte Taylor (2001) 207 CLR 391; Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 10.3.28; and Honourable Brendan O’Connor v  Adamas (2013) 210 FCR 364) or that omits to refer to a relevant consideration (as in Minister for Families and Children v  Certain Children by their Litigation Guardian Sister Marie Brigid Arthur (2016) 51 VR 597). 10.3.8  The issue is not always so straightforward. In many situations a decision-maker will have browsed over a range of documents and facts, some of which will be irrelevant to the decision ultimately to be made. That by itself is not an error: ‘It is true that a decision-maker may not take account of an irrelevant consideration; but I think he may pick up a red herring, turn it over and examine it, and then put it down, so long as he does not allow it to affect his decision’: Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 135 (Burchett J). Conversely, a court can look behind a statement by a decision-maker disavowing that an irrelevant matter was considered: Turner v  Minister for Immigration and Ethnic Affairs (1981) 4 ALD 237 10.4.27; and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs 11.4.16C. Other ways by which a court may draw an inference that an irrelevant matter was considered are mentioned in 10.3.26. 10.3.9  A related question is whether a court, in resolving a validity issue, should examine the effect that an irrelevant consideration had on a decision. The principle generally applied is that an irrelevant consideration will vitiate a decision, unless it is insignificant. This issue is further discussed in 10.3.26. 10.3.10C

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 High Court of Australia

[Section 145A of the Irrigation Act 1912 (NSW) provided that the holder of an irrigation farm lease must not transfer that lease to another person without the consent of the Irrigation Commission; and that the granting or refusing of consent ‘shall be entirely in the discretion of the Commission’. Section 241 provided that leases could be held by alien subjects, provided they became naturalised. The commission refused in 1946 to consent to the transfer of a farm lease by Mr Browning to Mr Antonio Carbone in the Murrumbidgee irrigation area. The core reason for the refusal was that Mr Carbone was a naturalised Australian subject (since 1934) of Italian birth, and the commission had a policy against transferring land to persons of enemy origin. The Supreme

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Court of New South Wales held that the commission’s decision was invalid, being based on irrelevant considerations. In reaching that conclusion the court held that the discretion conferred by the Act was not arbitrary and uncontrollable, but could be exercised ‘with a view only to promote the object of the Act, namely to see that, so far as possible, the irrigation farms are occupied by capable and desirable farmers’: (1947) 47 SR (NSW) 395 at 400. The High Court unanimously allowed an appeal from the decision of the Supreme Court.] Dixon J: In answer to a request for the ground of the refusal, the Commission wrote [to Browning] saying that it exercised its discretion in accordance with s 145A having regard to the established policy of the Commission in respect to the acquisition of land by naturalised persons of enemy origin. This statement is explained in an affidavit by one of the Commissioners. He says, in effect, that several years ago the Commission decided that it was not in the best interests of the irrigation areas and the development of land therein to consent to a transfer of land in an area to a naturalised person of enemy origin, unless an examination of the individual case disclosed special circumstances. He adds that the decision was reached because a large amount of public money was sunk in the irrigation area and the Commission considered that such irrigation farm lands as were available should be kept for Australians, particularly returned soldiers, and also because it was found from experience that, as a general rule, Italians are not good farmers under irrigation methods and also because it is most undesirable that any further aggregation [sic] of Italians be built up on an irrigation area. Finally, the Commissioner says that in the case of the transfer to Carbone all the facts and circumstances were considered, but they did not disclose any special circumstances and consent was refused in the exercise of the discretion … In considering the correctness of the decision [of the New South Wales Supreme Court] that a mandamus should issue, it is important, I think, that we should firmly exclude from the matters we take into account the wisdom or unwisdom of the Commission’s opinions, or the justness or unjustness of their views about Italians as irrigation farmers or about the undesirability of increasing their number in particular areas. These are matters which have nothing to do with a court of law called upon to decide whether a case for mandamus has been made out. The Commission is an administrative body entrusted with a full discretion … The statutory provision which gives to the Commission the discretionary power of consenting to the transfer contains no statement of the matters which the Commission is to take into consideration in exercising the power. It contains a prohibition against transferring an irrigation-farm lease except with the consent of the Commission and proceeds to say that the grant or refusal of the application for consent shall be entirely in the discretion of the Commission. But there is no positive indication of the considerations upon which it is intended that the grant or refusal of consent shall depend. The discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view. No doubt the Commission is placed under a duty to consider an application for consent to a transfer and to grant or to refuse or withhold consent. And I agree with the view expressed by Jordan CJ that the use of the word ‘entirely,’ while it indicates that the discretion is meant to rest in the Commission alone, does not necessarily indicate that it is intended to be arbitrary and unlimited. … But, though the discretion is neither arbitrary nor completely unlimited, it is certainly undefined. I have before remarked on the impossibility, when an administrative discretion is undefined, of a court’s doing more than saying that this or that consideration is extraneous to the power (Swan Hill Corporation v Bradbury [8.4.17C] at 757–8). But there must be some warrant in

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the provisions, the nature or the subject matter of the statute before so much can be said of a particular consideration that has been acted upon. What warrant have we in point of law for saying that the considerations governing the Commission’s refusal of consent to the transfer to Carbone can be material to no purpose falling within the scope and object of the Commission’s discretion? The Commission is responsible for the successful development of irrigation areas as well as for superintending and controlling them. The width and variety of its powers are enough to show that matters of policy are by no means withheld from the Commission. The growth and character and components of the community by which an irrigation area is worked is not a matter altogether foreign to the Commission’s responsibilities. One of the very reasons why transfer of irrigation holdings is not permitted, except by the consent of the Commission, is to enable it to decide the suitability and desirability of the individual proposed and whether it is or is not advantageous to have him. The grounds of suitability, desirability and advantage are matters for the Commission’s judgment. If the Commission considers divisions arising from race or from hostile affiliation undesirable, what is there in the statute to show that it is a consideration wholly outside the Commission’s province? If it sees advantage in having returned soldiers, it is not easy to see any legal ground why the Commission should not take that into account. There may be much reason to doubt the validity of the reasoning by which the opinions of the Commission have been reached. But that is not for us. The honesty of the Commission’s conclusions is not in question and it does not appear that, in giving effect to them, the Commission has been actuated by anything but what appears to it to be the welfare of the irrigation area and of the Commission’s administration of the area. There is, in my opinion, no sufficient warrant in the statutes for holding that the reasons given by the Commission are beyond its competence. [Latham CJ, Rich, Starke and McTiernan JJ delivered separate judgments reaching the same conclusion. They stressed the width of the statutory discretion of the commission, and that it was not for a court to substitute its view on issues of fact concerning the management and control of the irrigation leases, provided the commission acted in good faith.]

10.3.11  The principle espoused by Dixon J in Browning 10.3.10C (and restated in Bradbury 8.4.17C and Klein v Domus Pty Ltd (1963) 109 CLR 467 10.3.27) as to the proper approach to construction of an undefined statutory discretion has been consistently approved by the High Court in later decisions: see, in particular, Buck v Bavone; R v ABT 10.3.12; Osland v Secretary to the Department of Justice (2010) 241 CLR 320 at [22] (French CJ, Gummow and Bell JJ); and Minister for Immigration and Citizenship v Li 15.2.18C at [109] (Gageler J). The principle has been conveniently restated by the High Court in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 at 162 (French CJ, Gummow and Crennan JJ), O’Sullivan v  Farrer (1989) 168 CLR  210 at 216 (Mason  CJ, Brennan, Dawson and Gaudron JJ), and Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at [30] (French CJ and Kiefel J): French CJ, Gummow and Crennan JJ: The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question. 600

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Mason CJ, Brennan, Dawson and Gaudron JJ: Where a power to decide is conferred by statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made. French CJ and Kiefel J: [30] The expression ‘in the public interest’ can have no fixed and precise content and involves a value judgment often to be made by reference to undefined matters.

10.3.12  The court in O’Sullivan went on to caution against applying the maxim expressio unius est exclusio alterius (the express mention of one thing implies the exclusion of an alternative thing) so as to limit the scope of a statutory discretion; that is, the court generally disapproved of the argument that because matters are expressly listed in one part of a statute, the same matters cannot be considered under a different part of the statute where they are not listed. Specifically, the court held that public interest considerations could ordinarily be taken into account unless there was a positive indication that they were excluded. As observed by Stephen, Mason, Murphy, Aickin and Wilson JJ in R v ABT at 49: [I]t is not a legitimate approach to interpretation to compare a statutory discretion which is expressed in unlimited terms as to one subject with another discretion in the same statute which is confined to specified considerations with reference to a different subject and thereby conclude that the first discretion necessarily excludes the considerations specified in relation to the second discretion. The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute.

10.3.13  The preceding cases show that the concept of ‘public interest’ (or, closely related, ‘national interest’) can, expressly or by implication, be a relevant criterion in exercising a statutory power. The scope of that concept has been cast very broadly, as the following examples illustrate: Lindgren J: Clearly, the expression ‘the public interest’ is one of wide import. It is an expression particularly apt to vest in a decision-maker a wide power to determine what considerations are to be taken into account and what weight is to be given to those which are taken into account. In O’Sullivan v  Farrer (1989) 168 CLR 210, Mason  CJ, Brennan Dawson and Gaudron  JJ said that the expression ‘in the public interest’ when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be (pronounced) definitely extraneous to any objects the legislature had in view’ ([Browning 10.3.10C] at 505 (Dixon J)). And in [Bond 2.4.8C] at 381–382, Toohey and Gaudron JJ said of the expression ‘if it appears to the Tribunal that it is advisable in the public interest’, that it indicates that ‘the considerations which may be taken into account in determining whether a licensee  is not or is no longer fit and proper are not closely confined’. [Deloitte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562] Kaye, Fullagar and Ormiston JJ: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and

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government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. [Director of Public Prosecutions v Smith [1991] 1 VR 63]

Lehane J: [T]he Court should be slow indeed to find reviewable error in a minister’s decision as to what the public interest requires. [Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ: [42] It is well established that, when used in a statute, the expression ‘public interest’ imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon  J pointed out in [Browning 10.3.10C] at 505, when a discretionary power of this kind is given, the power is ‘neither arbitrary nor completely unlimited’ but is ‘unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view’. It follows that the range of matters to which the NCC [National Competition Council] and, more particularly, the Minister may have regard when considering whether to be satisfied that access (or increased access) would not be contrary to the public interest is very wide indeed. And conferring the power to decide on the Minister (as distinct from giving to the NCC a power to recommend) is consistent with legislative recognition of the great breadth of matters that can be encompassed by an inquiry into what is or is not in the public interest and with legislative recognition that the inquiries are best suited to resolution by the holder of a political office. [The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379]

French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ: [18] In Hot Holdings [the court] noted that ‘[i]t has been said that “the whole object” of a statutory provision placing a power into the hands of the Minister “is that he may exercise it according to government policy”’ [(at 455)]. And where, as here, the criterion to be applied by the Minister requires the Minister to be satisfied that the grant of the visa is ‘in the national interest’, the decisionmaker ‘may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member and, thus, affect the Minister’s continuance in office’ [(at 455)]. [Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231, citing Hot Holdings (2002) 210 CLR 438 at 455]

10.3.14  The rationale for leaving intact a finding by an administrative decision-maker that the exercise of a power entrusted to the decision-maker is ‘in the public interest’ has been explained in Secretary, Department of Justice v  LMB; Secretary, Department of Justice v  PMY [2012] VSCA 143 at [28] as follows: (a) a vast range of considerations might rationally be thought relevant in determining whether the giving of an assessment notice is in the public interest; (b) the public interest includes matters of such potential breadth that it requires a situational definition by the decision-maker having regard to the circumstances of the case; (c) the concept of what is in the public interest necessarily changes with time in response to changing economic and social circumstances and is not capable of being confined by inflexible specification; 602

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(d) Parliament vested in the Tribunal … the power and the responsibility to decide whether, in all the circumstances, it is in the public interest to give an assessment notice in the particular case.

10.3.15  While the concept of ‘public interest’ enables a broad and competing range of considerations to be taken into account, that must be done in the context of the particular statute being applied. This is illustrated by an observation of Gleeson CJ and Kirby J in McKinnon v  Secretary, Department of Treasury (2006) 228 CLR 423, concerning the requirement in a freedom of information statute that an internal working document was exempt from disclosure only if disclosure would be contrary to the public interest: A conclusion that disclosure of an internal working document would be contrary to the public interest … will involve a judgment as to where the public interest lies. Such judgment, however, is not made in a normative vacuum. It is made in the context of, and for the purposes of, legislation which has the object described above, which begins from the premise of a public right of access to official documents, and which acknowledges a qualification of that right in the case of necessity for the protection of essential public interests … [Their Honours went on to decide that it was necessary to look at all facets of the public interest.] By definition, a facet is one side of something that has many sides. Looking only at a facet of an object is a necessarily incomplete way of looking at the object. Looking only at a facet of the public interest is a necessarily incomplete way of looking at the public interest.

See also Osland v Secretary, Department of Justice (2010) 241 CLR 320 at 345–6. The need to take account of the ‘public interest’ can arise in many different contexts. In Oshlack v Richmond River Council (1998) 193 CLR 72, the High Court decided that it was relevant to consider the public interest character of litigation (in this case, to halt development in a koala habitat) in deciding that a costs order should not be made against the unsuccessful plaintiff. A minister’s power to act in the public interest enabled him to take account of local public opinion in rejecting a hotel’s application for a gaming machine licence: Harburg Investments Pty Ltd v Mackenroth [2005] 2 Qd R 433. See also the cases in which government policy has been accepted as a relevant consideration: 10.3.23–10.3.25. Finally, it is important to note that statutory expressions such as ‘public interest’ can pose an interpretational difficulty for courts as reflected in the dissenting judgment of Heydon J in Momcilovic v The Queen 4.4.5. In that case, Heydon J referred to the ‘public interest’ as well as the opening words of s  7(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), which he described at 170 as ‘highly general, indeterminate, lofty, aspirational and abstract.’ In Plaintiff M47/2012 v  Director-General of Security 8.4.7C, the High Court invalidated a provision in the Migration Regulations 1994 (Cth) which, on ‘public interest’ grounds, excluded someone with an adverse security assessment from being eligible for a protection visa, even when found to be a refugee. See also Plaintiff M79/2012 10.2.5C at [39]; J Kinslor and J  English, ‘Decision Making in the National Interest?’ (2014) 79 AIAL Forum 35; and C Wheeler, ‘The Public Interest: We Know It’s Important, But Do We Know What it Means?’ (2006) 48 AIAL Forum 12.

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Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1; 9 ALR 199 High Court of Australia

[The plaintiffs held mining leases, granted under the Mining Act 1968 (Qld), to undertake mining on Fraser Island — the largest sand island in the world. The plaintiffs had applied to the Commonwealth Minister for Minerals and Energy for permission to export the mineral concentrates. The Commonwealth Customs (Prohibited Export) Regulations prohibited the export of the concentrates ‘unless an approval in writing to the exportation of the goods issued by the Minister of State for Minerals and Energy … is produced to the Collector’: reg 9(3). The minister announced that before deciding whether to give export approval, an inquiry would be held under the Environment Protection (Impact of Proposals) Act 1974 (Cth) into the effect of the sand mining on the ecology of the Island. The plaintiffs instituted proceedings in the High Court, arguing that it would be both unconstitutional and unlawful for the minister to consider the environmental aspects of mining on the island in deciding whether to grant export permission. The challenge was rejected by the High Court, and relief was refused.] Stephen J: [H]as the maker of the decision duly exercised his decision-making power or, on the contrary, is his decision vitiated by the nature of the considerations, extraneous to the power conferred, to which he has had regard in arriving at that decision? This question must depend for its answer primarily upon the legislation which confers the power. Where the extent of the power is delineated, perhaps by specific enumeration of matters to be considered, perhaps as a result of implications which may be drawn from the subject matter dealt with, the courts will relieve against excesses of power affecting the rights of a subject. It will be seldom, if ever, that the extent of the power cannot be seen to exclude from consideration by a decision-maker all corrupt or entirely personal and whimsical considerations, considerations which are unconnected with proper governmental administration; his decision will not be a bona fide one since these considerations will, on their face, not be such as the legislation permits him to have regard to. In other instances the task for the court will be to discern what restraints, if any, the legislation places upon considerations to which he may have had regard. In the present case the Customs (Prohibited Exports) Regulations confer wide powers upon a variety of decision-makers. Regulation 4 prohibits the export of an assortment of goods specified in the Second Schedule to the regulations, ranging from ‘ships’ to the ‘skeletons … of Australian or Tasmanian aboriginals’ and it is the Minister of Customs who is given power to relax the prohibition by granting his consent in writing. No express limitation of that power is stated and, in the absence of lack of bona fides in the sense mentioned above, the heterogeneous nature of the goods is in itself enough to dispose of any suggestion that a court should seek to construct limits to the considerations to which the Minister may have regard. The Minister’s reasons for permitting the export of dolphins, of anthropological specimens derived from Australian aborigines, of barrage balloons, of cocoa beans, of fortified wine less than six months old, of foreign coins bearing a date earlier than 1901 or of the diaries of Australian explorers (to take but a few instances) must be as various as the goods themselves. … [His Honour then considered the range of goods to be regulated under regs 5, 5A, 6, 6A, 6B, 7 and 8.] What emerges from this examination is that no general criteria can be inferred which will serve to limit the considerations to which the various Ministers and their officers may have regard in exercise of their power to grant approvals for the export of goods so long as no absence of bona fides in the sense already referred to manifests itself.

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The very nature of the power to relieve against a prohibition imposed upon the export of classes of goods itself suggests that it may be exercisable having regard to a wide spectrum of considerations. The character of some of the classes of goods export of which is prohibited is clearly inconsistent with any concept that considerations confined to matters of trade and commerce alone may enter into a decision to relax the prohibition. It is enough to refer to the various categories of historical and anthropological interest, some of which I have already mentioned, and to the weapons of war, all dealt with under r 4, and also to the goods associated with nuclear reactor construction and atomic energy capacity dealt with under r 11. The unrestricted export of goods may produce a wide variety of effects, both within and without Australia. It may stimulate local production, create local shortages, endanger local species of flora or fauna and otherwise affect conditions within the exporting country. It may also produce a variety of effects upon the foreign country to which exports are sent, whether by way of increasing its warlike potential or affecting for good or ill the physical or economic welfare of its people and, perhaps, the attitude of its government towards that of Australia. Again the relations with third party countries and their governments may be involved, as may be the observance of obligations arising under treaties or international conventions on a variety of topics, some quite unconnected with trade and commerce. When such a breadth of considerations is involved only something amounting to lack of bona fides could justify curial intervention in decisions made in the exercise of the power to relax export prohibitions. It follows from all that I have said that in my view the Minister for Minerals and Energy is free to have regard to the environmental effect of such sand mining operations as the plaintiffs may conduct on Fraser Island in deciding whether or not to allow the export of the plaintiffs’ concentrates. He is as much entitled to do so as is the Minister for Customs to have regard to the preservation of dolphins or of Australian historical relics and records; nor need these considerations fall within some head of legislative power of the Commonwealth; it is enough that it is not within that prohibited category to which I have referred, where lack of bona fides invalidates. The consequence is that the plaintiffs’ attempt to prevent the Minister from taking into account, in the future, environmental matters in considering applications for approval for the export of prohibited exports must fail. The declaration sought in this respect must be refused. … Mason J: In the very nature of things the policy considerations and reasons which may as a matter of sound judgment inspire a government to permit (or forbid) the exportation of goods are so multifarious and diverse that the scope and purpose of the Customs Act and the Customs (Prohibited Export) Regulations are a fragile foundation for building a conclusion that certain policy considerations and reasons stand within that scope and purpose and all others are excluded. There is, I should have thought, every reason for supposing that, within the framework of customs legislation, a discretion to permit the exportation of goods by way of relaxation of a prohibition, a discretion which is not expressed to be subject to any limitation, was intended to be wide enough to embrace every consideration reflecting advantage or disadvantage, benefit or prejudice to Australia, flowing from the approval or refusal of an application. … One result of the grant of approval to exportation of the plaintiffs’ concentrates is that there will be established on Fraser Island large-scale sand mining operations. To my mind the consequences of establishing such operations, consequences which will flow from an exercise of the discretion in favour of the plaintiffs, are factors which are inherently material to the exercise of that discretion, in the absence of some clear indication that they are excluded by

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the Customs Act and the Customs (Prohibited Export) Regulations. It is perhaps not without some importance that the discretion is reposed by r 9 in the Minister for Minerals and Energy or a person authorised by him. This in itself provides some indication that mining considerations fall within the purview of the discretion and I see no reason why mining considerations should be divorced from the environmental aspects of mining operations. It follows, therefore, that it is my opinion that the discretion conferred by r 9 extends to a consideration of the environmental aspects of the mining operations which the plaintiffs propose to carry on in order to produce concentrates for export. The regulation consequently enables the Minister to take into consideration the report of the commissioners on those matters, including the question whether the plaintiffs have observed or are likely to observe the conditions of the mining leases which they hold or for which they have applied. [Barwick CJ, McTiernan, Gibbs, Jacobs and Murphy JJ delivered judgments either agreeing with or in similar terms to the judgments of Stephen and Mason JJ.] [Note: For a full account of the legal and political action concerning the protection of Fraser Island, see T Bonyhady, Places Worth Keeping: Conservationists, Politics and the Law, Allen & Unwin, Sydney, 1993.]

10.3.17C

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 House of Lords

[The Agricultural Marketing Act 1958 (UK) established a milk marketing scheme, under which all milk produced in England and Wales was sold to a Milk Marketing Board that would, in turn, market the milk to consumers. Milk producers were divided into 11 regions; each region was paid a different price, set by the Milk Board. Each region was represented on the board. The producers in the south-east region had urged the board to pay a higher price to their region. Two independent reports had supported their argument. The result would, however, have been a lower price paid to producers in some other regions, and, not surprisingly, the board, with a majority of representation from those other regions, rejected the proposal. The south-east producers then asked the minister to appoint a committee of investigation, pursuant to s 19(3)(b) of the Act, which provided: ‘A committee of investigation shall … be charged with the duty, if the Minister in any case so directs, of considering, and reporting to the Minister on … any complaint made to the Minister as to the operation of any scheme’. Section 19(6) provided that the minister, upon receiving a report critical of a scheme, may revoke or amend the scheme or direct the board to take action. The minister refused to appoint a committee, for reasons that are analysed in Lord Reid’s judgment. The south-east producers sought mandamus to compel the minister to refer their complaint for investigation. The Court of Appeal (by majority) dismissed the claim, holding that the minister had frankly stated the policy reasons why he declined to intervene in the selfregulation of the milk industry, and that the proper forum in which to question the minister’s stance was in the parliament: [1968] AC 997 at 1011–13. The House of Lords (Lord Morris dissenting) allowed an appeal. In the majority, Lords Reid, Hodson, Pearce and Upjohn held, in terms similar to the analysis by Lord Reid, that the reasons given by the minister for refusing to intervene were bad in law, and that the minister should be directed to reconsider the complaint of the plaintiffs.]

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Lord Reid: The question at issue in this appeal is the nature and extent of the Minister’s duty under section 19(3)(b) of the Act of 1958 in deciding whether to refer to the committee of investigation a complaint as to the operation of any scheme made by persons adversely affected by the scheme. The respondent contends that his only duty is to consider a complaint fairly and that he is given an unfettered discretion with regard to every complaint either to refer it or not to refer it to the committee as he may think fit. The appellants contend that it is his duty to refer every genuine and substantial complaint, or alternatively that his discretion is not unfettered and that in this case he failed to exercise his discretion according to law because his refusal was caused or influenced by his having misdirected himself in law or by his having taken into account extraneous or irrelevant considerations. … … It is implicit in the argument for the Minister that there are only two possible interpretations of this provision — either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case. I do not think that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act: the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. [Lord Reid examined the Act, noting that it was designed to strike a balance between the competing and irreconcilable interests of different groups of producers. The procedure for a committee of investigation was a safeguard in the Act, although ultimately the authority to alter the price of milk rested with the minister, who was accountable to parliament. His Lordship continued:] I must now examine the Minister’s reasons for refusing to refer the appellants’ complaint to the committee … The first reason which the Minister gave in his letter of March 23, 1965, was that this complaint was unsuitable for investigation because it raised wide issues. Here it appears to me that the Minister has clearly misdirected himself. Section 19(6) contemplates the raising of issues so wide that it may be necessary for the Minister to amend a scheme or even to revoke it. Narrower issues may be suitable for arbitration but section 19 affords the only method of investigating wide issues. In my view it is plainly the intention of the Act that even the widest issues should be investigated if the complaint is genuine and substantial, as this complaint certainly is. Then it is said that this issue should be ‘resolved through the arrangements available to producers and the board within the framework of the scheme itself.’ This re-states in a condensed form the reasons given in paragraph 4 of the letter of May 1, 1964, where it is said ‘the Minister owes no duty to producers in any particular region,’ and reference is made to the ‘status of the Milk Marketing Scheme as an instrument for the self-government of the industry,’ and to the Minister ‘assuming an inappropriate degree of responsibility.’ But, as I have already pointed out, the Act imposes on the Minister a responsibility whenever there is a relevant and substantial complaint that the board are acting in a manner inconsistent with the public interest, and that has been relevantly alleged in this case. I can find nothing in the Act to limit this responsibility or to justify the statement that the Minister owes no duty to producers in a particular region. The Minister is, I think, correct in saying that the board is an instrument for the self-government of the industry. So long as it does not act contrary to the public interest the Minister cannot interfere. But if it does act contrary to what both the committee of investigation and the Minister hold to be the public interest the

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Minister has a duty to act. And if a complaint relevantly alleges that the board has so acted, as this complaint does, then it appears to me that the Act does impose a duty on the Minister to have it investigated. If he does not do that he is rendering nugatory a safeguard provided by the Act and depriving complainers of a remedy which I am satisfied that Parliament intended them to have. … As the Minister’s discretion has never been properly exercised according to law, I would allow this appeal. [Lord Pearce observed that it was inherent in the minister’s power that he had a duty to properly consider a complaint and whether it should be referred to the independent committee for investigation. Lord Upjohn referred to the use of ‘unfettered’ in the relevant provision and said ‘if the section did contain that adjective I doubt if it would make any difference in law to his powers, save to emphasise what he has already, namely, that acting lawfully he has a power of decision which cannot be controlled by the courts’.]

10.3.18C

Roberts v Hopwood [1925] AC 578 House of Lords

[The Metropolis Management Act 1855 (UK) conferred power upon local councils to pay its employees ‘such salaries and wages as [the council] may think fit’: s 62. Over a two-year period the Poplar Borough Council resolved that it should act as a model employer and pay a higher uniform wage rate of £4 per week to male and female employees. This meant a 20 per cent increase for men and a 38 per cent increase for women. The district auditor disallowed the increase under s 247 of the Public Health Act 1875 (UK) as ‘contrary to law’, and imposed a surcharge of £5000 on the members of the council. The House of Lords (Lords Buckmaster, Atkinson, Sumner, Wrenbury and Carson) unanimously held in separate judgments that the council had acted contrary to law and, accordingly, that the surcharge was rightly made. Each Lord reasoned, in similar terms, that in maintaining a standardised minimum rate for all employees the council had failed to take into account the nature of the work being performed, the significant decline in the post-war cost of living, and the standard rates being paid in other employment sectors. The conclusion was expressed by Lord Atkinson in the following extract in terms which reflect the era.] Lord Atkinson: In the sixth paragraph of Mr Scurr’s affidavit he states that ‘the Council have always paid such a minimum wage as they have believed to be fair and reasonable without being bound by any particular external method of fixing wages, whether by trade union rates, cost of living, payments of other local or national authorities or otherwise.’ Nobody has contended that the council should be bound by any of these things, but it is only what justice and common sense demand that, when dealing with funds contributed by the whole body of the ratepayers, they should take each and every one of these enumerated things into consideration in order to help them to determine what was a fair, just and reasonable wage to pay their employees for the services the latter rendered. The council would, in my view, fail in their duty if, in administering funds which did not belong to their members alone, they put aside all these aids to the ascertainment of what was just and reasonable remuneration to give for the services rendered to them, and allowed themselves to be guided in preference by

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some eccentric principles of socialistic philanthropy, or by a feminist ambition to secure the equality of the sexes in the matter of wages in the world of labour … … A body charged with the administration for definite purposes of funds contributed in whole or in part by persons other than the members of that body, owes, in my view, a duty to those latter persons to conduct that administration in a fairly businesslike manner with reasonable care, skill and caution, and with a due and alert regard to the interest of those contributors who are not members of the body. Towards these latter persons the body stands somewhat in the position of trustees or managers of the property of others. … What is a reasonable wage at any time must depend, of course, on the circumstances which then exist in the labour market. I do not say there must be any cheeseparing or that the datum line, as I have called it, must never be exceeded to any extent, or that employees may not be generously treated. But it does not appear to me that there is any rational proportion between the rates of wages at which the labour of these women is paid and the rates at which they would be reasonably remunerated for their services to the council. … … The council have evidently been betrayed into the course they have followed by taking into consideration the several matters mentioned in Mr Scurr’s affidavit, which they ought not properly to have taken into their consideration at all, and consequently did not properly exercise the discretion placed in them, but acted contrary to law. [Note: The full story of the Poplar Borough Council is told in N Branson, Poplarism, 1919–1925: George Lansbury and the Councillors’ Revolt, Lawrence and Wishart, London, 1979.]

10.3.19C

Ex parte SF Bowser & Co; Re Municipal Council of Randwick (1927) 27 SR (NSW) 209 Supreme Court of New South Wales

[Section 421 of the Local Government Act 1919 (NSW) provided that a local council could, on such conditions as the council sought to impose, grant permission to a person to place a structure upon a public place. The council gave permission to a garage to erect two petrol pumps on a street kerb, on condition that the pumps were Australian-made machines. In an action brought by Bowser & Co to challenge the council decision, the court held that the council did not have power to impose the condition.] Street CJ (Ferguson and Davidson JJ concurring): I proceed to consider whether it was within [the council’s] powers to adopt the policy that no petrol pumps other than pumps of Australian manufacture would be allowed within the municipality. I do not think that it was. Within the sphere to which it ought to confine itself in the discharge of its office as a local governing body within a limited area, conditions will readily suggest themselves which might be imposed as a matter of general policy, such for instance as the form and character of such structures, and their position upon the footpath — to mention two only — but to say that no petrol pump will be allowed within the area under its control which has not been made in Australia is to exceed its powers altogether in my opinion. I think that this is an extraneous consideration which ought not to influence the minds of councillors in dealing with applications. In matters affecting the good government of the area under its control a municipal council is entitled to act as it thinks best in the public interest, and, as long as it keeps within the limit of the matters entrusted to it by the Legislature, it cannot be interfered

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with in the bona fide exercise of its discretionary powers, but, as O’Connor J pointed out in Randall v Northcote Corporation ((1910) 11 CLR 100 at 111), there are many considerations of public interest having relation to the general morality and welfare of the community with which a council has no concern and which cannot properly enter into the exercise of its discretion. … The question whether a policy should be adopted of preference to goods of Australian origin over those of foreign countries is a question of general concern and general interest to be dealt with by the Legislature of the country, and not by a body exercising limited powers of local government within a limited area. The Local Government Act was passed to make better provision for the government of areas, and for that purpose to extend the powers and functions of local governing bodies, but it is no part of the functions of a local governing body to take upon itself deliberately to boycott, so far as it can within the area under its control, foreign traders who are lawfully here and who are carrying on a lawful business in a lawful way. Considerations of that kind are altogether extraneous to the exercise of the discretion vested in councils by s 421(1) of the Act … The limits of the powers of local self government may be indefinite and elastic, as Isaacs J said, but on any view of them I do not think that a question of policy of this kind can be brought within them.

Policy as an irrelevant consideration 10.3.20  Roberts 10.3.18C and Bowser 10.3.19C both illustrate the point that a body — even an elected body — that is exercising statutory powers may be limited in the extent to which it can attempt to implement general social policy. There is a strong line of cases applying that thinking to local government councils. A leading English illustration is Bromley London Borough Council v Greater London Council [1983] 1 AC 768. The Transport (London) Act 1969 (UK) provided that ‘it shall be the general duty of the Greater London Council … to develop policies, and … to carry out measures, which will promote the provision of integrated, efficient and economic transport facilities for Greater London’. A newly-elected council made a decision, in line with its election manifesto, to reduce fares by 25 per cent, and to fund this deficit by a rate levy of six pence in the pound. The House of Lords held that the council had acted unlawfully in three ways: it was in breach of its fiduciary duty to ratepayers; it had wrongly regarded itself as bound to implement an election manifesto; and it had breached its duty to conduct its transport operations on ordinary business principles. Those three points are each captured in the following three extracts. The first two extracts are from the judgments of Lord Diplock and Lord Brandon in Bromley, while the third extract is a passage (cited with approval in Bromley) from the judgment of Jenkinson LJ in Prescott v Birmingham Corporation [1955] Ch 210, in which a similar ruling had been made by the Court of Appeal that it was unlawful for the corporation to grant free travel to older people: Lord Diplock: It is well established by the authorities … that a local authority owes a fiduciary duty to the ratepayers from whom it obtains moneys needed to carry out its statutory functions, and that this includes a duty not to expend those moneys thriftlessly but to deploy the full financial resources available to it to the best advantage.

Lord Brandon: It is, of course, entirely appropriate for a council, the majority of whose members have been elected after setting out a particular policy in their election manifesto, to take into account, and give considerable weight to, that circumstance when 610

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10.3.23

exercising their discretion in relation to that policy after they have been elected and come to power. It is, however, entirely wrong for such a majority to regard themselves as bound to exercise their discretion in relation to that policy in accordance with their election promises, whatever the cost and other countervailing considerations may turn out to be. Jenkinson LJ: We think it is clearly implicit in the legislation, that while it was left to the defendants to decide what fares should be charged within any prescribed statutory maxima for the time being in force, the undertaking was to be run as a business venture, or, in other words, that fares fixed by the defendants at their discretion, in accordance with ordinary business principles, were to be charged. That is not to say that in operating their transport undertaking the defendants should be guided by considerations of profit to the exclusion of all other considerations. They should, no doubt, aim at providing an efficient service of omnibuses at reasonable cost, and it may be that this objective is impossible of attainment without some degree of loss. But it by no means follows that they should go out of their way to make losses by giving away free rights of travel.

10.3.21  The House of Lords was faced with a similar issue in Porter v Magill [2002] 2 AC 357, concerning a decision by a local council to sell off public housing stock in marginal wards in order to change the residential and voting composition of the wards. The Lords accepted that it was legitimate for a local council to make decisions that have popular appeal and electoral support, but it is different if ‘a public power … is exercised not for a public purpose for which the power was conferred but in order to promote the electoral advantage of a particular party’: at 466 (Lord Bingham). Lord Scott commented similarly that ‘there is all the difference in the world between a policy adopted for naked political advantage but spuriously justified by a reference to a [legitimate] purpose … and a policy adopted for a legitimate purpose and seen to carry with it significant political advantage’: at 506. 10.3.22  A narrow approach has been taken in some Australian cases to the policy issues that can be considered in administrative decision-making. In Tang v Minister for Immigration and Ethnic Affairs (1986) 67 ALR 177 the Full Federal Court held that the criteria for migrant entry had been spelt out comprehensively in legislation, and the department was in error in applying a policy against ‘queue-jumping’. In Palavi v Minister for Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 214 it was held that an overriding remark in a decision-making manual that a discretion should ‘be used sparingly and only in the most compelling cases’ was unwarranted and, accordingly, an irrelevant consideration. In Twinn v Minister for Immigration (2005) 147 FCR 490 the Full Federal Court held that the minister’s power to specify an occupation as a ‘skilled occupation’ did not extend to specifying the postcode of the sponsor in order to prevent skilled migrants settling in the greater Sydney area. And in BHP Billiton Direct Reduced Iron Pty Ltd v Duffus, Deputy Commissioner of Taxation (2007) 99 ALD 149 it was wrong to refuse an extension of time to a taxpayer in order to penalise the taxpayer for tax avoidance. 10.3.23  It would be wrong to conclude from the preceding cases that general government policy objectives, including the public interest, will be an irrelevant consideration unless written explicitly into legislation. The opposite is shown by cases such as Murphyores 10.3.16C and Ansett Transport Industries (Operations) Pty Ltd v Commonwealth 12.3.4C. In Plaintiff M64/2015 v Minister for Immigration and Border Protection 258 CLR 173; [2015] 611

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Control of Government Action

HCA 50, the High Court accepted that a government-stated cap on the number of places available in the Special Humanitarian Programme (SHP) was a relevant consideration in a decision to refuse a visa. The High Court held that ‘[t]he number of available places in the SHP affects how compelling a case must be to distinguish an application requiring special consideration’ (at [44]), and that the government’s policy of limiting the number of overall places was therefore not an irrelevant consideration. It will often be the case too that public opinion is a legitimate factor to be taken into account by a minister: South Australia v O’Shea 11.2.18C; Minister for Immigration and Multicultural Affairs v Jia 11.5.31C; Plaintiff S297/2013 10.3.13 at [20]. 10.3.24  Situations will nevertheless arise in which fine distinctions must be drawn. This is illustrated by litigation arising from steps taken by the Coalition Government after the 1996 federal election to implement an election policy commitment to reopen the east–west runway at Sydney (Kingsford Smith) Airport within 10 days of the election. To implement that promise, decisions had to be made under statute by the Minister for the Environment (to exempt the proposal from the normal statutory requirement for an environmental impact statement) and by the Minister for Transport (to implement a new statutory plan for Sydney Airport). The ministerial decisions were challenged in separate actions by the Botany Bay and Randwick City Councils, which represented the areas beneath the new flightpaths. They argued, inter alia, that the ministerial decisions were made for the unauthorised purpose of either implementing an election promise or insulating Liberal electorates from aircraft noise. The challenge was rejected by the Federal Court in both cases: Lehane J: It is clear that each respondent took account of the election promise. It is not now suggested that the promise should have been excluded from consideration as irrelevant, and in my view such a suggestion, if made, would not have been successful … The decisions were, of course, made within a very short period — indeed, within the period to which the Coalition, by its election promise, had committed itself. Undoubtedly the Coalition had, before the election, formed the view that the decisions, which have been made, should be made and particularly formed the view, as a matter of policy, that aircraft noise should be ‘redistributed’ on the basis that it would be dispersed rather than concentrated; and the Coalition promised to make those decisions within a short time after the election. But, in my view, it cannot be the case that a Minister whose political party seeks election on the basis of a promise to make certain decisions which, under the relevant legislation, can properly be made is necessarily to be stigmatised as acting for an improper purpose when, having been successful in the election, he makes the decisions which had been foreshadowed. The question must be whether, taking account of matters which must be taken into account, the decisions concerned are decisions which the makers of them can properly make. If they are, I do not think that they are open to attack simply on the basis that they are decisions which, before an election, an incoming government had promised to make. [Botany Bay City Council v Minister for Transport and Regional Development (1996) 66 FCR 537] Finn J: The system of representative democracy practised in this country and the discipline exacted by political parties have given party policy a central place in our elections and in the consequential actions to be expected of elected governments … It is, of course, a fine question as to how far we expect or else condone action in our elected officials that has elements of partisanship in it. The use of the ‘pork barrel’ in election promises has been with us since the colonial period … 612

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In so far as the political purpose [in the minister’s decision] is said to lie simply in insulating Liberal electorates from flight paths or significant noise, it may well be that a direction having that purpose would be held improper. But it is not shown to have been the case with the direction here … [An airport plan] which achieved the Minister’s noise-sharing purpose but which also had effects favourable to Liberal electorates, may well have been an outcome welcomed by the Minister — if indeed there were such effects and he was aware of them and I make no finding that either was the case. What I am unprepared to infer on the evidence before me is that the or a purpose of the Minister was to procure such effects. The superimposed maps may well invite some speculation … [T]he maps provide no proper basis for the inference suggested. [Randwick City Council v Minister for the Environment (1998) 54 ALD 682; affirmed (1999) 167 ALR 115]

Reliance on policy will be unacceptable where the reliance leads the decision-maker to act for an unauthorised purpose: see, for example, Slipper 11.3.36C. 10.3.25  Other cases in which government policy has been accepted as a relevant consideration include Haneef 10.2.17 (‘the Australian Government has a strong interest in deterring noncitizens from providing support to terrorist organisations/networks’); Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd (2007) 34 WAR 403 (the Western Australian Government’s Iron Ore Policy); Nicholson-Brown v  Jennings (2007) 162 FCR 337 (the government’s objective of ensuring a smooth transition to a new legislative scheme); and Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2008) 166 FCR 54 (a policy to broaden the list of endangered species that would receive protection). A broad view of a minister’s authority to consider public interest matters was also taken by the Full Federal Court in M238 of 2002 v Ruddock [2003] FCAFC 260: Gyles, Conti and Allsop JJ: [59] [T]he ‘expectations of the Australian community’ is fundamentally a political notion. The Minister, as the member of the Executive responsible to Parliament, of which he is an elected member, is charged with the assessment of this question. It is not a question for decision only upon evidence placed before him. The Minister may consider the views of others … but, ultimately, the Minister’s views as to what are the ‘expectations of the Australian community’ are reflective of a political judgment by an elected Minister of the Crown.

Evidence of an irrelevant consideration 10.3.26 In Padfield 10.3.17C the finding of invalidity was made easier since the minister had voluntarily stated the reasons for his decision in a letter. What if no reasons are given and there is no statutory obligation to give any: how far can a court go in drawing inferences from what was not said? Several of the Lords in Padfield warned that silence would not preclude the court’s surveillance. The limits of that observation were explained by Lord Keith of Kinkel (the other four Lords agreeing) in Lonrho plc v Secretary of State for Trade and Industry [1989] 2 All ER 609: The absence of reasons for a decision where there is no duty to give them cannot of itself provide any support for the suggested irrationality of the decision. The only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker who has given no reasons cannot complain if the court draws the inference that he had no rational reason for his decision. 613

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Control of Government Action

The High Court took a similar view in Osmond 21.1.19C at 663–4: ‘[I]f the decision maker does not give any reason for his decision, the court may be able to infer that he had no good reason’. This inference has been taken a step further in cases that apply the rule of evidence laid down in Jones v Dunkel (1959) 101 CLR 298, that an inference of fact adverse to a party can be drawn by their failure to give evidence to explain or contradict an issue: Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FCR 543; see also 10.4.17. Evidence may need to be sought to establish what the reasons were, but this can be a protracted process, as Toohey 10.2.13C and 10.2.14 illustrates. For tribunals, this evidential principle is not applied in any strict sense but in practice would be of assistance: Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555.

Effect of an unauthorised purpose or an irrelevant consideration 10.3.27  To invalidate a decision on the ground of unauthorised purpose, it is not enough as a general rule to show that a decision would incidentally achieve an unauthorised purpose, or that the decision-maker was aware of this outcome. It may be necessary to show, on the facts of the case, that the unauthorised purpose was the main reason for making the decision or that its effect was substantial: see 10.2.11. A similar approach was earlier taken by the High Court in relation to the effect of an irrelevant consideration on a decision in Klein v Domus Pty Ltd (1963) 109 CLR 467: Dixon CJ (McTiernan and Windeyer JJ concurring): This Court has in many and diverse connexions dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised … We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.

10.3.28  In more recent cases the emphasis has been different. In Peko-Wallsend 10.4.13C, Mason  J enunciated a principle that an insignificant error can be overlooked by a court, though generally a court should avoid intruding into the merits of a decision and attempting to second-guess whether the same decision would have been made without the influence of the irrelevant matter. The issue was clarified by the Full Federal Court in Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 141 FCR 346, holding that the test to be applied is whether as a result of an error a person has been deprived of the possibility — not the probability — of a favourable decision. In that case, there were two major errors in the summary of the applicant’s criminal record in a brief to the minister. By contrast, Lu was distinguished in Morrison v Minister for Immigration [2008] FCA 54, where the error was a failure to refer to a pending serious charge that was later discontinued. This approach has been approved by the High Court. For example, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne  JJ observed that ‘identifying a wrong issue, asking a wrong question, ignoring relevant material 614

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10.4.3

or relying on irrelevant material in a way that affects the exercise of power is to make an error of law’: at 351. This view was cited with approval in Minister for Immigration and Citizenship v SZJSS 10.4.25C at [27]; and Plaintiff M70/2011 v Minister for Immigration and Citizenship 13.3.17C at [59].

FAILING TO CONSIDER RELEVANT MATTERS 10.4.1  A decision may be invalid where a decision-maker has failed to give consideration to a relevant matter in reaching the decision: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 34. This principle is enshrined as a ground of judicial review in the ADJR Act, which provides that an order of review can be sought in respect of ‘failing to take a relevant consideration into account in the exercise of a power’: 5(2)(b). See also ACT: Administrative Decisions ( Judicial Review) Act 1989 s 5(2)(b); Qld: Judicial Review Act 1991 s 23(b); Tas: Judicial Review Act 2000 s 20(b). 10.4.2  It is important to view this criterion separately from the related ground, ‘consideration of an irrelevant matter’. There is overlap between the grounds, but there are also important differences, both in principle and in the way in which the grounds are applied in practice. Consideration of an irrelevant matter applies where the law prohibits a matter being considered, and there will usually be evidence before a court pointing to a particular matter having been considered. Failure to consider a relevant matter applies only where the law mandates that a particular matter be considered. Rarely will there be explicit evidence that a matter was not considered, and the argument will instead focus on whether an inference to that effect can be drawn from what was said or done by the decision-maker. There is elasticity inherent in the notion of an omission, or failure to perform a task properly, which can make this ground difficult to apply. In short, in a world of infinite facts, what matters should be considered in reaching a decision? And, in a world of conflicting facts, what constitutes genuine consideration of differences? 10.4.3  A breach of this ground by a decision-maker can be committed in either of two ways: • A failure by a decision-maker to consider a relevant matter of which they had actual or constructive knowledge. A person challenging the decision will have to establish two matters: an express or implied statutory obligation on the decision-maker to consider a particular matter (a mandatory relevant consideration) and a failure by the decision-maker to discharge that obligation.

• A failure by a decision-maker to conduct an inquiry to obtain potentially relevant information — that is, to obtain information which should have been considered. This can alternatively be described as the ‘duty of inquiry’. It is an issue that also arises under other grounds, and in this book is studied as an aspect of unreasonableness (see 15.3.18–15.3.21) and, to a lesser extent, breach of natural justice: see 11.1.4. A failure to consider a relevant matter can also overlap with a denial of natural justice. For example, a failure by a decision-maker to bring to a person’s attention a matter that is ‘credible, relevant and significant’ (Kioa v West 11.2.16C at 628 (Brennan J)) will potentially disable the decision-maker from properly considering that matter: see also Saeed v Minister for Immigration and Citizenship 11.3.32C and 11.4.14. 615

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Obligation to consider 10.4.4  Superficially, the easy approach would have been to say that a decision-maker is obliged to consider every relevant fact of which the decision-maker was or ought to have been aware. That approach was never adopted by courts, presumably in recognition of the dangerous implication that an officer might be called on to prove that they had pondered over every statement and every document on the file: Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 135. Instead, the law developed a more restricted test: it must first be established that there was an express or implied statutory obligation on the decision-maker to consider the particular matter in question: Peko-Wallsend 10.4.13C. As Deane J notes in Sean Investments Pty Ltd v MacKellar 10.4.12C, a party is not entitled ‘to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account’: at 375. See also Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [520], where the applicants contended unsuccessfully that there were ten ‘relevant and necessary considerations’. In the same vein, courts have accepted that it is sufficient for a decision-maker to take a global view of an issue, rather than working through each element of the larger picture: Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (2008) 167 FCR 463. 10.4.5  In the simplest situation, legislation will specify expressly the particular matters that must be considered; for example, it was held in Parramatta City Council v  Hale (1982) 47 LGRA 319 that the council was under an express obligation, which it had not discharged, in granting approval for the erection of a sports stadium in a public park, to have regard to parking facilities, traffic flow and pedestrian access. Often, however, the legislation does not provide explicit guidance, and the obligation to consider a matter will have to be implied from the subject matter, scope and purpose of a statute: Peko-Wallsend 10.4.13C. The process of drawing statutory implications can be an uncertain and unstable process, and inevitably the law develops presumptions to give guidance. A core principle is that in respect of an unconfined discretion, an obligation to consider a matter should not readily be implied; this principle is applied or noted in cases such as Sean Investments 10.4.12C and Buck v Bavone. In Minister for Immigration v Huynh (2004) 139 FCR 505 it was held that it was inconsistent with the breadth of a power vested in the minister to cancel a visa that the minister was obliged to consider a range of matters personal to the applicant: Bennett and Kiefel JJ: [74] The object of the [Migration] Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object provision is made for the removal or deportation from Australia of non-citizens whose presence is not permitted by the Act: s 4(4). If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501. 616

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That statement was approved by the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v  Nystrom (2006) 228 CLR 556, in holding that the minister, in cancelling a person’s visa under s 501 of the Migration Act 1958 (Cth), was not obliged to consider other visas the person may have held. 10.4.6  The law has, however, also developed principles or assumptions that work in an opposing direction: by confining and structuring the scope of unconfined discretions, the law attributes to decision-makers an obligation to consider various matters that may arise in the course of exercising the discretions. The Full Federal Court has held that the minister’s discretion to cancel a visa on character grounds considered in Huyhn and Nystrom is not wholly unconfined as, in exercising the discretion, the minister is bound to consider any risk of harm posed to the Australian community by the continued presence of the visa holder in Australia: Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 at [15]; see also Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [88]. Other examples abound. In the context of financial services regulation, the Federal Court held that dishonesty was ‘self-evidently’ a relevant consideration as to whether a banning order should be imposed on a financial planner, who had been found to have engaged in misleading or deceptive conduct in relation to his client’s financial products: Australian Securities and Investments Commission v McCormack [2017] FCA 672. In Peko-Wallsend 10.4.13C and Hindi v Minister for Immigration and Ethnic Affairs 10.4.22C, the courts emphasised the obligation of a decision-maker to consider the impact of a decision on the interests of a person who made a submission drawing attention to that potential adverse impact. In NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, the Full Federal Court found that the likelihood of indefinite detention was a mandatory consideration arising from the Refugees Convention. See also Evans 8.3.32C; AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451; 147 ALD 121; and Cotterill v  Minister for Immigration and Border Protection (2016) 240 FCR 29. 10.4.7  There is an emphasis, too, in some cases on the obligation of a decision-maker to base a decision on evidence that is factually accurate and material (GTE (Australia) Pty Ltd v  Brown 13.3.3C; Lu 10.3.28 at 359; and Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426) and up-to-date: Peko-Wallsend 10.4.13C.

Failure to consider 10.4.8  Whether a matter has been ‘considered’ by a decision-maker has been a live issue in the development of this ground. On the one hand, as noted in Peko-Wallsend 10.4.13C, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker to determine the appropriate weight to be given to matters that are required to be taken into account in exercising the statutory power. Similarly — and, self-evidently — it is for a decision-maker to decide the weight to be attached to matters that are not mandatory considerations: AZAFQ at [45]; Maxwell v Minister for Immigration and Border Protection (2016) 249 FCR 275 at [45]. Courts are prepared in many situations to accept at face value an assertion by an official that a matter was considered, or to draw that inference from the fact that the matter is mentioned in a statement of reasons, or in a briefing paper that was adopted by a decision-maker (Sean Investments 10.4.12C), or that the reasons disclose ‘an awareness’ of the matter (TRHL v Minister for Immigration and Border 617

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Protection (2016) 69 AAR 192), even where the reasons are ‘laconic, formulaic and often unhelpful … [and] appear to tick boxes’: Australian Crime Commission v NTD8 (2009) 177 FCR 263 at 279. 10.4.9  By contrast, other cases express a more demanding standard, emphasising the obligation of a decision-maker to give ‘proper, genuine and realistic consideration’ to all relevant matters (Hindi 10.4.22C; NAIS v  Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at 482–3 (Gummow J); 526 (Callinan and Heydon JJ); SZMDS 15.2.17C; SZJSS 10.4.25C); to demonstrate ‘active intellectual engagement’ with the mandatory considerations (Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at [49]); or to articulate in the reasons for the decision the connection between the relevant consideration and the outcome of the decision: Lafu at [54]. Where there is a statutory obligation on the decision-maker to provide reasons containing the findings on any material questions of fact, the failure to include a finding in relation to a relevant consideration will lead to an inference that the decision-maker failed to take it into account: Minister for Immigration and Multicultural Affairs v  Yusuf (2001) 206 CLR 323 at [5], [35], [69]; NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [16]–[18], [177]–[178]; Cotterill v Minister for Immigration and Border Protection (2016) 240 FCR 29 at [43], [100]–[106]. However, ‘the manner in which a statement of reasons is drawn, or even its surrounding context, may provide material which detracts from, or even displaces, the inference’: SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34 at [19]. Also relevant to this issue is the caution administered by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang 7.5.20C that administrative reasons should not be read in a hypercritical fashion that blurs the distinction between judicial review and merits review; see further Plaintiff M64/2015 at [25]; AZAFQ at [48]. 10.4.10  A special issue which arises is whether a senior decision-maker (for example, a minister) can discharge the obligation to consider relevant matters by adopting a summary or analysis undertaken by a subordinate officer. Generally, that approach is accepted (Sean Investments 10.4.12C), but in special situations the function may be such, or the legislation may indicate, that the task of weighing up the issues should be undertaken personally by the decision-maker: Tickner v Chapman (sub nom Norvill v Chapman) 10.4.16C; and Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265, discussed at 10.4.20.

Other issues 10.4.11  Three other important features of this ground are dealt with in Peko-Wallsend 10.4.13C. First, a decision-maker who has closed their eyes to what is in the files cannot be excused on that basis: the principle of constructive (or imputed) knowledge applies, such that a failure to consider relevant matters can still be alleged. Second, the obligation to consider relevant matters can be ongoing to the point of final decision, unless the context requires otherwise. In Peko-Wallsend it was held that in making a decision, the minister could not limit his attention to matters that had earlier been submitted to a land claim inquiry, but had to consider later correspondence from the participants in that inquiry. Third, just as a single irrelevant consideration can invalidate a decision, so too can a failure to consider a single relevant matter. But the same qualification applies in both areas, namely, that a court can overlook an insignificant breach: see 10.3.28. 618

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10.4.12C

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 Federal Court of Australia

[Sean Investments Pty Ltd conducted a nursing home, for which it received a Commonwealth financial subsidy. As a subsidised facility, the home was required under s 40AA of the National Health Act 1953 (Cth) to obtain Commonwealth approval to increase the fee payable by a nursing home patient. The decision to accept or reject a fee increase was to be made in the first instance by the Permanent Head of the Department of Health. If the Permanent Head declined a fee increase, the nursing home proprietor could seek a review of the decision by the Minister for Health: s 40AE. Before making a decision, the minister was to refer the application for inquiry and report to a Nursing Homes Fees Review Committee. In this case, the minister, in declining to approve a fee increase, had adopted the recommendation of the committee, merely writing ‘Agreed’ on a departmental recommendation to the minister to accept the committee’s report. The applicant challenged the minister’s decision, alleging that he had not reached an independent decision and had failed to consider some issues raised by the applicant in support of its application for a fee increase. Deane J held that the minister had not erred. His Honour’s decision was later affirmed on appeal by the Full Federal Court: (1982) 42 ALR 676.] Deane J: The power conferred upon the Minister by s 40AE (3) of the Act must be exercised personally by the Minister in the sense that it cannot be exercised for him by a responsible officer of his Department. The reason for this is that the decision of the Minister, under that sub-section, is by way of review of a decision of the Permanent Head of the Department and, even though the Permanent Head may commonly, as he did in the present matter, act through a delegate, it could scarcely have been the legislative intent that that review should be susceptible of being delegated either to the Permanent Head himself or to an officer in his Department under his authority. It may well be that it was this consideration which led the Parliament to provide for an inquiry by an independent committee whose report would be available to guide the Minister. The statutory requirement that there be a report from the Committee before decision by the Minister, the inquisitorial powers conferred upon the Committee, the nature of the decision, the realities of the functioning of responsible government and the limitations of human capacity combine to make unavoidable the conclusion that, having received the Committee’s report, the Minister is entitled to decide to adopt it and any recommendations which it may contain without having examined and assessed for himself all the material which was before the Committee. Alternatively, he may decide to reject the report in whole or in part or to rely only on certain conclusions expressed in it. … In a case where the Minister simply adopts the report and recommendation of the Committee as his own, the result will not be that the decision becomes, for practical purposes, immune from review under the provisions of the Administrative Decisions (Judicial Review) Act, 1977. In such a case, the Minister, in simply adopting the report and recommendations of the Committee, will ordinarily also adopt any errors of law, including taking into account relevant considerations and failing to take into account irrelevant considerations, which might vitiate the Committee’s report and recommendations with the consequence that the Minister’s own decision can be attacked on the relevant ground under s 5 of that Act. Where the Minister does not adopt as his own the whole of the report and recommendations of the Committee but adopts a particular conclusion which the Committee reached, a similar position will obtain as regards any errors of law which might have the effect of vitiating the relevant conclusion.

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[His Honour went on to hold that, by writing ‘Agreed’ on a submission, the minister had not acted wrongly, and that he was ‘fully entitled to decide to accept and adopt the report and recommendations of the Committee without examining for himself the evidence and the factual material upon which that report and those recommendations were based’: at 372–3. His Honour then proceeded to consider the argument that relevant matters had not been considered:]  … As has been seen, a failure to take a relevant consideration into account in the exercise of a power is, under s 5(1) and (2)(b), a permissible ground for attacking a decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act, 1977. This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account. … In a case such as the present where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide. Of the five particular matters which the applicant submits were ignored by the Committee and the Minister, only one, namely whether there should be a partial increase in fees in respect of beds in one, two and three bed wards, appears to me to be a relevant matter which the Minister was bound to take into account in reaching his decision. As regards that matter, I am not persuaded that the evidence warrants a conclusion that either the Committee or the Minister failed to take it into account. To the contrary, the Committee’s report in respect of the December 1977 increase, which is referred to in the Committee’s subsequent report and which was before the Minister at the time he made his decision, expressly refers to the considerations ‘which should properly be taken into account in determining the measure of any increase to be allowed in the fees scale for the home’. (Emphasis added.) None of the other four particular matters, which are alleged to have been ignored both by the Committee and the Minister, appears to me to be a matter which the Minister was, as a matter of law, required specifically to take into account in reaching his decision.

10.4.13C

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299 High Court of Australia

[The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act) established a scheme whereby Aboriginals claiming to have a traditional land claim to an area of Crown land in the Northern Territory could lodge a claim for that area. The application would be inquired into in the first instance by an Aboriginal Land Commissioner, who was to prepare a report for the Minister for Aboriginal Affairs. In the report the commissioner was required to comment on the detriment to persons or communities that might result if the land claim were acceded to: s 50(3)(b). If the commissioner recommended that a claim be granted, and the minister was satisfied that the recommendation should be accepted, the minister was to establish a Land Trust, to which the Governor-General would formally grant the land title.

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The present proceedings concerned a land claim lodged by the Northern Land Council in 1978 over land in the Alligator Rivers region of the Northern Territory. The commissioner’s report, recommending that part of the claim be acceded to, acknowledged that the area of land affected included at least part of an area known as Ranger 68. In that area, PekoWallsend Ltd had been undertaking mineral exploration since 1967, and had identified an extensive uranium deposit valued at $280 million. In fact, Ranger 68 lay wholly within the area recommended for grant: the commissioner’s misapprehension was based on evidence to the inquiry from an officer of Peko-Wallsend Ltd that was described by the Full Federal Court as vague, inaccurate and misleading: Minister for Arts, Heritage and Environment v PekoWallsend Ltd (1987) 15 FCR 274 2.3.11C, cited in this case by Mason J at [5]. After the commissioner’s report was published in 1981, Peko-Wallsend Ltd made written representations to the minister drawing attention to the error and noting that the report thereby understated the potential detriment to the company’s mining interests. There was a response to those representations by the minister at the time, but no decision was made. Ultimately, after a change of government in 1983, the land claim was placed before the new Labor Government minister for decision. The minister had before him a copy of the commissioner’s report, and a brief prepared by the department entitled ‘Northern Territory Land Claims Awaiting Decisions’. The brief included a table listing the outstanding land claims, summarising the commissioner’s comments on detriment, and stating what action was recommended by the department. The summary of detriment in relation to the Alligator Rivers claim stated: ‘Potential detriment to Peko-EZ who have applied for a number of mineral leases, some of which will be subject to Aboriginal veto and all of which will require negotiation of an agreement with the Northern Land Council’. The present proceedings were conducted on the basis that the minister was unaware of the representations made by Peko-Wallsend Ltd to his predecessors, and had not taken them into account when deciding to endorse the recommendation of the commissioner and the department that the land claim be granted. Peko-Wallsend Ltd sought judicial review of the minister’s decision under the ADJR Act. Beaumont J held at first instance that the minister was not obliged to take the representations into account. On appeal, the Full Federal Court reversed that decision, holding that the minister was bound to consider the additional material and (by majority) that relief should not be refused by the court on discretionary grounds: (1985) 5 FCR 532. The decision of the Full Court was affirmed on appeal by the High Court.] Mason J: Two questions now arise in the proceedings before this Court. The first is whether the Minister was bound, in making his decision pursuant to s 11, to have regard to the respondents’ submissions, so that his failure to do so amounted to a failure to take into account a consideration relevant to the exercise of the power. The second question, which only arises if the first is answered in the affirmative, is whether relief should have been refused on discretionary grounds. … (1) Failure To Take Into Account A Relevant Consideration 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 with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s 5(2)(b) of the ADJR Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

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(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision (Sean Investments [10.4.12C] at 375). The statement of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [7.2.3C] at 228, that a decision-maker must take into account those matters which he ‘ought to have regard to’ should not be understood in any different sense in view of his Lordship’s statement on the following page that a person entrusted with a discretion ‘must call his own attention to the matters which he is bound to consider’. (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the 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 — and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45, at 49–50, adopting the earlier formulations of Dixon J in Bradbury [8.4.17C] at 757–8, and Browning [10.3.10C] at 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act. (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision … A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision … (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at 228). It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power (Sean Investments [10.4.12C] at 375; Ipec-Air Pty Ltd [12.3.3C] at 205). I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant

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considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’. [His Honour referred to Wednesbury 7.2.3C and cases applying it.] However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied … But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice (Gronow v Gronow (1979) 144 CLR 513, at 519–20, 534, 537–38). So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits. (e) The principles stated above apply to an administrative decision made by a Minister of the Crown (Murphyores [10.3.16C]; Padfield [10.3.17C]). However, in conformity with the principle expressed in (b) above, namely that relevant considerations may be gleaned from the subject matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion. In the present case, the respondents submit that the Minister, in failing to consider the submissions which they had made to his predecessors, neglected to take into account a consideration which he was bound to take into account in making his decision. It is convenient to divide this central issue into two separate, but related, questions. The first is whether the Minister is bound to take into account the comments on detriment which the Commissioner is required by s 50(3)(b) of the Act to include in his report to the Minister. The second is whether he is also bound, as opposed to merely entitled, to take into account submissions made to him which correct, update or elucidate the Commissioner’s comments on detriment. [Mason J noted that in Re Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, a majority of the court held that the commissioner was required under the Act to ‘comment’ on the issue of detriment, but was neither entitled nor obliged to take that issue into account in reporting to the minister on whether a land claim should be acceded to. Consequently, Mason J noted, ‘the respondents’ only opportunity to have the detriment to them taken into account is at the stage when the Minister is considering whether he is satisfied that the land grant should be made’. His Honour continued:] The Act does not expressly state that the Minister is bound to take into account the Commissioner’s comments on the matters in pars (a) to (d) of s50(3) in exercising his power under s 11(1)(b) to decide whether or not he is satisfied that a land grant should be made. But a consideration of the subject matter, scope and purpose of the Act indicates that such a finding is necessarily implied by the statute. The factor that leads irresistibly to this conclusion is the specific requirement in s 50(3) that the Commissioner comment in his report on each of the four matters enumerated in the subsection, including of course detriment. That provision recognises that the granting of land to a Land Trust may adversely affect the interests of many people, in some cases in a very substantial way. The legislature was clearly concerned that the Minister should not overlook crucial considerations which might counterbalance or outweigh the fairness and justice of granting the land when making his decision under s 11(1)(b). Accordingly, it provided the

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means whereby such factors would be analysed and drawn to his attention for the purpose of having them taken into account. That purpose would not be achieved if the Minister was merely entitled, but not bound, to consider these factors. Furthermore, this Court’s decision in Meneling Station, by removing from the Commissioner both the obligation and the entitlement to reflect in his recommendation to the Minister any question of detriment, has the result that the Minister is the sole forum in which these matters may be taken into account. A finding that the Minister is not required to take into account the matters in s 50(3)(a)–(d) would deny the respondents the opportunity of compelling a consideration of the detriment that may be occasioned by the granting of land to a Land Trust. For the reasons already given, such an interpretation of the Act cannot be accepted. The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner’s comments on detriment. Once it is accepted that the subject matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, 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. Considerable time may elapse between completion of the Commissioner’s report and the date at which the Minister makes his decision; in the present case it was well over one and a half years. In that time there may be such a change of circumstances that the Commissioner’s comments may no longer prove to be an accurate guide, there may be uncertainties or ambiguities in his comments that deserve clarification, or, as in the present case, even though there may have been no change of circumstances, interested parties may have become aware that the Commissioner’s report omitted material matters on the subject of detriment. It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker. This conclusion is all the more compelling when the decision in question is one which may adversely affect a party’s interests or legitimate expectations by exposing him to new hazard or new jeopardy. The granting of land to a Land Trust for the benefit of Aboriginals is a decision of this nature because an Aboriginal Land Council established under the Act has power to refuse to grant a mining interest over Aboriginal Land (s 40), or to grant it on such terms and conditions as to payment or otherwise as are provided for by agreement (s 43). When the Act specifically provides for the Commissioner to comment on the manner in which persons may be adversely affected by the making of a land grant, and provides the means whereby those comments are brought to the Minister’s attention, there may readily be found in the subject matter, scope and purpose of the Act an implication that the Minister is bound to take resultant detriment into account when making his decision. There is no sound reason for confining that obligation to a consideration of the comments in the report; matters put to the Minister by interested parties correcting, updating or elucidating the Commissioner’s comments can be of no less relevance.

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10.4.13C

Although it was not argued in the present case that the failure to consider the respondents’ submissions amounted to a denial of natural justice, the foregoing reasoning conforms to the principles of natural justice, on the assumption that they are applicable. No doubt those principles would also require a Minister who has received additional submissions from one party, before acting on them, to afford other interested parties an opportunity to answer them. But this does not negate the proposition that the Minister is bound to consider submissions put to him by parties who may be adversely affected by a decision. Moreover, the argument lends no assistance to the appellants in a case such as this where the submissions made to the Minister relate to the explication of an undisputed question of fact. An opportunity to reply, had it been afforded to other interested parties, could not have affected in any way the fact that Ranger 68 lay wholly within the land recommended for grant. For these reasons, and the further reason that it cannot be said that the omitted factor was so insignificant that the failure to take it into account could not have materially affected the decision, I conclude that the Minister was bound to consider the submissions made by the respondents to his predecessors in office … The appellants further submitted that there are great practical difficulties in requiring the Minister to consider every submission made to him on a matter that touches or concerns the making of a land grant. But the strength of this submission vanishes once it is realized that the Minister may expressly delegate his powers under the Act (s 76) and may refer matters to the Commissioner for his consideration (s 50(1)(d)). Brennan J: [His Honour reached the same decision as Mason J, but by a different process of reasoning. His Honour first noted that, as a general principle, ‘the repository of a [statutory] power ought not to exercise it without regard to the interests his decision is apt to affect’: at 56. His Honour then noted that the circumstances of this case gave rise to a different set of questions. Bearing in mind the statutory scheme, and the open inquiry before the commissioner that involved a conflict between the interests of different parties, an ex parte communication by one party at a later stage to the minister would offend the requirements of natural justice. The minister could not consider an ex parte communication without first providing an opportunity to other parties to comment upon it. The minister will be bound to inquire into the new information, and to allow comment by other parties, if a failure to do so would thwart or run counter to the policy and objects of the legislation being administered. Brennan J then posed the following test:] The Minister is bound to inquire into information furnished to him in an ex parte communication if (i) the information is credible; (ii) it is significant to a matter to which the Minister is bound to have regard in exercising his power; (iii) an adequate reason for non-disclosure of the information to the Commissioner during his inquiry has been disclosed; and (iv) the Minister does not decide that, even if the information be true, the information would not affect his decision. [Brennan J went on to hold that the failure of the minister to address those issues, and to make a decision whether to inquire into the representations of Peko-Wallsend Ltd, meant that his decision was invalid. His Honour also made the following observations concerning the relationship between the minister and the department.] The Department does not have to draw the Minister’s attention to every communication it receives and to every fact its officers know. Part of a Department’s function is to undertake an analysis, evaluation and precis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and precis is, of course, that the Minister’s appreciation

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of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister’s decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and precis of the material relevant to that decision. [Gibbs CJ agreed generally with the judgment of Mason J. Deane J expressed general agreement with the reasons of Brennan J, and held that in a case such as the present the minister was not entitled simply to ignore, or to remain uninformed about, the additional representations. Dawson J agreed with the reasons of Mason J.]

10.4.14C

Waratah Coal Pty Ltd v Mitchell [2013] 1 Qd R 90 Queensland Court of Appeal

Chesterman JA: [31] The question to be answered is whether the assessment of relative merits in s 134A(2) limits the inquiry to the material lodged by applicants on the same day, or whether it extends to supplementary materials either delivered gratuitously by an applicant or in response to a request from departmental officers. … [33] Section 133 describes in detail what an application for an exploration permit must contain. It must, uncontroversially, be in an approved form, specify the applicant’s name, an address for service, the land over which the permit is sought and the minerals intended to be explored for. More importantly the application is to be accompanied by: … [a statement specifying the program of work proposed, the resources required, the exploration data known and the applicant’s financial capacity to complete the work.] [34] It is obvious that the merits of an application will be found in the detail of the statements which are to accompany an application pursuant to s 133(1)(g) and (h). Only an application which is accompanied by both statements will be an application lodged under s 133 and be eligible for comparison. Where two applications are lodged on the same day the Minister must compare their relative merits by reference to the information contained in the two accompanying statements. They are, of necessity, statements ‘lodged on the same day’. Section 134A(2), read in conjunction with s 133, plainly indicates that the subject matter of the comparison is the information in the application documents. There is no scope for including additional information, with the possible exception of that requested by the Minister pursuant to Policy No. 116. … [36] The plain meaning of s 134A(2) is that the Minister is to make a comparison of like with like. What is to be compared are the applications, as described by s 133, lodged on the same day. There would not be a comparison of like with like if the Minister considered one application lodged on (say) 1 November 2006 and another consisting of documents lodged on 1 November 2006 and 7 March 2007.

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10.4.15

… [44] The administrative decision required by s 134A(2) is nothing like that which the Minister for Aboriginal Affairs was called upon to make under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Section 134A requires a decision as to which is the better of two applications to be made by an examination of documents lodged on the same day. It gives no scope to the consideration of subsequent events, or subsequently supplied information, in the making of that assessment. [Fraser JA and McMurdo P agreed.]

10.4.15  Whether the decision-maker is obliged to take into account the latest information will depend on the terms of the statute conferring the power, as well as the cogency and relevance of the updated evidentiary material: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [62]. In Esposito v Commonwealth of Australia (2015) 235 FCR 1, the Full Federal Court held that the minister was not obliged to take into account submissions which had come into the Department’s possession, as they were not submissions called for under the statutory regime, and they had not been called for by the minister: ‘Given that the activation of a public submission process was optional for the Federal Minister we do not think that it can be implied in a Peko-Wallsend sense that he was bound to take account of submissions not flowing from the s 131A process’: at [127]. In O’Connor v Zentai (2011) 195 FCR 515 (also Minister for Home Affairs (Cth) v Zentai (2012) 246 CLR 213), Peko-Wallsend was distinguished on the basis that the minister, in making the final extradition decision, was not required to consider new information relating to a preliminary decision that Mr Zentai was an ‘extraditable person’ (at [133]): Although this case had in common with Peko-Wallsend the arrival of new information, in Peko-Wallsend the information bore directly upon the decision which then had to be made. By contrast, in the present case, the new information related only to an earlier conclusion which the minister under s 22 was, in my view, required to treat as a closed event, namely, that the respondent was an ‘extraditable person’.

By contrast:

• in Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287, the decision of the Independent Merits Reviewer (IMR) was set aside on the basis that the IMR failed to consider the latest Iran Country Guidance Note (which was published during the period of the review by the IMR, but not provided to the IMR by the department) when the IMR had constructive knowledge of the latest departmental information; and • in Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547, the decision to deny an application for a permanent protection visa was set aside on the basis that the tribunal had failed to demonstrate that the most recent country information between the date of the hearing and the tribunal’s decision (which demonstrated increased volatility and politically-motivated violence in Zimbabwe) had been taken into account.

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10.4.16C

10.4.16C

Control of Government Action

Tickner v Chapman (sub nom Norvill v Chapman) (1995) 57 FCR 451; 133 ALR 226 Federal Court of Australia (Full Court)

[Section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) conferred power upon the Minister for Aboriginal and Torres Strait Islander Affairs to make a declaration that an area is a significant Aboriginal area that is under threat of injury or desecration. The Act stipulated the procedure to be followed in making a declaration: the minister must appoint a person to prepare a report in relation to the area and the threat posed to it (s 10(4)); the reporter must invite any interested person to make a representation in connection with the inquiry (s 10(3)); any such representation shall be given ‘due consideration’ and be attached to the report to the minister (s 10(3)(b)); and, finally, the minister is then required to have ‘considered the report and any representations attached to the report’: s 10(1)(c). A declaration by the minister under s 10 could specify activities that shall be prohibited in order to protect the Aboriginal area; contravention of a declaration was an offence: ss 22, 23. While the process prescribed in s 10 was underway, the minister could make an interim declaration, but it could not operate for more than 60 days: s 9(3). In 1994 the minister (Mr Tickner) made a declaration under s 10 prohibiting construction work for a period of 25 years in connection with building a bridge across the Murray River to Hindmarsh Island in South Australia. The declaration was made after the minister had appointed Professor Saunders to conduct an inquiry under s 10, and had subsequently received her report. Appended to Professor Saunders’ report were over 400 submissions that were made to her inquiry and a report prepared by an anthropologist, Dr Fergie. Two confidential annexures to Dr Fergie’s report were submitted in a sealed envelope with a notation that they should not be read by men, because they described secret folklore of the Ngarrindjeri women. The minister made the declaration under s 10 two days after receiving Professor Saunders’ report. Evidence before the court indicated that the minister had read the report, in part at least; that he had not read all submissions; and that he had not read the contents of the sealed envelopes, but was briefed on them by a staff member (Ms Kee) who had read them and who reported on whether the representations were adequately covered in Professor Saunders’ report. In an action brought by the proponents of the bridge development and two residents of the island, the trial judge (O’Loughlin J) held that the minister’s declaration was invalid, on three grounds: the public notice of the inquiry did not comply with the requirements of the Act; the failure to fully publicise the scope of the inquiry was a breach of natural justice; and the minister had failed to consider the report and the representations as required by the Act. An appeal against that decision was dismissed by the Full Court. The following extracts deal with the extent of the minister’s obligation to consider the report and the representations.] Black CJ: Section 10(1)(c) of the Act requires the Minister to consider both the report under s 10(4) in relation to the area received from a person nominated by him, 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 granting or withholding a declaration, it is clear that the Minister’s duty to consider under s 10(1)(c) is a provision compliance with which is a necessary step in the exercise of power under s 10. … There is no distinction made by the Act between the report and the representations for this purpose …

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Chapter 10  Statutory Purpose and Relevant Considerations

10.4.16C

The Minister must personally consider the report and any representations attached to it. This is because the powers and functions of the Minister under s 10 (and under ss 9, 12, 13(2), Part IIA and s 26) are specifically excluded from the power of delegation conferred by s 31(1). The exclusion is, in terms, quite general and it was not suggested that the exclusion from the power of delegation of the Minister’s powers and functions under s 10 was confined to the making of a declaration and that the Minister could nevertheless delegate the consideration of the report and any attached representations to anyone else. The meaning of ‘consider’ used as a transitive verb referring to the consideration of something is given in the Oxford English Dictionary, 2nd ed as ‘to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of.’ Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission. It is not surprising that the Minister should be required personally to participate in this way in a process that may lead to a declaration under s 10. The powers given to the Minister under the Act for the purposes of protecting Aboriginal heritage are capable of affecting very seriously the interests of third parties, and for this reason the Parliament has provided for decision-making at the highest level. It is this feature of the scheme of the Act — the explicit requirement that the Minister consider the representations — that removes the process under s 10 from the general rule that a Minister is not expected to do everything personally. … The requirement of substantial and non-delegable personal ministerial involvement is consistent with the evident intention of s 10, as I have described it earlier in these reasons, that interested persons will have an effective opportunity to provide information and to express opinion concerning important issues involved in the consideration of an application under s 10(1) and that the decision-maker, the Minister, shall make an informed decision on the questions in issue, having considered the representations of interested persons. It must also be remembered that the obligation to consider, imposed separately upon both the reporter and the Minister, is an obligation to consider each representation. The degree of effort that the consideration of a particular representation may involve will of course vary according to its length, its content and its degree of relevance. It was argued that the obligation to consider the representations should be construed in such a way as to take account of the urgency with which such consideration might have to be given. This, in effect, meant that the obligation to consider should be read down. The short answer to this submission is that there is no reason to suppose that the urgency in this matter will be present in every case. The fact that there was difficulty here provides no warrant for reading down the content of the very important obligation to give personal consideration to the report and the representations. During the hearing before O’Loughlin J it was not suggested that the Minister had ‘considered’ all the representations by reading them. Indeed, it was apparently submitted on behalf of the Minister that he had no such responsibility. Rather, it was submitted that the Minister had considered the representations: ‘by a combination of reading the Saunders report which itself reflected the representations as well as discussing the representations which Ms Kee had read and obtaining her advice that the representations which she read were adequately reflected in the Saunders report.’ O’Loughlin J examined this issue on the footing that there needed to be ‘substantial personal involvement’ on the part of a person who was required ‘to consider’ the written material. This did not mean that the person must read every word of every document; a busy

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Minister was entitled to receive assistance from his staff. The judge concluded, however, that the Minister did not give any ‘consideration’ to the representations at all. He came to this conclusion because of a combination of factors, which he set out. [Black CJ noted that the evidence before the trial judge indicated that the minister had a busy schedule at the relevant time which ‘could not have given him sufficient time to “consider” the representations to the requisite degree’, and that ‘the extent and description of the discussion Ms Kee had with the minister was “vague and nebulous”’. His Honour continued:] [T]he process that counsel on behalf of the Minister sought to put forward as the Minister’s ‘consideration’ of the representations was, in my view, flawed. As I have said, the consideration of a representation involves an active intellectual process directed at that representation and again the point must be made that s 10 is explicit in its requirement that not only must the reporter give consideration to the representations but the Minister must do so as well. A report, written after due consideration of the representations by the reporter, might or might not, ‘reflect’ them. In either event, the section makes it clear that the Minister must personally consider the representations and it is the representations that must be contemplated, not another document which is thought by someone else ‘adequately to reflect’ the representations. This does not mean that the Minister is denied the assistance of a staff member in the process of considering the representations. A staff member might, for example, sort the representations into categories. He or she might put together all the representations that are in common form so that they can be considered together. In some cases, a summary of technical supporting material, such as legal and financial documents, might be provided and it would certainly be in order, in my view, for a competent staff member to assist the Minister by making sure that supporting technical documents were what they purported to be. I would not rule out the possibility of some representations being quite capable of effective summary, yet there would be other cases where nothing short of personal reading of a representation would constitute proper consideration of it. Examples of the sort of representation that would need to be read personally may be found amongst the 400 or so representations forwarded with, and notionally attached to, Professor Saunders’ report. Some of these make important points by the use of photographs and the form of some representations conveys meaning in other ways. Such representations need to be seen to be ‘considered’. Whilst, then, a Minister may certainly have assistance for the purpose of considering representations, they must be truly considered and the process adopted in the present case, relying as it did upon Ms Kee’s opinion about the adequate ‘reflection’ of the representations, was insufficient. I therefore conclude that the trial judge was correct in holding that the obligation imposed by s 10(1)(c) of the Act to consider the representations had not been fulfilled. O’Loughlin J also examined the Minister’s role with respect to two confidential appendices to the report of Dr Fergie which was furnished to Professor Saunders with the supplementary submission of the ALRM [Aboriginal Legal Rights Movement Inc]. The appendices were placed in sealed envelopes bearing the notation that the contents should not be read by men. His Honour concluded that it was essential that the Minister have full details of the claims so that he might appropriately consider them and the weight he should give them. I do not understand his Honour to have concluded that the contents of the envelopes should have been shown to any other man — only to the Minister, who was the decision-maker.

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Chapter 10  Statutory Purpose and Relevant Considerations

10.4.16C

It must be recognised that there is an inevitable tension between the need for a decisionmaker to know the relevant facts in accordance with the requirements of administrative decision-making or in accordance with the requirements of the judicial process on the one hand and, on the other hand, a system of beliefs and traditions originating in times when such external elements were entirely absent. Successive Aboriginal Land Commissioners appointed under the Aboriginal Land Rights (Northern Territory) Act 1976, all five of whom have been men, have had to deal with problems of this nature. Secret knowledge has been made known to them with the authority of those who are custodians of it. … Section 27 of the Act recognises that circumstances may arise in which it will be desirable, having regard to the interests of justice and the interests of Aboriginal tradition, to order the exclusion of the public from a proceeding in a court arising under the Act and to make orders preventing or limiting the disclosure of secret matters. Section 27 does not, however, touch upon the question whether or not the Minister may deny himself access to material submitted to him by way of representation. The section must, in my opinion, be taken to proceed upon the footing that the decision-maker — the judge who constitutes the court in which the proceedings under the Act are heard — will be made aware of secret matters that the interests of justice and Aboriginal tradition may require to be kept secret from other people. In the present case there can, in my view, be no doubt that the obligation imposed upon the Minister by the Act to consider any representations attached to a report submitted to him for the purposes of s 10(1)(c) is not subject to any implied exception to the effect that the Minister need not consider them if, according to Aboriginal tradition, the matters contained in them are only to be disclosed to a person of the opposite sex. The Act proceeds upon the clear basis that the actual decision-maker, the Minister, must consider the report and the representations attached to it. It is of great importance that all concerned know what the requirements of the Act are in this respect. If Aboriginal people and those advising them have a clear understanding that the obligation to consider all representations is part of the process of protection, then they can make an informed decision about whether, and to what extent, information should be given in support of an application … In these circumstances, the remaining question is, again, whether the Minister considered the part of the representations comprising the confidential appendices to Dr Fergie’s report. The Minister did not look at the confidential appendices himself but Ms Kee did read them and she assured the Minister that there was nothing in the confidential appendices that did not support what was said in Professor Saunders’ report. For the reasons given earlier concerning the issue of consideration generally, I conclude that what occurred did not amount to the required consideration of these representations. [Burchett and Kiefel JJ delivered separate judgments reaching the same conclusion by a similar process of reasoning. On the question of whether the annexures containing the ‘women’s business’ should be read by the minister, they held as follows:] Burchett J: The argument about the effect of the Minister’s failure to consider the confidential portion of the representations concerning ‘women’s business’ proceeded on the assumption that the practical alternatives were limited to his taking the course which he in fact took, or his making himself aware of the secret information. It seems to me that the Minister had available to him a third course. If he thought the Aboriginal women’s claim to confidentiality required a departure from the normal way of dealing with the matter, it did

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not follow that the ordinary rights of other citizens, protected by the express provisions of the Act, had to be jettisoned. He could have asked the Prime Minister to appoint a female Minister or member of the Executive Council to act for the time being on his behalf during the consideration of the report and recommendations. By s 19 of the Acts Interpretation Act 1901 the references in the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to the Minister ‘include any Minister or member of the Executive Council for the time being acting for or on behalf of such Minister’. Kiefel J: To ‘consider’ is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else’s view of them, and the legislation has required him to form his own view upon them … It follows from the conclusion I have reached that, in my view, the Minister was obliged to have a full appreciation of the matters put forward as the representation of the Ngarrindjeri women, and it would seem to follow from a reading of Professor Saunders’ and Dr Fergie’s reports that the substance and detail of what was sought to be conveyed was contained in the envelopes … The real question which arises is whether the material submitted was a representation or formed part of one. If it did there can in my view be no doubt that the Minister must have a full appreciation of what was contained in it as part of his consideration. There is nothing which detracts from a conclusion that the material was a representation, submitted to the reporter for her consideration and for that of the Minister in arriving at a decision to make the declarations, although the group hoped that this could be achieved in some way without the Minister receiving the detailed contents of the submission.

10.4.17  Similar issues arose in another case involving the same scheme and the same minister as in Tickner 10.4.16C. In Minister for Aboriginal and Torres Strait Islander Affairs v  Western Australia (1996) 67 FCR 40 the Full Federal Court set aside a declaration by the minister under s 10(1) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) that prevented development of a crocodile farm at Broome. As in Tickner, the court inferred from the documentary and other evidence that the minister had been too busy in the short time available (which spanned the Easter period) to have given proper consideration to the report and representations concerning the proposed development. In drawing that inference, the court relied on the principle in Jones v Dunkel (see  10.3.26), to the effect that an adverse inference can be drawn from the failure of a person to give evidence on an issue within their knowledge: Black CJ, Burchett and Kiefel J: The failure of the Minister to call evidence does not provide positive evidence that he did not consider the representation but, unexplained, it leaves the court in a position where opposing inferences can be more confidently drawn because they stand uncontradicted by the person who could say something about the true state of facts.

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10.4.20

In a later case, the High Court was critical of a Jones v  Dunkel inference being drawn against a minister for failing to give evidence: Jia 11.5.31C at 599–60. The reason, as noted by Spender J in Haneef at 93 (see  10.2.17), is that ‘the absence of a Minister giving evidence in the witness box will be easily understood’. It has similarly been noted that an adverse inference should not easily be drawn against tribunals and regulators for failing to lead evidence when their decisions are under challenge, as tribunals and regulators are constrained by ‘the Hardiman principle’ from actively defending a decision in the manner of other litigants: Telstra Corporation Ltd v Australian Competition & Consumer Commission (2008) 171 FCR 174. 10.4.18  Peko-Wallsend 10.4.13C and Tickner 10.4.16C both illustrate that a minister can fall into error by relying on a briefing paper that does not fully canvass all relevant considerations. The same error was committed in Williams v Minister for Justice and Customs of the Commonwealth of Australia (2007) 157 FCR 286: Gyles, Allsop and Buchanan JJ: [W]hen a decision is required by statute to be made personally by a Minister and the matters to be taken into account are directed by the statute itself, the statutory command, properly construed, may prevent reliance upon advice, recommendations or analysis which are not accompanied by sufficient disclosure of the factual matters upon which the decision of the Minister is to be based … Reliance on a summary is clearly not inconsistent with a requirement for personal knowledge but, where attention to the facts is a necessary element in the performance of a Minister’s administrative decision-making role, the necessary facts must be sufficiently disclosed.

10.4.19  Another aspect of the reasoning in Tickner 10.4.16C, which has arisen in other cases, has to do with the significance of the statutory language. In Tickner, the court thought it significant that the Act required the minister to have ‘considered the report and any representations attached to the report’. A  similar approach has been taken by courts where legislation lists the factors that must be considered by a decision-maker, accompanied usually by an instruction that the decision-maker must ‘have regard to’ those matters. The presumption applied by the courts is that the decision-maker ‘must take those matters into account and give weight to them as a fundamental element in making’ a decision: R  v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333. An alternative formulation is that the matters must be the focal point of the decision-making process: Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales (2009) 185 IR 458; Evans v Marmont (1997) 42 NSWLR 70 at 79–80. 10.4.20  That principle, together with the ruling in Tickner 10.4.16C, was applied in interesting circumstances in Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265. The National Health and Medical Research Council (NHMRC) was under a statutory duty to ‘have regard to any submissions received’ in connection with an inquiry it was undertaking into the health effects of passive smoking. The Tobacco Institute made a lengthy submission, to which were attached 122 scientific papers. The NHMRC did not consider all the papers, but decided during the inquiry process to consider only papers that had been published in the peer-reviewed scientific press. Further, two university researchers were appointed to prepare summaries of the submissions, and the summaries and submissions were then considered by an NHMRC Working Party. The Federal Court held that by acting in this way, the NHMRC had failed to discharge its statutory duty to give positive consideration to the submissions: 633

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Finn J: [T]he obligation to have regard to submissions received required the NH&MRC, in preparing the draft recommendation, to take them into account and to give positive consideration to their contents as a fundamental element in its decision making. By way of elaboration, ‘positive consideration’ of a submission (i)  would preclude the adoption of an a priori criterion which itself excluded a part or parts of that submission from actual consideration; and (ii) would involve ‘an active intellectual process directed at that … submission’: Tickner … at 462 per Black CJ. It is clear that the NH&MRC (through the Working Party) has fallen well short of meeting this obligation both because of the internal procedures the Working Party adopted in dealing with submissions and because of the ‘self-denying ordinance’ it imposed on itself in respect of the matters to which it would give consideration … In my view, before it could properly be said that the Working Party considered the submissions, let alone considered them in the manner I have indicated, the members of the Working Party, at least collectively, should have been fully aware of the actual contents of all or virtually all submissions received.

A similar approach was taken in NAJT v Minister for Immigration (2005) 147 FCR 51, that a ‘fleeting, uncritical reference’ to a letter indicated that the decision-maker ‘did not actually consider what significance and weight it deserved’: at [21]. A contrary approach was taken in Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152, concerning a statutory requirement for the minister ‘to have regard to all of the information in the application’ for a visitor’s visa. To treat this as other than a requirement ‘to consider’ the application would make the process unworkable. Justice Sackville held: ‘It could hardly have been contemplated by the drafters that every piece of information selected for mention by an applicant, no matter how marginal its relevance to the issues to be determined, must be treated by the decision-maker as a “fundamental element” in making the determination’: at 610. 10.4.21 In Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, the Full Federal Court cited Sackville  J’s decision with approval, and noted that ‘the expression “have regard to” is capable of different meanings depending on context’, from requiring them to be given weight as a fundamental element in the decision to being required ‘merely to consider’ a matter: at 271. In the circumstances of Khadgi, the Full Federal Court preferred the latter approach (at 271): There are 10 different criteria that are prescribed by reg 2.41 for the purposes of s 109(1)(c) of the Migration Act 1958 (Cth). It is hard to see why a decision-maker should be required to treat each and every one of them as fundamental for the purposes of s 109. Although the minister must have regard to each and every one of the prescribed circumstances, not all of them will be central or fundamental to every case in which the minister is called upon to make a decision under s 109(1) of the Act.

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10.4.22C

Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1; 91 ALR 586; 16 ALD 526 Federal Court of Australia

[The appellant, a citizen of Lebanon, applied for permanent residence in Australia for himself and his family under a provision of the Migration Act 1958 (Cth) which provided that an entry permit could be granted where there were ‘strong compassionate or humanitarian grounds for the grant of an entry permit’: s 6A(1)(e). The main facts underpinning Mr Hindi’s application were that his mother, a brother and eight sisters lived in Australia; that he could no longer live in Liberia, his residence for the last 25 years, as his employer in Liberia had ceased operations, at the same time withdrawing his immigration bond, his access to a company house and car, and its responsibility for his safety; and that the country of Mr Hindi’s citizenship (Lebanon) was a war-torn country in which he did not formally reside. His application was considered and rejected twice by the department on the ground that he was ‘unable to show a consistent claim of direct hardship or displacement as a result of the civil strife in Lebanon’, and once by the Immigration Review Panel. The final letter from the delegate of the minister to Mr Hindi’s solicitors rejecting his application read in part as follows: I have carefully studied all of the information contained in your letter consisting of 18 pages, the attached medical certificates concerning Mr Hindi’s mother and brother, the attached letter from Westinghouse regarding the selling of its Corporation in Liberia and how this would affect Mr Hindi, and testimonials from the Fraternal Society of Tripoli and Mena District and from the Islamic Society of Victoria Inc. It is not proposed to comment in detail on all of the matters raised in your submission and attachments, much of which had already been considered in a departmental review and in the review by the Immigration Review Panel. The Department is aware of Mr Hindi’s continued interest in migration to Australia, his efforts to be sponsored and enquiries in different countries about this, and claims that he would have met migration guidelines in past years. All of the material including the tracing of his departure from Lebanon in 1959 and going to work in Liberia, his visits to Lebanon and his place of domicile there has been read. The financial support Mr Hindi claims to have provided to members of his large family over a long time, and ties with them, have been noted. The Department has been made aware of claims by Mr Hindi in regard to personal effects of civil strife in Lebanon, the concern of his relatives if he were to return there and why he would not wish to go back, that he could not reside in Egypt, or again reside in Liberia with his own family where he had personal unpleasant experiences and where there is anti-foreign feeling. The medical documentation concerning Mr Hindi’s mother and brother, and claims made concerning assistance rendered to them have been noted … Sheppard J set aside the decision of the delegate on the basis that the above letter disclosed an inadequate consideration of the material before the delegate.] Sheppard J: In support of his submissions counsel relied upon two unreported decisions of single judges of this Court and on authorities referred to in those judgments. The two decisions are Brelin v The Minister for Immigration and Ethnic Affairs (Wilcox J, 14 May 1987, unreported) and Khan v The Minister for Immigration and Ethnic Affairs (Gummow J, 11 December 1987, unreported). …

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Control of Government Action

In Khan’s case Gummow J reached the conclusion (at 12) that on the whole of the evidence in that case, the applications in question had not each been given ‘proper, genuine and realistic consideration upon the merits’. … I am driven to the conclusion that the way in which the submission based on Mr Hindi’s difficulty in returning to Liberia is put reflects a situation in which the matter was not given any genuine or proper consideration either by the recommending officer or by the delegate who accepted the recommendation. My conclusion in that regard has led me to a further conclusion. It is that the use by the writer of the letter of such phrases as, ‘has been read’, ‘has been made aware of’, and ‘have been noted’ do not necessarily reflect that genuine and proper consideration of the matter which Mr Hindi was entitled to have brought to bear on the matter. If it had not been for the treatment of his case based on the difficulty he would have in returning to Liberia, I would probably not have taken the Department to task over the use of phrases such as these. After all, it would be a sad day if officers of the Department, alert to a possible criticism of this kind, began to use phrases such as ‘carefully read and considered’, ‘taken very much into account’ and such like. Such an approach would give the whole exercise an undesirable artificiality. But in the present case I believe an absence of proper consideration has been demonstrated and this causes me to have serious misgivings about the various phrases which have been used which I fear were used in a perfunctory way. I say what I have not unmindful of the fact that the second paragraph of the letter began with the statement ‘I have carefully studied all of the information contained in your letter’.

10.4.23  The principle cited in Hindi 10.4.22C — that a decision-maker must give ‘proper, genuine and realistic consideration’ to a matter — has been approved and applied often: see the discussion and authorities in NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44; Gibson v Minister for Finance, Natural Resources and the Arts (2012) 192 LGERA 118; Village McEvoy Pty Ltd v Council of City of Sydney (No 2) (2010) 176 LGERA 119 at 143–5; Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453 at 468; A Edgar, ‘Between Rules and Discretion: Legislative Principles and the “Relevant Considerations” Ground of Review’ (2013) 20 Australian Journal of Administrative Law 132; and A Poukchanski, ‘Considering “Proper, Genuine and Realistic”’ (2014) 21 Australian Journal of Administrative Law 201. 10.4.24  The ‘proper, genuine and realistic’ standard must be seen in light of the High Court’s decision in SZJSS 10.4.25C. That case illustrates the potential for overlap between the grounds of review of relevant considerations, and unreasonableness, particularly when matters such as inappropriate weight or the failure to give ‘proper, genuine and realistic’ consideration to a matter are involved. 10.4.25C

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; 85 ALJR 306; 273 ALR 122 High Court of Australia

[The applicants were a Nepalese husband and wife who fled Nepal for Australia in 2006 and applied for protection visas. The husband, a former shop owner and school teacher, initially claimed a well-founded fear of persecution from both the Royal Nepalese Army and the Maoist

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insurgents arising out of the civil war in that country from 1996–2006. He claimed that each side of the conflict suspected that he sympathised with the other. He further claimed that, as a teacher, he had been forced to pay revolutionary taxes by the Maoists, amounting eventually to the equivalent of one week’s wages each month, and as a shopkeeper had to pay additional taxes. The husband also gave evidence that he had been required to attend Maoist training camps with other teachers. The wife claimed a protection visa on the basis that she was a member of the husband’s family. The minister refused the couple’s application, a decision affirmed by the Refugee Review Tribunal (RRT). The RRT accepted that ‘school teachers’ and ‘business people’ were ‘particular social groups’ as required by the Refugees Convention, but was not satisfied that, with the end of the civil war and changed social and political conditions, the husband would be subject to forced participation in Maoist training camps. In particular, there was no evidence that these camps persisted in bigger cities such as Kathmandu, where the applicants had been residing before fleeing to Australia. The applicants successfully sought judicial review of the RRT’s decision on two occasions and the matter was remitted for redetermination. They sought to rely on two letters dated from the headmaster at the secondary school at which the husband had taught and a letter from the principal of the boarding school his daughters had attended, all dated in 2006, to corroborate his claim. These letters indicated persecution of the husband by virtue of his position as a school teacher and pressure by the Maoists on his daughters’ school to prevent them attending. During the course of a hearing in 2008, the applicants accepted that conditions had changed in Nepal and that many people who used to be hiding were no longer in danger or in hiding, and that the couple’s children in Nepal were no longer in danger. The RRT decided to give ‘no weight’ to the letters on the basis of the changed circumstances in Nepal and because the husband had ‘exaggerated and distorted’ parts of his evidence, such as the significance of his joining Amnesty International. The RRT also found that oral evidence given by the husband as to the significance of his status as a teacher, notwithstanding the improved social and political conditions, was a ‘baseless tactic’. The delegate’s decision was again affirmed. The applicants’ third application for judicial review was dismissed by the Federal Magistrates Court on 11 September 2009. On appeal to the Federal Court, Rares J held that the RRT had failed to give ‘proper, genuine and realistic consideration’ to the evidence before it. In the absence of a finding of dishonesty on the part of the authors of the letters, Rares J could not ‘conceive how any rational, reasonable approach to the evaluation of that evidence could give it “no weight” … [The RRT] used the formula of giving “no weight” as a basis on which it might ignore probative, relevant and highly supportive material corroborating the factual basis of the fears which the [first respondent] claimed.’ Moreover, Rares J found that the claim that the husband’s evidence was a ‘baseless tactic’ was made without evidence and gave rise to a reasonable apprehension of bias. The decision was set aside for jurisdictional error. The minister appealed to the High Court which found that the tribunal had not fallen into jurisdictional error.] French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ: General principles governing the limited role of the courts in reviewing administrative error have long been identified. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, ‘mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions’ is not a sufficient reason for overturning a judicial decision upon a review. …

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Control of Government Action

In Khan v Minister for Immigration and Ethnic Affairs, Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the AD(JR) Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister’s delegate was required to ‘give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy’. [The Full Court summarised the changes to Pt 8 of the Migration Act 1958 (Cth).] The Minister contended that the weight to be accorded to the letters, and the factual matters to which they gave rise, were entirely matters for the Tribunal as they concerned the merits of the application. It was submitted that the Federal Court employed the language of ‘proper, genuine and realistic consideration’ to register the Court’s response to a weighing of the evidence with which the Court disagreed. This, it was said, does not amount to jurisdictional error. … The Minister’s submissions on the letters issue must be accepted as on a fair reading of the whole of the Tribunal’s decision, when the Tribunal said that it gave the letters ‘no weight’ it was referring to the fact that it did not accept the letters as evidencing that the first respondent was in some danger from the Maoists in Kathmandu. This was in large part because of social and political changes which had occurred since the letters were written. The evidence given by the first respondent, including his evidence about the effect of those changes, undermined his claim of political and social activism, thereby contradicting the support which the letters gave to his assertion that Maoists were continuing to pursue him in Kathmandu. The weighing of various pieces of evidence is a matter for the Tribunal. It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to ‘any rational, reasonable approach to the evaluation’ and the need for ‘a proper, genuine or realistic evaluation’ of the letters, the Federal Court was registering emphatic disagreement with the Tribunal’s assessment of the factual matters to which the letters were relevant. It appears the Federal Court would have weighed the letters differently which seems to suggest that, on the basis of the letters, the Federal Court would have been satisfied that Maoists were pursuing the first respondent in Kathmandu. When employing the formula ‘proper, genuine and realistic evaluation’ in respect of the letters, the Federal Court did not appear to consider that one of the matters against which the Tribunal weighed the letters was the first respondent’s evidence of the effects of social and political changes in Nepal. Whether the letters were ‘highly supportive’ or ‘powerfully corroborative’ (as they appeared to the Federal Court) of the first respondent’s claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal’s preference for other evidence, including the first respondent’s own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in Peko-Wallsend or Yusuf’s case. … The conclusion that the Tribunal erred in giving ‘no weight’ to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions.

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Further, the Federal Court’s conclusion that the Tribunal erred in this way did not, in the light of the whole of the evidence, require the further conclusion that the result in the Tribunal was manifestly irrational or unreasonable. Nor did it support a finding of any other failure which might be characterised as jurisdictional error. As to the Tribunal’s use of the expression ‘baseless tactic’ set out above, considered in context, the expression was no more than an indication by the Tribunal that it did not accept the first respondent’s evidence that he was at risk of being targeted by Maoists in Kathmandu, as a teacher, particularly as his reference to being a teacher was in response to being alerted to the contradictory effect of his own evidence that people who used to be in hiding from Maoists are now living out in the open. It was for that reason that the Tribunal described the giving of this answer as a ‘tactic’. It is clear from the entirety of the Tribunal’s reasons that the Tribunal accepted that the first respondent had been a teacher. What the Tribunal considered ‘baseless’ was the first respondent’s claim that being a teacher in Kathmandu would attract the attention of the Maoists. No doubt the Tribunal might have used a simpler expression to convey its evaluation of the answer given by the first respondent to the Tribunal’s query as to why he could not, like his brother, live safely in Kathmandu. Nevertheless, the evaluation of that answer was a matter for the Tribunal.

10.4.26  The plasticity of the legal obligation to give consideration to relevant matters is illustrated by the following decisions, which discussed the steps that must be taken by a decision-maker to demonstrate that a relevant matter was considered. In Weal v  Bathurst City Council (2000) 111 LGERA 181 the New South Wales Court of Appeal had to decide whether the council, in granting development approval to a rail freight terminal, had discharged its obligation under s  90(1) of the statute to ‘take into consideration’ a number of specified matters, one of which was the noise impact of the development on surrounding residential areas. The council relied on the report of an expert acoustic consultant, which concluded that the noise danger was minimal overall, but was inconclusive as to measures that should be taken to mitigate unacceptable risks. Giles  JA (Priestley  JA agreeing) held that by leaving critical matters unresolved and for future determination, the council had failed to discharge its obligation to consider relevant matters. They observed (at 201) that: Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration.

A similar approach was adopted by a majority of the New South Wales Court of Appeal in Gales Holdings Pty Ltd v Minister for Infrastructure and Planning (2006) 69 NSWLR 156, in declaring invalid a decision by a council to rezone land for industrial purposes without first considering a consultant’s report received six weeks earlier. The court noted that the report had been commissioned by the council, the report may have had a direct bearing on council’s final decision, and the other material before the council was clearly incomplete. 10.4.27  Hindi 10.4.22C provides an illustration of a court concluding that a matter was not properly considered, contrary to an assertion by the decision-maker. The same point was taken up by Toohey J in Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388: 639

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Control of Government Action

In many cases it will be clear whether or not the decision maker has taken a relevant consideration into account. That is not to say that the mere assertion by the decision maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision or indeed from the decision itself that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was.

10.4.28  Courts have drawn an inference that a matter was not considered from the absence of any reference to the matter in a statement of reasons (SZSZW v Minister for Immigration and Border Protection (2015) 150 ALD 465; Schaefer v Department of Housing (No 2) [2012] WASCA 229; and ARM Constructions Pty Ltd v  Deputy Commissioner of Taxation (NSW) (1986) 10 FCR 197); from the inflexible application of an administrative policy (Minister for Immigration and Ethnic Affairs v Tagle (1983) 46 ALR 379); and from the way in which a minister went about considering a matter (Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516). See 10.4.8–10.4.9. 10.4.29  In contrast, courts have expressed reluctance to find that a matter referred to was not considered, given the potential for such a finding to intrude into the merits of the decision: Alliance to Save Hinchinbrook v Cook [2007] Qd R 102 at [37]–[40]. A strong statement of this reluctance is the High Court’s decision in Plaintiff M64/2015: French CJ, Bell, Keane and Gordon JJ: [25] It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, ‘jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power’ [SZJSS 10.4.25C at 175]; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate’s letter is ‘not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’ [Wu Shan Liang 7.5.20C at 272].

10.4.30  The decision in Salahuddin v Minister for Immigration and Border Protection (2013) 229 FCR 290 provides a useful practical demonstration of this reluctance to identify a failure to take into account a relevant consideration from the absence of an express reference to a matter in a decision-maker’s reasons alone. The decision concerned a failure by the tribunal to refer to the nature of harm to individuals or the community in the case of a proposed deportation of a non-citizen on character grounds when the person has committed multiple offences, as was required under cl 9.1.2(1)(a) of Ministerial Direction No 55. The court held, with some hesitation, that a reading of the reasons as a whole indicated that the consideration was taken into account: 640

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Flick J (with whom Katzmann and Wigney  JJ agreed): [21] A failure on the part of a decision-maker to expressly or impliedly have regard to a mandatory consideration cannot be remedied by this Court either speculating as to what the decision-maker may have decided had the consideration been taken into account or the Court itself forming a view as to what the most likely decision would have been. Conversely, no encouragement should be given to encouraging claimants to bring unmeritorious applications founded upon a failure on the part of a decision-maker to expressly refer to a consideration which was plainly taken into account, albeit not expressly. [22] A balance must necessarily be struck between imposing upon administrative decision-makers some mere ‘formalistic’ requirement to expressly refer to matters to which they must have regard and a requirement that administrative decision-makers in fact focus as a matter of substance upon the facts and merits of the individual application being made and the administrative or statutory context in which decisions are to be made. A recognition of the ability of a reviewing court to review the reasons for an administrative decision in a practical and realistic manner — as opposed to a manner more aligned to discerning error where none truly exists — should not be construed as a freedom for administrators to fall short of any obligation to provide findings and reasons and to properly consider an application in accordance with law. Where the context in which a decision is to be made requires that consideration be given having regard to specified matters, it forever remains the preferred course for any administrator to expressly refer to such matters. To do so largely removes any room for argument and provides assurance to the parties — especially the frequently unrepresented claimant — that a case has been properly considered. A failure to do so exposes such a decision-making process to a perhaps well-justified perception on the part of a claimant that his decision has not been made in accordance with law. Any such failure also fails to perhaps explain to a reviewing court as fully as would otherwise have been desirable the process of reasoning applied to the facts. The importance to a claimant, in particular, that his claims have been considered in accordance with law, cannot be understated. This is of universal importance. … [23] Although it is concluded that the Tribunal in fact had regard to the ‘nature of the harm to individuals or the Australian community’, as required by cl 9.1.2(1)(a) of the Ministerial Direction, it would have been far preferable for it to have in fact expressly referred to and addressed this consideration. Any process of implication is necessarily uncertain. … [24] It is nevertheless concluded, albeit with some reservation, that the Tribunal in fact undertook its task of decision-making substantially in accordance with the Ministerial Direction. Its failure to expressly address the considerations in cl 9.1.2(1)(a) does not expose jurisdictional error given the conclusion that it implicitly did so. The primary Judge was correct in dismissing the appeal from the decision of the Tribunal.

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Natural Justice

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INTRODUCTION 11.1.1  This chapter examines what is a universally accepted and, to some, the most important administrative law principle — the duty to accord natural justice, nowadays commonly referred to as the obligation of procedural fairness: Plaintiff S157/2002 v Commonwealth of Australia 11.1.7C. ‘Natural justice’ has a familiar usage in public discussion, usually to express the idea that people should be treated fairly. Complaints about breach of natural justice are levelled widely, against cabinet ministers, public servants and sports umpires. When viewed as an administrative law concept, natural justice has a more precise meaning. It is a requirement for those exercising power to do so in a fair manner. A breach of that requirement can lead to invalidity. Natural justice is listed first in the 18 criteria of legal validity in s  5 of the Administrative Decisions ( Judicial Review) Act 1977 (ADJR Act), symbolising the important role it plays in Australian administrative law. The practical and symbolic importance of natural justice have been heightened by recent developments in Australian public law, in which the High Court has repeatedly affirmed that a breach of natural justice by a Commonwealth official warrants the grant of a constitutional remedy under s 75(v) of the Constitution if the error of law affects the exercise of the power. See, for example, Re Refugee Review Tribunal; Ex parte Aala (Aala) 17.1.14C, Plaintiff M61/2010E v Commonwealth 11.2.20C, and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (Miah) 11.2.19C. (Extracts from Miah appear twice in this chapter: at 11.2.19C, explaining the facts of the case, and dealing with how express statutory procedures may displace common law requirements of fairness; and at 11.3.30C, dealing with the relevance of rights of appeal to the duty to observe natural justice.) 11.1.2  The requirement to accord natural justice is a defining aspect of the legal obligations cast by administrative law upon decision-makers. At the same time, it is a doctrine of indefinite scope, which has raised many issues at the heart of law and government that are taken up in this chapter: • To what decisions or decision-makers should the obligation to accord natural justice apply? To the decisions of all public officials, including those of cabinet? To the exercise of both prerogative and statutory power? To decisions made by privatised government agencies? To decisions made in the private sector that may affect individuals in broadly the same way as government decisions? 643

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• What is the legal source of the obligation to accord natural justice — implied statutory intent, the common law or a universal expectation of fairness? • What role do concepts such as ‘legitimate expectation’ have to play in defining the obligation to accord natural justice? Is it realistic, for example, to frame as an enforceable legal obligation the expectation that international treaty obligations will be observed by government?

• What role does natural justice have to play when parliament has spelt out a procedural code for decision-making? How easily can parliament dispense with the common law obligation to accord natural justice?

• If natural justice requires a code of procedural fairness, what procedures should be part of that code? Can the law require ‘too much natural justice’? 11.1.3  The questions just posed point to the difficulty of defining natural justice either briefly or with precision. There is, however, an accepted core meaning. The essence of natural justice is standards of fair procedure that must be observed in administrative decision-making. There are two traditional elements of that code of procedural fairness, both of which have a Latin expression:

• Prior hearing rule (audi alteram partem — ‘hear the other side’): The prior hearing rule requires that before an administrative decision that adversely affects an individual’s right, interest or legitimate expectation is made, the decision-maker must give the person prior notice that a decision may be made, the information (particularly prejudicial information) on which the decision may be based, and the person’s right to make a submission in reply. • Bias rule (nemo debet esse judex in propria sua causa — ‘no one can be judge in their own cause’): A decision-maker must be free of any reasonable apprehension of bias or preconception, arising from circumstances such as the decision-maker’s financial or personal interests, prior expression of views, or previous role in the decision to be made. 11.1.4  The administrative hearing required by natural justice connects to other stages in the decision-making process. As a result, questions are raised about whether the obligation of procedural fairness should extend to those other stages. For example, should there be a correlative obligation upon a decision-maker, once a hearing has been held, to take account of what has been said and to resolve any issues still in doubt? While the High Court has not endorsed any doctrinal extension in the scope of natural justice, three novel issues which have arisen in many cases are:

• Probative evidence rule: The legal requirement that there must be evidence of sufficient persuasiveness to support a decision is sometimes styled as a requirement for evidence that is logically probative. There is a close connection between the obligation of a decisionmaker (especially tribunals) to be procedurally fair, and to make findings, based on evidence, that are neither arbitrary nor irrational. The scope of the probative evidence principle is examined in 3.4.14ff in relation to tribunals and in 13.2.31ff as an aspect of the no evidence principle.

• Duty of inquiry: In limited circumstances there can be a duty on a decision-maker to initiate an inquiry to obtain additional information to clarify gaps or discrepancies in the information at hand. The duty to enquire is examined in 15.3.18ff as an aspect of Wednesbury unreasonableness and is referred to in relation to tribunals at 3.4.24. 644

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• Duty to consult: English law now imposes a duty of consultation on many public agencies when formulating decisions or policies that affect many people. The duty arose in lower courts and was endorsed by the Supreme Court in R (on the application of Moseley) v Haringey London Borough Council [2015] 1 All ER 495. The duty can arise under common law or statute but does not apply to all decisions. Where the duty does apply, it requires consultation at the formative stages, with sufficient time and information to enable a considered response. Public input must receive conscientious consideration by those to whom the duty applies. This more proactive approach involves people, by way of an enforceable right, in the formation of decisions and policies that may affect them. The Australian approach to fairness is more reactive as it generally applies only to individuals, rather than groups or the wider public, and is triggered by decisions that affect people directly and individually. 11.1.5  A key feature of natural justice is its common law origin. As such, the requirements of natural justice are applied and refined by courts, which read into (or imply) the requirements of fairness in statutory powers so as to ensure procedural fairness when those powers are exercised. This approach means that the duty to observe natural justice does not need to be stated expressly: it is presumed to apply. Precisely how natural justice applies, or what it requires, depends heavily on the content of each statute. The requirements of fairness develop, just as the statutory framework for government continues to evolve. The expansion in government regulation has likewise created novel issues and problems that raise natural justice questions. 11.1.6  Another introductory point is that the obligation to accord natural justice is listed, but not elaborated, as a ground of judicial review in the ADJR Act. The Act provides that an order of review can be sought on the ground ‘that a breach of the rules of natural justice occurred in connection with the making of the decision’: s 5(1)(a). See also: ACT: Administrative Decisions ( Judicial Review) Act 1989 ss 5(1)(a); Qld: Judicial Review Act 1991 s 20(2)(a); Tas: Judicial Review Act 2000 s 17(2)(a). These provisions serve to police any breach of natural justice but effectively leave to the common law the important questions of whether natural justice applies and what it may require. The issue of terminology — whether it should be described as ‘natural justice’ or ‘procedural fairness’ and the now discarded notion of an obligation to ‘act judicially’ — is taken up in the following extract from Plaintiff S157 11.1.7C. 11.1.7C

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24; 72 ALD 1 High Court of Australia

[The facts of this case are set out in detail at 16.3.17C.] Gleeson CJ: In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 365– 7, Deane J explained that, in the past, it was customary to refer to the duty to observe common law requirements of fairness as a duty ‘to act judicially’. In a passage from Hickman …, Dixon J can be seen using that expression. Later, the duty came to be referred to as a duty to observe the requirements of ‘natural justice’. Later again, it became common to speak of ‘procedural fairness’. The precise content of the requirements so described may vary according to the statutory context; and may be governed by express statutory provision. Subject to any such statutory regulation, and relevantly for present purposes, the essential elements involved

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include fairness and detachment. Fairness and detachment involve ‘the absence of the actuality or the appearance of disqualifying bias and the according of an appropriate opportunity of being heard’ (1990) 170 CLR 321 at 367. A statute may regulate and govern what is required of a tribunal or other decision-maker in these respects, and prescribe the consequences, in terms of validity or invalidity, of any departure. … Subject to any such statutory provision, denial of natural justice or procedural fairness will ordinarily involve failure to comply with a condition of the exercise of decision-making power, and jurisdictional error.

History of the doctrine 11.1.8  The requirement that governmental decision-making processes should comply with minimum procedural standards is of ancient origin and is said to be grounded in both common sense (John v Rees 11.1.11C) and in deep-rooted notions of fair play: Cooper v Board of Works for the Wandsworth District 11.1.18C. Apart from the somewhat whimsical reference in Cooper to the origination of the doctrine in the Garden of Eden, the antiquity of the doctrine is more firmly rooted in works by Plato, Seneca and Locke. Justice Callinan in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (Lam) 11.3.14C described natural justice as long having been ‘the law of many civilised societies’: [140] That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca’s Medea, enshrined in the scriptures, mentioned by St Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Books to the law of nature, asserted by Coke to be a principle of divine justice, and traced by an eighteenth-century judge to the events in the Garden of Eden. [Citing S de Smith, H Woolf and J Jowell, Judicial Review of Administrative Action, 5th ed, Sweet & Maxwell, London, 1995, pp 378–9]

11.1.9  In English law, a legal obligation to accord natural justice applied initially only to courts, as an aspect of their duty to act judicially. The obligation was extended in the nineteenth century in Cooper 11.1.18C to a local council which was making a decision affecting a person’s property. The court held such decisions should be made in a quasi-judicial fashion. The application of the doctrine to administrative powers was in decline from the 1920s, following the decision in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171: see  17.2.2. The approach taken in that period was that the duty of a body to act judicially should be made apparent from the legislation establishing it, and not merely implied from other factors. The competing idea that the duty to accord natural justice could be implied from the existence of a power to affect the rights of a person was later resurrected by the House of Lords in Ridge v Baldwin 11.1.19C. The obligation was applied in that case to an administrative body, a police authority, making a decision to dismiss an employee. Ever since, as the cases in this chapter illustrate, the duty to accord natural justice has been applied to different government decisions affecting property, employment, personal freedom, reputation, immigration status, and financial and commercial interests. Those examples lend support to the observation of McHugh J in Miah 11.2.19C that: ‘The common law rules of natural justice … are taken to apply to the exercise of public power unless clearly excluded’: at 93. Moreover, the obligation can apply to decisions made under statute and also those made in the exercise of common law prerogative power: Jarratt v Commissioner of Police (NSW) 11.1.20C. 646

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Rationale for the doctrine 11.1.10  The doctrine of natural justice is nowadays regarded as a fundamental tenet of good administration, for reasons that are spelt out in some of the foundation cases, such as John v Rees 11.1.11C, Cooper 11.1.18C, Ridge 11.1.19C and Jarratt 11.1.20C. A view commonly put is that natural justice will promote better decision-making by ensuring that relevant information is before the decision-maker. 11.1.11C

John v Rees [1969] 2 All ER 274 Chancery Division

Megarry J: It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,’ they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.

11.1.12  The procedural rigour involved in conducting a hearing and projecting an air of impartiality is also likely to make the decision-maker more diligent and objective in reaching a decision. When there is a full and impartial consideration of all relevant issues, it is also more likely that there will be public confidence in the decision-making process and the correctness of decisions. Many administrative decisions adversely affect the property, livelihood and other interests of individuals, and it is appropriate that a modified form of court process — a fair hearing, conducted by an impartial decision-maker, who acts upon probative material — should apply to those functions of government. Finally, the idea of providing people with an opportunity to be heard before a decision affecting them is made is said to reflect basic notions of fairness and respect for human dignity. These issues are discussed in Chief Justice R French, ‘Procedural Fairness — Indispensable to Justice?’ speech delivered at the Sir Anthony Mason Lecture, Melbourne, 7 October 2010; M Loughlin, ‘Procedural Fairness: A Study of the Crisis in Administrative Law Theory’ (1978) 28 University of Toronto Law Journal 215; and M Groves, ‘The Unfolding Purpose of Fairness’ (2017) 45 Federal Law Review 653. That last source cites psychological studies, which have found that people who see that a hearing or process is fair are more likely to accept the integrity of both particular decisions and the institutions in which decisions are made. This is called the ‘fair process effect’ and shows that fair procedures have a measurable effect, albeit one that cannot be measured in strictly legal terms. 11.1.13  Another justification for natural justice is the ‘dignitarian’ rationale. According to this view, fairness is valuable for reasons additional to its obvious practical benefits, such as improving the quality of decisions, preventing errors or enabling agencies to improve their 647

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processes. The hallmark of natural justice — treating people affected by official power with respect — is said to have an inherent value. As Allsop  CJ explained, the fair treatment of applicants in hearings under migration legislation ‘involves the recognition of the dignity of the applicant (the subject of the exercise of power) in how the hearing is conducted. That recognition is an inhering element of fairness’: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at  [2]. The UK Supreme Court explained this approach at greater length in R (Osborn) v Parole Board 11.1.15C. 11.1.14  But fairness can cause problems. Many of the following cases explain that the objectives of fairness must be balanced against the practical demands of administrative decision-making. To proceed otherwise, it is argued, would be counterproductive: McInnes v Onslow-Fane [1978] 1 WLR 1520. Justice Brennan in Kioa v West 11.2.16C warns against ‘over-judicialising’ the administrative process: at 629. These pragmatic cautions reveal a concern that natural justice principles should not be inappropriately onerous, complex, time consuming or costly. A  related point made by Gleeson  CJ in Lam 11.3.14C, which is cited frequently (see 11.4.6), is that ‘[f ]airness is not an abstract concept. It is essentially practical … [T]he concern of the law is to avoid practical injustice’: at 14. Similarly, as the court warned in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, ‘what is required by procedural fairness is a fair hearing, not a fair outcome’: at 160. Such sentiments were strongly endorsed by the High Court in Minister for Immigration and Border Protection v WZARH 11.3.16C. 11.1.15C

R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115 UK Supreme Court

[The Parole Board of England and Wales is a statutory body that decides the release of prisoners. All prisoners released are subject to a condition that breach of any conditions of release renders them liable to arrest and return to prison. Mr Osborn was recalled to prison for a breach of his conditions of release. In this and other cases, the Parole Board reviewed prisoners’ cases ‘on the papers’. This procedure enabled prisoners to submit written information on why they should be released but prisoners would not normally be interviewed in person. Mr Osborn and other prisoners sought judicial review of the board’s decisions affecting them. They argued that the common law requirements of fairness meant prisoners should be offered an oral hearing. The Supreme Court held that the prisoners were denied natural justice but it also affirmed the long-standing principles that the requirements of fairness were context dependent. Accordingly, fairness did not require all prisoners seeking release to be offered an oral hearing. The Court held that the reasons that fairness might require an oral hearing included the impact of the decision on the prisoner and whether issues relevant to the prisoner could only be properly raised and considered with an oral hearing. The Supreme Court also placed weight on the inherent value of fair procedures, which mean that pragmatic considerations the board had relied on for its general practice of refusing oral hearings (which were to save time, cost and trouble) did not receive great weight.] Lord Reed: There is no doubt that one of the virtues of procedurally fair decisionmaking is that it is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested. As Lord Hoffmann observed

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however in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269, para 72, the purpose of a fair hearing is not merely to improve the chances of the tribunal reaching the right decision. At least two other important values are also engaged. The first was described by Lord Hoffmann … as the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel. I would prefer to consider first the reason for that sense of injustice, namely that justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken. As Jeremy Waldron has written (‘How Law Protects Dignity’ [2012] Cambridge Law Journal 200, 210): Applying a norm to a human individual is not like deciding what to do about a rabid animal or a dilapidated house. It involves paying attention to a point of view and respecting the personality of the entity one is dealing with. As such it embodies a crucial dignitarian idea, respecting the dignity of those to whom the norms are applied as beings capable of explaining themselves. … This aspect of fairness in decision-making has practical consequences of the kind to which Lord Hoffmann referred. Courts have recognised what Lord Phillips of Worth Matravers described as ‘the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result’: Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269, para 63. In the present context, research has established the importance attached by prisoners to a process of risk assessment which provides for their contribution to the process… Other research reveals the frustration, anger and despair felt by prisoners who perceive the board’s procedures as unfair, and the impact of those feelings on their motivation and respect for authority … The second value is the rule of law. Procedural requirements that decision-makers should listen to persons who have something relevant to say promote congruence between the actions of decision-makers and the law which should govern their actions. [Lord Neuberger, Baroness Hale, Lord Kerr and Lord Clarke agreed with Lord Reed.]

When natural justice applies 11.1.16  The cases in this chapter are mostly ones in which a court had to decide whether there was a duty to accord natural justice, and if so what was required. Those questions are answered by a process of implication, from such factors as the nature of the decision being made, the effect or impact of the decision, the identity of the decision-maker, and the terms of the statute being administered. This reasoning process is often reduced to three points (that frequently overlap): • The implication question: Is there an implied duty to accord natural justice? This question is asked less often because of the strong presumption favouring the application of natural justice. The ‘implication principle’ affirmed in Cooper 11.1.18C remains important even if it is not openly cited when courts regularly supplement statutory requirements of fairness.

• The exclusion question: Has the legislature evinced an intention to exclude the obligation to observe one or other of the requirements of natural justice? 649

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• The content question: What kind of hearing is required to be given? This question is perhaps the one now most commonly faced by the courts. 11.1.17  There are other situations where the duty to accord natural justice is approached differently:

• Legislation can expressly impose an obligation to accord natural justice. For example, s 218 of the Australian Securities and Investments Commission Act  2001 (Cth) provides that the Companies Auditors and Liquidators Disciplinary Board in conducting a hearing ‘must observe the rules of natural justice at and in connection with a hearing’.

• There is a strong presumption that natural justice applies to the exercise of judicial power by a court. There is a similar presumption that an obligation to accord natural justice applies to a body invested with the trappings of a court. For example, it is presumed without need for further analysis that a tribunal, such as the Administrative Appeals Tribunal, that is required by statute to conduct a ‘proceeding’, to ‘review a decision’, to hear the ‘parties’ and to operate in a manner that is ‘fair’ and ‘just’ (Administrative Appeals Tribunal Act 1975 (Cth) s 2A), is obliged to accord natural justice. • Provisions which either expressly adopt natural justice or use terms and phrases suggestive of fairness do not, of course, resolve the further question of precisely what natural justice requires (the content question). 11.1.18C

Cooper v Board of Works for the Wandsworth District (1863) 143 ER 414 Court of Common Pleas

[Mr Cooper sued the Wandsworth Board of Works in trespass after it demolished his house. The board pleaded that it was justified in doing so by s 76 of the Metropolis Local Management Act, which provided that the board could demolish a house if prior notice to build had not been given (as it had not been by Mr Cooper). The statute did not impose a duty to act judicially or comply with natural justice. The court held that the board’s reliance on s 76 was invalid, as it had not complied with natural justice in exercising that power.] Erle CJ: The contention on the part of the plaintiff has been that, although the words of the statute, taken in their literal sense, without any qualification at all, would create a justification for the act which the district board has done, the powers granted by that statute are subject to a qualification which has been repeatedly recognised, that no man is to be deprived of his property without his having an opportunity of being heard … I think that the power which is granted by the 76th section is subject to the qualification suggested. It is a power carrying with it enormous consequences … and it seems to me to be a power which may be exercised most perniciously, and that the limitation which we are going to put upon it is one which ought, according to the decided cases to be put upon it, and one which is required by a due consideration for the public interest. I think the board ought to have given notice to the plaintiff, and to have allowed him to be heard. The default in sending notice to the board of the intention to build, is a default which may be explained. There may be a great many excuses for the apparent default. The party may have intended to conform to the law. He may have actually conformed to all the regulations which they would wish to impose, though by accident his notice may have miscarried; and, under those circumstances, if he explained

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how it stood, the proceeding to demolish, merely because they had ill-will against the party, is a power that the legislature never intended to confer. I cannot conceive any harm that could happen to the district board from hearing the party before they subjected him to a loss so serious as the demolition of his house; but I can conceive a great many advantages which might arise in the way of public order, in the way of doing substantial justice, and in the way of fulfilling the purposes of the statute, by the restriction which we put upon them, that they should hear the party before they inflict upon him such a heavy loss. I fully agree that the legislature intended to give the district board very large powers indeed: but the qualification I speak of is one which has been recognised to the full extent. It has been said that the principle that no man shall be deprived of his property without an opportunity of being heard, is limited to a judicial proceeding, and that a district board ordering a house to be pulled down cannot be said to be doing a judicial act. I do not quite agree with that … [T]he law, I think, has been applied to many exercises of power which in common understanding would not be at all more a judicial proceeding than would be the act of the district board in ordering a house to be pulled down. Willes J: I am of the same opinion. I apprehend that a tribunal which is by law invested with power to affect the property of one of Her Majesty’s subjects, is bound to give such subject an opportunity of being heard before it proceeds: and that rule is of universal application, and founded upon the plainest principles of justice. … Byles J: I am of the same opinion. … [A]lthough there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The judgment of Mr Justice Fortescue, in Dr Bentley’s case is somewhat quaint, but it is very applicable, and has been the law from that time to the present. He says, ‘The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. “Adam” (says God), “where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?” And the same question was put to Eve also.’

11.1.19C

Ridge v Baldwin [1964] AC 40 House of Lords

[Mr Ridge was dismissed from his position as Chief Constable of the Brighton Police Force, on the basis of allegations of corruption that had been made against him. The decision was made by the watch committee (the police authority), pursuant to s 191(4) of the Municipal Corporations Act 1882, which provided: ‘The watch committee … may at any time suspend, and the watch committee may at any time dismiss, any borough constable whom they think negligent in the discharge of his duty, or otherwise unfit for the same’. The House of Lords held by majority that the dismissal decision was void, as Mr Ridge had not been given prior notice of the grounds on which the committee proposed to act or an opportunity to be heard in his own defence.] Lord Reid: The principle audi alteram partem goes back many centuries in our law and appears in a multitude of judgments of judges of the highest authority. In modern times

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opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist. It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile is that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle. What a minister ought to do in considering objections to a scheme may be very different from what a watch committee ought to do in considering whether to dismiss a chief constable. So I shall deal first with cases of dismissal. These appear to fall into three classes: dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal. The law regarding master and servant is not in doubt … [T]he master can terminate the contract with his servant at any time and for any reason or for none … [T]he question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract … Then there are many cases where a man holds an office at pleasure. Apart from judges and others whose tenure of office is governed by statute, all servants and officers of the Crown hold office at pleasure, and this has been held even to apply to a colonial judge (Terrell v Secretary of State for the Colonies [1953] 2 QB 482). It has always been held, I think rightly, that such an officer has no right to be heard before he is dismissed, and the reason is clear. As the person having the power of dismissal need not have anything against the officer, he need not give any reason … But again that is not this case. In this case the Act of 1882 only permits the watch committee to take action on the grounds of negligence or unfitness … So I come to the third class, which includes the present case. There I find 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. [Lord Reid referred to a number of cases and continued:] … I would think that authority was wholly in favour of the appellant, but the respondent’s argument was mainly based on what has been said in a number of fairly recent cases dealing with different subjectmatter. Those cases deal with decisions by ministers, officials and bodies of various kinds which adversely affected property rights or privileges of persons who had had no opportunity or no proper opportunity of presenting their cases before the decisions were given. … [Lord Reid referred to Cooper 11.1.18C and other cases and continued:] I shall now turn to a different class of case — deprivation of membership of a professional or social body. In Wood v Woad (1874) LR 9 Ex 190 the committee purported to expel a member of a mutual insurance society without hearing him, and it was held that their action was void, and so he was still a member. Kelly CB said of audi alteram partem: ‘This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals.’ … Then there are the club cases, Fisher v Keane and Dawkin v Antrobus (1879) 17 Ch D 615, CA. In the former, Jessel MR said of the committee: ‘They ought not, as I understand it, according to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of persons who decide upon the conduct of others, to blast a man’s reputation for ever — perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct.’ … [Lord Reid discussed the three categories of cases in which it was held that natural justice did not apply. He concluded that where a minister or other organ of government was dealing

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11.1.20C

with a policy question or issues affecting the community generally, rather than an individual specifically, it might be inappropriate to apply an obligation to accord natural justice. Of war-time legislation he noted that the legislature had implicitly excluded an obligation to accord natural justice. Finally, he concluded that the judgment of Atkin LJ in R v Electricity Commissioners, Ex parte London Electricity Joint Committee Co [1924] 1 KB 171 had been misunderstood as disapproving the inference of an obligation to act judicially from the nature of a power, specifically, from a power to affect the rights of a person.] So I would hold that the power of dismissal in the Act of 1882 … cannot now be exercised until the watch committee have informed the constable of the grounds on which they propose to proceed and have given him a proper opportunity to present his case in defence. Next comes the question whether the respondents’ failure to follow the rules of natural justice on March 7 was made good by the meeting on March 18. I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid. … But here the appellant’s solicitor was not fully informed of the charges against the appellant and the watch committee did not annul the decision which they had already published and proceed to make a new decision. In my judgment, what was done on that day was a very inadequate substitute for a full rehearing … I do not think that this house should do more than declare that the dismissal of the appellant is null and void … [Lord Morris of Borth-y-Gest and Lord Hodson delivered concurring judgments. Lord Devlin reached a similar conclusion on other grounds. Lord Evershed dissented.]

11.1.20C

Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44; (2005) 221 ALR 95 High Court of Australia

[Mr Jarratt was reappointed to the office of Deputy Commissioner of Police for New South Wales in 2000 for a term of five years. He was removed in September 2001 for inadequate performance of his duties, by the Governor of New South Wales on a recommendation of the Commissioner of Police, both acting under s 51 of the Police Service Act 1990 (NSW). Mr Jarratt claimed he had been denied natural justice since he was given no opportunity to be heard before removal. The Commissioner argued that Mr Jarratt was not entitled to natural justice since he held an office ‘at pleasure’. The High Court rejected that argument.] Gleeson CJ: Crown service ‘at pleasure’ … To say that an office is held at pleasure means that whoever has the power to remove the office-holder may exercise that power at any time, and without having to provide, either to the office-holder, or to a court examining the decision to remove, any justification of the decision. No period of notice, and no justification or cause for removal, is required by law. No fault or incapacity of the office-holder, or other compelling circumstance, need be shown. The corollary has generally been taken to be that such an officer has no right to be heard before removal … Logic does not dictate that it is the necessary corollary of a power to remove an office-holder without assigning a reason that the office-holder should be denied the possibility of being heard. Of course, to conclude that the requirements of natural justice must be

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complied with leaves open the question of the practical content of those requirements in a given case … The common law rule concerning service at pleasure was established long before modern developments in the law relating to natural justice, and the approach to statutory interpretation dictated by those developments. It was also established at a time when public service was less likely to be subject to statutory and contractual regulation than at present. We are here concerned, not with the pristine common law principle, but with a statutory scheme of officeholding and employment. The Act provided the framework and context of the applicant’s appointment, and determined the nature and extent of his rights. The Act is not a code. It does not exclude the common law. It is, however, one thing to say that the common law explains some features of the Act. It is a different thing to say that the Act embodies, or gives statutory effect to, common law principles without modification. Without doubt, an understanding of the common law is important for an appreciation of the statutory scheme. Nevertheless, the Act made substantial alterations to the common law. [Gleeson CJ examined the Police Service Act 1990 (NSW) and the contract under which Mr Jarratt was appointed and concluded that although the contract governed matters of duties and remuneration, he held office by virtue of the Act which dealt with the appointment and term of the office. Section 51 of the Act provided that the deputy commissioner could be removed from office at any time by the governor, on the recommendation of the commissioner submitted with the approval of the minister.] The power of removal given by s 51 is not qualified by reference to grounds for removal … The validity of the removal does not depend upon the existence of any particular cause for removal, except to the extent that the statutory power must be exercised in good faith and for the purpose for which it is given. It does, however, depend upon compliance with certain procedures, involving recommendation by the Commissioner, approval by the minister, and a decision of the Governor-in-Council. As has already been pointed out, those procedures, and the context in which they operate (removal of a Deputy Commissioner of Police before the expiry of his or her term of office), mean that it is practically certain that some cause for removal will be considered to exist, and highly likely that such cause will be made public, as happened in the present case. The issue is whether, in that statutory context, there is a legal requirement on the part of the Commissioner (the practical content of which may vary with the circumstances of particular cases) to give the Deputy Commissioner an opportunity to be heard before a recommendation goes to the Governor-in-Council. That problem is essentially one of statutory construction. The precise question to be asked is whether the exercise of the power of removal conferred by s 51 of the Act is conditioned upon the observance of the rules of natural justice … Natural justice … Section 51 of the Act confers upon public officials (the Governor, acting on the recommendation of the Commissioner submitted with the consent of the minister) a power to remove the applicant from public office, and thereby prejudice the applicant’s rights and interests. In Annetts v McCann (1990) 170 CLR 596 at 598 it was said that it can now be ‘taken as settled’ that the rules of natural justice regulate the exercise of such a power ‘unless they are excluded by plain words of necessary intendment’. There are no plain words of necessary intendment, in s 51 of the Act or elsewhere, that indicate that the power of removal conferred by s 51 may be exercised without giving a Deputy Commissioner a fair opportunity to be heard. What is involved is not removal in the exercise of monarchical prerogative. What is involved is a statutory power which requires certain

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procedures to be followed. It is conceivable that there may be cases of a valid exercise of the power for reasons, or on the basis of considerations, that are of such a nature that there would be nothing on which a Deputy Commissioner could realistically have anything to say. It is clear, however, that the power may also be exercised for reasons about which a Deputy Commissioner could have a good deal to say. The very breadth of the statutory power seems to me to be an argument for, rather than against, a conclusion that it was intended to be exercised fairly. So also is the consideration that, in practice, the power would normally be exercised for cause, even though such cause is not legally necessary. Far from relying on plain words of necessary intendment to exclude the requirements of fairness in the exercise of the power conferred by s 51 of the Act, the respondents are driven to rely on an implication, founded upon the words ‘may be removed from office at any time’, read in the context of the common law principle as to service of the Crown at pleasure. We are not here concerned with the monarch’s ‘prerogative’ power to dispense with the services of a subject at pleasure. We are concerned with a statutory scheme for the management of the Police Service and for the employment of its members, likely to have been intended to embody modern conceptions of public accountability. Where parliament confers a statutory power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, parliament is taken to intend that the power be exercised fairly and in accordance with natural justice unless it makes the contrary intention plain. This principle of interpretation is an acknowledgment by the courts of parliament’s assumed respect for justice … [I]n the present case, the applicant’s removal from office was invalid. [McHugh, Gummow, Hayne, Callinan and Heydon JJ delivered concurring judgments.]

11.1.21  In Barratt v Howard (2000) 96 FCR 428 the Full Federal Court similarly found that natural justice applied to a decision to dismiss the head of a Commonwealth agency, though the court imposed undemanding requirements. The aggrieved officer was entitled to notice that he had lost the confidence of the relevant minister but not the reasons for that conclusion. In Stewart v Ronalds (2009) 76 NSWLR 99 the New South Wales Court of Appeal held that ‘the phrase [Governor’s pleasure] in this context means that the minister has no right to be heard before he or she is dismissed; no reasons are needed; the office is terminable for good or bad or no reasons’: at [46]. These cases show an acceptance by the courts that some decisions, such as the appointment of ministers and senior public officials, are governed more by political exigencies than law.

THE HEARING RULE — GENERAL TESTS 11.2.1  More often than not legislation is silent on whether the principles of natural justice apply. In most such cases, though not all, the courts will imply a duty to comply with the requirements of fairness. Even when the legislation spells out a hearing procedure, it is common for courts to conclude that natural justice requires additional steps to be taken. On what basis can the court add to what the legislature has said or, in Byles J’s words in Cooper 11.1.18C at 420, ‘supply the omission of the legislature’? This question touches each aspect of natural justice — when it applies, what it requires and whether it has been excluded. Four different theories explain the approaches taken by courts: that natural justice is a common law implication, a legislative implication, a universal implication, or an implication to be derived from multiple factors. 655

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Common law implication 11.2.2  The approach of the courts in Cooper 11.1.18C and Ridge 11.1.19C, and the cases referred to therein, was that the common law supplies the omission of the legislature. The exercise of a power to affect rights — property in Cooper, livelihood in Ridge and Jarratt 11.1.20C — triggers the intervention of the common law. Natural justice is thus implied by the common law unless there is a legislative intention to exclude it. This doctrine is given force by the requirement that to be excluded the legislative intention must appear ‘from express words of plain intendment’, and that such an intention ‘is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations’: Commissioner of Police v Tanos (1958) 98 CLR 383 at 396. 11.2.3  The idea that the common law tradition of courts supplements the role of the legislature remains firmly rooted in administrative law. It is, nevertheless, an approach that applied more easily in earlier times when government activity was on a different and smaller scale. Decisions affecting property and livelihood more obviously attracted the protection of the common law; it was easier in those cases to draw a parallel with the procedure that would be followed by a court acting judicially in making a comparable decision. Nowadays governmental action affects people more directly, in a variety of different ways in which it can be harder to pinpoint an existing right or interest that is being taken away. Government decisions on the award of licences, the regulation of business, eligibility for social security benefits, or who is allowed to reside in the country, do not affect rights of a traditional kind. Yet those decisions are often of paramount importance to people in the way they interact with, and are affected by, government. Consequently, while a common law implication approach remains influential in natural justice cases — examples are the judgments of Deane J in Kioa 11.2.16C and South Australia v O’Shea 11.2.18C — the approach has given way to, or been supplemented in many other cases by, a different approach to implying natural justice.

Legislative implication 11.2.4  The statutory framework for government decision-making is nowadays comprehensive and complex. The idea that courts supply the omission of the legislature has had to accommodate that change. One approach has been to say that the legislature draws from the common law heritage of protecting rights, and impliedly intends that natural justice applies unless it has been excluded. Justice Brennan in Kioa 11.2.16C was a chief proponent of this view, noting that: ‘There is no free-standing common law right to be accorded natural justice by the repository of a statutory power. There is no right to be accorded natural justice which exists independently of statute’: at 610. A corollary of this approach, also noted by Brennan  J in Kioa is that ‘[t]he question whether a statutory power is conditioned on the observance of the principles of natural justice demands a universal answer, for it is a question of construction’: at 611. 11.2.5  The theoretical appeal of this approach was always strong, taking account as it did of the separation of powers. Yet the doctrinal difficulties were also great. As Brennan J himself acknowledged, natural justice could not, on this approach, apply to the exercise of prerogative power. Nor would it always be easy to decide which statutory powers carried the legislative implication that natural justice applied, nor the content of those hearing rights. One answer 656

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given by Brennan  J in Kioa 11.2.16C — that natural justice might apply but be reduced to nothingness — undermined some of the theoretical appeal of this approach. 11.2.6  The position therefore is that implied legislative intent can still play a role in deciding whether natural justice applies, and its importance is recognised in many of the following cases: Miah 11.2.19C, Jarratt 11.1.20C, and Plaintiff M61/2010E 11.2.20C, among others. Nevertheless, there is little support for the notion that implied legislative intent alone is sufficient.

Universal implication 11.2.7  The idea that the rules of natural justice should apply to all governmental decisionmaking affecting rights, interests and legitimate expectations, unless expressly excluded, has increasing support, both on practical and doctrinal grounds. This approach avoids the threshold difficulty of deciding what theory to apply, and how to apply it in a complex statutory setting. It is instead presumed that unless there is a legislative statement to the contrary, a hearing must be given; the inquiry then switches to what kind of hearing is required. Factors that were hitherto relevant in deciding whether natural justice is to be implied — such as the nature of the rights affected and the detail of the statutory framework — still have a role to play in the inquiry as to content. An added attraction in the ‘universal implication’ approach is that it explains the course of development of the last 30 years or so, during which the obligation to accord natural justice has been applied increasingly to a great range of decisions in all areas of government. 11.2.8  A judicial stimulus to this approach was initially given by Mason J and Brennan J in Kioa 11.2.16C: Mason J: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention. Brennan  J: The presumption that the principles of  natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation.

Subsequently, the idea was embraced more explicitly by other members of the High Court, usually by endorsing a statement of Deane J in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648, that the law is ‘moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognized as applying generally to governmental executive decision-making’: at 653. 11.2.9  The High Court continues to confirm the universal implication approach: Gummow, Hayne, Crennan and Bell JJ: It is in this sense that one may state that ‘the common law’ usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural 657

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fairness to those whose interest may be adversely affected by the exercise of that power. If the matter be understood in that way, a debate whether procedural fairness is to be identified as a common law duty or as an implication from statute proceeds upon a false dichotomy and is unproductive. [Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636]

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell  JJ: It was said, in Annetts v McCann, that it can now be taken as settled that when a statute confers power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, principles of natural justice generally regulate the exercise of that power. In Kioa v  West, different views were expressed about whether the requirements of procedural fairness arise from the common law or instead depend upon drawing an implication from the legislation which confers authority to decide. It is unnecessary to consider whether identifying the root of the obligation remains an open question or whether the competing views would lead to any different result. It is well established, as held in Annetts, that the principles of procedural fairness may be excluded only by ‘plain words of necessary intendment’. [Plaintiff M61/2010E 11.2.20C] French CJ, Kiefel, Bell, Gageler, Keane, Nettle and GordonJJ: [I]t must now be taken to be settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation. The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme. [Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180]

This approach recognises that exclusion of fairness remains possible, though it is becoming increasingly hard to achieve: M Groves, ‘Exclusion of the Rules of Natural Justice’ (2013) 39 Monash University Law Review 285. 11.2.10  Despite its apparent simplicity and popularity, the universal implication approach is not without difficulty. As with most universal rules, there are exceptions. It is, for instance, generally accepted that an obligation to accord natural justice does not apply to decisions made by cabinet (McGuinness v State of New South Wales (2009) 73 NSWLR 104), to some exercises of prerogative power, to decisions of a subordinate legislative character, nor to at least some types of ‘policy’ and planning decisions that affect the community generally and impact on individuals only to the extent that they are members of the relevant class of people: see, for example, O’Shea 11.2.18C, Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd 2.3.11C. If a theory is needed to explain the exceptions, one is also needed to explain when natural justice applies. A further difficulty is that the broader the range of decisions to which natural justice applies, the harder it becomes to define what natural justice requires or means. Most decisions made by government that affect people individually — such as decisions about eligibility for social support benefits, the assessment of taxation returns, the processing of visa applications, entry to tertiary institutions, and the evaluation of employment applications — do not adhere in any classic sense to a natural justice process. The decision-maker does not bear an obligation in the general run of cases to provide a person with advance notice that their application may be rejected and an opportunity to be heard before that decision is made. The alternative, of saying that natural justice applies to all decisions but can slide 658

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into nothingness, may be equally problematic. In summary, there is a large core of decisions affecting individuals which automatically attracts natural justice, but beyond that core it can be necessary to consider whether and how natural justice applies. For that reason this chapter devotes attention to the factors implying the obligation to accord natural justice.

Implication from multiple factors 11.2.11  An orthodox approach to statutory construction is to have regard to a variety of factors in order to determine the scope of the power and how it should be exercised. These were noted in 8.3.1ff, and include the language of the statute, the nature of the statutory power, the nature of the decision-maker, and presumptions of the common law. With some adaptation, the same approach has been adopted in many natural justice cases. The need for adaptation arises from the special character of the doctrine of natural justice, which is presumed to apply to certain types of power unless specifically excluded. The first issue that is customarily addressed in deciding if natural justice applies is whether the decision is of a kind that will individually affect a person’s right, interest or legitimate expectation. If so, it is presumed that natural justice applies, and the focus then turns to whether there is something else to displace that presumption. The ‘something else’ may be an express statutory exclusion, an alternative right of appeal, the character of the decision-maker, the criteria for making the decision or the nature of the decision. Viewed in that way, the question of whether natural justice applies becomes a process of balancing various factors, though some factors presumptively carry more weight than others. 11.2.12  The ‘multiple factors’ approach was spelt out by Gibbs  J in Salemi v  MacKellar (No 2) (1977) 137 CLR 396, developing a view put forward earlier by the Privy Council in Durayappah v Fernando [1967] 2 AC 337: In Durayappah … at 350, Lord Upjohn, delivering the reasons of the Privy Council, said that ‘there are three matters which must always be borne in mind when considering whether the principle should be applied or not’. He went on: ‘These three matters are: first, what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circumstances or upon what occasions is the person claiming to be entitled to exercise the measure of control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other.’ There may of course be other matters that will be relevant in deciding whether the principles apply: for example, the nature of the body on which the power is conferred, the language in which the power is conferred, and the presence in the statute of provisions enabling the exercise of the power to be reviewed.

11.2.13  The same approach has been adopted or illustrated in other High Court decisions. In FAI Insurances Ltd v Winneke 11.2.17C Mason J asked whether the presumption that natural justice applied to a decision not to renew a licence was displaced by ‘the nature and effect of the statutory power, the circumstances of its exercise and the fact that the power is reposed in the Governor in Council’: at 362. Justice McHugh in Miah 11.3.30C examined whether the existence of an appeal or review right displaced a presumption of natural justice. The factors he identified included the ‘nature of the original decision: preliminary or final’, ‘formalities required for original decision’, ‘urgency of original decision’, ‘nature of the appeal body’ and ‘nature of the interest and subject matter’. In both FAI and Miah the court concluded by majority that natural 659

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justice applied. A contrary result was reached in O’Shea 11.2.18C, concerning a decision that directly affected personal liberty: cf Plaintiff M61/2010E 11.2.20C. The obligation to accord natural justice in O’Shea was displaced by a combination of factors, chiefly the character of the decision-maker (cabinet and the governor in council), the criterion for the decision (the public interest) and the decision-making framework (multiple stages, with an opportunity for an adequate hearing at an earlier stage). 11.2.14  Although the description of the factors varies with the cases, there are common features. An alternative listing was provided in Workcover Corporation of South Australia v Davey (2011) 110 SASR 173 which summarised the principles as follows: Gray J (with whom Duggan and Sulan JJ agreed): The factors discussed by McHugh J in [Miah 11.2.19C] can be conveniently summarised as follows: •

•

• •

•

•

Whether the original decision is preliminary or final — the requirements of natural justice are less likely to apply to preliminary decisions. Whether the original decision is made in public or private — the requirements of natural justice are more likely to apply to decisions which are made in public. In a public hearing, a person’s reputation may be at risk of being damaged. Whether the original decision-maker must comply with formalities — where the original decision-maker is required to follow formal procedures, it can be inferred that the appeal is not the sole source of procedural fairness. Conversely, where the original decision-maker is not required to follow formal procedures or provide reasons for the decision, it can be inferred that the right of appeal excludes the requirements of procedural fairness. Whether the decision is of an urgent nature. Whether the appellate body is judicial, internal or domestic — where the appellate body is a court, it is more likely that the right of appeal is intended to limit or exclude the need for the original decision-maker to comply with the requirements of procedural fairness. Whether the breadth of the appeal is limited or is to be heard de novo — if there is to be a de novo appeal on the merits of the case, it is more likely that the original decision-maker does not need to comply with the requirements of procedural fairness, or is only required to do so to a limited extent. Whether the nature of the interest, the consequences for the individual and the subject matter of the litigation suggest that the original decision-maker would need to comply with the requirements of procedural fairness.

11.2.15  This approach, of looking at a variety of factors, is reflected in many other cases in this chapter. Some specific issues are taken up at 11.3.1ff, such as the importance of the right or interest being affected, and the statutory appeal framework. At this stage only a brief summary will be given of some relevant factors and how they are reflected in the cases.

• Right or interest: This factor is discussed in more detail at 11.3.1ff. The threshold issue is whether a decision will adversely affect a right or interest (or formerly a legitimate expectation) of a person: if not, there is no obligation to accord natural justice. Those concepts are nowadays construed broadly, as illustrated by cases which follow at 11.3.1ff.

• Statutory exclusion: The legislature can exclude the obligation to observe one or other or all of the requirements of natural justice. The guiding principle is that the legislative intention to exclude natural justice must appear from express words of plain intendment and cannot 660

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be discerned by inference or implication: Tanos at 396; see 11.2.2. A clear illustration of that principle is that the existence of a statutory code of procedure for making a decision does not necessarily evince an intention to exclude additional procedural requirements deriving from natural justice: Miah 11.2.19C. There are, however, many examples of an obligation to accord natural justice being displaced by matters falling short of an express statutory exclusion: see, for example, O’Shea 11.2.18C, Jarratt 11.1.20C, Plaintiff M61/2010E 11.2.20C, and Twist v Randwick Municipal Council 11.3.26C.

• Statutory framework for making and reviewing decision: This factor is discussed in more detail at 11.3.20–11.3.33C. The existence of a statutory procedure for reconsidering, reviewing or appealing against a decision is relevant to deciding whether and how the common law rules of natural justice apply to the primary decision. One possibility is that the statutory appeal procedure excludes or displaces an obligation to accord natural justice. Another possibility is that the statutory appeal procedure affects how natural justice is to be accorded in making the primary decision, but does not exclude altogether the obligations imposed by those rules. Yet another possibility is that the statutory appeal procedure provides the exclusive remedy for redressing a breach of natural justice. Even where the appeal procedure does not exclude the obligation to accord natural justice, an appeal pursuant to that procedure can be effective to cure an earlier breach, provided the procedures adopted are adequate: Ridge 11.1.19C. • Criteria for decision: The criteria for making a decision are identified as important in many cases. A distinction commonly drawn is between decisional criteria that focus on matters of individual merit, and those more broadly concerned with issues of public policy or general planning: see Ridge, FAI 11.2.17C and O’Shea. The decisional criteria can be of two kinds — those enacted in the statute (statutory criteria), and those formulated by the decisionmaker (factual criteria). For example, in Ridge both the statute and, necessarily, the decision were focused on the narrower question of whether Mr  Ridge was negligent or unfit in the performance of his duties. By contrast, in Kioa the statute conferred an unconfined discretionary power to deport people, yet natural justice applied because the decision was made by reference to matters personal to Mr Kioa.

• Nature of power being exercised: The focus of natural justice upon decisions that affect people directly and individually means that the doctrine is less likely to apply to some categories of power. Four examples where it did not apply are Peko 2.3.11C, concerning a prerogative decision made in the conduct of international relations; Coutts v  Commonwealth (1985) 157 CLR 91, concerning the removal of an airforce officer appointed at the pleasure of the Crown; Stewart v Ronalds (2009) 76 NSWLR 99, a decision by the Governor of New South Wales or the premier to terminate a ministerial appointment; and Bread Manufacturers of New South Wales v Evans 12.3.5C at 432, concerning a general discretionary power to set the price of bread. There has been a similar disinclination to apply a natural justice obligation to the exercise of a private law function by government, such as the termination of a lease of property: see Sydney Training Depot Snapper Island Ltd v Brown (1987) 14 ALD 464, and compare the discussion of this issue in Plaintiff M61/2010E.

• Identity of decision-maker: The identity of the decision-maker used to be important in deciding whether there is an obligation to accord natural justice. Some officials and bodies are thought less suitable for demanding procedures, or even fairness in any real sense. Thus, an obligation to accord natural justice did not apply to decisions in which cabinet was involved in Peko and O’Shea. By contrast, in FAI the court identified the involvement of the governor as a consideration that could weigh against natural justice applying, but then found 661

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that practical alternatives could be explored for providing a hearing prior to the governor’s involvement.

• Effect or impact of decision: This factor replicates matters that arise under other headings, but is still an aspect that is sometimes highlighted in deciding if natural justice applies. Durayappah 11.2.12 noted the ‘sanctions’ a decision-maker could impose as a relevant consideration. Some comments in Kioa pointed to the effect of deportation upon a person as an influential factor; liberty is another well-protected interest: Plaintiff M61/2010E. So too is the financial or commercial impact of a regulatory decision: see, for example, Willarra Pty Ltd v McVeigh (1984) 6 FCR 587. By contrast, in Peko a consideration weighing in a contrary direction was that a government decision to nominate a park for world heritage listing did not have a ‘direct and immediate effect’ on the commercial interests of a mining company.

• Circumstances that can affect whether natural justice applies: This factor is discussed in more detail at 11.3.34ff. Circumstances that can remove an obligation to provide a hearing which would otherwise apply can include the need for an urgent decision to be made, national security considerations (Commissioner of Police New South Walls v Gray (2009) 74 NSWLR 1), or the risk that providing a hearing will frustrate the objects of the statute: Kioa and CPCF v Minister for Immigration and Border Protection 11.3.38C. However, even in the context of national security, a court will look first to whether the content of natural justice can be diminished rather than total exclusion of the obligation: Leghaei v Director-General of Security (2007) 97 ALD 516; Jaffarie v Director General of Security 11.3.37C. 11.2.16C

Kioa v West (1985) 159 CLR 550; 62 ALR 321 High Court of Australia

[A delegate of the minister made a decision to deport Mr Kioa and his family, who had become prohibited immigrants liable to deportation upon the expiration of Mr Kioa’s temporary visa to study in Australia. Section 18 of the Migration Act 1958 (Cth) (Migration Act) provided: ‘The Minister may order the deportation of a person who is a prohibited immigrant under any provision of this Act’. Prior to the decision to deport being made, Mr Kioa had been interviewed and his solicitor had made a submission arguing against his removal from Australia. An internal departmental paper prepared for the delegate and which recommended that Mr Kioa be deported commented upon matters raised by Mr Kioa and his solicitor: 21. If Mr Kioa had been genuine in his desire (in Dec 1981) to seek a legitimate extension of his stay, it would have appeared likely that he might have sought a decision on his application rather than change his address without apparently notifying the Department. 22. Mr Kioa’s alleged concern for other Tongan illegal immigrants in Australia and his active involvement with other persons who are seeking to circumvent Australia’s immigration laws must be a source of concern. The High Court held by majority that the decision to deport was made in breach of natural justice and should be set aside.]

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Mason J: The case presented for the appellants is that the relevant decisions of the minister’s delegate were vitiated by failure to abide by the rules of natural justice and by a failure to have regard to relevant considerations … The appellants’ first submission is that the effect of s 5(1)(a) of the ADJR Act is to impose an obligation that the rules of natural justice be observed in relation to every decision to which the Act applies … The statutory grounds of review enumerated in s 5(1) are not new — they are a reflection in summary form of the grounds on which administrative decisions are susceptible to challenge at common law. The section is therefore to be read in the light of the common law and it should not be understood as working a challenge to common law grounds of review, except in so far as the language of the section requires it — see, for example, s 5(1)(f). It is in this respect that s 5(1) makes every decision to which it applies subject to review on the grounds stated and in so doing it may give a number of grounds a wider reach than they would have at common law. But it is not the primary object of the section to amend or alter the common law content of the various grounds. Viewed in this light, par (a) does not impose an obligation to apply the rules of natural justice where, apart from s 5, there is no obligation on a person making a decision to comply with those rules or any of them. When the paragraph prescribes a breach of the rules as a ground of review it makes no assumption that the rules apply to every decision to which the subsection relates. Under the general law it is always a question whether the rules apply and, if so, what rule or rules apply to the making of the particular decision. The language of the paragraph according to its natural and ordinary meaning is apt to import this concept of natural justice as a ground for review. The language does not manifest an intention to work a radical substantive change in the law by attaching to every decision to which s 5 applies an obligation to comply with the rules of natural justice … The appellants’ next submission is that in any event the rules of natural justice apply to the making of the decisions which are challenged in the present case. … It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it … The reference to ‘right or interest’ in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests. The reference to ‘legitimate expectation’ makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi … Barwick CJ (at 404) expressed the view that the expression ‘legitimate expectation’ adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of ‘legitimate expectation’ extends to expectations which go beyond enforceable legal rights provided that they are reasonably based (Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 508–9; FAI [11.2.17C] at 348, 351–2, 369, 412; Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 at 636). The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. In the view of some members of the court in Salemi (No 2) the ‘amnesty’ constituted an example of such an undertaking. Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI, or from the existence of a regular practice

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which the person affected can reasonably expect to continue (Council of Civil Service Unions v Minister for the Civil Service (1985) 1 AC 374 at 401). The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case. … The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn LC understood that this was the law when he spoke of the obligation to ‘fairly listen to both sides’ being ‘a duty lying upon everyone who decides anything’ (Board of Education v Rice [1911] AC 179). But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision — ‘which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a “policy” or “political” decision and is not subject to judicial review’ (Salemi at 452, per Jacobs J). Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Aust Pty Ltd v FCT (1963) 113 CLR 475, Kitto J pointed out (at 503–4) that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on ‘the particular statutory framework’. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting (National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311). In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations (cf Salemi at 451, per Jacobs J). When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.

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[His Honour reiterated the point made earlier that an obligation to observe fair procedures was no longer inconsistent with s 18 of the Migration Act following the enactment of s 13 of the ADJR Act.] But what does procedural fairness entail in its application to the exercise of the discretionary power conferred by s 18? It would be going too far to say that fairness requires that in all cases in which a deportation order is to be made notice should be given to the prohibited immigrant of the intention to make such an order and of the grounds upon which it is to be made. The Migration Act plainly contemplates that in the ordinary course of events a deportation order will be made ex parte. And the prohibited immigrant may be a person who, intent upon remaining in Australia without lawful right or title, has evaded the authorities and will continue to do so. He may even be a person who has been required under s 31A to leave, but has declined to do so. To insist that he be notified of the intention to make a deportation order would serve only to facilitate evasion and frustrate the objects of the statute. These considerations indicate that, in the case where the reason for the making of the order is that the person concerned is a prohibited immigrant, the dictates of natural justice and fairness do not require the giving of any advance notice of the proposed making of the order (Salemi at 452–3, and Ratu at 480). But it may be otherwise where the reasons for the making of the order travel beyond the fact that the person concerned is a prohibited immigrant and those reasons are personal to him, as, for example, where they relate to his conduct, health, or associations. And if the order is made in consequence of a refusal to grant a further entry permit to him, the reasons on which that refusal is based may require that as a matter of fairness the person affected should have the chance of responding to them. However, this is not to say that fairness will necessarily, or even generally, require that an applicant for a further entry permit be given an opportunity to be heard even where deportation may follow from its refusal. The grant of an entry permit is a matter of discretion. Indeed, the cancellation of a temporary entry permit is expressed to be a matter of absolute discretion (s 7(1)). In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter (Re HK (An Infant) [1967] 2 QB 617). If the application is for a further temporary entry permit and it is made in circumstances which are relevantly similar to those in which the earlier permit was granted, the applicant may have a legitimate expectation that the further entry permit will be granted or will not be refused in the absence of an opportunity to deal with the grounds on which it is to be refused. And if the refusal is to be attended by the making of a deportation order, the case for holding that procedural fairness requires that such an opportunity be given is unquestionably stronger. In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. FAI is one illustration … Of the paragraphs in the submission to the delegate of which the appellants complain, it seems to me that there are two matters only in respect of which fairness demands that the applicant should have the chance of replying. The first is the comment in para 21

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that had Mr Kioa been genuine in his desire to seek a legitimate extension of his stay in Australia he might have sought a decision on his application ‘rather than change his address without apparently notifying the Department’. The second matter is that contained in para 22, namely, the statement that Mr Kioa’s concern for other Tongan illegal immigrants and his active involvement with other persons who were seeking to circumvent Australia’s immigration laws ‘must be a source of concern’. Although the statement of reasons makes no reference to the contents of para 22, it does not disavow them. As the paragraph was extremely prejudicial, the appellants should have had the opportunity of replying to it. The other material of which the appellants complain consists of policy, comment and undisputed statements of fact. It does not call for a chance to reply. Brennan J: At base, the jurisdiction of a court judicially to review a decision made in the exercise of a statutory power on the ground that the decision-maker has not observed the principles of natural justice depends upon the legislature’s intention that observance of the principles of natural justice is a condition of the valid exercise of the power. That is clear enough when the condition is expressed; it is seen more dimly when the condition is implied, for then the condition is attributed by judicial construction of the statute. In either case, the statute determines whether the exercise of the power is conditioned on the observance of the principles of natural justice. The statute is construed, as all statutes are construed, against a background of common law notions of justice and fairness and, when the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that ‘the justice of the common law will supply the omission of the legislature’ (Cooper [11.1.18C] at 420). The true intention of the legislature is thus ascertained. When the legislature creates certain powers, the courts presume that the legislature intends the principles of natural justice to be observed in their exercise in the absence of a clear contrary intention … Observance of the principles of natural justice is a condition attached to the power whose exercise it governs. There is no free-standing common law right to be accorded natural justice by the repository of a statutory power. There is no right to be accorded natural justice which exists independently of statute and which, in the event of a contravention, can be invoked to invalidate executive action taken in due exercise of a statutory power … The supremacy of Parliament, a doctrine deeply imbedded in our constitutional law and congruent with our democratic traditions, requires the courts to declare the validity or invalidity of executive action taken in purported exercise of a statutory power in accordance with criteria expressed or implied by statute. There is no jurisdiction to declare a purported exercise of statutory power invalid for failure to comply with procedural requirements other than those expressly or impliedly prescribed by statute. The question whether a statutory power is conditioned on the observance of the principles of natural justice demands a universal answer for it is a question of construction. Such a condition governs every exercise of the power including every refusal to exercise it. It is therefore possible to state — as it was stated in Salemi and Ratu — in reference to a given statutory power that its exercise is never conditioned on the observance of the principles of natural justice. But when the exercise of a statutory power is so conditioned, regard must be had to the circumstances of the particular case to ascertain what is needed to satisfy the condition. It is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy a condition that the principles of natural justice be observed. As Barwick CJ said in Ex parte Ratu, at 465–6, ‘what would need to be done to satisfy that requirement may vary according to the circumstances, but the qualification will be universal’ …

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It is seldom possible to say that the legislature intends to exclude observance of the principles of natural justice in the exercise of a statutory power which is apt to affect individual interests and the more difficult and more frequently addressed question is what the principles of natural justice require in the particular circumstances … Tucker LJ said in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118, that there is an irreducible minimum required by the principles of natural justice, namely, that ‘the person concerned should have a reasonable opportunity of presenting his case’. If his Lordship’s view be right, it would be necessary to hold that if, in some circumstances, perhaps unusual circumstances, a power may need to be exercised peremptorily, no exercise of that power is conditioned on observance of the principles of natural justice. But it would be wrong to attribute to a legislature such an intention. Rather, the intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred … If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power. No doubt the matters to which the repository is bound or is entitled to have regard depend on the terms of the particular statute and, if there be no positive indications in its text, the subject matter, scope and purpose of the statute must be looked at to determine whether the repository is bound or is entitled to have regard to individual interests (Water Conservation and Irrigation Commission (NSW) v Browning [10.3.10C] at 505). When the repository is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised. Therefore the presumption applies to any statutory power the exercise of which is apt to affect the interests of an individual alone or apt to affect his interests in a manner which is substantially different from the manner in which its exercise is apt to affect the interests of the public. Of course, the presumption may be displaced by the text of the statute, the nature of the power and the administrative framework created by the statute within which the power is to be exercised … The legislature is not likely to intend that a statutory power of a strictly legislative nature be conditioned on the observance of the principles of natural justice for the interests of all members of the public are affected in the same way by the exercise of such a power (cf Bates v Lord Hailsham [1972] 2 All ER 1019 at 1024). But the legislature is more likely to intend the exercise of a statutory power of an executive, administrative or quasi-judicial nature to be so conditioned if an exercise of the power singles out individuals by affecting their interests in a manner substantially different from the manner in which the interests of the public at large are affected … It does not follow that the principles of natural justice require the repository of a power to give a hearing to an individual whose interests are likely to be affected by the contemplated exercise of the power in cases where the repository is not bound and does not propose to have regard to those interests in exercising the power. If the repository of the power were authorized to exercise the power in his absolute discretion without taking account of individual interests and he proposed so to exercise the power, the repository might exercise it without hearing the individuals whose interests are likely to be affected (cf Coutts v Commonwealth of Australia (1985) 157 CLR 91). But that would be an exceptional case. …

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[His Honour held that amendments to the Migration Act since the earlier decisions of the court in Salemi v MacKellar (No 2) (1977) 137 CLR 396 and R v MacKellar; Ex parte Ratu (1977) 137 CLR 461 had the effect that the interests of a prohibited immigrant and his family were now to be taken into account; the exercise of the power conferred by s 18 of the Migration Act was thus now conditioned on observance of the principles of natural justice. His Honour did not regard the enactment of s 13 of the ADJR Act as having made a material difference to whether natural justice applied to the exercise of s 18. His Honour continued:] A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise (Ridge v Baldwin [11.1.19C] per Lord Morris at 113–14). The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary at 97: ‘To “over-judicialise” the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair.’ Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. The allegation in par 22 was apparently credible, relevant and damaging. The failure to give Mr Kioa an opportunity to deal with it before making an order that Mr and Mrs Kioa be deported, left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case — neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision —which would have made it unreasonable to have given Mr and Mrs Kioa that opportunity. The failure to give Mr Kioa that opportunity amounts to a non-observance of the principles of natural justice. [Deane J held that the failure to give Mr and Mrs Kioa an opportunity to comment on para 22 and two other paras of the departmental paper constituted a breach of natural justice. Gibbs CJ dissented on two grounds: that there was no obligation to accord natural justice in making an order under s 18; and that in any event there had not been a breach of natural justice since Mr Kioa had taken the opportunity to make a submission in advance of the decision, and the departmental paper was merely an internal comment on matters raised in his submission. Wilson J delivered a judgment to the same effect as Mason J, concluding that the failure to invite comment on para 22 of the paper was a breach of natural justice. A further issue considered by some judges was whether a hearing should have been given to the Kioas’

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10-month-old child, who was born in Australia and was at that time an Australian citizen. Mason J held that it would be unreal to suggest that she should be given a hearing additional to that given to her parents; Brennan J held that it would over-judicialise the administrative process to require that she be given a separate hearing; and Deane J held that she was not separately entitled to be heard because the effect upon her of the deportation of her parents would be indirect.]

11.2.17C

FAI Insurances Ltd v Winneke (1982) 151 CLR 342; 41 ALR 1 High Court of Australia

[FAI Insurances Ltd held a licence to provide workers compensation insurance issued by the Governor in Council under the Workers Compensation Regulations 1975 (Vic). A licence was valid for 12 months: reg 201. A licence could be granted or renewed if the Governor in Council thinks fit, having regard ‘to the commitments and financial position of the applicant and in the case of renewal to the observance of these Regulations by the applicant’: reg 202(2). FAI had been licensed to provide workers compensation insurance in Victoria for 20 years. In 1981 FAI was denied renewal of its approval, principally because the government was not satisfied that the company had set aside sufficient assets to meet potential insurance claims. The High Court held by majority that the decision not to renew the approval was made in breach of natural justice, and that FAI should be given an opportunity to present a case to the minister, being the appropriate body to advise the Governor in Council.] Mason J: These appeals present for decision the important question whether the Governor is under an obligation to comply with the principles of natural justice when, acting with the advice of the Executive Council, he declines to approve an application for renewal of a workers’ compensation insurer’s licence under the Workers Compensation Act 1958 (Vic) … The fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power … The application of the rules is not limited to cases where the exercise of the power affects rights in the strict sense. It extends to the exercise of a power which affects an interest or a privilege (Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222) or which deprives a person of a ‘legitimate expectation’, to borrow the expression of Lord Denning MR in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149 at 170, in circumstances where it would not be fair to deprive him of that expectation without a hearing (Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 419) … Natural justice in its application to decisions affecting the grant, refusal, renewal and revocation of licences has been beset with complexities … It is now authoritatively established that the exercise of a power revoking a licence will attract the rules of natural justice, certainly when the revocation results in the loss of a right to earn a livelihood or to carry on a financially rewarding activity … On the other hand, there has been a greater reluctance to insist upon the application of natural justice when power is exercised to grant or refuse an initial application for a licence. Generally speaking, in such a case the issues are not clearly defined; they often involve policy issues; and, though they raise the general suitability of the applicant to hold a licence, they do not often generate allegations of past misconduct.

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Here we are concerned with 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 … [D]e Smith’s Judicial Review of Administrative Action, 4th ed (1980) 223–24, … after observing that non-renewal is usually a more serious matter than refusal to grant a licence in the first place, goes on to say: Unless the licensee has already been given to understand when he was granted the licence that renewal is not to be expected, non-renewal may seriously upset his plans, cause him economic loss and perhaps cast a slur on his reputation. It may therefore be right to imply a duty to hear before a decision not to renew when there is a legitimate expectation of renewal, even though no such duty is implied in the making of the original decision to grant or refuse the licence. The distinction was accepted and applied in McInnes v Onslow-Fane [1978] 1 WLR 1520. There Megarry VC, speaking of the differences between ‘expectation cases’ (which include nonrenewal of licences) and ‘forfeiture cases’ (which include revocation of licences), said at 1529: The intermediate category, that of the expectation cases, may at least in some respects be regarded as being more akin to the forfeiture cases than the application cases; for although in form there is no forfeiture but merely an attempt at acquisition that fails, the legitimate expectation of a renewal of the licence … is one which raises the question of what it is that has happened to make the applicant unsuitable for the … licence for which he was previously thought suitable … Our starting point then is that an applicant for renewal of a licence generally has a legitimate expectation that his licence will be renewed when the statutory power is entrusted to a statutory authority. Does the appellant here have a similar legitimate expectation that its approval will be renewed? The answer to this question depends on the nature and effect of the statutory power, the circumstances of its exercise and the fact that the power is reposed in the Governor in Council … The fact that the statute confers an unfettered discretion has frequently been regarded as an indication that the rules of natural justice have no application … [There is support for the view] that even in the case of a wide discretion the repository may be under a duty to receive representations before arriving at a decision and that this is more likely to be the situation where the decision turns on ‘findings of adjudicative facts or the interpretation or application of decisional criteria of greater specificity than those contained in the statute’ (de Smith at p 186). In saying that the Governor in Council had an unfettered discretion the Full Court [of the Supreme Court of Victoria] appears to have thought that the discretion was not examinable or reviewable because a discretion vested in the Governor in Council is generally immune from judicial review and more especially because the Governor is bound to act, and act only, upon the advice of a Minister or the Cabinet. Consequently, the decision which is made is not made by the Governor but is predetermined by the advice which is tendered to him. Any decision which he might make independently of that advice is irrelevant, so the argument runs. [Mason J referred to R v Toohey; Ex parte Northern Land Council 10.2.13C, which held that an exercise of a statutory discretion by the Crown is reviewable for ultra vires and improper purpose. His Honour noted that by convention the governor normally acts in accordance with the advice tendered by the Executive Council, and that neither a minister nor the governor is permitted to exceed the scope of statutory authority conferred upon them.]

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Once the true relationship between the Governor and the Executive Council is understood, it becomes apparent that the doctrines of ministerial and collective responsibility provide no objection to the application of the rules of natural justice to the exercise of a discretion by the Governor in Council. As the Governor ultimately acts in accordance with advice tendered to him, the final decision is not a decision for which he has to account. The effective decision is that of the Executive Council or the Minister. It is the government and the Minister who are responsible for that decision to the Parliament and to the electorate. The related argument that the Governor in Council is intrinsically unsuited to making an inquiry of the kind suggested is best left for later consideration. At this stage it is enough to say that, having regard to the relationship between the Governor, the Executive Council and the responsible Minister, procedures could be devised for the making of any relevant inquiry and recommendation by the Minister or by a committee of the Executive Council, if the latter course should be considered desirable. The next question is one of statutory construction. Does the statute entrust the Governor in Council with an absolute discretion or a discretion subject to some limitations? Whether a particular exercise of discretion by the Governor in Council is subject to judicial review is a question of construction the answer to which will depend on a variety of considerations including the nature, width and subject matter of the discretion and the peculiar character of the Governor in Council as the chosen repository of it. [Mason J discussed the Act and regulations.] The consequence is that the discretion is not absolute. The Governor in Council is required to have regard to the commitments and financial position of the appellant and, as will appear later, by implication, to arrive at a conclusion with respect to those matters, which are central to the appellant’s fitness to hold a licence. Quite apart from reg 202(2), the court will not ordinarily regard a statutory discretion the exercise of which will affect the rights of a citizen as absolute and unfettered. If Parliament intends to make such a discretion absolute and unfettered it should do so by a very plain expression of its intent … The mere fact that [the Governor] is the repository of the discretion does not warrant the implication that the discretion is entirely at large. For these reasons I do not accept the view that the statutory discretion given to the Governor in Council is absolute or unlimited. I concede that an exercise of discretion may involve policy issues, eg the possible need to limit the number of licences as a means of ensuring that unrestricted competition will not result in unacceptable underwriting losses leading to inability of insurers to meet their commitments … But it is not suggested that any such issue arose in the present case. At all times the central question seems to have been, as one would expect it to be in cases of application for the renewal of a licence: Was the applicant a fit and proper person to act as a workers compensation insurer? The answer to this question seems to have turned on a view taken as to the commitments and financial position of the appellant, based on the particular matters referred to by the Minister. In these circumstances the appellant 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. We are left with the argument that the Governor acting with the advice of the Executive Council is intrinsically unsuited to the making of an inquiry of the kind suggested. [Mason J referred to the formal nature of the council, its heavy workload, and that it is not adapted to holding judicial-type hearings.] [T]he court should be less inclined to hold that the Governor in Council is under an obligation to comply with the rules of natural justice than it

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would in the case of a statutory officer had a similar discretion been entrusted to him. It is less, perhaps much less, likely that Parliament intends the Governor in Council to be under such an obligation. But where, as here, the function reposed in the Governor in Council, that of granting or refusing an application by an individual for the renewal of approval to act as an insurer — a matter to be decided in the circumstances of this case, not on issues of general policy, but principally, if not exclusively, by reference to the financial position and commitments of the applicant — would unquestionably attract a duty to comply with the rules of natural justice had it been reposed in a statutory officer, the difference in the nature and character of the Governor in Council is not sufficient, in my opinion, to deny the existence of some duty to accord natural justice, though the difference will be reflected in the content of the duty and what is to be expected by way of discharge of the duty, it being accepted now that the content of the duty varies with the particular circumstances of the case. [His Honour went on to find that the Governor in Council could delegate to the responsible minister or a committee of ministers the function of considering and reporting on a written submission presented by FAI on matters alleged to be relevant.] To conclude that the Governor in Council may be under a duty to accord natural justice is to provide another instance of the application of judicial review to the exercise by the Governor in Council of a statutory discretion … It is a conclusion which offers some protection to the citizen against the legislative practice of conferring statutory discretions on a Governor in Council instead of the Minister or a statutory officer in the hope of thereby avoiding judicial review, particularly for want of compliance with the rules of natural justice, in circumstances where the legislature does not directly dispense with the duty to accord natural justice. [Gibbs CJ, Stephen, Aickin, Wilson and Brennan JJ delivered concurring judgments. Murphy J dissented, holding that the function conferred upon the Governor in Council was ‘intended to be an executive matter not subject to judicial review’, and that ‘holding that a Minister’s recommendation to Council is subject to declaratory orders has startling implications’: at 375.]

11.2.18C

South Australia v O’Shea (1987) 163 CLR 378; 73 ALR 1; 13 ALD 747 High Court of Australia

[Mr O’Shea was sentenced to a period of indefinite detention under the Criminal Law Consolidation Act 1935 (SA) upon conviction of sexual offences against children. There was a three-tiered administrative scheme for the release of offenders: medical examination, board recommendation and a decision by the Governor in Council. The board could make a favourable recommendation if two medical practitioners recommended that the person was ‘fit to be released’: Correctional Services Act 1982 (SA) s 64. There was a right to be released if the Governor in Council is ‘satisfied, on the recommendation of the Parole Board’ that the person ‘is fit to be at liberty and terminates his detention’: s 77a(3)(b)(i). After conducting a hearing attended by Mr O’Shea and his legal counsel, and receiving the advice of two medical practitioners, the parole board recommended that Mr O’Shea be released. The recommendation and report were considered by the Cabinet, which recommended to the Governor that Mr O’Shea not be released. The Governor accepted Cabinet’s recommendation.

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Mr O’Shea commenced proceedings, claiming that he should have been given an opportunity to put his case to the Governor before a decision was made. The High Court by majority rejected the claim.] Mason CJ: [I]t is necessary to take account of a constitutional practice which is followed in South Australia. Recommendations to the Governor in Council are based on a Cabinet decision, not on a decision by the responsible Minister. The participation by Cabinet in the decision-making process generates two important objections to the existence of a duty to act fairly. First, it is said, Cabinet is a political institution primarily concerned with the ‘political, economic and social concerns of the moment’: Attorney-General of Canada v Inuit Tapirisat of Canada (1980) 115 DLR (3d) 1 at 17. So it is, but in some instances Cabinet is called upon to decide questions which are much more closely related to justice to the individual than with political, social and economic concerns. The fact that Cabinet ordinarily directs its attention to concerns of this kind is not a reason for denying the existence of a duty to act fairly in a matter which turns not on such concerns, but on considerations peculiar to the individual. A Minister is to some extent, like Cabinet, concerned to make political judgments. Yet in appropriate cases he will be subject to a duty to act fairly. The second objection is that Cabinet holds its meetings in private, that its proceedings are confidential and that it does not give reasons for its decisions. The strength of this objection is that it makes it extremely difficult, if not impossible, for the courts to dictate to Cabinet the mode in which it should consider a matter coming before it. It could scarcely be supposed that a court could require Cabinet to give particulars to an interested person of its possible objections to his application or submission so that he might meet them or that a court could pronounce a decision invalid because Cabinet had not given such particulars. Nor would a court ordinarily require the Minister to disclose his submission to Cabinet, because to do so would compel disclosure of material considered by Cabinet. But I can find no persuasive reason why the courts should not, in an appropriate case, require as an incident of natural justice or the exercise of a duty to act fairly that there be placed before Cabinet by the responsible Minister the written submissions of the individual affected by the decision to be made or an accurate summary of such submissions. Such a requirement could not amount to an intrusion into Cabinet’s control of its own proceedings and it would in all probability conform to existing practice. If at some later stage it were to appear that the Parliament was entrusting the Governor in Council with the making of decisions affecting individuals so as to avoid the need to act fairly the court might be compelled to go further, but at this stage such a course is not warranted. In the making of a decision under s 77a of the Act the public interest is plainly a relevant consideration. Even if all the medical opinions support a recommendation by the Board for release the Cabinet in tendering advice to the Governor in Council may conclude that none the less in the public interest the offender should not be released because in the light of his history, his release would entail a level of risk that is unacceptable. The Solicitor-General submits that the assessment of what is in the public interest involves an element of policy or political judgment. [Mason J noted that the likely reaction of the community to the release of an offender was a relevant consideration.] I would reject the argument that, because this notion of public interest involves some aspects of political or policy judgment, it lies outside the ambit of the doctrine of natural justice or the duty to act fairly. True it is that the courts do not substitute their view of policy for that prescribed by the Executive, but this does not mean that policy issues stand apart from procedural fairness. Although it is unrealistic and impractical

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to insist on a person having the opportunity to present submissions on matters of high level general policy, the same considerations do not apply to the impact of policy on the individual and to those aspects of policy which are closely related to the circumstances of the particular case and that is the case here. [Mason CJ referred to the scheme in s 77a of the Act, noting that it provided Mr O’Shea with a sufficient opportunity to present his case; and that if at a later stage some new matter was to be taken into account he could be given an opportunity specifically to deal with it.] The critical narrow question is whether Mr O’Shea has had an adequate opportunity of presenting submissions on the question of public interest. As I see it, the scope of the Board’s discretion in making its recommendation under s 77a(3)(b) is as wide as the Governor in Council’s discretion under the same provision. The Board therefore had authority to consider any submission Mr O’Shea wished to make on the matter of public interest and to deal with it in the report containing the recommendation that he be released, so that the submission and the Board’s evaluation of it goes forward to Cabinet and the Governor in Council. Wilson and Toohey JJ: The nature of the decision of the Governor stands in contrast to that of the Board. For its part, the Board, assisted by medical reports, draws on the expert qualifications and experience of its members in law, criminology and medicine in determining whether an offender detained under s 77a of the Criminal Law Act is fit to be at liberty or should be released on licence subject to certain terms and conditions. Clearly, the legislature believes that, without more, the recommendation of the Board may not offer sufficient protection to the community. The operative decision, given the provision of expert medical opinion supported by the judgment of the Board, is reserved to a political institution, the Governor in Executive Council … [T]he duality of the legislative scheme embodied in s 77a of the Criminal Law Act characterises the Governor’s decision as an expression of an unfettered discretion as to what the public interest requires in the instant case. It may be that a system of judicial review would ensure greater protection for the individual than the present scheme, but that is not what the legislature has provided. The Correctional Services Act expressly secures procedural fairness to Mr O’Shea in the course of the Board’s consideration of his case. But beyond that he is in the hands of the government, which must accept political responsibility for his release. Given the nature of this decision, it cannot be said that Mr O’Shea could have more than a hope that the Governor would be prepared to act on the recommendation of the Board. Hope, of itself, is not sufficient to ground an expectation that will attract legal consequences. So far as the concept of legitimate expectation is concerned, Mr O’Shea must be taken to know that the Act committed to the Governor, with the advice and consent of the Executive Council, the responsibility for determining where the public interest lay. He would also know that the reservations expressed in the medical reports and implied in the stringent conditions recommended by the Board would be likely to give the Governor and the members of the Executive Council cause for anxious consideration as to whether to release Mr O’Shea. The nature of the decision that they were required to make was such that participation by Mr O’Shea was inappropriate. Further support for that view is to be gained from a consideration of the practical difficulties of allowing representations to be made by Mr O’Shea. [Their Honours referred to the secrecy of Cabinet deliberations, which meant that Mr O’Shea would not be entitled to be told in advance either the minister’s recommendation to Cabinet nor Cabinet’s recommendation to the governor.] There is no suggestion that the Minister, on receiving the Board’s report,

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gathered additional material personal to Mr O’Shea which turned the scales against him. If that happened in a particular case, the Minister would be obliged to send the matter back to the Board so that the additional material could receive its consideration … In the end the decision of the Governor and his advisers will turn on whether, in the light of the Board’s report, it is seen to be in the public interest to act on the recommendation of the Board. [Their Honours distinguished FAI 11.2.17C on the basis that Cabinet was not involved in the decision in that case, the decision was based on factual considerations particular to FAI, and FAI had not had a prior opportunity to put a case.] Brennan J: A need for a further hearing by a repository of a power after a hearing by an expert Board may arise if, in the particular circumstances, the interests of a party are affected by some new fact or matter which the decision-maker proposes to take into account and which the party has had no opportunity to deal with … But there does not have to be a further hearing on matters of policy alone. If a statute provides for the facts relevant to a decision to be ascertained and evaluated by a Board and for the Board to report and make a recommendation to the decision-maker, prima facie there is no room for an implication that the power to make the decision is conditioned on the giving of an opportunity for a further hearing. To impose such a condition without statutory warrant would be to force a judicial model on the administrative process … Under the Act, an offender does not have to be heard by the Minister as to the level of community risk which should be accepted consistently with the public interest in releasing persons who have been declared incapable of controlling their sexual instincts. The public interest in this context is a matter of political responsibility … and the Minister is not bound to hear an individual before formulating or applying a general policy or exercising a discretion in the particular case by reference to the interests of the general public, even when the decision affects the individual’s interests. When we reach the area of ministerial policy giving effect to the general public interest, we enter the political field. In that field a Minister or a Cabinet may determine general policy or the interests of the general public free of procedural constraints; he is or they are confined only by the limits otherwise expressed or implied by statute … [Deane J dissented on the basis that as Mr O’Shea’s liberty was involved, he had a legitimate expectation of being released on licence once he had a favourable recommendation at the first two stages and should, accordingly, have been provided with natural justice by the Governor in Council, which could ‘make such adjustments to its proceedings as are necessary to permit observance of the minimum standards of procedural fairness’: at 420].

11.2.19C Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238 High Court of Australia [At issue was whether the provisions of the Migration Act excluded the application of the common law rules of natural justice to decisions on visa applications. The minister listed the features of the Act which together had that effect. First, Subdiv AB of the Act, which was described in its heading as a ‘Code of procedure for dealing fairly, efficiently and quickly with visa applications’, specified the procedures to be followed by a decision-maker in assessing an application. Section 54 provided that a decision may be made ‘without giving the applicant

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an opportunity to make oral or written submissions’; and s 57 provided that the decision-maker must invite the applicant to comment on information relevant to the decision that ‘is specifically about the applicant … and is not just about a class of persons of which the applicant … is a member’. Second, s 69 of the Act provided that a failure to comply with a requirement of Subdiv AB ‘does not mean that a decision … to refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed’ by the Refugee Review Tribunal (RRT). Section 69 restricted action by the decisionmaker to compliance with Subdiv AB. Third, Pt 7 of the Act provided that a person refused a visa could seek review of the decision by the RRT, which could undertake merit review of the decision and substitute a decision and grant a visa. Lastly, the explanatory memorandum to the Bill enacting Subdiv AB stated that it ‘provides a code for decision-making to replace the current common law rules of natural justice’ and aims to ‘replace the uncodified principles of natural justice with clear and fixed procedures which are drawn from those principles’. Mr Miah was refused a protection visa, in part because of a change of government in Bangladesh since he lodged his visa application. Mr Miah’s solicitor failed to lodge an appeal to the RRT within the statutory time limit and as an alternative, Mr Miah commenced proceedings in the High Court under s 75(v) of the Constitution, claiming breach of natural justice for failing to give him an opportunity to comment on the information about the political changes in Bangladesh. The High Court by majority upheld the challenge, holding that the Act did not exclude the rules of natural justice. (The portion of McHugh J’s judgment rejecting the argument that the right of appeal to the RRT evinced a legislative intention to exclude natural justice is dealt with in 11.3.30C.)] Gleeson CJ and Hayne J (dissenting): In Kioa [11.2.16C] at 612, Brennan J said: To ascertain what must be done to comply with the principles of natural justice in a particular case, the starting point is the statute creating the power. By construing the statute, one ascertains not only whether the power is conditioned on observance of the principles of natural justice but also whether there are any special procedural steps which, being prescribed by statute, extend or restrict what the principles of natural justice would otherwise require. In considering the scheme of legislation relating to the exercise of a particular kind of power, it is necessary to pay regard to the practical context in which the decision-maker must consider whether to exercise the power. This may be of particular importance where, as here, the complaint is of a failure by the decision-maker to communicate something to an affected person before a decision is made. It is the potential for a decision to affect rights, interests, or legitimate expectations, that attracts the requirement of procedural fairness. But decisions of that character are made in varying contexts. Here we are concerned with a decision to be made following a formal application. The nature, and extent, of communication between applicant and decision-maker that is in contemplation, in such a general context, will vary. At one extreme, an application may be made to a judicial decision-maker, in a context in which curial standards of procedural fairness will apply to the fullest extent. Even in such a case, fairness does not require a judicial officer to make a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure. Most administrative decisions are made in circumstances where a much less formal and extensive form of communication than that which occurs in a court is contemplated. In many cases, it is not contemplated that the applicant will either see, or hear anything from, the decision-maker before the decision is made …

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The specificity with which the procedure to be followed is prescribed by the legislation is also to be considered in the context of a visa applicant’s right to apply for a full merits review, by the Tribunal (under Part 7 of the Act) or the Immigration Review Tribunal, of an adverse decision. As the somewhat different approaches in the reasons for judgment in Twist [11.3.26C] demonstrate, the legal significance of a full right of appeal from an administrative decision in relation to the decision-maker’s duty to give a fair hearing may have a number of aspects. It does not require a conclusion that the decision-maker is not bound to accord procedural fairness. But it may be material, both as to that question and as to the question of the practical content of the requirements of fairness. In the present case, the Act does not dispense with requirements of fairness. On the contrary, it specifies procedures to be adopted in the interests of fairness, having regard also to what Parliament saw as the interests of efficiency and speed. In considering the procedures set out in the statute, it is material to note both that the delegate was required to give reasons for his decision, and that the prosecutor was entitled to a full merits review of the decision and to a hearing on that review … [Their Honours discussed the provisions of the Act, commenting that in one sense at least it was not a comprehensive statement of the requirements of natural justice. Specifically, it did not contain ‘plain words of necessary intendment’ to exclude the rule against bias, actual or apparent.] The true construction of the statute will determine not only whether the rules of natural justice apply, but also what those rules require (Kioa … at 610 per Brennan J). In some cases, a statute may have little or nothing to say about the second question, and its provisions may merely constitute the background against which a court is to determine the practical requirements of fairness. But that is not this case. Where, as in the present case, the statute addresses the subject of procedure with particularity, manifesting an intention to address in detail the presently relevant requirements of procedural fairness, then the intention of Parliament as to the issue that has arisen will be decisive. The provisions of s 54(3), read subject to … ss 56 and 57, and read together with s 69, show a clear intention that the decision-maker is not required to invite submissions on a matter regarded as potentially adverse to an applicant’s case, whether the matter is based on a change in circumstances since the application or on any other relevant consideration. The prosecutor has not shown that the exercise of the power to refuse to grant the visa was subject to a condition that has not been fulfilled, or that the decision of the delegate was made in excess of jurisdiction. Gaudron J: Two views have emerged in the decided cases with respect to the obligation of an administrative decision-maker to act in accordance with the rules of natural justice. In Kioa v West at 584, Mason J identified the obligation as ‘a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention’. On the other hand, Brennan J, in the same case, identified the rules of natural justice as an implication to be drawn from the legislation conferring decision-making authority (at 614–15). The difference between the two views may not be as great as might at first appear ([Aala 17.1.11C] at 264–65 per Hayne J). Thus, in Annetts v McCann, Brennan J explained that the implication arises because ‘the common law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power’ ((1990) 170 CLR 596 at 604).

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Whether the rules of natural justice derive from the common law or whether they are implied by the common law, the question that presently arises is not whether subdiv AB constitutes a code. Rather, if natural justice is a common law duty, the question is whether the provisions of that subdivision manifest a clear intention that that duty be excluded. On the other hand, if the rules of natural justice are seen as implied by the common law, the question is whether the provisions of subdiv AB manifest an intention that that implication not be made. Whatever approach is adopted, in the end the question is whether the legislation, ‘on its proper construction, relevantly (and validly) limit[s] or extinguish[es] [the] obligation to accord procedural fairness’ (Aala at 231 per Gaudron and Gummow JJ) … The only indication of the matters which are to inform the decision of the Minister whether or not to seek submissions or further information from the applicant is to be found in the heading to subdiv AB, namely ‘dealing fairly, efficiently and quickly with visa applications’. That being so, those powers are to be exercised to ensure procedural fairness, albeit in a manner that is quick and efficient. Accordingly, the obligation to accord procedural fairness is not excluded by subdiv AB. Once it is accepted that the Minister’s power to invite submissions or further information is to be exercised to ensure procedural fairness, the fact that the Act confers a right of review by the Refugee Review Tribunal becomes irrelevant. The existence of a right of review cannot deprive the provisions of subdiv AB of the meaning and effect which the heading to that subdivision directs (Twist …) … … So far as concerns s 69(1) of the Act, there is nothing in that provision to indicate an intention to preclude this Court from exercising its jurisdiction under s 75(v) of the Constitution. It is now clear that breach of the rules of natural justice will ground relief under s 75(v) (see … Aala). That being so, if legislation does not exclude those rules, it cannot validly exclude the jurisdiction to grant relief for their breach that is conferred on this Court by s 75(v) … [Section 69] says nothing as to an applicant’s statutory or constitutional rights to have a decision reviewed. McHugh J: [His Honour quoted with approval the principle that natural justice was not to be excluded by ‘indirect references, uncertain inferences or equivocal considerations’ (Annetts v McCann at 598, citing Tanos 11.2.2 at 396), nor by the statutory provisions of some elements of natural justice.] It is highly improbable that the legislature intended to exclude all the common law requirements of natural justice from subdiv AB. There are no clear words to that effect. Where Parliament has wanted to exclude common law rules from applying to the administration of the Act, it has not hesitated to do so in clear words. Moreover, subdiv AB is headed ‘Code of procedure for dealing fairly, efficiently and quickly with visa applications’ (emphasis added). It therefore assumes that the ‘code’ will operate fairly. The subdivision sets out various formal procedures which the Minister may or must follow to ensure fairness to applicants. But subdiv AB does not declare that they exhaustively define the content of fair procedure. The subject matter of the Act, the fact that it implements Australia’s international obligations, and the omission of words unambiguously pointing to an intention to exclude all the common law rules of natural justice indicate that the exercise of power under subdiv AB is conditioned on the observance of those rules except where the provisions of the Act specifically supersede them. Once it is acknowledged that there is a general duty to accord natural justice to an applicant applying for a protection visa, the inquiry drops from a matter of general principle to the particular. [His Honour discussed the principle that the content of the natural justice rules is flexible and depends on the circumstances of the case in the statutory framework.]

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The starting point for determining the content of the duty to accord natural justice is therefore the statutory context. The respondents contend that three features of the Act demonstrate that Parliament did not require the delegate to give the prosecutor an opportunity to deal with the results of the election. They are (1) that subdiv AB is a ‘code’ which cannot be supplemented, (2) that s 69 of the Act precludes the relief sought, and (3) that the prosecutor had the right to a full de novo appeal to the Tribunal. … The rules of natural justice are flexible and adaptable to the particular circumstances of each case … [T]hey required the delegate, in exercising power under subdiv AB, to inform the prosecutor that he was contemplating using information about the election results and to offer the prosecutor an opportunity to comment. There was, accordingly, a breach of the rules of natural justice. The ‘code’ argument fails … [McHugh J agreed with Gaudron J as to ‘the s 69 argument’. His Honour’s reasons for holding that ‘the right of appeal argument’ failed are given in 11.3.30C.] Kirby J: [His Honour delivered a judgment to the same effect as Gaudron J and McHugh J, observing:]  [B]ecause the obligation to conform to the rules of natural justice is so deeply entrenched in the assumptions upon which our law is based, it can normally be treated as implicit in legislation enacted by the Parliament. It would require much clearer words than exist in Subdiv AB to convince me that the provisions of the Code exhaust the applicable rules of natural justice, although not mentioned and however important such requirements might be in the particular case … [A] constitutional consideration reinforces this conclusion. The fact that relief may be granted by this Court, pursuant to s 75(v) of the Constitution, suggests that truly fundamental obligations of natural justice, otherwise imposed on the decision-maker by law, are not excluded by provisions such as are contained in the Code. [Note: In response to the decision of the High Court in Miah, Parliament enacted the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) which contained several sections declaring that other provisions of the Act are ‘taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with’: see ss 51A, 97A, 118A, 127A, 357A, 422B. This step has been accepted as an effective ouster of the common law rules of natural justice (Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214), but only if the breach does not amount to a jurisdictional error: Saeed v Minister for Immigration and Citizenship 11.3.31C; see also 16.3.7.]

11.2.20C

Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 High Court of Australia

[The plaintiffs, citizens of Sri Lanka, were ‘unlawful non-citizens’ and ‘offshore entry persons’ having arrived by boat at Christmas Island without a visa. Christmas Island is an ‘excised offshore place’ under the Migration Act. They were detained pursuant to s 189(3) of the Act. Each plaintiff claimed a well-founded fear of persecution and that they were individuals to whom ‘Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’.

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As unlawful offshore entrants, s 46A of the Act prevented them applying for any visa, including a protection visa, unless the minister decided that it was in the public interest to allow them to make an application (s 46A) or to grant them a visa (s 195A), that is, to ‘lift the bar’. This power must be exercised by the minister personally but the minister is under no duty to do so. The power involves two steps: to consider whether to lift the bar; and second, to permit an application or grant a visa. The two sections were inserted into the Act in 2001 and as the High Court noted in Plaintiff M61/2010 ‘are to be seen as reflecting a legislative intention to adhere to … Australia’s obligations under the Refugees Convention and the Refugees Protocol’: at 341. These provisions appeared to deny that the minister had any obligations, accepted by Australia, to comply with the Refugees Convention and its Protocol. However, since 2008, the Act had included a Refugee Status Assessment (RSA) process and an Independent Merits Review (IMR) process. These provided that departmental officers and independent contractors respectively could advise the minister on whether to permit unlawful non-citizens to make an application if Australia’s protection obligations were engaged. There were manuals setting out the RSA and IMR processes. Each manual described the processes as ‘non-statutory’ and that those conducting the RSA and IMR processes were not bound by the migration legislation and relevant case law. They also stated that provisions in the Act concerning the definition of a ‘refugee’ and Australia’s protection obligations were to guide officers ‘as a matter of policy’. The relevant departmental officers decided Australia owed neither plaintiff protection obligations, a decision affirmed by the IMR. The plaintiffs brought proceedings in the High Court in its original jurisdiction. They claimed breach of natural justice and that the decision-makers had committed errors of law by treating the provisions of the Act as a non-binding guide. In response, the minister submitted that the inquiries were made in the exercise of non-statutory executive power and there was no obligation on the departmental officers or independent reviewers to afford procedural fairness. The High Court unanimously found that the detention of the plaintiffs was lawful in relation to whether the minister had properly considered whether to lift the bar. However, the court also found that the powers were exercised under the Act and that there had been breach of natural justice and errors of law, and made a declaration accordingly.] French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ: The most important of the steps that lead to these conclusions can be summarised as follows: (a) Because the minister has decided to consider exercising power under either s 46A or s 195A of the Migration Act in every case where an offshore entry person claims to be a person to whom Australia owes protection obligations, the RSA and IMR processes taken in respect of each plaintiff were steps taken under and for the purposes of the Migration Act. (b) Because making the inquiries prolonged the plaintiffs’ detention, the rights and interests of the plaintiffs to freedom from detention at the behest of the Australian executive were directly affected, and those who made the inquiries were bound to act according to law, affording procedural fairness to the plaintiffs whose liberty was thus constrained. (c) The inquiries were not made according to law and were not procedurally fair. (d) Because the minister is not bound to consider exercising either of the relevant powers, mandamus will not issue to compel consideration, and certiorari would have no practical utility. But in the circumstances of each case, a declaration should be made to the effect described earlier. …

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[T]he question — what power was exercised when Refugee Status Assessments and Independent Merits Reviews were conducted with respect to each plaintiff? — becomes was it, as the Commonwealth submitted, no more than a non-statutory executive power to inquire? Was it … an exercise of power under s 46A or s 95A? Power The following six considerations bear upon the issue. First, the powers under ss 46A and 195A may only be exercised by the minister personally. Second, the assessment and review were made in consequence of a ministerial direction. Third, in the circumstances of these cases, the continued detention of an offshore entry person, while an assessment and review were conducted, was lawful only because the relevant assessment and review were directed to whether powers under either s 46A or s 195A could or should be exercised. … [The court noted the first three matters were the most significant.] They are the most important because they present not only an apparent tension between considerations, but also the means of resolving that tension. There is an appearance of tension between the first consideration (that the statute requires that the relevant powers to lift the bar under s 46A, or grant a visa under s 195A, can only be exercised by the minister personally) and the third (the lawfulness of continued detention for the purposes of inquiry). There is the appearance of tension between those considerations because together they invite the question: how could continued detention under the Migration Act be lawful if what prolongs the detention (the department making inquiries) has no statutory footing? Yet a central contention of the Commonwealth and the minister was that the inquiries which were made, and which necessarily prolonged each plaintiff’s detention, were not made under statute. It is not readily to be supposed that a statutory power to detain a person permits continuation of that detention at the unconstrained discretion of the executive. Yet a proposition of that kind lay at the heart of the submissions advanced on behalf of the Commonwealth and the minister. The Commonwealth and the minister submitted that detention of an offshore entry person was permitted while the officer detaining the person awaited the possibility of the exercise of power under either s 46A or s 195A. That is, the obligation to bring to an end the detention of an unlawful non-citizen who is covered by s 193(1)(c), who has not subsequently been immigration cleared, and who has not made (and cannot make) a valid application for a visa, by removing that person from Australia as soon as reasonably practicable, was said to be suspended for so long as there remains a possibility (presumably a reasonable possibility) of an exercise of power under s 46A or s 195A. Several points may be made about this proposition. First, the existence of any relevant possibility is wholly within the control of the executive. It follows that the period of an individual’s detention would be wholly within the control of the executive. Second, deciding whether there is a relevant possibility of the exercise of power under either s 46A or s 195A would require some prediction of the likelihood of the exercise of a personal non-compellable power. A criterion of that kind is a very uncertain basis for determining whether detention is lawful or unlawful. Such a construction of the relevant provision should not be adopted unless no other construction is reasonably open. Instead, accommodation of the provisions governing detention and its duration, with what is done in relation to the possible exercise of power under ss 46A and 195A, must seek a firmer statutory foundation. In these cases, that foundation is revealed by recognising the significance of the second matter that has been identified: that the inquiries that are made for the purposes of both the RSA and IMR processes are made in consequence of the decision announced in July 2008. There would

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otherwise appear to be an irreducible tension between the exercise of a statutory power to detain in a way that prolongs detention, because inquiries are being made, and those inquiries having no statutory foundation. This tension does not arise if the decision to establish and implement the RSA and IMR procedures, announced by the minister, is understood not just as a direction to provide the minister with advice about whether power under s 46A or s 195A can or should be exercised, but as a decision by the minister to consider whether to exercise either of those powers in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations. … Rights or interests affected? [The court, having found that the source of the power was statutory, went on:] Contrary to the submissions of the Commonwealth and the minister, the minister’s decision to consider whether power should be exercised under either s 46A or s 195A directly affected the rights and interests of those who were the subject of assessment or review. It affected their rights and interests directly because the decision to consider the exercise of those powers, with the consequential need to make inquiries, prolonged their detention for so long as the assessment and any necessary review took to complete. That price of prolongation of detention is a price which some claimants may have paid without protest. After all, they sought entry to Australia and this was the only way of achieving that end. And they claimed that return to their country of nationality entailed a real risk of persecution. But even if it were the fact that individuals were content to have detention prolonged, that must not obscure that what was being done, for the purposes of considering the exercise of a statutory power, had the consequence of depriving them of their liberty for longer than would otherwise have been the case. Because the minister was not bound to exercise power under either s 46A or s 195A, no matter what conclusion was reached in the assessment or review, it cannot be said that a decision to consider exercising the power affected some right of the offshore entry person to a particular outcome. The offshore entry person had no right to have the minister decide to exercise the power or, if the assessment or review were favourable, to have the minister exercise one of the relevant powers in his or her favour. Nonetheless, once it is decided that the assessment and review processes were undertaken for the purpose of the minister considering whether to exercise power under either s 46A or s 195A, it follows from the consequence upon the claimant’s liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions. The right of a claimant to liberty from restraint at the behest of the Australian executive is directly affected. The claimant is detained for the purposes of permitting the minister to be informed of matters that the minister has required to be examined as bearing upon whether the power will be exercised. The minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant’s liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as ‘conditioned on the observance of the principles of natural justice’. Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied. …

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11.3.3C

THE HEARING RULE — SPECIAL FACTORS The right or interest affected by a decision 11.3.1  Many of the foundation cases speak of natural justice applying where a decision affects a person’s right, interest or legitimate expectation. In Kioa 11.2.16C , Brennan J referred several times to this as the ‘threshold question’. The more contemporary description is that natural justice presumptively applies if the exercise of a statutory power is ‘apt to affect an interest of an individual’: SZSSJ 11.2.9. An allied distinction drawn in the cases is that the required interest in or level of affectation by the decision is not present if people are simply affected indirectly, as members of the community. In other words, if a decision affects the community in general but no-one in particular, a member of the community cannot usually show the required ‘individual affectation’. Another distinction drawn in FAI 11.2.17C is between, on the one hand, the rejection of an application or denial of a hope or advantage and, on the other hand, the cancellation or refusal to renew an existing entitlement. In past times, this approach meant that natural justice generally applies to the latter but not the former. Natural justice is now accepted as usually applicable to both. 11.3.2  Current terminology and distinctions build on the notion that the concept of a ‘right, interest or expectation’ is to be construed broadly. Thus, in Kioa 11.2.16C Mason J said: ‘The reference to “right or interest” … must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests’: at 582. Justice Brennan applied a different but comparable formulation, namely whether ‘a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large’: at 619. Trends in the case law likewise illustrate a broadening in the range of decisions to which natural justice applies. So, since Kioa the modern trend has been to treat all immigration decisions (including those denying an application for a visa) as decisions that affect a person in a direct and individual way and thus attract a right to a hearing. The flexibility of the concept of ‘right, interest or expectation’ is further illustrated by the following two decisions in Annetts v McCann 11.3.3C and Ainsworth v Criminal Justice Commission 11.3.4C. 11.3.3C

Annetts v McCann (1990) 170 CLR 596; 97 ALR 177; 21 ALD 651 High Court of Australia

[The court held that the parents of two young boys who had been found dead (one shot, the other died of thirst) in the Western Australian desert while returning from being jackaroos at an outlying station had a sufficient interest to assert a right to make submissions to a coronial inquest into their deaths.] Mason CJ, Deane and McHugh JJ: The judgments in the Full [Federal] Court appear to assume that the appellants had no right to be heard because nothing in the evidence suggested that anything adverse to them personally could emerge from the Coroner’s finding or rider. But this assumption overlooks two matters. First, the appellants have been granted — and properly granted — representation at the coronial inquiry. The grant of representation

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did more than recognise the appellants’ personal interest in the performance of the duties which the law imposes on the Coroner … It also created a legitimate expectation that the Coroner would not make any finding adverse to the interests which they represent without giving them the opportunity to be heard in opposition to that finding. Secondly, the interests which they represent include the protection of the reputation of their deceased son. It does not matter, except for the purposes of jurisprudential analysis, whether that interest is classified as the interest of the deceased or the interest of the appellants as parents of the deceased or both. Whichever analysis is adopted, the appellants have 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 has excluded their common law right to be heard. In determining whether this Act has excluded the rules of natural justice [it] need[s] to be kept in mind … that many interests are now protected by the rules of natural justice which less than 30 years ago would not have fallen within the scope of that doctrine’s protection … It needs to be stressed that, although the appellants are entitled to make submissions concerning matters which are identified as a possible source of adverse findings concerning their interests, they have no right to make submissions on the general subject matter of the inquest. Their legal entitlement is confined to making submissions in respect of matters which may be the subject of adverse findings against them personally or against the deceased. [Brennan and Toohey JJ delivered a concurring judgment, but disagreed that the Coroner had reached a finding specific to the children that warranted a response by the parents.]

11.3.4C

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11 High Court of Australia

[The court held that the Ainsworth group of companies had been denied natural justice in not being given a prior opportunity to comment on a report from the commission to a parliamentary committee. The report, which was essentially a compilation of earlier reports about the Ainsworth group, recommended that it not be permitted to participate in the gaming machine industry in Queensland.] Mason CJ, Dawson, Toohey and Gaudron JJ: The appellants claimed that their business reputation was an interest which had been adversely affected by the report. This was rejected by the Full Court on the basis, as stated by McPherson J, that there was nothing to show that any existing business ‘reputation or goodwill [was] placed in jeopardy by the Report of the Commission’. But the law proceeds on the basis that reputation itself is to be protected. And the Commission’s report, published in the manner required by … the Act, could only ensure that, thereafter, the appellants’ reputations in Queensland would be of the worst kind. It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice. Thus, over a century ago, Jessel MR said in Fisher v Keane [1879] 11 Ch D 353, at 362–63: … according to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of persons who decide upon the conduct

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Chapter 11  Natural Justice of others, [they ought not] to blast a man’s reputation for ever — perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct. And, as recently as 1990, Brennan J said in Annetts at 608 that: Personal reputation has now been established as an interest which should not be damaged by an official finding after a statutory inquiry unless the person whose reputation is likely to be affected has had a full and fair opportunity to show why the finding should not be made.

The same is true of business or commercial reputation … And it matters not that, instead of an express finding, there is, as here, an adverse recommendation based on the reports of other bodies or authorities. That being so, the appellants were entitled to procedural fairness. [Brennan J delivered a concurring judgment.]

11.3.5  The concept of ‘right, interest or expectation’ is an important factor, yet its significance and the weight it is given will depend on the specific nature of the right or interest at stake. Even a fundamental right (such as personal freedom or property) can sometimes be taken away without a hearing. This is illustrated by three cases: O’Shea 11.2.18C, holding that the Governor in Council did not have to provide a hearing before rejecting a recommendation from a parole board that a person be released from detention; Twist 11.3.26C, holding that the council did not have to provide a hearing before making a decision to demolish a building, as the owner had a full right of appeal to a court (though had failed to exercise it in the time provided); and Leghaei (see 11.2.15), accepting that national security considerations diminished substantially the obligation to provide natural justice in cancelling a person’s resident visa. At the other end of the scale, an interest such as reputation may attract an obligation to provide a hearing, but in an attenuated form. Thus, in Annetts 11.3.3C the court held that the parents could make a submission to an inquest concerning the reputation of their children, but not on the general subject matter of the inquest. 11.3.6 In Plaintiff S10/2011 Gummow, Hayne, Crennan and Bell JJ approved (at 658) the following statement from Brennan J in Kioa 11.2.16C at 619: There are interests beyond legal rights that the legislature is presumed to intend to protect by the principles of natural justice. It is hardly to be thought that a modern legislature when it creates regimes for the regulation of social interests — licensing and permit systems, means of securing opportunities for acquiring legal rights, schemes for the provision of privileges and benefits at the discretion of Ministers or public officials — intends that the interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy should be accorded less protection than legal rights.

The affirmation of this reasoning indicates that courts take a wide view of the interests to which natural justice applies, yet the result in Plaintiff S10/2011 highlights an important exception to that approach. The power in that case (to grant visas in exceptional circumstances) was expressed to be a ‘non-compellable’ power — meaning that the decision-maker (a minister) 685

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was not obliged to consider whether to exercise the power. The High Court held the power was not subject to the requirements of procedural fairness. Accordingly, the minister was not required to give a hearing or notice to those seeking an exercise of the power. This case was not an isolated example. An increasing number of statutory powers are ‘non-compellable’, meaning that the power is expressed as one that the relevant decision-maker need not consider exercising. If this growing form of statutory power is not subject to the requirements of fairness, a gap in the scope of natural justice is emerging and will expand with the enactment of these powers. One author recently argued that the courts must adapt common law principles to draw such powers within the scope of fairness: E Hammond, ‘Procedural Fairness in Application Cases: Is Compellability of Consideration a Critical Safeguard?’ (2018) 25 Australian Journal of Administrative Law 122.

Legitimate expectation 11.3.7  This factor warrants consideration for doctrinal and historical reasons. The notion of an interest going ‘beyond enforceable legal rights’ was first enunciated by Lord Denning MR in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149. This notion was known as the legitimate expectation and covered many cases where the claimed interest was not within the reach of procedural fairness at that time. In Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 680, McHugh  J explained that the legitimate expectation concept served to ‘extend the range of protection given by the common law rules of natural justice. Prospective, as well as existing rights, interests, privileges and benefits are now within the domain of natural justice’. There were no fixed categories of legitimate expectation, but some well-recognised classes were: • an expectation arising from a government promise or undertaking, either given specifically to a person (Cole v Cunningham (1983) 49 ALR 123) or generally to the public in a statement of government policy: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (Teoh) (ratification of an international treaty) and Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 (a policy announcement that illegal immigrants would be interviewed and their cases considered on their merits); • an expectation either that an existing licence will be renewed or that advance warning will be given of the prospect of non-renewal: FAI 11.2.17C;

• an expectation that an established liberty or interest will not be taken away: Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; and • an expectation arising from an established course of practice: Attorney-General (NSW) v Quin 11.3.9C.

11.3.8  The legitimate expectation was always a limited concept in Australian law because the early cases which endorsed its possible value also stressed that any expectation or interest would attract only procedural rather than substantive protection. In other words, the person claiming a legitimate expectation of a favourable outcome could at best hope the subject of the expectation in question would be considered by officials whose action might affect the person. There was no guarantee or right to have the expectation actually granted. This limit on the legitimate expectation reflected wider constitutional influences on Australian administrative law and marks an important departure with usage of the concept in the United Kingdom, which was spelt out in Quin 11.3.9C. 686

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11.3.10

Attorney-General (NSW) v Quin (1990) 170 CLR 1; 93 ALR 1 High Court of Australia

[The facts in this case are given more fully in 7.2.5C. The High Court by majority rejected an application by Mr Quin for a declaration along the lines that he and other magistrates be appointed to a newly-constituted court unless they were found to be unfit for judicial office.] Mason CJ: Although a legitimate expectation may take the form of an expectation of a substantive right, privilege or benefit or of a procedural right, advantage or opportunity, it is helpful to avoid confusion between the content of the expectation and the resulting right to procedural fairness … In the cases in this court in which a legitimate expectation has been held entitled to protection, protection has taken the form of procedural protection, by insisting that the decision-maker apply the rules of natural justice. In none of the cases was the individual held to be entitled to substantive protection in the form of an order requiring the decision-maker to exercise his or her discretion in a particular way … However, the view that legitimate expectations may attract substantive, as distinct from procedural, protection encounters the objection that it will entail curial interference with administrative decisions on the merits by precluding the decision-maker from ultimately making the decision which he or she considers most appropriate in the circumstances. Brennan J: So long as the notion of legitimate expectation is seen merely as indicating ‘the factors and kinds of factors which are relevant to any consideration of what are the things which must be done or afforded’ to accord procedural fairness to an applicant for the exercise of an administrative power, the notion can, with one important proviso, be useful. If, but only if, the power is so created that the according of natural justice conditions its exercise, the notion of legitimate expectation may usefully focus attention on the content of natural justice in a particular case; that is, on what must be done to give procedural fairness to a person whose interests might be affected by an exercise of the power. But if the according of natural justice does not condition the exercise of the power, the notion of legitimate expectation can have no role to play. If it were otherwise, the notion would become a stalking horse for excesses of judicial power. [Dawson J reached the same conclusion as Mason CJ and Brennan J, that an order could not be made giving substantive effect to a legitimate expectation. Deane and Toohey JJ dissented in separate judgments.]

11.3.10  The reasoning in Quin 11.3.9C reflects a point often made by Australian judges in both cases and non-judicial writing, which is that the constitutional basis and evolution of Australian administrative law is sufficiently different from English law to prevent adoption of the substantive English approach to fairness. It is useful to note how English courts have gone much further than Australian courts in giving legal recognition to legitimate expectations. R  v  North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213 gave substantive enforcement to a legitimate expectation, to the extent of holding that it was a relevant consideration, that the decision-maker was bound to take into account a promise given to Ms  Coughlan that she would have a ‘home for life’. The court declared invalid a decision by the Health Authority to close a nursing home contrary to the promise. This development has been noted but not followed by Australian courts: see Lam 11.3.14C. 687

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The English approach reflects the different focus of that jurisdiction on ‘substantive fairness’, ‘abuse of power’, ‘proportionality’ and increasingly also the influence of human rights laws. The claims of two plaintiffs illustrate this trend: • R (on the application of Nadarajah) v  Secretary of State for the Home Department [2005] EWCA Civ 1363 — an asylum seeker claimed an enforceable legitimate expectation that a departmental ‘family link policy’ enabled him to stay in the United Kingdom until his wife’s claim for asylum was finalised. The Court of Appeal rejected the claim on the ground that the policy did not apply to him. • Bancoult v Secretary of State for Foreign and Commonwealth Affairs [2008] 1 AC 453 — inhabitants of the Chagos Islands sought to rely on a government announcement that they would not be compulsorily removed from their land so that it could be used for defence purposes.

These and similar other English cases have seen courts hold officials to promises and expectations while also expanding the instances in which a legitimate expectation is found. This approach has been argued to reflect a changing conception of the relationship between citizens and government in England: M Elliott, ‘From heresy to orthodoxy: Substantive legitimate expectations in the United Kingdom’ in M Groves and G Weeks (eds), Legitimate Expectations in the Common Law World, Hart Publishing, Oxford, 2017. The UK Supreme Court has very recently appeared to backtrack on these principles, suggesting that the notion of substantive unfairness (meaning whether there was unfairness in all the circumstances) is not a distinct or separate ground of review: R (Gallaher Group Ltd) v Competition and Markets Authority [2018] 2 WLR 1583; [2018] UKSC 25. Whether this most recent case represents a significant shift from an Australian view is debatable because the Supreme Court affirmed the substantive legitimate expectation that has taken root in English law. The many reasons why the English approach of substantive expectations and like principles is incompatible with Australian legal doctrine is explained in M  Groves, ‘Substantive Legitimate Expectations in Administrative Law’ (2008) 32 Melbourne University Law Review 470. Sir Anthony Mason observed: ‘It would require a revolution in Australian judicial thinking to bring about an adoption of the English approach to substantive protection of legitimate expectations’: Sir A Mason, ‘Procedural Fairness: Its Development and Continuing Role of Legitimate Expectations’ (2005) 12 Australian Journal of Administrative Law 103 at 108. 11.3.11  There was a time when the Australian approach to legitimate expectations was more adventurous, as reflected in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. A deportation order was made against Mr Teoh following his conviction for drug offences. Mr Teoh had a wife and seven dependent children in Australia. The original decision-maker and the Immigration Review Panel had considered the likely impact of Mr Teoh’s deportation on these people. The High Court held that Mr Teoh was denied natural justice because the department had failed to invite him to make submissions arising from the United Nations Convention on the Rights of the Child (UNCRC) concerning the best interests of the children. The UNCRC provided that parties would ensure that, in any administrative decision concerning a child, the best interests of that child must be a primary consideration. The UNCRC was ratified but not enacted by Australia, but a majority of the High Court held that, in the absence of any contrary statements at the time of ratification, signing a treaty was a positive signal by the executive government to the Australian community that it took the content and obligations of the treaty seriously. This created a legitimate expectation among people (including Mr Teoh) that officials would either observe the requirements of the UNCRC or, if officials proposed to act otherwise, notify affected people and give them a chance 688

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to put their views. The dissenting judgment of McHugh J questioned whether people could hold an expectation based on something they did not know about (Mr Teoh was unaware of the UNCRC) and whether there was any point in an expectation that officials could apparently avoid with ease. 11.3.12  Teoh attracted great controversy and provoked many questions. What other treaties or rights could the case apply to? What exactly was the status of treaties that were ratified but not incorporated in domestic legislation? Legislation to override Teoh was introduced successively by a Labor Government in 1995 and a Coalition Government in 1997 and 1999: Administrative Decisions (Effect of International Instruments) Bill. The Bill was not approved by the Senate. A Joint Statement was also issued under each government by the AttorneyGeneral and the Minister for Foreign Affairs, stating that members of the public should not derive a legitimate expectation of treaty compliance from its ratification by the executive. The Joint Statement was found to be ineffective, because it was too general and not made at the time of ratification of a particular treaty: Department of Immigration and Ethnic Affairs v Ram (1996) 41 ALD 517. Legislation was enacted in South Australia to combat Teoh so far as concerned administrative decision-making under the laws of that state: Administrative Decisions (Effect of International Instruments) Act 1995 (SA), applied in Collins v South Australia (1999) 74 SASR 200. The notion that unincorporated treaties provide a source of rights appears to have lost traction in the United Kingdom: R (Public Law Project) v Lord Chancellor (Office of the Children’s Commissioner intervening) [2016] 1 AC 1531 at 1542–3 (Laws LJ). 11.3.13  Teoh was sometimes invoked successfully by parties, though the underlying logic of the case was rarely extended beyond cases involving the UNCRC. Teoh was applied in C Inc v Australian Crime Commission (2008) 106 ALD 453, concerning a statutory notice to a medical clinic requiring it to produce records relating to child patients during an investigation in the Northern Territory into child sexual abuse against Aboriginal children. The court held the notice to be invalid, as the children and their parents had not been notified and the best interests of the child had thus been ignored. The court also dismissed an argument that the size of the group to be consulted excluded natural justice. The individual interests of each member of the group in the privacy and confidentiality of their medical records would be overridden by the notice. Accordingly each member of the group was affected in a direct and immediate way and entitled to natural justice. The same result could probably have been reached without reliance on either Teoh or the UNCRC. That possibility was illustrated in Lam 11.3.14C. 11.3.14C Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502 High Court of Australia [While Mr Lam was in prison, the Department of Immigration was considering whether he should be deported because of his criminal convictions. The department wrote to him on 7 November 2000 seeking details of the carer of his children, so as ‘to contact them in order to assess your relationship with the children’. The department neither followed through and contacted the carer (Ms Tran), nor informed Mr Lam before making a deportation decision that no such contact was made. The High Court unanimously held that there had been no breach of natural justice.]

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Gleeson CJ: It is not in dispute that, regardless of the letter of 7 November, the respondent was obliged to extend procedural fairness to the applicant. And it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed … It is said on his behalf that he was reasonably entitled to expect that the Departmental officers would not change their plans about contacting Ms Tran without first letting him know. But there could have been a number of reasons why they might change their plans, without necessarily having to inform the applicant. Let it be supposed, as may well be the case, that they changed their minds because they realised that they had already heard from Ms Tran, they did not doubt what she had to say, and it was unlikely that there was anything she could usefully add … I do not accept that it would have been reasonable to expect the Department to write to the applicant if for any reason there was a change of plan about contacting Ms Tran. The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decisionmaker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment … A particular example of such detriment is a case where [a] statement of intention [by a decision-maker] has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant’s children. [McHugh and Gummow JJ delivered a joint judgment holding that Mr Lam had not been denied natural justice. Their Honours strongly questioned both the reasoning of the majority in Teoh and the conceptual basis of legitimate expectation. In separate judgments, both Hayne and Callinan JJ found that natural justice was not denied in the case at hand and doubted the continued utility of the concept of legitimate expectation.]

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11.3.15  The judgment of Gleeson CJ in Lam 11.3.14C gave the least attention to the coherence of Teoh or the continued utility of the legitimate expectation, but has become the most influential. Gleeson CJ focused on when and why a denial of fairness could be found and avoided the vague and often artificial reasoning used to identify and apply a legitimate expectation. His reasoning was guided by more pragmatic questions. Was the whole of the process fair? Was the affected person denied a reasonable chance to make their case? What chance was lost? The question is thus not whether a legitimate expectation was breached, but whether a person was given a fair opportunity to be heard. By casting aside legitimate expectations, courts ask more precise (and useful) questions about fairness. As this approach gained favour, the High Court continued to express strong doubts about the value of the legitimate expectation. See, for example, Plaintiff S10/2011 where Gummow, Hayne, Crennan and Bell JJ noted that the concept ‘when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded’: at 658. The concept was finally discarded and the notion of ‘practical injustice’ given useful explanation in WZARH 11.3.16C. 11.3.16C

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; 90 ALJR 25; 2015 [HCA] 40 High Court of Australia

[WZARH was a Sri Lankan national who was held in detention on Christmas Island and deemed an ‘offshore entry person’ and an ‘unlawful non-citizen’ by ss 5(1) and 14 of the Migration Act. He made a request for a Refugee Status Assessment, which was conducted by a delegate of the minister. The delegate’s assessment was adverse, so WZARH requested an Independent Merits Review (IMR). A review began, in which he was interviewed, but that person (the First Reviewer) could not complete the IMR. Another person (the Second Reviewer) completed the IMR. WZARH was not told of this change, nor given an opportunity to supplement either his earlier written submissions or to provide further oral evidence. The Second Reviewer concluded that WZARH did not meet the requirements for protection under the Refugees Convention. The Full Federal Court held that WZARH was denied procedural fairness. Flick and Gleeson JJ held that the First Reviewer had created a legitimate expectation that either she would determine the application or the Second Reviewer would conduct an oral hearing before doing so. The High Court affirmed the finding that WZARH was denied procedural fairness but disapproved of use of the legitimate expectation to decide this issue.] Kiefel, Bell and Kean JJ: [30] The position has been made sufficiently clear that it is not necessary for this Court to engage again in discussion of the concept of ‘legitimate expectation’ in administrative law or to trace its progress from its controversial origins, to its tentative acceptance in Australian law, to its rejection as a touchstone of the requirement that a decision-maker accord procedural fairness to a person affected by an administrative decision. The ‘legitimate expectation’ of a person affected by an administrative decision does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness. It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in

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order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made. … [38] It may be accepted that, as the Minister argued, the respondent was not entitled to insist upon the observance of a particular form of decision making process. But that is not to the point. Rather, the questions are whether it was unfair for the Second Reviewer to proceed by reference only to some of the information made available to the First Reviewer and the impressions as to his credibility formed from those materials, and whether it was unfair to deny the respondent the opportunity to be heard on whether the IMR should proceed in that way. We now turn to a consideration of these questions. [39] As to the first of these questions, the Minister accepted that in some circumstances a reasonable opportunity to be heard will involve some form of oral hearing. The Minister also accepted that, in those circumstances, procedural fairness would require the decision-maker to entertain and give consideration to submissions seeking to establish that an oral hearing is required. [40] The fact that the First Reviewer interviewed the respondent affords, at the very least, some practical indication of what procedural fairness required in the circumstances of this case. An interview in the course of the IMR process provides the reviewer with opportunities for direct questioning of the applicant; for clarification of areas of confusion or poor understanding on both sides; and for the observation of the demeanour of the applicant. Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker. That this is so has long been recognised. [41] The opportunity for a decision-maker to clarify areas of confusion or misunderstanding, and to form an impression based on personal observation as to whether an applicant is genuinely confused or seeking deliberately to mislead, may be especially important to a fair assessment of a claim to refugee status when English is not the applicant’s mother tongue and he or she is obliged to seek to communicate through an interpreter. … [46] It is difficult to identify any reasonable basis on which the Second Reviewer could fairly have refused the respondent an opportunity to be heard on the question of how the review process should proceed once that process was altered by the withdrawal of the First Reviewer. Elementary considerations of fairness required that the respondent be informed that the process explained to him by the First Reviewer would not be completed so that he would have the opportunity to be heard on the question of how the process should now proceed. Gageler and Gordon JJ: [58] Contrary to the submission of the Minister in this appeal, and as has repeatedly been recognised in the Full Court of the Federal Court, Lam is not authority for the proposition that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed. What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process. [59] There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.

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11.3.18

[60] Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given. [61] That is to highlight one of the confusions that can be introduced when the concept of ‘legitimate expectation’ is used as a basis for determining the content of procedural fairness. By focusing on the opportunity expected, or legitimately to have been expected, the concept can distract from the true inquiry into the opportunity that a reasonable administrator ought fairly to have given. The former is relevant only in so far as it bears on the latter. …

Advisory reports and recommendations 11.3.17  A view adopted in some earlier cases was that there was no obligation to accord natural justice in preparing a report that contained advice or recommendations, since the report itself did not directly affect a person’s legal rights or interests. That would occur only if a decision was later made to implement the advice or recommendation, and at that time natural justice could be provided. It was thus held by a majority (McTiernan, Taylor and Owen JJ; Kitto and Menzies JJ dissenting) of the High Court in Testro Bros Pty Ltd v Tait (1963) 109 CLR 353 that an inspector preparing a report about a company under the Companies Act 1961 (Vic) was not required to accord natural justice to the company. The decision in Testro has not been formally overruled by the High Court, but is no longer authoritative. Chief Justice Mason, Deane and McHugh JJ observed in Annetts 11.3.3C at 600: ‘It is beyond argument that the view of the majority in that case would not prevail today’. Both in Annetts and in Ainsworth 11.3.4C the court held that the obligation to accord natural justice applied to a report that was advisory and not self-implementing, as the report could damage the reputation of a person or company mentioned therein. Similarly, in Mahon v Air New Zealand [1984] AC 808 the Privy Council held that natural justice applied to a royal commission in investigating and preparing a report that was critical of individuals. A key issue will be whether the report is made available to the public at large: Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231. The traditional view that natural justice is unlikely to apply prior to the commencement of an inquiry still holds sway, as noted by the court in Pervan v Frawley [2011] TASSC 27 at [60]: ‘There is a very weighty trend towards holding that the rules of procedural fairness do not apply to decisions which merely commence investigatory or similar processes, where those processes do not of themselves involve final determinations’. See also Saraceni v ASIC (2013) 211 FCR 298 in which the Full Federal Court rejected the contention that ASIC was required to notify and invite submissions from a company director before authorising the company’s receivers to conduct a compulsory examination under the Corporations Law. 11.3.18  Koppen v  Commissioner for Community Relations (1986) 11 FCR 360 provides a further illustration of where natural justice may apply at an investigatory stage. It was there held that a person presiding at a compulsory conciliation conference under the Racial Discrimination Act 1975 (Cth) was required to accord natural justice. The conference did not result in any finding or adverse report, but was an essential preliminary step before civil proceedings for 693

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Control of Government Action

racial discrimination could be commenced. A combination of features warranted natural justice applying to the compulsory conference. Spender J: The conciliation proceeding by its nature is concerned with allowing an individual to know the nature of the complaint made against him and to have an opportunity to place its version of events before an unbiased conciliator. No justification of administrative convenience supplants the duty to act fairly. Further, the conciliation proceeding does not result in a recommendation which must be acted upon by another before it affects an individual, and which permits procedural fairness to be accorded at that later stage. The occurrence of the compulsory conference, and the certification of its occurrence and unsuccessful outcome itself exposes an individual to the legal hazard of civil proceedings … For these reasons … the person presiding at the compulsory conference is required to accord natural justice or ‘procedural fairness’, despite the fact that the compulsory conference itself makes no finding about whether a person engaged in any conduct, nor does it determine the legality of that conduct … The right in question is the right not to be sued in civil proceedings until a properly conducted compulsory conference has endeavoured to settle a matter … [T]he compulsory conference is an integral part of the resolution of racial discrimination, such that certification of its occurrence is a pre-condition to civil proceedings.

11.3.19  A similar issue, of whether a report to government has a discernible effect on legal rights, arises in relation to the availability of certiorari to quash such a report: Shaw v Police Integrity Commission (2006) 66 NSWLR 446 at 462–3. A broad view of the requirement was taken by the High Court in Hot Holdings Pty Ltd v Creasy 11.5.35C.

Statutory framework for making and reviewing decision 11.3.20  It is common for legislation to spell out the procedure to be followed in making a decision. The legislation may specify the obligations of the decision-maker to disclose information and provide an opportunity for comment, as well as the procedure for confirming, reconsidering, reviewing or appealing against the decision. This can give rise to two different kinds of issue. 11.3.21  First, can the reconsideration or review of a decision cure a breach of natural justice at an earlier stage or level in the process? This issue is discussed in Ridge 11.1.19C, Marine Hull & Liability Insurance Co Ltd v Hurford 11.3.27C and Calvin v Carr 11.3.32C. The answer given in those cases is that a later hearing can cure an earlier breach, provided the later hearing is undertaken properly and free of apprehended bias. After all, the usual order made by a court to correct a breach of natural justice is to set aside the decision and require it to be remade. Another way of describing this principle is that ‘the internal appellate process does not really “cure” any defect, but may provide a discretionary reason for declining to grant prerogative or similar relief for a denial of natural justice, where there has been a subsequent full appeal unaffected by any such denial’: Rose v Boxing NSW Inc [2007] NSWSC 20 at [89] (Brereton J). An exception noted in Calvin is that in some contexts it is essential that natural justice be observed properly at every level and that an initial breach cannot be cured by a later review. 11.3.22  Second, does the creation of a statutory procedure for making and reviewing a decision evince a legislative intention either that the common law rules of natural justice have 694

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11.3.24

been excluded or that a decision made in breach of those rules is not invalid? As the following introductory summary shows, this issue can be approached and answered in different ways. 11.3.23  The starting point is that the legislature can exclude the obligation to accord natural justice. The guiding principle is that the legislative intention to that effect must appear from express words of plain intendment and cannot be discerned by inference or implication: Tanos 11.2.2. An example of an explicit exclusion is two provisions of the Migration Act: s  97A provides: ‘This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’; and s 501(5) provides: ‘The rules of natural justice … do not apply to a decision under subsection (3)’. Courts will nevertheless incline to a result that does not wholly exclude natural justice, but excludes only some aspects of the doctrine, such as the right of a person to be notified of adverse evidence and reasons for a decision: K-Generation v Liquor Licensing Court (2007) 99 SASR 58 (not discussed by the High Court on appeal: (2009) 237 CLR 501). In Uelese v Minister for Immigration and Border Protection (2016) 256 CLR 203 the High Court held that s 500(6H) of the Migration Act (which provided that the tribunal must not have regard to any information presented orally during the hearing in support of a person’s case unless it had been provided in a written statement to the minister in advance) did not substantially alter the requirement to afford natural justice, and in particular did not preclude the tribunal from considering information adduced during cross-examination or alternatively adjourning the hearing so that the applicant could give the required statement to the minister. Natural justice can, in certain circumstances, be displaced by matters falling short of an express statutory exclusion: see, for example, O’Shea 11.2.18C and Twist 11.3.26C. The historical trend is probably relevant too. The High Court in Twist in 1976 seemed more prepared than the High Court in Miah 11.2.19C in 2001 or Saeed 11.3.31C in 2010 to accept that parliament had removed an actionable obligation to accord natural justice. This trend reflects the acceptance by the courts of the increasing scope and entrenchment of natural justice. 11.3.24  In applying the test of legislative intention the courts look at a variety of matters, spelt out particularly by Wilcox J in Marine Hull 11.3.27C and McHugh J in Miah 11.3.30C. These include the impact of the initial decision (especially whether it has an immediate or irreversible effect), whether there is a need for prompt or urgent decision-making, whether the same criteria are applied at each stage of the decision, the nature of any right to seek review or appeal (especially whether costs will be incurred), the nature of the appeal body (such as its independence, and whether it is an administrative or adjudicative body), the scope of the appeal right, and the powers of the appeal body to correct an erroneous decision or procedure. The cases in this chapter illustrate the variety of different answers that are given by applying those factors. In O’Shea 11.2.18C the court held that a decision on release from detention was to be made by a three-stage process, and that natural justice was adequately met in the first two stages of the process. In Ainsworth 11.3.33C the court held that natural justice had to be observed in the initial decision to issue a report, because a review of that decision could not correct any damage to reputation. In Twist 11.3.26C the court held that a decision ordering the demolition of a property was not invalid if made in breach of natural justice, because there was a de novo right of appeal to the District Court. In Miah 11.3.30C, by contrast, the right of appeal to a merit review tribunal did not displace the obligation to accord natural justice in making the primary decision. A middle line was suggested by some judges in Marine Hull 11.3.27C, that the right of appeal to a merit review tribunal did not displace natural justice at the primary stage but nevertheless affected the nature of the procedures to be followed at that stage. 695

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11.3.25  A final introductory point is that, in one way or another, all the cases exhibit a reluctance by courts to conclude that natural justice has been wholly displaced or excluded. In Miah 11.2.19C, Gleeson CJ and Hayne J in dissent did not conclude that the common law rules of natural justice had been excluded generally by the statutory hearing code and right to review; rather, they held that the statutory scheme displaced the particular principle of natural justice relied upon by the decision-maker (specifically, that the applicant should have been invited to comment on an item of information that was potentially adverse to his case). A concern, at least in relation to decision-making involving the exercise of federal judicial power, is that a statute cannot take away the constitutional jurisdiction of the High Court conferred by s 75(v) to redress a breach of natural justice. This is illustrated by Miah. 11.3.26C

Twist v Randwick Municipal Council (1976) 136 CLR 106; 12 ALR 379 High Court of Australia

[The council made an order to demolish Mr Twist’s house, pursuant to a power conferred by s 317B of the Local Government Act 1919 (NSW) to make such an order in respect of a house that was in a dilapidated or unsightly condition. The Act provided that the owner could appeal to the District Court within 60 days. Mr Twist failed to lodge an appeal within either that period or a three-month extension granted by the council. Thereafter he commenced proceedings for a declaration that the council’s demolition order was void for breach of natural justice. The High Court dismissed the action.] Barwick CJ: 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 … But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property is the subject of the exercise of the statutory power. But, if the legislation has made provision for that opportunity to be given to the subject before his person or property is so 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. Thus, if the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the court, being bound by the legislation as much as is the citizen, has no warrant to vary the legislative scheme. But, if it appears to the court that the legislature has not addressed itself to the appropriate question, the court in the protection of the citizen and in the provision of natural justice may declare that statutory action affecting the person or property of the citizen without affording the citizen an opportunity to be heard before he or his property is affected is ineffective. The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice. …

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There is no rule which can provide in every case an answer by its mechanical application. The mere existence of an appeal may not in some circumstances satisfy the requirements of natural justice. [His Honour held that the legislature had provided a right to be heard by appeal to the District Court.] Mason J: [His Honour delivered a concurring judgment, including the following comments.] Here the exercise of the power seriously and adversely affects the owner in his property and subjects him to a pecuniary liability for the costs of demolition … Does the existence of the right of appeal … satisfy in full the duty of fairness, or does it sufficiently indicate a legislative intention that the duty of fairness has no application to the council when it decides to act under s 317B(1)? … It is a question which could be easily disposed of if the appeal were less than a full and comprehensive appeal from council’s order. In that event it could scarcely be said that a limited right of appeal on the part of the owner is an adequate safeguard for him or that it constitutes an indication that the duty of fairness is displaced … Having regard to the subject matter of the section, the nature of the order which the council is empowered to make, the degree of urgency which may attend the execution of the order and more particularly the comprehensive nature of the appeal to a District Court judge, I am of opinion that s 317B(5) should be read as providing the exclusive remedy available to an owner who wishes to challenge the validity or correctness of an order made under s 317B(1) … Although it is unnecessary to express a concluded view upon the question I should prefer to say that the function entrusted to the council imposed upon it a duty to act fairly, that in the circumstances this might well involve the council in giving the owner the opportunity to present his case before proceeding to the making of an order. However, as the only redress is by way of appeal, that is an end of the matter. [Jacobs J delivered a judgment reaching the same conclusion, but by different reasoning. His Honour concluded that s 317B did not exclude the obligation of the council to observe natural justice, but s 317B established the only procedure by which the validity of the council’s order could be challenged. Thus, for example, Mr Twist could have sought mandamus at an appropriate time requiring the council to provide a hearing to him before making an order. In R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471 Mason J (Murphy, Aickin and Wilson JJ agreeing) in an obiter remark (at 484–5) reaffirmed the approach he had taken in Twist.]

11.3.27C

Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234; 62 ALR 253 Federal Court of Australia

[Acting under s 62 of the Insurance Act 1973 (Cth), the Acting Treasurer issued a notice to Marine Hull that prohibited it from conducting business as an insurer. Marine Hull was not given an opportunity to be heard before the notice was issued. Section 63 of the Act provided that a company to which a notice had been issued could seek a reconsideration of the decision by the treasurer, and thereafter appeal against the treasurer’s decision to the Administrative Appeals Tribunal (AAT). Two days after the notice was issued, and without seeking either a reconsideration by the treasurer or a review by the AAT, Marine Hull commenced proceedings

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under the ADJR Act for an order that the Acting Treasurer’s notice was invalid for breach of natural justice. The action was dismissed at first instance by Wilcox J, whose judgment was affirmed by the Full Federal Court: see 11.3.28.] Wilcox J: It seems to me that, subject to one matter, the power conferred by s 62 should be regarded as a power the valid exercise of which requires adherence to the principles of natural justice … That one matter is the circumstance that Part VI of the Insurance Act (ss 62 and 63) contains provisions for appeal to the Administrative Appeals Tribunal against any directions of the Treasurer under s 62. … There may … be cases where the legislation contains such a comprehensive code for the conduct of the decision maker that it must be concluded from that fact that the legislature intended to exclude the addition to those requirements of the common law rules: see Furnell v Whangarei High Schools Board [1973] AC 660 at 679–82. But, more frequently, a right of appeal will be provided without it being clear upon the face of the legislation that this is intended as a complete code. Under what conditions, then, should the provision of a right of subsequent appeal be regarded as an acceptable substitute for a prior opportunity to be heard? De Smith, Judicial Review of Administrative Action (4th ed) at p 193, nominated three criteria: ‘Where the original decision does not cause serious detriment to the person affected, or where there is also a paramount need for prompt action, or where it is impracticable to afford antecedent hearings.’ In an article written before the decision of the High Court in Twist [11.3.26C], Katz (vol 12, University of Western Australia Law Review 535 at 542) suggested four situations in which a right of appeal was less useful to an affected person than a right of prior hearing: 1 — when the power of the appellate body is not as comprehensive as that of the original decision-maker; 2 — when the decision becomes irremediably effective immediately on its making; 3 — when the burden of persuasion in an appeal from a decision rests on the appellant, whereas, if that person had been given a hearing prior to the making of the decision, the burden of persuasion would not have rested on him; and 4 — when the cost of appeal exceeds the cost of accepting the decision. Both of these summaries appear to be not inconsistent with the views expressed by the High Court in Twist and R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471 (BLF). Those decisions govern the present case. Directions under s 62 relate to matters of public interest. They may need to be made urgently. There is a full right of appeal provided by the legislation. The affected insurer, as a person entitled to apply for review, may obtain from the Treasurer a statement in writing setting out material findings of fact, with reference to the evidence upon which those findings were based, together with reasons for the decision: see Administrative Appeals Tribunal Act s 28. The procedures and powers of the Tribunal are very similar to those of a court: a party may be legally represented (s 32), evidence may be taken on oath or affirmation (s 40), documents may be required to be produced (s 37), the parties may have access to the relevant documents and may make submissions (s 39). The review is a full review on both the facts and the law in which the Tribunal may exercise all the powers and discretions conferred by the relevant legislation upon the primary decision-maker (s 43). There is a right of appeal upon a question of law to this court (s 44) and, by special leave of the High Court, thence to that court In short, the rights of an insurer to have review upon its merits of the Treasurer’s decision upon reconsideration of his directions are at least as extensive as the rights of appeal considered in Twist and BLF.

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11.3.29

Counsel for the applicant submit, however, that Twist and BLF cannot be applied to the present case because, unlike those two cases, it would be possible for the person affected by the statutory decision to be irretrievably damaged by the implementation of the decision before the appeal could be determined. Counsel point out that the [publication of a notice in the Gazette under s 62] is likely seriously to damage the financial reputation of an insurance company. That damage may be such as to destroy the business of the company, regardless of the outcome of its appeal. Counsel concede that it would be competent for the Administrative Appeals Tribunal to make an order under s 41(2) of the Administrative Appeals Tribunal Act restraining the gazettal of the directions pending the determination of the appeal but they say that, in practice, it may not be possible for an appropriate board to be constituted in time to prevent the gazettal. They criticise the fact that it is necessary to assemble two non-presidential members to sit with a presidential member even for the purpose of making a stay order. [Wilcox J commented that the tribunal could always arrange a prompt hearing for an application for a stay order.] In my view the Treasurer, in considering and in making directions under s 62 of the Insurance Act, is bound to accord natural justice to the relevant insurer, that is to act fairly towards it. However, by providing as it has in s 63 for review of such a decision by the Administrative Appeals Tribunal, the legislature must be taken to have evinced an intention that, in the event of the Treasurer failing to so act, the directions are not to be regarded as being invalid in law. They are merely susceptible of challenge before the Tribunal. It follows that the decision of the Acting Treasurer to make the directions affecting the present applicant is not invalidated by his failure to give to the applicant a prior opportunity to be heard.

11.3.28  The decision of Wilcox  J in Marine Hull 11.3.27C was affirmed on appeal by the Full Federal Court: Marine Hull & Liability Insurance Co Ltd v  Hurford (1986) 10 FCR 476. There were differences, however, in the way the judges on the Full Court approached the issue. Justice Morling agreed with Wilcox J ‘that there was an obligation on the Treasurer to afford the appellant an opportunity of being heard before giving the directions [but] the exclusive remedy available to the appellant was the procedure for review by the Administrative Appeals Tribunal’: at 488. Justice Fox and Davies J held that there was insufficient evidence from which to conclude that there had been a denial of natural justice by the Acting Treasurer. Otherwise, Fox  J was inclined to the view that the right of appeal to the AAT did not exclude the obligation to observe natural justice in issuing a notice under s 62: at 477. Justice Davies was of the view that the obligation to accord natural justice had not been excluded by the Act, but in the normal case it would be sufficient for the Treasurer to comply with the procedures specified in the Act without providing an additional opportunity to be heard: at 480–3. 11.3.29  However, the courts may be reluctant to accept that a statutory right to appeal against a decision wholly displaces the obligation to observe natural justice. In Tadros v  Charles Sturt University [2008] NSWSC 1140, an appeal to the Academic Misconduct Appeals Committee did not cure a breach by a Deputy Vice Chancellor as the appeal could only be made on ‘procedural grounds’. In Garde-Wilson v Legal Services Board (2008) 19 VR 398, a full right of review by the Victorian Civil and Administrative Tribunal of a decision by the Legal Services Board did not absolve the board from observing natural justice, in light of the serious damage to livelihood and reputation arising from a board decision not to 699

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renew a person’s practising certificate. A more refined explanation is that a right of appeal or review does not displace the duty to observe the rules of natural justice but instead creates a presumption that the right of appeal or review is intended to provide the sole remedy for any breach of natural justice: Hill v Green (1999) 48 NSWLR 161 at 196–7; Day v Sanders (2015) 90 NSWLR 764 at 789. 11.3.30C Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238 High Court of Australia [An extract from this case including the facts is given in 11.2.19C. In that extract the court held that the Migration Act did not exclude the application of the rules of natural justice to decisions on visa applications made by delegates of the minister. In reaching that conclusion, the court by majority (Gaudron, McHugh and Kirby JJ; Gleeson CJ and Hayne JJ dissenting) rejected a submission by the minister that the existence of a right to a full merit review of a delegate’s decision by the Refugee Review Tribunal evinced parliament’s intention to exclude natural justice. McHugh J’s reasons for rejecting that submission follow.] McHugh J: The respondents contend that the right to a full de novo review by the Tribunal, pursuant to Pt 7 of the Act, also indicates that Parliament intended to limit the requirements of natural justice at the stage where a delegate is examining the application. It is true that the existence of appeal or review rights may affect the extent to which the requirements of natural justice apply at an earlier level of decision-making. But there is no general rule that a right of appeal or review necessarily denies or limits the application of the rules of natural justice. There is no inflexible rule that the presence of a right of appeal or review excludes natural justice. As Barwick CJ said in Twist [11.3.26C] at 111: ‘The mere existence of an appeal may not in some circumstances satisfy the requirements of natural justice.’ In the same case, Mason J said that (at 116): … the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. Indeed, the insistence by this Court of ‘plain words of necessary intendment’ to exclude the rules of natural justice (Annetts [11.3.3C] at 598) has led courts to reject the view that a right of appeal might provide an answer to a complaint that procedural fairness was denied in relation to an initial determination (Hill v Green … at 195). The cases indicate, however, that the presence or absence of certain factors can often be relevant in determining whether such a right does exclude or limit the rules of natural justice. These factors include: Nature of the original decision: preliminary or final. Natural justice requirements are less likely to attach to decisions that are preliminary in nature. Examples are decisions to lay charges or commence disciplinary proceedings. The closer a decision is to having finality and immediate consequences for the individual, however, the more likely it is that natural justice requirements apply (Ainsworth [11.3.4C]). Here, the decision was not of an investigatory or preliminary nature. It decided the ultimate question in issue: whether the prosecutor was a refugee. It was complete and effective. This is reinforced by s 69(1) of the Act which provides that the decision in relation to a visa application is valid until set aside.

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11.3.30C

Original decision made in public or private. [McHugh J noted, referring to Ainsworth

11.3.33C, that natural justice can apply to a preliminary decision made in private that damages a person’s reputation.] Formalities required for original decision. The formalities required in the process of making the original decision may be relevant to the effect of an appeal right. Here, there was a requirement to give reasons and various other formal procedures were in place for dealing with applications. In that context, it is harder to say that the existence of an appeal right was intended to limit the requirements of natural justice at an earlier level. Where formal procedures apply at the first level of decision-making, they support an inference that the appeal is not the sole source of procedural fairness. On the other hand, where there is no obligation to provide reasons and no formal procedures, as in Twist ((1976) 136 CLR 106 … at 114), they support the inference that the right of appeal excludes the rules of natural justice. Urgency of original decision. In a similar vein, the urgency which may attend the original decision will be relevant. This was a significant factor in Twist, which involved a council’s decision to demolish a building which was threatening the neighbourhood. In this case, there was no urgency pressing upon the decision-maker. That is obvious from the fact that the decision was made 13 and a half months after the date of the application. Nature of the appellate body — judicial, internal, ‘domestic’. If the appellate body is a court, it is easier to infer that the right to appeal was intended to limit or exclude the rules of natural justice at the earlier level. In Twist, the appeal was to the District Court. [McHugh J noted some comments in Twist that regarded this point as significant.] In contrast to courts, appellate bodies internal to the same organisation as the original decision-maker are less likely to be independent. This is a factor requiring the rules of natural justice to be applied at all levels of decision-making. Some internal appellate processes, however, may indicate such independence on the part of the tribunal or have such statutory authority that it is proper to infer that the initial decision-maker was not required to accord natural justice even if the appellate body is a ‘domestic’ one. Breadth of appeal — de novo or limited. Perhaps one of the most important factors is the breadth of the appeal. If there is provision for a complete de novo appeal on the merits of the case, then it is easier to infer from the rules or circumstances applicable at first instance that the requirements of natural justice were intended to be excluded or modified (Twist at 111, 113, 118). Here, there was a right of appeal to a tribunal that would consider the application de novo. This is not, however, always determinative and the court ‘retains a discretion to grant other relief if that is justified in the circumstances of the case’ (Hill v Green … at 197). Nature of the interest and subject matter. Finally, the nature of the interest of and consequences for the individual, as well as the subject matter of the legislation, are important (Calvin [11.3.32C] at 593). Here, the nature of the interest is the prosecutor’s personal security. The consequences for him include returning to face serious threats to his personal security, if not to his life. The subject matter of the legislation is undeniably important — it enacts Australia’s international obligations towards some of the world’s most vulnerable citizens. Balancing the factors above in relation to these proceedings, the right of appeal to the Tribunal is insufficient to conclude that Parliament intended that the delegate was not required to accord natural justice in the manner asserted. The only factor truly pointing to an intention to exclude the rules of natural justice is the de novo right of review by an independent tribunal.

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But important though that is, it does not outweigh the inference to be drawn from the fact that the refusal of the application may put an applicant’s life or liberty at risk and, as a practical matter, will often — perhaps usually — mean that an applicant will be detained in custody pending the review of the delegate’s decision. That being so, it is proper to infer that the Parliament, by giving a right of review, did not intend to exclude the common law rules of natural justice where they were applicable.

11.3.31C

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 High Court of Australia

[Ms Saeed was a Pakistani citizen who applied from Pakistan for a Skilled – Independent Visa (Subclass 175) on the basis of her work as a cook in Pakistan. A requirement of the visa was employment in the skilled occupation for at least 12 months in the 24 months immediately preceding the visa application. Inquiries made in Pakistan led the minister’s delegate to conclude she had never worked as a cook at the particular place of employment. Ms Saeed was not given the opportunity to comment on, nor made aware of the existence of, the information, before the delegate refused her application. Ms Saeed sought judicial review on the basis of a breach of natural justice. The procedural code in the Migration Act specified exhaustively the minister’s procedural obligations for dealing with visa applications. On its face the code appeared to exclude Ms Saeed’s capacity to seek judicial review for breach of the hearing rule. Specifically, s 57(3) of the Act provided that the requirement to disclose for comment ‘relevant information’ did not apply in relation to an application unless the visa could be granted when the applicant was in the migration zone, and Pts 5 or 7 of the Act provided for review of a decision to refuse the grant of the visa. Neither condition was met by Ms Saeed because her visa could only be granted while she was outside of the migration zone, and no review was provided for in the relevant parts of the Act. The court rejected the minister’s submission that Ms Saeed was not entitled to natural justice because of s 51A of the Act.] French CJ, Gummow, Hayne, Crennan and Kiefel JJ: Brennan J in Kioa v West said that, in the ordinary case, an opportunity should be given to a person affected by a decision to deal with any adverse information that is ‘credible, relevant and significant’. That approach has more recently been confirmed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs. Mason J in Kioa v West went further. In his Honour’s view the common law would require the decision-maker to bring the critical issue or factor on which the decision was likely to turn to the attention of the person. Brennan J’s approach would not deny that this may be necessary in a particular case. The requirements of s 57(1)(a) and (2)(b) are similar to those referred to by Mason J. When the minister considers that certain information would be the reason, or part of the reason, for refusing to grant a visa, the minister is to provide particulars of it in order that the visa applicant understands its relevance. The requirement in s 57(2)(b), that the minister ensure, as far as reasonably practicable, that the visa applicant understands why certain information is relevant, may go further. It would require that the importance of the information and its potential impact upon the applicant’s case for a visa be identified and the information be communicated in a way which promotes that understanding as far as is

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possible. It would also require that consideration be given to the means by which particulars of the information should be provided, as most suitable to that purpose. Section 58 lists the alternatives of writing, telephone or an interview. It is not difficult to envisage that in some cases an interview may be necessary. Not all information adverse to a visa applicant, and which may be influential to a decision to refuse to grant a visa, qualifies as ‘relevant information’, particulars of which must be provided by the minister. Section 57(1)(b) limits the information to that which is specific to the visa applicant or another person, rather than a class of persons. More general information, such as country information, is unlikely to fall within this description. It is a matter of some significance to the application of s 51A(1) to s 57, that s 57 does not apply to all visa applicants. It requires only that ‘relevant information’ be given to visa applicants who are in the migration zone. This follows from sub-s (3)(a). Sub-section (3)(b) further provides that the requirements of sub-s (2) do not apply to a visa which does not carry with it a right of review. Neither condition for the application of s 57 was present with respect to the visa for which the appellant applied. … The decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah The provisions of subdiv AB, prior to the insertion of s 51A, were considered in Ex parte Miah. The application for a protection visa was made by the applicant after he had entered Australia. The fact the application was made onshore rather than, as in the present case, offshore, is a distinction to which further reference will be made in these reasons. Section 57(2) did not apply in Ex parte Miah as the information in question was not ‘relevant information’ within the meaning of sub-s (1). The issue was whether natural justice nonetheless operated to require the provision of the information. … Section 51A and its operation Section 51A appeared as item 1 to the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). … The insertion of s 51A was plainly a response to the decision in Ex parte Miah. … … In the Explanatory Memorandum it was said that it had been the original intention of subdiv AB to provide a ‘code of procedure’ and to exhaustively replace common law natural justice requirements, other than the rule against bias. … [Their Honours referred to similar comments in the Minister’s Second Reading Speech.] As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative ‘intention’ is to be ascertained, ‘what is involved is the “intention manifested” by the legislation’. Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning. … Resort to the extrinsic materials may be warranted to ascertain that context and that objective, although it is hardly necessary to do so. But that objective cannot be equated with the statutory intention as revealed by the terms of the subdivision. The question whether s 51A in its operation has the effect contended for, of excluding the natural justice hearing rule, is to be answered by having regard, in the first place, to the text of s 51A and the provisions with which it interacts. The questions which, in turn, are raised about the operation of s 51A, it will be seen, are not answered by anything said in the extrinsic materials. This is explicable. The decision in Ex parte Miah, which s 51A addressed, was not concerned with the application of s 57 of the subdivision to offshore visa applicants.

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The declaration in s 51A(1), that the subdivision is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule, is qualified by the words ‘in relation to the matters it deals with’. … In order to give s 51A operation it is necessary to refer to the subject of the ‘matter’ with which s 57 deals as the provision of information, more generally relevant and adverse, for comment. But there is a qualification to the description of the ‘matter’, which arises from the persons to whom the information is to be provided. The terms of the section limit such persons to onshore visa applicants. The ‘matter’ with which s 57 deals, is the provision of such information to onshore visa applicants. The provision of information to offshore visa applicants, such as the appellant, is not a ‘matter’ dealt with by the sub-section. It follows that the application of the hearing rule in dealings with the appellant’s application is not excluded by subdiv AB. … It was submitted for the minister that it could not have been intended to provide that onshore visa applicants have only the procedural rights provided by s 57(1) and (2), whilst offshore visa applicants were to be afforded all that the natural justice hearing rule would require. This was the view expressed in Lay Lat. The question whether the natural justice hearing rule is not to apply to dealings with offshore visa applicants is not answered by pointing to the particular procedures provided by s 57(2) with respect to onshore visa applicants and proceeding from the premise that what was there provided was the most that any visa applicant could expect by way of procedural fairness. All that may fairly be deduced from the terms of s 57 is that it was considered to be appropriate to onshore, but not offshore, visa applicants. The reason for the differential operation of s 57, to onshore and offshore visa applicants, is not mentioned in the Act. The minister submitted that that operation must be understood in the wider scheme of the Act which may be taken to reflect policy choices about matters such as administrative convenience. Onshore visa applicants are entitled to reasons for refusal; offshore visa applicants are not. There is no strict limitation upon offshore visa applicants reapplying, as there is with respect to onshore visa applicants. The feature of onshore visa applications which explains these provisions is the right of review of the minister’s decision which is extended to them, but not to offshore visa applications. Onshore visa applicants need reasons for refusal for that purpose. The fact that their ability to reapply is limited may be explained because they have been provided with a right of review of the decision on their initial application. Further, it may be observed that the Act does not deny offshore visa applicants reasons; it simply does not oblige the giving of them in every case. In this case reasons were given. [T]he proposition that natural justice may, in some cases, require less does not lead to the conclusion that none is intended to be provided and that no consideration is to be given to what could and should be provided in an individual case. The factors pointed to by the Minister may well explain why the procedures in s 57(2) were not considered to be appropriate with respect to offshore visa applicants. The obligation of the minister, to ‘ensure’ that a visa applicant understands the relevance of the adverse information, highlights the potential for practical difficulties. Section 58 recognises that it may be necessary to conduct an interview to fulfil this obligation. This is unlikely to be practicable with respect to offshore visa applicants. It may therefore have been considered necessary to exclude offshore visa applicants from the operation of s 57, leaving considerations of what natural justice required to be determined by reference to the circumstances of a given case. Nothing is said in subdiv AB about the exclusion of the hearing rule so far as concerns offshore visa applicants. Section 57(3) excludes only the procedural requirements of s 57(2). …

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11.3.32C

Assuming, for present purposes, that s 51A as it applies to s 57, is valid and effective to exclude the natural justice hearing rule, it is excluded only so far as concerns onshore visa applicants. This follows from the terms of s 57(3), which plainly exclude offshore visas from the operation of s 57. The position of offshore visas is not addressed in subdiv AB. The provision of particulars of information to them for comment is not a ‘matter’ ‘dealt with’ by s 57 or the subdivision. … In Coco v The Queen it was said, with respect to fundamental rights, that ‘[t]he courts should not impute to the legislature an intention to interfere with fundamental rights’ (100). The same may be said as to the displacement of fundamental principles of the common law. … It follows that the implication of the natural justice hearing rule with respect to offshore visa applicants was maintained. The minister was obliged to provide the appellant with an opportunity to answer the adverse material.

11.3.32C

Calvin v Carr [1980] AC 574 Privy Council

[Mr Calvin was part-owner of a horse which had been found to have under-performed during a race at Randwick. The effect of the decision on Mr Calvin was to cancel his membership of the Australian Jockey Club. He appealed to the committee of the club, which held a hearing at which witnesses appeared and were cross-examined, and submissions were made by counsel for Mr Calvin and the jockey. The committee dismissed the appeal. Mr Calvin commenced proceedings in the Supreme Court of New South Wales, claiming that he was denied natural justice by the stewards, and that the committee’s decision did not cure the defect of the stewards. The Privy Council dismissed the challenge. (Although the decision concerns a domestic (that is, non-government) tribunal, the principles enunciated by the court are generally applicable to government tribunals.)] Lord Wilberforce (delivering the judgment of the Privy Council): [T]heir Lordships recognize and indeed assert that no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at an original hearing, whether administrative or quasi-judicial, can be ‘cured’ through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so. … [I]t is for the court in the light of the agreements made, and in addition having regard to the course of proceedings, to decide whether, at the end of the day, there has been a fair result reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association. Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect of appeals or rehearings will not be sufficient to produce a just result. Many rules (including those now in question) anticipate that such a situation may arise by giving power to remit for a new hearing. There may also be cases when the appeal process is itself less than perfect: it may be vitiated by the same defect as the original proceedings: or short of that there may be doubts whether the appeal body embarked on its task without predisposition or whether it had the means to make a fair and full inquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no

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doubt be right to quash the original decision. These are all matters (and no doubt there are others) which the court must consider. Whether these intermediate cases are to be regarded as exceptions from a general rule, as stated by Megarry J or as a parallel category covered by a rule of equal status, is not in their Lordships’ judgment necessary to state, or indeed a matter of great importance. What is important is the recognition that such cases exist and that it is undesirable in many cases of domestic disputes, particularly in which an inquiry and appeal process has been established, to introduce too great a measure of formal judicialization. While flagrant cases of injustice, including corruption or bias, must always be firmly dealt with by the courts, the tendency in their Lordships’ opinion in matters of domestic disputes should be to leave these to be settled by the agreed methods without requiring the formalities of judicial processes to be introduced.

11.3.33C

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11 High Court of Australia

[An extract from this judgment including the facts is given in 11.3.4C. The Criminal Justice Commission Act 1989 (Qld) provided that the reports of the Criminal Justice Commission were to be presented to a committee of the parliament, which broadly discharged the role of monitoring and overseeing the operations of the commission. The parliamentary committee could conduct public hearings on a report of the commission. The commission argued in this case that the role of the committee was a relevant factor in deciding whether there had been a breach of natural justice by the commission.] Mason CJ, Dawson, Toohey and Gaudron JJ: It was argued on behalf of the Commission that the appellants had not been deprived of any entitlement to procedural fairness because the entitlement arose in an entire process which included the public hearings of the Parliamentary Committee. It was put that that entitlement had been or might yet be satisfied in the course of those hearings. It is not in doubt that, where a decision making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if ‘the decision-making process, viewed in its entirety, entails procedural fairness’ (South Australia v O’Shea [11.2.18C] per Mason CJ at 389). The difficulty in the present case is in viewing the Commission and the Parliamentary Committee as engaged in the one decision-making process. That is because the report was the final step in the discharge by the Commission of the functions and responsibilities which were brought into play by its decision to investigate and report with respect to the introduction of poker machines. Moreover, the functions and responsibilities of the Commission and of the Parliamentary Committee are separate and distinct and serve quite different purposes … These functions are very different from those of the Commission. They are directed to the entirely different purposes of monitoring and supervising the Commission, and of reporting to the Parliament with respect to its activities. It may be that, in a particular case and as an incident to the discharge of its own functions and responsibilities, the Parliamentary Committee will redress an unfairness perpetuated

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by the Commission. But that is not its function. And certainly it is under no obligation in that regard. It may be that the Parliamentary Committee has redressed or will redress the unfairness involved in this case — at least in the sense of giving the appellants an opportunity to answer what was put against them in the report. But, if so, that cannot alter the fact that their reputation was blackened in circumstances in which the Commission should have given, but did not give, them an opportunity to put their side of the matter. [Brennan J delivered a concurring judgment.]

Circumstances that can affect whether natural justice applies 11.3.34  On the particular occasion that a power is to be exercised, there may be circumstances that make it inappropriate for a hearing to be given. This issue could alternatively be approached as an issue of implication or ‘content’ (for example, that the obligation to accord natural justice had been reduced to ‘nothingness’ on this particular occasion). Little turns on how the issue is framed. 11.3.35  The following three cases illustrate situations in which the nature of a statutory power or the circumstances in which it is being exercised displace a procedural fairness implication. In South Australia v  Slipper 11.3.36C the circumstance was the need for an urgent decision to be made; in Jaffarie 11.3.37C it was natural security considerations; and in CPCF 11.3.38C it was the exercise of a maritime power. Another situation, discussed in Kioa 11.2.16C, is where a hearing would defeat the objects of the statute by alerting a person to the fact that they were subject to law enforcement action. Another illustration of urgent action displacing the obligation was considered in Re Hatfield and Comcare [2010] AATA 848 when the removal of an AUSAID officer from a foreign posting had to take place immediately when his right of entry was revoked by the foreign government; there was no unlawful action since he was to be offered natural justice on his return to Australia. Other cases in which national security considerations have been noted are Ridge 11.1.19C, CCSU 2.3.10C, and Leghaei 11.2.15. 11.3.36C

South Australia v Slipper (2004) 135 FCR 259 Federal Court of Australia (Full Court)

[The court held in this case that the Commonwealth had acted unlawfully in utilising a special process in the Lands Acquisition Act 1989 (Cth) to make an urgent compulsory acquisition of land in South Australia for the burial of nuclear waste. Under that special process, a hearing procedure specified in the Act for the compulsory acquisition of land did not apply. The court held that the circumstances did not justify the use of the special process by the Commonwealth (see 10.2.18). In the course of reaching that conclusion Finn J (Branson and Finkelstein JJ agreeing) discussed the application of the rules of natural justice to decisions to be made urgently.]

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Finn J: [T]he following considerations provide well-accepted guidance: (i) the particular statutory framework in which a power is to be exercised will be given full effect in determining what procedural fairness requires: Mobil Oil Australia v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503–4; (ii) procedural fairness will not require, for example, the giving of a notice, the provision of information, or a right to be heard where so to do would in the circumstances frustrate the purpose for which a particular power has been conferred: Kioa v West at 586; Johns v Australian Securities Commission (1993) 178 CLR 408 at 431; (iii) the need for urgent exercise of a statutory power can either limit the opportunity of an affected person to be heard or, in exceptional cases, reduce the content of procedural fairness ‘almost to nothingness’: Marine Hull [11.3.27C] at 240–2; (iv) the relative seriousness of the consequences occasioned to a person by the exercise of the power in question can affect the content of procedural fairness or can justify giving it some consequence even if, in the circumstances, fairness can only be accorded in an attenuated form: Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 at 599B; (v) the circumstance that there is no apparent likelihood that the person directly affected by the exercise of a power could successfully oppose its exercise, does not diminish or practically exclude the obligation to afford procedural fairness: Kioa v West at 633; and (vi) though it is for the court to determine what procedural fairness requires a decision maker to do if he or she is not to be found to have acted unfairly in the circumstances, it is not for the court to determine that better or fairer procedures could have been adopted by the decision maker if those actually adopted are not shown to be unfair: Rose v Bridges (1997) 79 FCR 378 at 386. It is, in my view, clear given the nature and purpose of the s 24 and s 41 powers, that circumstances of urgency of such an immediate and compelling character could arise as could deprive the procedural fairness requirement of all practical content when need compelled the exercise of those powers conjointly. That this consequence can ensue notwithstanding the effect compulsory acquisition may have on a landowner, merely reflects how in a situation of exceptional urgency the balance of fairness can result in the subordination of the interests of the landowner to the public interest served by exercise of those powers. When one has regard to the actual circumstances of the present matter, it cannot properly be said that a situation of such exceptional urgency existed as would justify the reduction of the requirements of procedural fairness to ‘nothingness’. My reasons for this conclusion can be put shortly … [T]he first respondent had the practical capacity to acquire the two sites under s 41 at the time of his choosing. Importantly, if the likelihood of the South Australian Parliament’s actually passing the Public Park Bill 2003 became real and immediate, Mr Slipper would then have been confronted with a threat that was materialising. That new state of clear and present urgency would have justified his exercise of the s 41 acquisition power without further affording procedural fairness, for otherwise the very purpose of the s 41 power would be frustrated. In my view there was no such clear and present urgency nor had a situation arisen which justified occasioning the consequences to the affected owners’ interests that the s 41 decision did, without giving them any measure of procedural fairness.

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11.3.37C

Jaffarie v Director General of Security (2014) 226 FCR 505; 313 ALR 593; [2014] FCAFC 102 Federal Court of Australia (Full Court)

[The minister cancelled Mr Jaffarie’s visa on the basis of an adverse security assessment by the Australian Security and Intelligence Organisation (ASIO). Mr Jaffarie challenged the minister’s decision, claiming he was denied procedural fairness as he lacked sufficient information about the security assessment to make a submission. He had been provided with a set of ‘unclassified reasons’, setting out some of the reasons for the minister’s decision. The Full Federal Court dismissed the challenge, finding he had been given sufficient information to put him in a position where he could make meaningful submissions.] Flick and Perram JJ: The content of the rules of natural justice or procedural fairness, where those rules apply, is infinitely variable and must necessarily take into account the statutory context in question. And, in the present context, ‘whether the obligation to afford natural justice has been discharged is not to be evaluated minutely or in a manner divorced from its context’: Habib v Director-General of Security [2009] FCAFC 48 at [77] per Black CJ, Ryan and Lander JJ. … The mere fact that more information may have been made available to him during the course of the present hearing does not necessarily say anything as to whether the initial disclosure in the ‘Unclassified Reasons’ was sufficient to afford procedural fairness. In resolving that question a balance necessarily must be struck between protecting that information which must remain undisclosed by reason of the claim for public interest immunity and the legitimate and important rights of ensuring procedural fairness to Mr Jaffarie … It is concluded that in the context of decisions being made as to national security, an argument as to a denial of procedural fairness is not to be resolved by identifying further information which could (with the benefit of hindsight) have been disclosed to an affected person. The argument is to be resolved by the more generally expressed touchstone as to whether the person has — on balance — been given sufficient information to fairly put him in a position where he can make meaningful submissions. In the present case, and notwithstanding the fact that further information was disclosed to Mr Jaffarie during the hearing, the ‘Unclassified Reasons’ put him in a position whereby he could make meaningful submissions as to the issues of which he was aware, including: • his involvement with people-smuggling; • the finding that he had ‘concealed and protected his involvement in people smuggling activities by providing false and misleading information’; and • his ‘association with individuals involved in people smuggling’. As the course of the hearing revealed, Mr Jaffarie could have been told at the outset (for example) of his alleged involvement with Mr Abbas. It is regrettable that the information which was ultimately disclosed to Mr Jaffarie was not disclosed at the outset. As full and as frank a disclosure of such information as is consistent with maintaining a claim for public interest immunity privilege should be made at the outset; the disclosure of as much information as possible should not depend upon judicial intervention to ‘encourage’ the disclosure of information which could have been, and should have been, disclosed voluntarily. In different

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circumstances, a failure to disclose at the outset all of that information which could be legitimately disclosed may attract a different conclusion. But, on balance, it is concluded that enough was disclosed to enable Mr Jaffarie the opportunity to make meaningful submissions. The argument as to a denial of procedural fairness is rejected.

11.3.38C

CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 High Court of Australia

[Australian authorities intercepted a ship travelling under an Indian flag in international waters. The passengers were detained on an Australian vessel. The maritime officers who held and moved the passengers acted under the Maritime Powers Act 2013 (Cth) (MP Act). Section 72 of the MP Act empowered maritime officers to detain people in Australia’s contiguous zone and take those people to a place in the migration zone (which was typically a detention facility beyond Australian territory). Section 74 stated that maritime officers must not place or keep people in a place unless satisfied, on reasonable grounds, that it was safe for the person to be in that place. The National Security Committee of Cabinet decided that the passengers should be removed to India. India had not yet consented to this transfer of the passengers, so they were transferred to the Cocos Islands. While in transit, the plaintiff commenced proceedings in the original jurisdiction of the High Court, seeking damages for unlawful detention. Questions arose about whether ss 72 and 74 were subject to the requirements of natural justice. The High Court held that the operation of the legislation precluded the operation of procedural fairness.] Hayne and Bell JJ: Section 74 of the MP Act deals expressly with the personal safety of a person who is or was on a detained vessel. But apart from considerations of personal safety, the person from the detained vessel has no relevant right, interest or expectation which may be adversely affected by the decision about which of the three powers given by s 72 is to be used in consequence of the vessel’s detention, or about how one or other of those powers is to be used. It may be accepted, for the purposes of argument, that the person’s rights, interests or expectations are affected by the vessel being detained and, in consequence, he or she becoming subject to s 72. But that affecting of rights, interests and expectations has happened by the time a maritime officer comes to deciding which of the powers given by s 72 is to be used and how it is to be used. So, for example, detention of the vessel, and consequent prevention of the commission of a suspected contravention of the law, may well have defeated some expectation of the persons on the vessel about seeking to enter Australia. But that expectation has already been defeated when the maritime officer is deciding where the person from the detained vessel should be taken or placed. Because s 74 deals expressly with personal safety, s 72’s conferral of power on a maritime officer to decide where a person who is or was on a detained vessel should be taken or placed (whether on the detained vessel or elsewhere) should not be read as obliging the maritime officer to give the person a hearing about which of the powers is to be exercised or how it will be exercised. More particularly, in deciding whether to detain and take to a place in Australia or to a place outside Australia a maritime officer is not obliged to ask the person which of those courses should be taken.

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Gageler J (Bell J agreeing on this issue): Whilst the conclusion that no part of the exercise of the maritime power conferred by s 72(4) necessarily involves a maritime officer making a decision is sufficient to reject the primary way in which it is argued on behalf of the plaintiff that the validity of the exercise of the maritime power is impliedly conditioned on the observance of procedural fairness, it is not alone sufficient to exclude the implication of procedural fairness. The implication of procedural fairness is the product of a strong common law presumption applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests. Forcibly taking a person to a place to which the person does not want to go has an obvious immediate adverse effect on that person’s right to liberty and may have longer term adverse effects on other rights and interests of the person depending on conditions which exist in the place to which the person is forcibly taken. Procedural fairness as implied in some contexts can have a flexible, chameleon-like, content capable of varying according to the exigencies of the exercise of power between nothingness at one extreme and a full-blown trial at the other. To imply procedural fairness as a condition of the lawful exercise of a statutory power is therefore not necessarily to require a hearing in every case in which the power might be exercised. Ordinarily, procedural fairness does not require providing a person whose interests are likely to be affected by an exercise of statutory power any greater opportunity to be heard than is reasonable in all the circumstances. There are, however, two other factors which tell against the implication of procedural fairness as conditioning the exercise of the power conferred by s 72(4) to any degree and in any circumstances. One is the very nature of a maritime power, conferred as it is exclusively on maritime officers. To pick up on the earlier quoted language of the Explanatory Memorandum, maritime powers are powers which maritime officers must be able to exercise flexibly and quickly in the maritime environment, particularly in circumstances of urgency. Just as it has been recognised that it might conflict with the exercise of statutory responsibilities for the common law to impose a duty of care in the exercise of a statutory power of investigation, and that it would be ‘opposed alike to reason and to policy’ for the common law to impose a duty of care in the conduct by military personnel of warlike operations, so too it would be incongruous for the common law to imply a duty on a maritime officer to afford procedural fairness as a condition of the exercise of a maritime power. The implication would be tantamount to imposing an obligation on a maritime officer to afford a detained person an opportunity to present a case as to where the person should or should not be taken whenever the circumstances are such that a court might later judge that it would be reasonable for the person to be afforded that opportunity. Taking a person to a place in breach of that obligation (because it would result in a withdrawal of the authority conferred by the power) would result in the maritime officer acting unlawfully and being liable to the person in tort for false imprisonment. The implication would go beyond ‘supply[ing] the omission of the legislature’, to the point of impairing the operation of the legislation. The other factor which tells against the implication of procedural fairness as a condition of the exercise of the maritime power conferred by s 72(4) is the presence of s 74. The prohibition in that section, against a maritime officer placing a person in a place ‘unless the officer is satisfied, on reasonable grounds, that it is safe for the person to be in that place’, has application (amongst other circumstances) to the placing of a person on land by a maritime officer exercising the maritime power conferred by s 71 after the person has been taken to a place in the exercise of the power conferred by s 72(4). [French CJ held that natural justice did not apply to ss 72 and 74 because of the nature and purposes of the powers and the circumstances in which they were exercised. Kiefel J held that

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the Act did ‘not admit of an opportunity to be given to the plaintiff to comment upon where he might be taken and whether he should be detained in that process.’ Her Honour held that the unseaworthy state of the ship meant that maritime officers had no option other than to remove the passengers from their ship and take them to a safe place. The plaintiff had no right, interest or expectation in these circumstances and no opportunity to comment on the actions of maritime officers could arise: at 606–7.]

THE HEARING RULE — CONTENT Development of the principles 11.4.1  The essence of natural justice is that a person should be given a hearing before a decision is made that adversely affects a legally recognised right, interest or expectation which they hold. The nature of the hearing can vary, ranging from a judicial-style hearing with legal representation and formal presentation and testing of evidence, to an administrative-style hearing in which there is an exchange of correspondence between a government agency and a person, or possibly only a telephone conversation or meeting. As that spectrum indicates, there are no fixed or unalterable rules: the requirements of natural justice depend on the circumstances of the case. If there is a minimum requirement, it is for procedural fairness in the individual case. 11.4.2  Most of the principles and classic statements detailing the requirements of natural justice were forged in an era when the doctrine had a more limited application. The extension of natural justice to a far greater range of administrative decisions has meant that the focus has sometimes shifted. There is, for example, less emphasis in many recent cases on a person being given a general outline of the case against them (as emphasised in cases such as Cooper 11.1.18C and Ridge 11.1.19C) and more emphasis upon a person being told of a specific item of prejudicial information (as in Kioa 11.2.16C, Miah 11.2.19C, SZBEL v  Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 and SAAP v  Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294). Another contextual change is that it is now more common for statutes to spell out procedural requirements as to how decisions should be made. In that setting, the pivotal issue is often whether natural justice supplements the statutory hearing code by imposing an additional requirement. A statutory code can have the unintended consequence that the fair process requirements are more onerous than they would be at common law. An illustration is SAAP, in which the High Court held by majority that s 424A of the Migration Act required the Refugee Review Tribunal (RRT) to adjourn a video hearing to provide written notice to a person, who could not speak English and who was represented by a migration agent, of an item of information mentioned by a relative of the person during the video hearing. However, the High Court has suggested that the requirements of SAAP should not lead to punctiliousness in following statutory procedural codes. Rather, regard to ‘the extent and consequences of the departure’ must be had; where the manner of providing notice of a hearing under the statute was not correctly followed but the parties had actual notice, no substantive injustice arose: Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627. Similar reasoning underlies the decisions in Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 (whether ss 424(3) and 424B of the Migration Act require the RRT to issue a written invitation to a witness before conducting a telephone interview in every circumstance); 712

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11.4.4

Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448 (whether particulars of information provided by an informant concerning the applicant’s allegedly sham marriage were ‘non-disclosable’ information pursuant to s 359A of the Migration Act); and Minister for Immigration and Citizenship v SZMTR (2009) 180 FCR 586 (addressing of notice where the applicant is known by two names). 11.4.3  The classic principles concerning the content of the hearing rule are stated in the following extracts from four different cases: Tucker LJ: There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend 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 … [B]ut, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case. [Russell v Duke of Norfolk [1949] 1 All ER 109]

Lord Loreburn LC: [T]hey must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. [Board of Education v Rice [1911] AC 179]

Brennan J: To ascertain what must be done to comply with the principles of natural justice in a particular case, the starting point is the statute creating the power. By construing the statute, one ascertains not only whether the power is conditioned on observance of the principles of natural justice but also whether there are any special procedural steps which, being prescribed by statute, extend or restrict what the principles of natural justice would otherwise require. [Kioa 11.2.16C]

Gageler J: Procedural fairness as implied in some contexts can have a flexible, chameleon-like, content capable of varying according to the exigencies of the exercise of power between nothingness at one extreme and a full-blown trial at the other. To imply procedural fairness as a condition of the lawful exercise of a statutory power is therefore not necessarily to require a hearing in every case in which the power might be exercised. Ordinarily, procedural fairness does not require providing a person whose interests are likely to be affected by an exercise of statutory power any greater opportunity to be heard than is reasonable in all the circumstances. [CPCF 11.3.38C]

11.4.4  As these extracts indicate, there is no standard formula for a fair hearing. The essence of the rules about content is their flexibility — their need to be ‘chameleon-like’ as Brennan J noted in Kioa 11.2.16C. The requirements may vary from time to time, in relation to the same tribunal making the same type of decision that it has made before. Justice McHugh in Miah 11.2.19C listed a group of factors for excluding or limiting natural justice. As mentioned earlier, these factors could apply either to the exclusion issue, or to content. More generic factors that will determine the requirements in each case include: • the statutory framework;

• the circumstances concerning the individual decision to be made; • the subject matter of the decision;

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• the nature of the inquiry; and

• the rules of the tribunal (for example, the procedures that it has normally adopted or which are statutorily required).

Discussion of these factors can be found in Kioa 11.2.16C, Miah 11.2.19C and Slipper 11.3.36C. 11.4.5  The approach under content is essentially similar to that under implication, but with two important differences. First, in determining content the factors are applied in a far more discretionary fashion, and the emphasis rests to a greater extent on ascertaining the individual facts of each case. Second, for content the weight that is given to each factor may differ from the weight that is accorded to the factors under implication. For example, in content, it is the nature of the tribunal (for example, court or administrator) that is probably the most important factor, as Gleeson CJ and Hayne J noted in Miah 11.2.19C: At one extreme, an application may be made to a judicial decision-maker, in a context in which curial standards of procedural fairness will apply to the fullest extent … Most administrative decisions are made in circumstances where a much less formal and extensive form of communication than that which occurs in a court is contemplated.

11.4.6  If there is a breach of a procedural fairness requirement, a person is ordinarily entitled to relief. At least historically, it was not necessary for a person to show that the breach had a material impact on the decision, or that a different decision might have been reached. In fact, the position is reversed: a person is entitled to relief unless the court is satisfied that the breach could have had no bearing on the outcome. As the High Court said in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147: ‘All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome’. See also Aala 17.1.14C at 116–17. The observation of Gleeson CJ in Lam 11.3.14C at 14 that ‘the concern of the law is to avoid practical injustice’ has to be read in that context. Whether there was practical injustice or unfairness is a relevant matter in deciding if there was a breach of natural justice; but once a breach has been established a person is ordinarily entitled to relief without having to demonstrate unfairness in the result: see Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541. The principles from Stead were explained further in Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492 in these terms: Redlich JA (Warren CJ and Chernov JA agreeing): In my view, the principle laid down in Stead contemplates two circumstances in which relief may be refused. It will be refused if upon analysis of the basis for the decision there is an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by the procedural unfairness. It will then be concluded that the applicant could not possibly have obtained a different outcome. Second, even where the subject of the procedural unfairness touched upon an issue in dispute that was material to the decision, relief may be refused if the respondent can demonstrate that it would be futile to hold a further trial because the result would inevitably be the same.

The reasoning just quoted focuses on when and why relief for a breach of natural justice may be denied. This issue is closely related to the question of ‘who must prove what?’ Should applicants show that the denial of fairness somehow robbed them of the chance of a successful outcome? Or should the official responsible for the denial of fairness be required to show that failure could not possibly have made any difference? The High Court has just made clear that 714

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these questions are not isolated to natural justice and can arise in questions of jurisdiction. Those findings were made in Hossain v Minister for Immigration and Border Protection 11.4.7C. 11.4.7C

Hossain v Minister for Immigration and Border Protection [2018] HCA 34 High Court of Australia

[Mr Hossain was refused a partner visa by a delegate of the minister. That decision was affirmed by the AAT for two reasons. First, Mr Hossain lodged his application within 28 days of ceasing to hold an existing visa. This criterion did not apply if the minister (or the AAT exercising its review powers) was satisfied there were ‘compelling reasons for not applying’ it: Migration Regulations 1994 (Cth) Sch 2 cl 820.211(2)(d)(ii), Sch 3, cl 3001. Second, he had a long unpaid debt to the Commonwealth. This criterion could be overcome if the minister (or the AAT exercising its review powers) was satisfied ‘appropriate arrangements have been made for payment’: Sch 2 cl 820.2223(1)(a), Sch 4, cl 4004. The AAT found that Mr Hossain did not satisfy either criterion and refused his application. The Federal Circuit Court found a jurisdictional error in the AAT’s application of these criteria. The Full Federal Court also held that jurisdictional error occurred in the AAT but a majority found that error did not overcome the fact that Mr Hossain failed to satisfy the criteria. The High Court unanimously dismissed an appeal from that finding and did so mostly by reference to principles of jurisdictional error and invalidity but its discussion of these principles is relevant to natural justice because the reasoning considered when a breach of natural justice might lead to an invalid decision.] Kiefel CJ, Gageler and Keane JJ: [Their Honours explained that breaching conditions or requirements in a statute did not always lead to invalidity because ‘a statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance’: at [29]. Their Honours continued:] [30] Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of ‘the possibility of a successful outcome’, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was ‘so insignificant that the failure to take it into account could not have materially affected’ the decision that was made. Edelman J: [72] [An] error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome. One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. [Nettle J delivered a separate judgment which substantially agreed with Edelman J.]

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11.4.8  The consequences of Hossain 11.4.7C for the principles governing natural justice are unclear — when will the consequences of a breach of a condition or requirement in legislation be sufficiently ‘material’? Is there a link between ‘materially affected’ and the question of whether the result would have been different if fairness was observed? These questions do not arise if complex legislative criteria do not apply, as was illustrated in a probate case delivered by the High Court on the same day as Hossain. In Nobarani v Mariconte [2018] HCA 36, the High Court considered the case of someone claiming an interest in a will and who had lodged caveats against the grant of probate to another person. The claimant was not joined to the application for probate and appeared at a directions hearing, thinking that the next steps would involve the removal or maintenance of his caveats. Just days before a hearing about the grant of probate, the applicant was directed to file and serve a statement of claim. The hearing began the following week and the applicant was joined as a party on the first day. The applicant was unrepresented, clearly taken by surprise and his case was in complete disarray but his application for an adjournment was denied. The trial judge gave oral judgment two days later against the applicant. In argument before the High Court, the party who had been granted probate argued that relief against the apparently unfair initial hearing should not be granted because the applicant’s substantive case would clearly fail. The High Court unanimously held that ‘[i]t would be rare that such a submission succeeds. In this case, the submission cannot be accepted because it suffers from an erroneous basic assumption. That assumption is that this Court should attempt such an assessment by, in effect, conducting a hypothetical trial’: Nobarani at [48] (Kiefel  CJ, Gageler, Nettle, Gordon and Edelman JJ). Their Honours noted there was uncertainty about the witnesses who might be called, whether their evidence would be fully admitted, what would emerge in examination and cross examination, and what inferences could and should be drawn from the evidence. These aspects of Nobarani highlight a problem for a party who submits that a court should refuse relief for a denial of natural justice on the discretionary ground that observing fairness would not have changed the result of the earlier hearing. If there is substantive evidence that has not been called or tested, how can a review court be sufficiently sure the result would not change? 11.4.9  The heightened focus that is now given to the issue of ‘practical unfairness’ in deciding if there is an actionable breach of natural justice is illustrated in the following cases:

• Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2008] NSWSC 399: The failure to invite submissions on a material part of the adjudicator’s reasoning (regarding the application of a ‘no contracting out of the Act’ provision) did not give rise to a breach of procedural fairness because no submission could have made a difference to the adjudicator’s decision. McDougall J concluded at [45]: It does not follow… that any failure by an adjudicator to ask for submissions on a matter not raised by one of the parties will amount to denial of natural justice sufficient to justify a declaration that the determination is void. … In addition, perhaps, it must be at least arguable that meaningful submissions could have been put if an opportunity to put them had been afforded: ie that there was something to be put that might well persuade the adjudicator to change his or her mind.

• SZIZO 11.4.2: The statutory procedure for providing notice of a hearing was not followed but the parties did in fact receive a copy of the relevant material, so they received actual notice. The High Court held that whether unfairness had occurred should be determined by examination of the circumstances. In this case the failure to comply with specific statutory 716

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notice requirements did not cause any unfairness when the parties clearly got the notice which that procedure intended them to receive.

• TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361: In some circumstances the absence of any evidential or material foundation for a decision provides only a futile illusion of unfairness. The Full Federal Court (Allsop CJ, Middleton and Foster JJ) noted at 392 that it is ‘necessary to avoid the procedural aspects of natural justice being reduced to a charade’ which arises in ‘the necessary presence of unfairness in the impugned decision’ (emphasis in original). The court continued: [T]he essence of natural justice is fairness — it is its root as a legal conception and it lies at the heart of its operation. Unless there is unfairness, true practical injustice, there can be no breach of any rule of natural justice.

Specific principles concerning the content of the hearing rule Outline of the content element of the hearing rule 11.4.10  Normally, there are three minimum requirements of the hearing rule: • prior notice that a decision will be made;

• disclosure of an outline or the substance of the information on which the decision is proposed to be based (that is, a summary of the case that has to be met); and • an opportunity to comment on that information, and to present the individual’s own case.

These tests were fleshed out by the Full Federal Court in a frequently quoted passage in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decisionmaker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

The requirement to give prior notice, disclosure and an opportunity to comment 11.4.11  There is no prescribed form, nor are there any formal requirements, with which a notice has to comply: it simply has to be a notice that is prior to the decision and adequate in the circumstances. In practical terms, it is generally necessary for the notice to be in writing: Andrews v Mitchell [1905] AC 78 at 81 (Lord Halsbury LC). The notice must contain details of the date and place of the decision or hearing, as was required, for example, by Byles J in Cooper 11.1.18C. Prior notice means providing adequate time to prepare a case. Hence in R v Thames Magistrates’ Court; Ex parte Polemis [1974] 1 WLR 1371, a captain of a vessel charged with discharging oil into navigable waters received a summons in the morning of the day on which 717

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the ship was to sail, to appear before the court at 2.00pm that day. As Lord Widgery CJ put it in finding the notice gave insufficient time to prepare a case: It seems to me to be totally unarguable that [the captain] was given such a reasonable opportunity. He had no time to take samples, no time to see a report of the samples taken by the prosecution, no time to look for witnesses, no time to prepare any supporting evidence supportive to his own, and that too when he was a man with a very rudimentary knowledge of the English language in a country foreign to his own.

There is no hard and fast rule about the amount of time required to prepare a case, but as Lockhart J noted in Ansell v Wells (1982) 43 ALR 41, an appellant in a promotions appeal ‘must have an opportunity quietly to consider the allegations against him, and, if necessary, to obtain material to rebut them’: at 62; see 11.4.13. Similarly in Love v AFL Canberra Ltd [2009] ACTSC 135, the failure to provide the appellant, before the hearing, with video evidence of his alleged elbowing of an opponent which led to an eight-week suspension, was a breach of natural justice. In Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807, it was held that 14 days was inadequate to enable a person to respond to a notice of intention to cancel his permanent visa as well as his ‘absorbed person’ visa. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 it was held that an adjournment of 30 minutes to review evidence of more than 350 pages was insufficient because the material was complicated and preparing a response ‘would not have been an easy or quick task, even for experienced lawyers’: at [142]. 11.4.12  Adequate content generally means specification of the complaint (charge, order, proposal, resolution, or other finding) in sufficient particularity to enable the person affected to know the case they have to meet. As Dixon J noted in Johnson v Miller (1937) 59 CLR 467, ‘a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge’: at 489. Or as Denning LJ is often quoted as saying on this topic: ‘If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him’: Kanda v Government of Malaya [1962] AC 322 at 337. 11.4.13  What is sufficient particularity will vary according to the circumstances. In classic cases like Cooper 11.1.18C and Ridge 11.1.19C the defect identified by the courts was a general failure to disclose broadly the case to be met, not a particular failure to disclose a precise bit of information. However, a higher level of detail is required in cases where a person’s livelihood or liberty is at stake, extending to a reference to the legislation under which charges are brought, and the different items of evidence to support a charge. For example, in Durani v Minister for Immigration and Border Protection (2014) 314 ALR 130, the court held that Mr Durani was denied procedural fairness because the minister failed to inform him that he proposed to cancel his visa on ‘national interest’ grounds on the basis of past criminal convictions. In Seiffert v Prisoners Review Board [2011] WASCA 148 the Court of Appeal found that a decision to cancel Mr Seiffert’s parole did not conform to the requirements of procedural fairness because ‘[h]e was not given any notice of the Board’s intention to consider the cancellation of his parole, or of the matters which the Board proposed to take into account in that regard, nor was he given any opportunity to respond to the allegations that had been made against him, or to put any matters before the Board for its consideration’: at [70]. (In the result, the decision was not invalid as the legislation excluded natural justice by the board and made other arrangements for a person to be heard.) 718

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11.4.14  Often, however, it will not be necessary to specify in detail the precise elements of a decision, or to disclose the actual documents on which a body will rely; a summary will be sufficient, as Lockhart J found in Ansell in relation to an appeal against a promotion decision. A person is entitled to be told about information, even if it was previously known to them, if a decision-maker proposes to take it into account adversely to the person’s interests. The absence of sufficient particularity is exemplified in R v Pharmacy Board of Victoria; Ex parte Broberg [1983] 1 VR 211, where O’Bryan J pointed out that not only did the notice give Mr Broberg insufficient particulars of the principal allegation, namely, that he allegedly dispensed prescriptions while not sober, but that it also lacked other vital particulars. O’Bryan J noted: ‘The notice does not indicate why the Board is holding an enquiry, it does not give the applicant any information about [the legislative provision] so as to acquaint him with the seriousness of his position and it does not advise the applicant why he is required to attend the Board’: at 215. 11.4.15 Since Kioa 11.2.16C, in particular, the level and specificity required in the notice has been a vexed one. Cases like Kioa, Miah 11.2.19C and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs 11.4.16C have emphasised that ‘an opportunity should be given to deal with adverse information that is credible, relevant and significant’: Kioa at 629 (Brennan J). That is, the focus has switched from disclosing generally ‘the case to be met’ to the need to disclose specific and prejudicial information. In Kioa, for example, most of the judges complained only of the failure to disclose paragraph 22 of the briefing paper. This switch in emphasis reflects the extension of natural justice into more routine decisionmaking. The importance and meaning of the phrase — ‘credible, relevant and significant’ — was explained by the High Court in Applicant VEAL at 95–7. The decision deals also with the question of when confidential information held by a government agency must be provided to a person. 11.4.16C Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; 222 ALR 411 High Court of Australia [The applicant and his wife, who were Eritrean nationals, applied for protection visas. The application was refused by a delegate of the minister, whereupon they sought review by the Refugee Review Tribunal. Before the review was concluded the department received a letter in which its author alleged that the applicant had told the author he was an employee of the Eritrean Government and that he had killed a prominent political figure in Eritrea. The author gave a name and address but requested confidentiality for the letter. As required by the Migration Act, the letter was provided by the department to the tribunal which, in affirming the refusal to grant a protection visa, noted that it had been unable to test the contents of the letter so had given the letter ‘no weight’. The High Court held that at that time (prior to later legislative amendments) a common law obligation to observe natural justice applied to the tribunal; and that the failure of the tribunal to notify the contents of the letter to the applicant before reaching a decision was a breach of natural justice.] Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ: In the courts below much emphasis was given to the Tribunal’s statement, in its reasons, that it gave no weight to the letter or its contents. This statement was treated as inviting two questions: was the statement to be taken at face value and, if it was, could the letter nonetheless have had some influence upon the

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outcome of the matter? As these reasons will show, it is not useful to begin the inquiry about procedural fairness by looking to what the Tribunal said in its reasons. Rather, as procedural fairness is directed to the obligation to give the appellant a fair hearing, it is necessary to begin by looking at what procedural fairness required the Tribunal to do in the course of conducting its review … Particular emphasis was given in argument in this Court … to two propositions stated by Brennan J [in Kioa v West 11.2.16C at 629]. The first proposition was that ‘in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made’; the second proposition was that ‘[i]nformation of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information’. At once it can be seen why argument was directed to what, if any, significance was to be attached to the Tribunal’s statement that it gave no weight to the letter. Did this, as the Minister contended, show that the letter and the information it conveyed was not relevant or significant to the Tribunal’s decision? Was there, nonetheless, a real risk of subconscious prejudice? Was this a case, as the Minister contended, where the ‘problem of confidentiality’ required some different treatment of adverse information even if that information appeared to be credible, relevant and significant? ‘Credible, relevant and significant’? What is meant by ‘adverse information that is credible, relevant and significant to the decision to be made’? As is always the case, what is said in reasons for judgment must be understood in the context of the whole of the reasons. Examining sentences, or parts of sentences, in isolation from the context is apt to lead to error. In particular, what Brennan J said about ‘information that is credible, relevant and significant’ takes its meaning from the point his Honour had made only a few sentences earlier: that ‘[a]dministrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made’. Moreover, what is meant by ‘credible, relevant and significant’ must be understood having regard also to the emphasis that his Honour had given earlier in his reasons to the fundamental point that principles of natural justice, or procedural fairness, ‘are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise’. Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached. It follows that what is ‘credible, relevant and significant’ information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. … ‘Credible, relevant and significant’ must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is ‘credible, relevant and significant’ are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.

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It follows that the Tribunal’s statement, that it gave no weight in reaching its decision to the letter or its contents, does not demonstrate that there was no obligation to reveal the information to the appellant and to give him an opportunity to respond to it before the Tribunal concluded its review. Deciding that it could reach its conclusion on other bases did not discharge the Tribunal’s obligation to give the appellant procedural fairness. Subconscious effect? Is it nonetheless relevant to ask whether the letter had or might have had some subconscious effect on the Tribunal in this case? … As has later been rightly said, ‘the necessity to disclose such material in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision’ (NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561 at 583 per Allsop J). It follows that asking whether, despite what was said in its reasons, the Tribunal may have been subconsciously affected by the information distracts attention from the relevant inquiry. The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached. The letter and its contents The information set out in the letter about the appellant could not be dismissed from further consideration by the Tribunal as not credible, or not relevant, or of little or no significance to the decision. [The majority referred to the content of the letter.] What the appellant was alleged to have admitted, and whether the appellant was working for the present government of his country of origin, were matters that bore upon whether he had a well-founded fear of persecution for a Convention reason. Both what he was alleged to have done, and the fact that the allegation had been made, could be seen as a reason not to wish to return to Eritrea. His alleged support of the current government of Eritrea reflected upon whether he had a wellfounded fear of persecution in that country. Neither the alleged admission nor the allegation of support for the current government could be dismissed as a matter of no relevance or of little or no significance to the decision. Further, neither the alleged admission, nor the allegation about where the appellant’s political sympathies lay, could be dismissed from consideration as material to which the Tribunal could not give credence. It follows that procedural fairness required that the Tribunal draw the appellant’s attention to the information. But how should that have been done? The appellant contended that he should have been shown the letter … In this case, the particular content of the obligation to accord procedural fairness was to be identified having regard not only to the particular provisions of the Act that regulated the Tribunal’s work but also to the scope and objects of the Act as a whole. … The Tribunal was required to review a decision of the Executive made under the Act and for that purpose the Tribunal was bound to make its own inquiries and form its own views upon the claim which the appellant made. And the Tribunal had to decide whether the appellant was entitled to the visa he claimed. The information which was contained in the letter was relevant to that inquiry and it could not be ignored by the Tribunal. The Tribunal was able to put the information aside from consideration in its reasons only because it reached the conclusion, on other bases, that the appellant was not entitled to a visa. But that step, of putting the information in the letter aside from consideration, could not be taken before reaching the conclusion that the application should be refused. It follows that to conduct the review with procedural fairness, the appellant

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had at least to know the substance of what was said against him in the letter. Only then could he attempt to answer the suggestions made by the author of the letter that the appellant had reasons other than Convention reasons to absent himself from Eritrea and that he did not have a well-founded fear of persecution for a Convention reason. The appellant submitted that procedural fairness further required that he be given the letter because, if he did not know who had written the letter, one obvious form of answer to the allegations made in it would be denied to him. He could not say that the author of the letter was not to be believed. That is, he could not attack the credibility of the informer unless he knew who the informer was. So much may readily be accepted. But it by no means follows that the Tribunal was bound to give the appellant a copy of the letter, or tell him who had sent it, or even tell him that the information had been sent in written form. To give the appellant a copy of the letter or tell him who wrote it would give no significance to the public interest in the proper administration of the Act which, as pointed out earlier, required that those entitled to a visa be granted one and those not entitled be refused. It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations. How the allegations had been given to the Tribunal was not important. … [T]he procedure outlined would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa as the ‘problem of confidentiality’. Although it may be accepted that the Tribunal sought to act fairly, the procedure it in fact adopted was not fair.

11.4.17  The requirement to disclose is not absolute and may not extend to information a decision-maker will not consider. In SZSSJ 11.2.9, this possibility was explained as follows: French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ: Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry.

The action in that case was an investigation by migration officials into the inadvertent release of data about applicants for refugee status. Many applicants were concerned that their identity and personal details had been disclosed to officials within the country from which they had fled. Migration officials conducted inquiries into the possible effect of the disclosure on the position of the people whose data was released. The High Court accepted that the department was at fault in allowing the data release but concluded that this did not preclude  the department from conducting an impartial investigation into the effect of the disclosure. The court added: ‘Nor does that circumstance provide a principled foundation for converting the ordinary requirement of procedural fairness that an affected person be given 722

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notice into a duty that the Department reveal “all that it knows” about the Data Breach’: at 207. One possible explanation for the High Court’s view relates to volume. If the department had been obliged to release to the asylum applicants every item of information relevant to the data breach, the amount of information might have been overwhelming and confused rather than informed those applicants. Outside of such circumstances, the principle in the passage above has general application. In BRF038 v Republic of Nauru (2018) 91 ALJR 1197 the High Court held that migration officials were obliged to disclose very specific information about conditions in the country from which an asylum seeker had fled. The specific information was about the tribal composition of the local police force. The applicant argued that he faced persecution from the police by reason of his ethnicity. The migration tribunal accepted information stating that all ethnic groups were represented in the relevant police force. The High Court held that procedural fairness required the information be disclosed because it was integral to the decision, open to disagreement and was clearly adverse to the applicant’s claim. 11.4.18  A distinction is drawn in many cases between the obligation to disclose adverse and prejudicial information, but not the decision-maker’s evaluation of the information. The High Court stated in SZBEL v  Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152: Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ: First … [i]t is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. Secondly, … [p]rocedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. [Emphasis in original]

11.4.19  Another aspect of disclosure that can cause problems concerns the nature of the disclosure that should be observed by a body such as a tribunal or committee which, in making a decision, draws on the general knowledge, expertise or experience that is possessed by its members, or that it has acquired over the years. This issue arose in Minister for Health v  Thompson (1985) 8 FCR 213 in which Fox  J noted of a Medical Services Committee of Inquiry set up to consider claims that a medical practitioner had provided ‘excessive services’ under the Health Insurance Act 1973 (Cth) that, as a committee of experts, it was entitled to ‘exercise its own judgment in relation to the evidence … using its own collective knowledge’; and that such a committee ‘can act on its own views, and can do so without disclosing those views to a person appearing before it’: at 217. On that basis there was no breach of natural justice in not advising a medical practitioner being investigated for over-servicing what was the benchmark or standard against which ‘excessive services’ were being judged. At the same time, if the expert information is clearly prejudicial to an applicant’s case, the applicant may need to be given an opportunity to adduce evidence to contradict it, as was acknowledged in Kioa 11.2.16C and Alphaone 11.4.10. 723

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11.4.20  A further and topical issue is the extent to which a decision-maker is able to use ‘esearching’ to check or acquire information relevant to an outcome. Members of expert tribunals, for example, are entitled to rely on and update their technical knowledge using such aids as Google and Wikipedia to assist them to reach a decision, and to do so without notification to the parties. However, if the information is critical to the outcome, disclosure is required. In Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29 the court held that it was not a breach of natural justice for a member of a medical panel, in reviewing the fitness to practise of a medical practitioner, to conduct a Google search on a topic relevant to a fact in issue without telling the practitioner, since the ‘panel’s work is … stamped with an inquisitorial character’: at [30]. If there is counsel assisting an inquiry, they should be asked to conduct such investigations. Where there is a ‘substantial risk’ that online sources contain errors, such as in a wiki, the parties should be notified and given the opportunity to comment: Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW (2010) 56 MVR 108 at [23]. 11.4.21  The cases and examples discussed in the previous three paragraphs illustrate the problems that can occur when information relevant to a decision comes from a novel source. In most instances, relevant information comes from either the decision-maker or the person affected by the decision but information can come from other sources. For example, many review bodies, such as administrative tribunals, are empowered to inform themselves as they ‘think fit’ or ‘consider appropriate’. See, for example, Cth: Administrative Appeals Tribunal Act 1975 s 33(1)(c); ACT: ACT Civil and Administrative Tribunal Act 2008 s 26; NSW: Civil and Administrative Tribunal Act 2013 s 38(2); NT: Northern Territory Civil and Administrative Tribunal Act 2014 s 53(2)(b); Qld: Queensland Civil and Administrative Tribunal Act 2009 s 28(3)(c); SA: South Australian Civil and Administrative Tribunal Act 2013 (SA) s 39(1)(b); Vic: Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(c); WA: State Administrative Tribunal Act 2004 (WA) s 32(4). Such powers enable bodies to seek material of their own motion but their exercise is subject to the rules of natural justice. Accordingly, if these ‘self inform’ powers are exercised, fairness may require the parties be given notice of any material they may not be aware of and a chance to put their views about it to the tribunal: M Groves, ‘The Power of an Administrative Tribunal to Inform Itself ’ (2015) 22 Australian Journal of Administrative Law 236. 11.4.22  Fairness may not require that parties to whom natural justice is owed be notified of material they have not provided if the parties can reasonably be expected to have been aware of it. Information of a notorious kind (for example, that found in standard texts or that is a matter of standard professional practice) does not have to be disclosed in accordance with normal principles governing notice. But notice will have to be provided if the material which is notorious or publicly known is used by the decision-maker in a way that a person might be unaware of. Disclosure in such cases is not about the information but its use. Material which may be used in a way that a party would be unaware of has the same quality as information that a party is unaware of, since it may raise new or expected matters. This problem commonly arises in refugee cases in which the claim is that country information has not been disclosed. It is arguable that an applicant from a country should not need to be informed about general information concerning conditions in that country. However, as Miah 11.2.19C shows, it was a breach of natural justice to fail to indicate to the applicant that a change of government in the country since the person had left could have a significant impact on an argument that the previous government was antipathetic towards certain groups and would not or could not provide them with protection. 724

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11.4.23  A contentious issue arises when information is supplied in confidence. Where release of the information could cause harm, the compromise may be that the material is disclosed only to the person’s legal representative (Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247), or that disclosure is confined to the substance of the material (Jaffarie 11.3.37C). For example, in Applicant VEAL 11.4.16C the High Court was of the view that the substance of a letter from an agency informant should be disclosed, but not the identifying details of that person. In Tucker v Minister for Immigration and Citizenship [2011] FCAFC 16 the Full Federal Court held there was no denial of natural justice when a father, subject to a deportation order, was not permitted to see the report of a consultant on the views of his children about their relationship with their father. The applicant knew the substance of the report, his solicitor had access to it, and could have produced evidence in rebuttal. In Coutts v Close [2014] FCA 19 an Australian Federal Police (AFP) officer’s employment was terminated following an internal investigation that found he had used excessive force against a member of the public. The court held there was no obligation to provide unredacted transcripts of interviews between the AFP investigators and the AFP officers who were present at the scene of the incident: Robertson J: [114] Generally speaking … and subject naturally to the particular statutory context, procedural fairness does not require that a decision maker adopt an ‘open file’ policy which would have the effect of disclosing every submission or piece of evidence to an affected party. Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests … [129] [T]he dot-point summaries in the investigation report were sufficient to discharge the relevant requirements of procedural fairness in the circumstances here. I  accept the respondents’ submission that the investigation report … contained an adequate summary of the evidence given by the various witnesses which was relevant, significant and credible and to which the applicant was otherwise entitled to have notice.

11.4.24  However, there are cases in which the alleged confidentiality and sensitivity in the information has not been sufficient to justify it being withheld. For example, in Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30, in the context of a visa application, the Refugee Review Tribunal rejected a Moroccan man’s claim that he had been subjected to family violence by his former Australian wife (Ms Seagull). In doing so, the tribunal had relied on a confidential letter from the applicant’s former wife, which he had not seen nor been given the opportunity to comment on. The Full Federal Court found that the failure to disclose the letter in its entirety was a denial of procedural fairness: Flick and Foster JJ: There was, however, disclosure to the First Respondent of at least the ‘key points’ before the Tribunal made its decision. But the disclosure of these ‘key points’ fell well short of compliance with the rules of procedural fairness. Indeed, the disclosure of these ‘key points’ may well have been misleading by reason of the remaining content of Ms Seagull’s letter which was not disclosed. ‘Points’ which were made in the letter but not disclosed to Mr Maman for comment included the following: • •

the repeated suggestion made by Ms Seagull to Mr Maman ‘to find a job, even a temporary position so we could support ourselves’ and his refusal; the information communicated to Ms Seagull when she met Mr Maman’s family in Israel that he ‘had major difficulties with his relationship with his siblings and that he did not get along with them’; 725

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the complaint made by Ms Seagull that she would ‘work all day and … still was responsible for the house work and the cooking etc’ and Mr Maman’s failure to help out; the deterioration in the relationship between Mr Maman and Ms Seagull’s son with Ms Seagull noting attempts by her son to try to make … conversation, but Jimmy was not nice to him’; the decision to ‘go to [counselling]’ but the complaint that ‘it did not solve the problem as Jimmy was not [open] minded about the [counsellor’s] suggestions’; and the requests made by Ms Seagull for Mr Maman to ‘get out of the house’.

Some of these further ‘points’ may not have been as immediately relevant to a determination of ‘domestic violence’ as others. In the absence of a clear reason to do so, however, no clinical distinctions should be drawn between factual assertions which are centrally relevant to a determination of ‘domestic violence’ as opposed to those which are less centrally relevant. But in what may well be imagined as a fairly highly charged emotional environment where complaints of domestic violence are being made, it is difficult — if not impossible — for complaints in any case to be answered if as much detail as possible is not disclosed. That did not occur in the present case.

Flick and Foster JJ also reasoned the mere fact that information ‘may contain personal — and in some cases intensely personal — information is but part of the circumstances to be taken into account’: Maman at 43. This reasoning highlights an enduring difficulty in the level of disclosure required in any case: the need for generic principles that provide clear guidance on what is required for a fair hearing must be balanced against the circumstances of particular cases. As Flick and Foster JJ intimate, intensely personal information might normally warrant careful consideration before it is disclosed, in order to protect the person it concerns, but there may be also be reasons why the affected person must have this information disclosed in order to have a fair hearing — or avoid ‘practical injustice’. Similar problems regularly arise in cases about the requirement of migration tribunals to provide ‘clear particulars’ of the information that the tribunal considers would be the reason, or part of the reason, for affirming the decision under review: see s 424A(1)(a) of the Migration Act. The same issue of deciding ‘how much disclosure is enough’ also arises in hearings into the fitness or conduct of a person to practise a profession or occupation. For example, in Vega Vega v Hoyle [2015] QSC 111 it was held that a doctor facing professional misconduct charges should have been given unredacted copies of all witness statements, so that he could better understand how to comment on or rebut the prejudicial information. See also Wirth v Mackay Hospital and Health Service [2015] QSC 39. 11.4.25  Recent New South Wales  court decisions about ministerial decisions on local council amalgamations show how finely balanced these issues may be. The minister’s delegates investigating and considering proposed amalgamations relied in part on reports from consultants that examined possible savings and other benefits/disadvantages of amalgamation. The local councils that were facing amalgamation were given opportunities to put their views to delegates, but were not always given access to the full reports from consultants or other documents considered by delegates. Decisions of the New South Wales Court of Appeal on this are not easy to reconcile. In Ku-ring-gai Council v West, as delegate of Acting Director-General, Office of Local Government (2017) 95 NSWLR 1, a majority held that natural justice was denied when the delegate and council did not have access to crucial parts of a consultant’s report. By contrast, in Hunter’s Hill Council v  Minister for Local Government (2017) 224 LGERA  1 it 726

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was held that a council denied access to key parts of important documents could still engage effectively in the process. 11.4.26  Ucar v  Nylex Industrial Products Pty Ltd (2007) 17 VR 492 provides another illustration of a breach of natural justice through inadequate notice of the matters to be considered. In that case a judge, in his reasons, made adverse comments on the applicant’s mobility while in the courtroom, as a matter going to the applicant’s credit, without having commented on this during the hearing. The fine line to be drawn is illustrated by some contrasting decisions: • SZQJH v Minister for Immigration and Border Protection (2013) 140 ALD 11: There was no obligation on the tribunal to inform an applicant that a document which was flawed would be disregarded because it was a conclusion that flowed from ‘an obvious and natural evaluation of that material’.

• Frost v Kourouche (2014) 86 NSWLR 214: Expert medical opinion before the Medical Appeal Panel established a range of whole person impairment for psychological injury arising from the applicant’s car accident of between 7 and 25 per cent. The panel rejected the applicant’s evidence and the expert medical opinion, finding there was no psychiatric injury related to the car accident. It was held the panel was under no obligation to adjourn and conduct a further hearing before departing from the range of expert medical opinion.

Who should conduct the hearing? 11.4.27  As a general rule, natural justice does not require that the hearing (whether a ‘written’ or an oral hearing) be conducted by the decision-maker (that is, the person who alone has the legal authority and obligation to make the decision). It is sufficient that the aggrieved person is given a proper hearing, and that the decision-maker is fully aware of everything that was said. For example, the decision-maker was not required to formally conduct the hearing in FAI 11.2.17C or O’Shea 11.2.18C (for pragmatic and constitutional reasons), nor was there any expectation that the decision-maker would do so in cases like Kioa 11.2.16C, and it was perfectly proper for a committee of the local council to conduct the hearing and make recommendations to the council in White v Ryde Municipal Council [1977] 2 NSWLR 909. 11.4.28  Where the hearing is conducted by another officer, the main requirements are that: • the decision-maker is fully informed of the evidence and submissions arising from the hearing (a requirement which was met in Local Government Board v Arlidge [1915] AC 120 when the board appointed one of its health inspectors to hold a public inquiry to obtain material on which to report to it; cf Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 at 10.4.20);

• if any significant new information comes to light after the hearing is conducted, a point accepted in O’Shea 11.2.18C, the aggrieved person is given a further hearing on that information; and

• if the summary of the hearing (or briefing paper) contains adverse allegations, as occurred in Kioa 11.2.16C, it is disclosed to the aggrieved person who is given an opportunity to comment. 727

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11.4.29  Where the responsible decision-maker conducts a hearing and subsequently becomes unable to make the decision, there may be a denial of procedural fairness if the parties are not informed and given the opportunity to comment before a decision is made by another person. In WZARH 11.3.16C, the High Court held that an immigration claimant whose case was heard by one reviewer, who then became unable to complete the process, did not necessarily have a right to an oral hearing before the second reviewer. Fairness required that the claimant be given notice of this change, an opportunity to make adjustments to his case and a chance to request another hearing. Gageler and Gordon JJ explained: [67] In light of the change of procedure that had occurred, fairness required that the Second Reviewer give the respondent notice of the changed procedure, an opportunity to supplement written submissions previously made on his behalf, and an opportunity to request supplementation of the record of interview by further oral evidence.

11.4.30  When the body is a traditional judicial body — for example, a court or a tribunal with more formal processes, such as the Commonwealth Administrative Appeals Tribunal — the general presumption is that the body cannot delegate any part of its hearing function.

Conduct of the hearing: oral hearing or written submissions 11.4.31  Despite natural justice being predicated on the need to permit a ‘hearing’, in practice in the majority of cases it is sufficient to provide just an opportunity to make a written submission. The High Court recently confirmed that procedural fairness does not require an oral hearing always be given to affected people: WZARH 11.3.16C at [33], [63]. The question is whether fairness requires an oral hearing in the circumstances. Guidance can be gleaned from the range of occasions on which no oral hearing was required. These include matters of considerable moment to individuals, including dismissal from employment (Ridge 11.1.19C), refusal of a licence renewal (FAI 11.2.17C), deportation (Kioa 11.2.16C) and personal injury compensation (Galluzzo v Little [2013] NSWCA 116). Generally, an oral hearing is required only if there are matters of credit, veracity or reputation involved; where there are disputed matters of fact or inconsistencies in evidence that have to be resolved; or where there is evidence of a kind that a party should have an opportunity to test, including expert evidence, or witnesses to be cross-examined. In White v Ryde Municipal Council no oral hearing was required because there were no legal issues, no charge and no witnesses to be examined or cross-examined, and the only issue — whether the large number of cats kept by the applicant affected the amenity of the neighbourhood — involved ‘simple factual matters’. Where an oral hearing is offered, it may be a breach of natural justice not to afford a female applicant an opportunity, for culturally sensitive reasons, to tell her story in the absence of men, including her husband: Applicants M16 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 148 FCR 46. This case shows that officials should consider not only whether fairness requires an oral hearing but sometimes whether special adjustments or allowances should be offered.

Oral hearings: legal representation 11.4.32  Whether fair process requires that a person be allowed legal representation is generally only an issue in cases where an oral hearing is being conducted; otherwise a party may have their submission prepared by as many parties as they can afford. The general principles are stated in Cains v Jenkins (1979) 28 ALR 219: 728

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Sweeney and St John JJ: On the authorities there is no absolute right to representation even where livelihood is at stake. But that is not to say that in all cases a tribunal can refuse it with impunity. The seriousness of the matter and the complexity of the issues, factual or legal, may be such that refusal would offend natural justice principles.

There is a common law right, where a person is entitled to be present at a hearing, for that person to be represented by an agent: R  v Visiting Justice at Pentridge Prison; Ex parte Walker [1975] VR 883. As a common law right, it can always be excluded by statute. This right was used by the majority in Appellant WABZ v Minister for Immigration and Multicultural Affairs (2004) 134 FCR 271 to reach a conclusion that an applicant for refugee status could be represented by a legal aid lawyer before the Refugee Review Tribunal. Section 427(6)(a) of the Migration Act provided that a person appearing before the migration division of the AAT was not entitled to be represented. The majority reasoned that the provision was a statement about entitlements and did not exclude the rules of natural justice insofar as they might require representation in the circumstances of a particular case. The second limb of the argument was that an applicant before the tribunal had a right to appear and give evidence, but also to present argument. Since in its terms s  427 did not affect the right to present argument, representation would be permitted, as there was a common law right to appear by agent. The factors which indicated that representation would be permitted under the common law were the person’s ability to understand the nature of the proceedings and the issues, the person’s ability to understand and communicate effectively in the language employed in the tribunal, the legal and factual complexity of the case, and the importance of the decision to the person’s liberty or welfare. The entitlement to legal representation in administrative proceedings does not require a tribunal or other administrative body to arrange for a party to be legally represented: Doepgen v Mugarinya Community Association Incorporated [2014] WASCA 67. This is consistent with the principle that there is no entitlement to publicly funded representation in administrative proceedings: New South Wales v Cannellis (1994) 181 CLR 309. 11.4.33  If the rules of fairness do not always require that people be legally represented, only one party may be represented. This alone does not cause unfairness but there are detailed principles governing the duties of courts and tribunals to unrepresented parties: see, for example, Minogue v  Human Rights and Equal Opportunity Commission (1999) 84 FCR 438; AMF15 v Minister for Immigration and Border Control (2016) 241 FCR 30. But this requirement is limited. The High Court has also noted that one party to a hearing should not be deprived of its procedural entitlements just because the other is unrepresented: Nobarani v Mariconte [2018] HCA 36 at [47]; see 11.4.8. Such rulings are a caution that decision-makers should avoid an unconscious tendency to be so fair to the unrepresented party that they are inadvertently unfair to the other party.

Cross-examination 11.4.34  This again is likely to be an issue only in oral proceedings, and courts display an even greater reluctance to require a right of cross-examination than other procedures in administrative hearings. Factors, according to Fox  J in Hurt v  Rossall (1982) 43 ALR 252, that should be considered in determining whether cross-examination is required include the nature of the tribunal, and whether it follows procedures analogous to a court. Generally, crossexamination will be required only if a tribunal ‘is hearing contested claims in what may be 729

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called an adversarial situation, so that its proceedings are analogous to court proceedings’: at 258–9. Another factor mentioned in the cases is if it is important for the reliability or veracity of a witness to be tested. Applying those principles in Hurt v Rossall, it was held that crossexamination is not normally required before a public service promotion tribunal: the function was not an adversarial task, but an administrative enquiry into competing efficiency; to permit cross-examination would mean that internal personnel harmony could be destroyed. Similarly, in Heyward v  Minister for Immigration and Citizenship (2009) 113 ALD 65 the AAT did not breach natural justice in not advising the applicant of his right of cross-examination. The applicant had elected not to cross-examine and the tribunal was not bound to advise him about how to conduct his case. Another consideration, noted by the High Court in NCSC v News Corp Ltd (1984) 156 CLR 296 at 314, is that to permit cross-examination in a regulatory investigation could make the investigation ‘so protracted as to render it practically futile’.

Duty to make inquiries or assist parties 11.4.35  In limited circumstances, procedural fairness may require decision-makers to make their own inquiries or take positive steps to assist one of the parties. The so-called ‘duty to inquire’ is more commonly considered as an element of Wednesbury unreasonableness and is examined at 15.3.19ff. The High Court in Minister for Immigration and Citizenship v SZIAI (2009) ALJR 1123 at [24] held: ‘It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law’. Nevertheless, there are cases in which a duty to make inquiries is considered an aspect of procedural fairness: Boensch v Donovan Electrical Services Pty Ltd [2014] NSWSC 1297. 11.4.36  A decision-maker may be under an obligation to assist the parties in certain limited circumstances, particularly if the party does not have legal representation. In SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445, an applicant for a protection visa was denied procedural fairness because he had not been advised of the option of giving sworn evidence that a document purportedly signed on his behalf was a fraud.

THE RULE AGAINST BIAS 11.5.1  It is a fundamental principle of the common law that people should not judge in their own cause. The principle is often couched in the Latin used by Coke CJ in Dr Bonham’s Case (1610) 8 Co Rep 113b at 118, namely, quia aliquis non debet esse judex in propria causa. From that principle has sprung the more general notion — now captured in the bias principle — that decision-making must be and ‘be seen’ to be impartial’: 11.5.2. It was customary in earlier days to subject both limbs of natural justice — the hearing rule and the bias rule — to the implication test explained in 11.2.2. Nowadays it is assumed in most cases that the bias rule applies universally to all administrative decision-making, albeit applying differently to courts, tribunals, administrators and ministers. It is theoretically possible for the parliament to exclude the bias rule, just as it can exclude the hearing rule (although it may be no easy matter for a parliament to frame legislation that implicitly authorises biased or capricious decision-making: see also 5.3.59 as to constitutional considerations). The furthest the parliament has gone in Australia was to provide, as part of a scheme for limited judicial review of migration decisions, that judicial review was available only on the ground of actual but not apprehended bias: see  2.2.25. The possibility of excluding the bias rule by legislation is subject to an important constitutional distinction between Ch II bodies 730

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(tribunals and administrative officials) and Ch III bodies (courts exercising judicial power). The High Court has made clear that the bias rule has a constitutional dimension. Impartiality is a central feature of judicial power. It cannot be removed or significantly impaired by legislation: South Australian v Totani 5.3.16C at 43 (French CJ); North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569 at 618 (Gageler J). A finding of apprehended bias does not mean that the court finds the decision-maker is actually biased. It instead finds that the fair minded and informed observer might apprehend that the decision-maker might not be sufficiently impartial. The use of this fictional observer or bystander is how justice can ‘be seen’ to be done. Questions of bias are determined by what the observer would see and might think. The same is not true for Commonwealth non-judicial bodies and officials. The furthest the federal parliament has gone in limiting the bias rule for Ch II bodies was to provide, as part of a scheme for limited judicial review of migration decisions, that judicial review was available only on the ground of actual but not apprehended bias: see  2.2.25. There is of course a practical legislative obstacle in going further and setting aside the apprehended bias rule; to do so would implicitly authorise biased or capricious decision-making. 11.5.2  The underlying rationale of the bias rule has been expressed in another well-known aphorism that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’: R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 (Lord Hewart CJ). This sentiment reflects two values: in order not to disadvantage the claimant the decisionmaker must be disinterested in the matter at hand; and the absence of bias maintains that standard of probity and fair play which promotes confidence in the institution to which the decision-maker belongs. Indeed, maintenance of public confidence in the judicial system — the principal beneficiary of the rules against bias — is dependent on its being unbiased. Lord Denning said in Metropolitan Properties Co (FGC) Ltd v  Lannon [1969] 1 QB 577 at  599 that ‘justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: “The judge was biased”’. The test for the most commonly encountered forms of bias — apprehended bias — is whether the public perception or outward appearance suggests a lack of impartiality in the decision-making process. 11.5.3  The bias rule was initially confined to courts and quasi-judicial bodies but arguably today it can be said to apply to all decision-makers. At the same time, although the principle is rigorously applied to judicial officers and tribunal members, the same degree of impartiality cannot be expected of ministers and, to a lesser extent, administrators whose decision-making is inevitably tied closely to the policies of government. The core requirement of the bias rule remains the same but how it is applied will vary depending on the nature of the decision-maker and the particular context of the decision. The rule against bias cannot be applied in such a way that it would inhibit a minister from applying government policy. This qualification in turn has limits since, as evidenced in Chapter 12, it is equally unacceptable for a decision-maker to rely solely on a government policy, thus closing their mind to the individual case. 11.5.4  There are two principal consequences of a finding of bias. A person who may be biased in relation to a matter may not participate in decision-making concerning that matter. Consequently, claims of bias are frequently brought before a decision is made to prevent a person from participating in a decision. A second consequence is that a decision by a person who was biased is invalid. It generally follows that the entire proceeding leading to that decision is tainted by the invalidity. A dramatic instance of this effect occurred in Tahmindjis v Brown (1985) 7 FCR 277, in which multiple defendants were on trial for a conspiracy to defraud social 731

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security; a disqualifying incident by the magistrate towards the end of a 12-month hearing led to the proceedings being terminated (and never recommenced). Since the hearings to that point had cost an estimated $16 million, the conduct amounting to bias was a costly mistake. 11.5.5  Although adjudicators are expected to attain a high standard of impartiality, there is a countervailing imperative. A decision-maker, particularly a judicial officer, has a duty to exercise the decision-making function and should be slow to accept a call for disqualification because of an allegation of bias. To do so is an abdication of duty and encourages procedural abuse and ‘judge-shopping’: Kirby v Centro Properties Ltd (No 2) (2008) 172 FCR 376 at [17]. In Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd 11.5.30C the High Court said that the possibility ‘individual parties could influence the composition of the bench’ by the easy acceptance of bias applications ‘would be intolerable’: at 348. This concern is a real one, as shown by some very wide ranging bias claims, such as the unsuccessful application in one case for all judges of the Supreme Court to be disqualified from hearing the applicant’s summons for judicial review: GAR v Attorney-General of NSW & Supreme Court of NSW [2017] NSWCA 47. 11.5.6  But there are pressures that pull the other way. Sometimes the circumstances create a ‘bad look’, which adjudicators must heed and step aside. For that reason, in Livesey v New South Wales Bar Association (1983) 151 CLR 288 two of the judges hearing the application for a declaration that Mr Livesey was not a fit and proper barrister and should be struck off the barristers’ roll, had in a previous hearing expressed unfavourable comments about a witness, Ms Bacon, who was to give evidence at the Livesey hearing. The High Court, in quashing the proceedings, held that both judges should have disqualified themselves from hearing the case against Mr Livesey. The High Court did not suggest the earlier comments made about the witness were wrong or that the judges were in fact biased. While judges might think their training and experience makes them able to put aside earlier adverse findings or comments they have made, the High Court essentially held that the hypothetical observer would take a different view.

Categories of bias 11.5.7  Prior to Ebner 11.5.30C, the case law had established three categories of bias: actual bias, deemed bias and apprehended bias (sometimes referred to as presumed or ostensible bias). Bias was deemed to be present when a decision-maker had some direct pecuniary or family interest in the outcome of a decision, or exhibited actual hostility or lack of impartiality towards an applicant or a witness. Since Ebner the categories have been collapsed into two — actual bias and apprehended bias (deemed bias being subsumed into the apprehended bias classification). 11.5.8  Actual bias is present when a decision-maker’s mind is so closed to persuasion that argument against that view is ineffectual: Minister for Immigration and Multicultural Affairs v  Jia 11.5.31C. Bias of this kind is rarely encountered because of the difficulty of proving that the decision-maker has reached a conclusion that is unalterable, for whatever reason. A  claim of actual bias requires an adverse finding against the decision-maker in question, which can be difficult to establish unless that person makes overtly biased statements or behaves in an obviously biased way. The difficulty is compounded when the decision is made in conjunction with others, for example, on a committee, or in circumstances when the processes are confidential, such as with judicial hearings. 732

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11.5.9  An apprehension of bias will be found if ‘a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’: Ebner 11.5.30C. Unlike a claim of actual bias, a finding of apprehended bias does not necessarily require a finding about the state of mind, attitude or conduct of that decision-maker, but can succeed by pointing to what the fictional informed and fair minded observer might conclude about that decision-maker. Kirby J noted in Jia 11.5.31C at 541 that the two forms of bias ‘obviously overlap’ but a claim of apprehended bias: does not require the complainant to establish anything about the subjective motives, attitudes, predilections or purposes of the decision-maker. It is enough to show that ‘in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it’. A party would be foolish needlessly to assume a heavier obligation when proof of bias from the perceptions of the reasonable observer would suffice to obtain relief.

11.5.10  A two-fold approach to claims of bias was explained in Ebner 11.5.30C. An applicant must first point to the interest, influence or issue said to cause the problem. The next step requires an explanation of how that interest, influence or issue may cause the decision-maker to approach the task at hand without the appropriate level of impartiality. There must be a logical connection between each step. An applicant must ‘join the dots’ or somehow explain how an apprehension of bias can arise. A supposed source of bias will not ‘speak for itself ’. Drawing this logical connection is where most claims come undone. An example is ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, where the applicant provided a detailed statistical analysis of the decisions of a lower court judge in migration matters. The statistics revealed that applicants succeeded in just 2 of 254 cases heard by the judge — a success rate of 0.79 per cent. The Full Federal Court held that raw statistics or comparisons with other judges were not evidence of bias: at [38]–[39]. The hypothetical observer, whose judgement applies to consider bias claims, would need an explanation of the statistics. How were they calculated? Had the judge simply ruled against hopeless cases? 11.5.11  Apprehended bias must rest in something more than a preliminary expression of view by an adjudicator in relation to facts as to which the final view has yet to be established. For example, in Family Court proceedings (about one-third of the way through a long-running matrimonial property dispute and before the trial judge had heard one of the parties) during a heated discussion about the extent of discovery ordered, a comment by the trial judge that he would be looking to independent evidence to see  where the truth lay, was not evidence of prejudgment in the context of a dispute about a multi-million dollar property, some of it allegedly off-shore: Johnson v Johnson (2000) 201 CLR 488. Bias must also be firmly established and is not to be found lightly: see  British American Tobacco Australia Services Ltd v  Laurie (BATAS) 11.5.33C. 11.5.12  There are many circumstances in which bias can arise and these will continue to expand. Certain well-recognised categories of bias have, however, been identified. For example, Deane J in Webb v R (1994) 181 CLR 41 referred to the following: The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of 733

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case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first (eg, a case where a dependent spouse or child has a direct pecuniary interest in the proceedings) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information.

Some examples of the kinds of circumstances that come within these categories follow at

11.5.13–11.5.19.

Decision-maker’s private communication with a party 11.5.13  Bias can arise where a decision-maker, adjudicating a dispute between two or more parties, communicates privately with one party, even though there may be no improper motive for doing so. For example, in Re JRL; Ex parte CJL (1986) 161 CLR 342 a Family Court judge had communicated in chambers with a court counsellor, at the instigation of the counsellor, who was to be a witness in the proceedings. Even disclosure to the parties did not cure the breach in this instance. In Carbotech-Australia Pty Ltd v  Yates [2008] NSWSC 540, there was apprehended bias arising from multiple communications between a referee and only one party for the purposes of a court-ordered report on a question relevant to proceedings. The boundaries of permissible communication were explained by the Full Federal Court in John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221: North, Kenny and Dodds-Streeton JJ: [T]he authorities do not support the proposition that there is any necessary impropriety if a party or practitioner communicates unilaterally with a judge’s chambers. Whether or not such a communication is improper depends on all the circumstances, including, principally, its nature, subject matter, and perhaps, its sequence and extent. There is no impropriety in a party’s unilateral communication with chambers in relation to procedural, administrative or practical matters, although a sustained sequence of communications not circulated to the other parties, even in relation to matters of this kind, could, at a certain point, become unprofessional or improper in the absence of some good reason.

Decision-maker is both prosecutor and judge 11.5.14  Bias can arise when a decision-maker is both prosecutor and judge, such as a steward sitting on a disciplinary committee or where a decision-maker has acted as fact-finder, prosecutor and judge. The classic example is R v Lee; Ex parte Shaw [1882] 9 QBD 394, where a judge was a member of the committee which had instituted proceedings against the appellant. In Khera v Law Society of New South Wales (LSD) [2005] NSWADTAP 29 it was held that because the tribunal’s presiding member in disciplinary proceedings against a solicitor had been a member of the Law Society committee in charge of investigations into the practitioner

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10 years earlier, apprehended bias arose. However, bias in these circumstances will need to be seen in light of the organisation’s membership and rules. An illustration is Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378: Compton, as chairman, conducted the inquiry, and performed the role of inquisitor. He adopted a consistently hostile attitude towards the appellant … [T]he duality of roles which Compton and Pascoe had perforce to adopt made it highly unlikely that they would, in any real sense, set aside their own convictions formed as a result of what they had themselves seen or heard. But this is a consequence of the procedure which the rules, not only permitted, but required.

In The City of Subiaco v Simpson MLA [2014] WASC 493, no apprehended bias arose in the Local Government Advisory Board constituted by members including departmental officers said to have a stake in the policy outcome, because the Act contemplated that the board would contain departmental officers. By contrast, in Isbester v Knox City Council 11.5.32C, the High Court found that the involvement of a council employee as an investigator of an offence (a dog attack which caused serious injury to a person) gave rise to an apprehension of bias when the employee was subsequently a member of a council panel which found that the dog should be destroyed. The different outcome of these two cases reflects their legislative context. The relevant statute in Isbester did not expressly sanction or somehow contemplate the involvement of the council officer in apparently inconsistent roles. The statute in the City of Subiaco case did, which arguably illustrates how the bias rule can be modified by statute.

Decision-maker holds prejudicial views 11.5.15  If the decision-maker appears to have views which suggest they may pre-judge the outcome, bias or at least apprehended bias can arise. Sometimes the basis for the claim of bias arises by the decision-maker’s conduct during a hearing. This occurred when the Race Relations Commissioner involved in hearing a case of racial discrimination, brought by a number of Aborigines, remarked during the hearing that her daughter, also an Aborigine, had been excluded from the same club in which the respondent to the complaint was working: Koppen v  Commissioner for Community Relations (1986) 11 FCR 360. In Hinton v  Alpha Westmead Private Hospital (2016) 242 FCR 1, a judge summarily dismissed a human rights claim. The Full Federal Court overturned that order and remitted the case for rehearing by a different judge because statements made by the original judge created an apprehension of bias. The court explained that, from the strong conclusions expressed by the primary judge in the hearing and his reasons (for example, that the appellant’s claim was the equivalent of a ‘bag of chips’, a ‘try on’, a ‘baseless trifle’, ‘doomed’, and ‘an obvious abuse of process’, and depended on a proposition that was ‘rubbish’), the fair-minded lay observer would identify that ‘his Honour might be caused to decide the case on other than its merits’: 242 FCR 1 at 10. Views expressed by decision-makers outside a hearing can also create an apprehension of bias. In Gaudie v Local Court of NSW (2013) 235 A Crim R 98, the court found apprehended bias arose from statements the magistrate had made to the media regarding criticism of the local magistracy made by the Aboriginal Legal Service (ALS). The magistrate’s comments that he felt ‘personally affronted’ by the criticism and that the ALS would ‘not do itself any favours doing that’ created an apprehension that he might not bring an impartial mind to the case in which the ALS represented the defendant. By contrast, no apprehended bias arose in Duncan v Ipp (2013) 304 ALR 359, in which the Commissioner of the Independent Commission Against Corruption (ICAC) 735

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provided advice to the Premier of New South Wales that the planning minister could rely on evidence adduced before ICAC as a basis for refusing to grant a mining licence, in circumstances where that licence was the subject of an ongoing ICAC inquiry. The court held that notifying the executive that the evidence before the commission could or should be taken into account, without expressing an opinion on what conclusion should be drawn from it (which was a matter for the planning minister), could not indicate the possibility of a closed mind to a fair-minded observer.

Decision-maker rehears the same matter on appeal 11.5.16 In Maher v Adult Guardian [2011] QCA 225, bias arose in an appeal which was decided on the papers by a panel including the same senior member who had made the original decision: [24] [A]pprehension of bias in a tribunal member may be increased if the member omitted to disclose his or her prior involvement in a matter and did not ask whether there was objection to his or her continuing to sit. The observation has added pertinence where the tribunal member knows of her involvement, and knows that the litigant does not, and will not know until after the proceeding is determined.

But see  Sengupta v Holmes [2002] EWCA Civ 1104 where bias did not arise from a judge dismissing a request for leave to appeal on the papers but later sitting on the appeal court, rehearing the full appeal.

Decision-maker has made interlocutory decisions in the same proceedings 11.5.17 In Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427, it was alleged by the appellant that ‘the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern … that the judge’s mind will become familiar with the character of the plaintiff ’s case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure’: (2010) 243 FLR 177 at 199, cited at [69]. However, the High Court held at [69] that ‘a “pre-existing mental structure” does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial’, and that there must be an objective assessment of a close connection between the disposition of the interlocutory judgment and the possibility of prejudgment alleged. The trial judge’s interlocutory judgments related to the use of disclosure affidavits and associated correspondence or documents produced on subpoena, including for freezing orders, the appointment of receivers and investigation by foreign authorities. In ‘none of the applications was [the trial judge] required to make, and in none of the applications did he make, any determination of any issue that was to be decided at trial’: at [72]. There were no findings on the credibility of witnesses or the preferable version of events. See also GlaxoSmithKline Australia Pty Ltd v  Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150; and the extensive discussion in A  Olijnyk, ‘Apprehended Bias and Interlocutory Judgments’ (2013) 35 Sydney Law Review 761.

Decision-maker exhibits animosity or partiality 11.5.18  Bias arises where a decision-maker exhibits towards a party, witness or a lawyer in a hearing either strong animosity or hostility, or partiality or favouritism: see Vakauta v Kelly 736

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11.5.34C and Livesey 11.5.6. Such a claim was made, unsuccessfully, in Johnson v  Johnson (see 11.5.11), in which it was alleged that the comments indicated the judge was discounting the credibility of both parties. The claim was rejected by the High Court on the basis that the judge was not expressing a concluded view and the comments should be considered in the context of the hearings as a whole. A contrary position is taken if the behaviour or comments by the decision-maker indicate vindictiveness or suggest that the person is motivated by self-importance, or a desire to further their personal or professional interests. For example, in SZRUI v  Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, a claim of apprehended bias was made out because ‘the exchanges that occurred went well beyond a mere expression of reservation … the exchanges exposed the Tribunal member expressing a concluded view before the entirety of the hearing had even concluded that she “[did not] believe any of that”’: at [19].

Decision-maker has a close connection with a party 11.5.19  Bias arises where the decision-maker has a particular close connection with a party, including: • Where there is a close family, personal or professional relationship between the decision-maker and a party: An unsuccessful claim of this kind arose in Hot Holdings 11.5.35C, where the family relationship could only affect the decision-maker vicariously, since the decision-maker was a minister being advised by an official whose son held shares in a company interested in the minister’s decision. By contrast, a prior professional relationship between a lawyer and client will disqualify the lawyer, upon becoming a judge, from hearing a matter in which the former client is a party (British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109) although this will depend on the circumstances of the relationship (Re Fortune and Secretary, Department of Education, Employment and Workplace Relations (2010) 51 AAR 481) and would not apply to the client–barrister relationship: S  &  M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358. A prior professional relationship between a judge and counsel does not require the judge to refuse to hear a matter in which counsel is appearing: Morton v Transport Appeal Boards [2007] NSWSC 888. Sometimes the relationship was too long ago and not a strong one, such as in Donaghy v Council of the Law Society of NSW [2015] NSWCA 223, where Basten JA ruled that an apprehension of bias did not arise by reason that he had done some academic and law reform work with a barrister 30 years earlier.

• Where the decision-maker is a member of an organisation which is a party to the proceedings: R v Bow Street Metropolitan Stipendiary Magistrate; Ex Parte Pinochet Ugarte [2000] 1 AC 119 is a prominent example. In that case, the House of Lords upheld warrants issued by a Spanish court for the arrest of Senator Pinochet for crimes against humanity. It then emerged that one of the majority judges, Lord Hoffmann, was a director of Amnesty International Charity Ltd. Amnesty International had been granted leave to intervene in the proceedings, was represented by counsel and had campaigned actively for Senator Pinochet’s punishment. The House of Lords overturned its earlier decision on the basis that Lord Hoffmann’s association with Amnesty International could give rise to a reasonable apprehension of bias. By contrast, the Victorian Court of Appeal rejected a claim, based on the Pinochet case, that granting leave for the International Commission of Jurists (ICJ) to intervene in proceedings as amicus curiae would give rise to apprehended bias because judges 737

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of the court were members of the ICJ: Christian Youth Camps Limited v Cobaw Community Health Services Limited (No 3) [2014] VSCA 113.

• Where the decision-maker has a ‘financial interest’ in one of the parties: Such an interest led to the judge recusing himself in Kirby v Centro Properties Ltd (No 2), in which the judge was trustee and one of two members of a self-managed superannuation fund which purchased some 2400 shares in Centro Properties Group (out of some 800,000,000 securities). Despite divesting himself of the stock when he discovered the position and declaring it to the parties, the judge disqualified himself because of an argument that a fair-minded lay observer might perceive that the judge bore a grudge for the loss of value or the shares and would not therefore be impartial. By contrast, in Smits v Roach (2006) 227 CLR 423 there was an unsuccessful challenge on grounds of financial interest to a hearing by a judge of a matter arising out of a dispute involving a law firm with at least 80 partners in which the judge’s brother was the chairman of partners. It was doubtful that the litigation would have any real effect on the judge’s brother, let alone the judge, so this claim did not meet the second step of Ebner 11.5.30C (that a financial interest would normally be a disqualifying one).

Other circumstances in which bias might arise 11.5.20  Committees or tribunals with members chosen for their specialist knowledge or experience are not biased if they rely on that general knowledge and experience in reaching a conclusion: Minister for Health v  Thompson (1985) 8 FCR 213. By contrast, in Koppen v Commissioner for Community Relations (1986) 11 FCR 360, the commissioner’s remark had gone beyond her general experience of discrimination and moved into the personal sphere. Bias may be a particular concern where lay members chosen for their non-legal expertise sit alongside part-time legal members who appear as counsel in subsequent proceedings, because of the potential collegiality and deference to each other’s expertise: see Lawal v Northern Spirit Ltd [2004] 1 All ER 187. 11.5.21  Institutional bias may also arise, for example, when all the members of an agency or a tribunal are perceived to adhere to a particular viewpoint. Such a claim was made in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 in relation to the nine members of the Australian Broadcasting Tribunal. The tribunal had conducted an inquiry into whether Mr John Laws had breached a broadcasting standard that prohibited programs likely to incite or perpetuate racial hatred. The tribunal, composed of three of the members, had made a finding against Mr Laws. However, it was conceded that the initial finding breached natural justice and a new hearing was required. Mr Laws challenged the new hearing on the basis that, even assuming the other three members would disqualify themselves, all the remaining members of the tribunal were also tainted for bias on two counts. First, an officer of the tribunal had stated in an ABC radio interview that Mr  Laws had breached the program standard; her view was said to represent the views of the tribunal as a whole. Second, as a response to the statement, Mr  Laws had commenced defamation proceedings against the tribunal; in filing a defence, in which the tribunal had claimed in part that the statements about Mr Laws were true, the tribunal as a whole must be taken to hold that view. By majority the High Court rejected the claim of bias. The claim of institutional bias failed on the ground, inter alia, that filing a defence was no statement as to its truth, there were sufficient members other than those involved in the first proceedings to comprise a panel, and possibly that the 738

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doctrine of necessity would, in any event, permit the tribunal members to undertake the hearing. A similar result was reached in Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375, dismissing a claim that a statement by the Prime Minister about Cambodian ‘boat people’, which was at odds with the government’s migration policy, was being heeded by departmental officials in handling media inquiries and was an indication of institutional bias within the department. The shared view must be on a matter relevant to the proceeding that is being challenged (Gabrielsen v Nurses Board of South Australia (2006) 90 ALD 695) and must be held by a sufficient number of the group to have the potential to affect the outcome. Thus, bias was not established in McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504, when only two councillors had expressed views in support of a proposal and they would not have been in a position to have affected the decision of the whole council of 10 members. 11.5.22  Whether bias is present is frequently a question of degree and depends heavily on the circumstances of each case. The importance of context and the impressionistic nature of the bias test is one reason why the High Court and intermediate courts of appeal regularly agree on the principles governing bias but divide on their result. What the test requires in each instance will differ because of the different expectations which a person would have of the level of impartiality and independence to be displayed by the decision-maker. The ‘fairminded observer’s’ expectations of a judge are ostensibly higher than for others. However, even in the case of a judge, bias is not lightly to be found: see BATAS 11.5.33C. As indicated by Jia  11.5.31C, ministers and, by analogy, administrators, are expected to apply government policy, which may temper the expectation that they should take an impartial view and, in the case of ministers, there are political accountability mechanisms which supplement those provided for others by the bias rules.

Test for prejudgment 11.5.23  Prejudgment is present if, in all the circumstances, there could be a reasonable apprehension that the judge or decision-maker might not bring an impartial and unprejudiced mind to the issues: Ebner 11.5.30C. The test is objective. There is no need to show actual absence of impartiality; the test is the impression the reasonable person would have in the circumstances. As the majority said in Ebner at 345: ‘The question is one of possibility (real and not remote), not probability’. No actual fault need be shown: see Gleeson CJ in Hot Holdings 11.5.35C. The ‘real likelihood’ or ‘real danger’ test, which was previously adopted in the United Kingdom (see  R v Gough [1993] AC 646 and the ‘adjustment’ approved in Porter v Magill [2002] 2 AC 357), has specifically been rejected in Australia: Webb; Johnson v Johnson. Bias does not have to be for or against either party. It must simply appear that the decision-maker lacks impartiality, though in practice this lack of impartiality usually favours one party. There are two elements to be established for a finding of prejudgment: the first is to identify the behaviour that might lead to a decision on other than its ‘legal and factual merits’; the second is to show how this behaviour is connected as a matter of logic with a biased outcome: Ebner (Gleeson CJ, McHugh, Gummow and Hayne JJ). 11.5.24  What ‘a fair-minded and informed member of the public’ would assume from the circumstances requires characterisation of that individual. A fair-minded observer is someone with knowledge of the particular facts, not just broad general knowledge: Webb at 73–4. So, 739

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in Webb, the fair-minded observer was assumed to know that a juror had arranged for flowers to be given to the deceased’s mother, a relevant fact which led the majority to conclude that a new trial was not warranted. The degree of knowledge must be sufficient to make a worthwhile judgement. In Vietnam Veterans’ Association v Veterans’ Review Board (1994) 52 FCR 34, that meant that the fair-minded observer, faced with a claim that one member of the Veterans’ Review Board was biased against Vietnam veterans, would also be expected to know that the board sits in panels of three and that it is unlikely that the views of one member would be able to influence all the other members who sat with him from time to time. The knowledge imputed to the fair-minded lay observer has been colourfully described by Kirby J in Johnson v Johnson in these terms: It must be remembered that, in contemporary Australia, the fictitious bystander is not necessarily a man nor necessarily of European ethnicity or other majority traits. The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things … The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.

A further extract from Johnson v Johnson identifying the characteristics of the bystander is found in BATAS 11.5.33C. This and other cases have noted the dangers of conferring too much specialist knowledge on the bystander. The bystander is meant to be someone other than the parties or the decision-maker but grows increasingly like the parties or decision-maker if the bystander is infused with as much knowledge as them. See M Groves, ‘The Imaginary Observer of the Bias Rule’ (2012) 19 Australian Journal of Administrative Law 188. 11.5.25  Prejudgment must mean that there is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that the conclusion will not be altered despite evidence or arguments: Laws at 100 (Gaudron and McHugh JJ). To avoid a claim of prejudgment, the decision-maker must exhibit an impartial and unprejudiced mind, which is not necessarily a mind that has not given thought to relevant matters or that having given thought to matters, has not formed any views or inclination with respect to them. Indeed, an expression of tentative views about an issue is not prejudgment and can be helpful: see  Brennan, Deane and Gaudron  JJ in Vakauta 11.5.34C. However, an expression of view should be capable of being seen as tentative: thus, apprehended bias

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arose from a remark of an investigator in a disciplinary process: ‘I am of the view that you were the person who sexually assaulted …’: Ambrey v  Oswin [2005] QCA 112. Even if the decision-maker had decided an issue of fact or law in a particular way and was likely to decide it in the same way if it arose again, this does not indicate bias, and more than statistical probability is required: Vietnam Veterans’ Association of Australia (NSW Branch) Inc v Gallagher (1994) 52 FCR 34. For example, in Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223, an independent merits reviewer had rejected the claims for permanent protection visas of 10 Hazara Shia Afghanis based on country information and set out the conclusions for each application in template reasons. The Full Federal Court found that, in the circumstances, the use of template reasons did not give rise to pre-judgment: The fair-minded observer would be mindful that the applicant had had his generic claims assessed in the course of the reviewer’s consideration of his and the nine other claimants’ generic submissions. The fair-minded observer would expect that the reviewer would evaluate each of the generic country claims and country information for all those persons, including the applicant, and decide those generic claims generically; that is to say, consistently and fairly. The fair minded observer would not think that the reviewer would fail to continue to bring a fair and unprejudiced mind to deciding each particular application, merely because he dealt with the later generic claims as he had already done in the absence of fresh material bearing on the generic claims being brought to the reviewer’s notice between his earlier and later decisions on the other claimants’ generic claims. … The fair-minded observer would not regard the reviewer as having prejudged each of the applicant’s and the other nine claimants’ generic claims in the sense that the reviewer was not open to persuasion. But that observer would expect that if a particular individual did not put anything new to the reviewer on the generic claims, then consistently with the reviewer’s earlier decisions, he would come to the same conclusion for the same reasons on the same material. There was no suggestion that the reviewer was using someone else’s template reasons for rejecting the generic claims. The complaint is that the reviewer used his own reasons for doing so. If those were the reviewer’s reasons for rejecting the generic claim, he was entitled to use and even repeat them, since he had no more material to consider. The applicant could not suggest why a reworded, but substantively similar, reasoning process would have changed his argument that an apprehension of bias arose from the use of the same reasons, if differently worded. And for this reason, the argument also fails. It is a syllogism to say that because a decision-maker used the same words to reject two identical claims, the person was apparently biased.

Such conduct can give rise to error other than bias. Examples include: SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146 (tribunal member who cut and pasted large sections from his earlier decisions found to have denied the applicant natural justice by failing properly to consider the case at hand); LVR (WA) Pty Ltd v AAT (2012) 203 FCR 166 (constructive failure to exercise jurisdiction found when tribunal member copied extensively from submissions of one party without acknowledgement); MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 (jurisdictional error found when tribunal member hearing case remitted from Federal Circuit Court replicated large swathes of first tribunal decision).

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Exceptions 11.5.26  Notwithstanding that bias has been established, there may be circumstances which prevent the finding leading to invalidity. These defences to bias have been identified as necessity, waiver, consent, statutory modification and possibly special circumstances: see Heydon, Kiefel and Bell  JJ in BATAS 11.5.33C. The last exception — of special circumstances — has been mentioned several times by the High Court but remains unexplored. 11.5.27  A claim of bias of necessity or consent commonly arises in domestic bodies or tribunals with limited membership: for example, builders’ registration boards, rugby football associations and law societies. When members of clubs and associations agree to join, there may be a dispute resolution mechanism in the constitution of the club or association that provides for an official to be prosecutor and judge, or that an executive member will also sit on disciplinary bodies. However, consent in such circumstances will not save decisions in which the level of bias is beyond tolerable limits, that is, where a real possibility of bias is present or where bias can be avoided: Builders’ Registration Board v Rauber (1983) 47 ALR 55. 11.5.28  The necessity exemption commonly arises in bodies with a limited number of members. A statutory tribunal is one example where it is accepted that the tribunal must not be ‘disabled from performing its statutory functions’: Laws at 88. Nor is there bias in the same judge hearing a case on remittal, for example, in a small jurisdiction: Sanders v  Snell (No 2) (2003) 130 FCR 149. The majority in Ebner 11.5.30C, obiter, would also have found that necessity applied in the Clenae situation (one of the two cases considered in Ebner) to avoid requiring another judge to rehear the case. In Ebner, there had been a lengthy trial and a principal witness had died. For the judge to disqualify himself solely because his mother had died between the hearing and handing down his judgment, leaving him with a small parcel of shares in a bank that was a party to the proceedings, would have been an unnecessary burden for the parties. 11.5.29  Waiver is another exception to the bias rule, though on closer inspection it is not truly an exception. A finding of waiver presumes the bias rule applies but the conduct of the party claiming precludes a grant of relief. Waiver may be found where a party with full knowledge of the facts that may support a bias claim fails to raise the point in a timely manner: M Groves, ‘Waiver of the Rule Against Bias’ (2009) 29 Monash University Law Review 315. At the commencement of proceedings, decision-makers often disclose any interest which might lead to a perception of bias. Counsel has the obligation to object and failure to do so, whether due to a misunderstanding or otherwise, may amount to waiver: Smits v Roach (2006) 227 CLR 423. Waiver can also occur during a hearing if no party objects, at the time, to a potentially biased remark by the decision-maker. As a general rule, an experienced advocate will be expected to decide fairly quickly whether to object or remain silent, though Callinan J noted that even very experienced lawyers can find it ‘almost impossible’ to choose between staying silent (and risking waiver) and speaking up (and risking offending the decision-maker): Johnson v  Johnson at 517. Unrepresented parties usually receive more latitude, but just how much depends on all the circumstances.

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11.5.30C

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Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 205 CLR 337; 63 ALD 577 High Court of Australia

[Two appeals were decided jointly in this case. In the Ebner appeal, the trial judge (Goldberg J) had disclosed during the trial that he was a beneficiary under a family trust that held 8000 shares in a bank that was a creditor in bankruptcy proceedings being heard by him. The value of the shares would be unaffected by the outcome of those proceedings. A relative of the bankrupt objected to the judge hearing the case. The High Court held per curiam that the trial judge was not disqualified under the apprehended bias principle. In the Clenae appeal, the trial judge (Mandie J) inherited 2400 shares in the ANZ bank, after an 18-day trial but before judgment was delivered, in an action brought by the bank against a borrower. During the same period a principal witness for the bank died. The judge did not disclose his inheritance. The judge ruled in favour of the bank, and the borrower challenged that ruling. The High Court held (Kirby J dissenting) that the trial judge was not disqualified under the apprehended bias principle.] Gleeson CJ, McHugh, Gummow and Hayne JJ: Fundamental to the common law system of adversarial trial is that it is conducted by an independent and impartial tribunal. Perhaps the deepest historical roots of this principle can be traced to Magna Carta (with its declaration that right and justice shall not be sold (Holdsworth, A History of English Law, 6th ed (1938), vol 1 at 57–58)) and the Act of Settlement 1701 (UK) (with its provisions for the better securing in England of judicial independence). It is a principle which could be seen to be behind the confrontation in 1607 between Chief Justice Coke and King James about the supremacy of law (Holdsworth, A History of English Law, 2nd ed (1937), vol 5 at 430). It could be seen to be applied when Bacon was stripped of office and punished for taking bribes from litigants (Holdsworth, ibid at 241). Many other examples could be drawn from history. It is unnecessary, however, to explore the historical origins of the principle. It is fundamental to the Australian judicial system. The principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision making and decision maker. Most often it now finds its reflection and application in the body of learning that has developed about procedural fairness. …. The application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making. Two examples will suffice to make the point. First, as Mason CJ and Brennan J said in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70: The rule of necessity gives expression to the principle that the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it. Or, to put the matter another way, the statutory requirement that the tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. Those rules may be excluded by statute: Twist [11.3.26C] at 109–110, 112 et seq, 118–19. Secondly, few administrative decision makers would enjoy the degree of independence and security of tenure which judges have.

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These differences, however, must not obscure the fundamental principle. That principle is obviously infringed in a case of actual bias on the part of a judicial officer or juror. No suggestion of actual bias is made in the present appeals. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done … a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed … [Their Honours discussed the facts in both appeals and held that neither judge was disqualified under the reasonable apprehension of bias principle.] The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal. Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence. [The majority referred to and illustrated the categories identified by Deane J in Webb: see 11.5.12.] In the practical application of that test, financial conflicts of interest are likely to be of particular significance. One reason why, in the earlier cases, pecuniary and proprietary interests may have attracted special attention has already been mentioned. There are other considerations which continue to affect the practical significance of economic interests.

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Usually (although not always), they are more concrete in nature than other kinds of interest, and, when the primary facts are known, easier to identify. Furthermore, at least in the past, there has been a public perception that they are more insidious than other forms of interest in their likely effect upon impartiality. That perception may be changing, but it continues to be important … Having regard to the current state of the common law in Australia on the subject of disqualification for apprehended bias, we do not accept the submission that there is a separate and free-standing rule of automatic disqualification which applies where a judge has a direct pecuniary interest, however small, in the outcome of the case over which the judge is presiding. … [A] rule of automatic disqualification would be anomalous. It is in some respects too wide, and in other respects too narrow. There is no reason in principle why it should be limited to interests that are pecuniary, or why, if it were so limited, it should be limited to pecuniary interests that are direct … For reasons already given, we accept that, in the practical application of the general test to be applied in cases of apprehended bias, economic conflicts of interest are likely to be of particular significance, and that, allowing for the imprecision of the concept, the circumstance that a judge has a not insubstantial, direct, pecuniary or proprietary interest in the outcome of litigation will ordinarily result in disqualification. That circumstance did not exist in either of the present cases … Necessity In the light of what has already been said, it is strictly unnecessary to deal with the alternative basis upon which the appeal in Clenae was dismissed in the Court of Appeal of Victoria. However, we would agree that, if the question had arisen, the case was one of necessity. Indeed, the case of Clenae provides a good example of the reason for the qualification of necessity. There had been a lengthy trial followed by a reserved decision. Following the trial, one of the principal witnesses had died. The witness was a man whose credibility was of central importance to the issues in the case. As Callaway JA pointed out (Clenae [1999] 2 VR 573 at 603–604), a fair adjudication of the case required that it be decided by the judicial officer who had seen all the significant witnesses. Attempting to resolve issues of credit on the basis of diary notes would not have been an adequate substitute. Disclosure It is necessary to deal with a further argument that was advanced in the appeal of Clenae. The issue does not arise in the Ebner appeal. It was argued that Mandie J’s failure to disclose his acquisition of shares in the Bank was itself a ground of, or constituted evidence in support of a ground of, disqualification. This argument requires consideration of the matter of disclosure of potentially disqualifying interests or associations, although in the relatively straightforward context of ownership of shares in listed public companies. In other contexts, the problem may be more difficult. It is necessary to distinguish between considerations of prudence and requirements of law. As a matter of prudence and professional practice, judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying. It is common, and proper, practice for a judge who owns shares in a company which is involved in a case in which the judge is sitting to inform the parties of that fact and to give them an opportunity to raise an objection should they wish to be heard. In most cases, the outcome

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is that no objection is raised and, by reason of waiver, any potential problem disappears. One reason for the practice is that it gives the parties an opportunity to bring to the attention of the judge some aspect of the case, or of its possible consequences, not known to, or fully appreciated by, the judge. It is, however, neither useful nor necessary to describe this practice in terms of rights and duties. At most, any ‘duty’ to disclose would be a duty of imperfect obligation. A failure to disclose is relevant (if at all) only because it may be said to cast some evidentiary light on the ultimate question of reasonable apprehension of bias. A failure to disclose has no other legal significance. In particular it does not, of itself, give a litigant any right to have the judge desist from further hearing the matter or to have the ultimate decision in the matter set aside for want of procedural fairness … Disclosure of association may raise more difficult questions than are presented by the straightforward case of ownership of shares in a corporation. It is impossible to identify all of the kinds of association which might be thought to reveal a serious possibility of being potentially disqualifying. As we have said earlier, the application of the apprehension of bias principle requires identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and the articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. In the present case, the failure of Mandie J to disclose his acquisition of shares in the Bank was of no legal consequence. For the reasons already given, he had a clear duty to deliver the judgment he had reserved. His failure to make disclosure did not deprive the appellants of an opportunity to advance any argument or inform him of any facts which would have given rise to a contrary conclusion. His silence could not reasonably support an inference of want of impartiality. Resolution of challenges We note that Callinan J, in relation to the third matter referred to in his reasons for judgment, has expressed the view that it would be preferable in future for challenges of apprehended bias to be determined, where possible, by a judge other than the one who has been asked to disqualify himself or herself. With respect, we are unable to agree. On that approach, for example, some other judge of the Federal Court would have considered the challenge made to Goldberg J in Ebner. Adopting such a procedure would require examination of the power of that other judge to determine the question and the way in which that other judge’s conclusion would find its expression. In particular, is the question of possible disqualification to be treated as an issue in controversy between the parties to the proceeding and is it to be resolved by some form of order? The issue is not one which was argued in the present appeals, and it is sufficient to say that, in our view, Goldberg J adopted what was both the ordinary, and the correct, practice in deciding the matter himself. [Gaudron and Callinan JJ delivered judgments agreeing substantially with the joint judgment. Gaudron J further held that the requirement for a judge to be and have the appearance of impartiality was a constitutional requirement under Ch III of the Commonwealth Constitution applying to federal, state and territory courts. A principle of necessity could not operate in the face of that constitutional requirement. Kirby J adhered to the former principle of automatic disqualification of a judge who has a direct pecuniary interest in the subject matter of the litigation. This principle disqualified the judge in the Clenae but not the Ebner appeal.]

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Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; 178 ALR 421; 65 ALD 1 High Court of Australia

[The minister made decisions under ss 501 and 502 of the Migration Act having the effect that Mr Jia and Mr White were not permitted to remain in Australia, by reason of their convictions respectively for rape and manslaughter. At an earlier stage of the process the Administrative Appeals Tribunal had reversed the decisions of the minister. Among other things, s 502 required the decision-maker to take account of the public interest. Before remaking those decisions, the minister in a radio interview had commented adversely on the tribunal’s lenient treatment of criminal deportees; he had also written in the same terms to the President of the AAT. The High Court held that the actions of the minister did not constitute either actual bias or apprehended bias.] Gleeson CJ and Gummow J: [Counsel for Mr Jia argued that actual bias was constituted by] an inclination or predisposition of mind. Under pressure of argument, this was qualified by the addition of adjectives such as ‘wrongful’ or ‘improper’. The precise content of those adjectives, in the context, is not clear. Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias. … The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. … [Their Honours held that the Full Federal Court had erred in finding that the minister was disqualified by actual bias. Nor could one infer that if five Federal Court judges had found actual bias, the reasonable observer would at least have a reasonable apprehension of bias: ‘a process of reasoning which has been found to be unreliable [cannot] be attributed to a reasonable observer’: at 538.] Although it would require some qualification in the light of later developments in the law, … lawyers usually equate ‘bias’ with a departure from the standard of evenhanded justice which the law requires from those who occupy judicial, or quasi-judicial, office. The Minister is in a different position. The statutory powers in question have been reposed in a political official, a member of the Executive Government, who not only has general accountability to the electorate and to Parliament, but who, in s 502, is made subject to a specific form of parliamentary accountability. The power given by s 502 requires the Minister to consider the national interest. As Brennan J observed in O’Shea at 411: ‘The public interest in this context is a matter of political responsibility’. The powers given by s 501 and s 502, as has already been held, enabled the Minister in effect to reverse the practical consequences of decisions of the Tribunal in the cases of the persons involved, even though no new facts or circumstances had arisen; and even though the Minister had been involved in the proceedings before the Tribunal. As the circumstances of the radio interview demonstrate, the Minister himself can be drawn into public debate about a matter in respect of which he may consider exercising his powers. He might equally well have been asked questions about the cases in Parliament. The position of the Minister is substantially different from that of a judge,

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or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. There is no reason to conclude that the legislature intended to impose such standards upon the Minister, and every reason to conclude otherwise. … There was a measure of artificiality about categorising the complaint against the Minister as bias. There is an even greater measure of artificiality about treating the rules of natural justice, and the legislation, as requiring the Minister, in exercising his powers under ss 501 and 502, to avoid doing or saying anything that would create an appearance of a kind which, in the case of a judge, could lead to an apprehension the subject of the apprehended bias rule. The Minister was obliged to give genuine consideration to the issues raised by ss 501 and 502, and to bring to bear on those issues a mind that was open to persuasion. He was not additionally required to avoid conducting himself in such a way as would expose a judge to a charge of apprehended bias. Hayne J: [His Honour agreed with the judgment of Gleeson and Gummow J, adding the following:] The contention that a decision-maker has prejudged a question, or that there is a reasonable apprehension that the decision-maker may have done so, contains a number of separate elements which should be identified. When that is done, it is apparent that there can be no automatic application of rules developed in the context of judicial decision-making to administrative decisions. Courts in this country make decisions by procedures that are both formal and adversarial. They do so by the application of rules for decision-making which, although not always defined with absolute certainty, are generally discernible before the contest is joined and are set by legislative or judicial processes which are external to the judge. The process of adjudication is generally conducted in open court. The judge must give reasons for the decision that is reached. Importantly, the rules about judicial prejudgment recognise that, subject to questions of judicial notice, judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information acquired otherwise. No less importantly, the rules about judicial prejudgment proceed from the fundamental requirement that the judge is neutral. That requirement for neutrality is buttressed by constitutional and statutory safeguards. Those safeguards include not only the provisions for security of terms of office and remuneration but also extend to statutory provisions prohibiting interference with the course of justice. A judge can have no stake of any kind in the outcome of the dispute (Ebner). The judge must not ‘[descend] into the arena and … have his vision clouded by the dust of the conflict’ (Yuill v Yuill [1945] P 15 at 20 per Lord Greene MR). The central task and, it may be said, the only loyalty, of the judge is to do justice according to law. Decisions outside the courts are not attended by these features. Reference need only be made to a body like the Refugee Review Tribunal established under Pt 7, Div 9 of the Migration Act 1958 (Cth) to show that this is so. The procedures for decision-making by that body are much less formal than those of a court. There is no provision for any contradictor and the procedures are, therefore, not adversarial. The decision-maker has little security of tenure and, at least to that extent, may be thought to have some real stake in the outcome. The decision-maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual’s application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. A body like the Refugee Review Tribunal, unlike a court, is expected to build up ‘expertise’ in matters such

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as country information. Often information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment. The analogy with curial processes becomes even less apposite as the nature of the decision-making process, and the identity of the decision-maker, diverges further from the judicial paradigm. It is trite to say that the content of the rules of procedural fairness must be ‘appropriate and adapted to the circumstances of the particular case’ (Kioa at 585 per Mason J). What is appropriate when a decision of a disputed question is committed to a tribunal whose statutorily defined processes have some or all of the features of a court will differ from what is appropriate when the decision is committed to an investigating body. Ministerial decision-making is different again. Does this mean that principles about bias or apprehended bias require some ‘[adaptation] to the circumstances of the particular case’? In particular, does the fact that a decision is committed to a Minister affect the content or application of rules about prejudgment? Are the rules about prejudgment affected by the fact that a Minister administers a department of State of the Commonwealth but must sit in Parliament and is thus part of, and subject to, the political and parliamentary processes? Does it matter that a Minister is subject to all the conventions of Cabinet government, including the inherent fragility of tenure of office as Minister and the pressures of Cabinet and party solidarity? To examine those questions it is necessary to consider more closely what is meant by ‘bias’ and ‘apprehension of bias’. ‘Bias’ is used to indicate some preponderating disposition or tendency, a ‘propensity; predisposition towards; predilection; prejudice’ (The Oxford English Dictionary, 2nd ed (1989), ‘bias’ sense 3a). It may be occasioned by interest in the outcome, by affection or enmity, or, as was said to be the case here, by prejudgment. Whatever its cause, the result that is asserted or feared is a deviation from the true course of decisionmaking, for bias is ‘any thing which turns a man to a particular course, or gives the direction to his measures’ (Johnson’s Dictionary quoted in The Oxford English Dictionary, ‘bias’ sense 5a). This matter concerns only bias by prejudgment and I confine my reasons to that subject. The questions that may be presented by an allegation of bias for other reasons do not arise and are not considered. The development and application of a test of reasonable apprehension of bias avoids any need for a court, which is asked to prohibit a decision-maker from going further or to set aside a decision which has already been made, to attempt some analysis of the likely or actual thought processes of the decision-maker. It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question. As was said in Ebner per Gleeson CJ, McHugh, Gummow and Hayne JJ, ‘[t]he question is one of possibility (real and not remote), not probability’. Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question

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which is said to have been prejudged is one which should be considered afresh in relation to the particular case. … Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker. [His Honour then discussed what criteria were to be taken into account in identifying whether a person was not of ‘good character’ in s 501(2).] … [S]o long as the meaning which was thus assigned to the expression ‘is not of good character’ revealed no error of law, the fact that the Minister announced that he or she proposed to administer the Act according to that understanding could not be said to constitute the prejudgment of any particular case that may later arise. There is no prejudgment in such a case because of the nature of the statutory task. It is to reach a degree of persuasion (satisfaction) that a value-laden standard (is not of good character) is met. The determination of that standard is not a task which the Act requires the Minister to undertake wholly anew each time it is suggested that there may be a case for the exercise of the discretionary power, conferred by the Act, to cancel or refuse a visa. It was open to the Minister to determine the standard to be applied in a way that left little or no room for debate about its application in an individual’s case. [Kirby J dissented, holding that the comments of the minister established a case of imputed bias. Callinan J, after analysing the facts, held that there was neither actual nor apprehended bias on the part of the minister. His Honour noted that there is a less onerous obligation of restraint applying to a minister than a court or tribunal.]

11.5.32C

Isbester v Knox City Council (2015) 255 CLR 135; 89 ALJR 609; [2015] HCA 20 High Court of Australia

[The appellant, Tania Isbester, owned a Staffordshire terrier called ‘Izzy’, which attacked a bystander. Following an investigation by Knox City Council, Ms Isbester was convicted by the Magistrates Court of an offence under s 29 of the Domestic Animals Act 1994 (Vic) of being the owner of a dog that has caused serious injury. Following the conviction, the council wrote to Ms Isbester informing her that a three-member panel appointed by the council would consider whether the dog should be destroyed pursuant to s 84P of the Domestic Animals Act 1994. Following a hearing at which Ms Isbester made submissions, she was notified of the panel’s decision that the dog should be destroyed. Ms Kirsten Hughes, the council’s Co-ordinator of Local Laws, was both a member of the panel and had been involved in the investigation and prosecution of the charges in the Magistrates’ Court. The High Court held that the decision of the panel that the dog be destroyed should be quashed, as a fair-minded lay observer might reasonably apprehend that Ms Hughes might not have brought an impartial mind to the panel’s decision.]

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Kiefel, Bell, Keane and Nettle JJ: The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made. The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an ‘interest’ in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making. It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decisionmakers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different. … The two cases referred to in the Courts below, Jia Legeng and McGovern, furnish examples of how the above-mentioned factors assume relevance to the question of what a fair-minded observer may reasonably expect as to the level, or standard, of impartiality which should be brought to decision-making by certain non-judicial decision-makers. … In Jia Legeng, the context for the Minister’s decision was a statute providing a particular power in the exercise of which it was necessary to consider the national interest. The decision had a political quality and rendered the Minister subject to a particular kind of accountability unlike that to which a judge would be subjected. It was observed that a person in the position of the Minister may not be as constrained in the wide range of factors to be taken into account and in receiving opinions from a number of sources. It would be artificial, in a decision-making process of this kind, to require the Minister to exercise his power so as to avoid acting in a way that would, in the case of a judge, create the appearance of bias. The same level of evident neutrality as applies to a judge could not be required of a person in the Minister’s position. In McGovern, a local council approved an application for consent to further develop a residential property, over the objections of the applicant’s neighbours. Prior to voting on the matter, two councillors had come to the view that the application should be approved and they had expressed their view in strong terms on more than one occasion. It was considered by Spigelman CJ in McGovern to be of particular significance that the relevant statutory power was vested in a democratically elected council exercising a discretionary power expressed in broad terms to which multiple considerations applied and in respect of which there might be a range of permissible opinion. At a practical level, it is also to be expected that a person in the position of a councillor will form opinions before voting and may express them. As was observed in Jia Legeng, it would be unrealistic to expect a political decision-maker to modify his or her behaviour in order to conform to higher standards inappropriate to his or her office. It could not be suggested that a councillor who has expressed views to constituents with respect to a development application should disqualify himself or herself. It was in this context that Basten JA said, in the passage quoted by the

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primary judge in this case and set out above, that a fair-minded observer would expect little more of a councillor than an absence of personal interest and a willingness to give genuine and appropriate consideration to the application. At issue in Jia Legeng and in McGovern was the possibility of bias in the nature of prejudgment on the part of the relevant decision-makers. Neither case had the feature concerning the decision-maker present in this case and they consequently did not address the question whether a person’s involvement in the matter antecedent to the decision is incompatible with his or her participation in the decision. … In its argument, the Council was concerned to make the point that it was not required to provide a hearing of the kind undertaken nor convene a panel to make the decision under s 84P(e). The point may be made in aid of the submission, reiterated at various points in the Council’s argument, that the constitution of the Panel to hear the matter did not make the process quasi-judicial in nature. The process could therefore be distinguished from the processes undertaken in cases such as Dickason and Stollery. Describing a process as having, or not having, a quasi-judicial quality is rarely helpful. In a case such as this it diverts attention from the real question, which is directed to the impartiality of the decision-maker, given her particular involvement in the matter. It may be accepted that there is no statutory requirement for a hearing or for a panel in connection with a decision under s 84P(e). The Council or a delegate could themselves decide the matter, subject to the requirements of natural justice. However, it is not to be inferred from the fact that the Council could decide the matter for itself that the standard of neutrality referred to in McGovern, that of merely genuine and appropriate consideration, is relevant to, or determinative of, this case. At issue in McGovern were allegations of prejudgment. The question raised concerning the impartiality of the two councillors was whether they could be expected to give genuine consideration to the application, given the opinions they had expressed. The concern as to the impartiality of Ms Hughes raises a different question. There is no issue before this Court concerning her possible prejudgment of the matter. The question here is whether it might reasonably be apprehended that a person in her position would have an interest in the decision which could affect her proper decision-making. The interest which the appellant alleges existed in this case is akin to that which a person bringing charges, whether as a prosecutor or other accuser, might be expected to have in the outcome of the hearing of those charges. It is generally expected that a person in this position may have an interest which would conflict with the objectivity required of a person deciding the charges and any consequential matters, whether that person be a judge or a member of some other decision-making body. In Dickason, Isaacs J referred to cases of this kind as instances of ‘incompatibility’. The plaintiff in Dickason was a member of a friendly society regulated by statute. He was accused of insulting the District Chief Ranger of the society. It was held that the District Chief Ranger could not sit as part of the committee to hear the charges brought against the plaintiff. Isaacs J said that, subject to a statute providing otherwise and the principle of necessity, ‘[i]f it is incompatible for the same man to be at once judge and occupy some other position which he really has in the case, then prima facie he must not act as a judge at all.’ O’Connor J thought that it would be impossible not to reasonably suspect a man who is a prosecutor in a charge concerning himself of bias.

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Stollery is a case not unlike Dickason. In Stollery, a greyhound owner was accused by the manager of an association which conducted dog racing of attempting to bribe the manager. The manager reported the incident in question to the Greyhound Racing Control Board, which then held an inquiry. The manager himself was a member of the Board. Although he took no part in the deliberations, he remained present in the room whilst they were taking place. The decision of the Board was quashed by this Court. … The Council places considerable reliance upon the fact that the decision-making process took place in two stages. The charges were heard, and pleas taken, in the Magistrates’ Court. The Council, through the Panel, dealt with the subsequent but separate issue as to the fate of the dog. Ms Hughes’ interest, if any, as a prosecutor, on the Council’s argument, ended when the proceedings in the Magistrates’ Court came to an end. It is true that the question for the Panel was different from that with which the Magistrates’ Court was concerned, in the same way that a penalty proceeding may be regarded as different from that concerning the underlying offence. It may be accepted that different questions are raised in penalty proceedings. In the present case the questions for the Panel would include matters directed to the future, such as the dog’s propensity to attack and the safety of the public. However, it is also to be expected that much of the evidence relating to the past offence will also be relevant to penalty and this was the case here. This explains why the briefs of evidence from the Magistrates’ Court proceedings and Ms Hughes’ notes of those proceedings were provided to the other Panel members. It is not realistic to view Ms Hughes’ interest in the matter as coming to an end when the proceedings in the Magistrates’ Court were completed. A line cannot be drawn at that point of her involvement so as to quarantine the Magistrates’ Court proceedings from her actions as a member of the Panel. It is reasonably to be expected that her involvement in the prosecution of the charges created an interest in the final outcome of the matter. Ms Hughes’ continuing interest in the matter may be tested by asking whether, if the Magistrates’ Court had been asked to make an order for destruction, as could have been done following conviction, it might reasonably be apprehended that she would remain interested in whether the Magistrates’ Court granted the order. The answer must clearly be ‘Yes’. In any event, it is not accurate to describe Ms Hughes as a person who in fact had no ongoing involvement in advancing the matter after the Magistrates’ Court proceedings. Having participated in obtaining the conviction for the offence under s 29(4), she organised the Panel hearing and drafted the letter advising the appellant of it. She supplied the Panel with evidence, including further evidence she had obtained as relevant to the future housing of the dog. If Ms Hughes could not actually be described as a prosecutor with respect to the decision under s 84P(e), she was certainly the moving force. That leaves for consideration the opinion of the Court of Appeal that the disqualifying interests in Dickason and Stollery were of a kind particularly personal to the persons in question and that such an element is absent in the case of Ms Hughes. It is true that Ms Hughes’ role in this matter did not involve her at quite the same personal level as the manager in Stollery, who was subjected to, and affronted by, the alleged bribe; nor was she the target of abuse as in Dickason, which was directed to the District Chief Ranger. It may be accepted that these factors added another dimension to the level of involvement of those persons. It cannot, however, be said that this dimension accounted for the disqualification in those cases. The interest identified in Dickason and Stollery as necessitating disqualification

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was that of a prosecutor, accuser or other moving party. An interest of that kind points to the possibility of a deviation from the true course of decision-making. A ‘personal interest’ in this context is not the kind of interest by which a person will receive some material or other benefit. In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor’s view of guilt or punishment. It is not necessary to analyse the psychological processes to which a person in such a position is subject. It is well accepted, as the two cases referred to show, that it might reasonably be thought that the person’s involvement in the capacity of prosecutor will not enable them to bring the requisite impartiality to decisionmaking. This is not to equate such a person with a judge. In that part of the joint reasons in Ebner which deals with the incompatibility of the interest of a prosecutor and judge, it is said that cases of incompatibility might have a special significance, and might operate independently of problems relating to apprehension of bias. It may be inferred that their Honours were distinguishing cases of incompatibility from those where pecuniary interests are in question, because in the latter, difficult questions may sometimes arise as to whether the second step of the two-stage test in Ebner is satisfied. In cases of incompatibility, disqualification would seem to be the only possible outcome, because the second step will necessarily be satisfied. The Council submitted that the Court should not apply an automatic disqualification if it found that Ms Hughes’ involvement gave her a relevant interest, and that the test in Ebner should be applied. It submitted that the test could not be met because (i) even if Ms Hughes had an interest, the primary judge had found as a fact that she did no more than diligently carry out her responsibility; and (ii) the decision was not made by her, but by her superior, Mr Kourambas. The first of these submissions might be relevant to an allegation of actual bias but provides no answer to one of apprehended bias based on an interest in the decision. The second is relevant to the proposed notice of contention. For the reasons given in Dickason and Stollery, the participation of others does not overcome the apprehension that Ms Hughes’ interest in the outcome might affect not only her decision-making, but that of others. The Court of Appeal was correct to approach the question on the basis that she played a material part in the decision. That is so even if Mr Kourambas was responsible as delegate for the decision. The majority reasons in Ebner should not be understood to exclude cases of the kind here in question from the application of the principle by the test there stated. The test directs attention, as a first step in cases where apprehended bias is alleged, to the critical question of the decision-maker’s interest. The difference in the application of the test is that in cases like the present one that concern incompatibility of roles, once the interest is identified as one which points to a conflict of interest, the connection between that interest and the possibility of deviation from proper decision-making is obvious. A fair-minded observer might reasonably apprehend that Ms Hughes might not have brought an impartial mind to the decision under s 84P(e). This conclusion implies nothing about how Ms Hughes in fact approached the matter. It does not imply that she acted otherwise than diligently, and in accordance with her duties, as the primary judge found, or that she was not in fact impartial. Natural justice required, however, that she not participate in the decision and because that occurred, the decision must be quashed. [Gageler J delivered a concurring judgment.]

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British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 High Court of Australia

[Mr Laurie had smoked from 1946 until 1971. In 2006, Mr Laurie instituted a common law action under the Dust Diseases Tribunal Act 1989 (NSW) against British American Tobacco Australia Services Ltd (BATAS). The claim was that the company had been negligent in the manufacture, sale and supply of tobacco products. Mr Laurie died in 2006. In 2007 his widow continued the proceedings. The judge allocated to hear the matter was Judge Curtis. In 2002 Judge Curtis had made interlocutory findings in proceedings also involving BATAS. That matter involved the death of an employee due to lung cancer as a result of exposure to asbestos. The proceedings involved a cross-claim by the company against which the asbestos-related proceedings were brought on the basis that the deceased had also smoked. In those proceedings Judge Curtis had made an order that BATAS give discovery, rejecting BATAS’s claim of legal professional privilege. In March 2006, the company obtained an order from Judge Curtis for further discovery from BATAS. On this occasion the judge also rejected the claim of privilege because the communication had been made in furtherance of the commission of a fraud. The fraud consisted of the dishonest concealment, under pretence of a rational non-selective document retention policy, that BATAS was destroying prejudicial documents to suppress evidence in anticipated litigation. In his findings in the second interlocutory proceeding, Judge Curtis had stated that his ‘prima facie’ findings of fraud were made ‘on the present state of the evidence’ and ‘in the absence of evidence to the contrary’. The Laurie proceedings in June 2006 came a month after BATAS had received the reasons of Judge Curtis in the other proceedings. BATAS made no disqualification application against the judge. On 11 July 2007 Mrs Laurie became the applicant in the proceedings. It was not until December 2007 that BATAS indicated it might seek that Judge Curtis disqualify himself if other proceedings in the matter were not successful. That did not occur until February 2009 when BATAS sought to have Judge Curtis disqualify himself on the ground of bias. The application was heard in May 2009 and Judge Curtis refused the application shortly thereafter. On appeal to the New South Wales Court of Appeal, by majority (Tobias and Basten JJA; Allsop P dissenting) the appeal was dismissed. On further appeal to the High Court, by majority (Heydon, Kiefel and Bell JJ; French CJ and Gummow J dissenting) the appeal was upheld.] French CJ: The scrutiny required of claims of bias based on prior findings by a decisionmaker was emphasised, in relation to administrative decisions, by Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal. Their Honours, after referring to R v Australian Stevedoring Industry Board, Angliss and Shaw, said: When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. (Emphasis added.) The requirement that an apprehension of bias, based on judicial conduct, be ‘firmly established’ is consistent with the most recent decisions of this court and gives content to the requirement that an apprehension of bias, in that class of case, be reasonable.

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Much debate in this appeal turned on the extent of the knowledge attributable to the fairminded lay observer for the purpose of determining whether that observer would reasonably apprehend bias. That knowledge does not extend to a knowledge of the law that ordinary experience shows not to be the case. The question was discussed in Johnson v Johnson, where the plurality said: Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. (Footnote omitted.) … I agree with the observation of Kirby J that a fair-minded lay observer would, before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a fair judgment. The interposition of the fair-minded lay person could never disguise the reality that it is the assessment of the court dealing with a claim of apparent bias that determines that claim. … In my opinion it is not necessary to go further for the purposes of this appeal than to consider the view of the fair-minded lay observer aware of the following matters: 1. That Judge Curtis made his finding of fraud in dealing with a dispute about whether legal professional privilege meant that certain material could not be used in the Mowbray proceedings. 2. That his finding was made in 2006 in the Mowbray proceedings and that the motion for his recusal was brought in 2009 in the Laurie proceedings. 3. The content of Judge Curtis’ reasons for the ruling on the matter of legal professional privilege and the information conveyed by those reasons, including the information they conveyed about the nature of the proceedings and the fact that the ruling was not a final determination of fraud in relation to the Document Retention Policy for the purpose of the Mowbray proceedings. 4. The qualifications stated by Judge Curtis in relation to his findings. In this case, the salient features of the judge’s finding against BATAS would be apparent to the fair-minded lay observer without assistance from special knowledge of the law, the tribunal or the rules of practice and procedure. The judge made it clear he was not making a finding which would stand, come what may, as a finding at trial. The observer would need no understanding of the rules relating to the admissibility of hearsay evidence in interlocutory proceedings to come to that conclusion. So much was apparent from the judge’s statement of his task, which was to ‘determine the proceedings now before me on the evidence now before me’. He referred to things which ‘may be explained at the trial’ and qualified his finding of fraud by his statement that he was persuaded to that finding ‘on the present state of the evidence’. His reference to the decision by BATAS not to call any rebuttal evidence in the interlocutory

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proceedings carried with it the clear implication, which an observer would not require a law degree to draw, that it would be open to BATAS to call rebuttal evidence at trial. On this material alone, in my opinion, the fair-minded lay observer would not conclude that there had been firmly established a reasonable fear that Judge Curtis’ mind was so prejudiced in favour of his finding of fraud that he would not alter that conclusion irrespective of the evidence or arguments provided to him in the Laurie proceedings. To conclude, as required by Ebner, that the judge might be led to decide the case other than on its legal merits, would require the observer to give no account to the express qualifications made by the judge in his findings in the Mowbray ruling. Even allowing for a reasonable scepticism about human nature, there is nothing in this case to warrant the view that the judge’s disclaimers were simply to be put to one side as having little or no weight. The fair-minded lay observer is not in my opinion assumed to have had regard to the reasons for judgment published by Judge Curtis in dismissing the BATAS motion for his recusal. In so saying, it should be acknowledged that there may be cases where reliance may be placed on later statements which withdraw or qualify earlier comments that might otherwise indicate prejudgment. It is nevertheless difficult to see how, as a general rule, a judge’s own explanation for refusing a recusal motion will assist in determining whether the facts and circumstances upon which the judge’s ruling is based, were such as to give rise to a reasonable apprehension of bias in the mind of a fair-minded lay observer. In my opinion, the fair-minded lay observer, aware of the circumstances in which Judge Curtis made his finding against BATAS and the qualifications which he expressed in relation to it, would not have an apprehension, firmly established on reasonable grounds, that Judge Curtis might undertake the trial of the Laurie proceedings other than impartially. The appeal should be dismissed. Gummow J: BATAS, both before this Court and in the Court of Appeal, submitted that the hypothetical observer would not have regard to the reasons of Judge Curtis on the recusal application or, if they did, such reasons should carry little, if any, weight. But it was remarked in the joint reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson, to which further reference is made below, that the hypothetical observer would be no more entitled to make snap judgments than would be the decision-maker under observation. Accordingly, and as the joint reasons make clear, later statements which qualify earlier statements may be relevant. There is no logical reason why any temporal element should be brought into that general principle; it depends upon the circumstances of the particular case. As will become evident later in these reasons, the considered conclusions, such as that stated above, by Judge Curtis in the recusal application are important for an understanding of the 2006 reasons and the hypothetical observer would attend to them in deciding whether the 2006 reasons had produced a sufficient apprehension of prejudgment. To that perception of the role of the hypothetical observer must be added the consideration that ‘the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party’. The words are those of Mason J in Re JRL; Ex parte CJL, in a passage adopted by Callinan J in Johnson v Johnson. Mason J also said in that passage, using words later said by the English Court of Appeal to have ‘great persuasive force’, and adopted by the New Zealand Court of Appeal:

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In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. The references in JRL to the phrase ‘firmly established’ in the joint reasons of all seven Justices of this Court in Angliss and to the subsequent authorities is important. BATAS presented its argument to Judge Curtis and to this court on the false footing that ‘the threshold of apprehended bias is very low’. For that proposition BATAS relied upon a remark by Spigelman CJ in McGovern v Ku-Ring-Gai Council. However, the expression ‘low threshold’ was immediately qualified by the statement that ‘an issue of some specificity’ is presented in the identification of that which is said to constitute lack of ‘impartiality’ or ‘prejudice’. Nevertheless, references to thresholds in this context are apt to distract attention from the force of what was said by Mason J in JRL and should not be made. … Applicable principles This is not a case where the ground for apprehended bias is identified as an extraneous influence such as financial interest in the outcome of the litigation or personal connection with a litigant. The apprehension upon which BATAS founds its complaint is that Judge Curtis will not approach the Laurie case with an open mind because he appears to have prejudged an issue and cannot or will not reconsider it with an open mind. The controversy in Johnson v Johnson turned upon the significance to be attached to remarks by the judge in the course of a trial in the Family Court of Australia. In the joint reasons of five Justices in this Court several points of immediate significance were made. First, their Honours said: The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’. Secondly, their Honours added: Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation.

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Chapter 11  Natural Justice Thirdly, the conclusions in the joint reasons in Johnson were expressed as follows:

The judge was not to be understood as intending to express a concluded view on the credibility of either party. In particular, he was not to be understood as intending to express such a view about the credibility of the appellant, who had not yet been called to give evidence. His expectation as to the importance of independent evidence, and documentary material, was understandable. An apprehension that he had formed a concluded view on the credibility of witnesses and would not bring an open mind to bear when he decided the case, would have been unwarranted and unreasonable. Fourthly, where, as was the situation in Johnson, the judge in question later explains in court what he or she had intended to convey by an earlier statement in court, the question is whether a reasonable observer would reject that explanation, or whether the explanation could not remove ‘an ineradicable apprehension of prejudgment’. To this may be added an observation in the joint reasons of the whole Court in Angliss. Their Honours emphasised the significance of the particular subject matter before the decision maker and the questions arising from it, saying of the mind of the decision maker: Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it. … There could have been no objection to Judge Curtis trying the dispute between Brambles and BATAS in the Mowbray litigation upon such evidence as then was presented, notwithstanding his earlier ruling on the discovery application. A fortiori, should the Laurie litigation go to trial, the fair-minded lay observer would not, upon the basis of the Mowbray litigation, apprehend that the judge would not bring an impartial and open mind to the resolution of the issues in the Laurie litigation. For the observer there would be lacking the necessary logical connection between the 2006 reasons and the Laurie litigation to support such an apprehension. … The appeal should be dismissed. Heydon, Kiefel and Bell JJ: It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public’s perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature. Of course, judges are equipped by training, experience and their oath or affirmation to decide factual contests solely on the material that is in evidence. Trial judges are frequently required to make rulings excluding irrelevant and prejudicial material from evidence. Routine rulings of this nature are unlikely to disqualify the judge from further hearing the proceeding. This is not a case of that kind. It does not raise considerations of case management and the active role of the judge in the identification of issues with which Johnson was concerned. At issue is not the incautious remark or expression of a tentative opinion but the impression reasonably conveyed to the fair-minded lay observer who knows that Judge Curtis has found that BATAS engaged in fraud and who has read his Honour’s reasons for that finding. …

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The hypothetical observer is reasonable and understands that Judge Curtis is a professional judge. Nonetheless, the observer is not presumed to reject the possibility of pre-judgment. If it were otherwise an apprehension of bias would never arise in the case of a professional judge. Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial. Judge Curtis’s express acknowledgment of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the Laurie proceedings. Allsop P’s conclusion was correct. In addition to the possibility of the evidentiary position changing, a reasonable observer would note that the trial judge’s finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, that while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about BATAS’s denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge, and that the nature of the fraud about which the judge had been persuaded was extremely serious. In the circumstances of this unusual case, a reasonable observer might possibly apprehend that at the trial the court might not move its mind from the position reached on one set of materials even if different materials were presented at the trial – that is, bring an impartial mind to the issues relating to the fraud finding. Johnson v Johnson is distinguishable. Exceptions to the rule Exceptions to the apprehension of bias rule include necessity, waiver and, possibly, special circumstances. Necessity The Court of Appeal rejected a submission that Judge Curtis’s refusal to recuse himself was justified upon the grounds of necessity. While the Tribunal is a small one and is currently constituted by three judges, the persons qualified to be members of the Tribunal include Judges or Acting Judges of the Supreme and District Courts of New South Wales. Mrs Laurie did not file a notice of contention seeking to uphold the decision below on the ground of necessity. Waiver Something should be said about the delay in bringing the recusal application. On 20 April 2006, Judge Curtis was appointed to take Mr Laurie’s evidence in Texas in the United States, and to be the trial judge. Mr Laurie died on 29 May 2006. The following day Judge Curtis delivered judgment on the discovery application in the Mowbray proceedings. On 16 June 2006, Mrs Laurie filed a notice of motion claiming various orders including to reconstitute the proceedings. There were delays attending the latter. Mrs Laurie obtained a grant of probate in the Supreme Court of New South Wales on 14 June 2007. On 11 July 2007, the tribunal made an order substituting Mrs Laurie as the plaintiff in the proceedings and giving her leave to file an amended statement of claim. The amended pleading was filed on 13 July 2007. Thereafter the proceedings were subject to further delays as the result of Mrs Laurie’s decision to retain new solicitors to act for her. On 9 November 2007, the newly

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retained solicitors wrote to those acting for BATAS stating their view that Mrs Laurie’s claim ‘should not be litigated’ until certain proceedings against BATAS in Victoria were determined. On 6 December 2007, BATAS filed an application in the Supreme Court of New South Wales seeking to have the Laurie proceedings transferred to the Supreme Court of Victoria. At a directions hearing held shortly thereafter, and before the cross-vesting application had been heard, BATAS foreshadowed that it would apply to the tribunal for an order that Judge Curtis disqualify himself from hearing Mrs Laurie’s claim in the event that the proceedings were not transferred. BATAS’s cross-vesting application was dismissed on 27 February 2009. On 5 March 2009, the tribunal made directions in light of the foreshadowed recusal application. On 9 March 2009, BATAS filed its recusal motion. Mrs Laurie does not submit that the delay in bringing the recusal application amounted to a waiver of BATAS’s rights. The delay was not agitated before the Court of Appeal as a reason for denying BATAS the prerogative relief claimed in its summons. While the fact of the delay was noted in the submissions filed in this court, it was not submitted that delay was a circumstance which would justify the refusal of relief in the event that the apprehension of bias rule was engaged. Special circumstances Livesey left open the question whether special circumstances may also amount to an exception to the rule. This appeal does not raise for consideration what special circumstances might justify a judge sitting to determine a case despite being reasonably suspected of having pre-judged an issue. The fact that Judge Curtis took the evidence of the late Mr Laurie at his bedside is not relied upon in this respect. In circumstances in which the evidence was transcribed and video-recorded, such a contention would have been forlorn.

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Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633 High Court of Australia

[The High Court held by majority that proceedings before a judge of the Supreme Court of New South Wales had miscarried by reason of the ostensible (though not actual) bias arising from comments made by the trial judge during the course of the proceedings. The trial judge had commented of three doctors called by the defendant, the Government Insurance Office (GIO), that they were the ‘unholy trinity’, the GIO’s ‘usual panel of doctors who think you can do a full week’s work without any arms or legs’, and whose ‘views are almost inevitably slanted in favour of the GIO’. Nonetheless, the High Court held per curiam that the failure of the GIO’s counsel to complain at the time the remarks were made constituted a waiver of any bias. The court concluded, however, that the appearance of bias was revived by other remarks made in the judgment. The following extracts relate to the discussion of bias and waiver.] Brennan, Deane and Gaudron JJ: It is inevitable that a judge who sits regularly to hear claims for damages for personal injury will form views about the reliability and impartiality of some medical experts who are frequent witnesses in his or her court. In some cases and notwithstanding the professional detachment of an experienced judge, it will be all but

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impossible to put such preconceived views entirely to one side in weighing the evidence of a particular medical expert. That does not, however, mean that the judge is disqualified from hearing the particular action or any other action involving that medical expert as a witness. The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a judge carries with him or her the knowledge that some medical witnesses, who are regularly called to give evidence on behalf of particular classes of plaintiffs (eg members of a particular trade union), are likely to be less sceptical of a plaintiff’s claims and less optimistic in their prognosis of the extent of future recovery than are other medical witnesses who are regularly called to give evidence on behalf of particular classes of defendants (eg those whose liability is covered by a particular insurer). If it were so infringed, the administration of justice in personal injuries cases would be all but impossible. In that regard, both necessity and common sense require that a distinction be drawn between the case where a judge has some preconceived views about the expertise or reliability of the professional opinions of an expert medical witness and the case where a judge has preconceived views about the credit or trustworthiness of a non-expert witness ‘whose evidence is of significance on … a question of fact’ which ‘constitutes a live and significant issue’ in the case (see Livesey v New South Wales Bar Association (1983) 151 CLR 288, at 300). Nor will that requirement of the reality and appearance of impartial justice be infringed if a judge with preconceived views about the general reliability of the evidence of a particular medical witness discloses the existence of such views in the course of the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case. In the course of an eloquent passage in his judgment in R v Watson; Ex parte Armstrong (1976) 136 CLR 248, at 294, Jacobs J expressed the view that judicial ‘silence’ is a ‘counsel of perfection’. We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated … Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

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Toohey J: There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case. … In the result, when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain later that the judge was biased … [Dawson J delivered a concurring judgment, except to conclude that the comment of the trial judge during the trial did not constitute either actual or apprehended bias.]

11.5.35C

Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; 93 ALR 90; 70 ALD 314 High Court of Australia

[The Minister for Mines in Western Australia granted an exploration licence to Hot Holdings. The grant followed a recommendation, as required by s 57 of the Mining Act 1978 (WA), of a mining warden. The recommendation followed a ballot which had been conducted by the warden, when a number of applications for licences had been lodged ‘at the same time’. The minister sought departmental advice on the recommendation. Subsequently it was claimed by Mr Creasy, one of the unsuccessful applicants for a licence, that two officers involved in the process had a pecuniary interest in the outcome and that their interest tainted the minister’s decision with bias. The interest consisted in share-holdings in a company which had an option to purchase an interest in the exploration licence if Hot Holdings was successful. One officer (Mr Miasi) owned shares in the company holding the option; in the second case, the adult son of the officer (Mr Phillips) held shares in the company. Mr Phillips, the director of the Mineral Titles Division, was a party to discussions with the director-general to discuss what the director-general should recommend to the minister. Mr Miasi was present at this discussion but took no part in it. He was instructed to prepare a minute in support of the conclusion reached about what had been decided but otherwise took no part. The majority allowed an appeal against a finding of the Full Court of the Supreme Court of Western Australia that the minister’s decision was flawed by bias.] Gleeson CJ: 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 might have been influenced by a desire to promote their interests. The first respondents sought in argument to overcome this difficulty by de-personalising the act of decision-making. Sheller AJ, whose judgment was agreed in by the other members of the Full Court, said: In my opinion, the holding by an officer in the Department who had taken part, albeit at the periphery, in the giving of advice to grant an exploration licence on which advice the Minister acted, of an undisclosed share interest in a company with a direct interest in the grant of the exploration licence must give rise to a reasonable

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apprehension or suspicion on the part of a fair-minded and informed member of the public that the Minister, acting on or taking account of such advice, which he believed was impartial, but which it could fairly be suspected was not, had himself for this reason not acted impartially. (Emphasis added.) The concluding words appear to attribute a form of vicarious partiality to the Minister. That approach has far-reaching implications. Decision-makers, whether administrative or judicial, often act on, or take into account, information or advice that comes to them from sources that are not impartial. It was not argued in this Court that the Minister took into account an irrelevant consideration or failed to take account of a relevant consideration. That might sometimes be the consequence of receiving advice that is partial; but it is not this case. … A fair-minded member of the public, informed of all the facts set out above, would know 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 duty. But the reasoning proceeds on the footing that a decision-maker may act with partiality, or that a decision may be not impartial, although the decision-maker is personally impartial … In order to resolve the problem presented by this case, it is not necessary to define comprehensively the circumstances which an administrative (or judicial) decision may be impugned upon the ground that some person, other than the decision-maker, associated with the process of decision-making, had a personal interest in the outcome of the process. That is a large question; and it may not have a single answer. At the same time, it is not sufficient to address the issue, at a high level of generality, by reference to ethical standards of public servants. The possibility that Mr Miasi’s conduct may have been improper does not necessarily lead to a conclusion that the Minister’s decision was invalid. It might expose him to disciplinary action, but the question is whether it exposes the appellant to the loss of its licence. Legal rights and interests are at stake, and the intermediate steps leading from the premise to the conclusion require scrutiny. Nor is it sufficient to characterise the ‘process’ as ‘tainted’, and note that an observer who knew some of the facts, but not others, might be suspicious about what had gone on. What is required is an identification, and application, of the principle upon which the challenge to the Minister’s decision must rest. If the first respondents have a case for setting aside the Minister’s decision, it is on the ground that the making of the decision involved procedural unfairness. 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’ (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J). Procedural unfairness can occur without any personal fault on the part of the decisionmaker [Aala 17.1.14C]. But if the form of unfairness alleged is the actuality or the appearance of disqualifying bias, and that is said to result from the conduct or circumstances of a person other than the decision-maker, then the part played by that other person in relation to the decision will be important … In the present case, far from having ‘a central role’ … Mr Miasi had an involvement in the decision-making process that was correctly described by Heenan J as peripheral. He made no significant contribution to the Minister’s decision. That is a sufficient reason for concluding that his financial interest did not deprive the Minister’s decision of the appearance of impartiality.

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It is not enough that an observer who knew some of the facts about the decision-making process, and did not wish to know others, might have entertained a suspicion that the decision was influenced by the pecuniary interest of Mr Miasi. 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. McHugh J: In some cases, a reasonable apprehension of bias may arise simply from the close connection of a decision-maker with a person who may be affected by the outcome of the decision. The relationship of the parties may be so close and personal or the person interested in the outcome so influential or dominant that a fair-minded person might reasonably apprehend that the decision-maker might not make the decision impartially … However, whether or not the mechanics of the process are known, no conclusion of apprehended bias by association can be drawn until the court examines the nature of the association, the frequency of contact, and the nature of the interest of the person associated, with the decision-maker. It is erroneous to suppose that a decision is automatically infected with an apprehension of bias because of the pecuniary or other interest of a person associated with the decision-maker. Each case must turn on its own facts and circumstances. [Gaudron, Gummow and Hayne JJ (Callinan J agreeing) held that there was no sufficient factual basis for a reasonable apprehension of bias concerning the minister’s decision. Kirby J dissented, observing that ‘It is desirable that the law on apprehended bias should discourage administrators with direct, and certainly undisclosed, pecuniary interests in a decision from taking part in such deliberations’: at 481.]

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12

INTRODUCTION: THE ROLE OF POLICY IN GOVERNMENT ADMINISTRATION 12.1.1  The interaction between law and executive policy is an area of tension between the judicial and executive branches. The legal and governmental approaches to decision-making have much in common, but they are also driven by imperatives that often clash. Lawyers, steeped in concepts such as parliamentary supremacy, separation of powers and rule of law, look principally to the legislative framework to seek rules and answers. Where discretion exists, lawyers urge that the justice of the individual case should be the guiding consideration. Administrators, by contrast, are confronted by the fact that the legislative skeleton does not provide answers to the myriad problems that arise in a normal week — a dilemma that is often exacerbated by the large number of officials among whom the decision-making function is shared and the geographical spread of government offices. Administrators, accordingly, urge the need for certainty, predictability and consistency, which can best be achieved by administrative rules and policies that supplement the legislative text. A further consideration is that policies often encapsulate the views of ministers and the government and, consonant with the democratic imperative, carry special weight. Both perspectives have merit. As Sedley LJ noted in R v Secretary of State for Education and Employment; Ex parte Begbie [2000] 1 WLR 1115 at 1132: ‘[A] policy has virtues of flexibility which rules lack, and virtues of consistency which discretion lacks’. 12.1.2  That clash, between legal and administrative values, was the pivotal factor in Green v Daniels 7.2.4C, one of the foundation cases of contemporary Australian administrative law. The Social Services Act  1947 (Cth) provided that a person was eligible for unemployment benefit if the person was unemployed and had made reasonable attempts to seek work. The government of the time — at least at ministerial, and seemingly at cabinet, level — had developed a supplementary policy that a school leaver was not in a position to meet those requirements until the start of the next school year. The policy was applied automatically by the Tasmanian social security office at which Karen Green prematurely lodged her unemployment claim form. The High Court declared invalid the refusal of benefit, by reason of the automatic application of a policy that was inconsistent with the legislation (though the Act was then amended to reflect the policy and to prevent similar claims in the future). 767

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12.1.3  Australian administrative law and decision-making have moved a long way in the time since Green v  Daniels 7.2.4C was decided. The need for policy to be consistent with legislation and to be flexibly applied is far more commonly understood. In an attempt to marry law and policy, there has also been a phenomenal growth in the detail of legislative and policy rules. Yet tensions remain, giving rise to many issues that are dealt with in this chapter:

• Does the administrative law emphasis on the need for justice in the individual case undervalue the importance of consistency in decision-making that compliance with policy can bring? • Should some policies carry greater weight than others; for example, those endorsed by a minister or cabinet or tabled in the parliament?

• Should administrative tribunals undertaking merit review of decisions have the same regard for policy as other decision-makers? Should they be able to rewrite policy endorsed by a minister? • Even if administrative policies are not binding, should decision-makers be free to ignore government policies? Likewise, should government agencies be prevented — or estopped — from acting inconsistently with their promises and representations?

• Can government limit its ability to change policy by a contractual undertaking? If not, what impact will that have on certainty in the marketplace?

• Will the introduction of expert computer systems for making or assisting to make decisions, in which the system’s rule base is a mixture of legislation and policy, tend to reduce the distinction between the two? • Are the remedies available for breach of policy also available for what is described as ‘soft law’?

The meaning of policy 12.1.4  Before addressing the issues relating to policy raised in the previous paragraph, it is necessary first to say a few words about the context in which those issues arise, and as to the distinction between, on the one hand, ‘executive policy’ and ‘directions’ and, on the other hand, ‘legislation’ or ‘law’. 12.1.5  The essential feature of an executive policy is that it is a non-statutory rule devised by the administration to provide decision-making guidance, particularly in administering legislation. In some instances, the policy is very formal, possibly authorised by statute, tabled in the parliament, endorsed by a minister or cabinet, or published as an agency manual. The policies considered in the following cases were of the formal kind: Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce 12.2.22C; Riddell v Secretary, Department of Social Security 12.4.4C; and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (Drake No 2) 12.5.5C. In other instances, the policy may be informal — originating in a press release, a precedential decision of a court or tribunal, or based on unwritten agency folklore or mythology that is passed down from officer to officer. 12.1.6  It is customary in administrative law to distinguish ‘policies’ from ‘directions’ (for example, Administrative Decisions ( Judicial Review) Act  1977 (Cth) (ADJR Act) s  5(2)(e) and (f ): see  12.2.6), but in fact they overlap and raise much the same legal issues. Directions are generally a more specific form of policy statement, usually given by one officer to another 768

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12.1.9

to indicate the parameters for making a particular decision; there are illustrations of directions in R v Anderson; Ex parte Ipec-Air Pty Ltd (Ipec-Air) 12.3.3C and Ansett Transport Industries (Operations) Pty Ltd v Commonwealth 12.3.4C. The overlap between ‘policies’ and ‘directions’ is also evident in legislative usage, in that the requirement imposed on officials to decide consistently either with government policy or with ministerial directions will usually be made in different sections of a statute. The necessity for such an injunction is removed when, as is common, the direction is specifically given legislative status. 12.1.7  Policy overlaps with two other types of instrument — legislative instruments and soft law. Legislative instruments, which are examined in Chapter 6, cover a large range of documents ranging from regulations and by-laws, to directions by ministers or heads of agencies, schemes, codes, manuals and standards. In the Commonwealth, for example, it is estimated that there are over 30,000 legislative instruments on the Federal Register of Legislation alone, and many more in the states and territories. The multifarious varieties of legislative instrument are indicated on the register website at under ‘Legislative Instruments’. Some of those documents have a similar character and legal status to the non-legislative policies and directions examined in this chapter. The main difference is that in the Commonwealth an instrument that meets the definition of ‘legislative instrument’ in the Legislation Act 2003 (Cth) must be placed on the Federal Register and tabled in the parliament; the document is not enforceable if it is not registered: ss 15G, 15K. Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee 2.4.40C provides an example of the fine line between legislative and non-legislative instruments. A Poisons Standard that was thought to be a non-legislative (or soft law) standard was not placed on the Federal Register, and became unenforceable after the Federal Court later ruled that it was a legislative instrument. 12.1.8  Soft law (also called ‘grey law’ and ‘fuzzy law’) is a relatively new term to describe documents used inside and outside government to ensure effective regulation. Soft law instruments are usually distinguished from legislation, but can have legal consequences for those being regulated; for example, a non-legislative instrument might stipulate the procedure for lodging applications, how applications will be decided, which applications will be audited or checked, when consultation will be agreed to, when fees will be waived, and the concessions available to an applicant who complies with agency guidelines. The Australian Government Annual Deregulation Report 2014 found that Commonwealth agencies administer over 71,000 different ‘quasi-regulations’ (including guidance documents and codes of practice). The term ‘soft law’ is described in a report of the Administrative Review Council, Administrative accountability in business areas subject to complex and specific regulation, Report No  49, Commonwealth of Australia, Canberra, 2008, at xi: see 6.1.21E. 12.1.9  There is no clear line that separates soft law and subordinate legislation. Many soft law instruments do not have statutory backing, while some do, such as directions and manuals that are given binding force by a statute. Examples include the Guide to the Assessment of the Rates of Veterans’ Pensions, imposed on decision-makers under s 29 of the Veterans’ Entitlements Act 1986 (Cth), and defence policies and procedures made under Pt II of the Defence Act 1903 (Cth). The ‘elusive’ definition of soft law has been summed up by Weeks as follows: Soft law means different things to different people. … Indeed, as a generic term, there is an argument that ‘soft law’ conceals as much as it reveals, making it at best unhelpful and at worst a ‘misleading simplification’. 769

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Many attempts to classify soft law have been compelled simply to list various types of soft law instruments. This approach, while instructive, does not lead to a definition since soft law instruments occupy a broad section of the spectrum between unstructured discretion and legislation. As time has gone by, the problem has been one of ascertaining which of this ‘wide variety of instruments’ are included within the broad term ‘soft law’. It is interesting to note that attempts to define soft law by listing its varieties serve mainly to nominate instruments which could be either delegated legislation on one hand or soft law on the other, depending on whether their creation has been expressly authorised by Parliament. Codes of practice, guidance, guidance notes, circulars, policy notes, development briefs, practice statements, tax concessions, codes of conduct, codes of ethics and conventions will all generally fall into the latter category. However, listing different soft law instruments is an unsatisfactory manner in which to define soft law, with such lists tending ‘to be overinclusive, while not giving sufficient information to enable a classification to be made’. Such lists must therefore be seen as providing examples of what soft law includes instead of being definitive of what soft law is. … The definition of soft law in Australia is generally best expressed negatively or, in other words, by what it isn’t. It isn’t primary legislation, which is enacted by Parliament. Nor is it delegated (or ‘secondary’) legislation, which is made subject to the express authority of Parliament. These are forms of ‘hard’ law. … At Commonwealth level in Australia, this debate has been subsumed into the threshold issue under the Legislative Instruments Act of what constitutes a ‘legislative instrument’. This inquiry is aimed at the function of an instrument, although in practice most statutes now specify whether the Act is to apply. [G Weeks, ‘The Use of Soft Law by Australian Public Authorities’ (2014) 42 Federal Law Review 181 at 182–4]

12.1.10  Unless a statute provides otherwise, breach of a non-statutory policy or administrative procedure will not directly attract a sanction: Bromet v Oddie [2003] FCAFC 213. In effect, the adverse consequence following breach of a soft law norm can equally be ‘soft’. The only recourse may be use of discretionary schemes such as the Scheme for Compensation for Detriment Caused by Defective Administration (CDDA Scheme). See also G Weeks, Soft Law and Public Authorities — Remedies and Reform, Hart Publishing, Oxford, 2016, pp 253–4. 12.1.11  Freedom of information legislation is also relevant to policy, by requiring policies used in decision-making — ‘operational information’ — to be publicly notified: see  19.2.22ff. If this is not done, the policy cannot be relied upon to the disadvantage of a person who was not aware of the policy: see, for example, Freedom of Information Act 1982 (Cth) ss 8, 8A, 10. See also ACT: Freedom of Information Act 2016 s 27; NSW: Government Information (Public Access) Act  2009 s  24; Qld: Right to Information Act  2009 s  20; SA: Freedom of Information Act 1991 s 10(3); Vic: Freedom of Information Act 1982 s 9.

Discretion vs policy: a clash of values? 12.1.12  The purpose of the following section is to highlight the difference referred to earlier, between the legal and the administrative perspectives on decision-making. To present this difference as two conflicting approaches is, admittedly, simplistic and devoid of context. Differences do exist, however, and understanding them will help explain why many of the cases that are extracted in this chapter were argued and defended in court. 770

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Chapter 12  Executive Policies, Directions and Representations

12.1.13  The following four extracts include two commentaries from judges, extolling the achievement of administrative law in scrutinising the impact of policy on individual citizens, and two commentaries from senior administrators, criticising the courts and administrative tribunals for failing to pay proper regard to government policy and for usurping the role of government. 12.1.14E

Sir Anthony Mason, ‘That Twentieth Century Growth Industry, Judicial or Tribunal Review’ (1989) 58 Canberra Bulletin of Public Administration 26

It was as Solicitor-General that I came to appreciate the gulf which divides the administrative from the judicial process fully. That appreciation led me to recommend to the then Attorney-General in 1968 that he establish the Administrative Review Committee. The difference between the judicial and the administrative style is well illustrated by the departmental file and the appeal book. The first is preoccupied with the operation and preservation of policy, paying subsidiary attention to the ascertainment of facts and to the impact of policy on the interests of particular individuals. The second has its emphasis on the ascertainment of facts and how the individual is affected by rule and policy. One is a telescope looking inwards with its primary focus on policy; the other is a telescope looking from a neutral vantage point with its primary focus on the need to accord justice to the individual conformably with the requirements of policy. The aim of the judicial process is to achieve that object by principled, rather than pragmatic, decision-making. But the contrast is not merely a matter of style and procedure; it is the product of different attitudes of mind. With the judge, justice to the individual is a primary consideration. He believes that policy has been framed in such a way that it will operate sensibly, without frustrating the legitimate interests and expectations of the citizen. This attitude of mind has provoked the criticism that lawyers are too ready to depart from policy and principle. There is a curious irony in this. In other quarters lawyers are criticised on the ground that they are slaves to precedent … [I]n my experience, administrators are more fearful that a particular decision or ruling will establish a precedent of general application. They tend to be more concerned with the possible consequences of the decision than with its justice or rightness in the light of its facts. Lawyers on the other hand are often persuaded that a decision can be confined to its own facts or to a narrow category of cases. Perhaps this is because, according to legal theory, a decision is only authority in relation to its essential facts or to an essential step in the reasoning.

12.1.15E

Justice Murray Wilcox, ‘Judicial Review and Public Policy’

(1989) 58 Canberra Bulletin of Public Administration 70 [O]ught the courts, in exercising their powers of judicial review, adopt a self-denying ordinance by which they decline to enter upon any consideration of governmental policy? There are difficulties about that course. In the first place, although it is superficially attractive to speak about policies being made by persons accountable to the electorate, the reality is different. Ministers are theoretically accountable to Parliament but, in practice, there is accountability only in extreme cases …

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Additionally, of course, many policy decisions are made otherwise than by ministers; perhaps by bureaucrats with or without any effective supervision by ministers or other parliamentarians — perhaps by statutory corporations or by local government bodies … Secondly, the adoption of the ordinance would create difficulties in practice. During recent years there has been an increasing disposition for courts exercising powers of judicial review to consider the substance, and not merely the procedural aspects, of administrative decisions … There may be some who would argue that policy should never be susceptible of review. I have already referred to the practical difficulties which such a rule would create. But I go further and challenge the justification for such a principle. For the courts to refuse to intervene in a case where a decision has been based upon a policy deserving of strictures … is entirely to subordinate justice to administrative convenience. Administrators should, without interference on arguable matters, be left to administer. They should not be permitted to tyrannise; even when they do so as a matter of policy.

12.1.16E

L Curtis, ‘Crossing the Frontier Between Law and Administration’ (1989) 58 Canberra Bulletin of Public Administration 55

What is of proper public and political concern is that [decisions in individual cases] are made in accordance with the law, that where policy considerations are involved in the making of a decision those responsible for the policy are publicly and politically accountable for that policy, that proper regard is had to the circumstances of each case, that the decision in a case is not influenced by the personal or political preferences or other improper motives of the decision-maker and that discretions are exercised in a fair and reasonable manner. … There is an expectation [in our administrative and political system] that the policies of an elected government should be carried into effect so far as they are not inconsistent with law, and the exercise of any statutory power in a way which would defeat or frustrate the implementation of those policies would not be in accordance with that expectation … A problem lies in the failure of lawyers trained in the common law to appreciate the role that policy directions and guidelines may properly play in day to day administrative decisionmaking. Government expects to be able to give effect to its policies through the enactment of legislation and through decisions made in the course of its administration. The legislation may be cast in terms that give direct effect to policy. But more often policy can only be given effect through legislation which leaves to administrators the exercise of discretion or of judgment. If decisions made in the exercise of discretions are not in accordance with the policy objectives of the legislation then the intentions of the government will fail.

12.1.17E L Woodward, ‘Does Administrative Law Expect Too Much of the Administration?’ in S Argument (ed), Administrative Law and Public Administration: Happily Married or Living Apart under the Same Roof?, AIAL, Canberra, 1994, p 36 • It is my understanding that many if not most of those involved with administrative law appeals at senior levels have come from private legal practice whether as barristers or solicitors. It could be argued that they come to their new jobs with a mind-set — perhaps not a conscious mind-set — and that set is not directed towards the administration of the

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legislation as a whole and the intentions of the Government. Is it possible that the mind-set is that of the lawyer with a client to represent? Does that lead to decisions which do not consider the larger picture with which the administrator has to contend? • There may be some among the administrative law fraternity who see themselves as social reformers and use individual decisions in cases to advance their cause. This too might reflect a subconscious rather than a conscious approach to administrative law. In this regard, I note with a layman’s concern the seeming tendency of some Federal Court judges, when hearing appeals, to focus more on the merits of the cases before them rather than on points of law … It is arguable that administrative law and the administration are now out of synchronisation, particularly over how Government policy is to be implemented in decision-making. Perhaps administrative law’s greatest victories have been won and it is a force looking for a new role.

THE LEGAL STATUS OF EXECUTIVE POLICIES 12.2.1  The way in which statutory rules and administrative policy interact in a particular situation is ultimately a question that turns on the interpretation of the statute that is being administered and the nature of the policy under consideration. This is emphasised in the open-ended guidance given by Mason and Wilson  JJ in Bread Manufacturers of New South Wales v Evans 12.3.5C: The extent to which a tribunal or public official required by statute to make decisions which affect the rights of the citizen can take into account and act upon the views of the Government or a Minister has been, and no doubt will continue to be, a vexed question … [T]he problem is not one which admits of an answer having a universal application. So much depends on a variety of considerations … One must take into account the particular statutory function, the nature of the question to be decided, the character of the tribunal and the general drift of the statutory provisions in so far as they bear on the relationship between the tribunal and the responsible Minister, as well as the nature of the views expressed on behalf of the Government.

12.2.2  Three categories of issue are examined in this section. The first concerns the legal relevance of policies to administrative decision-making. The second concerns the weight or influence which policy can lawfully play when a decision is being made. The third is concerned with the legal consequence if a decision-maker ignores, misconstrues or breaches a policy or representation. An important qualification that applies to all three issues is that the adoption within government of a defective policy may not itself be reviewable (or justiciable); it is only when the policy is applied to the disadvantage of a person that proceedings can be commenced.

The legal relevance of policies 12.2.3  The principle is firmly established that ministers and government agencies can stipulate policies to provide guidance for officials when exercising statutory powers. However, a policy must not be incompatible with the legislation that it elucidates — it must, for example, paraphrase the legislation correctly, adequately identify the range of relevant matters, and not extend or confine 773

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a discretion in a way that would be Wednesbury unreasonable: see  15.2.1. Thus, for example, in Green v Daniels 7.2.4C the High Court held that a decision refusing unemployment benefit was invalid as it was made by applying a policy that fettered a discretion conferred by legislation. 12.2.4  The important role that policy can play in providing structure and integrity for administrative decision-making is discussed by Brennan  J in Drake (No  2) 12.5.5C. His Honour emphasised that policy guidelines enhance the consistency, predictability, fairness and democratic legitimacy of administrative decision-making. Other cases extracted in this chapter also acknowledge the same point: for example, in Ipec-Air 12.3.3C the court noted that there can be no objection in principle to a minister or administrator taking active steps to encourage an official to reach a decision that is consistent with the policy views of the government. See also Bread Manufacturers 12.3.5C. A similar point was made by Gleeson  CJ in NEAT Domestic Trading Pty Ltd v AWB Ltd 2.5.12C: There is nothing inherently wrong in an administrative decision-maker pursuing a policy, provided the policy is consistent with the statute under which the relevant power is conferred, and provided also that the policy is not, either in its nature or in its application, such as to preclude the decision-maker from taking into account relevant considerations, or such as to involve the decision-maker in taking into account irrelevant considerations. The policy, and its application, must be measured against those requirements, having regard to the matter presented for decision, and the information and arguments, if any, advanced for or against a particular outcome.

An example of a type of policy that has an important effect in controlling how legislation is administered are the public binding rulings issued by the Commissioner for Taxation in response to a request from a taxpayer for advice on the application of the tax law: see BHP Billiton Direct Reduced Iron Pty Ltd v  Duffus, Deputy Commissioner of Taxation (2007) 99 ALD 149 at [84]–[103]. Similarly, planning and environmental policies issued by statutory authorities can be a mandatory relevant consideration in decision-making. See  A  Sharpe, ‘Policy as a Mandatory Relevant Consideration: A Reflection on Jacob v Save Beeliar Wetlands (Inc)’ (2017) 90 AIAL Forum 112. 12.2.5  The link between government policy and administrative decision-making is also strengthened in some jurisdictions by legislation which emphasises that it is the duty of the administration to carry out the policy of the elected government. Examples are s 7(e) of the State Service Act 2000 (Tas), which provides that ‘the State Service is responsive to the Government in providing honest, comprehensive, accurate and timely advice and in implementing the Government’s policies and programs’; and s 57(2) of the Public Service Act 1999 (Cth), which provides that the role of a department is ‘to manage the affairs of the Department in a way that is not inconsistent with the policies of the Commonwealth’. The legal implications of such a provision are adverted to in Project Blue Sky Inc v Australian Broadcasting Authority 16.2.10C.

The weight or influence of policies: the non-fettering and non-abdication rules 12.2.6  The guiding principle is that a government policy or direction cannot confine a statutory discretion by preventing a decision-maker from making a decision favourable to a person in accordance with the statute; that is, there must be a real exercise of discretion 774

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as permitted by the statute. This principle is sometimes labelled as two rules — the ‘nonfettering’ and the ‘non-abdication’ rules. Both rules are captured in two overlapping grounds of review in s 5(2) of the ADJR Act, which provide that an order of review can be sought in respect of either: (e) an exercise of a personal discretionary power at the direction or behest of another person; and (f ) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.

See  also sub-paras (e) and (f ) in ACT: Administrative Decisions ( Judicial Review) Act 1989 s 5(2); Qld: Judicial Review Act 1991 s 23; Tas: Judicial Review Act 2000 s 20. 12.2.7  There are a number of themes rolled together in those two grounds of review: a decision-maker must look at the individual merits of a case; the official who is legally responsible for making a decision should in fact be the one who does so; an executive rule cannot fetter a statutory discretion nor confine a statutory rule; and the weight of a policy may depend on the nature and source of a policy. Those justifications for the non-fettering and nonabdication rules are discussed in Rendell v Release on Licence Board 12.2.11C; and Drake (No 2) 12.5.5C. There are other justifications for both rules, most notably the separation of powers principle, which carries the implication that the executive should not usurp the legislative role of the parliament. It is also clear that ministerial policy, particularly if it has been tabled in parliament like the migration deportation policy, and the State Coastal Policy discussed in St Helen’s Landcare and Coastcare Group Inc v Break O’Day Council (2007) 16 Tas R 169, has considerable weight (though note Hneidi v Minister for Immigration and Citizenship 12.5.9C — there is no universal principle that policy made by ministers has greater weight than policy made by other sources). There are seeds of a strict approach to the exercise of discretions in the wording of s 5(2)(e) of the ADJR Act, which speaks of a discretion being invalidly exercised at the ‘behest’ of another person, which is a less demanding test than ‘dictation’. The meaning of the term ‘behest’ is discussed in the extract from Telstra Corp Ltd v Kendall 12.2.16C. 12.2.8  There are many situations in which the application of those legal values is uncontroversial; that is, it is clear from the facts that there has been a failure by a decisionmaker to exercise a statutory function. The following extract from the judgment of Bankes LJ in R v Port of London Authority; Ex parte Kynoch Ltd [1919] 1 KB 176 contains a classic statement of the legal position: There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. I think counsel for the applicants would admit that, if the policy has been adopted for reasons which the tribunal may legitimately entertain, no objection could be taken to such a course. On the other hand there are cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes.

Perder Investments Pty Ltd v  Elmer (1991) 23 ALD 545 provides an uncomplicated illustration of that principle being applied. An Act provided that a statutory authority could 775

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grant a licence to fish in the Torres Strait, and could consent to the transfer of a licence. The authority adopted an interim freeze on the transferability of licences, believing that there were too many prawn trawlers working in the strait. The court (Pincus J) held that it was unlawful to fetter the statutory discretion in that way: The principle underlying the rule against replacement of a statutory discretion by a statutory prohibition is simply respect for parliamentary sovereignty. Where parliament says that in certain circumstances there is a discretion to grant permission, then no official may replace that law by one to the opposite effect — for example, by a [rule] requiring that in no circumstances shall permission be granted.

Re Abrams and Minister for Foreign Affairs and Trade (2007) 98 ALD 438 illustrates the same principle in a different way. The Australian Passports Act 2005 (Cth) provided that a passport could not be granted to a person until an officer was satisfied as to the person’s identity. The departmental Passport Manual required a person to present their birth certificate. The applicant, who had undergone sexual reassignment surgery, was refused a passport in her new identity, as the New South Wales Registrar of Births had refused (under New South Wales law) to issue a new birth certificate showing her reassigned gender. The Administrative Appeals Tribunal (AAT) ruled that a passport should be issued, as the tribunal itself was satisfied on the evidence before it of the applicant’s new gender and identity. The Passports Act did not require a birth certificate as proof of identity, and the department was wrong to impose this requirement in its Passports Manual: Purvis DP: [20] The policies outlined in the Manual will undoubtedly help in maintaining consistency in establishing identity. This is important and desirable. But where a situation arises which is not specifically provided for by the policy, a decision- maker … is to exercise the available discretion in arriving at a finding as to identity; that is, exercising the discretion as to the means to be adopted by which the identity is confirmed or otherwise … It was said on behalf of the Respondent that a ‘passport records identity, it does not create it’. More reason, it might be thought, for the passport to record an accurate identity, one in accord with the factual situation as it exists at the time the passport is applied for and issued. The passport should not align with an incorrect cardinal document. This would defeat the purport and intent of the legislative provisions and the Manual.

12.2.9  That principle, that a statutory discretion should not be fettered by government policy, substantially overlaps with another ground of review: ‘failure to take a relevant consideration into account’: see, for example, ADJR Act s 5(2)(b) (discussed at 10.4.1ff). The overlap between the legal grounds is captured in the following two statements of principle: Fox and Franki JJ: The interface between policy and discretion in the exercise of statutory powers is a difficult one … Where the power given relates to the consideration of individual cases, it is not to be denied that the predominant aspect must be the consideration of the particular case. The merits of that case must be considered genuinely and realistically; there must always be a readiness to depart from policy. The policy does a disservice to those who have to measure it against the individual situation if it is expressed in dogmatic or mandatory terms. [Howells v Nagrad Nominees Pty Ltd (1982) 41 ALR 283]

French and Drummond JJ: The place of government policy in the Tribunal’s decision- making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other. 776

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But [the Tribunal’s] decision must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy. [Minister for Immigration v Gray 12.2.24C]

It is common in judicial review cases that failure to consider relevant matters and inflexible application of policy are argued and applied as twin grounds of review. 12.2.10  By contrast, other cases accept that policies can be routinely applied in administrative decision-making. On this view, the basis of the fettering rule, which precludes inflexible application of policy, may be in tension with the value of consistency. It is unrealistic to expect decision-makers to sit alone and independent, choosing which matters to consider, treating each decision as separate from all others, and putting to one side the pressure in high-volume decision-making in a large bureaucracy to decide cases consistently and with an eye to the views of the elected government. The following case extracts illustrate this theme, with each case providing a different explanation as to why policy can be a strong driving force. A synthesis of the competing views (or principles) was given by the New Zealand High Court in Practical Shooting Institute (New Zealand) Inc v Commissioner of Police [1992] 1 NZLR 709: Tipping J: The cases suggest that there are two, possibly three, categories into which discretionary powers of this kind can be put: (1) First there are those powers which require an individual case by case examination without any predetermined fetter on the exercise of the discretion, other than what might be explicit or implicit in such criteria as may be set out in the enabling instrument. (2) Second there are those powers which by dint of the nature of the subject-matter justify the establishment as a matter of discretion of a carefully formulated policy, but always with the reservation that no case is to be rejected automatically because it does not fit the policy. In this category all cases must be considered to see if they are sufficiently special to warrant a departure from the general policy. (3) The third category, if it exists, represents cases where the discretionary decision maker is implicitly authorised to exercise his discretion to establish for himself an immutable policy admitting of no exceptions.

12.2.11C

Rendell v Release on Licence Board (1987) 10 NSWLR 499; 14 ALD 134 Court of Appeal of New South Wales

[The Release on Licence Board was required under the Prisons Act 1952 (NSW) to make recommendations to the Governor on the release of prisoners. Section 61 of the Act listed the criteria to be considered by the board, including the period in custody served by the offender. Mr Rendell was serving a sentence of life imprisonment for murder, commencing in 1979. In 1987 he applied to the board for release on licence. A minute of the board, recording its decision to refuse Mr Rendell’s application, stated that ‘the Board will not at this stage make a recommendation for a licence in Mr Rendell’s case primarily on the grounds that the period served is insufficient to comply with the guidelines upon which any recommendation of the Board is acceptable to the Executive Council’. In a subsequent letter to Mr Rendell’s solicitor the board further explained that: ‘Some three or four years ago the Government indicated that it would not be prepared to recommend to the Governor in Executive Council the release on

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licence of a life term prisoner until that category of prisoner has served a minimum of ten years in gaol’. The Court of Appeal made an order quashing the decision of the board, and remitting the matter to the board for reconsideration.] Kirby P, Priestley and Clarke JJA: We think the Board’s minute and the correspondence indicate that the Board, contrary to law, either failed to carry out its functions under the Prisons Act or exercised its discretion by reference to a rule adopted by a body other than the Board and without regard to its applicability to the particular circumstances of the claimant. A body upon whom Parliament has conferred a discretion must exercise that discretion in accordance with the legislation. The decision maker must not, for the purpose of the exercise of discretion, take into account extraneous or irrelevant considerations. Nor must the discretion be exercised by reference to general and inflexible rules which pay no regard to the particular circumstances of the case. This is so whether such rules are laid down by the decision maker or an external body. It is of course often useful and sometimes necessary for administrators to adopt guidelines. These may provide guidance to officers in the scattered agencies of the administration. They may ensure that decisions are made in an even-handed and consistent way. But such guidelines must be compatible with the legislation conferring the discretion. They must not purport to usurp the discretion or substitute administrative convenience for the individualised decision if that is what the legislation has provided for, as we think the legislation in the present case has done. Most especially, the administrator must not permit the decisions of third persons or their actions and attitudes, to control the way in which such discretion is exercised. With the proliferation of tribunals in recent years, issues have arisen concerning the extent to which such tribunals may lawfully take into account the policies of the elected government. To do so might seem an appropriate way by which independent tribunals can reflect the policies of elected governments and thus, indirectly, the views of persons accountable to the community. On the other hand, such policies may never have been considered or debated in Parliament. They have no legal force. [The court referred to Bread Manufacturers 12.3.5C and continued:] On the basis of what was said in the foregoing passages the approach to be taken appears plain, even if it may result in uncertainty of application in particular circumstances. The primary rule is that the extent to which an independent body may reflect established government policy depends upon the charter of the body, the nature of its functions and the relevance to that charter and functions of the policy in question. There is no absolute rule that the body must ignore known government policy. On the other hand, it must not be so influenced by the policy that it fails to perform its own functions, as the statute contemplated. Applying these rules to the facts of the present case, we conclude that the Board did not simply take the government’s stated policy into account but decided to apply it because it felt it had no alternative. The Board’s approach is shown by the repeated use of the word ‘minimum’. This was the basis on which the Board acted, viz that to gain the benefit of the discretion, the prisoner, sentenced to life imprisonment, must have served a ‘minimum’ period of ten years, thus adopting as binding on itself that part of the government’s policy emphasised above in the Board’s letter of 2 July 1987. Only after the prisoner served that period would the Board consider whether it should exercise its powers. Nothing in the statute warrants such an absolute rule. Such a rule effectively disentitles from consideration for liberty all life prisoners who have served less than ten years, and prevents individualised decisions in particular cases. We do not think it can be justified under the Act or that it is consistent with the duty which the Act imposes on the Board in the exercise of its powers.

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It was said that all that the Board did was to take into account a stated policy of the Executive Government. Not to do so would render recommendations futile and even possibly wilful, given the general principle adopted and announced by the Government, requiring a minimum of ten years service. The recommendation of the Board is to the Minister. It is the Minister who has to carry the recommendations to the Executive Council. It was said that this relationship between the Board and the Minister justified consideration of the Minister’s policy. It was also argued that the fact that the royal prerogative of mercy has heretofore not been justiciable in the courts explained why the Board had simply acted in a practical and sensible way by taking into account the universal rule which the Minister had accepted for the exercise of his own discretion at a stage after the Board had made its recommendation to him. Whether the policy attributed to the Executive can stand compatibly with the independent powers conferred on the Board by the Prisons Act is not in issue here. What is in issue is the conduct of the Board in exercising its statutory powers. To the practical considerations urged by the Board, there are a number of answers. First, because it is Parliament which has conferred the discretion, that discretion must be exercised as Parliament provided. What Parliament provides cannot be modified by a policy of the Executive Government. If the Executive Government intends that the Board should control the exercise of its discretion by adopting a universal rule that the discretion is not available until after the passing of a ‘minimum’ period of ten years, such a provision can quite readily be proposed to Parliament by an amendment to s 61 of the Prisons Act. If it is enacted by Parliament, the Board will be authorised to obey such a universal rule. Secondly, both the history of the struggles between the Crown and Parliament and the modern relationship between the Executive Government and Parliament show that the existing body of statute law and policy of the Executive Government do not always coincide. To the extent that the High Court in Bread Manufacturers [12.3.5C] has indicated that independent bodies established by Parliament may take the policies of the Executive into account, they may do so. But they should not overlook the fact that their authority and their legitimacy both have their source in Parliament. If they have been established by Parliament to be independent of the Executive, it is their duty to guard that independence, to the full extent appearing from the relevant Act of Parliament. In the present case if nothing more had been intended than an advisory committee to assist the Minister in preparing recommendations for the Executive Council, such could have been established without an Act of Parliament. The history of the difficulties which preceded the establishment of the Board is notorious. It was considered sufficient to justify the establishment of the Board by Parliament as an independent body. That independence must be respected by the Executive and exercised by the Board. Thirdly, there is a practical consideration. Even if the Executive has a known policy that it will not consider life prisoners for release on licence short of ten years imprisonment, the Board, if it considers it appropriate in a particular case to recommend release short of ten years will, in making such a recommendation, be discharging its functions of offering its best advice to the Minister. The Minister may or may not then see fit to act on his stated policy. In the course of time, he may come to change his policy. After all, the purpose of enacting the Crimes (Homicide) Amendment Act l982 was to permit judges to consider each case on its merits. Even if the Minister never changes his policy, that is no reason for the Board effectively to refuse the exercise of its discretion or to exercise it by inflexible reference to the ‘minimum term’ fixed by the Minister. Such a course is an abrogation of the function Parliament contemplated for the Board. [Note: Some years later, Rendell was granted a pardon on the basis that he did not commit the murder for which he had been convicted.]

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British Oxygen Co Ltd v Minister of Technology [1971] AC 610 House of Lords

[The Industrial Development Act 1966 (UK) provided that the Board of Trade ‘may make to any person carrying on a business in Great Britain a grant towards approved capital expenditure incurred by that person in providing new machinery or plant’: s 1(1). The board had adopted a rule that it would not pay a grant in respect of any item of plant costing less than £25. The company applied for a grant in respect of cylinders it had purchased, individually costing £20, but together costing over £4 million. The board rejected the company’s application. The House of Lords, after holding that the company did not qualify for a grant under the Act, dismissed a further argument that the board had erred in applying its rule to the company’s application.] Lord Reid: If the Minister who now administers the Act, acting on behalf of the Government, should decide not to give grants in respect of certain kinds of expenditure, I can find nothing to prevent him. There are two general grounds on which the exercise of an unqualified discretion can be attacked. It must not be exercised in bad faith, and it must not be so unreasonably exercised as to show that there cannot have been any real or genuine exercise of the discretion. But, apart from that, if the Minister thinks that policy or good administration requires the operation of some limiting rule, I find nothing to stop him … The general rule is that anyone who has to exercise a statutory discretion must not ‘shut his ears to an application’ (to adapt from Bankes LJ in R v Port of London Authority Ltd; Ex parte Kynoch [1919] 1 KB 176). I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say — of course I do not mean to say that there need be an oral hearing. In the present case the respondent’s officers have carefully considered all that the appellants have had to say and I have no doubt that they will continue to do so. [Viscount Dilhorne, Lord Morris of Borth-y-Gest, Lord Wilberforce and Lord Diplock agreed with Lord Reid.]

12.2.13C

Wetzel v District Court of New South Wales (1998) 43 NSWLR 687 Court of Appeal of New South Wales

[Section 32(1)(b) of the Mining Act 1973 (NSW) provided that the renewal of the registration of a mining claim ‘may be effected subject to such conditions … as may be imposed by the Mining Registrar in any particular case’. The Mining Registrar for the Lightning Ridge Division had imposed a condition 8(b) on Mr Wetzel’s registered opal mining claim, stipulating that the certificate of annual renewal of the claim shall be collected personally by the registered holder

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from the Mining Register. According to the evidence, this was a standard condition that had been imposed on all registered mining claims in the division between 1986 and 1989, in line with departmental policy. For example, the Mining Registrar gave evidence that the condition was ‘imposed under instructions from the department’; and ‘it was imposed under direction’. The reason for the condition was to uphold a principle that no person should be registered for more than two claims in a mining division. Mr Wetzel’s registered claim was cancelled after the certificate of renewal was collected in 1988 by another person authorised to act on his behalf. The Court of Appeal held that the Mining Registrar had acted lawfully in imposing the condition and cancelling the registration.] Mason P: A system of responsible ministerial government is a key element in our polity. Executive power is made accountable, by various means, to the organs of representative government. … In concept, there is a clear distinction between the exercise of public and private authority or power. Control of the former, politically, is ensured through ‘line management’ accountability; and, legally, through strict adherence to rule of law principles. Effective line management permits, indeed requires, control to be exercised through ministers, department heads or senior executive officers, and thereafter through the public sector pursuant to the mechanisms provided (in this State) by the Public Sector Management Act 1988. Parliament is free to establish executive bodies that are accountable to none but itself and the courts. But the constitutional principles I have referred to mean that the onus rests clearly upon those who would construe a grant of legislative authority to do a ministerial act1 as conferring an independent discretion that can ignore (lawful) policy directives issued with the authority of a minister. As Priestley JA demonstrates, such legislative authority is clearly lacking in the present case. Effective, consistent and ultimately accountable decision-making amply support construing the Mining Registrar’s power under s 32(1)(b) of the Mining Act as one which is amenable to such policy directives as the Registrar’s superiors in the department may issue. [His Honour said he agreed with Priestley JA.] Priestley JA: Bearing in mind the words of s 32(1) together with the fact that there is nothing to show that a Mining Registrar under the Mining Act holds any office that takes him or her out of the category of an employee of the Crown subject to the lawful direction of his superiors and ultimately the Minister in charge of his or her department, I do not myself reach the conclusion that a Mining Registrar, in deciding to impose a condition pursuant to the second leg of s 32(1)(b) is obliged to reach a conclusion independent of Departmental policy or direction. That being so, I see no invalidity in the imposition of Condition 8(b) in the present case in the circumstances described by [the Mining Registrar] in his evidence. If the position of Mining Registrar should be regarded as some kind of independent office I would nevertheless not think that for that officer to follow a standing instruction of the Department without first giving consideration to the particular circumstances of each case in which the instruction was followed would make the condition imposed as a result unlawful or invalid. The position womuld be, in my opinion, that if the legality of what was done in those circumstances was challenged, it would be for the party seeking to uphold the validity of the action to establish that the action was justified in the circumstances of the particular case. This question is one which would be treated objectively and raise a decision for the court considering the matter. This approach seems to me to fit better with the expectations appropriate to a Mining Registrar created by s 32(1) and the limited information the court has about that officer’s

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activities, than one which would make the Mining Registrar an official with an independent discretion necessarily to be exercised independently of Departmental policy. [Sheller JA agreed with Priestley JA.] Footnote 1.

The term ‘ministerial’ can refer to the act of executing the law, which is the sense in which it has here been used.

12.2.14C

Peninsula Anglican Boys’ School v Ryan (1985) 7 FCR 415; 69 ALR 555 Federal Court of Australia

[The States Grants (Schools Assistance) Act 1983 (Cth) conferred power upon the minister to make financial grants to non-government schools. The Act also established a Commonwealth Schools Commission, which had the function of providing advice to the minister on Commonwealth funding of non-government schools. Section 13(4) of the Act listed eight matters which ‘the Commission shall have regard to’ in performing its functions, including, for example, ‘the need for improving primary and secondary educational facilities in Australia’, and the need ‘to promote the economic use of resources’. The Peninsula Anglican Boys’ School at Warringah, north of Sydney, had applied in 1983 for a capital grant for school buildings, but was advised by the New South Wales Planning and Finance Committee of the Commonwealth Schools Commission that, while its application was tentatively supported, more financial information was required before a favourable recommendation could be made. By the time a new application was submitted by the school in 1983 there had been a change of government, and the new government had adopted a different policy on non-government school funding. The school did not come within the new policy (which gave priority to assistance in developing areas and to serving poorer communities). Nevertheless, the New South Wales Committee recommended that the new application be supported, citing the needs of the school and the expectations that had been created under the old policy and the earlier discussions. The Chairman of the Schools Commission took a different view, recommending to the minister that the application be rejected because it did not come within the government’s funding guidelines. The minister endorsed this recommendation and refused the application. The Federal Court (Wilcox J) held that neither the recommendation of the chairman nor the decision of the minister was invalid in law.] Wilcox J: Some administrative discretions are exercised in circumstances under which it is possible for the decision-maker to grant approval to all applications which meet appropriate criteria; there is no element of competition between applicants. That is not this case. The evidence of Mr Cameron is that there is strong competition for funds for building and equipment projects. In each year, the funds made available by Parliament in relation to non-government schools in each State are fully exhausted. Less than 20 per cent of non-government school applicants are successful in obtaining any funds for building and equipment projects. Under such circumstances, choices — which will, no doubt, often involve refusing worthwhile proposals — must necessarily be made. Proper administration, and the avoidance of seemingly arbitrary and inconsistent decisions, usually will require the formulation of policy guidelines establishing priorities. [Wilcox J referred to the reasons of Brennan J in Drake (No 2) 12.5.5C.] …

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12.2.14C

The application of these principles leads to the conclusion that there was nothing illegal or improper in the adoption, in this case, by the Minister of the policy guidelines circulated on 16 May 1983 and reproduced in the booklet published in July 1983. It is true that the effect of the application of the guidelines, given the extent of competition by non- government schools for funds for building projects, would be to render it unlikely that projects which did not fall within the priority areas would be approved for funding. But, provided that the Minister remains ready to consider arguments of particular applicants that their cases should be regarded as exceptional and/or that the priorities should be revised, there is nothing to prevent the adoption of a policy which, in effect though not in terms, restricts grants to particular kinds of projects. Indeed, in British Oxygen [12.2.12C], the House of Lords held to be valid a policy which, in terms although subject to the provisos I have mentioned, excluded the making of particular types of grants … It is evident, as the applicant submits, that the Commission is intended to be a source of independent advice to the Minister, including upon the subjects of improving educational facilities and standards and of providing increased and equal opportunities for education in both government and non-government schools. In the formulation of that advice — and in the selection of the principles which must necessarily underlie any rational and consistent advice — the Commission is intended to function independently of, and be free from direction by, the Minister, … expressing its own view regardless of whether or not that view is likely to be acceptable to the Minister. The Minister is not, of course, bound to accept the advice of the Commission in relation to any particular matter or in relation to policy generally. In deciding whether or not to accept the advice of the Commission, as in all other matters relating to the administration of the portfolio, the Minister is accountable to the Parliament. That circumstance is, no doubt, one reason for the inclusion in the Act of requirements for the laying of Commission reports before the Parliament … The question then arises whether, as the applicant contends, the Chairman [of the Commission, in giving advice to the Minister], acted in contravention of s 13(4) in that he failed to refer to the various matters specified in that subsection and, instead, addressed only the question of the incompatibility of the application with the policy guidelines. [His Honour referred to the eight matters listed in s 13(4) and continued:] They constitute guidelines — and, in the case of sub-s (4), an agenda — for the work of the Commission, against which its performance may be judged by the Minister and by the Parliament. Consistently with the right and obligation of the Commission to make and express its own findings and to state its own views, they ensure — so far as legislation may — that the work of the Commission will have regard to objectives and values considered by the Parliament to be important. It follows from what I have said that it is erroneous to read sub-s (4) as requiring that, in relation to each Minute of advice to the Minister in respect of an application for approval of a building project, the Chairman is bound to canvass each of the matters set out in that sub-section. It may be that, in tendering advice relating to the formulation of policy on capital grants, many of those matters would have to be addressed. But, once the Minister has settled upon a policy, it would be absurd to re-canvass, in relation to each application, those fundamental matters. The Commission is not obliged to agree with any particular Ministerial policy. If it does not agree, it would be entitled, and perhaps be morally obliged, to so report to Parliament. But in the meantime it would be futile for it to do otherwise than to proceed upon the basis that the Minister has a settled policy and that its proper task is to advise the Minister upon the relationship between that policy and the particular application. The Commission is obliged, under sub-s (4), to ‘have regard to such matters as are relevant’. Nothing could be more relevant than the Minister’s settled policy and its relationship to the instant application.

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[His Honour went on to hold that, even if it had been found that the commission’s advice to the minister was invalid, this would not invalidate the minister’s decision, as ‘there is nothing in the States Grants (Schools Assistance) Act 1983 (Cth) which makes the receipt of advice from the Commission a prerequisite to a valid decision by the Minister to approve or disapprove a building project. Whilst it is, no doubt, most desirable that the Minister have the advice of the Commission, this is not essential in law’: at 428.]

12.2.15C R v Moore; Ex parte Australian Telephone and Phonogram Officers’ Association (1980) 148 CLR 600; 39 ALR 1 High Court of Australia [The Conciliation and Arbitration Act 1904 (Cth) conferred power upon the Conciliation and Arbitration Commission to determine industrial disputes. The commission had adopted a set of wage-fixing principles to apply to disputes. A single commissioner, in hearing an industrial dispute, decided that he should follow those principles. The High Court (Gibbs CJ, Stephen, Murphy, Aickin and Wilson JJ) held that no error had been committed by the commissioner. Only Gibbs CJ and Stephen J commented generally on the role of a commissioner in applying policies enunciated by a full bench of the commission.] Gibbs CJ: [His Honour first quoted Lord Reid in British Oxygen 12.2.12C.] The Commission stands in a special position, not directly comparable with that of other administrative or quasi-judicial tribunals. When the Commission has formulated a principle, such as that a particular figure should be adopted as a basic or minimum or total wage, or that wages should be increased only in accordance with particular guidelines, it may apply that principle consistently from case to case. If an application is made to it to depart from any such principle, it should hear the application. That of course does not mean that it must embark upon a full scale hearing on each occasion on which a disputant seeks a departure from the principle. The Commission … is not obliged to traverse well-trodden ground on each occasion on which a disputant seeks a review of principle. Moreover, the general duty of the Commission to determine particular disputes does not require an individual Commissioner to regard himself as bound to consider for himself whether he should depart from a principle which a Full Bench has formulated and which is applicable to the case before him. It would lead to chaos if each individual Commissioner constituting the Commission was required to decide for himself whether he should follow and apply the principles laid down by a Full Bench, and if a Commissioner did make an award which contravened such principles his determination could be overturned by the Full Bench on appeal. The common sense course for a Commissioner to adopt is to adhere to the principles which the Full Bench has evolved … If the prosecutor wished to show some special reason why there should be a departure from those principles in the particular case, it should, appropriately, have addressed its arguments to the Commission constituted by a Full Bench. [Stephen J agreed with Gibbs CJ, while noting that in a system where there is a decision-making structure in which single member decisions can be appealed to a multi-member appellate tribunal, single members should be slow to depart from decisions of broad principle.]

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Chapter 12  Executive Policies, Directions and Representations

12.2.16C

Telstra Corp Ltd v Kendall (1995) 55 FCR 221 Federal Court of Australia (Full Court)

Black CJ, Ryan and Hill JJ: There is a fine line between saying that a decision-maker has taken into account as evidence what is said by another person in arriving at his or her conclusion and saying that the decision was made at the direction or behest of another. What is encompassed by the ground referred to in s 5(2)(e) of the ADJR Act is the case where the decision-maker gives no real independent attention to the discretion which is conferred upon him or her, so that the exercise of discretion is really the exercise of that discretion by some other person … The word ‘behest’ is defined in the Oxford English Dictionary (2nd ed), relevantly as ‘a command, injunction, bidding’, stemming from middle English where its meaning was ‘to command’. This is consistent with its meaning as given in the Macquarie Dictionary (2nd Revised ed) of ‘bidding or injunction; mandate or command’. In the context in which it appears in the ADJR Act, the word ‘behest’ cannot simply be a substitution for request. Both words are used against the background of the ordinary administrative law principle that, for a discretion to be valid it must be a real exercise of discretion by the decision-maker, not an acceptance by the decision-maker of a direction by some other person to whom the making of the decision has not been entrusted.

12.2.17C

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 High Court of Australia

[The plaintiff was granted a protection visa by the minister after arriving in Australia as an ‘unlawful non-citizen’ for the purposes of the Migration Act 1958 (Cth). The plaintiff’s family were subsequently refused Subclass 202 visas, which are available to those persons subject to substantial discrimination in their home country who are members of the immediate family of a person in Australia who has been granted a protection visa. The delegate stated in a letter advising the decision that he had considered that Australia did not have the capacity to resettle all humanitarian visa applicants, and that only the highest priority applications can be successful. This reasoning was based on cl 202.222(2) of Sch 2 to the Regulations, which provides for the grant of a visa if the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a visa, and a departmental policy which required that the lowest priority be accorded to applications that were linked to a family member having arrived in Australia as an ‘irregular maritime arrival’. The plaintiff challenged the decision on the basis that the policy was inconsistent with the legislation or that the policy was applied inflexibly. The High Court unanimously held that the departmental policy was not inconsistent with the Act or Regulations and that it had not been applied inflexibly.] French CJ, Bell, Keane and Gordon JJ: [45] The plaintiff submitted that the priorities policy is inconsistent with the Act and the Regulations. Further, it was said that the Delegate inflexibly applied the priorities policy without regard to the merits of the Visa Application. …

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Inconsistency and irrationality [48] The priorities policy is not inconsistent with cl 202.222(2). Rather, it is apt to inform the evaluation required to be satisfied that there are ‘compelling reasons for giving special consideration’ to an application which can be seen to attract general consideration under pars (a) to (c). And the plaintiff’s submissions that the ‘priorities’ are irrelevant to the issues which arise under cl 202.222(2) or are in some way designed to ‘visit a punitive consequence’ on irregular maritime arrivals cannot be sustained. [49] The evident rationale of the priorities policy is that no-one should receive a migration advantage as a result of arriving in Australia as an irregular maritime arrival. Whether or not one agrees with that rationale as a matter of policy, it is not inconsistent with cl 202.222(2). As already noted, the subclause contemplates a process of differentiation to separate the special from the general run of applicants who are candidates under pars (a), (b) and (c). Further, there is no suggestion that the application of the priorities policy means that any visa places allocated to the [Special Humanitarian Programme] are not filled. The policy means only that, in conducting the evaluation of whether there are compelling reasons for giving special consideration to the grant of a visa, an advantage will be conferred on an applicant whose application was proposed by a person who arrived in Australia in a ‘regular’, rather than ‘irregular’, fashion. [50] The breadth of the evaluative judgment authorised by cl 202.222(2) can accommodate a consideration of the manner in which the proposer of a visa came to Australia. Consideration of that factor as an aspect of government policy is not inconsistent with either the text or purpose of cl 202.222(2). If numerous applications are otherwise compelling in terms of the criteria in cl 202.222(2), it is not irrational, or unreasonable, or punitive to prefer an application from the family of a proposer who came to Australia by regular means over an application from the family of a proposer who came to Australia as an irregular maritime arrival. It is not irrational that the former application might be regarded as of a kind which should be encouraged in preference to others. There is nothing irrational or unreasonable about preferring the former application over the latter where it is impossible, or simply invidious, to attempt to distinguish between them on other, more subjective grounds. [51] It must also be said that to separate those with a compelling claim to special consideration from all those who generally have merit under pars (a), (b) and (c) by reference to the circumstances of the arrival in Australia of the proposer is not to punish those whose proposer arrived in circumstances not favoured by Australian law: it is simply to recognise that not every applicant for a visa can obtain that advantage, and that the choice to be made may reflect a view that some applications are more compelling than others because of the circumstances of the proposer. Inflexibility [52] In relation to the plaintiff’s submission that the Delegate impermissibly treated the priorities policy as a fetter on the exercise of his discretion, it was said that any application of an administrative policy ‘must admit of the possibility of exception depending upon the circumstances of a particular case’ (Seiffert v Prisoners Review Board [2011] WASCA 148 at [124]) and must not be such as to: preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in

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relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful. (R v Secretary of State for the Home Department; Ex parte Venables [1997] UKHL 25; [1998] AC 407 at 497, cited by Gleeson CJ in NEAT [2.5.12C] at 287 [17].) [53] The plaintiff argued that the Delegate’s letter revealed that the priorities policy was inflexibly applied without proper regard to the circumstances or merits of the individual case. Once again, the plaintiff’s argument fails to appreciate that the application of cl 202.222(2) involves an evaluative judgment as to whether the Minister is satisfied that there are ‘compelling reasons for giving special consideration’. The priorities policy assists in informing that evaluative judgment but, as the [Procedures Advice Manual] 3 noted, exceptions might apply. [54] Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in ‘high volume decision-making’ ([Gray 12.2.24C] at 206), such as the determination of applications for Subclass 202 visas. [Their Honours then cited the reasons why policy is valuable, as stated in Drake (No 2) 12.5.5C at 642]. … The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines. The importance of avoiding individual predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open-textured criterion of ‘compelling reasons for giving special consideration’ is readily apparent. [55] The plaintiff observed that there was nothing in the Delegate’s letter that revealed any consideration of whether the particular circumstances of this case should give rise to an exception to the application of the ‘priorities’. But to say this is not to demonstrate that consideration was not given to that possibility. It cannot be inferred that the Delegate ignored evidence that the Visa Applicants were exposed to a degree of discrimination in their home country which was so serious relative to the generality of applicants for a visa, or that the extent of their connection with Australia was so strong relative to the generality of applicants, that a reasonable decision-maker would disregard the priorities policy. Understandably, the plaintiff did not attempt the difficult task of demonstrating that the circumstances of the Visa Applicants were so compelling in terms of their connection with Australia, and so grave in terms of their situation in Iran, that, on any reasonable assessment, their claim to a grant of visas overwhelmed that of all other applicants who are worthy candidates under pars (a), (b) and (c) and who stand higher than them under the priorities policy. [56] It may be said that the difficulty of demonstrating that the decision of the Delegate lacked an ‘evident and intelligible justification’ (Minister for Immigration and Citizenship v Li [15.2.18C] at 367 …) is a virtually insuperable hurdle for the plaintiff, but to say that is to acknowledge the broad and subjective evaluation required in the application of cl 202.222(2) and the difficulty of distinguishing between all the applications which have merit in terms of pars (a), (b) and (c). [57] The plaintiff also fixed on the statement in the penultimate paragraph of the excerpt from the Delegate’s letter set out above — ‘[o]nly the highest priority applications will be successful’ — and asserted that it demonstrates that the priorities policy was applied inflexibly. This statement does not establish the plaintiff’s contention. [58] It may be accepted that the priorities policy could not lawfully be applied rigidly so as to preclude the consideration by the Delegate of the circumstances of each applicant. But the departmental policy referred to in the PAM 3 contemplated that the circumstances

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of a particular application might be such as to raise compelling reasons for giving special consideration to the grant of a visa notwithstanding the priorities policy. The policy thus contemplated the possibility of relaxation of the priorities having regard to the circumstances of a particular case. And the paragraph on which the plaintiff has fixed does not demonstrate that the priorities policy was applied rigidly without regard to the particular circumstances of this case. Gageler J: [68] It is open to the Minister in the exercise of non-statutory executive power to lay down a policy for the guidance of his or her delegates in making those determinations. Indeed, it is inconceivable that the Minister would not do so. In Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 at 647, Deane J emphasised the importance of the adoption and consistent application of policy to the avoidance of substantial injustice in administrative decision-making, which involves ‘competition or correlativity between rights, advantages, obligations and disadvantages’. Each applicant must always be entitled to have his or her application for the exercise of a decision-making power determined on its merits. But the merits of an application cannot always adequately be considered by reference to the circumstances of the applicant alone. [69] Where, as here, the statutory question is whether the decision-maker should be persuaded that there are compelling reasons for giving special consideration to granting one of a finite number of permanent visas to a particular applicant, the correct or preferable decision in the individual case cannot be divorced from the correct or preferable decision across the range of cases in which an exercise of that decision-making power can be expected to be sought. Blinkered and individualised decision-making would be a recipe for maladministration. [70] The policy in fact determined by the Minister at the time of the decision of his delegate under review in this case had two relevant components. One was the determination that, of the 13,750 persons which the Australian Government had decided it was within the capacity of the Australian community permanently to settle in Australia in 2014–2015, 5,000 places would be allocated to applicants for Refugee and Humanitarian (Class XB) (Subclass 202) visas. The other was the determination that, in the allocation of those 5,000 places amongst the very much larger number of potentially deserving applicants for Refugee and Humanitarian (Class XB) (Subclass 202) visas, processing priorities would be applied according to which the lowest priority would be given to applications proposed by or on behalf of a person who arrived in Australia as an irregular maritime arrival before 13 August 2012. [71] Neither component of that policy was inconsistent with the terms or structure of cl 202.222(2) of Sched 2 to the Migration Regulations. The policy did not disregard the four mandatory considerations set out in pars (a) to (d) of cl 202.222(2). The ordering of the priorities was consistent with the object set out in s 4(1) of the Migration Act 1958 (Cth) of regulating, in the national interest, the coming into, and presence in, Australia of noncitizens, and was not inconsistent with the general scheme of the Migration Act or with any of its provisions. The expression of the policy was not so rigid as to exclude consideration of the merits of the particular case, including a consideration of whether the circumstances of the particular applicant were so extraordinary as to warrant departure from the priority which would be afforded to the applicant in the ordinary application of the policy. [72] The terms of the delegate’s letter notifying the applicants of the delegate’s decision do not justify drawing an inference that the delegate adopted such a rigid approach to the application of the policy that he failed to have regard to the circumstances of the individual case advanced in support of the application. …

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12.2.18  The extract from Kendall 12.2.16C illustrates that something short of dictation or overbearing conduct will suffice to establish a breach of s  5(2)(e) of the ADJR Act. As the following cases illustrate, it is enough that a decision-maker allowed their discretionary judgment to be overawed or supplanted by the view of another person. In Evans v Donaldson (1909) 9 CLR 140 the High Court held that a body with power to dismiss an employee acted wrongly by basing the dismissal on the findings of a royal commission, without allowing the employee to question the findings of the commission. In H Lavender & Son Ltd v Minister of Housing and Local Government [1970] 3 All ER 871 it was held that the minister could not fetter his discretion to grant a licence to mine by adopting a policy that a licence would not be granted if the Minister for Agriculture was opposed. In ID, PF and DV v Director-General, Department of Juvenile Justice (2008) 73 NSWLR 158, it was held that it was unlawful of the Director-General of Juvenile Justice to decide that all juveniles in detention would be transferred to adult correctional centres upon turning 18 unless the Department of Corrective Services decided otherwise: ‘Decisions which ought to have been based on the exercise of independent judgment by the [Director-General] were dictated by persons not entrusted with the power to decide’: at [285] ( Johnson J). 12.2.19  An abdication of discretion by a decision-maker cannot be assumed too readily by inference or supposition. In Habib v Minister for Foreign Affairs and Trade (2010) 192 FCR 148, the Federal Court held that the minister had not unlawfully refused to issue Mr Habib with a passport by acting at the behest of the Director-General of Security (who had issued a passport ‘refusal/cancellation request’ as a result of an adverse ASIO security assessment), because the minister sought further advice, discussed Mr Habib’s matter with the departmental secretary and himself reviewed Mr  Habib’s affidavit. In Adams v  Minister for Immigration and Multicultural Affairs (1997) 70 FCR 591 the Federal Court rejected an argument that an abdication of discretion by the minister could be inferred from the likelihood that the minister (in refusing a visitor’s visa to Mr Gerry Adams on the basis of his association with the Provisional Irish Republican Army (IRA)) would have had regard to a cabinet discussion of the issue that had occurred shortly before the minister made his decision.

The legal consequence of ignoring, breaching or misconstruing a policy 12.2.20  The preceding cases have the common thread that a policy was being applied to the disadvantage of a person. But what if a policy that would advantage a person has been ignored or breached by the decision-maker? If, as the non-fettering rule suggests, a policy is not binding but is only one consideration to be balanced along with the facts of the case, it would logically follow that the decision-maker is free to depart from the policy. But that logic, standing alone, fails to take account of other considerations. A person may, for example, have structured their affairs on the understanding that the policy would be applied, and believe it to be an unfair process not to publicise that altered intention. It is questionable too, as remarks in Wetzel 12.2.15C and Ansett 12.3.4C indicate, whether a subordinate decision-maker should be free to ignore a policy devised by a superior, especially the minister. Administrative disarray and public outrage could follow if policies announced by an agency were applied inconsistently or idiosyncratically. Publication requirements in freedom of information legislation, which have recently been strengthened in many jurisdictions, are also premised on the expectation that the public will place reliance on agency policies: see 19.2.22ff. And yet, if those arguments are taken too far and a policy is treated as binding, this is at odds with the principles examined 789

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earlier at 12.2.6–12.2.9, which insist that non-statutory rules are not binding and should not be applied inflexibly. 12.2.21  The following three case extracts — Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce 12.2.22C, Nikac v Minister for Immigration, Local Government and Ethnic Affairs 12.2.23C and Minister for Immigration, Local Government and Ethnic Affairs v Gray 12.2.24C — express the view that, while a breach of a policy is not in itself an invalid action, policies are not without legal significance and cannot be breached or disregarded with impunity. To do so runs the risk of failing to consider a relevant matter, or committing an error of law. The legal criteria dealt with elsewhere in this book can also supply answers to the problems raised in this section. For example, a policy which has statutory backing may be classified as a species of subordinate legislation that is binding on a decision-maker: see  12.4.6ff. Before a policy is departed from, there can also be a natural justice obligation to provide a hearing to a person who has a legitimate expectation that the policy will be applied: see 11.3.7ff. Whether a department should be obliged to conform to its own policies also merges with an issue dealt with later in this chapter, as to whether there is a principle of estoppel that prevents a decision-maker from acting inconsistently with a promise or representation: see 12.6.2. 12.2.22C Gerah Imports Pty Ltd v Minister for Industry, Technology and Commerce (1987) 17 FCR 1; 14 ALD 351 Federal Court of Australia The Customs Act 1901 (Cth) provided: ‘The Minister may, by instrument in writing, formulate a scheme’ for dealing with tenders for importing goods at concessional rates of customs duty: s 266(1). In exercise of this power the minister promulgated by formal written instrument the ‘1988 Global Tender Quota Scheme’. In summary, the scheme established a procedure whereby a person could lodge a tender to be granted an import quota; each person allocated a quota was required to lodge a security deposit; and if the security was not lodged by the required time, the tender was to lapse and the unsuccessful tenders were to be reconsidered: cl E14. A large number of successful tenderers did not lodge the security by the required time, and the Registrar of Quota Tender granted an extension to all such tenderers. Gerah Imports Pty Ltd, which had unsuccessfully tendered, commenced proceedings under the ADJR Act for an order of review in respect of the registrar’s decision. The court (Davies J) held that the registrar had a discretion conferred by another Act to grant the extension of time. However, Davies J also considered an argument that it was unlawful for the registrar to make a decision inconsistent with the requirements of the scheme.] Davies J: I do not accept Dr Flick’s principal submission that the applicant is entitled to an order of the Court ensuring that the tenders be reconsidered in accordance with Clause E14, that is to say I do not accept his submission with respect to the effect of Clause E14. A most difficult question in administrative law is in what circumstances a departure from rules or principles by reference to which decisions are taken but which are not statutory, that is to say are not set out in legislation, may invalidate a decision. There is an interesting examination of the matter in ‘Circular Arguments: The Status and Legitimacy of Administrative

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Rules’ by Baldwin and Houghton, 1986 Public Law 239 … In Australia, in [Drake (No 2) 12.5.5C], Brennan J’s outstanding analysis of political and executive power and of the need for consistency in decision-making emphasised the binding nature of rules laid down by a Minister of the Crown. Nevertheless, decisions of this Court and of the Administrative Appeals Tribunal, both before and after Re Drake (No 2), have shown a reluctance to regard non-statutory rules as binding. Perhaps that is because, firstly, in Australia as elsewhere, non-statutory rules have often not been prepared with the care which the parliamentary counsel give to legislation and, secondly an end sought to be achieved by non-statutory rules has been to permit flexibility should the rules be found not to be appropriate to the facts which have occurred. In the present case, Dr Flick rightly laid emphasis upon the fact that the Scheme was formulated under s 266 of the Act, that it was expressed in precise and formal terms, that the words ‘may’ and ‘shall’ were used by way of contrast to each other, that the Scheme was a public Scheme that affected both public and private interests in a significant manner, that it was intended the Scheme would be relied upon by potential importers and that the rights and obligations of importers would be affected by its implementation. Nevertheless, in my opinion, the Scheme should be looked upon as a statement of guidelines, not as a prescription of legal entitlements. The Scheme was formulated by the Minister pursuant to s 266 of the Act to assist the exercise by the Comptroller of his discretion under s 273 of the Act. As such, it was a statement of policy, albeit a precise one. The Scheme did not have legislative character. It was not delegated legislation. It was not a regulation or a by-law. [His Honour then referred to two other cases in which similar comments were made: Minister for Industry and Commerce v East West Trading Co Pty Ltd (1986) 10 FCR 264 at 269, 278–9; and Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 at 540–1, in which Sheppard J referred to ‘the danger of looking at policies or guidelines as a source of the rights of a person who claims to have been aggrieved by administrative action’. Davies J then went on to refer to the decision of the Full Federal Court in Broadbridge v Stammers (1987) 16 FCR 296. In that case the Australian Postal Commission had given a direction to the delegates of the commission that they were to comply with a commission manual in making decisions, inter alia, to close post offices. Davies J continued by quoting from the decision of Bowen CJ, Beaumont and Gummow JJ in that case. Their Honours said at 300:] The manual requires decisions upon many discretionary matters and matters of judgment. It is not cast with the precision of a statute. Clearly this is an area in which guidelines may be useful and necessary. Much has to be left to the person selected as the delegate to give effect to them. It is an administrative area where one would expect that the delegate would have to direct his mind to the matters laid down in the policy but where he would not be bound, in the strict legal sense, by every word in the policy manual. Rather one would expect he would be open to correction or discipline by the Commission should he depart in material respects from it … In other words, to our minds, failure to observe strict compliance with the manual would be a matter not so much of absence of power in the delegate as a failure by the delegate to carry out his duties under the delegation in the manner required by the Commission. It appears to us that, in stating that the exercise of his delegated powers is ‘subject to’ the matters stated in the delegation, the Commission is indicating those matters to which he must have regard and with which, in general, he must comply. We do not think that the Commission is laying down a set of pre-conditions which, if not strictly observed, will result in an absence of power in the delegate. Put

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differently, the paragraphs following the words ‘subject to’, deal with matters of an essentially administrative character; as such, they should be seen as directory rather than mandatory … Even if non-statutory rules do not, of themselves, have binding effect, the failure of a decision-maker to have regard to them or his failure to interpret them correctly may amount to an error of law justifying an order of judicial review. … As to misinterpretation of rules, Denning MR said in R v Chief Immigration Officer, Gatwick Airport, Ex parte Kharrazi (1980) 1 WLR 1396 at 1403: ‘… if the immigration officer interprets the rules wrongly — and on that account asks himself the wrong question — and thus gives the wrong answer to those dependent on it — he does something which he is not empowered to do. He acts ultra vires.’

12.2.23C

Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65; 92 ALR 167 Federal Court of Australia

[Deportation orders had been made by the minister (Mr Young) against three people under s 12 of the Migration Act 1958 (Cth) (Migration Act), which provided that: ‘[T]he Minister may order the deportation’ of a non-citizen convicted in Australia of an offence punishable by imprisonment for one year or more. All three appealed against the order to the Administrative Appeals Tribunal (AAT), and in each case the tribunal recommended that the deportation order be revoked. The minister’s Criminal Deportation Policy stated that a recommendation of the AAT should be overturned by the minister only in ‘exceptional circumstances’ and only where strong evidence could be produced to justify the decision. In each case the minister decided that ‘exceptional circumstances’ existed, and overturned the AAT’s recommendation. Each person then commenced proceedings in the Federal Court under the ADJR Act for review of the minister’s decision. There were two main grounds of challenge. First, that the minister had misapplied or misinterpreted the Criminal Deportation Policy, in as much as ‘exceptional circumstances’ did not exist for overturning the tribunal recommendations. The court held, assuming that to be the case, that no reviewable error was thereby exposed, as the minister was free to depart from the policy, and he had not acted unreasonably in so doing. Second, one of the three appellants (Mr Sorensen) argued that the minister had not had regard to a ‘transition policy’ which had been adopted over three years previously (in 1984) by a predecessor of the minister. At that time s 12 of the Migration Act was amended to apply to British citizens, exposing them to deportation upon conviction of a criminal offence. The transition policy stated that a British citizen who had committed an offence prior to the amendment would not be deported except for a serious crime or where special circumstances existed. Mr Sorensen, who was a British citizen, was to be deported for offences committed prior to 1984. The court upheld the challenge to the validity of the deportation order against Mr Sorensen and remitted the matter to the minister for further consideration.] Wilcox J: The Criminal Deportation Policy Counsel for the applicant, in each of the three cases, accept that the Minister is not bound by the terms of para 4 of the Criminal Deportation Policy, in the sense that he is free

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to depart from that policy if he sees fit. I think that this acceptance accurately reflects the law. [His Honour referred to Gerah 12.2.22C and Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648] In Gerah Imports Davies J went on to say that, even if non-statutory rules such as policies do not have binding effect, ‘the failure of a decision-maker to have regard to them or his failure to interpret them correctly may amount to an error of law justifying an order of judicial review’. There is not, in any of the present cases, any suggestion that the Minister failed to have regard to para 4 of the Criminal Deportation Policy; on the contrary, as I have mentioned, the stated reasons are framed in terms of obeisance to this policy. As to an error in the interpretation of a policy, something may turn upon the identity of the decision-maker. In a case in which the decision-maker is a subordinate officer who is bound by a particular policy, a misinterpretation of the policy may result in the making of a decision which is beyond the power of that officer. … In the present case, however, any misconstruction of the policy was made by the Minister himself. There was no question of want of authority. In a situation where the Minister is free deliberately to depart from his own policy, it is difficult to see that a decision by the Minister could be rendered invalid because, in making it, he misinterpreted the policy and thus accidentally departed from it. None of the cases mentioned by Davies J in Gerah Imports, in relation to misinterpretation of a policy, are cases in which the challenged decision was made by the author of the policy. [His Honour went on to find that the minister’s reasons in each case for rejecting the recommendation of the AAT did not reveal ‘exceptional circumstances’ within the meaning of the Criminal Deportation Policy. Nevertheless, his Honour went on to find that the minister’s decision in each case was not devoid of plausible justification, and accordingly was not invalid for unreasonableness.] The Transition Policy As I have pointed out, Mr Sorensen fell within the class of people who were affected by the amendments to the Migration Act which took effect on 2 April 1984. But for the amendment to s 12, he could not have been deported pursuant to that section … He was one of the people out of fairness to whom the transition policy was adopted on 28 March 1984 by the then Minister. There is nothing in evidence to suggest that, in making his decision not to accept the recommendation of the AAT, Mr Young paid any regard to this policy. The policy was not mentioned in the documents placed before Mr Young for his consideration at that time. Nor was it mentioned in the Minister’s s 13 statement. Under those circumstances, the proper inference is that the policy was overlooked. Counsel for Mr Sorensen argue that the failure of the Minister to have regard to this policy vitiated the Minister’s decision. I think that this submission is correct. Although a nonstatutory policy is not binding upon a decision-maker, in the sense that he or she may decide in the particular case not to act in accordance with that policy, a policy applicable to the case is always a relevant consideration in the making of a decision. Unless it can be said that the policy is so insignificant that it could not have materially affected the decision — see per Mason J in Minister for Aboriginal Affairs v Peko Wallsend Limited [10.4.13C] at 40 — any failure to take that policy into account will lead to invalidity. It cannot be said, in Mr Sorensen’s case, that the failure to take into account the transition policy could not have materially affected the Minister’s decision. It was a policy directly applicable to the case

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under consideration and designed to shield affected persons from what had been seen as the unfairness of being retrospectively affected by the amending legislation. It seems to me likely that any Minister with a sense of fairness, confronted with this policy and considering its rationale, would have been extremely reluctant to deport Mr Sorensen for offences committed by him before the amendments took effect.

12.2.24C Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 Federal Court of Australia (Full Court) French and Drummond JJ: The question arises whether a misapplication or misconstruction of the ministerial policy by the Tribunal gives rise to error which is reviewable on appeal to this Court as an error of law. It must be accepted, as counsel for the Minister submitted, that ministerial policy is not to be construed and applied with the nicety of a statute. Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of the policy may reduce to misconstruction of the statute or misunderstanding of its purpose. [Neaves J dissented, but without disagreeing with the principle enunciated by French and Drummond JJ.]

12.2.25  In Williams v  Minister for Immigration and Border Protection (2014) 226 FCR 112, Mortimer J drew attention to the comment in Gray 12.2.24C that the ministerial policy under consideration was not a statutory instrument. If, by contrast, a ministerial policy does have a legislative character (for example, being tabled in the parliament under the Legislative Instruments Act 2003 (Cth)), Mortimer J observed that that ‘is capable of affecting the legal consequences of misinterpretation or misapplication of it’: at [26].

MINISTERIAL DIRECTIONS AND OTHER HIGH LEVEL POLICIES 12.3.1  It is clear from the preceding cases and discussion that a minister cannot as a general rule dictate to a subordinate official the decision to be reached in a particular case. Nor can an official reach a decision by automatically or inflexibly applying a policy or direction from a minister, unless the statute makes it mandatory to comply with the direction: see  12.4.1. However, it is unresolved whether there is an exceptional situation in which there is a duty 794

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on an official to exercise a discretion in accordance with a ministerial direction. The argument against that result is the conventional principle, examined above at 12.2.6, that an official entrusted with a statutory function is obliged in law to reach an independent judgment on how to exercise the function. The argument the other way is that administrative law principles should not be applied in a doctrinaire way that inhibits the operation of government according to Westminster principles of ministerial control and accountability. 12.3.2  The following cases discuss this issue in the context of the implementation of major government policies on matters such as air transport certification, food pricing and border protection. A threshold issue that arises in two of the cases (Ipec-Air 12.3.3C and Bread Manufacturers 12.3.5C) is whether, as an issue of fact, the decision-maker acted at the direction or behest of a minister or, rather, made an independent decision. The issue next arising is whether, as a matter of law, an official can lawfully act at the direction or behest of a minister or, as some judges put it, can give conclusive weight to the minister’s views. It should also be noted that s 5(2)(e) of the ADJR Act has deliberately avoided the problem by confining the operation of the prohibition against dictation to situations in which an official is exercising a ‘personal discretionary power’ (a phrase used by some justices in CPCF v Minister for Immigration and Border Protection 12.3.6C). 12.3.3C

R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; [1965] ALR 1067 High Court of Australia

[The Customs (Prohibited Imports) Regulations prohibited the importation of aircraft into Australia unless the importer produced to the Collector of Customs the permission in writing of the Director-General of Civil Aviation to import the aircraft. Ipec-Air applied to the Director-General for permission to import five aircraft, in order to conduct a freight transport business in Australia. The Director-General responded initially that the application met the requirements for air safety, financial stability and operating efficiency. The Director-General then said, according to the evidence, that the matter from that point on became one for the minister, and probably for the cabinet, for decision on political grounds. He pointed out that Ipec-Air’s application could conflict with the government’s two-airline policy, by which trunk route freight services were allocated, on economic grounds, to Ansett-ANA and TAA. After later inquiring about the delay in deciding its application, Ipec-Air was informed by telephone by the Director-General: ‘It is no use ringing me about this matter. The matter is out of my hands. If you want any information you had better contact the minister’. Later still, a reply was received from the Director-General by telegram: Only the Government can make decisions on those matters of Government policy which are relevant to my consideration of your applications. The Minister has asked me to tell you that he submitted the matter to the Government shortly after receiving [certain] legal advice … and he is hopeful that the Government views will be made known at an early date. Until this is done it is not possible for me as DirectorGeneral to give an immediate decision on your applications … The applications will be considered on their merits as soon as I am in a position to consider all matters which are properly held to be considered [sic] in deciding whether or not to grant your applications.

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Eventually, the following letter was received from the Director-General refusing the import application: I have carefully considered all aspects of your Company’s application raised by your correspondence and by the discussions that have taken place on your Company’s application, and I have also had regard to the Government’s policy views as expressed above. After carefully considering all these matters I have come to the conclusion that your Company’s application should be refused and I accordingly refuse the application. Ipec-Air applied for a writ of mandamus addressed to the Director-General, directing him to grant the import application or to reconsider and determine it according to law. The High Court (Taylor, Owen and Windeyer JJ; Kitto and Menzies JJ dissenting) dismissed the application.] Kitto J: 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. But from the fact that he is designated by the title of his office the intention appears, as it seems to me, that the power of lifting the general prohibition is not given him for his own benefit or otherwise than for purposes relevant to his office. It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, 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, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself. … The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed. Even then a court does not direct that the discretion be exercised in a particular manner not expressly required by law, but confines itself to commanding the officer by writ of mandamus to perform his duty by exercising the discretion according to law. … A case for the granting of mandamus on this principle exists where the officer has taken into account matters ‘absolutely apart from the matters which by law ought to be taken into consideration’: [Randall v Northcote 17.4.8C at 110], or has acted for a purpose other than that for which the discretion exists: [Water Conservation and Irrigation Commission (NSW) v Browning 10.3.10C at 498, 499, 500, 504], or has accepted another’s direction as to the way in which the discretion should be exercised. … [If the Director-General’s letter advising the decision] were to be read in isolation there would be no ground for concluding, though there would be ample ground for suspecting, that the Government’s decision had been the only consideration operating against the granting of the application. But when the letter is read in the light of the Director-General’s oral statements, his telegram and the letters to which I have referred, it becomes to my mind clear beyond doubt that ‘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 that 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. It is worth observing that the relevant item of the Third Schedule stands in marked contrast with other items (see 8A and 24) in that it selects as the repository of the power to permit importation, not the Minister who

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is the political head of a Department, but the permanent head of the Department. 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 me to be that the application which the Director-General purported to refuse still awaits a decision according to law — a decision which in truth is a decision of the person to whom alone the Regulations entrust the power and duty of deciding whether the general prohibition of importation should be lifted in the particular case. … [T]he fact is that in dealing with the application in question in this case the DirectorGeneral 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. That is a very different thing; and none the less so because the Government made its pronouncement in line with a general policy which it considered to be in the best interests of the country … Taylor and Owen JJ: Whether permission is to be given or not is a matter left to the discretion of the Director-General. His discretion, no doubt, is intended to be exercised upon broad considerations relating to civil aviation in the Commonwealth … It should perhaps be added that while we think that the evidence shows that in considering the prosecutor’s application for permission to import aircraft the Director-General took into account the policy laid down by the Government, we are unable to accept the view that this was not a matter proper to be considered by him nor, with respect, do we agree with the conclusion reached by Kitto J that the refusal to grant the permission sought was, in truth, not the decision of the Director-General but that of the Government … Windeyer J: Then it is said that the Director-General refused a permit for importation simply because the Minister made known to him that it would be against Government policy to allow the prosecutor to import aircraft for the purpose it proposed. … I think that the only consideration by which the Director-General could properly have been guided was the policy of the Government. He is by the Public Service Act made the permanent head of the Department of Civil Aviation, a duly constituted Department of State. The responsible Minister is the Minister for Civil Aviation. The Director-General’s function in giving permission, pursuant to the Customs Regulations, for the importation of aircraft is an administrative one which he performs by virtue of his office. He is not like a person charged with a duty of determining some question of fact or a person required himself to exercise a discretion according to defined criteria or guided by defined considerations … The constitutional responsibility for the decision to permit or refuse entry of a conditionally prohibited import, aircraft or whatever it be, rests ultimately in every case with some responsible Minister. … The Director-General is the officer whose written permission must be produced to the Customs. But in my opinion that does not mean that he is to grant or refuse permission according to some view of his own, giving weight or no weight as he chooses to the policy of the Crown. On the contrary, I think his duty is to obey all lawful directions of the Minister under whom he serves the Crown. The Minister is answerable before the Parliament … [Menzies J, dissenting, agreed in a separate judgment with Kitto J that a statutory discretion conferred on a departmental head rather than the minister should be exercised by the departmental head — ‘he must arrive at his own decision upon the merits of the application and must not merely express a decision made by the government’.]

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12.3.4C Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; 17 ALR 513 High Court of Australia [In this case, the members of the court commented, obiter, on the same issue that arose in Ipec-Air 12.3.3C — namely, whether the Secretary of the Department of Transport (who was now referred to in the Customs (Prohibited Imports) Regulations as the officer whose permission in writing was required for the importation of aircraft) could act in accordance with government policy or a direction from the government in deciding whether to grant that permission. (The facts of this case are given more fully in 12.7.4C.)] Barwick CJ: I do not regard the observance of government policy by the ComptrollerGeneral of Customs as any breach of his duty. Indeed, he would be bound, in my opinion, to carry out the communicated policy of government in deciding whether or not to grant his consent to importation. The vesting of a discretion in an official in an area such as the control of entry into Australia of goods or persons does not, in my opinion, give him a power to ignore or to depart from government policy in the exercise of this discretion in relation to such entry … Gibbs J: Nor do I think that it would be wrong for the Secretary, in exercising his discretion under the regulations, to give weight, and indeed conclusive weight, to the policy of the government … Mason J: The Regulations vest the discretion in the Secretary of the Department; they therefore contemplate a decision by him. If in truth he is bound as a matter of law to accept a direction from his Minister it cannot be said that the decision is his decision; it then becomes the decision of the Minister. Unquestionably, important considerations of aviation policy are relevant to the exercise of the discretion in the sense that most, if not all, imports of aircraft take place within a framework of established government policies, some relating to aviation and others relating to finance and economics. It is to be expected that the Secretary will, before making his decision, if he does not already know them, ascertain what are the government policies which happen to be relevant to the application before him. Moreover, it is to be expected that he will have regard to any relevant government policy, nevertheless deciding for himself whether the existence of the policy is decisive of the application. Whether it is so decisive will depend upon the nature and terms of the policy and the circumstances of the particular case. But I cannot think that this means that the Secretary is entitled to abdicate his responsibility for making a decision by merely acting on a direction given to him by the Minister. Apart from the observations of Windeyer J the authorities give no support to the notion that a Minister can, without statutory authority, direct an officer in whom a statutory discretion is reposed, how he will exercise that discretion. The observations of Evatt J in Reg v Mahoney; Ex parte Johnson (1931) 46 CLR 131, at 145 are in my opinion quite opposed to the notion that an administrative officer vested with a discretionary power ‘could allow the Executive or any other person to exercise it for him’. Here all that emerges is that the exercise of the discretion is in conformity with a policy enunciated by the Minister or with a policy of which the Minister approves. Murphy J: Under s 64 of the Constitution, the Minister is appointed to administer the Department. The system of responsible government which is reflected in ss 61 and 64 of

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the Constitution contemplates (if it does not require) that executive powers and discretions of those in the departments of the executive government be exercised in accordance with the directions and policy of the Minister. Unless the language of legislation (including delegated legislation) is unambiguously to the contrary, it should be interpreted consistently with the concept of responsible government. It would be inconsistent with that concept for the secretary or any officer of a department to exercise such a power or discretion contrary to the Minister’s directions or policy (provided of course these are lawful). It is not for the officer to distinguish between ‘government policy’ and the Minister’s policy. The duty of those in a department is to carry out the lawful directions and policy of their Minister. It is the Minister who is responsible to the government and the parliament for the directions and policy. Aickin J: [A]lthough the discretion is that of the Secretary of the Department of Transport, it is not one to be exercised entirely according to his personal views. Government policy, and particularly that applicable to matters within the scope of his Department must in every case be a matter for his serious consideration. Moreover the Minister or the cabinet may properly indicate to him what government policy is in relation to imports of aircraft generally or to the importation of particular aircraft. There is nothing improper in the Minister requesting him to act in a particular manner or seeking to influence or persuade him to act in a particular manner, nor is there any failure of duty by the head of a department of government in acting in accordance with such a request. In many matters of policy it might indeed be the duty of the Secretary to act in accordance with the policy of the government of the day. It is however not necessary in the present case to resolve the conflict of opinion in the Ipec Case [12.3.3C] on this matter for, although there is no majority for any one view, there is at least a majority which goes as far as what I have said above …

12.3.5C

Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404; 38 ALR 93 High Court of Australia

[The Prices Regulation Act 1948 (NSW) constituted a Prices Commission, with power (s 20) to make an order setting the maximum price at which a product could be sold. The Act further provided in s 20(1A) that the minister could veto a decision of the commission, by directing that an order not be published. The New South Wales Court of Appeal held that Prices Regulation Order No 798 was invalid for the reason that in making the order the commission had not come to its own independent decision, but had acted under the influence or at the direction of the minister. On appeal, the High Court (Gibbs CJ, Mason, Murphy, Aickin and Wilson JJ) held that the evidence as to the consultation that had been held between the commission and the minister did not support the conclusion of fact reached by the Court of Appeal. The following additional comments were made by the court about the legal relationship between the commission and the minister.] Gibbs CJ: The attack on Prices Regulation Order No 798 commences with the proposition that a statutory authority must not, in the purported exercise of its discretion, act under the dictation of some other person. This proposition is plainly correct. The Commission is the body entrusted with power to fix the price, and its decision must be its own. If it acted under pressure exerted by the Minister, or simply gave automatic effect to a decision of the Minister, the decision

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would not then really be that of the Commission but would be that of the Minister. [His Honour referred to Ipec-Air 12.3.3C at 192, 200, 202.] It does not follow that it was impermissible for the Commission to consider the views of the Minister in coming to its decision. For the Commission to take ministerial policy into account in making a decision of its own is a different thing from automatically following ministerial policy. [His Honour referred again to Ipec-Air 12.3.3C at 193, 201–2.] In that case the whole Court accepted that when a discretion is vested in the head of a government department, the policy of the government is not necessarily an extraneous matter which he must not consider. [His Honour referred to Ipec-Air at 192, 200, 202–3, 204, Ansett 12.3.4C at 82, 114–15, and to s 20(1A) of the Act, conferring an effective power of veto upon the minister, and continued:] It would be a futility for the Commission to make an order which it knew that the Minister would veto, and it would therefore not be wrong for the Commission, in considering what price it should fix, to take into account the Minister’s views, provided that in the end the decision reached by the Commission was its own. If the Commission can consider the Minister’s views, it can treat them as decisive. There is obviously a fine line between a case in which the Commission automatically obeys a ministerial pronouncement, and that in which it decides for itself to grant the largest increase in price that the Minister will not veto. The fact that the Minister has a statutory power of veto makes the case an exceptional one. Mason and Wilson JJ: We turn now to examine the relationship between the Minister and the Commission. It may be said at once that the Act does not subject the Commission to the control of the Minister. Its independence and the detailed provisions which provide security of tenure to its members are significant features of the Act. The powers of the Minister in relation to the price-fixing process are clearly defined. [Their Honours referred to s 20(1A) and other provisions and continued:] The extent to which a tribunal or public official required by statute to make decisions which affect the rights of the citizen can take into account and act upon the views of the Government or a minister has been, and no doubt will continue to be, a vexed question. [Their Honours referred to Ipec-Air 12.3.3C and Ansett 12.3.4C.] As these judgments tend to show, the problem is not one which admits of an answer having a universal application. So much depends on a variety of considerations, for there are few cases in which the statute explicitly provides that the tribunal is bound to give effect to, or to give weight to, a ministerial direction. One must take into account the particular statutory function, the nature of the question to be decided, the character of the tribunal and the general drift of the statutory provisions in so far as they bear on the relationship between the tribunal and the responsible Minister, as well as the nature of the views expressed on behalf of the Government. What is permitted to one organisation may be prohibited to another. What will be an extraneous consideration to a tribunal applying the law to the facts, eg, the Court Martials Appeal Tribunal, may be a relevant consideration to a tribunal such as the Commonwealth Conciliation and Arbitration Commission which takes into account government economic policy. As so often happens the statute in the present case gives no explicit guidance. We are left then to spell out what is appropriate from the framework of the relationship which the statute has sketched in. We have the initial complication that arises from the split personality of the Commission — the quasi-judicial character which it is required to assume in conducting public inquiries and the executive style role which it plays in making other determinations. In making such determinations the Commission is not expected to operate in a vacuum, giving vent to arbitrary or capricious decisions. One would expect it to engage in gathering, from a wide variety of sources, information which has relevance to declared goods and services, information which will provide the basis for the consideration of the Commission in preparing

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a proposed order. There is nothing in the Act to exclude the Minister from the category of those who may be able to contribute information that is relevant to the Commission’s task … As we have already said, s 58(a) requires the Commission to take account of the interests of consumers and of the community generally, as well as those of manufacturers and traders. In the absence of a statutory prohibition, the Commission is free to take into consideration the opinion or view of the Minister as to the impact on consumer or community interests of a proposed increase in the maximum price. No doubt there is some ground for apprehension that if the members of a statutory body are entitled to take into account the views of a Minister they will merely defer to them or give too much weight to them. However the remarks of Menzies J in Ipec at 202 provide a reassuring answer … [I]t would not be unreasonable for the Commission to ascertain the views of the Minister before making a final determination under s 20. The Commission will, in the nature of things, wish to avoid an exercise by the Minister of his power of veto under s 20 if it can be avoided consistently with the Commission making a determination of its own. It is impossible to suppose that the legislature intended that the only avenue whereby the Minister can express a view concerning the fixation of a maximum price under the Act which it is his task as a Minister of the Crown to administer is by way of a public rejection of a formal decision of the Commission in the form of a veto of a proposed order. This would be an extraordinary intention to impute to the legislature in any circumstances, but particularly in the light of the many situations where the Act cannot operate without consultation between the two bodies who between them are responsible for the administration of the Act. [Their Honours referred to other sections of the Act which also indicated the need for close involvement between the commission and the minister.] Aickin J: As to PRO No 798 I would add that in my opinion the evidence falls just short of warranting the inference that there was improper pressure brought to bear on the Commission or an abrogation by the Commission of its independent function. It may well be that there are grounds for suspicion but there is not sufficient material to warrant an affirmative finding to that effect. I would not regard it as proper for the Commission, or any of its members to ‘sound out’ the Minister with a view to ascertaining how far they would have to adjust their views to avoid the exercise of his veto power. That would be an abandonment of their statutory function.

12.3.6C

CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; 316 ALR 1; [2015] HCA 1 High Court of Australia

[The plaintiff was detained at sea on a Commonwealth vessel by an authorised maritime officer, for the purpose of taking the detainee outside of Australia’s contiguous zone, to India. The authorised maritime officer was acting under s 72(4) of the Maritime Powers Act 2013 (Cth), which provides that a maritime officer may detain a person and take that person outside of Australia. The plaintiff, who sought damages for unlawful detention, alleged that his detention was unlawful as the maritime officer had not independently considered whether to take the detainee to India, but was implementing a decision to that effect by the Australian Government. The High Court unanimously rejected that argument.]

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French CJ: On the agreed facts in the Special Case, maritime officers on navy vessels and Australian customs vessels exercise maritime powers in the context of a chain of command in which they are governed by orders and instructions from superior or senior officers. In taking the plaintiff and other passengers to India, the maritime officers on the Commonwealth vessel were acting in accordance with a specific decision of the NSC [National Security Committee of the Cabinet] and were implementing a general government policy to the effect that anybody seeking to enter Australia by boat without a visa will be intercepted and removed from Australian waters. The plaintiff contended that the maritime officers, acting in accordance with the NSC decision, acted unlawfully because they were acting under the dictation of the NSC and because the government policy applied by the NSC itself admitted of no discretion. The NSC was said not to be an entity which has power under the MPA [Maritime Powers Act 2013 (Cth)]. It is not an authorising officer, nor a maritime officer. Maritime officers who simply ‘implemented’ the NSC direction were therefore improperly exercising their power. That contention must be considered on the basis that the NSC comprises Ministers of the Executive Government of the Commonwealth with responsibility, among other things, for the implementation of government policy with respect to non-citizens seeking to enter Australia by boat without a visa. The question whether, absent express power to do so, a Minister can direct a public official, for whom he or she is responsible, in the exercise of a statutory discretion has been the subject of different approaches in this Court from time to time. The answer depends upon a variety of considerations including the particular statutory function, the nature of the question to be decided, the character of the decision-maker and the way in which the statutory provisions may bear upon the relationship between the Minister and the decision-maker. The nature of the power conferred by s 72(4) of the MPA and the subject matter of that power are apt to raise questions of Australia’s relationship with other countries. [His Honour then held that the power conferred upon maritime officers by s 72(4) is a power in the exercise of which they could properly regard the direction of the NSC as decisive, for the reasons extracted at 12.5.8.] Keane J: There may be cases where a maritime officer will have no alternative but to make the choice of destination for himself or herself; but that possibility may be put to one side in this case because the maritime officer who had detained the plaintiff was obliged to obey the orders of the Executive government which were communicated through the chain of command. … The chain of command in Australia’s naval and military forces ensures those forces remain under civilian control. Only the clearest language could require military officers to exercise powers independently of superior civilian orders. Section 72(4) does not exhibit any such intention. As noted above, it contemplates that maritime officers will exercise their powers according to the exigencies of the existing command structure within which maritime officers operate. The observation by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Haskins v The Commonwealth in relation to members of the ADF is equally applicable to Customs officers and members of the AFP: ‘Obedience to lawful command is at the heart of a disciplined and effective defence force.’ [Crennan and Gageler JJ delivered judgments to the same effect. Crennan J commented (at 586) that ‘a decision to take a person over the seas from the contiguous zone to a place outside the migration zone is a decision which will usually require cooperation between Australia and relevant authorities in another country [and is] a decision which a maritime officer plainly would not be able to make’.]

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12.4.3C

STATUTORY DIRECTIONS 12.4.1  One way in which government — or parliament — has increasingly sought to address the problems raised in this chapter is by giving statutory backing to ministerial directions and policy statements. A high proportion of regulatory Acts contain such provisions, with a rich variety of formulas. They are variously described in the legislation as ‘guidelines’, ‘directions’, ‘plans of management’, or other such terms. Some statutes spell out the intended effect of the direction — for example, an official ‘shall comply with any directions’ — while others leave that question open. Some directions are required to be tabled in parliament, while others need not be. Some directions relate to a particular statutory function, while others relate generally to the exercise of all powers under an Act. Within the scope of the different language and requirements contained in such powers, very few can be readily interpreted as clearly overriding the rules against fettering and dictation. There are provisions with a wider coverage still. The Public Governance, Performance and Accountability Act 2013 (Cth) requires that the directors of a Commonwealth company must ensure that the company complies with any applicable government policy orders: s 93. There is a similar provision in the Public Service Act 1999 (Cth): ‘An APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction’: s 13(5). 12.4.2  The cases extracted and referred to below illustrate that there is no clear-cut answer as to whether a policy or direction with statutory backing will be binding to the point of confining or fettering a statutory discretion. In Riddell 12.4.4C, the court did not move beyond the presumption that an administrative instrument is not binding. By contrast, in both New South Wales Farmers’ Association v Minister for Primary Industries and Energy 12.4.3C and Smoker v Pharmacy Restructuring Authority 12.4.5C, the court held that that presumption was rebutted by the terms of the particular statutory scheme. However, those differences in result merely underscore the difficulty of devising a general theory to explain the relationship between decision-makers and superior officers in a system of responsible government. Importantly, each of the following cases was treated by the court as raising a question of statutory construction, and not as raising the issue of legal principle (discussed in Ipec-Air 12.3.3C, Ansett 12.3.4C and Bread Manufacturers 12.3.5C) as to whether there is an inherent ministerial power to give directions to subordinates. 12.4.3C

New South Wales Farmers’ Association v Minister for Primary Industries and Energy (1990) 21 FCR 332; 94 ALR 207 Federal Court of Australia (Full Court)

[The Wool Marketing Act 1987 (Cth) established the Australian Wool Corporation. Section 66 of the Act provided that, in each financial year, the corporation shall determine the minimum reserve price at which wool can be sold in Australia that year. Section 120(1) of the Act provided that ‘the Minister may give directions in writing to the Corporation concerning the performance of its functions and the exercise of its powers, and the Corporation shall comply with those directions’. Section 120(2) provided further that ‘[t]he Minister shall not give a direction to the Corporation unless … the Minister is satisfied that, because of the existence of exceptional circumstances, it is necessary to give the direction to the Corporation in order to

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ensure that the performance of the functions, or the exercise of the powers, of the Corporation does not conflict with major government policies’. In 1990 the minister gave a written direction to the corporation requiring it to re-determine the sale price of wool, and to set a new price of no more than 700 cents per kilogram. The association commenced proceedings to challenge the validity of the minister’s direction, which were dismissed by the court.] Bowen CJ, Lockhart and von Doussa JJ: In our opinion the language of s 120 is apt to encompass the giving by the Minister of the direction of the kind given in this case. … It is difficult to envisage powers vested in the Corporation of more importance to the national interest than its powers with respect to the reserve price scheme conferred by s 66. It is to be expected that, in legislation relating to the export marketing of wool, powers as significant as those vested in the Corporation by s 66 should be subject to an overriding power of the Federal Government, through the responsible Minister, to ensure that those powers are exercised in conformity with the national interest. But the legislature has circumscribed the exercise of this reserve power by requiring the existence before its exercise of the conditions precedent, namely, the existence of ‘exceptional circumstances’ and the avoidance of conflict between the exercise of the Corporation’s powers and ‘major government policies’. The language of sub-s 120(1) is therefore apposite to encompass the giving by the Minister of a direction of the kind given in this case. In our opinion there is a plain legislative intent that, although in the ordinary run of cases the Corporation would not be subject to intervention by the Minister under s 120 when exercising its powers under s 66, the Minister has been given the reserve powers under s 120 when the exceptional circumstances to which that section refers occur.

12.4.4C Riddell v Secretary, Department of Social Security (1993) 42 FCR 443; 114 ALR 340; 30 ALD 31 Federal Court of Australia (Full Court) [Section 1237 of the Social Security Act 1991 (Cth) established the following scheme for controlling the recovery of money from social security recipients: (1) The Secretary may, on behalf of the Commonwealth, decide to waive the Commonwealth’s right to recover from a person the whole or a part of an overpayment or a debt. (2) In exercising the power under subsection (1), the Secretary must act in accordance with directions from time to time in force under subsection (3). (3) The Minister may, by determination in writing … give directions relating to the exercise of the Secretary’s power under subsection (1). (4) A determination made under subsection (3) giving, revoking or varying directions is a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901. The minister gave a written direction dated 8 July 1991 to the secretary, limiting the circumstances in which the secretary could decide to waive recovery of an overpayment. In applying that direction, the secretary made a decision to recover a debt from Ms Riddell, on

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the basis that her circumstances did not come within any of the categories in the minister’s direction. The court held that the secretary’s decision was invalid.] Neaves, Burchett and O’Loughlin JJ: In our opinion, the language of s 1237(3), when considered in its context and having regard to its legislative history, is not apt to have authorised the Minister to make the instrument of 8 July 1991. Section 1237(3) is not expressed in terms which authorise the Minister to circumscribe the wide discretion vested in the Secretary by ss 1237(1). The language used is more apt to describe a power in the Minister to give general guidance to the Secretary, whether by way of statements of policy or otherwise, in the exercise by him of the discretion vested in him but guidance which will leave the Secretary free, in any particular case, to depart from the guidance provided by the Minister’s directions if the circumstances of the individual case warrant such a departure. [Their Honours referred to British Oxygen 12.2.12C and Howells v Nagrad Nominees Pty Ltd 12.2.9 at 307.] Section 1237(3) refers to ‘the Secretary’s power’, and authorises a determination which will affect the manner of its exercise but will leave the power itself intact. This point is confirmed by a consideration of the terms of subss (1) and (2). Sub-section (1) confers upon the Secretary a power of decision — ‘(t)he Secretary may … decide’ — and subs (2) then requires the Secretary, ‘(i)n exercising the power’ (ie, of decision), to comply with directions. It is important to note that subs (2) still regards the Secretary as exercising the power. When the determination purports to lay down quite precise rules dictating the result of all, or nearly all, applications, it departs radically from the statutory scheme because it is not giving guidance in the exercise of the power, but attempting to deny the existence of the power. [Their Honours referred to the legislative history of s 1237.] It follows that the instrument of 8 July 1991 was not authorised by s 1237(3) of the Social Security Act.

12.4.5C Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287; 125 ALR 577; 36 ALD 1 Federal Court of Australia (Full Court) [The National Health Act 1953 (Cth) established a scheme to limit the number of pharmacies in Australia. Commonwealth benefits could only be paid in respect of items dispensed by a Commonwealth-approved pharmacy. Approval was conditional on a recommendation for approval first being made by the authority. Section 99K(2) of the Act provided that: ‘In making a recommendation under sub-section (1), the Authority must comply with the relevant guidelines determined by the Minister under section 99L’. Section 99L then provided: (1) The Minister must determine in writing the guidelines subject to which the Authority is to make recommendations under subsection 99K(1). (2) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. The minister made a direction under s 99L providing that the authority shall not recommend approval for any pharmacy that would be located within 3 km of an existing approved pharmacy. Applying that guideline, the authority refused to recommend approval to an application lodged by Mr Smoker. The court held that the minister’s direction was authorised by the Act and was binding on the authority.]

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Wilcox J: Parliament’s choice of the word ‘guidelines’, to describe the contents of a Ministerial determination, was unfortunate. As Hill J points out, the Macquarie Dictionary defines ‘guidelines’, in the plural, as ‘a statement which defines policy or the area in which a policy is operative’. I think that is the way in which the word is ordinarily used in Australia. Generally speaking, the function of ‘guidelines’ is to provide information and to point the way to a particular conclusion, without dictating that conclusion. Generally speaking, a residual discretion remains. However, like Humpty Dumpty in Alice through the Looking Glass, Parliament can give a word any meaning it wishes. ‘When I use a word, it means just what I choose it to mean — neither more than less … The question is, which is to be the master — that’s all’. Parliament is not bound by ordinary usage. Provided it makes its intention clear, Parliament can use any word it wishes, however much this may offend linguistic purists. The critical question in this case is whether Parliament has clearly evidenced an intention to subordinate the Authority’s discretion to the Ministerial guidelines. It seems to me that when the case is considered in this way, there is no question about the proper result … I do not place much weight on the language of s 99L(1). Guidelines ‘subject to which the Authority is to make recommendations’ need not necessarily be binding; they might merely provide guidance to which the Authority is to subject itself in working towards its decision. Nor is subs (2) determinative of the issue. If Parliament intended that the guidelines be binding, it would be rational to make a determination a disallowable instrument. But not all disallowable instruments have binding force; for example, Rules of court. However, it seems to me there is no arguing with s 99K(2). That subsection states that the Authority is to ‘comply with’ the guidelines. To refer once again to the Macquarie Dictionary, ‘comply with’ means ‘to act in accordance with’. A person does not ‘comply with’ a document by acting in contravention of it. [Burchett and Hill JJ reached a similar conclusion. Hill J, with whose judgment Wilcox and Burchett JJ agreed, distinguished Riddell 12.4.4C on the basis of the different legislative history of the provisions of the legislative scheme in each case.]

12.4.6  Whether a policy or direction with statutory backing can fetter a discretionary power has arisen in many other cases. In Aboriginal Development Commission v  Hand (1988) 15 ALD 410 it was held that, under a statutory power to issue ‘general directions’ with which the commission must comply, the minister could direct the commission to cooperate with him in planning a reorganisation of the functions of the commission. By contrast, in Aboriginal Legal Service Ltd v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 565, it was held that the same power would not support a direction to the Aboriginal and Torres Strait Islander Commission not to provide funding to any organisation against which an adverse report had been issued by a specially appointed auditor. 12.4.7  A wide view of the power to give statutory directions to a statutory authority was taken in Hughes Aircraft Systems International v  Airservices Australia (1997) 76 FCR 151 2.5.23, the court indicating (at 231–2, 245–6) that the minister could have used the power to give a direction to the Civil Aviation Authority to award the tender to one company rather than the other. Similarly, in Kolundzik v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 the court distinguished Riddell 12.4.4C, and found that WorkCover Guides were ‘subordinate legislation in the nature of regulations whose purpose is to give effect to the provisions of the substantive law’, which gave the guides ‘some greater force as part of an overall statutory 806

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scheme than “guides” of the type dealt with in Riddell’. This conclusion was fortified by statute requiring the WorkCover Guides to be developed in consultation with broad stakeholder and specialist medical input. In Sanders v Snell (1998) 196 CLR 329 the High Court assumed that a power conferred upon the Norfolk Island Minister for Tourism to give directions to the Tourist Bureau on ‘the manner in which the bureau carries out its functions or exercises its powers’ would support a specific direction to the bureau to terminate the employment of its executive officer. 12.4.8  In Department of Primary Industries and Energy v Collins (1992) 34 FCR 340 it was held that a statutory discretion could be confined by a fisheries management plan which was promulgated under the Act and tabled in the parliament. But such a plan, it was noted in Latitude Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 110 ALR 209 at 228, is ‘not a species of regulation or by-law creating rights and duties’. In Collins v Repatriation Commission (1994) 33 ALD 557, a lengthy and detailed policy manual known as the Guide to the Assessment of Rates of Veterans’ Pensions was found to be binding on the commission, the Veterans’ Review Board and the AAT. The Veterans’ Entitlements Act 1986 (Cth) provided that once the guide was approved by the minister, decisions made under the Act ‘shall be in accordance with the relevant provisions of the approved Guide’: s 29(4). The Federal Court (Olney J) held that the guide was not merely a set of guidelines: The Guide is part of the law of Australia. It is authorised by the Act and has binding effect according to its terms … Nothing could be more central to an Act ‘to provide for the payment of pensions and other benefits to veterans’ … The decisionmaker has no role to play in determining whether the result so achieved is fair or just in the particular case.

12.4.9  The Migration Act 1958 (Cth) provides that the minister may issue written directions to a person or body about the performance of functions and the exercise of powers under the Act, and that a person or body ‘must comply with a direction’: s 499. A number of decisions have held that a decision-maker (including a tribunal) is required to have regard to considerations listed in a ministerial direction: Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 435 at [27]–[28]; and Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358 at [53].

ADMINISTRATIVE TRIBUNALS AND GOVERNMENT POLICY 12.5.1  When administrative tribunals review government decisions they are frequently confronted by the range of legal issues canvassed in this chapter — does an administrative policy validly conform to an Act? Is a ministerial direction binding on the tribunal? There is, however, an important additional question that arises in the merit review jurisdiction of a tribunal. If a tribunal is constitutionally part of the executive arm of government, and ‘stands in the shoes of the decision-maker’, should it wear those shoes faithfully and deal with administrative policy with the same attitude as the decision-maker? In particular, should the tribunal regard consistency and certainty as core values of public administration, and accept that policy-making is a senior executive government responsibility? Or should the tribunal, as an adjudicative body, lean towards the judicial perspective, and give pre-eminence to the justice of the individual case? 807

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12.5.2  The controversy surrounding this choice of role has been one of the more important themes in the development of merits review in Australia. The controversy was first ignited by the Kerr Committee in 1971 in its proposals for a Commonwealth administrative appeals tribunal: see  1.4.3E. The committee concluded that a tribunal should not substitute a new decision ‘when it is shown that the administrative decision is properly based on government policy’, and should go no further than to inform the minister that ‘government policy as applied in the particular case is operating in an oppressive, discriminatory or otherwise unjust manner’: Commonwealth Administrative Review Committee, Parliamentary Paper No  144, 1971 (Kerr Committee) at [297], [299]. In the first major case to come before the Federal Court, an arguably different approach was defined. In Drake v Minister for Immigration and Ethnic Affairs 3.3.10C, the Full Federal Court held that an unreflective application of executive policy by the tribunal would be an abdication of its function to reach a ‘correct or preferable decision’ on the merits of the case under review. Chief Justice Deane added: It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determination of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case … [T]he uncritical application of government policy to the facts of the particular matter [would represent] an abdication by the Tribunal of its functions … It is, however, desirable that, in any case where the Tribunal reaches the conclusion that the particular circumstances are such as to make the correct or preferable decision that which results from an application of some government or ministerial policy to the particular facts, the Tribunal 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. This is particularly so in matters such as the review of a deportation order where no two cases will be identical and where personal liberty will commonly be involved … [The] application of policy [should be] the result of an independent assessment of its propriety and an 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.

Justice Smithers took a similar approach, stating that the role of the tribunal is to decide ‘whether, by the objective standard of good government it was the right decision to make’: Drake at 433. 12.5.3  Upon remittal of the Drake case to the tribunal, Brennan J in Drake (No 2) 12.5.5C mapped out the approach which the tribunal should take in future. His analysis has been widely accepted and applied. It will be noticed in the extract from Drake (No 2) that Brennan J gave a different emphasis to issues than the Federal Court, laying stress on the responsibility of a tribunal ordinarily to apply a general policy that was lawfully adopted by a minister, and to depart from the policy only cautiously and sparingly where there is a cogent reason for so doing. The approach defined by Brennan J was accepted soon after by the Full Federal Court in Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325. The decision of the AAT which had been appealed in that case had affirmed a deportation order made in accordance with the government’s Criminal Deportation Policy, even though in the tribunal’s

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view the justice of the case probably lay in the other direction. The Federal Court held that the tribunal had not erred — yet in a passage frequently cited since, Deane J issued a caution: [W]hile consistency may properly be seen as an ingredient of justice, it does not constitute a hallmark of it … [C]onsistency must ultimately be related to policy and is safely sought by reference to policy only when the policy is appropriate and acceptable. Decision-makers may be consistently wrong and consistently unjust … [E]ach applicant to the Tribunal is entitled to have his or her application for review decided on its own particular merits. The desire for consistency should not be permitted to submerge the ideal of justice in the individual case.

12.5.4  Other cases that are extracted below — Re Goodson and Secretary, Department of Employment, Education Training and Youth Affairs 12.5.6C, Re Jetopay Pty Ltd and Australian Fisheries Management Authority 12.5.7C, Hneidi 12.5.9C and the cases in 12.5.8 and 12.5.10–12.5.13 — point to other considerations and competing pressures that arise whenever policy is an element in a decision. Jetopay is an example of the operation of policy when polycentric factors are involved. The nature and scope of merits review is now settled, yet the role of policy in tribunal adjudication continues to be a controversial issue. What amounts to ‘policy’ that should be honoured? What are ‘cogent reasons’ for departure? What constitutes an ‘unjust’ result? Those are difficult issues, at the heart of administration and adjudication. There has been scathing ministerial criticism of tribunals for ignoring policy, just as there has been judicial protest at executive disregard of the independent adjudicatory role of tribunals. The following two quotations succinctly reflect both sides of the debate — the first from Sir Gerard Brennan, in an article honouring the 20th anniversary of the AAT; and the second by Michael Sassella, then a senior officer in the Commonwealth Department of Family and Community Services: Sir Gerard Brennan: Although policy has presented difficulties to the AAT, some benefits have resulted. By exposing ministerial and administrative policy to critical examination, a useful dialectic can be commenced between the Tribunal and the executive government. At the same time, rigidities that would otherwise be productive of injustice in individual cases can be relieved by the Tribunal’s authority to make the correct or preferable decision in the instant case, even though the decision runs counter to existing policy. [Sir G Brennan, ‘Twentieth Anniversary of the AAT — Opening Address’ in J McMillan (ed), The AAT — Twenty Years Forward, Australian Institute of Administrative Law, Canberra, 1998, p 4] Mr Michael Sassella: [M]y thesis is that the tribunals do need a thorough shake-up and that they have brought this upon themselves. The first problem is the tribunals’ lack of sufficient interest in government and departmental policy and practice  … [T]he SSAT and AAT often make a ‘preferable’ decision at odds with the correct, but not so preferable (as the Tribunal sees it) decision made by DSS. This, quite frankly, is driving many administrators to distraction and is seen by some prominent ministers to be an unacceptable subversion of government policy … It should come as no surprise to the tribunals that a considerable number of senior administrators in the Commonwealth Public Service would like to find a way to require the tribunals to apply government policy unless there are cogent reasons for departure. [M  Sassella, ‘Commentary: Administrative Law Developments under a Coalition Government’ in J McMillan (ed), Administrative Law Under a Coalition Government, Australian Institute of Administrative Law, Canberra, 1998, p 65] 809

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Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Administrative Appeals Tribunal

[The minister made a decision to deport Mr Drake, a United States citizen who had been convicted and sentenced to one year’s imprisonment for cultivation of cannabis in the Northern Territory. Section 12 of the Migration Act 1958 (Cth) (Migration Act) provided that ‘the Minister may … order the deportation’ of a non-citizen who had been convicted and sentenced to imprisonment for one year or more. The minister had adopted a Criminal Deportation Policy in 1978 to explain how that discretionary power should be exercised. Inter alia, the policy noted that the minister would address ‘whether in all the circumstances it is in the best interests of the Commonwealth of Australia that the person be deported’ (at [4.02]); and that a variety of matters would be taken into account, including such matters as the nature of the offence, the prospects of recidivism, previous criminal history, the public interest, and the circumstances of the offender and any family (at [4.07]). A statement by the minister, supplementing the policy, stated: ‘I am less disposed to exercise my discretion not to deport … where sex offences against young children or trafficking in or distribution of drugs has been involved’. The minister’s decision to deport Mr Drake was initially reviewed by the AAT constituted by Davies J, who affirmed the minister’s decision. On appeal, the Full Federal Court held that the tribunal had failed properly to perform its function by reason that it had applied the minister’s policy without making an independent assessment of its propriety. The matter was remitted to the tribunal, constituted by Brennan J, who decided, in affirming the minister’s decision, that it would be in the best interests of Australia that Mr Drake be deported.] Brennan J: The multiplicity of factors for consideration in each case evidently precluded the Parliament, as it precludes the Minister, from defining principles of universal application to govern the exercise of the power in every case. In the absence of such principles, the exercise of the power must depend upon the circumstances of each case and the weight then to be accorded to the relevant factors — whether factors emerging from the evidence, or factors revealed by a perception of the relevant interests of Australia … When such a power is conferred upon more than one decision-maker, a tendency to inconsistency in making decisions may appear. There may be differences in the estimates made as to the risk of recidivism although, where experience in calculating such risks is comparable, variations will be a function of the known facts. Decisions will not appear to be inconsistent on that account, if the facts of each case are examined. But to some degree, each decisionmaker will vary from another in his perception of Australia’s interests, the effect of offending conduct, and the effect of a decision, one way or another, upon those interests. These are not generally matters of logical proof or evidentiary demonstration. After allowing for the variations in the facts of particular cases, the degree of inconsistency in decision-making will depend upon the extent of the disparity in the respective decision-makers’ perceptions of Australia’s best interests and the way in which those interests are affected. The creation of a jurisdiction in this Tribunal to review the decisions of the Minister, and the statutory requirement that the Tribunal be constituted by a Presidential Member sitting alone, results in the appointment of a number of Presidential Members to decide the cases brought to the Tribunal from decisions of the Minister under ss 12 and 13 of the Migration Act. The procedural advantages which the Tribunal enjoys in the production and testing of evidence frequently result in the Tribunal’s findings of fact (including its estimation

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of the risks of recidivism) being different from the findings of the Minister, and that is an intended consequence of the vesting of the jurisdiction in the Tribunal. But the possibility of a Presidential Member of the Tribunal attributing to a particular kind of offending conduct a gravity different from the gravity attributed to the same conduct by another Presidential Member, or by the Minister, adds to the prospect of inconsistency in decision-making. In the deportation jurisdiction, the Tribunal (unlike the Tribunals of some countries) cannot be constituted by members drawn from a constant panel whose standards and values may provide a constant reference point for decisions. … Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. In matters of deportation, which so profoundly affect the interests of the deportee and his family and which are of relevance to the community at large, inconsistency born of the application of differing standards and values should be reduced as far as it is possible to do so. … There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process. Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute. [His Honour referred to Murphyores Inc Pty Ltd v Commonwealth 10.3.16C; and the Full Federal Court decisions in Drake 3.3.10C at 589.] Also, it would be inconsistent with ss 12 and 13 of the Migration Act if the Minister’s policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules. … The Minister must decide each of the cases under ss 12 and 13 on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister’s policy, formed for the purposes of ss 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case. That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power. [His Honour referred to British Oxygen 12.2.12C at 625 and 631. His Honour ruled that the policy was not expressed in a way that unlawfully fettered the exercise of the minister’s discretionary power.]

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It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it. In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function. In fulfilling its function, the Tribunal, being independent of the Minister, is free to adopt reasoning entirely different from the reasoning which led to the making of the decision under review. But it is not bound to do so. Of course, the Tribunal would be in error to apply an unlawful Ministerial policy to cases it decides, for an application of unlawful policy vitiates the consequential decision. That problem does not arise in the present case. If the Tribunal applies Ministerial policy, it is because of the assistance which the policy can furnish in arriving at the preferable decision in the circumstances of the case as they appear to the Tribunal. One of the factors to be considered in arriving at the preferable decision in a particular case is its consistency with other decisions in comparable cases, and one of the most useful aids in achieving consistency is a guiding policy. An appropriate guiding policy should thus be applied, but what policy should it be? Counsel for the appellant submitted that it would sap the independence of the Tribunal if it were to apply Ministerial policy, and that submission no doubt grows out of the long and essential resistance of the courts to the attempts of the Executive to influence the course of judicial decisions. The Tribunal is rightly required to reach its decisions with the same robust independence as that exhibited by the courts, but there is a material difference between the nature of a decision of the Tribunal reviewing the exercise of a discretionary administrative power, and the nature of a curial decision. The judgment of a court turns upon the application of the relevant law to the facts as found; a decision of the Tribunal, reviewing a discretionary decision of an administrative character, takes into account the possible application of an administrative policy. The policy which guides the exercise of a discretionary administrative power may rightly seek to achieve an objective of public significance, and a balance may have to be struck between the achieving of that objective and the interests of an individual. … A policy which the Minister may formulate and adopt to guide himself in exercising the power conferred by ss 12 and 13 is subject to Parliamentary scrutiny, and ultimately to Parliamentary control. Under the Westminster system of government, a Minister is politically responsible to the Parliament for the policy adopted to guide the exercise of his discretionary power, and he should be left to formulate that policy in whatever manner he thinks appropriate from time to time. Administrative policies are necessarily amenable to revocation or alteration on political grounds, and they are best formed and amended in a political context. Where a discretionary power guided by an administrative policy is exposed to review by this Tribunal, however, the powers with which this Tribunal is vested by s 43 of the Administrative Appeals Tribunal Act 1975 are wide enough to permit the sterilisation or amendment of policy in its application to the cases which come here. Although the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister’s policy in a particular case, there are substantial reasons which favour only cautious and sparing departures from Ministerial policy, particularly if Parliament has in fact scrutinised and approved that policy. … [I]n general, it would be manifestly imprudent for the Tribunal to override a Ministerial policy and to adopt a general administrative policy of its own. Although the practice of giving reasons for decisions inevitably spins out threads of policy from the facts of the cases, the policy developed in this way originates in the need to ensure that justice is done in individual cases, and it is a different development from a Ministerial declaration of broad policy relating to the generality of cases. The Tribunal

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is no doubt able to refine a broad policy, but the laying down of a broad policy on deportation is essentially a political function, to be performed by the Minister who is responsible to the Parliament for the policy he adopts. The very independence of the Tribunal demands that it be apolitical; and the creation of its deportation jurisdiction is intended to improve the adjudicative rather than the policy aspects of deportation decisions. The Tribunal is not linked into the chain of responsibility from Minister to Government to Parliament, its membership is not appropriate for the formulation of broad policy and it is unsupported by a bureaucracy fitted to advise upon broad policy. It should therefore be reluctant to lay down broad policy, although decisions in particular cases will impinge on or refine broad policy emanating from a Minister. Different considerations might apply if a reviewable discretionary power were not subject to Ministerial supervision. [His Honour referred to Ansett 12.3.4C and continued:] …These considerations warrant the Tribunal’s adoption of a practice of applying lawful Ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of Ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice. Injustice, in the context of ss 12 and 13 of the Migration Act, must mean a disproportion between the detriment suffered by those affected by the execution of a deportation order and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community if the order were affirmed. In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice. When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny. The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power. The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review. In the present case, no grounds going to the merits of the Ministerial policy on criminal deportation were advanced on behalf of the applicant. Having regard to the terms in which the present statement of Ministerial policy is couched, the fullness of consideration of relevant circumstances which it invites, and the unaffected range of discretion which it leaves for exercise in each case, it appears to me to be right to apply it in this case. It enjoins me, in arriving at my decision, to regard a conviction for drug trafficking as a graver factor tending in favour of deportation than convictions for many other kinds of offences. I propose to do so, because that course applies (in the sense that I have explained) the Minister’s policy. I am bound to say that I do so with ease, for the Minister’s policy on drug trafficking corresponds with my own opinion and, I apprehend, with the opinion of other Presidential Members of the Tribunal.

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Control of Government Action

Re Goodson and Secretary, Department of Employment, Education, Training and Youth Affairs (1996) 42 ALD 651 Administrative Appeals Tribunal

[To be eligible for payment of a youth training allowance under the Employment Services Act 1994 (Cth), a person was required to enter into an activity agreement with the department. A requirement to be met to continue receiving the allowance was that the person must satisfy an officer of the department ‘that the person is taking reasonable steps to comply with the terms of the agreement’: s 45(5). In this case, the tribunal received evidence from the primary level decision-maker and from the Authorised Review Officer (ARO) that there were departmental instructions to decision-makers ‘to breach activity agreements in all cases where a client had failed to attend an interview if the only explanation was that the letter had not been received’.] TE Barnett DP: The Tribunal is concerned that the evidence is that there are standing instructions to counter officers and to AROs that an explanation that a letter had not been received is not to be accepted and that in circumstances where there has been one failure to attend an interview that should be treated as not taking reasonable steps to abide by the terms of an activity agreement. If this is truly the case then there is really no genuine attempt to exercise the discretion given under the Act. It is not an infrequent occurrence for letters to go astray in the post and never reach the recipient’s letterbox. It is also possible for letters that have been placed carelessly in a letterbox, if they are protruding, to be removed by children. It is also possible that letters that have been removed from a letterbox by a resident in the house are placed carelessly inside and are not noticed and received by the addressee. There are many explanations why a person may genuinely not receive a letter addressed to him … The case manager and the ARO and the SSAT and this Tribunal, standing in the shoes of the decision-maker, are all under a duty to genuinely consider the circumstances, including the applicant’s explanation and to exercise a discretion to consider whether or not he has taken reasonable steps to satisfy, not only this particular request, but the terms of his activity agreement generally. It may well be that one failure to attend an interview would not transform an applicant who had previously been a reliable performer into one who is not taking reasonable steps to satisfy all the terms of his agreement. In this case if the explanation is true, then he cannot possibly be held liable for failing to attend the appointment as requested, there was no reasonable step he could have taken to comply with the request if he did not know about it. It then becomes a matter of assessing his credibility. This could be done by the case manager at the interview and can be done by the ARO on the papers, by considering the case manager’s report and also by checking it against the applicant’s known record with the department. It causes me great concern that the ARO in this case, although he had the applicant’s record before him on the screen, which he now admits is a good record, did not take the trouble to check it. The tribunal is of the opinion that the discretion was not exercised in a genuine manner in this case and that what occurred was a blind following of an arbitrary departmental instruction to cancel agreements in these circumstances. This tribunal saw no reason to doubt the evidence given by the applicant on oath, in view of the fact that he has apparently had a good record of attending interviews and responding to requests from the department in the past. For these reasons, the Tribunal is certainly not satisfied that he was failing to take reasonable steps to comply with the terms of the activity agreement pursuant to s 45(5) of the Act.

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Chapter 12  Executive Policies, Directions and Representations

12.5.7C

Re Jetopay Pty Ltd and Australian Fisheries Management Authority (1993) 32 ALD 209 Administrative Appeals Tribunal

[The Fisheries Management Act 1991 (Cth) required that a person obtain a fishing permit from the authority in order to undertake commercial fishing in Australian waters. To conserve fishing stock, the authority was authorised to set a limit on the amount of fish that could be caught, and to allocate a quota to each permit holder. Jetopay Pty Ltd was dissatisfied with the quota it was allocated under the 1993 operation plan adopted by the authority. In the following proceedings the tribunal held that it could exercise the discretion of the authority to increase the quota allocation to an applicant, but decided not to do so on the evidence presented to the tribunal. That evidence, received over five days of hearing, canvassed the reasons why the quota scheme had been established, and the applicant’s claim that it was unfairly treated by the quota allocation decision. In the following extract the tribunal summarised the approach it would take in applying the policy on quota allocation adopted by the Australian Fisheries Management Authority for 1993.] Purvis J: Summary of the Principles to be Applied on an Application for Review In a matter such as the present, where the Tribunal is being asked to change, vary or deviate from an administrative decision as to a quota which has been applied uniformly over a number of participants, the Tribunal, in determining what decision is preferred or proper, is required to consider the circumstances as they apply to the applicant and be mindful of the following relevant principles and precepts: (a) Caution is to be exercised against consciously departing from a lawful and administrative policy made by the repository of a discretionary power. (b) A situation is to be avoided where different standards and values apply to decisions that have not been reviewed and a decision that has been reviewed. (c) It is necessary that the quota formula be arrived at after due regard is given to all the many and varied circumstances that arise for consideration, including: (i) the varied circumstances of applicants; (ii) the essential circumstances of the industry; (iii) the nature and availability of the fish resources; (iv) the nature and capacity of the fishermen; (v) the development of a policy by those entrusted with the power to make relevant decisions; (vi) it being fair to persons affected by the exercise of a discretion that decisions be consistent. (d) The policy adopted is not unlawful or improper. (e) The exercise of the discretion in question has taken all relevant factors into account in the individual case. (f) The effect of any decision of the Tribunal upon other participants in the industry. (g) The extent to which the decision under review carries out policy determined in the industry, mindful, nevertheless, of its application to the case of an applicant. (h) Whether an applicant’s circumstances in totality are so particular as to indicate that the rigid application to it of an adopted formula will work so harshly or unfairly as to call for modification of it by way of a special grant of a quota so as to alleviate a felt iniquity.

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(i) A quota system introduced by Government or decided upon pursuant to Government policy will necessarily interfere with the operation of free market forces and will almost certainly create some kind of injustice as between participants … The Tribunal is here satisfied that if the formula be varied in favour of the applicant, different standards and values would apply between participants in the fishery. This is undesirable. The circumstances of the applicant have been considered. Its volume of catch has been reduced by reason of the quota imposed upon all participants and the increase in the number of qualifying vessels. The availability of Orange Roughy is thought to be finite and control of the fishery essential. Fishing rights are to be spread as equitably as reasonably possible through the participants … The quota allocations are made further to the development of a policy by AFMA and decisions formulated by it. The persons affected by the decisions have been dealt with in a consistent manner … The Tribunal is satisfied that AFMA, prior to making its decisions, took into consideration all relevant factors affecting participants such as the applicant … The Tribunal is not satisfied that on the basis of the material placed before it, the applicant’s circumstances are so particular as to indicate that the rigid application of the formula will work so harshly or unfairly as to call for modification of the formula by way of a special grant of quota or otherwise.

12.5.8  Three of the preceding cases — Drake (No 2) 12.5.5C, Goodson 12.5.6C and Jetopay 12.5.7C — adverted to the status of a particular policy as a factor of some importance to be considered by the tribunal. This factor was emphasised also in the respective extracts below by Brennan J in an early case, Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 163; by French CJ in CPCF 12.3.6C at 537–8; and by Gageler J in Plaintiff M64/2015 12.2.17C at [67] (see also the observations of French CJ, Bell, Keane and Gordon JJ from [52]–[58]). Brennan J: A distinction will necessarily be drawn between policies of different kinds. Some policies are clearly made or settled at the political level, others at the departmental level. In the Ipec-Air Case [12.3.3C at 202] Menzies J, with reference to the factors which might properly affect the exercise of discretionary power, observed that — ‘There are … sound grounds for treating a decision to be made at departmental level as something substantially different from a decision to be made at the political level.’ The difference between the factors to be taken into account in the two kinds of policy provides one ground of distinction between them; the difference in Parliamentary opportunity to review the two kinds of policy provides another. Some policies are basic, and are intended to provide the guideline for the general exercise of the power, other policies or procedural practices are intended to implement a basic policy. Different considerations may apply to the review of each kind of policy, and more substantial reasons may have to be shown why basic policies — which might frequently be forged at the political level — should be reviewed. There may, of course, be particular cases where the indefinable yet cogent demands of justice require a review of basic or even political policies, but those should be exceptional cases and this is not one of them. French CJ: The question whether to take non-citizens detained in the contiguous zone to Australia or to another country is a matter appropriate for decision at the highest levels of government by ministers of the executive government, who are responsible to the parliament. The power conferred upon maritime officers by s 72(4) is a power in the exercise 816

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of which they could properly regard the direction of the [National Security Committee of the Cabinet] as decisive and which, as officers of a disciplined service subject ultimately to civilian control, they are bound to implement. … When exercising the power under s 72(4) of the [Maritime Powers Act 2013 (Cth)] in response to a high executive direction in pursuance of government policy, maritime officers do not thereby act under dictation and unlawfully.

Gageler J: [67] Once it is accepted that par (d) of cl 202.222(2) [of Sch 2 to the Migration Regulations 1994 (Cth)] refers to a consideration which is for the evaluative judgment of the Minister or his or her delegate, there can be no doubt that it is for the Minister or his or her delegate to determine both the category of persons who meet the description of ‘persons such as the applicant’ and the capacity of the Australian community to provide for the permanent settlement in Australia of persons within that category. Given that the capacity of the Australian community to provide for the permanent settlement in Australia of any category of persons must always be finite, it must also be for the Minister or his or her delegate to determine how to prioritise allocation of that finite capacity amongst persons within that category for the purpose of coming to the requisite state of satisfaction as to whether there are compelling reasons for giving special consideration to granting a permanent visa to a particular applicant within that category. [68] It is open to the Minister in the exercise of non-statutory executive power to lay down a policy for the guidance of his or her delegates in making those determinations. Indeed, it is inconceivable that the Minister would not do so.

Doubt was expressed in relation to the significance of the identity of the policymaker in Hneidi 12.5.9C, at least in relation to the status of ministerial as against departmental policies. 12.5.9C

Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115; [2010] FCAFC 20 Federal Court of Australia (Full Court)

[Dr Hneidi, a permanent resident who was married to an Australian citizen, applied for citizenship under s 13(9) of the Australian Citizenship Act 1948 (Cth), which provided: ‘[T]he Minister may, in the Minister’s discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person … who is a permanent resident and is the spouse, widow or widower of an Australian citizen’. The couple resided in Lebanon and Dr Hneidi had only visited Australia once for a short period. His application for citizenship was motivated by his insecurity during hostilities in 2006 in Lebanon. The minister’s delegate refused the application. The refusal was affirmed by the AAT, which considered the Australian Citizenship Instructions (ACI). The ACI were a policy approved by a senior departmental officer, but not the minister. The policy stated at 4.5.3: ‘The primary policy objective underpinning the residence requirements is the development and maintenance of close and continuing ties with Australia. This policy objective can be achieved through the applicant’s relationship with their Australian citizen spouse, children if any, extended family, and through return visits to Australia’. Dr Hneidi appealed on the basis that the AAT had given too much weight to the policy that was not expressly endorsed by the minister. The appeal was rejected by the Federal Court at first instance and on appeal to the Full Court.]

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Spender, Emmett and Jacobson JJ: [Their Honours discussed the principles from the Full Federal Court decisions in Drake; namely: (1) The decision-maker is entitled to take into account government policy as a relevant matter. (2) However, the tribunal is not entitled to abdicate its function by deciding solely because of the policy. (3) The role of government policy in individual tribunal decisions cannot be the subject of any general policy. (4) In treading the often fine line between application of a policy and coming to a correct or preferable decision, the tribunal should make it clear that ‘it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion’: at 120–1.] There is nothing in the statement of these principles which draws any distinction between departmental policy and Ministerial policy. In his discussion of the relevance of policy in Drake (No 2), Brennan J at 643–644 referred, in an obiter remark, to the fact that under the Westminster system, a Minister is politically responsible to the Parliament for the policy adopted by him or her to guide the exercise of the discretionary power. But this statement is not of itself a sufficient basis for drawing the distinction relied upon by Dr Hneidi. Brennan J was dealing only with the review of a Minister’s order and the question of what part the policy statement promulgated by the Minister should play in considering the circumstances of the case. No occasion arose for a determination of any difference between the role of departmental and Ministerial policy in the consideration of that question. … We do not consider that the gloss on this statement added by the words ‘especially if the policy is shown to have been exposed to parliamentary scrutiny’, support Dr Hneidi‘s contention as to the distinction between departmental and Ministerial policy. Again, this is because his Honour’s remarks were confined to a discussion of the place of Ministerial policy in the review of administrative action. The only authority to which we were referred that supports the distinction is the decision of Brennan J, sitting as President of the Tribunal, in Becker. His Honour there referred (at 701) to the difference between policies made or settled at the political level and those made at the departmental level. His Honour said that one reason for the distinction lies in the opportunity for Parliament to review Ministerial policy. He went on to say: Different considerations may apply to the review of each kind of policy, and more substantial reasons may have to be shown why basic policies — which might frequently be forged at the political level — should be reviewed. In our view, the observations in Becker do not support the proposition relied upon by Dr Hneidi. There are a number of reasons for this. First, the observations are obiter and are not expressed as unqualified considered dicta. Second, in any event, the highest that the observations rise for present purposes is that different considerations may apply to the review of each different kind of policy. This says nothing about the relevance of, or weight to be accorded to, Ministerial policy as against departmental policy. Third, the authority to which his Honour referred in apparent support of the distinction was concerned with a different question from that which is presently in issue. … It is true that a number of authorities to which the learned primary judge referred may be thought to be authority for the proposition that ‘great weight’ ought to be given by the Tribunal to policies developed in the political arena. … But that is not to say that lesser weight must be given, regardless of the factual circumstances, to statements of departmental policy. In any event, we do not consider that any error is disclosed in the approach adopted by the Tribunal. … The Tribunal concluded on the facts of the case that Dr Hneidi failed to satisfy the residency

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requirements and had no close ties with Australia. The effect of Dr Hneidi’s argument about his insecurity in times of crisis was, as the Tribunal recognised, a submission that the policy should be ignored. Whether or not there is a distinction between the weight to be accorded to departmental and Ministerial policy, the authorities make it plain that the Tribunal is to take the policy into account and give it an appropriate level of weight. That is what the Tribunal did. To do otherwise would be to permit ‘administrative chaos’ and inconsistency in administrative decision making. … The approach urged on us by Dr Hneidi’s counsel would be to say that the Tribunal was not entitled to give any weight to the Instructions. That is plainly contrary to established authority.

12.5.10  The reasoning in Hneidi 12.5.9C is consistent with academic criticism of the ‘high’ and ‘low’ policy distinction, that is, based on the identity of the policy formulator. Edgar criticises the distinction, from both angles. He argues that to accord weight to ‘high’ policy made at the ministerial level is based on questionable assumptions regarding their democratic legitimacy and ministerial accountability; and to accord less weight to ‘low’ policy formulated at the departmental level may not be appropriate in many regulatory contexts: A Edgar, ‘Tribunals and Administrative Policies: Does the High or Low Policy Distinction Help?’ (2009) 16 Australian Journal of Administrative Law 143. 12.5.11  Beyond the identity of the policy formulator, the general distinction drawn by Brennan J, namely, that the nature and characteristics of the policy affect its weight, has been applied in a number of cases. For example, in Re Everfresh Seafoods Pty Ltd and Australian Fisheries Management Authority (1997) 45 ALD 418, a full tribunal observed at 423 that a media statement was ‘not expressed to be a statement of government policy of a sort which would or should be taken to be ordinarily binding on the tribunal’. In Re John Holman & Co Pty Ltd and Minister for Primary Industry (1983) 5 ALN N29 the tribunal declined to apply an inadequately researched policy to restrict the issue of export licences, described by the tribunal as a policy that ‘revolved around the general proposition that a proliferation of export licences was not in the best interests of the industry’. In St Helen’s Area Landcare and Coastcare Group Inc v Break O’Day Council (2007) 151 LGERA 421 a government land use policy had ‘so much vagueness and uncertainty’ that it was not meant to stipulate obligatory procedures for local councils and a planning tribunal. 12.5.12  By contrast, the decision of the full tribunal in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 spelt out the reasons why the tribunal should apply a policy on fishing quota allocation that had been forged in the public arena after widespread consultation: Davies J, RA Layton DP and FA Pascoe: [T]his is pre-eminently the type of matter in which the policy adopted by the primary decision-maker ought to be applied by this Tribunal. The policy affected an industry. It was a policy decided upon at the highest level, being resolved upon by the Australian Fisheries Council comprised of the six relevant Ministers of the States and the Federal Minister for Primary Industry and the Federal Minister for Science and Technology. It was a policy which could only be developed in the political arena after consultation with industry. The Tribunal, which is not accountable politically and which cannot proceed by obtaining industry consensus, 819

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must give such a policy great weight … No doubt the policy ought not to be followed if evidence showed that it was entirely misconceived or proceeded on a wholly erroneous basis. However, that is not shown in the present case.

12.5.13  The other important factor that is stressed in the case law is the justice of a policy and its impact in the circumstances of a particular case. In some situations this has led the tribunal to accept the wisdom of a policy, but to allow an exception in the individual case. In Re Haines and Australian Fisheries Management Authority (1996) 43 ALD 83 at 110, the tribunal held that there were cogent reasons for departing from a fisheries policy in circumstances where ‘there is no evidence to indicate that any other applicant falls into the unique category of that of the applicant regarding any previous exercise of the discretion’. However, there are cases (as in Goodson 12.5.6C) where the tribunal has rejected a policy as itself unjust. In Re Baker and Department of Immigration (1995) 37 ALD 744 the tribunal commented adversely on guidelines which stated that, for migrant entry purposes, ‘a person would, normally, as a matter of policy, be taken to be not of good character because of their past criminal conduct if the person … has at any time been convicted of a crime and sentenced to death, or to imprisonment for life or for a period of not less than 1 year’. The tribunal had this to say: BJ McMahon DP: [T]hese guidelines go well past the bounds of reason if applied literally. To prescribe that bad character will be forever assumed in the event of one conviction carrying a sentence of 12 months or more, no matter when that conviction took place is quite unreasonable. It is necessary in assessing character to look at all relevant circumstances including the age of the convictions.

12.5.14  As noted earlier (see 12.4.1), the issues to do with administrative policy have been complicated by the enactment of provisions that give statutory backing to administrative policies. As often as not, those provisions were directed primarily at administrative tribunals. Generally, a statutory direction can be binding on a tribunal to the same extent it is binding on other decision-makers: Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112. 12.5.15  The legislation constituting three state tribunals goes further and establishes a mechanism for dictating policy to the tribunal. The Victorian Civil and Administrative Tribunal Act  1998 (Vic) provides that the tribunal is obliged to apply a valid policy in reviewing a decision if a minister has certified the authenticity of the policy, the policy was relied upon by the primary decision-maker, and the policy was gazetted or known to the applicant for review: s 57. The Administrative Decisions Review Act 1997 (NSW) provides similarly that the tribunal must give effect to a valid policy that has been certified by a minister as government policy, unless the policy produces an unjust decision in the circumstances of the case: s  64. Section 28 of the State Administrative Tribunal Act 2004 (WA) largely mirrors the Victorian provision; see  also Magistrates Court (Administrative Appeals Division) Act  2001 (Tas) s  27; Social Security (Administration) Act 1999 (Cth) s 9. Leppington Pastoral Co Pty Ltd v Department of Administrative Services (1990) 23 FCR 148 illustrates how provisions of that kind can pose a difficulty for a tribunal. An Act provided that the AAT, in reviewing a decision by a minister compulsorily to acquire land, could not review a declaration by the minister that the land was required ‘for the implementation of a policy’. The Full Federal Court held that this would prevent the tribunal from reviewing a government policy that a second international airport was required for Sydney, but not a decision that a particular parcel of land should be acquired for building the second airport at Badgerys Creek. 820

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REPRESENTATIONS AND ESTOPPEL 12.6.1  Government representations, advice and assurances share two factors in common with government policies — they are administrative and not legislative in character; yet they can give rise to expectations as to how government will act in the future. The law has responded by attaching legal consequences to some representations and policies. A representation by a government agency as to how it will act in the future will usually be a relevant consideration which should later be taken into account by a decision-maker: see 10.4.5. There may be a natural justice obligation on a decision-maker to give a hearing to a person before action is taken that is inconsistent with an earlier representation by the agency: see  11.3.7ff. Loss incurred by a person from reliance on a negligent misrepresentation by an agency can be compensated by an award of damages in a tort action: see  17.8.9. A representation by a government agency will also be binding if it is embodied in a contract; an important development in this respect was the decision of the Federal Court in Hughes Aircraft (see 2.5.23 and 12.4.7) that a representation by a government agency as to how a commercial tender process would be conducted gave rise to a process contract that contained an implied term of fair dealing. 12.6.2  Administrative law has thrown up a further issue. Can a government agency be estopped — or prevented — from acting inconsistently with a representation? In effect, should representations be given substantive protection? In private law there are many situations in which the principles of estoppel operate to preclude a party from asserting their legal rights, notably in relation to contractual rights. Estoppel principles likewise apply to government agencies in their purely commercial or private law dealings. Private law principles can also affect the government in a way that noticeably affects its governmental status. A  leading example is Commonwealth v  Verwayen (1990) 170 CLR 394, where the High Court held by majority that in a tort claim arising from the collision between HMAS Voyager and HMAS Melbourne in 1964, the Commonwealth could not act inconsistently with an earlier representation to the plaintiff that it would not raise as a defence that the claim was timebarred or that there was no duty of care arising in a combat exercise. Deane and Dawson JJ held that the Commonwealth was estopped from relying on the defences, while Toohey and Gaudron JJ held that the Commonwealth had waived the right to do so; Mason CJ, Brennan and McHugh JJ dissented. 12.6.3  In a host of other situations that are peculiarly governmental, more difficult questions arise. Should estoppel operate where a government agency has represented to a person that a licence, permit or concession will be granted? That a licence is not required? That only steps ‘Y and Z’ have to be completed to obtain the licence? That a particular officer who purported to grant the licence had authority to do so? Or that a partial refund of the licence fee is owing? In Roberts v Repatriation Commission (1992) 39 FCR 420 the Full Federal Court adverted to the difficulty of taking a new step in this area: Black CJ, Gray and Ryan JJ: It is not open to this Court to erect …a general principle, of uncertain application, based upon a balancing of elements of the public interest, by which the Executive could, by being bound to a representation it had itself made, act beyond the power conferred upon it by the Parliament and also appropriate public money without the authority of the Parliament. 821

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12.6.4  The justification for the rule that a principle of estoppel does not prevent the government from acting inconsistently with a prior representation was examined comprehensively by Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic 12.6.7C. Drawing on United States and Anglo-Australian common law jurisprudence, Gummow J referred to the principle of sovereign immunity, to the legal doctrines of the rule of law, ultra vires and the separation of powers, and to practical considerations such as the need to avoid fraud and collusion and to preserve administrative efficiency and flexibility. The rule of law and ultra vires doctrines strike a similar chord to the ‘non-fettering’ principle examined at 12.2.6; namely, that government officers have a duty to be guided by and to uphold the law and not to be disabled by a policy that is of executive origin. Likewise, the separation of powers argument connects with other administrative law principles, inasmuch as a finding by a court that government was estopped by a representation of fact would involve, in effect, an exploration of the merits of an administrative claim: see 7.2.2. 12.6.5  There are nevertheless important dicta which leave open the possibility that a principle of estoppel can operate in respect of a representation or conduct which is within the discretionary powers of a decision-maker (intra vires). In Kurtovic 12.6.7C, Gummow  J noted that, upon a proper construction of the statute in question, the conclusion may be open that a statutory power could be exercised once only, that compliance with a statutory requirement can be waived by the decision-maker, or that an authorised delegate had power to make a decision that is binding on the agency to which the delegate belongs. His Honour raised the further possibility that a principle of estoppel might suitably apply to an ‘operational’ decision that implements an earlier planning or policy decision that was made in the exercise of a statutory discretion (a view tentatively supported in JL Holdings Pty Ltd v Queensland [1998] FCA 220). Chief Justice Mason in Quin 12.6.8C raised the possibility of a principle of estoppel being grounded in a broader notion of public interest. In the event that estoppel gains a foothold in public law it appears that courts require that the other elements of the private law estoppel doctrine must be present — there must be a representation as to a fact, not mere intention; the representation must reasonably induce reliance; and the person seeking to enforce the representation must have actually relied on it, and face the prospect of detriment should the representation be of no effect: see Cummeragunga Pty Ltd (in liq) v Aboriginal and Torres Strait Islander Commission (2004) 139 FCR 73. 12.6.6  The debate about estoppel echoes the similar debate in administrative law as to whether legitimate expectations are capable of substantive enforcement. See  generally P  Finn and K Smith, ‘The Citizen, the Government and “Reasonable Expectations”?’ (1992) 66 Australian Law Journal 139; G Weeks, ‘Holding Government to its Word: Legitimate Expectations and Estoppels in Administrative Law’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context, Cambridge University Press, Melbourne, 2014. 12.6.7C Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; 92 ALR 93 Federal Court of Australia (Full Court) [A deportation order had been made against Mr Kurtovic, arising from his conviction for the manslaughter of his parents-in-law. Following a favourable recommendation by the Commonwealth Administrative Appeals Tribunal, the minister revoked the deportation order.

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The departmental letter informing Mr Kurtovic of that decision further advised that ‘any further conviction which renders you liable to deportation will lead to the question of your deportation being reconsidered by the Minister’. Mr Kurtovic was not convicted of any further offences, yet, in the following year, the minister made a fresh deportation order on the basis of the previous conviction. At first instance, in an application for review under the ADJR Act, Einfeld J held that the departmental letter gave rise to an estoppel against the minister’s second order. On appeal, the Full Federal Court (Neaves, Ryan and Gummow JJ) rejected the estoppel argument on two grounds: that the departmental letter did not carry the implication that Mr Kurtovic would be allowed to stay in Australia barring any further cause to be deported; and, in any case, that a representation to that effect could not fetter the minister’s statutory power to order the deportation of a convicted non-citizen. However, the Full Court went on to hold that the minister’s second order was invalid on the different ground of breach of natural justice.] Gummow J: Estoppel in administrative law Conventional estoppel, estoppel by representation (whether as to present facts — ‘common law estoppel’ — or as to the future — ‘equitable or promissory estoppel’), proprietary estoppel, and issue estoppel are each a genus of the species ‘estoppel’ which may conceivably have a role in administrative law. In what follows, I am concerned principally with estoppel by representation, particularly as to future conduct … It may be conceded that an estoppel by representation may be founded upon an implication drawn from an express statement … Even if the statement in question did bear the implication contended for, there are considerable difficulties in the way of propounding an estoppel against the exercise of an administrative discretion. As a starting point, I should note that the present case is not one where a party asserts that the executive or other public authority is estopped from asserting that a particular action, of which the other party seeks performance, would be ultra vires as exceeding the powers given by or pursuant to a law of the Parliament. Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying. Rather, in the present case, the respondent seeks to prevent the appellant from making a decision within the latter’s power which would have the effect of altering a previous intra vires decision. The respondent is then met with the objection that to allow an estoppel in this context would hinder or prevent further exercise of the statutory discretion. The principles governing the application of estoppel by representation, or promissory estoppel, and related doctrines, have evolved largely in the context of private law. Difficult issues arise as to the extent to which those principles are to be applied in administrative law. The generally accepted proposition is that: Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public: Halsbury’s Laws of England, 4th ed, vol 44, ‘Statutes’ para 949. … … The traditional view in the United States has been that ‘the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit’: Utah Power & Light Co v United States 243 US 389 at 409 (1917). The basis upon which that doctrine rests

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is considered in the following passage from Mr D K Thompson’s article ‘Equitable Estoppel of the Government’ (1979) 79 Col Law Rev 551 at 554: Several justifications have been offered for the traditional rule. Constitutional underpinnings have been found in the doctrine of sovereign immunity, based on an argument that estoppel of government claims and defenses would result in the impermissible forfeiture of federal rights without sovereign consent. However, the force of this argument has diminished considerably with the waning of the sovereign immunity doctrine itself. Firmer constitutional ground for the no-estoppel rule has been derived from the doctrine of separation of powers, since the effect of an estoppel is generally to prevent disavowal of obligations even though they transgress the limits of authority delegated executive agencies by Congress … Beyond constitutional considerations lie more general concerns of public policy. In one of its earlier decisions on the issue, the Supreme Court stressed that holding the government bound by improper acts of its agents might promote fraud and collusion … Fear of uncontrollable liability and crippling losses to the public treasury have also played a role in sustaining the rule … In addition, considerations of administrative efficiency and flexibility have buttressed resistance to the use of estoppel against the government. In this regard, courts have reasoned that executive responsibilities for adapting and correcting regulations and procedures might be impaired if estoppel could be used to block the retroactive implementation of such changes. … However, it would be taking too narrow a view of the authorities to say that the concerns which find expression in the limitation put upon the doctrine of estoppel are limited to ensuring the performance of a statutory duty. The same limitation has been said by high authority to apply where there is no duty to act, but merely a discretionary power. This has been put on the basis that in a case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding … As I have indicated, the estoppel upon which reliance is placed by the respondent as his primary argument in the present case would, if allowed, not produce a result which would be ultra vires the powers of the appellant under the Migration Act. The present primarily is a case of an alleged estoppel which would prevent the exercise of a discretion reposed in the appellant by the Migration Act. Nevertheless, in view of other arguments submitted by the respondent, it is appropriate to deal briefly with what have been said to be exceptions or qualifications to the general rule against estoppels working in favour of ultra vires decisions. Estoppel and ultra vires It is best first to distinguish cases where a decision maker cannot make a second decision by which he resiles from the first decision, not because he is estopped from doing so but because the power in question is spent by the making of the first decision. … There was ‘an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise’: Halsbury’s Laws of England, 1st ed, vol 27, p 131. However, sub-s 33 (1) of the Acts Interpretation Act 1901 … provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed ‘from time to

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time as occasion requires’. But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue. … Then there are cases where, upon its proper construction, the legislation may permit the decision maker to waive procedural requirements or observance of those procedural requirements which may be regarded as directory rather than mandatory; see Western Fish Products Ltd v Penwith District Council … There is a number of Australian cases where legislative requirements as to manner and form of dealings with land by public authorities have been treated as mandatory and there was no room for the application of principles of estoppel to found acquisition of interests in that land by persons dealing with the public authorities: … NSW Trotting Club Ltd. v Glebe Municipal Council … Here again, it will be observed, what is found is not an exception to principles of ultra vires, in favour of an estoppel doctrine, but a process of construction of the statute in question. That process produces the result that the relevant decision is not ultra vires, without recourse to any doctrine of estoppel based upon representations which involved a relaxation of what in any event was a non-mandatory requirement. The present is not a case involving non-observance by the decision maker of any directory requirement. Further, the alleged defect in question which is said to render the decision ultra vires may spring from what appears to be a lack of authority in the decision maker. What, in such a situation, is the role, if any, of apparent or ostensible authority? … In Lever Finance Ltd v Westminster (City) London Borough Council … Lord Denning MR referred to an amendment to the Town and Country Planning Act 1968 (UK), which enabled a local authority to delegate to their officers many of their functions under the planning legislation. His Lordship said: An applicant cannot himself know, of course, whether such a delegation has taken place. That is a matter for the ‘indoor management’ of the planning authority. It depends on the internal resolutions which they have made. Any person dealing with them is entitled to assume that all necessary resolutions have been passed. Just as he can in the case of a company: see Royal British Bank v Turquand (1856) 6 E & B 327. His Lordship also said (at 230): There are many matters which public authorities can now delegate to their officers. If an officer, acting within the scope of his ostensible authority, makes a representation on which another acts, then a public authority may be bound by it, just as much as a private concern would be. Speaking of that decision, Sir William Wade (in his Administrative Law, 6th ed, 1988, at p 384) has said that it sacrificed the public interest since the court deprived the responsible authority of the powers of control which the statute had assigned to it and it only, whereas the courts normally were careful to prevent any legal doctrines from impeding the free exercise of statutory discretion in the public interest by the proper body. In Western Fish Products Ltd

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v Penwith District Council, supra, it was said by a differently constituted Court of Appeal that not every representation made by a planning officer ‘within his ostensible authority’ would bind the planning authority which employed him and that there must be some evidence ‘justifying the person dealing with the planning officer for thinking that what the officer said would bind the planning authority, so that the holding of an office, however senior, could not be enough by itself’. …

12.6.8C

Attorney-General (NSW) v Quin (1990) 170 CLR 1; 93 ALR 1 High Court of Australia

[The facts and judgments in this case appear more fully in 7.2.5C. Mr Quin, a former New South Wales magistrate who was seeking reappointment, claimed that the decision whether to reappoint him should be made in accordance with an earlier policy on the appointment of magistrates, and not in accordance with a later policy introduced by the New South Wales Attorney-General. The High Court by majority (Mason CJ, Brennan and Dawson JJ; Deane and Toohey JJ dissenting) rejected that claim. Chief Justice Mason alone discussed the issue of whether a principle of administrative estoppel would prevent the New South Wales Government from applying the later policy.] Mason CJ: I am unable to perceive how a representation made or an impression created by the Executive can preclude the Crown or the Executive from adopting a new policy, or acting in accordance with such a policy, in relation to the appointment of magistrates, so long as the new policy is one that falls within the ambit of the relevant duty or discretion, as in this case the new policy unquestionably does. The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power. [His Honour referred to a number of authorities supporting that proposition, including Kurtovic 12.6.7C and the following statement by Lord Denning MR in Lever Finance v Westminster (City) London Borough Council [1971] 1 QB 222 at 230: ‘[A] public authority … cannot be estopped from doing its public duty’. His Honour continued:] No doubt the principle gains some of its force from the circumstance that the discretion has a legislative foundation and it is not readily to be supposed that the legislature intended that a proper exercise of the discretion in the public interest was to be frustrated, hindered or circumvented by executive action. Nonetheless there is no reason why the same principle should not apply to common law powers and functions of the Crown or the Executive when they involve the making of decisions in the public interest. What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who

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acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion: … but see also the criticism of this approach by Gummow J in Kurtovic … at 121–122. However, in the present case there is no justification for granting relief in a form which would compel the Executive to adhere to an approach to judicial appointment which it has discarded in favour of a different approach which, in the opinion of the Executive, is better calculated to serve the administration of justice and make it more effective. … One theory of judicial review would accord to individuals who entertain a legitimate expectation relief going beyond procedural protection so as to protect the substance of the expectation: see Forsyth, ‘The Provenance and Protection of Legitimate Expectations’, (1988) 47 Cambridge Law Journal 238, at pp 257 et seq. Such a theory depends upon the source of the legitimate expectation being ‘either … an express promise given on behalf of a public authority or … the existence of a regular practice which the claimant can reasonably expect to continue’: [Council of Civil Service Unions v Minister for the Civil Service 2.3.10C] at p 401. Given such a source, it is argued that procedural protection of the legitimate expectation may not suffice to ensure fairness in the treatment of the person who holds the legitimate expectation and that it should be fulfilled by court order, if necessary, unless the court perceives some overriding public interest. But if the relevant power be such that it may lawfully be exercised according to the repository’s view of what is appropriate, a court which orders the repository not to disappoint an expectation legitimately held by an individual would be assuming to direct the exercise of the power. That theory would effectively transfer to the judicature power which is vested in the repository, for the judicature would either compel an exercise of the power to fulfil the expectation or would strike down any exercise of the power which did not. A legitimate expectation not amounting to a legal right would be enforceable as though it were, and changes in government policy, even those sanctioned by the ballot box, could be sterilized by expectations which the superseded policy had enlivened.

12.6.9  The claim of administrative estoppel has been raised but rejected in subsequent cases. In Formosa v  Secretary, Department of Social Security (1988) 46 FCR 117, the Full Federal Court held that an application for social security that was invalidly lodged did not become effective because the department had misled the applicant into believing that it was a valid application. In Bristol-Myers Squibb Pharmaceuticals Pty Ltd v  Minister for Human Services and Health (1996) 42 ALD 540 (affirmed on appeal (1997) 49 ALD 240) the plaintiffs were unsuccessful in a suit arguing that effect should be given to a representation allegedly made to them that they would receive government financial assistance if their application conformed to prescribed criteria. The court held that substantive effect could not be given to either the representation or their expectation, and furthermore that it was always open to government at a later stage to decide that budgetary considerations required that a decision be made inconsistent with a representation. In Eastman v  Commissioner for Housing for the Australian Capital Territory (2006) 200 FLR 272 it was held that a public housing authority could not be estopped from acting inconsistently with a representation that it would leave a flat unoccupied until the former tenant was released from prison. In Plaintiff S111/2017 v Minister for Immigration and Border Protection [2017] FCA 813, Flick  J referred at [26] to the ‘not inconsiderable difficulties’ of adopting a doctrine of estoppel in Australian law, and held that in any case it would not arise in the case before him as the minister had not made any relevant earlier representation. The reluctance expressed in these cases is consistent with the conclusion 827

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of Sir Anthony Mason, that there was an earlier time when adoption of some form of estoppel in Australian administrative law appeared possible but more recent cases have foreclosed such a change: A Mason, ‘Estoppel in Administrative Law’ in M Groves (ed), Law and Government in Australia, Federation Press, Sydney, 2005. 12.6.10  Judicial reluctance to develop a doctrine of administrative estoppel can be seen also in cases in which courts are strongly critical of government for not honouring an earlier representation but do not provide a legal remedy. State of Victoria v Tabcorp Holdings Ltd [2014] VSCA 312 concerned a monopoly gaming and waging licence granted by the State of Victoria to Tabcorp for a period of 18 years, to expire in 2012. The government received a payment for the monopoly, and Tabcorp would receive a termination payment when the monopoly licence expired. The monopoly was effectively terminated by legislation in 2009 which enabled ‘gaming machine entitlements’ to be issued to private venues. The Victorian Court of Appeal dismissed an action for the termination payment that was based on an expectation that the statutory monopoly would be preserved: Nettle, Osborn and Whelan JJA: [34] [T]he legislation under which the licence was granted never provided that the possibility of satisfying that expectation would be forever preserved. It was always open to Parliament to eliminate the possibility of issuing new wagering and gaming licences, just as it was always open to the State to choose not to issue new wagering and gaming licences while it remained possible for such new licences to be issued … [35] The emasculation of [Tabcorp’s licence] which has now been accomplished by the enactment … may do little to enhance the State’s reputation for reliability and commercial morality in its dealings with private investors. … But for all of that, the legislation is too clear to permit the construction for which Tabcorp contends. [36] Tabcorp never sought, still less achieved, a binding contractual agreement with the State on the termination arrangements. It put its trust in the State.That trust was misplaced. … [94] … [T]he State not only created expectations but profited from the reliance placed upon those expectations by members of the investing public. The Treasurer’s letter and the prospectus created the expectation that compensation would be paid upon the expiry of the licences after 18 years. The forecast returns and the forecast balance sheet were prepared upon the basis of that expectation. Members of the public invested in reliance upon the expectation which the State created and actively encouraged. The State has not met that expectation. Be that as it may, however, the claims made by Tabcorp in this proceeding must be dismissed.

Compare the related decision in State of Victoria v Tatts Group Ltd [2014] VSCA 311, in which Tatts was granted an award of damages for breach of contract. On appeal to the High Court, the court upheld the Victorian Government’s position in both decisions, finding that neither Tabcorp nor Tatts was entitled to termination payments for discontinuing the duopoly. The High Court noted the inherent risk borne by those contracting with government, particularly in complex or contested policy areas: [92] … Whether the duopoly would continue was a matter ultimately to be determined by the legislature; and the risk that the legislature might decide not to continue the duopoly was left squarely with the duopolists. Tabcorp seeks to claim compensation for a commercial risk that was always borne by it. [Tabcorp Holdings Limited v Victoria (2016) 328 ALR 375; [2016] HCA 4] 828

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[72] … It could be expected that, following the experience of years of the duopoly, a political judgment might be made that the continuation of the duopoly was not in the public interest. Arrangements which restrict competition have generally been regarded as contrary to the public interest, and the socio-economic issues attending gambling (and the extent of State involvement in, and revenue raised by, those activities) might be expected to be of concern to legislators. [Victoria v Tatts Group Limited (2016) 328 ALR 564; [2016] HCA 5]

12.6.11  Similar remarks were made in Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303, which concerned an application by the plaintiff for Australian citizenship, based on his belief that he satisfied the qualifying criterion of being a permanent resident. The Full Court acknowledged that, through a combination of serious administrative errors, representations had been made to the plaintiff about his status that were serious and solemn, but also incorrect; and that he could suffer grave hardship as a result. These circumstances, however, did not prevent the minister from applying the legislation and refusing citizenship. Justice Burchett (Tamberlin J agreeing) added: ‘Although an estoppel will not be enforced in these circumstances, there is no doubt about the duty of administrators to take account of the unfairness, and even misery, that serious mistakes in the action of government may cause’: at  21. For a comprehensive discussion of this topic, see  N  Seddon, Government Contracts: Federal, State and Local, 6th ed, Federation Press, Sydney, 2017, especially chs 1, 4–6. 12.6.12  The problem of incorrect government advice and representations has been identified on many occasions by the Commonwealth Ombudsman as one of the most important issues in public administration. The Ombudsman has made a number of proposals for dealing with incorrect advice, including the adoption by government of a revised system of payment of compensation for defective administration; the development by agencies of a practice of keeping a written record when advice is given to a person who is ‘at risk’; discontinuation by agencies of the contradictory practice of giving oral advice yet erecting signs which say that oral advice cannot be relied upon; and more coordination between agencies in giving advice on issues that straddle more than one government program. The development of administrative remedies for loss arising from incorrect advice has also been taken up in a number of own-motion reports by the Commonwealth Ombudsman: Issue relating to oral advice: Clients beware (1997); A  good practice guide for effective complaint handling (1999); Balancing the risks (1999); and To compensate or not to compensate (1999). 12.6.13  Government agencies have often responded to the Ombudsman’s concerns by pointing to the practical difficulties they face in giving oral advice, as noted in the following comment by the Secretary to the Department of Social Security: [O]nly the inquirer knows his or her complete situation. Given the complexity inherent in the qualification criteria for most government payments a public servant answering a question cannot be dogmatic about entitlement. A staff member can only respond subject to a disclaimer. Where the staff member may go wrong is if he or she deters an inquirer from testing his or her possible eligibility by lodging a written claim. Such action would probably result in the payment of compensation under Finance Direction 21/3 if the inquirer loses by failing to claim. [Cited in AS  Blunn, ‘Accountability Processes and the Administration’ in K  Cole (ed), Administrative Law and Public Administration: Form vs Substance, Australian Institute for Administrative Law, Canberra 1995] 829

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Control of Government Action

CONTRACTUAL FETTERS ON GOVERNMENT AUTHORITY 12.7.1  Contractual undertakings made by government are another means by which its freedom of action is liable to be fettered. Whether that outcome should be permitted throws up competing considerations. On the one hand, there is a strong public interest in upholding the fundamental principles of contract law, that commercial agreements entered into freely by parties are binding, and that breach of a contract can result in damages or other remedies. On the other hand, powers are conferred upon government not for a private end but for the public good, and should not be fettered by individual agreements. 12.7.2  The extract from Ansett 12.7.4C points to the complexity of this issue, and to the different ways it can be approached. It is accepted, in the first place, that government can enter into binding contracts, with the result that its executive freedom to take a different course of action will be fettered. Next, a contract cannot be inconsistent with a government statutory function, unless the contractual undertaking has statutory backing. Yet, whether an inconsistency exists and, if so, whether it is authorised by statute may itself raise difficult questions, as the examples given by Mason J in Ansett illustrate. It is always open to argue that the statutory birthright of an agency includes the power to make binding promises, as Seddon has observed: [5.11] A possible interpretation … is that a contract may simply be a way of implementing a policy or exercising a discretion so that it is not to the point to argue that the very same contract cannot impinge on the policy or discretion. The relevant discretion is exercised (through contract), and thus the power to exercise it is spent with the result that any attempted subsequent exercise of the same power would be simply invalid. [N  Seddon, Government Contracts: Federal, State and Local, 6th ed, Federation Press, Sydney, 2017, p 268]

An example of that point occurred in Civil Aviation Safety Authority v Sydney Heli-Scenic Pty Ltd [2006] NSWCA 111, which held that an agreement between a government agency and an aircraft licence holder to approach the AAT and ask it to set aside a decision was binding and did not fetter the agency’s statutory duty to safeguard air safety. 12.7.3  There is finally the question of remedies: if government relies on its statutory powers to thwart a contractual obligation, should it nevertheless be liable in damages to the innocent party? Or would that in itself be a deterrent, or de facto fetter, on the exercise of the statutory power? 12.7.4C

Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; 17 ALR 513 High Court of Australia

[The Commonwealth had entered into a number of agreements with Ansett, in which both undertook to strive to maintain a two-airline policy on Australian trunk routes. The agreements had been approved by statute. Ansett alleged that the Commonwealth was proposing to allow the importation of aircraft into Australia by a third party in breach of the agreements; in these proceedings Ansett sought to restrain the alleged breach. A discretion to allow the importation of aircraft into Australia was conferred on the Secretary of the Department of Transport by the Customs (Prohibited Imports) Regulations.

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A majority of the High Court (Gibbs, Mason and Murphy JJ; Barwick CJ and Aickin JJ dissenting) held that it was not possible to imply a term into the agreements to the effect that the Commonwealth should not permit or encourage the importation of aircraft by other parties. However, a differently constituted majority (Barwick CJ, Gibbs and Aickin JJ; Mason J dissenting) held that, if the agreements were construed in that way, the statutory approval of the agreements would mean that they did not constitute an invalid fetter on the discretion conferred on the secretary by the regulations. The following extracts from the judgments of Mason and Aickin JJ discuss the general principles to do with contractual fetters on executive and statutory power. (See also 12.3.4C.)] Mason J: It was not suggested that the term sought to be implied by the plaintiff extends to the imposition on the Commonwealth of an obligation not to introduce, initiate or support legislation which would permit third parties to operate airline services on trunk routes, as for example by amending the Customs (Prohibited Imports) Regulations. The decision of the Court of Appeal in William Cory & Son Ltd v London Corporation [1951] 2 KB 476 appears to suggest that such a covenant would be invalid because it constitutes an attempt to fetter the future exercise of a power to make regulations in the public interest … A similar question arises in relation to the making of a contract which attempts to fetter the exercise of a discretionary power conferred by statute or regulation. There is a general principle of law that a public authority cannot preclude itself from exercising important discretionary powers or performing public duties by incompatible contractual or other undertakings. … Public confidence in government dealings and contracts would be greatly disturbed if all contracts which affect public welfare or fetter future executive action were held not to be binding on the government or on public authorities. And it would be detrimental to the public interest to deny to the government or a public authority power to enter a valid contract merely because the contract affects the public welfare. Yet on the other hand the public interest requires that neither the government nor a public authority can by a contract disable itself or its officer from performing a statutory duty or from exercising a discretionary power conferred by or under a statute by binding itself or its officer not to perform the duty or to exercise the discretion in a particular way in the future. To take an example related to this case: the Commonwealth could not, by making a contract with an airline company whereby it promises that the Secretary of the Department of Transport would not for the next fifteen years issue to other airline companies import permits for aircraft, fetter the future exercise by the Secretary of the discretion conferred upon him by the Customs (Prohibited Imports) Regulations. The Secretary must at all times deal with applications for import permits in accordance with the law; if he considers that, in conformity with government policy, the public interest calls for the importation of the aircraft, he should grant the application notwithstanding that the Commonwealth has entered into a contract which provides to the contrary. To hold otherwise would enable the executive by contract in an anticipatory way to restrict and stultify the ambit of a statutory discretion which is to be exercised at some time in the future in the public interest or for the public good. It has been held that a resolution or undertaking by trustees that they will never in the future exercise powers in relation to certain land, powers which under the statute they might exercise at any time in the future, was incompatible with the statutory purpose for which the land was acquired and was therefore not binding on the trustees. … It was with respect to cases of this class that Lord Birkenhead said in Birkdale District Electric Supply Co Ltd v Southport Corporation [1926] AC 355, at p 364: ‘if a person or public body is entrusted by

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Control of Government Action

the Legislature with certain powers and duties expressly or impliedly for public purposes, those persons or bodies cannot divest themselves of these powers and duties. They cannot enter into any contract or take any action incompatible with the due exercise of their powers or the discharge of their duties.’ Furthermore it has been decided in town planning cases that a local or planning authority cannot by contract fetter in an anticipatory way its future discretion to approve or reject applications after proper consideration in accordance with the prescribed procedure (… Rocca v Ryde Municipal Council [1962] NSWR 600). It has also been decided that an agreement unauthorised by statute on the part of a Minister for the grant of an interest in Crown lands is invalid, in particular where it constitutes an anticipatory fetter on the discretion which the Minister is required to exercise at a later stage of the statutory procedure [citing Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520]. … The decisions to which I have referred are all cases in which the contract or undertaking held to be invalid was one to which the repository of the power or discretion was a party. The contract or undertaking was therefore an anticipatory fetter by that person on his future exercise of the statutory power or discretion. At the same time because the contract or undertaking was not one authorised by the relevant legislation, or was incompatible with it, the contract or undertaking was invalid or ultra vires. Different considerations will apply when the contract is one to which the government is a party and the contract relates to the grant of a licence or privilege which under the law depends upon the exercise of a statutory discretion by an officer who is not a party to the contract. In these cases at least it has been suggested that the free and unfettered exercise of the discretion is sufficiently preserved if the validity of the contract is upheld, provided that it is enforceable only by way of action for damages and not by order or injunction. Such an outcome, it is said, would work a reasonable compromise between the desirability of recognising the binding nature of contracts and the need to preserve the free and unfettered exercise of the discretion. The assumption which underlies this approach is that the contract is one which the government is authorised to make, that it is not expressly or impliedly prohibited by statute or, if you like, incompatible with the statute. The contract might, like the agreements in this case, be made with express statutory approval. In this event an undertaking that the discretion will be exercised in a particular way and a potential liability for damages for its breach, though they may or will cause the repository of the discretion to exercise it in the particular way promised, have statutory backing with the consequence that the contract stands on a more secure footing. Where statutory approval for the making of the contract exists and the contract contains an undertaking that the statutory power will be exercised in a particular way, there is no room for the notion that the undertaking is invalid on the ground that it is an anticipatory fetter on the exercise of a statutory discretion. The contract, assuming it to be within constitutional power, is valid and the undertaking is free from attack. There is in such a case the initial question: Does the statute which approves the making of the contract expressly or impliedly amend, for the purposes of the contract, the pre-existing law providing for the exercise of the discretion? The statute may impose on the repository of the discretion a duty to exercise it in conformity with the undertaking or it may leave him with a discretion to arrive at some other result. If it be the former, then the contracting party may be able to compel the government and the person in whom the discretion is vested, though it has been relevantly converted into a duty, to comply with the undertaking. If it be the latter, then the undertaking if it is enforceable will be enforceable by an action for damages only.

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It will be perceived from what I have written that in my opinion the doctrine that an agreement of the kind in question may constitute an anticipatory fetter on the exercise of a statutory discretion is closely connected with the question whether the agreement is authorised by statute, or is prohibited by, or incompatible with it. If the agreement is authorised, then it is valid, and any breach of the undertaking it contains will be enforceable by damages but only when the effect of statutory approval is to convert the discretion into a duty will it be enforceable specifically. Aickin J: Two matters remain for consideration. The first is that such an implied term would fetter the future exercise of the Commonwealth’s executive power, even to the extent of requiring it to exercise or refrain from exercising a regulation-making power derived from statute. I do not consider that an agreement authorised by statute, as these Agreements are, can be said to impose some impermissible restraint on the executive power. It is plain that even without statutory authority the Commonwealth in the exercise of its executive power may enter into binding contracts affecting its future action.

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CHAPTER

13

Law, Fact and Evidence

INTRODUCTION 13.1.1  This chapter deals with a mixture of legal principles with a common theme — the occurrence of legal error during the fact-finding stages of decision-making. How far the law should go in controlling fact-finding by decision-makers is an important but complex issue. Determining whether an error is one of fact or law is often vital to deciding whether the error can be reviewed or appealed. An extra dimension to this issue arises from the constitutional elements of Australian administrative law because the review/merits distinction broadly reflects  the differing role of courts (whose special province is the law) and tribunals and decision-makers (whose special province is the facts). 13.1.2  When law is applied, facts are important. Any error of fact can lead to a bad or legally flawed decision. A decision that is based on an incorrect fact can be an unfair decision, and justice will be better served if there is a legal procedure for at least identifying the error and reconsidering the decision in an appropriate case. Some administrative law principles reflect the importance attached to the factual component of decision-making; two examples are that a decision can be invalid if a relevant consideration is not taken into account, or if a policy is applied inflexibly without regard to the individual merits of a case. The common theme in those principles is that a decision-maker has failed to take account of a relevant and existing fact. In other instances the facts may be unclear or in dispute and the decision-maker has made a finding of fact. If that finding is wrong, the resulting decision can be wrong or unfair. These and other problems are often revealed in the various statutory requirements that a person be given a statement of the reasons for a decision. Reasons produced under these requirements must usually include the facts and evidence on which the decision was based. 13.1.3  Despite the importance of facts and evidence in administrative decision-making, there are good reasons why not every mistake about facts should undermine the validity of a decision. Factual mistakes are not uncommon, and some are relatively unimportant to the decisions to which they relate. Administrative decision-making could be a far more demanding process if exactitude was required in every process. It is questionable even whether exactitude is a realistic goal: what are described as facts are often inferences, opinions and statements of policy and values. The legality/merits distinction (see 7.2.2ff) is based on those considerations, and as a consequence assigns discrete and different tasks to the judiciary and the executive. 835

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13.1.4  The law/fact distinction thus gives rise to issues of the following kind, which are examined in this chapter: • When should an evidentiary or factual error be classified as a legal error — where the finding of fact is unreasonable? perverse? irrational? illogical? What of the alternative, of requiring that a decision be based on sufficient evidence or probative evidence? • Is an incorrect fact the same as an irrelevant consideration? Conversely, is a failure to consider the correct fact a failure to consider a relevant matter? • Should all misinterpretation of legislation be classified as a legal error? Is it sensible to speak of misinterpretation of legislation as being an error of fact? Is there a coherent distinction between the interpretation and application of legislation to the facts of a case? • Is the law/fact distinction itself misleading? Is the distinction more a choice between judicial intervention or judicial deference?

• To what extent should the law in this area take account of the role of administrative tribunals and ombudsman offices in paying attention to factual and evidentiary issues in administrative decision-making? 13.1.5  It is as well to start by commenting that there are no clear-cut answers to those questions. As the High Court noted in Collector of Customs v  Agfa-Gevaert 13.5.20C, ‘Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between [questions of fact and questions of law], no satisfactory test of universal application has yet been formulated’: at 394. A similar view was expressed many years earlier by an American writer: Matters of law grow downward into roots of fact, and matters of fact reach upward without breaking into matters of law. The knife of policy alone effects an artificial cleavage where the court chooses to draw the line. [ J  Dickinson, Administrative Justice and the Supremacy of the Law in the United States (1927), cited in G Flick, ‘Error of Law or Error of Fact?’ (1983) 15 University of Western Australia Law Review 193 at 196]

It is useful to note two issues arising from the ongoing uncertainty of the law/fact divide. The first is that problems with this distinction are not unique to administrative law. For example, the NSW Law Reform Commission conceded that the law/fact distinction created many difficulties but recommended it be retained to demarcate the jurisdiction of criminal appeal courts: Criminal Appeals, Report 140, 2014, at [4.21]–[4.27]. This recommendation shows that appeal rights defined by the presence of a question or error of law exist beyond administrative review. Second, the ongoing uncertainty of this distinction may not be without benefits. A level of uncertainty in the distinction arguably creates an elasticity, perhaps better described as a margin of discretion, for courts in the exercise of their appeal jurisdiction. In other words, courts can sometimes enforce the distinction firmly (to dispose of an appeal lacking in merit) or with some flexibility (to bypass technical requirements and resolve a matter). 13.1.6  This chapter approaches the topic in four ways. The next section (13.2.1ff) looks at a particular ground of judicial review — no evidence — which rests on the law/fact distinction. The section that follows (13.3.1ff) looks at how other grounds of review — such as unreasonableness and the relevant/irrelevant grounds — are sometimes applied to the review of factual errors. The next section (13.4.1ff) looks at the law/fact distinction as a generic legal concept that arises in different areas of law, such as the right to appeal from a tribunal to a 836

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13.2.3C

court is often limited by statute to a question of law. An issue raised in this section is whether the law/fact distinction is a false dichotomy. The final section (13.5.1ff) examines how tribunals and ombudsman offices approach this issue.

NO EVIDENCE 13.2.1  The no evidence ground for judicial review is one of the few areas where there is a difference between the scope of the ground at common law and under the Administrative Decisions ( Judicial Review) Act 1977 (Cth) (ADJR Act). The following discussion of the ground uses the term ‘evidence’ in its broadest sense to refer to any fact or information on which a decision is based, and not merely evidence that would be admissible according to the rules of evidence applying in courts. Section 5(1)(h) of the ADJR Act makes it clear that the legal principles in this area should be so understood, by referring to ‘evidence or other material’: see 13.2.14. The interrelationship of the rules of evidence and administrative decision-making is discussed in 13.2.32.

No evidence as a ground for judicial review at common law 13.2.2  The principle applied at common law is that a decision made under a statute will be invalid if there is a lack or absence of evidence to satisfy an essential statutory element of the decision. This includes a factual element in a chain of reasoning and facts classified as jurisdictional: see 7.2.8. By contrast, a decision will not be invalid under this ground if there is some evidence to support the statutory element, even though it is questionable whether that evidence is adequate or sufficient to provide support. The principle was explained in The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (Melbourne Stevedoring) 13.2.3C. 13.2.3C

The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 High Court of Australia

[Section 23(1) of the Stevedoring Industry Act 1949 (Cth) provided that the Stevedoring Board could cancel or suspend the registration of an employer of stevedore workers if the board was satisfied after conducting an inquiry that the employer was (a) ‘unfit to continue to be registered as an employer’, or (b) had ‘acted in a manner whereby the proper performance of stevedoring operations has been interfered with’. The board commenced an inquiry into whether the registration of the Melbourne Stevedoring Co should be cancelled or suspended. The High Court granted a writ of prohibition to prevent the inquiry continuing, holding that there was no basis on which the board could conclude either that the company was unfit to be registered or that it had interfered with the proper performance of stevedoring operations. The board had at that stage received a complaint that four stevedores employed by the company had been absent without permission. The facts indicated that at least three of the absences could be satisfactorily explained (for example, a bookkeeping error), and that the ships to which the stevedores were allocated had departed on schedule.]

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Dixon CJ, Williams, Webb and Fullagar JJ: If the board or its delegate is subjectively ‘satisfied’ that the prosecutor company is either unfit to continue to be registered or has acted in a manner whereby the performance of stevedoring operations has been interfered with, then the power exists … to cancel or suspend the company’s registration no matter how erroneous in point of fact the opinion of the board or its delegate may be. But it does matter if the opinion is erroneous in point of law. That is to say the board or its delegate must understand correctly the test provided or prescribed by s 23(1) and actually apply it. It is only when the board or its delegate is satisfied of the existence of facts which do amount in point of law to what the section means by unfitness or by acting in a manner whereby the proper performance of stevedoring operations is interfered with that the board or its delegate reaches a position where one or other of them may lawfully exercise the authority which s 23(1) purports to bestow. The first point to observe is that it must always be open to the board or its delegate to investigate the question whether a Case Extists for the exercise of its powers. There can be nothing wrong or unlawful in the board or its delegate entering upon an inquiry into any of the matters described by the three paragraphs of s 23(1). It is therefore evident that no prohibition could go to restrain the holding of an inquiry directed to any one or more of those issues. There can be no foundation for a writ of prohibition unless and until it appears, whether from the course of the inquiry or from the preliminary statement of the matters to which the inquiry is directed, that there can be no basis for the exercise of the power conferred by s 23(1) or that an erroneous test of the liability of the employer to the cancellation or suspension of his registration will be applied or that some abuse of authority is likely … [T]he chief point of difficulty in the case lies in the distinction between on the one hand a mere insufficiency of evidence or other material to support a conclusion of fact when the function of finding the fact has been committed to the tribunal and on the other hand the absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends. It is not enough if the board or the delegate of the board, properly interpreting pars (a) and (b) of s 23(1) and applying the correct test, nevertheless satisfies itself or himself on inadequate material that facts exist which in truth would fulfil the conditions which one or other or both of those paragraphs prescribe. The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact. What appears in evidence before us discloses no affirmative ground for thinking that the prosecutor company is in truth ‘unfit to continue to be registered as an employer’ within the meaning of that phrase as used in s 23(1)(a) and none for a finding that it has acted in a manner whereby the proper performance of stevedoring operations has been interfered with … [The court went on to conclude that there was no possible basis for a conclusion that the employer was unfit to be registered. The court further concluded that the board had misconceived the scope of s 23(1) and was wrongly invoking the section in an attempt to enforce its policy that employees should be closely supervised. Taylor J delivered a concurring judgment.]

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Chapter 13  Law, Fact and Evidence

13.2.4  The principle enunciated by the court in Melbourne Stevedoring 13.2.3C — that some, though inadequate, evidence to support a finding is not sufficient to invalidate a decision for no evidence — has been put in other ways. Several cases have accepted that the existence of even a skerrick of evidence precludes use of the no evidence ground: see, for example, CJT15 v Minister for Immigration and Border Protection [2018] FCA 618 at [52]. To accept that ‘a little evidence’ precludes a claim of ‘no evidence’ is sensible if the evidence itself is sensible. But what if the evidence or finding of fact that was used to support a decision is or might be faulty? The courts have made clear that pursuing such questions is not the way to establish an error of law. The following authorities cited by Mason CJ in Australian Broadcasting Tribunal v Bond 13.2.25C provide an oft-cited illustration: [I]t is said that ‘there is no error of law simply in making a wrong finding of fact’: Waterford v Commonwealth (1987) 163 CLR 54, per Brennan J at 77. Similarly, Menzies J observed in R v District Court; Ex parte White (1966) 116 CLR 644 at 654: Even if the reasoning whereby the court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law. Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

13.2.5  The observations by Menzies J (cited above) that there is no invalidity if reasoning is based on a ‘faulty (eg illogical) inference of fact’, is ‘demonstrably unsound’, or is ‘drawn as a result of illogical reasoning’, must now be qualified by the principles in Minister for Immigration and Citizenship v  Li 15.2.18C. That case decided that legal error occurs if an outcome or a reasoning process ‘lacks an evident and intelligible justification’: at [76]. The decision in Li built on the views expressed in Minister for Immigration and Citizenship v SZMDS 15.2.17C, that serious irrationality or illogicality due to the absence of evidence may give rise to jurisdictional error. On the reasoning of Crennan and Bell JJ in SZMDS, a jurisdictional error based on no evidence only arises if ‘no rational or logical decision-maker could arrive [at the decision] on the same evidence’: at [94]. These recent developments, which expand review for evidentiary error, do not undermine the basic distinction ‘between a conclusion that a decision was not made on evidence and a contest about the proper view of the evidence and the facts’: TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty (2014) 232 FCR 361 at [108]. In simple terms, Li and subsequent cases do not involve an attack on the existence of evidence but how it is used by a decision maker. If such challenges can be pursued within the scope of unreasonableness, the ‘no evidence’ ground may rarely need to be considered. 13.2.6  The possible blurring of these issues was illustrated in Minister for Immigration and Border Protection v  Stretton (2016) 237 FCR  1. Mr  Stretton was a British citizen who was convicted in Australia of several sexual assaults of one of his grandchildren. His visa was then cancelled on character grounds by the minister. Mr  Stretton challenged the decision as unreasonable because he had lived in Australia for over 50 years and had no family or support in the United Kingdom. The judge at first instance accepted this claim, holding that the minister was wrong to conclude that, while the risk of Mr Stretton reoffending was very 839

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low, the possible consequence of further sexual offences against a child was ‘intolerable’. This finding was overturned on appeal to the Federal Court. Justice Griffith noted (at 25) that this and other negative descriptions of the decision were not the words used and conclusions drawn by the minister but were instead those of the primary judge. Justice Griffith held that the decision could be characterised in alternative, more benign ways, which were not unreasonable. 13.2.7  Some case have adopted a different approach to this issue, suggesting that illogical reasoning or fact-finding will only result in invalidity if it can amount to some other legal principle or consequence. This approach suggests that, once there is some evidence for a decision — even if the evidence is doubtful — other grounds of review should be considered. The views put by Gleeson  CJ and McHugh  J in Minister for Immigration and Multicultural Affairs v Eshetu 3.4.8C and Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 (Applicant S20) (see 15.2.14) are summarised in the following statement by Greenwood J in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824: A description of the reasoning of the Tribunal as irrational, illogical or unreasonable may simply be an emphatic way of expressing disagreement with the reasoning, conclusions, findings made and a determination reached by the Tribunal. … If so, the criticism may simply be a vehicle for attempting to contest adverse findings made by the Tribunal within the scope of the jurisdiction conferred upon it. If the criticism is to go beyond such a challenge, what is required is some precision in identifying the legal consequence of irrational or illogical reasoning and the legal principle to be invoked that attracts that consequence. … That task requires identifying and characterising the suggested error and relating it to ‘the legal rubric under which a decision is challenged’.

Justice Greenwood’s observation was echoed in SZMDS 15.2.17C and by French CJ in Li 15.2.18C at [30]: ‘the characterisation of somebody’s reasoning as illogical or unreasonable, as an

emphatic way of expressing disagreement with it, “may have no particular legal consequence”’. The need for the illogical reasoning to be related to a ground of review was reflected in the court’s findings in Li, where the reasoning was found to lack evident and logical justification, thus leading to invalidation on the basis of unreasonableness. Some fine tuning of these issues appeared to emerge in Minister for Immigration and Border Protection v SZVFW 15.2.21C, in which the High Court revisited aspects of Li. Justice Gageler (at [58]–[60]) and Edelman J (at [134]–[135]) each appeared to revert to unreasonableness as the more fitting label for such issues. 13.2.8  Another approach to these issues, explained in Melbourne Stevedoring 13.2.3C, is that a decision based on inadequate material may support an inference that the decision-maker was ‘asking the wrong question’ or ‘applying the wrong test’: see also 7.2.11 and Ex parte Hebburn Ltd; Re Kearsley Shire Council 7.2.19C. Indeed, the court in Melbourne Stevedoring concluded that the board in that case, in addition to acting on no evidence, had misconceived the statutory standard to be applied. This approach may have special appeal if a decision-maker has not provided adequate reasons for a decision and there is apparent dissonance between the outcome and the available evidence: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353. The principle was summed up by Greenwood J in SZDTZ: [32] A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from 840

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facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.

For an analysis of the no evidence ground when based on inference, and the need to distinguish inference from conjecture, see Rawson Finances Pty Ltd v Commission of Taxation (2013) 296 ALR 307; 133 ALD 39. 13.2.9  It may be that a stage has been reached in which challenges based on no evidence, or serious irrationality or illogicality, have been subsumed into Wednesbury unreasonableness as the ground of review. That is because ‘legal unreasonableness is invariably fact dependent’: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [42]; see also 15.2.19. Nonetheless, a court will be wary of applying the illogicality epithet as a means simply of ‘emphatically disagreeing’ with a tribunal’s reasoning. It is only when the outcome, or the process by which the tribunal reached its decision, was seriously flawed or involved serious illegality that a court will intervene for error of law: Minister for Immigration and Citizenship v SZJSS 10.4.25C at [36] and Singh at [44]. So, for example, in Li v Chief of Army (2013) 250 CLR 328 the High Court did not accept that an incorrect direction by the judge advocate was immaterial since it was impossible to be satisfied that the opinion of the Defence Force Disciplinary Appeal Tribunal was unaffected by the error. The question of whether the treatment of evidence or a finding of fact is irrational is largely one of degree: see M Smith, ‘“According to Law, and Not Humour”: Illogicality and Administrative Decision-making After SZMDS’ (2011) 19 Australian Journal of Administrative Law 33. Justice Jessup in Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 identified the following principles applying in this area: [47] The relationship between alleged errors in a factual decision and excess or want of jurisdiction has the potential to present in the following contexts:

• Where the correctness of the decision is a precondition to the assumption of jurisdiction, to the exercise of a discretion, or to reaching a substantive conclusion, result or outcome in the matter before the decision-maker. • Where there was no evidence or probative material before the decision-maker upon which the decision could have been made. • Where there was such evidence or probative material, but the decision was illogical or irrational.

13.2.10  Three examples of decisions being declared invalid for ‘no evidence’, illustrating the principles enunciated by Jessup  J, are Sinclair v  Mining Warden at Maryborough (1975) 132 CLR 473, Tisdall v Webber (2011) 193 FCR 260, and Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, each discussed below. In Sinclair, the mining warden had a discretion to recommend to the minister that an application for a mining lease be granted or refused; in discharging that function the warden was to consider whether the public interest would be prejudicially affected by mining.The warden had recommended the grant of a mining licence for an area of 1100 acres on Fraser Island, though the evidence before the warden referred to mineralisation in only 60 acres of that area. 841

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Other evidence provided by environmental objectors pointed to the possible adverse impact of mining on the fragile and unique ecology of Fraser Island. The High Court held that the warden had misconceived his duty, with Barwick CJ commenting: ‘It was essential that there be material before him … which would warrant an affirmative conclusion on the substance of the applications’: at 481. In Tisdall, the Professional Services Review committee (PSR committee) found that Dr  Tisdall had engaged in ‘inappropriate practice’ by over-servicing contrary to provisions in the health insurance legislation. The committee had rejected his claim that ‘exceptional circumstances’ applied, arising from a chronic shortage of doctors in his area of practice, and the refusal of other doctors to see  his patients. The Full Federal Court set aside the PSR  committee’s decision, concluding that the committee’s rejection of Dr  Tisdall’s claim was unsupported by actual evidence and was simply based on inferences drawn from statistics ‘which do not reveal facts about the reasons for statistical rates of attendance’: at [86]. Justice Buchanan distinguished between findings that were not reasonably open and findings reached on other than logical grounds. The former involves a finding that is not supported by any evidence (and is always an error of law), while the latter involves faulty reasoning (and is not easily characterised as an error of law): at [126]–[127]. This difference highlights the distinction between the no evidence and illogicality grounds of review. In Kostas, Mr and Mrs Kostas had purported to cancel a building contract because the builder was in breach of obligations under the contract. The validity of the termination depended on whether the builder had properly given notice of claims for extensions of time. The tribunal had found that proper notice had been given and, as a consequence, the termination was invalid, a decision reversed on appeal to the Federal Court. The High Court allowed a further appeal and upheld the finding of the primary judge. In the course of their reasons, Hayne, Heydon, Bell and Crennan JJ (French CJ agreeing) observed of the tribunal’s factual finding: [91] A tribunal that decides a question of fact when there is ‘no evidence’ in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law. And in this case, for the reasons given by the primary judge, there was no evidence before the Tribunal, when it decided the separate question identified by the parties, upon which the Tribunal could find that the disputed notices had been served.

13.2.11  The test applied by the court in Melbourne Stevedoring 13.2.3C was whether there was an ‘absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends’: at 119. One way of reading that statement is to say that the court was asking whether there was evidence that could support an essential statutory element of the decision (viz, whether the employer was ‘unfit’ to be registered or had interfered with ‘the proper performance of stevedoring operations’). Some other statements of the principle apply more broadly, to include preliminary findings (sometimes called findings of primary fact). For example, in Bond 13.2.25C Mason CJ spoke of ‘the traditional common law principle that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law’: at 357. The issue remains unresolved, but only to the extent that the findings or inferences of fact are not jurisdictional. Where the preliminary facts are jurisdictional the High Court has accepted that a failure to make appropriate findings is an error of law: SZJSS 10.4.25C and SZMDS 15.2.17C. The issue is unlikely to arise under the ADJR Act, since s 5(3) defines what is meant by ‘no evidence’ in terms that pick up some but not all preliminary 842

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findings: see  13.2.12. And, as the discussion in the next section (13.3.1ff) will illustrate, the issue can often be avoided at common law by reliance instead on other grounds that facilitate a challenge to irrational or faulty reasoning.

No evidence as a ground for judicial review under the ADJR Act 13.2.12  No evidence has been defined as a ground of review in the ADJR Act, which provides that an order of review can be sought on the ground ‘that there was no evidence or other material to justify the making of the decision’: s 5(1)(h). Section 5(3) provides: (3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he was entitled to take notice) from which he could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

See also ACT: Administrative Decisions ( Judicial Review) Act 1989 ss 5(1)(h), 5(3); Qld: Judicial Review Act 1991 ss 20(2)(h), 24; Tas: Judicial Review Act 2000 ss 17(2)(h), 21. 13.2.13  Four issues have been prominent in the case law dealing with the ADJR Act test of no evidence: the interrelationship between s 5(1)(h) and the other ADJR Act grounds of review; the scope of s 5(3)(a); the scope of s 5(3)(b); and the interrelationship between s 5(1)(h) and ss 5(3)(a) and (b).

Interrelationship between ‘no evidence’ and other grounds 13.2.14  The first issue was addressed in Bond 13.2.25C, in which Mason  CJ noted that ss  5(1)(h) and 5(3) of the ADJR Act was a special statutory ground that, in his Honour’s view, was narrower in scope than the no evidence principle at common law. Justice Dixon was further of the view that the common law principle of no evidence could be raised under another ADJR Act ground of review, namely s 5(1)(f ), which provides that an order of review can be sought on the ground that ‘the decision involved an error of law’. Chief Justice Mason also noted that evidentiary and factual issues can be raised under other ADJR Act grounds of review.

The scope of section 5(3)(a): statutory requirement 13.2.15  The shorthand expression for the ground is ‘no evidence to support an essential statutory requirement’, a formulation said to be, in substance, a restatement of the doctrine of jurisdictional fact: Australian Retailers Association v  Reserve Bank of Australia (2005) 148 FCR 446 (Weinberg J). This is comparable to the common law ground, but with two special features. First, the ground applies where a decision-maker ‘was required by law to reach [a] decision only if a particular matter was established’. The effect of this feature is that there must be a precondition in law to the making of the decision or at least a clear legislative intent that the making of the decision depends upon the establishment of a particular matter. It is also possible that s 5(3)(a) is not confined to express statutory requirements, but includes steps or requirements that are implicit in the statutory provision being applied. 843

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The second feature of s 5(3)(a) is that it asks whether there is ‘no evidence’ from which a decision-maker ‘could reasonably be satisfied’ of the particular matter required by law to be established. This is a difficult criterion to apply: ‘no evidence’ and evidence from which a person ‘could reasonably be satisfied’ appear to be two different standards, yet have been combined into a single standard in s 5(3)(a). The difficulty is probably best resolved by focusing on the underlying theme of s 5(1)(h) and s 5(3)(a), which is that a decision is invalid if there is a lack of evidence to support an essential statutory element of the decision. 13.2.16  The particular matters to which regard must be paid can arise at several stages of the decision-making process. As the Full Federal Court said in Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141: [38] A decision may be based upon the existence of many particular facts. It will be based upon the existence of each particular fact that is critical to the making of a decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious importance. If a decision is in truth based, in that sense, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed, whatever the relative importance of the fact.

13.2.17  Justice Gaudron and McHugh J in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 13.2.27C also stated that the finding must be ‘critical’ to the decision. The application of this principle was implicit in the findings in Mineralogy Pty Ltd v Secretary, Department of Infrastructure and Regional Development (2014) 225 FCR 178. The regulations required the approval of a maritime security plan for a port facility operator in the Pilbara region of Western Australia. That approval was to be based on the satisfaction of the decision-maker. The approval was not dependent on the plan having the contact details of the Port Security Officer (PSO), or the name of the PSO, despite both being mandatory requirements in the regulation. These requirements were found not to be critical to the validity of the plan. The court dismissed an argument that the approval was flawed because these details in the documentation were incorrect. 13.2.18  Equally in Watson v Australian Community Pharmacy Authority (2011) 124 ALD 1, the claim that there was no evidence before the authority which could satisfy it that those seeking to open a second pharmacy had a legal right to occupy the chosen premises was not material to the decision made by the authority and not critical to the success of the application. In terms of s 5(3)(a) of the ADJR Act, the central question was whether the authority had acted reasonably, and the court found it had: at [46]. 13.2.19  In both Mineralogy and Watson, the court categorised the requirements as jurisdictional facts. As Dowsett J said in Watson: [39] Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.

For further discussion of the ‘jurisdictional fact’ concept see 13.3.9ff. 844

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13.2.20  Where the factual finding depends on a decision-maker being ‘satisfied’, this is a partly subjective requirement and permits greater latitude to the decision-maker. This may severely curtail the supervisory jurisdiction, particularly when the matters of which satisfaction is required involve a value judgement. As McKerracher J said in Mineralogy, the requirement to be satisfied: [137] … is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.

13.2.21  An example of that difficulty was evident in Australian Retailers Association 13.2.15. The criteria to which the Reserve Bank was to have regard in the public interest included the desirability of payment systems being, in its opinion, more ‘efficient’ and ‘competitive’. As  Weinberg  J noted, ‘[a] provision couched in such subjective terms does not leave much scope for the operation of s 5(3)(a)’ (at [151]), and the findings were not findings of fact ‘but rather opinions or conclusions in the nature of value judgements’: at [582]. In such circumstances, the decision to be made is dependent on the decision-maker’s view, not on the ascertainment of a legal right as an objective fact: Watson 13.2.18 at [41] (Dowsett J). See also Queensland North Australia Pty Ltd v Takeovers Panel [2014] FCA 591, concerning a declaration of ‘unacceptable circumstances’ under s 657A of the Corporations Act 2001 (Cth).

The scope of section 5(3)(b): a non-existent fact 13.2.22  The shorthand expression for the ground is ‘reliance by the decision-maker on a non-existent fact’. This is a new ground, but of limited scope. It comprehends any finding of fact made by a decision-maker, and not just findings on the statutory elements of the decision. However, the ground applies only where a decision was ‘based … on … a particular fact’ and the fact ‘did not exist’. 13.2.23  Three aspects of that formula require comment. The first is the requirement that the decision is based on a ‘particular fact’. The view taken in Director of Animal and Plant Quarantine v Australian Pork Ltd 15.3.7C by Heerey and Lander JJ was that ‘[o]bservations or comments about the evidence are not “particular facts” … Findings, assumptions or predictions reflect “particular facts”. They are not particular facts in themselves’: at [93]. The second aspect is the requirement that the findings of fact must again be critical to the final decision: see  Curragh Queensland Mining Ltd v  Daniel 13.2.26C and Rajamanikkam 13.2.27C. For example, in Building Professions Accreditation Corp Tasmania Ltd v  Minister for Infrastructure, Energy and Resources [2005] TASSC 73 the lack of evidence was not relevant to the ultimate consideration to authorise the applicant as an accrediting body. Third, a person relying on this ground must go further than pointing to a lack of evidence to support the decision-maker’s finding of fact: the person must establish affirmatively by evidence that the fact relied upon by the decision-maker ‘did not exist’: Watson at [51]. In considering that issue a court is not limited to the evidence before the decision-maker: Curragh at 223–4 (Black CJ).

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Interrelationship between ‘no evidence’, statutory requirement for evidence, and reliance on non-existent fact 13.2.24  The view was taken by Gleeson  CJ in Rajamanikkam 13.2.27C (and possibly by Callinan J) that ss 5(1)(h) and 5(3)(a), (b) are two limbs of a single test. That is, a person relying on this ground must first establish a breach of s 5(3)(a) or (b), and then establish that there was ‘no evidence or other material to justify the making of the decision’. This directs attention away from specific defects in the reasoning process (for example, reliance upon a non-existent fact) and focuses attention back on whether, viewed overall, there was evidence to support ‘the decision’. Gaudron and McHugh JJ in Rajamanikkam did not take this approach, but treated s 5(3)(a) and (b) as self-contained grounds for review. This seems also to have been the approach of the Full Federal Court in Curragh 12.2.26C, which found a breach of s 5(3)(b) in that case. However, Lindgren J in MLC Investment v Federal Commissioner of Taxation (2003) 137 FCR 288 said at [92]: • the no evidence ground in s 5(1)(h) of the ADJR Act is limited by s 5(3)(b); and • even if the latter is satisfied, the former remains to be, that is, one cannot say that there is no evidence or other material to justify the making of a decision just because the decision was based on the existence of a particular fact which did not exist; and • if there is some evidence or other material to justify the making of the decision, neither question posed by subs 5(3) arises: see  Minister for Immigration and Multicultural Affairs v  Indatissa (2001) 64 ALD 1 at [27]–[32]; and Rajamanikkam at [40]–[43] per Gleeson CJ.

This issue remains to be resolved. 13.2.25C

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11 High Court of Australia

[An extract from this case including the facts is given in 2.4.8C. That extract dealt with the meaning of the ADJR Act requirement that the matter to be reviewed is a ‘decision’ or ‘conduct’. A further extract from the case, dealing with judicial review of fact-finding errors, is given in 13.3.4C, and an extract from the judgment of Deane J dealing with the reviewing of fact-finding errors under the probative evidence principle is given in 13.2.32.] Mason CJ: [F]indings of fact and inferences of fact are not reviewable under the ADJR Act unless jurisdiction is enlivened by the review of a ‘decision’ or ‘conduct’. Findings of fact, including inferences, may be reviewed under the ADJR Act for error of law (s 5(1)(f)) and on the ground ‘that there was no evidence or other material to justify the making of the decision’ (s 5(1)(h)) … The effect of s 5(3) is to limit severely the area of operation of the ground of review in s 5(1)(h). If we put to one side the situation to which par (b) is directed (proof of the non-existence of a fact critical to the making of the decision), the opening part of par (a) restricts the ‘no evidence’ ground to decisions in respect of which the decision-maker was required by law to reach that decision only if a particular matter was established. In such a case the ground of review is that there was ‘no evidence or other material … from which he could reasonably be satisfied that the matter was established’.

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As the respondents do not seek to bring this case within s 5(3)(a) or (b), the ground of review in s 5(1)(h) has no direct application here. But the presence of s5(3) tells against an expansive interpretation of s 5(1)(f). Indeed, it might be argued from the presence of s 5(1)(h) and (3) that they constitute a definitive and exhaustive statement of the ‘no evidence’ ground of review for the purpose of s 5, thereby excluding such a ground from the concept of ‘error of law’ in s 5(1)(f). However, such a result would verge upon the extreme and would pay scant attention to the traditional common law principle that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law. The better view, one which seeks to harmonise the two grounds of review, is to treat ‘error of law’ in s 5(1)(f) as embracing the ‘no evidence’ ground as it was accepted and applied in Australia before the enactment of the ADJR Act and to treat the ‘no evidence’ ground in s 5(1)(h), as elucidated in s 5(3), as expanding that ground of review in the applications for which pars (a) and (b) of s 5(3) make provision. Within the area of operation of par (a) it is enough to show an absence of evidence or material from which the decision-maker could reasonably be satisfied that the particular matter was established, that being a lesser burden than that of showing an absence of evidence (or material) to support the decision. This interpretation of the two grounds of review enables one to say that ss 5(1)(h) and (3)(a) have the effect of overcoming to a limited extent and in a limited area the restrictions on the traditional ‘no evidence’ ground considered by Barwick CJ and Gibbs J in Sinclair at 481, 483.

13.2.26C

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212; 27 ALD 181 Federal Court of Australia (Full Court)

[The Customs Act 1901 (Cth) provided that goods imported into Australia would pay a concessional rate of customs duty of 2 per cent, rather than 25 per cent, if a ‘suitable equivalent’ of the goods was ‘not reasonably available’ in Australia. Curragh Mining imported an item of equipment to be used in coal mining. The equipment was available in Australia, but not for some months, and Curragh required the equipment in order to meet its contractual obligation to supply coal by a designated date. The decision-maker decided that it would have been open to Curragh to negotiate a later supply date for coal, and thus to use the Australian-made equipment. That equipment was therefore ‘reasonably available’ and the imported equipment did not qualify for the 2 per cent concessional rate. The Full Federal Court concluded that a later date for the supply of coal could not have been achieved by Curragh. Consequently, the decision was based on a fact that did not exist, and the decision was set aside under s 5(1)(h) and 5(3)(b) of the ADJR Act]. Black CJ (Spender and Gummow JJ agreeing): In a ‘no evidence’ case in which s 5(1)(h) is relied upon, the ground may be made out if, but only if, the case falls within either s 5(3)(a) or (b). It is not suggested that this case falls within s 5(3)(a) but it is put that the finding that Curragh could have had a later delivery date was a finding of a particular fact, upon the existence of which the decision-maker based his decision, and that such a fact did not exist. The fact in question was clearly a ‘particular fact’ and, in my view, the decision was ‘based’ upon it. If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact. In Bond’s case [13.2.25C] Mason CJ said, at 357, that s 5(3)(b) was directed to ‘proof of the non-existence of a fact critical to the making of the decision’ (my emphasis). See also, Luu v Renevier (1989)

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91 ALR 39 at 47 where a Full Court of this Court (Davies, Wilcox and Pincus JJ) used the word ‘critical’ to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance, that may not affect the validity of a decision. Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A  decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion. If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. Accordingly, I agree with the conclusion of Lee J in Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374, that there is no reason to read s 5(3)(b) in a way that would limit its operation to a predominant reason for the decision under review. The finding of fact that Curragh could have had a later date for the supply of coal was a finding of a particular fact upon which the decision was based. [His Honour examined the reasons for the decision of the decision-maker, and continued:] [I]t can be seen that the finding of a particular fact was critical to the decision because it fundamentally affected the course of reasoning leading to that decision. The finding shut off a path that could have led to a decision in Curragh’s favour. It is not, of course, enough to satisfy the requirements of s 5(3)(b) alone as to do so would ignore the language of the ground provided for by s 5(1)(h) itself. In such a case, to make out a ground under s 5(1)(h) there must be an absence of evidence or other material of a particular fact upon which the decision was based. It is not necessary in this case to explore the question whether, consistently with an intention that may be revealed by s 5(3)(a), it will be enough to show, in a case in which s 5(3)(b) is relied upon, an absence of evidence or other material from which the decision-maker could reasonably be satisfied that the particular fact existed or whether, in relation to that fact, there must be a complete absence of any evidence or other material; in my view there was a complete absence of any evidence or other material from which the existence of the critical fact about Curragh’s capacity to have a later date for supply of coal could be established. [His Honour examined the evidence before the decision-maker and concluded that there was no evidence or other material to support the decision-maker’s finding that Curragh could have negotiated a later supply date for coal, so as to enable Curragh’s purchase and use of Australian-made equipment in its coal mining operation.] It remains to consider the concluding words of s 5(3)(b): ‘and that fact did not exist’. Since the ground in s 5(1)(h) is a ‘no evidence’ ground, and since s 5(3)(b) requires, in that context, that it be established that the person who made the decision based the decision on the existence of a particular fact as a requirement for making out the ground, the concluding words ‘and that fact did not exist’ must be taken to impose an additional requirement. … How then is an applicant for an order of review to establish that a particular fact, on the existence of which a decision was based, did not exist?

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[His Honour concluded that ‘the requirement of establishing that a particular fact did not exist is to be satisfied by admissible evidence in court … and that the evidence on the issue is not limited to material that was before the decision-maker’. The explanation given by Black CJ for that conclusion was that it is inherent in this ground that there was ‘no evidence’ before the decision-maker, and additional evidence may therefore be needed by a court to negative the decision-maker’s finding.] This conclusion does not offend the principle that, on judicial review, it is not for the court to assume the function of a decision-maker in making findings of fact. Section 5(3)(b) may be seen as imposing an additional requirement, of which the court itself must be satisfied, before an order of review is granted upon the ground in s 5(1)(h) in circumstances where such a ground is otherwise made out. The additional requirement will therefore preclude the making of an order of review in a case where, although there was no evidence or other material of a particular fact upon which the decision was based, it is clear enough that the particular fact did exist. It will preclude review of a decision where the lack of evidence of a particular fact may be characterised as a mere technical deficiency. But the requirement goes very much further than this because the onus of proving the non-existence of a fact rests upon the applicant. This may erect an insurmountable obstacle to an applicant in some cases but that obvious consequence must be taken to reflect a deliberate policy choice by the Parliament. [His Honour concluded, after discussing the evidence given by two witnesses who had been involved in the negotiation of the contract for the supply of coal, that a later date for the supply of coal could not have been achieved and that the decision-maker had therefore based the decision on a fact that did not exist. The court made an order that the decision be set aside and reconsidered according to law.]

13.2.27C Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; 190 ALR 402; 69 ALD 257 High Court of Australia [The Refugee Review Tribunal made a decision that Dr Rajamanikkam did not qualify for a protection (refugee) visa. In rejecting Dr Rajamanikkam’s claim that he feared persecution by Sri Lankan authorities, the tribunal stated that there was a range of factors (eight in all) that caused the tribunal to doubt his credibility. It was conceded by the department in this appeal that the tribunal was in error as to two of those factors — in effect, that in reaching its finding of lack of credibility the tribunal had taken into account two facts that did not exist. The Full Federal Court held that the tribunal’s decision was in breach of the now repealed ‘no evidence’ ground of review specified in s 476(1)(g) and (4)(b) of the Migration Act 1958 (Cth), which mirrored s 5(1)(h) and (3)(b) of the ADJR Act. The High Court allowed the appeal, holding by majority (Gleeson CJ, Gaudron, McHugh JJ and Callinan JJ; Kirby J dissenting) that the tribunal was not in breach of those sections.] Gleeson CJ: [His Honour first referred to passages in the judgments of Diplock LJ in R v Deputy Industrial Injuries Cmr; Ex parte Moore [1965] 1 QB 456 and Deane J in Bond (extracted at 13.2.32), stating that as part of a legal requirement of procedural fairness a decision must be based on evidence.] As that case [Bond] showed, identification of the ‘decision’ may constitute an important step in deciding whether there has been an error of law in the form of a breach of a duty to act in accordance with the requirements of procedural fairness.

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The requirement is to ‘base [a] decision on evidence’; a requirement as to the way the decision-maker is to go about the task of decision-making. The distinction between judicial review of administrative decision-making upon the ground that there has been an error of law, including a failure to comply with the requirements of procedural fairness, and comprehensive review of the merits of an administrative decision, would be obliterated if every step in a process of reasoning towards a decision were subject to judicial correction. The duty to base a decision on evidence, which is part of a legal requirement of procedural fairness, does not mean that any administrative decision may be quashed on judicial review if the reviewing court can be persuaded to a different view of the facts … [His Honour referred to the judgments of Mason CJ in Bond 13.2.25C, Black CJ in Curragh 13.2.26C, and Wilcox J in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1987) 13 FCR 511. Gleeson CJ agreed that s 5(3)(b) of the ADJR Act is limited to a case ‘where the applicant for review can actually negative the fact on which the decision was based’: at 234. His Honour continued:] Black CJ also pointed out, however, that it is not enough to satisfy the requirements of s 5(3)(b) alone, as to do so would ignore the language of the ground provided for by s 5(1)(h). In relation to the Act, it is s 476(1)(g) that provides the ground of review. That provision is qualified by s 476(4), but satisfaction of s 476(4)(a) or (b), while necessary, is not sufficient … The nature of a decision, and the process of reasoning that leads to it, will bear upon a contention that there was no evidence or other material to justify the decision, and upon a contention that the decision was based upon the existence of a particular fact. The circumstance that an applicant seeks to satisfy s 476(4)(b) for the purpose of making a case under s 476(1)(g) may also bear upon the level of particularity or generality at which a fact is identified. The higher the level of particularity at which a fact is identified, the harder it may be to demonstrate that the decision was based upon the existence of that fact, or that there was no evidence or other material to justify the decision, especially if the decision is arrived at because of a lack of satisfaction of the existence of a state of affairs. [His Honour went on to allow the appeal on two grounds: that there was no breach of s 476(4)(b), as it could not be said that the tribunal’s credibility finding was based on two only of eight reasons; and that there was no breach of s 476(1)(g), as there was other evidence on which the tribunal could reach a decision that it was not satisfied that Dr Rajamanikkam faced persecution if he returned to Sri Lanka.] Gaudron and McHugh JJ: The better approach, in our view, is to treat the words of s 476(1)(g) as having introduced a new and discrete ground of review, with its precise content identified in s 476(4) of the Act … [W]e see no reason why the ‘no evidence’ ground should not be approached in the same way in both [the ADJR and Migration] Acts, namely, on the basis that it is a discrete ground of review, the precise content of which is identified by the succeeding paragraphs of sub-s (4). That is not to say that the ‘error of law’ ground in s 5(1)(f) of the ADJR Act does not include the traditional ‘no evidence’ ground applied before the enactment of that Act. Rather, it is simply to say that, under the ADJR Act, a single finding might involve a reviewable error that falls within both the ‘error of law’ and the ‘no evidence’ grounds of that Act. So far as concerns s 5(3)(b) of the ADJR Act, which was precisely replicated in s 476(4)(b) of the Migration Act, Mason CJ observed parenthetically that that paragraph is directed to the ‘proof of the non-existence of a fact critical to the making of [a] decision’: [Bond  13.2.25C] at 357–8. Clearly, the word ‘critical’ is appropriate to a finding of the kind referred to in s 5(3)(a) and replicated in s 476(4)(a), namely, a finding as to a matter which is required to

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be established before the decision in issue can be reached. The question whether it is also appropriately applied to a finding of the kind referred to in s 476(4)(b) depends upon the meaning of the words ‘based … on … a particular fact’. The word ‘particular’ in s 476(4)(b) is of significance. Had that paragraph been expressed in terms of a decision ‘based on the existence of a fact’, it might have been apt to refer to any fact taken into account in the reasoning process leading to the decision in question. The word ‘particular’ indicates that the paragraph is intended to have a more limited operation. And when regard is had to the requirement that the decision be ‘based … on … a particular fact’, the paragraph, in our view, is to be understood as referring to a finding of fact without which the decision in question either could not or would not have been reached. In this sense, it is, in our view, appropriate to speak of a ‘fact critical to the making of the decision’: Bond, ibid. Whether a decision could or could not have been reached without a particular factual finding may depend either on logic or on the law to be applied. To the extent that a decision could not have been reached without a particular factual finding because of the law to be applied, there may have been some overlap between pars (a) and (b) of s 476(4) although, of course, par (a) imposed a less stringent test. Whether a decision would or would not have been made without a particular factual finding depends on indications to that effect in the decision, the reasons for decision or the decision making process. And unless it is possible to say on a proper analysis of the decision, the reasons for decision or the decision making process that, had a particular finding not been made, the decision in question would not have been reached, it is, in our view, impossible to say that the decision was based on that finding. [Their Honours examined the evidence and the tribunal’s reasons.] It will be apparent from the above account of Dr Rajamanikkam’s claims and the Tribunal’s decision that, in reaching its decision, the Tribunal took into account two facts that did not exist … However, it does not follow that the Tribunal’s decision was based on those particular facts. Given the ‘range of factors’ to which the Tribunal pointed as giving rise to doubts as to Dr Rajamanikkam’s credibility, it is not possible to say that … its decision was based on those particular facts which did not exist. [Callinan J held (at 271) that: ‘It would be enough if the decision were shown to be based on a non-existent fact’; however, the non-existent fact must be ‘a foundation for the decision’, and not merely a fact that was taken into account. It could not be said that the tribunal’s decision that Dr Rajamanikkam was not entitled to the status of refugee was based on the two erroneous findings. Kirby J dissented, holding that the ground of review was made out if a decision was shown to be based on a critical fact that did not exist. There was no reason in this case to disturb the finding of the Federal Court that the tribunal’s credibility finding was of critical importance to its decision, and that that finding was based on a combination of eight factors, two of which were shown not to exist.]

Evidence, probative evidence and administrative fact-finding 13.2.28  Despite terms such as ‘no evidence’ being used in administrative law, the rules of evidence applying in civil and criminal litigation do not apply in administrative decision-making: see, for example, Cadbury UK Ltd v Registrar of Trade Marks (2008) 107 ALD 316 at [17]; Sullivan v Civil Aviation Safety Association (2014) 226 FCR 555. Subject to compliance with the criteria for lawful decision-making, an administrator is entitled to take account of any 851

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information in reaching a decision. Thus, for example, it is open to an administrator to have regard to hearsay statements, unsubstantiated claims and assertions, government policy and the views and decisions of other administrators; to take official notice of matters based on their own knowledge and experience; to apply their own intuition and wisdom; and to draw inferences about the most probable version of disputed events. Judges do not have the same freedom as administrative decision-makers. Judges can draw inferences from the evidence before them but ‘where the application of a judicial method is expected, the process of drawing an inference from available facts is not to be equated with conjecture, surmise or guesswork’: Tisdall 13.2.10 at [128] (Buchanan J). 13.2.29  These points are assumed in most administrative law cases, and statements of principle are, therefore, meagre. There is, however, a substantial body of case law as to how administrative tribunals should go about the task of fact-finding. For two reasons, that body of doctrine is generally applicable to administrative decision-making. The first is that most tribunals discharge the same task as primary decision-makers, namely, reaching the correct or preferable decision: see 3.3.7ff. The second is that nearly all statutes establishing administrative tribunals provide in terms similar to s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) that ‘the tribunal is not bound by the rules of evidence but may inform itself in such manner as it thinks appropriate’: see  3.4.6. This is reinforced by the terms of ss 3, 4 and the Dictionary of the Evidence Act 1995 (Cth), which exempt tribunals from its coverage: Minister for Immigration, Multicultural and Indigenous Affairs v  SGLB (2004) 78 ALD 224 at [73] (Kirby J); Rana v Military Rehabilitation and Compensation Commission [2005] FCA 6 at [62] (Finn J); Hood v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 555 at [18] (Ryan J). The guiding principles about fact-finding by tribunals were dealt with in 3.4.11ff and need only be summarised at this point:

• A tribunal that is not bound by the rules of evidence can receive any relevant material submitted by the parties and in any form (for example, orally or in documentary form). The tribunal is not generally obliged to allow cross-examination to test the reliability of the evidence before it. A tribunal is regularly granted a power to inform itself as it thinks fit, but fairness usually requires that any material or knowledge considered during the exercise of this power be drawn to the attention of the parties. Fairness also usually requires that a chance be given to comment on the material or knowledge used: M Groves, ‘The power of an administrative tribunal to inform itself ’ (2015) 22 Australian Journal of Administrative Law 236.

• Although a tribunal can disregard the formal rules of evidence, equally it should understand that those rules distil a wealth of experience and wisdom about fact-finding, particularly on disputed issues. Evidentiary principles that provide useful guidance include: factual claims that are corroborated can more easily be accepted; hearsay evidence is not necessarily reliable; a person’s opinion will be more persuasive if it falls within their acknowledged expertise; and the failure of a party to provide evidence which it is within their capacity to provide can give rise, in practice, to an unfavourable inference against that party. • The tribunal generally shoulders the responsibility of being reasonably satisfied on each component issue. There is usually no onus of proof on the parties to the proceeding to prove a factual claim to the satisfaction of the tribunal. Reliance on concepts such as an onus of proof and related evidentiary concepts of civil litigation into administrative decision-making and review should generally be avoided: Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220. 852

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• The standards of proof that apply in civil litigation do not apply in administrative decision-making, but they nevertheless provide useful guidance. In resolving disputed issues of fact, a tribunal can be guided by the civil standard of proof (balance of probabilities) subject to any specific standards in the relevant legislation (for example, ‘reasonable hypothesis’, ‘real chance’). The nature or seriousness of an issue necessarily affects the process by which reasonable satisfaction is obtained, but evidentiary principles such as the Briginshaw principle or the rule in Browne v Dunn do not bind a tribunal, and not taking them into account is not an error of law nor a failure to take account of a relevant fact: see 3.4.20ff; see also Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at [16]–[17] (Logan J), [90]–[91], [115]–[116], [119]–[120] (Flick and Perry JJ). At the same time, these principles are based on concepts of ‘quite ordinary fairness’ and to the extent that a failure to comply with such principles is unfair, error may be found: Romeo v Asher (1991) 23 ALD 168 at 176. • A tribunal can accept as evidence a finding of fact made by a court in another case. The finding is not binding on the tribunal, unless the doctrine of issue estoppel applies or the finding provides the statutory foundation for the new decision presently under consideration. Appropriate regard should be had to the reasons of courts and tribunals in dealing with similar factual issues. • Another principle — forged more in the context of administrative decision-making than tribunal review — is that generally there is no doctrine of administrative estoppel. As a consequence, a government agency is not usually bound by its own earlier decisions, findings of fact, advice and representations.

• The criteria for lawful decision-making do not restrict the range of information that can be assembled by a tribunal or administrator, but they do regulate the decision-maker’s reliance on that information. For example, a decision will be invalid if based on irrelevant facts; and the doctrine of natural justice requires that a person be given an opportunity to comment on prejudicial and adverse information. The way that a tribunal reasons from the information before it can also indicate whether the tribunal has understood correctly the statutory test to be applied. The process of fact-finding can merge too with the process of construing and applying a statutory provision and overall must not be unreasonable, that is, lack an evident and logical justification: Li 7.2.7C. As is apparent from this principle, there is considerable overlap between relevant grounds of review such as unreasonableness, error of law, no evidence, irrelevancy, and breach of natural justice. 13.2.30  Some of those principles are echoed in the following two observations in High Court cases. The first was in Minister for Immigration and Ethnic Affairs v Wu Shan Liang 7.5.20C, criticising the use of terms such as ‘balance of probabilities’ and ‘evidence’ to describe administrative decision-making: Brennan CJ, Toohey, McHugh and Gummow JJ: Submissions were made at the hearing of the appeal as to the correct decision-making process which it would have been permissible for the delegates to adopt. These submissions were misguided. They draw too closely upon analogies in the conduct and determination of civil litigation. Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in 853

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the sense that their adoption by a delegate would not be an error of law. The term ‘balance of probabilities’ played a major part in those submissions … As with the term ‘evidence’ as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance.

To like effect is an oft-cited observation by Dixon J in Australian Workers’ Union v Bowen [No 2] (1948) 77 CLR 601. The comment was made about a non-government (or domestic) tribunal, but is generally applicable to administrative decision-making so far as principles of evidence are concerned: Dixon J: It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis. It is a tribunal that has no rules of evidence and can inform itself in any way it chooses. Members may act upon their own knowledge and upon hearsay if they are satisfied of the truth of what they so learn and if they give the member with whom they are dealing a proper opportunity of answering the charge and defending himself. The tests applied to juries’ verdicts, namely, whether there was evidence enabling a reasonable man to find an affirmative [sic] or whether upon the evidence a finding was unreasonable, have no place in the examination of the validity of such a domestic tribunal’s decisions. But the tribunal is bound to act honestly, that is to say it must have an honest opinion that what the member before it did amounted to misconduct and its decision must be given in the interests, real or supposed, of the body it represents and not for an ulterior or extraneous motive.

Probative evidence rule 13.2.31  One contested issue is whether a tribunal is subject to a probative evidence rule, either as a ground of review generally in administrative law or more narrowly as a legal obligation applying to administrative tribunals: see  3.4.14. This is an unresolved debate in Australian administrative law which has arisen under different headings — tribunals, natural justice (see  11.1.4) and the no evidence rule — but is essentially the same debate in each area. The debate starts from the settled principle that there must be some evidence to support a decision: hence, under the ‘no evidence’ principle, a decision will be invalid if there is no evidence to support it: see  13.2.2ff. But what kind of evidence? The adjective ‘probative’ is superficially appealing, because it means ‘affording proof ’. Thus, a decision must be supported by evidence that ‘affords proof ’ for the decision: see, for example, Commissioner of Taxation v A Taxpayer (2006) 91 ALD 335; Rawson Finances Pty Ltd v  Commissioner of Taxation 12.5.7C at  [84]. In a legal context, however, notions of ‘evidence’ and ‘proof ’ can soon develop into a more demanding obligation for a process of reasoning that ‘rationally’, ‘logically’ or even ‘defensibly’ supports — or proves — the decision that has been made. This may indicate a reviewable (or jurisdictional) error of another kind, such as a breach of natural justice for not affording an opportunity to address an issue in dispute: TCL Air Conditioner 13.2.5. Equally, reliance by a decision-maker on factors that are not logically probative of a serious issue (such  as commission of a crime as a factor relevant to grant of a protection visa) may indicate that the decision-maker misconstrued the test to be applied: FTZK v  Minister for Immigration and Border Protection (2014) 88 ALJR 754. 13.2.32  The elasticity inherent in a probative evidence rule is illustrated by the following three quotations. The first is from Diplock LJ in R v Deputy Industrial Injuries Cmr; Ex parte 854

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Moore [1965] 1 QB 456 (Moore) in 1965, often cited as the first exposition in Anglo– Australian administrative law of a probative evidence principle. The second is also from Diplock  LJ in the Privy Council in Mahon v  Air New Zealand  [1984] AC 808 in 1984; arguably this later reformulation of the principle by Lord Diplock is more demanding. The third is from Deane J in Bond 13.2.25C in 1990, and is an oft-cited Australian exposition of the principle: Diplock LJ: The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue … Diplock LJ: What is required by [natural justice] is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.

Deane J: If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably … When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.

Justice Deane’s comment, though frequently cited, has not been accepted generally as an authoritative statement of principle. As Mason CJ said in Bond (Brennan J agreeing at 365, and Toohey and Gaudron JJ agreeing at 387): ‘The approach adopted in these cases has not so far been accepted by this Court’: at 356–7. This was confirmed also by the Full Federal Court in TCL Air Conditioner: Allsop CJ, Middleton and Foster JJ: [106] [U]ntil the High Court decides otherwise, this Court should respect the binding character of what was said by Mason CJ in Bond. To the extent that cases such as [Li 15.2.18C] may be seen to encompass in the conception of legal unreasonableness notions referred to by Deane  J in Bond, that does not require the conclusion that the characterisation of Diplock  LJ in Moore or Deane  J in [Re Pochi and Minister for Immigration and Ethnic Affairs 3.4.13C, in which Deane J repeated the views he expressed in Bond] be adopted. As Gageler J said in Li at 371 [92], procedural fairness is closely linked with reasonableness. [107] … Deane J in Pochi saw what Diplock LJ said in Moore as necessary to avoid the procedural aspects of natural justice being reduced to a charade. There was, in everything Deane J said, the necessary presence of unfairness in the impugned decision. 855

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13.2.33  It may be that the debate as to whether there is or is not a probative evidence principle in Australian administrative law turns on how the principle is defined: see  TCL Air Conditioner at [98]. Defined narrowly, it is unquestioned doctrine that an administrative decision must be supported by some evidence that bears a logical connection to it. Defined broadly, there may be less common ground in a doctrine that requires a decision to be supported by factual inferences that are reasonably open and by reasoning that is not logically self-contradictory. The nature both of the decision to be made and of the decision-maker may also have a bearing on how a probative evidence principle is defined. Thus, on a strict reading, the comments in the Pochi cases — Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 256–7 (Brennan  J, as President of the AAT) and Minister for Immigration and Ethnic Affairs v  Pochi (1980) 31 ALR 666, 688–90 (Deane  J, in the Full Federal Court) — in support of a probative evidence principle can be confined to the situation of that case, in which the decision-maker was the Administrative Appeals Tribunal reviewing a decision to deport a person who had lived in Australia for 20 years and raised a family. The intersection of the probative evidence rule and other principles of fact-finding and decision-making was summarised as follows by the Administrative Review Council in Decision Making: Evidence, Facts and Findings, Best Practice Guide No 3, Commonwealth of Australia, Canberra, 2007: An administrative decision maker is not bound by the rules of evidence that regulate the admission and evaluation of evidence by courts. Administrative decision making is subject to a different standard: findings of fact must be based on logically probative evidence material that tends logically to prove the existence or non-existence of a fact. For example, rumour or speculation is not logically probative evidence because it does not tend rationally to prove what it asserts. An administrative decision maker can receive most kinds of evidence, even if that evidence would not be admissible in a court. Some of the rules of evidence prevent courts receiving certain types of evidence on the ground that the evidence is inherently unreliable, that it would be unfair to admit the evidence, or that the evidence should be excluded for policy reasons because it was unlawfully or improperly obtained. Decision makers are not bound by those rules, but they do provide useful guidance when evaluating evidence. The considerations of fairness and reliability on which the rules are based are also relevant in administrative fact finding.

Although ss 4 and 5 of the Evidence Act 1995 (Cth) specify that the Act does not apply to tribunals, its definition of ‘probative evidence’ is a guide: ‘“Probative evidence” means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’: Dictionary. 13.2.34  The possible existence of the probative evidence rule should not obscure the more important issues, which include the question of whether the facts of a case sufficiently support a finding or inference of fact, how this may give rise to an error of law, and when courts may review fact finding. Justice Logan identified a similar approach to these issues in different grounds of review in Sun v Minister for Immigration and Border Protection. In that case a migration tribunal had found that a document offered in support of an application for a protection visa was a ‘bogus document’. Section  97 of the Migration Act  1958 (Cth) defined ‘bogus document’, and the presence or absence of bogus documents in an application was deemed relevant by the Migration Regulations 1994 (Cth). One question before the Full 856

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Federal Court was whether the tribunal was right to conclude a document supplied by the applicant was bogus. Justice Logan reasoned: [A]n administrative decision-maker on the position of the Tribunal must act on material which is rationally probative of its factual conclusion and, unless the statutory touchstone for that conclusion admits of it, material which rises no higher than raising a suspicion supporting that factual conclusion is no foundation for such a conclusion. That would accord with observations, albeit each made in the context of review for jurisdictional error, in [SZMDS 15.2.17C] and, on review of a decision for unreasonableness, in [Li 15.2.18C].

13.2.35  Justice Logan held that the tribunal was entitled to find that the relevant document was a bogus one, a finding for which Flick and Rangiah  JJ concluded (at 96) there was ‘ample reason’. Their Honours also reasoned that arguments there was no real basis for this conclusion were an impermissible invitation for the court to exercise the fact-finding role of the tribunal. Where these concerns about the court overstepping its role are not present, the absence of probative evidence can point to various forms of legal error. In BZC17 v Minister for Immigration and Border Protection [2018] FCA 902, Mortimer J explained: [89] One way in which reasoning in a decision may be said to be irrational or illogical, is if it is unsupported by probative evidence. That is because rational and logical reasoning, in order to form the requisite state of satisfaction required by [statutory] provisions…needs to be based not only on factual material or information, but on factual information or information which is probative of the finding or conclusion reached. That is, factual material or information which tends to make out, or support, the finding or conclusion reached. There must be a rational connection between the factual information or material and the finding or conclusion reached.

JUDICIAL REVIEW OF FACT-FINDING ERRORS 13.3.1  The law/fact distinction permeates judicial review in two ways. First, judicial review is anchored in the legality/merits distinction (see 7.2.2), which is itself rooted in the difference between judicial and executive functions. The former is concerned with resolving disputed legal issues, often to do with the meaning of legislation. The latter is primarily concerned with applying legislation to the facts in the context of administrative decision-making, frequently involving the ascertainment and clarification of disputed or unclear facts. Second, the law/ fact distinction permeates judicial review as a consequence of ‘error of law’ being a ground of judicial review (explained in more detail in 13.4.1ff). There has been a tendency in applying that ground to employ a law/fact dichotomy to explain the conceptual boundary of ‘error of law’. 13.3.2  There are nevertheless many ways in which fact-finding errors are judicially reviewable, and this section draws attention to how some of the grounds for judicial review are applied to fact-finding errors. The comments noted in this section must nevertheless be read in context with the frequent but contrary statement that the province of judicial review does not extend to review of factual errors. The analysis begins with an example in GTE (Australia) Pty Ltd v Brown 13.3.3C where the Federal Court held that a serious fact-finding error constituted a breach of several grounds of review. 857

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GTE (Australia) Pty Ltd v Brown (1986) 14 FCR 309 Federal Court of Australia

[The Customs Tariff (Anti-Dumping) Act 1975 (Cth) empowered the minister to impose a special duty upon any product that was ‘dumped’ in Australia — that is, which was exported to Australia at less than its normal sale value in the country of origin, resulting in commercial injury to an Australian industry. The minister imposed a duty on imported light bulbs, after receiving a departmental briefing paper that miscalculated the sale price of the bulbs in their country of origin. The error stemmed from a misinterpretation of a price list which was written in a foreign language, and which referred to bulbs of a different type and voltage. The court held that the minister’s decision was unlawful.] Burchett J: More serious questions are raised by the misuse of the price lists to attribute to pearl bulbs prices at which a different product was sold, while the actual prices of pearl bulbs were ignored, by the ignoring also of certain prices relating to bayonet fittings and the substitution for them of prices constructed from the very export sales with which a comparison was to be made, and by the selection of an unusual and therefore more highly priced voltage, instead of the common voltage, for a comparison with exported bulbs of the different common voltage in Australia. The respondent … contended that each of these questions was concerned with a mere matter of fact. But it is required of an administrator, who makes a determination affecting the rights, interests and legitimate expectations of persons, that he make his determination upon material having some probative weight. He may not simply guess. If he does, his error of law is not that he got it wrong, but that he went about his duty in that fashion. [His Honour cited the statements of Diplock LJ in Moore and Deane J in Bond 13.2.25C (see 13.2.32), that a decision must be based on logically probative evidence.] There was no material at all which tended logically to show the prices adopted by the Minister for pearl bulbs, or that the prices shown in the price lists for pearl bulbs with bayonet fittings should be rejected, or that a price should be constructed for pearl bulbs out of the prices for opalescent bulbs with an addition of a percentage derived from an analysis, not of domestic sales, but of export sales. The fact was that elaborate calculations were made upon basic figures which could only have been arrived at by a process of guesswork, or by complete inadvertence to relevant factors. The Minister must of course be taken to have had the information which his Department had (Peko-Wallsend [10.4.13C] especially at 312, 329). He could not, consistently with acting reasonably, simply brush aside information specifically furnished by an interested party in respect of a central issue just because, the investigation having taken place in a foreign country, the information was expressed in a foreign language. To do so would be to offend against both s 5(2)(a) and s 5(2)(g) of the Judicial Review Act. … To my mind, the present case is a clear illustration of the point made by Lockhart J in Laremont [see 13.3.4]) where his Honour held that a submission to the Minister concerning the effects of a deportation upon an applicant’s workers compensation case ‘conveyed a materially inaccurate impression to the Minister which played a significant role in his decision.’ His Honour proceeded — It is a case, not of insufficient weight being given to a material matter, but of a fundamental misconception of what is admitted to be a consideration of significance. It thus constituted a failure to take a relevant consideration into account and was contrary to law.

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In the present case there was a fundamental misconception going to the very root of the decision, in so far as domestic prices adopted as a yardstick were not the prices of the goods in question but of other goods. Because they were other goods they differed from the goods in question, and because they differed, the prices were subjected to a further manipulation which was entirely unrelated to the question to be determined … [I]t cannot be said of any of the errors I have found that the factor involved was so insignificant that the failure to take into account the consideration which should have been taken into account could not have materially affected the decision. That is the test adopted by Mason J in the Peko-Wallsend Case (at 313) … Even if the errors which occurred in the utilisation of the price lists could be regarded as erroneous factual decisions in the weighing-up of the matters required to be taken into account, it would have been necessary to consider whether the principle discussed by Mason J in the Peko-Wallsend Case (at 309–10) would not have required a finding that the decision was manifestly unreasonable, so as to fall within s 5(2)(g) of the Judicial Review Act. In my opinion, in the special circumstances of this case, the selection of the opalescent bulbs and the further adjustment of their price could not have been regarded otherwise.

13.3.4  The following account, building on GTE 13.3.3C, lists some grounds for judicial review that have been applied at times to fact-finding errors. There is a fuller discussion of each ground elsewhere in this book:

• Breach of natural justice: As illustrated by Thai Pineapple Canning Industry Corp Ltd v Minister for Justice and Customs (2008) 104 ALD 481, there may be a breach of natural justice if a person is not given an opportunity to respond to a prejudicial factual error in a report or submission relied on by the decision-maker.

• Decision not authorised by the enactment pursuant to which it was purportedly made (see 8.2.1): This ground applies where, in making a decision, a requirement or stipulation in a statute has not been fulfilled. Some statutory requirements are of a straightforward variety, and the misapplication of the requirement is more likely to be factual rather than legal in character (indeed, as noted in 13.5.15, the ordinary meaning of a non-technical word is sometimes described as a ‘question of fact’). An example, arising in Attorney-General (Northern Territory) v Hand (1988) 16 ALD 318, is that a native title claim could not be granted over land that contained a public road; whether there was a public road was an issue of fact on which a court undertaking judicial review could receive fresh evidence. Other examples are given in 7.2.24 and 8.2.2, and for facts that are jurisdictional in 13.2.9–13.2.12. • Taking an irrelevant consideration into account (see 10.3.1ff): In some cases where this ground has been applied, material was classified as an irrelevant consideration by a court because it was factually inaccurate. An example is Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363, in which the decision-maker was misinformed about the welfare benefits to which a person would be entitled if returned to another country — a decision-making error described by the court as ‘proceeding upon an erroneous premise on a fundamental matter’: at 373. Equally, in Plaintiff M76/2013 v  Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322, the High Court held unanimously that it was an error of law for the minister to consider an invalid regulation to be relevant to the decision. 859

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• Failing to take a relevant consideration into account (see  10.4.1ff): This ground has been applied in a like manner: inaccurate material before a decision-maker can, it has been held, result in the exclusion (and non-consideration) of relevant and accurate material. An example is Laremont v  Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13, holding that a departmental submission to the minister, concerning the effect that deportation would have on the resolution of an applicant’s workers compensation claim, conveyed a materially inaccurate impression to the minister and played a significant role in that decision. There is also an echo of this approach in the principle enunciated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd 10.4.13C, that a decision ‘must be based on the most recent and accurate information that the minister has at hand’: at 44. To fail to refer to significant information in reasons is such an error: Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 (a letter supporting a visa applicant’s claim to be a Christian); and Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [119]–[120] (an overlooked academic transcript). Another important qualification, however, is that the relevant fact that was not considered must be one that the decisionmaker was obliged to take into account, expressly or by implication: Peko-Wallsend 10.4.13C; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 27; Mineralogy 13.2.17.

• Reliance by a decision-maker on a non-existent fact (see  13.2.22): This ground is one of the limbs of the ADJR Act ‘no evidence’ ground of review considered earlier in this chapter. The  ground was applied in Curragh 13.2.26C, where the decision-maker had wrongly concluded that a company could negotiate a later supply date for goods than the date stipulated in a contract.

• Wednesbury unreasonableness (see  15.2.1ff): An example of this ground given in PekoWallsend is failing to give adequate weight to a relevant factor of great importance, or giving excessive weight to a relevant factor of no great importance. Another example is where there is no evidence to support the decision, or the decision was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Li  7.2.7C. Other examples of Wednesbury unreasonableness being applied to fact-finding errors are given in 15.3.15. • Failing to base a decision on logically probative evidence (see  13.2.31ff): This principle is of uncertain dimension. On a narrow view it requires that a decision be supported by some evidence that bears a logical connection to it; on a broader view it requires that a decision be supported by factual inferences that are reasonably open. On either view the principle requires a court to evaluate the evidentiary and factual support for a decision. This ground has added force since Li.

• Failing to satisfy a jurisdictional fact (see  13.3.9ff): If a statutory precondition to a decision is classified as a jurisdictional fact, it is for a court undertaking judicial review to decide whether the fact existed, and hence whether the power to make a decision could be exercised. In deciding the jurisdictional fact issue the court can have regard to evidence that was not before the decision-maker. An example is Timbarra Protection Coalition Inc v Ross Mining NL 13.3.13C, in which the court held that a statutory requirement for a development application to be accompanied by a species impact statement if the development was ‘likely to significantly affect threatened species’ was a jurisdictional fact and required compliance. See also Mineralogy and Watson discussed at 13.2.18–13.2.21. 860

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• Jurisdictional error (see 13.3.8): As noted later in this section, it has been held that a tribunal deciding an asylum claim commits a jurisdictional error if it bases a conclusion in whole or in part on a misunderstanding or misconstruction of a claim, including a factual claim, advanced by an applicant for a protection visa.

The approach adopted in some of those examples was condoned by Mason CJ and other judges in Bond 13.3.5C. 13.3.5C

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11 High Court of Australia

[An extract from this case including the facts is given in 2.4.8C. That extract dealt with the meaning of the ADJR Act requirement that the matter to be reviewed is a ‘decision’ or ‘conduct’. A further extract from the case, dealing with the no evidence ground of review, is given in 13.2.25C.] Mason CJ: The Federal Court has expressed its agreement with statements made by the House of Lords to the effect that courts exercising judicial review should leave the finding of facts to the public body appointed for that purpose by the legislature except where the public body acts ‘perversely’ … In this context, ‘perversely’ signifies acting without any probative evidence … Thus, it has been held that the ADJR Act does not permit general review of findings of fact, in the absence of error of law … In particular, in Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414, Pincus J held (at 429) that the presence of s 5(1)(h) and (3) meant that an error of law within the meaning of s 5(1)(f) could not include a mere lack of evidence, as distinct from a complete absence of evidence. [Mason CJ then discussed a decision in which use of improper exercise of power and relevant and irrelevant considerations were regarded as possible grounds for making a finding of fact which is unreasonable or arbitrary:] [A] finding of fact constitutes a ‘decision’ such that it can be reviewed for unreasonableness and on other appropriate grounds. But if the finding does not constitute a ‘decision’, it is beyond review independently of such a ‘decision’. In accordance with what I have already said, a finding of fact will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing. [Brennan and Deane JJ agreed with the judgment of Mason CJ. An extract from the judgment of Deane J dealing with the reviewing of fact-finding errors under the probative evidence principle is given in 13.2.32. Toohey and Gaudron JJ delivered a separate judgment dealing with other issues.]

13.3.6  The observation of Mason  CJ in Bond 13.3.5C has to be read alongside an earlier quotation from the same judgment (see  13.2.4), in which Mason  CJ repeated (at 356) the orthodox principle that ‘there is no error of law simply in making a wrong finding of fact’ (citing Brennan  J in Waterford at 77; see  also Independent FM Radio Pty Ltd v  Australian Broadcasting Tribunal (1989) 17 ALD 529, discussed in 15.3.17). Another passage commonly 861

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cited in that context is the observation of Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] 1 AC 484: Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.

13.3.7  The debate about differentiating factual errors from legal errors often surfaces in a different guise, as a debate about whether faulty and illogical reasoning in a decision will cause it to be invalid. Illogicality, perversity and factual errors can lead into some other recognised ground of reviewable error: see  13.2.5. As noted by Gleeson  CJ in Applicant S20, it can be ‘unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality, or unreasonableness of some degree … [I]t is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged’: at  63 (see  also 15.2.14). That approach was, in effect, endorsed by the High Court in SZMDS 15.2.17C and Li 15.2.18C (see  also 13.2.4). Grounds of review to which perversity and illogicality have been related include: applying the wrong test (Melbourne Stevedoring 13.2.3C), no evidence (Bond 13.3.5C), lack of probative evidence (Bruce v Cole (1998) 45 NSWLR 163), breach of a jurisdictional fact (SGLB and SZMDS), and breach of an implicit statutory requirement for a process of logical reasoning: Hill v Green (1999) 48 NSWLR 161 and Li. In the context of judicial review, much can therefore turn on the way in which a principle is framed. 13.3.8  Another issue is whether a fact-finding error can be a jurisdictional error. This question has mostly arisen in migration litigation being heard in the High Court under s 75(v) of the Constitution or in the comparable jurisdiction of the Federal Court or the Federal Circuit Court under s 39B of the Judiciary Act 1903 (Cth). As noted in 2.4.59, the jurisdiction of these courts is to issue prohibition, mandamus or an injunction where there has been a jurisdictional error. The debate has been settled in SZMDS 15.2.17C and was confirmed in Li 15.2.18C, subject to the caveat that the error of fact must amount to a jurisdictional error: see 13.2.5. Courts have acknowledged that in limited circumstances an error of fact can constitute a jurisdictional error. Examples of the circumstances in which this can occur were provided in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1: Black CJ, French and Selway JJ: Where the Tribunal fails to make a finding on ‘a  substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction — Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 per Gummow and Callinan  JJ, Hayne  J agreeing at 408. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the [Migration] Act … It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to 862

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its own circumstances … [In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630] the appellant, who was an Iranian citizen, put to the Tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The Tribunal made no express reference in its discussion and findings to the claimed fears of persecution which arose out of the marriage by the appellant’s son to a Muslim woman although it made reference to the claim in its overview of the appellant’s case. The [Full] Court held that the Tribunal had failed to consider an issue going directly to the question whether the criterion under s 36 of the [Migration] Act was satisfied. The Court held that the Tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error.

The familiar caution against judicial review of fact-finding errors was nevertheless sounded by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473: Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

The jurisdictional (or objective) fact concept 13.3.9  Parliament can stipulate that the power to make a decision is conditional upon the existence or occurrence of a fact, event or circumstance. In simple terms, something specific must be either present (or sometimes absent) before power can be exercised. For instance, an executive power to grant a licence or concession may be confined to applications filed by a specified date, or lodged by a specified party, or concerning a specified locality or subject. It is common to refer to a precondition of that kind as a ‘jurisdictional fact’, though in truth the precondition can be of a legal as well as a factual kind. Justice Basten has suggested that jurisdictional facts could be ‘better described as a precondition to the engagement of a statutory power’: Trives v Hornsby Shire Council (2015) 89 NSWLR 268 at 281. This new description may sound clear but the problem remains of how to determine whether something (whether a fact or otherwise) is intended by parliament as a precondition to the use of statutory power. The problem is difficult because deciding whether an issue is a jurisdictional fact is a matter of statutory interpretation but the relevant principles are obscure. 13.3.10  Two issues that bedevil administrative law can arise, and are illustrated in Timbarra 13.3.13C and Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship 13.3.17C, and in other cases discussed in the material following. First, who decides whether a jurisdictional fact has been satisfied? Of necessity the decision-maker must make an initial assessment, but that assessment will not be treated as authoritative or final. As to jurisdictional facts, it is for a court undertaking judicial review to decide if the jurisdictional fact was satisfied. Justice Gageler has explained that, whatever form jurisdictional facts may take, they constitute something ‘the existence or non-existence of which is for the objective determination of a court’: Plaintiff M64/2015 v Minister for Immigration and Border Protection 12.2.17C at 197 [66]. The role of a court in this exercise is not narrow. The court is not restricted to the evidence or material that was before the decision-maker, and the court can substitute a new decision. In effect, the court is not confined to its orthodox judicial review 863

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role of examining whether the decision-maker erred by having breached one of the grounds of review. It is, of course, open to the legislature to alter that standard picture. For example, the legislature (subject to constitutional constraints) may instruct that the decision-maker has conclusive authority to decide that a jurisdictional fact has been satisfied. Or the legislature may instruct that a correct finding on a jurisdictional fact is not a precondition of the validity of a subsequent decision: the jurisdictional fact, as it is sometimes explained, is to be regarded as directory, not mandatory: see 16.2.5ff. Or, having regard to the nature of the jurisdictional fact, a review court may think it appropriate to pay deference to or attribute special weight to the decision-maker’s initial view concerning the jurisdictional fact: see 13.5.3. 13.3.11  Second, when should a statutory requirement be classified as a jurisdictional fact? For example, if a statute provides that a person is eligible for unemployment benefit if they are 16 years of age, unemployed and have made reasonable attempts to seek work, which if any of those requirements is a jurisdictional fact? Would the answer be different if one or more of the criteria (as in Green v Daniels 7.2.4C) was qualified by an ‘if the Director-General is satisfied that’ clause? On one view, every statutory limitation can fulfil the description of being a precondition to a valid decision. Yet, on another view, every such matter is necessarily consigned to the decision-maker, and a court undertaking judicial review should not substitute a new finding on any point, but instead examine only whether the decision-maker breached a ground of review. 13.3.12  The concept of jurisdictional fact was, in origin, a less contentious concept. Its principal application was to describe the limitations on jurisdiction of a court or tribunal — for example, to decide cases of a certain monetary value, filed within a specified timelimitation period, or arising between parties of a particular description (say, husband and wife, or employer and employee). Those were often matters of objective fact which were ascertained at the commencement of a proceeding that was expected to spend some time taking evidence from the parties. However, once the concept of jurisdictional fact was extended generally to executive decision-making, as it has been, added complexity arose. 13.3.13C

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 New South Wales Court of Appeal

[The Tenterfield Shire Council approved an application by Ross Mining NL under the Environmental Planning and Assessment Act 1979 (NSW) to extend and modify a gold mine in the Malara State Forest. Section 77(3)(d1) of the Act provided that an application for development ‘shall … if the application is in respect of development on land that is … likely to significantly affect threatened species … be accompanied by a species impact statement’ in the prescribed form. No such statement was submitted; nor did the council require a statement, having been advised by its Director of Environmental Services that the proposed development did not significantly threaten any species. The Timbarra Protection Coalition challenged the validity of the development consent in the New South Wales Land and Environment Court, alleging that the development would impact on frogs, mammals, bats and owls. The court (Talbot J) declined to allow the Coalition to adduce evidence to that effect, ruling that the function of the court was to review whether the council had erred on the material before it. On appeal, the Court of Appeal reversed that ruling, holding that

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the decision whether a species impact statement was required was a jurisdictional fact (or condition precedent) which the Land and Environment Court had to determine for itself on the basis of evidence adduced by the parties.] Spigelman CJ (Mason P and Meagher JA agreeing): If the fact in issue in the present case is a jurisdictional fact, then evidence of the existence or non-existence of that fact was admissible in the Land and Environment Court. … Accordingly, if Talbot J erred in the construction of s 77(3)(d1), his rejection of relevant evidence means that this appeal must be allowed and the matter remitted to the Land and Environment Court. The issue of jurisdictional fact turns, and turns only, on the proper construction of the statute. … The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality): Project Blue Sky Inc v Australian Broadcasting Authority [16.2.10C] at 515–17. ‘Objectivity’ and ‘essentiality’ are two inter-related elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are inter-related because indicators of ‘essentiality’ will often suggest ‘objectivity’. Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes ‘jurisdictional fact’ as some kind of ‘doctrine’ is, in my opinion, misconceived. The appellation ‘jurisdictional fact’ is a convenient way of expressing a conclusion — the result of a process of statutory construction. Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts. Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power — it is not necessary to determine which, for present purposes — a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense), but not itself determine the actual existence or non-existence of the relevant facts. Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker — ‘opinion’, ‘belief’, ‘satisfaction’ — the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact. … Where such words do not appear, the construction is more difficult … The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion

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is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power … Section 77 does not involve, either explicitly or implicitly, the exercise of any statutory power by a consent authority. Section 77 is directed to the making of development applications by applicants, not the making of decisions by a consent authority … The making of an application by an applicant is preliminary to, and quite distinct from, the process of ‘determination’ by a consent authority. A factual reference in a statutory formulation relating to the instigation of a statutory decision-making process, is more likely, in my opinion, by reason of its extrinsic nature, to turn on an objective fact, than is a factual reference arising in, or in relation to, the conduct of the decision-making process itself. In the present case, the location of the relevant factual reference in a statutory formulation concerned with the requirements of an application, is a significant factor suggesting that the factual reference is jurisdictional. One formulation of the relevant distinction is whether the fact referred to is ‘a fact to be adjudicated upon in the course of the inquiry’ as distinct from an ‘essential preliminary to the decision-making process’: Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 443. See also: ‘(a fact) which can only be determined as part of the general inquiry into the charge which is being heard’: R v Nat Bell Liquors Ltd [1922] 2 AC 128, 158 … or ‘matters incidental to the exercise of the discretionary powers conferred’: Tan Te Lam v Tai A Chan Detention Centre [1997] AC 97 at 112 … [His Honour described the statutory scheme for protecting threatened species and preserving biological diversity, including the requirements for public consultation on a species impact statement, and the concurrence of the Director-General of National Parks and Wildlife to some development proposals.] It can readily be seen that a species impact statement, when required, plays a critical role in the quality of the decision-making process, by ensuring that detailed information is available to primary decision-makers in a systematic and ordered way. This, in my opinion, makes it more likely that the legislature intended the circumstances which lead to the requirement to prepare a species impact statement, to be both objectively ascertained and essential. The significance attached to a species impact statement, when required, is confirmed in the mandatory form of the introductory words of s 77(3): ‘A development application shall …’. … The purpose of a species impact statement in the legislative scheme strongly suggests that the occasion for its creation is a jurisdictional fact. The consent authority’s opinion as to the existence of that occasion is not determinative, because a species impact statement is not only directed to informing a consent authority. It is also directed at informing both those who may make submissions and the Director-General of National Parks and Wildlife … [F]acts, even where they are described as ‘objective’, do not have an existence independent of their identification by some process of human agency. An administrative decision-maker often has to determine even jurisdictional facts, but does not do so conclusively. This has been recognised as long ago as Bunbury v Fuller (1853) 9 Ex 111 at 140; 156 ER 47 at 60. As Fullagar J said in R v Blakeley (at 90–1), in a passage which has frequently been referred to in subsequent High Court decisions: Generally speaking, when a tribunal, other than a superior court in the technical sense, is called upon to exercise jurisdiction, it must, of necessity, begin by considering for itself the preliminary question whether it possesses the jurisdiction

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invoked. That question may depend on questions of law or questions of fact or on questions of both law and fact … But the important point is that the decision or finding with regard to the existence of jurisdiction, whether it be affirmative or negative, stands in a radically different position from a decision or finding given or made within jurisdiction on the merits of the case. The latter is conclusive and binding subject only to any appeal that might be given: if no appeal is given, it is absolutely conclusive and binding. The former is not conclusive or binding at all. It is open, if it be affirmative and wrong, to prohibition. It is open, if it be negative and wrong to mandamus … One of the considerations put forward against a conclusion that the factual reference is a jurisdictional fact, is that the obligation to prepare a species impact statement is triggered by a formulation requiring the exercise of a broad judgment on a matter of potentially significant disputation … The fact that a matter of judgment of this character is involved does suggest that it is less likely to be intended by parliament to be an objective fact, because it is, characteristically, a matter on which reasonable minds may differ. Nevertheless, the proper construction of the statute may be that parliament did so intend. So, for example, the test of whether a report was ‘substantially favourable’ to an employee was found to be an objective one: see Sutherland Shire Council v Finch (1969) 123 CLR 657, 663, 666 … Another factor, relevant to determining the intention of parliament, is the inconvenience that may arise from classifying a factual reference in a statutory formulation as a jurisdictional fact. Statutes are construed on the basis that parliament did not intend to cause inconvenience, although it can do so, and often has. Was it the intention of parliament to invalidate a development application which was not accompanied by a species impact statement when, on an objective test, it should have been? The inconvenience arises when a consent authority decides that a species impact statement is not required and this decision is subsequently found to be wrong. In principle, the balance of the decision-making process, and any decision to grant consent, is thereafter susceptible to being set aside. However, remedies on judicial review are discretionary and may be refused, depending on the circumstances, including delay. The further a decision-making process has gone, in reliance on the validity of a decision not to require a species impact statement, the more difficult it will be for an applicant to obtain relief. Taking all these factors into account, I have concluded that the decision as to whether or not a species impact statement is required plays such a significant role in the legislative scheme that it is appropriate to describe it as an ‘essential condition’ (Craig v South Australia [16.4.17C] at 179) or ‘essential preliminary’: Colonial Bank for Australasia v Willan (at 443) … It was accordingly a jurisdictional fact which the Land and Environment Court was obliged to decide for itself.

13.3.14  The views expressed by the New South Wales Court of Appeal in Timbarra 13.3.13C were echoed by the High Court in Corporation of the City of Enfield v Development Assessment Commission 7.5.10C — a case which, at the same time, illustrates the complexity of deciding whether a statutory requirement is or is not a jurisdictional fact. Legislation provided that the commission alone could approve an industrial development application, but not if the proposed industry would ‘produce conditions which are, or may become, offensive or repugnant to the occupiers or users of land in the locality’ of the proposed industry. If so, the concurrence 867

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of the minister and the relevant local council were also required. The High Court held that the question (whether the proposed industry was noxious) was a jurisdictional fact, principally because the legislation ‘does not define the criterion of operation as the opinion of the relevant authority as to the classification of the development’: at 150. Consequently, ‘that question has to be answered by the court in which it is litigated upon the evidence before that court’: at 146. More generally, the court noted that: ‘The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion’: at 148. Other statutory requirements that have been found to be jurisdictional facts include: whether ‘a passenger card (produced to an immigration officer on entry to Australia) contains information that is false or misleading in a material particular’ (Minister for Immigration and Ethnic Affairs v  Naumovska (1983) 88  ALR 589); whether an officer issuing a certificate authorising a controlled operation could be satisfied that unlawful activity in the course of the controlled operation would not seriously endanger the health or safety of a person (Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120); whether a contract requires a person to perform work in an industry (Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales (2009) 78 NSWLR 43); and the scope of an investigator’s authority concerning the parameters of an investigation under a public sector code of conduct: Pervan v Frawley (2011) 20 Tas R 185. 13.3.15  The High Court in Enfield 7.5.10C and Plaintiff M70/2011 13.3.17C paid attention to whether a statutory criterion was framed as an objective condition or in subjective language. This point was emphasised also by the Full Federal Court in Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources (2008) 166 FCR 54, in holding that it was not a jurisdictional fact for a minister to decide that a mine development was not a ‘controlled action’ that would have a significant environmental impact: Tamberlin, Finn and Mansfield JJ: To constitute a condition precedent, the relevant fact or circumstance must exist independently of, and be objectively determined prior to, the exercise of the power or performance of the duty by the decision-maker. The starting point for ascertaining whether a fact or circumstance is a jurisdictional fact must be the words of the statute, read in their context. Although there is no strict verbal formula, the existence of a jurisdictional fact is frequently signalled by the use of expressions such as ‘where “x” exists’, or ‘when “x” exists’ or ‘if “x” exists’, then a person is empowered or obliged to act or refrain from action. The ‘x’ in this format is the relevant fact or circumstance which is a condition precedent to the exercise of a power or performance of a duty. In some instances, the fact or circumstance may be subjectively expressed. Examples of this include ‘where in the opinion of the Minister “x” exists’ or, ‘if in the opinion of the Minister “x” exists’ or ‘when the Minister is satisfied “x” exists’, then the Minister is to exercise the power or perform the duty. Such language often indicates that the Minister must form the necessary opinion as a condition precedent to the power or duty, although the correctness of this opinion, once formed, is not a matter for review by the Court.

13.3.16  To similar effect is the analysis of Basten JA in Barrick Australia v Williams (2009) 74 NSWLR 733: [26] Where a power is said to depend upon, not the existence of a contingency, but the satisfaction of the decision-maker as to the contingency, the jurisdictional fact will be the relevant state of satisfaction … Where there is no such express legislative statement, an inference may be drawn from surrounding provisions and from the nature of the contingency. 868

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Thus, if the contingency is something which the administrative decision-maker is required to investigate, it is more likely that the jurisdictional fact is the state of satisfaction of the officer … Similarly, if the matter is one requiring evaluative judgment, it is more likely that the legislature intended that the officer form an opinion as to the contingency, rather than that the power be engaged only where the objective facts are established … By contrast, an intention to establish a jurisdictional fact, to be determined objectively, may be found where the precondition to the exercise of the power is distinct from the matters to be addressed in exercising the power and can thus be characterised as ‘an essential preliminary to the decision-making process’ …

The above cases must now be considered in the light of the High Court’s decision in Plaintiff M70/2011 13.3.17C and in particular the contrasting approaches to construction of the jurisdictional fact of the majority and French CJ. 13.3.17C

Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; 280 ALR 18; [2011] HCA 32 High Court of Australia

[Plaintiff M70 and Plaintiff M106 were unlawful non-citizens who arrived by boat and were detained on Christmas Island in August 2011. Plaintiff M70 was an adult; Plaintiff M106 was a minor. They claimed a well-founded fear of persecution in Afghanistan and sought asylum in Australia. The minister determined that they should be transferred to Malaysia, pursuant to a declaration the minister had made under s 198 of the Migration Act 1958 (Cth) that Malaysia was a country to which ‘offshore entry persons’ could be taken for processing. Section 198A provided: (1) An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3). … (3) The Minister may: (a) declare in writing that a specified country: (i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and (ii) provides protection for persons seeking asylum, pending determination of their refugee status; and (iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and (iv) meets relevant human rights standards in providing that protection … The plaintiffs sought an injunction and an order in the nature of prohibition in the original jurisdiction of the High Court to restrain the minister from transferring them to Malaysia. They contended that the criteria in s 198A(3)(a) were jurisdictional facts which must be established before the minister’s power to make a declaration could arise. A majority of the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Heydon J dissenting) held that the minister’s declaration under s 198A was invalid and that the plaintiffs could not be removed to Malaysia. The joint judgment of Gummow, Hayne, Crennan and Bell JJ found that the criteria in s 198A(3) were jurisdictional facts that on the objective evidence could not be met by Malaysia. French CJ found that, although the criteria were not

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independently jurisdictional facts, the minister’s state of satisfaction was a jurisdictional fact, and was infected by jurisdictional error. Kiefel J arrived at a similar conclusion to the joint judgment but placed less emphasis on the jurisdictional fact characterisation.] French CJ: [57] The term ‘jurisdictional fact’ applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be ‘a complex of elements’. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact. The primary submission on the part of the plaintiffs, however, looked to the existence of the matters set out in s 198A(3)(a) as conditioning the Minister’s power to make a declaration. [58] The question is one of statutory construction. The considerations advanced by the plaintiffs cannot overcome the language of s 198A(3). Moreover, clear language would be needed to support the primary characterisation for which they contend. The Minister is empowered under s 198A(3) to make a declaration, the content of which is defined by that subsection. Putting to one side the nature and scope of the ‘protection’ referred to in each of subparas (i)–(iv), their language indicates the need for ministerial evaluative judgment. As explained below, consideration of the domestic law of the proposed receiving country and its binding commitments and obligations under international law is mandated. That consideration will necessarily be an evaluative task. The words ‘provide’, ‘access’, ‘effective procedures’ and ‘meets relevant human rights standards’ all point in that direction. The function conferred upon the Minister is an executive function to be carried out according to law. Absent clear words, the subsection should not be construed as conferring upon courts the power to substitute their judgment for that of the Minister by characterising the matters in subparas (i)–(iv) as jurisdictional facts. [59] On the other hand, the mere fact that it is the Minister who makes the declaration is not enough to secure its validity. The Solicitor-General was correct when he submitted that the Minister is required to form, in good faith, an evaluative judgment based upon the matters set out in s 198A(3)(a), properly construed. That the Minister properly construe them is a necessary condition of the validity of his declaration. Properly construed, they define the content of the declaration which the Parliament has authorised. If the Minister were to proceed to make a declaration on the basis of a misconstrued criterion, he would be making a declaration not authorised by the Parliament. The misconstruction of the criterion would be a jurisdictional error. … A declaration under s 198A(3) affected by jurisdictional error is invalid. Another way of approaching the scope of the ministerial power under s 198A(3) is to treat it as being, by necessary implication, conditioned upon the formation of an opinion or belief that each of the matters set out in s 198A(3)(a)(i)–(iv) is true. The requisite opinion or belief is a jurisdictional fact. If based upon a misconstruction of one or more of the matters, the opinion or belief is not that which the subsection requires in order that the power be enlivened. …

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[65] It is not necessary to delineate all of the matters comprehended by the term ‘protection’ in s 198A(3) or the particulars of ‘relevant human rights standards’ mentioned in s 198A(3)(a)(iv). The Minister conceded, by way of the written submissions made on his behalf, that if the proper construction of s 198A(3) meant that he was required to focus upon the laws in effect in Malaysia and not upon the ‘practical reality’, then he would have erred in this case. In my opinion, the Minister was so required and did so err. Gummow, Hayne, Crennan and Bell JJ: [106] Section 198A(3) provides that the minister ‘may: (a) declare … that a specified country’ has the four characteristics identified in sub-pars (i) to (iv) of that paragraph. Section 198A(3)(a) does not refer to the minister being satisfied of the existence of those criteria or provide that the minister’s forming of an opinion about those matters is a condition for the exercise of the discretion to make a declaration. Rather, the minister is given a discretion, and thus has power, to declare that a specified country has the relevant characteristics. On its face, it is not a power to declare that the minister thinks or believes or is satisfied that the country has those characteristics. [107] The plaintiffs submitted that the criteria in sub-pars (i) to (iv) of s 198A(3)(a) are jurisdictional facts. They submitted that the matters stated in the criteria must be satisfied before a declaration could validly be made. Their primary position was that each was to be understood as a jurisdictional fact ‘in an objective sense’: ‘a fact that must exist, objectively, before an administrative jurisdiction to exercise a power is enlivened’ or, as the plurality put it in Enfield City Corporation v Development Assessment Commission, ‘that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion’. Their alternative submission was that s 198A(3) ‘requires the Minister to be satisfied of the s 198A(3) criteria’. [108] By contrast, the Minister and the Commonwealth submitted that ‘[i]t is the existence of the Minister’s declaration itself, not the truth of the content of that declaration, that engages the operation of s 198A(1)’. They further submitted that the only constraints on the Minister’s power to make a declaration are that the power is exercised in good faith and within the scope and for the purpose of the statute. [109] It may readily be accepted that requirements to exercise the power in good faith and within the scope and for the purposes of the Act constrain the exercise of the Minister’s power. But the submissions on behalf of the Minister and the Commonwealth that subparas (i) to (iv) of s 198A(3)(a) are not jurisdictional facts should not be accepted. To read s 198A(3)(a) in that way would read it as validly engaged whenever the Minister bona fide thought or believed that the relevant criteria were met. So to read the provision would pay insufficient regard to its text, context and evident purpose. Text, context and purpose point to the need to identify the relevant criteria with particularity … [110] There remains for consideration, however, the identification of the content of the criteria stated in subparas (i) to (iv) of s 198A(3)(a). That is another question that requires attention to the proper construction of s 198A. [111] Each of the criteria stated in subparas (i)–(iv) of s 198A(3)(a) is a ‘complex of elements’. Of most immediate concern in these matters is whether all of those elements are wholly factual, as the Commonwealth parties submitted, or, as the plaintiffs submitted, they include any element of legal obligation. [112] It may be accepted, for the purposes of argument, that each of the relevant criteria contains a factual element that requires a judgment to be made about what happens in the relevant country. That may be most clearly seen in connection with the fourth criterion: that the country in question ‘meets relevant human rights standards in providing that protection’

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(emphasis added). That criterion could be understood as directing attention to matters that include what has happened, is happening or may be expected to happen in that country. [113] To the extent to which s 198A(3)(a) does direct attention to matters of fact, there may be a difficult question about the proper temporal ambit of the inquiry permitted or required. It is plain that s 198A(3)(a) directs attention to whether the country in question meets all of the stated criteria at the time of the declaration. But to the extent to which consideration of those criteria permits or requires some factual determination, is the relevant inquiry to be directed to the present, the immediate past, or some (and if so what) future period? Those questions need not be and are not examined further. [114] It is to be emphasised that, because it is not necessary to decide whether any of the criteria stated in s 198A(3)(a) contains any factual element, nothing in these reasons should be understood as expressing any view about whether Malaysia in fact ‘meets relevant human rights standards’, let alone whether asylum seekers in that country are treated ‘fairly’ or ‘appropriately’. Those are issues that, if they are presented by s 198A, need not be and are not examined in these matters. [115] Rather, the issue determinative of the present litigation arises from construing s 198A(3)(a) and in particular subparas (i)–(iii). What is meant in those subparaagraphs by the phrases ‘provides access’ and ‘provides protection’? Do those phrases refer only to a particular state of facts, or to observations of or conclusions about facts or behaviour (as the Minister and the Commonwealth submitted), or must the access and protection be legally assured in some way? [116] Contrary to the submissions of the Minister and the Commonwealth, the matters stated in s 198A(3)(a)(i)–(iii) are not established by examination only of what has happened, is happening or may be expected to happen in the relevant country. The access and protections to which those subparagraphs refer must be provided as a matter of legal obligation. [117] When s 198A(3)(a) speaks of a country that provides access and protections it uses language that directs attention to the kinds of obligation that Australia and other signatories have undertaken under the Refugees Convention and the Refugees Protocol. … [118] The references in s 198A(3)(a)(i)–(iii) to a country that provides access to certain procedures and provides protections of certain kinds must be understood as referring to access and protections of the kinds that Australia undertook to provide by signing the Refugees Convention and the Refugees Protocol. In that sense the criteria stated in s 198A(3)(a)(i)–(iii) are to be understood as a reflex of Australia’s obligations. [119] This is most clearly evident from consideration of the requirement of s 198A(3) (a)(iii): that the country in question ‘provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country’ (emphasis added). As already noted, Australia, as a party to the Refugees Convention and the Refugees Protocol, is bound to accord to ‘persons who are given refugee status’ the rights there identified. Those rights include, but are by no means limited to, rights relating to education, the practice of religion, employment, housing and access to the courts. If, as the Minister and the Commonwealth submitted, the only relevant inquiry presented by s 198A(3)(a)(iii) is whether, as a matter of fact and regardless of legal obligation, there is a real risk that a person who is given refugee status in the country to which he or she is taken will be expelled or returned to the frontiers of a territory where that person’s life or freedom would be threatened on account of a Convention reason, that person may have none of the other rights which Australia is bound to accord to persons found to be refugees. Moreover, the person concerned would have no right to resist (no protection against) refoulement by

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the country to which he or she is taken. Thus when s 198A(3)(a)(iii) speaks of a country that ‘provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country’ it refers to provision of protections of all of the kinds which parties to the Refugees Convention and the Refugees Protocol are bound to provide to such persons. Those protections include, but are not limited to, protection against refoulement. And because the protections contained in the Refugees Convention and the Refugees Protocol include according certain rights to those who are found to be refugees, the protections must be provided pursuant to a legal obligation to provide them. This construction is confirmed by consideration of the reference in s 198A(3)(a)(iv) to the country concerned meeting relevant human rights standards in providing ‘that protection’: the protection mentioned in both subpara (ii) and subpara (iii). To confine ‘that protection’ to the obligation of non-refoulement would give little or no practical operation to s 198A(3) (a)(iv). … [134] The observations and judgments made in the DFAT advice demonstrated, and the facts that have been agreed for the purposes of these proceedings demonstrate, that none of the first three criteria stated in s 198A(3)(a) was or could be met in the circumstances of these matters.

13.3.18  The view taken in jurisdictional fact cases has been criticised trenchantly by M Aronson in ‘The Resurgence of Jurisdictional Facts’ (2001) 12 Public Law Review 17 and by M Groves in ‘Federal Constitutional Influences on State Judicial Review’ (2011) 39 Federal Law Review 399 at 416–18. Jurisdictional fact review, Aronson argues, blurs the legality/merits distinction, by allowing a court to undertake de novo redetermination of relevant facts, and to review simply for factual error. There is, moreover, a distinct risk of divergent outcomes, as the review court may apply different rules of evidence, and lack the bureaucratic experience and insight of the primary decision-maker. This may also be ‘conducive to regulatory indecision, wastefulness and inefficiency, and therefore ultimately to a diminution in respect for the relevant decision-maker’: at 27. He concludes: ‘There is nothing inherently illogical about the theory of jurisdictional fact, but its consequences are so inconvenient and counterproductive that it is rarely an attractive interpretative option’: at 39. Justice Leeming has also argued that jurisdictional fact review is not ‘something approaching merits review; it is merits review’: M Leeming, Authority to Decide, Federation Press, Sydney, 2012, p 62 (emphasis in original). The contrary view was put by Gummow ACJ and Kiefel J in SZMDS 15.2.17C: [A]pprehensions respecting ‘merits review’ assume that there was jurisdiction to embark upon the determination of the merits. But the same degree of caution as to the scope of judicial review does not apply when the issue is whether the jurisdictional threshold has been crossed.

Justice Keane, writing extra-curially, has suggested that problems may not be due to the jurisdictional fact doctrine itself but rather when it is applied too stridently: PA Keane, ‘Legality and Merits in Administrative Law: An Historical Perspective’ (2009) 1 Northern Territory Law Journal 117. 13.3.19  It remains to mention two less contentious features of the jurisdictional fact concept. First, a constitutional limitation embedded in an executive power will always be 873

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a jurisdictional fact to be determined by a court on the evidence before it. An example would be a power exercisable in respect of a ‘trading corporation’ as defined in s  51(xx) of the Constitution: R  v Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (1979) 143 CLR 190. Second, there is a presumption against a court’s jurisdiction being dependent on a jurisdictional fact — or, put conversely, there is a presumption that a court’s jurisdiction extends to determining conclusively whether the jurisdictional facts are established: Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, especially at 391.

JUDICIAL REVIEW OF ERROR OF LAW AND JURISDICTIONAL ERROR 13.4.1  Judicial review of error of law is another of the few areas where there is an important practical difference between the definition of the ground under the ADJR Act and at common law. As the discussion will indicate, error of law is a frequent ground of review at common law in association with the writ of certiorari. The ground is commonly used under the ADJR Act, but there is little in the way of special jurisprudence attaching to it. A related concept discussed in this section, jurisdictional error, is increasingly important as a cognate ground of review in Australian administrative law.

Certiorari for error of law on the face of the record 13.4.2  It is noted in Chapter 17 that the writ of certiorari could be used to quash the proceedings of an inferior court or tribunal for error of law on the face of the record of the proceedings. The error can be non-jurisdictional. The explanation of why the error must appear ‘on the face of the record’, and what constitutes ‘the record’, is given by the majority in Kirk  16.4.18C. Briefly, this requirement stems from the historical function of the writ of facilitating — but on a limited basis — supervisory review of the proceedings of inferior courts and tribunals. As administrative law has developed, and certiorari has been used increasingly to review administrative decisions generally, the requirement that an error appear on the face of the record has become more contentious and strained. 13.4.3  Two other trends have diminished the importance of certiorari as a mechanism for correcting errors of law. The first is that certiorari could also be used to correct jurisdictional error, breach of natural justice and fraud. Those grounds would now be thought of as subcategories of error of law, but a practical difference was that an error of that kind did not have to appear on the face of the record: see  Craig v  South Australia 17.2.12C. Review for jurisdictional error and natural justice has become steadily more frequent, with the result that review for error of law on the face of the record has become comparatively less important. The second trend is that, at common law, errors of law can be corrected by a remedy other than certiorari. An example is Ainsworth v Criminal Justice Commission 11.3.4C in which the court refused certiorari to quash a report prepared in breach of natural justice, but granted a declaration to that effect. Over time, the declaration has become steadily more significant as a flexible remedy to control unlawful government action: see 17.1.9. 13.4.4  Notwithstanding the diminishing importance of certiorari to quash errors of law, which has been paralleled by the expansion of jurisdictional error as a ground of review, the 874

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distinction between the two grounds must be maintained for constitutional purposes. As the majority explained in Kirk 16.4.18C, constitutional review is available only for jurisdictional error, so the distinction must be preserved.

Error of law under the ADJR Act 13.4.5  The ADJR Act provides that an order of review can be sought on the ground ‘that the decision involved an error of law, whether or not the error appears on the record of the decision’: s 5(1)(f ). See also ACT: Administrative Decisions ( Judicial Review) Act 1989 s 5(1)(f ); Qld: Judicial Review Act 1991 s 20(2)(f ); Tas: Judicial Review Act 2000 s 17(2)(f ). 13.4.6  The inclusion of ‘error of law’ as a ground of review in the ADJR Act was a recognition that it had become an independent ground in administrative law, irrespective of the chosen remedy. It is, however, listed as one of 18 grounds in s 5 of the ADJR Act, and overlaps with all. Indeed, the view expressed in some cases is that each of the grounds listed in s  5 is an example of an error of law: see, for example, Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483. Covering a broad area, s 5(1)(f ) is probably the most commonly used ground of review in ADJR Act litigation. A study of successful ADJR Act actions heard between 1984 and 1994 reported that error of law succeeded in 42.3 per cent of the cases, being the highest percentage of any of the individual grounds of review: R  Creyke and J  McMillan, ‘Judicial Review Outcomes — An Empirical Study’ (2004) 11 Australian Journal of Administrative Law 82 at 96. 13.4.7 In Bond 13.2.25C Mason CJ observed that ‘the concept of “error of law” in s 5(1)(f ) is intended to reflect the content of that expression as it was understood at common law in this country before 1977’: at 357. As the Full Federal Court noted in Sordini v Wilcox (1983) 70 FLR 326, that covers cases ‘where there has been an error in the sense of the misinterpretation of an enabling statute or the violation of some established legal principle’: at 343. Most of the cases in which error of law has been applied involve the misinterpretation or misapplication of legislation: see, for example, GG v Australian Crime Commission (2010) 182 FCR 513 where the Full Court noted that the power to issue a summons under the Australian Crime Commission Act 2002 (Cth) was exercisable only for the purposes ‘of a special ACC operation/investigation’, a statutory test of which the examiner must be aware and to which the examiner must direct their mind. An example of some other ‘established legal principle’ being violated is Molomby v Whitehead (1985) 7 FCR 541, concerning the failure of a statutory corporation (the ABC) to refuse the request of a non-executive director, namely the elected staff representative, for access to corporate documents.

Jurisdictional error 13.4.8  The concept of jurisdictional error plays a role in administrative law similar to that of error of law, of defining reviewable error and delimiting the proper scope of judicial review. Both concepts have been criticised for their conclusory nature and the difficulty of analytically distinguishing between jurisdictional/non-jurisdictional and law/fact error, which may lead to judicial instrumentalism: see  J  Beatson, ‘The Scope of Judicial Review for Error of Law’ (1984) 4 Oxford Journal of Legal Studies 22; M  Aronson, ‘Jurisdictional Error and Beyond’, in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context, Cambridge 875

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University Press, Melbourne, 2014, ch 12; Justice M Leeming, ‘The Riddle of Jurisdictional Error’ (2014) 38 Australian Bar Review 138; JK Kirk, ‘The Concept of Jurisdictional Error’, in N Williams (ed), Key Issues in Judicial Review, Federation Press, 2014, ch 2; see also the discussion at 13.5.29. 13.4.9  In Australian administrative law, jurisdictional error plays a key role in defining the scope of review, because of the jurisdiction of the High Court conferred by s  75(v) of the Constitution to issue the constitutional remedies of prohibition, mandamus and injunction against an officer of the Commonwealth: see  2.2.42. Relief under s  75(v) is available only if a decision involved jurisdictional error, at least where the remedy sought is prohibition or mandamus: see, for example, Plaintiff S157/2002 11.1.7C. For that reason, the writ of certiorari, when granted for jurisdictional error, does not have to appear on the face of the record: see  13.4.3. Jurisdictional error is likewise important in the parallel jurisdiction of the Federal Court and the Federal Circuit Court conferred by s  39B of the Judiciary Act  1903 (Cth): see 2.2.11. This constitutional influence also extends to judicial review in state Supreme Courts: Kirk 5.3.15C and Totani 5.3.16C. 13.4.10  Jurisdictional error is also a separate ground of review under the ADJR Act, which provides that an order of review can be sought on the ground ‘that the person who purported to make the decision did not have jurisdiction to make the decision’: s 5(1)(c). See also ACT: Administrative Decisions ( Judicial Review) Act 1989 s  5(1)(c); Qld: Judicial Review Act 1991 s  20(2)(c); Tas: Judicial Review Act  2000 s  17(2)(c). Jurisdictional error has not figured prominently as an ADJR Act ground of review, perhaps because it largely overlaps with other ADJR Act grounds. 13.4.11  The following summary of the scope of jurisdictional error draws on the discussion of the concept at two other points in this book. The first is in 7.2.8ff, which explains the terminology and concepts used in administrative law to define the grounds for judicial review of administrative action. The second is in Chapter 16, where the interaction between jurisdictional error and other features of administrative law, such as privative clauses and the consequences of invalid action, is discussed:

• A jurisdictional error arises where a decision-maker has exceeded their authority or power. A  violation of power or jurisdiction may arise in different ways, including by asking the wrong question, ignoring relevant material, relying on irrelevant material, breaching natural justice (Bhardwaj 16.1.20C), fraud (SZFDE v  Minister for Immigration and Citizenship 15.4.5ff), or unreasonableness: Li 15.2.18C.

• ‘[T]he grounds of review specified in the ADJR Act cast a wider net than those concerned with  excess of jurisdiction’: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 (2003) 211 CLR 441 at 460. Two examples are given by Gummow J in Muin v Refugee Review Tribunal (2002) 68 ALD 257 at 296: breach of s 5(1)(b) (breach of a procedure required by law to be observed in connection with a decision) will not necessarily involve an excess of jurisdiction by the decision-maker, because the statutory procedure may not be a precondition to a decision being made; and, similarly with s 5(1)(f ) (error of law), the error of law may be on a point arising within jurisdiction. • A fact-finding error can be a jurisdictional error, for example, where a tribunal hearing an asylum claim bases a conclusion in whole or in part on a misunderstanding or misconstruction of the applicant’s claim, including a factual claim: NABE 13.3.8. 876

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• The concept of jurisdictional error can vary in scope according to the context for judicial review. For example, a point made in Re  Refugee Review Tribunal; Ex parte Aala (2000) 17.1.14C is that the constitutional jurisdiction of the High Court under s  75(v) is not necessarily governed by the same principles that govern the common law jurisdiction of a court to grant prohibition. Nor will the same principles necessarily apply under the ADJR Act: ‘There, what is engaged are principles of statutory, not constitutional, construction’: Applicant S20 15.2.14 at 73 (McHugh and Gummow JJ). A specific statutory scheme can also affect whether an error is jurisdictional: an example discussed in Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146 16.3.7 is Pt IVC of the Taxation Administration Act 1953 (Cth) which restricts judicial review of taxation assessment decisions. The terms of the Constitution may also make some facts, such as whether a body is a trading or financial corporation formed within the limits of the Commonwealth, jurisdictional facts: SZMDS 15.2.17C at [25].

THE LAW/FACT DISTINCTION AS A GENERIC LEGAL CONCEPT Law/fact — general principles 13.5.1  Error of law is a criterion in many different areas of administrative law, as the earlier discussion in this chapter shows. The discussion further shows that the scope of error of law is often defined by reference to a law/fact distinction. This section explores those general issues in greater detail, as well as questioning whether law/fact is a false dichotomy: see 13.5.30ff. 13.5.2  There are two main areas in which ‘error of law’ has a role to play in administrative law: statutory appeals and judicial review. Statutory appeals: It is common to provide in legislation that there is a right to appeal from a tribunal to a court ‘on a question of law’. Examples include: • Commonwealth: There is an appeal from the Administrative Appeals Tribunal (AAT) to the Federal Court: Administrative Appeals Tribunal Act 1975 (AAT Act) s 44(1) (though note s 44(7) which confers a limited power on the court to make findings of fact).

• Australian Capital Territory: There is an internal appeal right for those seeking review by the ACT Civil and Administrative Tribunal: ACT Civil and Administrative Tribunal Act 2008 s 79. There is the ability to appeal to the Supreme Court, with leave, on issues of fact or law (s 86), or for the President to refer an appeal to the Supreme Court for appropriate matters: s 85. Appeals may also be heard by the Supreme Court when both parties so request: s 83. A referral of a decision on a question of law may be heard by a specially constituted panel of the tribunal or by the Supreme Court: ss 77 and 84. • New South Wales: There is an internal appeal from the NSW Civil and Administrative Tribunal to the Appeals Panel of the Tribunal, or an external appeal to the Supreme Court, the District Court, or another court: Civil and Administrative Tribunal Act 2013 ss 32, 34, 80, 82–84. An appeal to the Appeal Panel may be with the leave of the Appeal Panel ‘on any other grounds’: s 80. An appeal to the Supreme Court is on a question of law whether the appeal is from the administrative or the civil area of jurisdiction: ss 83, 84. • Northern Territory: There is a right of internal review (Northern Territory Civil and Administrative Tribunal Act  2014 s  140), as well as a right of appeal, with leave, to the Supreme Court on a question of law: s 141. 877

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• Queensland: There is an appeal to an appeal panel, on some matters, only with leave, and the appeal may be restricted to a question of law: Queensland Civil and Administrative Tribunal Act 2009 ss 142, 146. The President may refer an internal appeal to the Queensland Court of Appeal, with leave: s 144.

• South Australia: There is an internal merits review of a decision of a member of the South Australian Civil and Administrative Tribunal (South Australian Civil and Administrative Tribunal Act 2013 s 70) as well as an opportunity, with leave, to seek external review by the Supreme Court (s 71), and the tribunal may reserve a decision on a question of law for the Supreme Court: s 72. • Victoria: There is an appeal from the Victorian Civil and Administrative Tribunal to the Supreme Court: Victorian Civil and Administrative Tribunal Act 1998 s 148.

• Western Australia: There is an appeal from the State Administrative Tribunal to the Supreme Court but only with the leave of the court: State Administrative Tribunal Act 2004 s 105(2) (but note s 105(13) provides that an appeal about deprivation of an occupational qualification can with leave extend to ‘any ground whether it involves a question of law, a question of fact or a question of mixed law or fact’). Judicial review: At common law the writ of certiorari can be used to quash a decision for error of law on the face of the record: see  13.4.2. Section 5(1)(f ) of the ADJR Act similarly provides that an order of review can be sought on the ground that a decision involved an error of law, although the error need not be on the record: see 13.4.5. 13.5.3  Error of law and the law/fact distinction often arise in other areas of administrative law as well. For example, the point is often made that a jurisdictional fact (that is, a statutory precondition to the exercise of a power) can be either a legal or a factual requirement. Generally, courts are more likely to pay deference to the position or skill of a decision-maker on factual rather than legal issues: see 7.5.13ff. The difference between issues of law and fact is noted too in ombudsman legislation, which provides that the ombudsman can recommend a remedy where an administrative action ‘was based either wholly or partly on a mistake of law or of fact’: Ombudsman Act 1976 (Cth) s 15(1)(a)(iv). Finally, the difference between issues of law and fact arises in many areas besides administrative law, for example, in criminal law in explaining the difference between the tasks of judge and jury and in defining appeal rights from a criminal conviction. 13.5.4  As the summary in 13.5.2 indicates, the main purpose served by the concept of error of law is both to define and to demarcate the supervisory jurisdiction of a court. The common pattern is that a court can grant relief to correct a deficiency or shortcoming that is classified as an error of law, but not if it is instead classified as either an error of fact or as no error at all. To state that proposition is to draw attention to the range of factors that, directly or indirectly, are likely to bear on whether an issue should be classified as one of law or fact. They include the terms of the legislation being applied, the nature of the decision-maker whose decision is under review (for example, court, tribunal or administrator), the nature of the issue being reviewed (for example, technical or specialist issue), and — perhaps, and for whatever reason — whether the reviewing court chooses to intervene and quash the decision under review. The importance of the context was noted by McHugh and Gummow JJ in Applicant S20: ‘The critical nature of the line drawn … between factual and legal matters varies with the purposes it serves’: at 73. 878

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13.5.5  The following two examples illustrate how the context in which ‘error of law’ and the law/fact distinction arise can be important in influencing the meaning given to those terms. First, the right to appeal from the AAT to the Federal Court is restricted to questions of law. However, an alternative option is for a person to seek judicial review in the Federal Court of an AAT decision or proceeding under s 39B of the Judiciary Act 1903 (Cth): see, for example, Australian Securities and Investment Commission v PTLZ (2008) 48 AAR 559. The jurisdictions are different, yet there is likely to be an implicit pressure on the court to align the scope of ‘error of law’ with the scope of review under s  39B, as Tuite illustrates. Second, the phrase used in defining the right of appeal from the AAT to the Federal Court is not ‘error of law’ but ‘question of law’. The latter is broader than the former, both to enable a person to pose a question for review by the court, and as a matter of procedure to permit the tribunal to ‘refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision’: AAT Act s 45(1). 13.5.6  The concept of a ‘question of law’ has vexed the Federal Court. This phrase defines the right of appeal to the Federal Court under s 44(1) of the AAT Act and the many Federal Court cases about this provision are hard to reconcile. The High Court pointed out in Repatriation Commission v Owens (1996) 70 ALJR 904, that this is because s 44(1) is designed to ensure that the merits of the case are dealt with not by the High Court but by the AAT, a ‘distribution of function [which] is critical to the correct operation of the administrative review process’: at 904. This approach is sometimes balanced by judges when faced with practical problems. In Garrett v  Commissioner for Taxation (2014) 147 ALD 588, Pagone  J was faced with a complex tax appeal made by an unrepresented person. His Honour accepted the requirements of s 44 could be difficult but stated: ‘The articulation of a question of law may sometimes be difficult but the fact that it may be difficult does not remove the requirement’ at [6]. The problem in that case was that the applicant had essentially repeated possible grounds of review without explaining how the grounds arose on the facts of the case. Justice Pagone held the requirements of s 44 were not met if a party ‘does no more than state a broad proposition without relevantly raising a question of law’: at [7]. Justice Rares faced the same problem in MYVZ v Director-General of Security (2014) 148 ALD 489, where the applicant had received an adverse security assessment from ASIO and then had his passport cancelled. Justice Rares strongly doubted whether the claimed questions of law met the requirements of s 44 but stated that he ‘would prefer to decide this cases on its substance, based on the points which the applicant wishes to argue. After all … the decisions complained of have profound and serious consequences for him’: at [43]. 13.5.7  A special bench of five members of the Full Federal Court sought to clarify these issues in Haritos v Federal Commissioner of Taxation 13.5.8C and May v Military Rehabilitation and Compensation Commission 13.5.23C. In Commissioner of Taxation v AP Energy Investments Pty Ltd (2016) 341 ALR 265, McKerracher J explained that ‘[t]he underlying theme of Haritos … is that the Court should look at the substance, rather than the form of the question’ (at [56]); and further stated that ‘it is not the case that a right of appeal under s 44 of the AAT Act may never extend to a mixed question of fact and law or as requiring that the question of law be a “pure” law question as may have been previously thought … it may more accurately be said that the right of appeal does not extend to mere questions of fact’: at [57]. In an analysis of case law following Haritos, Creyke concluded that the Federal Court in hearing appeals under s 44 had not shown any greater appetite for dealing with factual questions: see R Creyke, ‘Judicial and Merits Review: Are the Boundaries Being Eroded?’ (2017) Federal Law Review 627 at 633–9. 879

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Haritos v Commissioner of Taxation (2015) 233 FCR 315 Federal Court of Australia (Full Court)

[Mr Haritos, Mr Kyritsis and another person ran a cleaning business that eventually went into liquidation in 2009. The operation of this company involved the use of sub-contractors. The wider activities of the company, related entities and sub-contractors involved many millions of dollars. Audits by tax officials led to tax assessments against Mr Haritos and Mr Kyritsis for very large tax liabilities in 2005–9, which they appealed to the AAT. When those appeals were rejected, they appealed to the Federal Court. The appeals were rejected at first instance because they were found to not disclose a question of law within the meaning of s 44(1) of the AAT Act: Haritos v Federal Taxation Commissioner (2014) 62 AAR 467. Mr Haritos and Mr Kryitsis then appealed to the Full Federal Court. A special bench of five judges was convened to consider the scope of s 44 and wider questions about the meaning of a ‘question of law’ for the purposes of that provision and the many decisions of the Federal Court on these matters. The Full Court allowed the appeal, remitted the case for rehearing by the AAT and undertook an extensive review of the meaning of a ‘question of law’ for the purposes of s 44(1).] Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ: Text and context of s 44 One consideration is the nature of the Tribunal from which an appeal on a question of law lies … [T]he AAT Act does not require that the majority of its members have legal qualifications or experience. Next, the word ‘only’ or the word ‘pure’ or the expression ‘excluding mixed questions of law and fact’ are not found in s 44. We deal further below with whether the section should be so read but we observe, at the outset, consistently with Owners of Shin Kobe Maru v Empire Shipping Company Inc (1994) 181 CLR 404 at 421, that it is not appropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words. Another issue is whether the meaning of s 44 is illuminated by some similar language in s 45. As we indicate below …, we do not construe s 44 by reference to the different purpose of s 45 and the discretionary considerations relevant to whether or not such a question should be stated or answered pursuant to s 45. We also note that s 44(7) was enacted in 2005 by the Administrative Appeals Tribunal Amendment Act 2005 (Cth) (Act No 38, 2005) s 173, following the Administrative Review Council’s 1997 Report to the Attorney-General and Minister for Justice: Appeals from the Administrative Appeals Tribunal to the Federal Court, Report No 41, Chapter 6. Section 44(7) permits the Court to make findings of fact in certain limited circumstances. Again we do not see that provision as suggesting that questions of fact fall within s 44(1) and (3): s 44(7) does not enlarge the jurisdiction so conferred: Osland [v Secretary to the Department of Justice 241 CLR 320; [2010] HCA 24] at [19]. [Questions arose about the extent to which the Federal Court was empowered to considered questions or issues of fact as part of the proper scope of s 44. The difficulty here was whether (and, if so, to what extent) the right of appeal about questions of law could necessarily extend to related issues or questions of fact. The Full Court essentially held that facts could not be reviewed in their own right under s 44 but could be considered where their resolution was inherent to a properly identified question of law. Their Honours continued:]

880

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[T]he history, authority and the purpose of s 44 each indicates that the right of appeal in s 44 should not be read as meaning that ‘may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal’ may never extend to a mixed question of fact and law or as requiring that the question of law be a ‘pure’ question. Rather, it may more accurately be said that the right of appeal does not extend to mere questions of fact. As French CJ, Gummow and Bell JJ emphasised in Osland, at [19], the Court ‘should not usurp the fact-finding function of the AAT’, citing Repatriation Commission v O’Brien (1985) 155 CLR 422 at 430 per Gibbs CJ, Wilson and Dawson JJ. It follows that the right of appeal does not extend to mixed questions of fact and law where, in order to decide the question of law, the Court must positively determine a question of fact itself, rather than judicially review the Tribunal’s fact finding. … No textual aspect of s 44 denies the conclusion that, as a contextually understood judicial review provision, it encompasses the authority in this Court to undertake any relevant process to assess the answer to a question of law such as whether a person was denied procedural fairness by the Tribunal. Any answer to that legal question of jurisdiction may require factual evaluation and determination of what occurred before the Tribunal. Such is not to usurp the function of the Tribunal of fact finding, but to ensure that the Tribunal acts lawfully and with authority. [The Full Court analysed earlier Federal Court cases at great length.] [Earlier in their Honours’ reasons, the Full Court stated their conclusions:] In summary, our conclusions are as follows: (1) The subject matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law. (2) The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal. (3) The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44. (4) Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction. (5) In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal. (6) Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form. (7) A question of law within s 44 is not confined to jurisdictional error but extends to a nonjurisdictional question of law (8) The expression ‘may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal’ in s 44 should not be read as if the words ‘pure’ or ‘only’ qualified ‘question of law’. Not all so-called ‘mixed questions of fact and law’ stand outside an appeal on a question of law.

881

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(9) In certain circumstances, a new question of law may be raised on appeal to a Full Court. The exercise of the Court’s discretion will be affected not only by Coulton v Holcombe (1986) 162 CLR 1 considerations, but also by considerations specific to the limited nature of the appeal from the Tribunal on a question of law, for example the consideration referred to by Gummow J in Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 that there is difficulty in finding an ‘error of law’ in the failure in the Tribunal to make a finding first urged in this Court. (10) Earlier decisions of this Court to the extent to which they hold contrary to these conclusions, especially to conclusions (3), (4), (6) and (8), should not be followed to that extent and are overruled. Those cases include Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; Etheridge; HBF Health Funds and Hussain v Minister for Foreign Affairs (2008) 169 FCR 241.

13.5.9  The expression ‘error of law’ comprehends most if not all of the grounds for judicial review listed in s 5 of the ADJR Act, such as breach of natural justice, acting for an unauthorised purpose, acting without jurisdiction, and asking the wrong question: Clements v Independent Indigenous Advisory Committee (2003) 138 FCR 28. Whether ‘error of law’ covers every ground of review may be moot because courts undertaking judicial review have been increasingly prepared to extend the grounds of judicial review to cover errors of fact and perverse or illogical reasoning: SZMDS 17.2.17C and Li 15.2.18C. The same expansionary trend has trickled into the right of appeal on a question of law because in Haritos 13.5.8C at 387, the Full Federal Court appeared to accept that irrationality could constitute an error of law for the purposes of s 44 of the AAT Act. In May 13.5.23C, the Full Federal Court was faced with a case where a person lodged a claim for judicial review and an appeal under s 44 of the AAT Act. The Full Court reasoned that ‘questions of law under s  44 extend to, but also beyond, jurisdictional error’: at [181]. Such reasoning suggests that issues that could be challenged as a jurisdictional error (as most mistakes of law may now be) can also fall within the scope of s 44. The Full Court also suggested that s  44 could encompass a wider range of errors, though it did not offer further explanation. One issue the Full Court clarified about the overlap between the two forms of challenge was that dismissal of an appeal under s 44 of the AAT Act might create an estoppel preventing a similar claim in judicial review.

Applying legislation to the facts 13.5.10  The following analysis looks at one particular area in which the law/fact distinction frequently arises, and in which much of the jurisprudence has been developed. In broad terms, it is the application of a legislative standard to facts in order to make a decision. It is often said that there are three distinct stages involved in that process — finding the facts, construing the legislation, and applying the legislation to the facts — and that each stage can give rise to issues of both law and fact. The following summary of the law is taken principally from the three case extracts that follow — Agfa-Gevaert 13.5.20C, Hope v  Bathurst City Council 13.5.21C and Azzopardi v Tasman UEB Industries Ltd 13.5.22C — as well as Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; 115 ALR 1. Other illustrative examples follow those cases. 882

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13.5.14

Fact-finding 13.5.11  This can be a process both of establishing primary facts by evidence or observation, and of using those facts to prove other facts, usually by a process of inference: the terms factum probantia and factum probandum are used in some cases to explain this distinction. A simple example is that an ultimate finding of fact that a person was driving negligently can be drawn by inference from observed facts such as the speed they drove, the speed limits, the type of road, the traffic density and the time of day. However, this stark categorisation is complicated by the variety of different types of fact-finding in which administrators engage. Craig, for example, identifies six categories of mistake of fact, ranging from primary fact-finding based on observation and perception, to evaluative fact-finding requiring the decision-maker to reach a conclusion (for example, whether a given country was in a state of war), to misuse or misunderstanding of evidence (for example, confusing the applicant’s country of origin) or application of facts to a statutory term: P Craig, ‘Judicial Review, Appeal and Factual Error’ [2004] Public Law 788. 13.5.12  The guiding principle is that an error made at the fact-finding stage will be an error of fact, unless there is no evidence to support the finding or inference of fact: Melbourne Stevedoring 13.2.3C. For example, in East West Airlines Ltd v Turner (2010) 78 NSWLR 1 a finding that a specific smoke to which Turner was exposed could be described as dust was a finding of fact and was not reviewable for error of law. Now, however, there is acceptance of a broader view that manifest illogicality or perversity should be classified as an error of law, provided the illogical or perverse reasoning has amounted to a jurisdictional error: SZMDS 15.2.17C; Li 15.2.18C; see also Kirby P in Azzopardi 13.5.22C. Another qualification is that an error in fact-finding may support an inference that the decision-maker was ‘asking the wrong question’ or ‘applying the wrong test’: see Avon Downs 13.2.8. It is similarly possible that a perverse finding of fact may be associated with some other error, such as receiving inadmissible evidence, rejecting admissible evidence, or refusing to allow evidence to be received contrary to the rules of natural justice: Lombardo v Federal Commissioner of Taxation (1979) 28 ALR 574. See generally J Basten, ‘Judicial Review: Intensity of Scrutiny’ (2008) 9 Judicial Review 73.

Rule-stating 13.5.13  Many words, phrases and sentences in legislation are open to different shades of meaning, and it is necessary to decide which meaning or shade of meaning is to be preferred. For this purpose, courts have distinguished between words that bear their ordinary English meaning, and words that bear a technical or specialist meaning. Deciding the meaning of the former is a process of fact, and will not therefore give rise to an error of law. Deciding the meaning of a technical legal term is a process of law, and it is therefore open to a court to review whether the correct meaning was chosen. There is also a practical dimension to this difference. English dictionaries and standard reference texts are used to work out the meaning of ordinary words in their statutory context. By contrast, expert evidence and specialist texts are frequently used to work out the meaning of technical words. Agfa-Gevaert 13.5.20C illustrates that a legislative standard may be a mixture of ordinary and technical words, in which case construction of the composite phrase is a process of law. 13.5.14  Two further refinements should be noted. First, a threshold question is whether a word bears its ordinary or a technical meaning. That choice is an issue of law, and consequently the wrong choice will be an error of law. Second, the court in Agfa-Gevaert 13.5.20C cast 883

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doubt on a distinction drawn in Pozzolanic and many earlier cases between interpretation and construction. According to that distinction, the interpretation of a single word may be a process of fact, yet joining that word and its meaning to other words requires statutory construction, which is a process of law. The court in Agfa-Gevaert thought this to be a misleading guide as to how the meaning of legislation is worked out, and instead preferred the more traditional distinction between ordinary and technical meaning, taking special note of whether the word in question is part of a composite phrase. As that suggests, the more complex the statutory setting, the more likely that a process of statutory construction raising issues of law will be required. The process of giving meaning to a word by construing the statutory context was explained by the New South Wales Court of Appeal in Secretary of The Treasury v Public Service Association & Professional Officers’ Association Amalgamated Union of NSW [2014] NSWCA 138: [33] … [C]onstruction must begin with the text itself and whilst the language applied is the surest guide to legislative intention, the meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision and in particular the mischief it seeks to remedy. Determination of the purpose of a statute or a particular provision may be based not only on the express statement of purpose in the statute itself but also by inference from its text and structure, and where appropriate, by reference to extrinsic material.

13.5.15  This process is illustrated by Hope 13.5.21C. The critical word to be interpreted in that case — ‘business’ — was an ordinary English word, yet it was a word with 19 different dictionary meanings. It therefore became a process of law to decide which of those meanings was appropriate for both the statutory phrase (‘carrying on a business’) and the statutory setting (determining the rate payable for rural land). An example of a contrary finding was whether the word ‘limousine’ fell within the meaning of ‘car’ in s 27-1 of the A New Tax System (Luxury Car Tax) Act 1999 (Cth). The term did not have a technical meaning, nor did it have several meanings in ordinary speech. The Full Federal Court found that the word should be given its ordinary meaning; its interpretation was a question of fact. There was, accordingly, no error of law in deciding that a Hummer fell within the Act and was subject to the luxury car tax: Dreamtech International Pty Ltd v Commissioner of Taxation (2010) 72 FCR 467. 13.5.16  Where the meaning of a word is clear, but the word is inherently capable of more than one application or outcome in the circumstances of the case, whether the statutory description is satisfied will often simply be a question of fact. An example is Roncevich v Repatriation Commission (2005) 222 CLR 115, where an injury to a member of the defence force as a consequence of inebriation at a mess function was capable of arising out of or being attributable to ‘defence service’ because of the broad meaning to be given to that expression. An alternative approach, where there is a statutory term that is an uncertain term but with a range of possible meanings, is that a court may determine the range of possible meanings within which the administrative decision-maker may legitimately choose any number of definitions in the particular instance to which the court will defer. Such an approach has predominated in the United Kingdom since R v Monopolies and Mergers Commission Ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23 (which dealt with the meaning of ‘substantial part of the UK’), and found explicit support in Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546. The principle accords with the reasoning in Pozzolanic and Agfa-Gevaert 13.5.20C. 13.5.17  Errors of law at the rule-stating stage are not always so complex. A simple mistake as to the applicable law may suffice. For example, in Plaintiff M76/2013 v  Minister for 884

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Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 a person arrived at Christmas Island without a visa. She was also subject to an adverse security assessment. The immigration department wrongly decided that the adverse security assessment precluded the grant of a visa and did not refer her case to the minister for consideration. The department’s decision was based on a regulation which had been declared invalid by the High Court in another matter. Accordingly, the decision not to refer her case to the minister, based on the invalid regulation, involved an error of law.

Rule application 13.5.18  Once the facts have been ascertained and the legislation has been construed, the legislation must be applied to the facts to reach a decision. The preferred view is that this process will follow the same pattern as before: the application of a word used in its ordinary sense is a process of fact, and the application of a technical legal word or phrase is a process of law. An error in the process will correspondingly be classified as an error of fact or law. If, however, the facts are necessarily within or without the statutory phrase — that is, only one conclusion is reasonably open — the issue is one of law, and the wrong decision will correspondingly be an error of law. The rationale for that qualification is that the misapplication of the legislation, when only one decision was reasonably open, can only be explained on the basis that the decision-maker misconstrued the statutory standard. (The alternative way this proposition is put in some cases is that it is a question of law whether the material before a decision-maker reasonably admits of different conclusions. This is also described as a question of mixed law and fact.) 13.5.19  A final point is that the right to appeal on a question of law is limited to errors that form part of the decision under appeal. As Lockhart and Hill  JJ noted in BTR PLC v  Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246 at 253–4, ‘it will not be enough for an applicant to demonstrate that the tribunal mis-stated the law in the course of its reasons, if that mis-statement could not have affected its decision … An immaterial error will not vitiate the decision of the tribunal’. See also 3D Scaffolding Pty Ltd v Commissioner of Taxation (2008) 105 ALD 475. Nevertheless, an inadequate statement of reasons may be an error of law: Wingfoot Australia Partners Pty Ltd v Kocak 21.2.2C. 13.5.20C

Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389; 141 ALR 59 High Court of Australia

[A Commercial Tariff Concession Order (CTCO) made under the Customs Act had the effect that imported paper would be exempt from duty if it came within the phrase ‘silver dye bleach reversal process’. The Administrative Appeals Tribunal (constituted by Jenkinson J) held that photographic paper imported by Agfa-Gevaert did not come within the phrase. The High Court held that the meaning of the phrase raised a question of law, and agreed with the construction placed upon it by the tribunal.] Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ: The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the

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two questions, no satisfactory test of universal application has yet been formulated. [Their Honours repeated the summary of the law in Pozzolanic.] Such general expositions of the law are helpful in many circumstances. But they lose a degree of their utility when, as in the present case, the phrase or term in issue is complex or the inquiry that the primary decision-maker embarked upon is not clear. Thus, the phrase ‘silver dye bleach reversal process’ is not easily pigeon-holed in terms of the general rules summarised in Pozzolanic because Jenkinson J construed the phrase by reference to the trade or technical meaning of ‘silver dye bleach process’ and the ordinary meaning of ‘reversal’. However, for present purposes, it is the distinction between the second and fourth of the five propositions formulated in Pozzolanic which creates the greatest difficulty. The second proposition states that the ordinary or non-legal technical meaning of a word is a question of fact while the fourth proposition states that the effect or construction of a term whose meaning or interpretation is established is a question of law. … With respect this distinction seems artificial, if not illusory. The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown [1996] 1 AC 543 at 561 … Lord Hoffmann said: The fallacy in the Crown’s argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence … This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole. If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law. However, it is not necessary to resolve this issue in determining whether Jenkinson J’s decision as to the phrase ‘silver dye bleach reversal process’ raised any appealable questions of law. This is because of one concession made in argument and one principle of law that is not disputed. The concession was made by Mr Buchanan QC, for the Collector, who conceded that the determination of whether a phrase is a composite phrase or not is ‘probably … in the end’ always a question of law. The principle, which we think made the concession inevitable, is that the determination of whether an ‘Act uses [an] expression … in any other sense than that which they have in ordinary speech’ is always a question of law. … With this in mind, it is apparent that Jenkinson J’s finding that: ‘On the whole of the evidence relating to the expression “silver dye bleach reversal process” I am inclined to think that the words “silver dye bleach” should be given the meaning which usage indicates and that the word ‘reversal’ is to be understood as meaning that reversal of image which occurs in the process of producing a positive print on paper from a positive film’ raised a question of law. However one characterises the ‘structure’ of this composite phrase in terms of the interplay of the descriptors of ordinary meaning and trade meaning — for example, either a combination of two trade meanings or a trade meaning qualified by a word

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to be understood in its ordinary sense — or whether these descriptors have any beneficial role to play in such an inquiry at all — is not relevant at this point. All that is required for a reviewable question of law to be raised is for a phrase to be identified as being used in a sense different from that which it has in ordinary speech. It is clear that Jenkinson J treated the phrase ‘silver dye bleach reversal process’ as a composite one whose meaning depended on evidence. Whether he was correct in doing so therefore raises a question of law. [Their Honours noted that the phrase ‘silver dye bleach’ had a special trade meaning, but that the composite phrase ‘silver dye bleach reversal process’ was not a recognised trade term. They held, rejecting Agfa-Gevaert’s submission, that it was appropriate to look at the trade meaning of the phrase ‘silver dye bleach’ in order to construe the composite phrase. Without that technological assistance, the phrase would be meaningless in its ordinary sense. Their Honours continued.] [T]here seems no good reason for denying trade usage a role in determining the meaning of distinct elements of composite phrases where the phrase, taken as a whole, does not have a trade meaning. In an appropriate case, and this is one, such knowledge enables courts and tribunals to tune into the most appropriate ‘register’ for the purposes of statutory interpretation … The CTCOs in dispute were addressed to a subject and an audience that was concerned with photographic film processing. That being so, a court or tribunal should strive to give the CTCOs the meaning that that audience would give them. … No doubt there are cases where a court or tribunal must interpret a composite phrase by reference to the ordinary meaning of the words taken as a whole without recourse to the trade meaning that one or more of its words may have. Much depends on the subject matter and context of the phrase. In the area of statutory interpretation and construction, courts must be wary of propounding rigid rules. Even the use of general rules carries dangers in this area because of the tendency for such rules to be given an inflexible application. Nevertheless, when construing a composite phrase which does not have a trade meaning, it will ordinarily make sense for a court or tribunal to take notice of the trade meaning of a word or words within that expression, provided such an interpretation does not lead to a result which is absurd in the sense that the result may be unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, or artificial. Consideration of the trade meaning of individual words in such cases is more likely than not to lead to the interpretation that the makers of the instrument had in mind. Further, contrary to Agfa-Gevaert’s submission, using the trade meaning of individual words in a composite phrase having no special meaning as a whole does not involve a failure to construe the phrase ‘as a whole’. It simply does not follow, as a matter of logic or commonsense, that the division of a composite expression into parts which are interpreted by reference to their trade meaning, ordinary meaning or a combination thereof necessarily means that a court or tribunal has failed to construe an expression by reference to its meaning as a whole. It remains to determine whether the finding of the tribunal was permissible as a matter of law. We think that it was. We can see no reason to disturb Jenkinson J’s finding which in our view was supported by the evidence and was correct as a matter of law. For the reasons that we have given, his Honour’s 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 nor a failure to construe the expression as a whole. To accept the argument of Agfa-Gevaert would be to deny the import of logic and common-sense in matters of statutory construction. And as Lord Devlin once said, ‘no system of law can be workable if it has not got logic at the root of it’: Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 at 516.

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Hope v Bathurst City Council (1980) 144 CLR 1; 29 ALR 577 High Court of Australia

[The New South Wales Land and Valuation Court (Rath J) affirmed a decision of the Bathurst City Council that Mr Hope’s land was not (for rating purposes) ‘wholly or mainly used … for carrying on one or more of the businesses or industries of grazing, dairying’ etc: Local Government Act 1919 (NSW) s 118. The High Court held that Rath J had made two errors of law in reaching that decision: in construing the phrase and in deciding that Mr Hope’s land did not come within the statutory phrase.] Mason J: Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J in Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47, at p 51 … that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J then said, at p 51: … this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact) … However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens [1973] AC 854 was just such a case. The only question raised was whether the appellant’s behaviour was ‘insulting’. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact. The judgment of Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 is illuminating. Kitto J observed that the question whether certain operations answered the description ‘mining operations upon a mining property’ … was a mixed question of law and fact (1956) 94 CLR, at pp 511–2. He went on to explain why this was so: ‘First it is necessary to decide as a matter of law whether the Act uses the expressions “mining operations” and “mining property” in any other sense than that which they have in ordinary speech.’ Having answered this question in the negative, he noted that the ‘common understanding of the words has … to be determined’ as ‘a question of fact’. He continued (1956) 94 CLR, at p 512: ‘The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the appellant’s operations fall within the ordinary meaning of the words as so determined; and that is a question of law (1941) 65 CLR, at p 155 … If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact: see per Williams J in the Broken Hill South Case (1941) 65 CLR 150, at p 160.’ Although it has been common ground that ‘business’ is used in its ordinary meaning in s 118(1), the courts below have refrained from saying what that meaning is. This is perhaps understandable because, as a glance at the Shorter Oxford Dictionary will show, the word has many meanings. Ironically it is the last meaning given by the Shorter Oxford Dictionary, ‘19. A commercial enterprise as a going concern’, that comes closest to the popular meaning which the courts appear to have acted on in the present case. In truth it is the popular meaning of

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the word as used in the expression ‘carrying on a business’, rather than the popular meaning of the word itself, that is enshrined in the statutory definition. It is the words ‘carrying on’ which imply the repetition of acts … and activities which possess something of a permanent character. This conclusion serves to emphasise that it is necessary to engage in a process of construction in order to arrive at the meaning of the word in s 118(1). I accept, then, that ‘business’ in the sub-section has the ordinary or popular meaning which it would be given in the expression ‘carrying on the business of grazing’. It denotes grazing activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis. Putting aside the question whether the activities have a ‘grazing’ character, the critical issue for decision is whether the material before the Court reasonably admits of different conclusions on the question whether the appellant’s activities constitute a ‘business’. On the facts as found, I conclude that the appellant’s activities amounted to a business and that no other conclusion was reasonably open … Transactions were entered into on a continuous and repetitive basis for the purpose of making a profit. The activity had a permanent character in that it had been carried on without interruption since 1965. The appellant sought customers by advertising and kept appropriate financial records. The land, though small in area, was put to its best potential use and the pastures were improved and facilities including fences were provided for that use. There is nothing in the findings to suggest that the activities were other than genuine and real. [His Honour went on to conclude that Rath J had made an error in construction, being an error of law: Rath J had wrongly decided that an activity had to be ‘significant’ to constitute a ‘business’. Although the common understanding of ‘business’ was a question of fact, Rath J’s error ‘was associated with an omission to relate the word to the expression with which it was associated, this being an error in construction and accordingly of law’: at 10. His Honour concluded:] [I]t is my opinion that the primary judge arrived at a conclusion which cannot reasonably be supported, having regard to the meaning which I ascribe to ‘business’ in the statutory definition, for on the facts as found the appellant’s activities manifested the essential characteristics required of a business. [Gibbs and Stephen JJ delivered a concurring judgment. Murphy and Aickin JJ agreed with Mason J.]

13.5.22C

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 New South Wales Court of Appeal

[The Workers Compensation Commission rejected Mr Azzopardi’s claim for workers’ compensation on the basis that he had failed to establish that he had injured his knee while travelling to work in 1975. An appeal lay from the commission to the Supreme Court on a ‘point of law’ or ‘in relation to the admission or rejection of any evidence’. The Court of Appeal held unanimously that the commission’s decision was not vitiated by error of law, though the majority (Glass and Samuels JJA) expressed a narrower principle as to what would constitute an error of law.] Kirby P: In their article ‘Error of Law in Administrative Law’ (1984) 100 LQR 612, CT Emery and B Smythe call attention to the three-stage process typically followed in the

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decision of a court or tribunal. The stages of their classification are (1) fact-finding; (2) rule-stating; (3) rule application. The most typical error of law, attracting the appeal court’s corrective jurisdiction occurs at the ‘rule stating’ stage (ibid at 615). However, it may also occur in the finding of facts if the court or tribunal treats as having occurred what in truth is not shown by the evidence to have occurred. Furthermore, it may occur at the third stage in the application of the law to the facts. The variety of cases at each of the three stages listed in this article helpfully illustrates the width of the circumstances in which appeal courts in England have held where ‘everything pointed the other way’ (see Lord Radcliffe in Edwards v Bairstow [1956] AC 14 at 37) that the court must intervene, having no option but to assume that there has been some misconception in the law and that this misconception has been responsible for the determination. [His Honour referred to Melbourne Stevedoring 13.2.3C, enunciating ‘a similar principle [that] inadequacy of material (and by inference because it is a stronger case, the reference to erroneous material) may give rise to the implication that the decision-maker has applied the wrong test or not been satisfied of the requisite matters. Kirby P went on:] But where, because of the development of the obligation of reasoned decisionmaking, the judge, unlike a jury, exposes his reasons and these reasons demonstrate manifest error or illogicality in the reasoning process; rely on facts which are not established by the evidence or indicate such an unexplained perversity as to suggest that an error has taken place in one of the three stages of the process of judicial decision-making, an error in point of law will be established such as will attract the jurisdiction of this court and warrant its intervention. It is not to the point to refer to the practice of juries. They give no reasons. Judges do. If the reasons given by judges manifest error in fact-finding rule, stating or application of the rule to the facts or lead inescapably to the conclusion that such an error has occurred, that error will amount to a point of law and the beneficial appellate review provided by the legislation will be available. Glass JA (with whom Samuels JA agreed): To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this court to correct errors of fact, any argument that the finding of a Workers’ Compensation Commission Judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court; Ex parte White (1966) 116 CLR 644 at 654. A finding of fact in the commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself, that is, has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made. … The decision here assailed is not of that character … It has been suggested that since judges unlike juries are required to give reasons a perversity of result will or may suggest an error at some stage of the reasoning process

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and the perversity will then rise to the level of an error of law. It is important, I believe, to remember that whether an error is one of fact or law is determined by legal theory and the theory is the same whether the tribunal be divided or undivided. Errors may be committed by a Workers’ Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the course of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope [13.5.21C at 10] … Accordingly this court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found. [The comments of Glass JA must be seen in light of cases which have accepted that perverse, illogical or irrational findings of jurisdictional fact can amount to a jurisdictional error that is reviewable by a supervisory court: SZMDS 15.2.17C.]

13.5.23C

May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 Federal Court of Australia (Full Court)

[Mr May sought compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for an injury. He developed vertigo during his service in the airforce, which greatly cut short his military career. Mr May claimed his condition arose shortly after, and directly because of, vaccinations he was given during his military service. The respondent accepted that Mr May had vertigo but denied liability because the condition was not an ‘injury’ within the meaning of s 14. A key question before the Full Court was whether s 14 used ‘injury’ in its ordinary meaning. If so, that would mean the tribunal’s decision about whether Mr May suffered an injury was a question of fact. Or was the use and meaning of ‘injury’ somehow a question of law? These questions also influenced the appeal jurisdiction of the Full Court, which could overturn errors or law but not ones of pure fact. The relevant parts of s 4(1) of the SRC Act provided: ‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); … ‘disease’ means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment …; …

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‘injury’ means: (a) any ailment suffered by an employee; or (b) the aggravation of any such ailment being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation; Section 14 (Compensation for injuries) provided: (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. (2) Compensation is not payable in respect of an injury that is intentionally selfinflicted.] Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ: [Their Honours considered the definitions extracted above and whether ‘injury’ was used in its ordinary meaning, and reasoned:] Statutory provisions are increasingly complex, subject to multiple, often reactive, amendments reflecting conscious legislative choices to modify statutory language to address particular issues. Not only the language used, but also the level of qualification, exception and exemption attached to many provisions, together with inclination towards statutory definitions means it is frequently difficult to characterise terms used in a statute as used in an ‘ordinary’ way, or according to ‘common understanding’. Constructional choices are often involved, and that results in a question of law. … What is and is not an ‘injury’ for the purposes of s 4(1) of the SRC Act involves a statutory concept. It is apparent from the large number of authorities in State and federal jurisdictions, to some of which we have referred, that what can constitute an injury for the purposes of workers’ compensation regimes may require constructional choices. Within the well-established parameters of text, context and purpose, recognising the existence of constructional choices reflect a recognition that language is plastic and nuanced, leading to a level of legal indeterminacy which courts must resolve: see Momcilovic v The Queen (2011) 245 CLR 1 at [50] per French CJ. It is too simplistic to see the word ‘injury’ in s 4(1) of the SRC Act as having merely or only an ‘ordinary meaning’, whether as an individual word or a statutory concept. It has a statutory meaning, which must be arrived at in accordance with the principles of statutory construction. [The Full Court then held that the AAT had misconstrued the meaning of injury, erred in its approach to related questions and thus wrongly concluded that Mr May had not suffered an injury within the meaning of s 14].

13.5.24  The following cases illustrate the principle that the meaning and application of a statutory word or phrase that bears its ordinary dictionary meaning is a question of fact. It was so held in Brutus v Cozens [1973] AC 854, as to whether a person who interrupted a Wimbledon tennis match by engaging in disruptive protest behaviour on court was guilty of ‘insulting behaviour’. In Neal v Secretary, Department of Transport (1980) 3 ALD 97, it was also a question of fact to decide that a single psychotic episode (interestingly, as a result of being buried in a sand bath) gave rise to an ‘established medical history [of ] a psychosis’, so as to 892

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13.5.27

disentitle the applicant to a student pilot licence. It should be noted that the Full Federal Court has made clear that the preliminary question of whether a word should be given its ordinary meaning is typically a question of construction, which is a question of law: May 13.5.23C. 13.5.25  However, it is a question of law to decide whether the facts fully found fall within the provisions of a statute properly construed. An illustration, considered in State of Western Australia v AH (2010) 41 WAR 431, is that it was a question of law to decide that each of two persons who had undergone testosterone treatment for gender reassignment, which resulted in their acquisition of a number of male characteristics, but one of whom still had the possibility of falling pregnant, and both of whom retained female genitals, did not satisfy the statutory requirements for a gender reassignment certificate. The statutory tests required interpretation of ‘reassignment procedure’, ‘gender characteristics’, ‘physical characteristics’ and ‘identified’. The court, in deciding that no error of law had occurred in the application of those statutory tests to the facts by the interpretation by the Western Australia Gender Reassignment Board, took into account that the composition of the board comprised members representative of the community and the Act was intended to be remedial and beneficial. The decision was, however, overturned by the High Court in AB v State of Western Australia (2011) 244 CLR 390. 13.5.26  The following cases illustrate (as did Agfa-Gevaert 13.5.20C) that the technical legal meaning of a term is a question of law. It was so held in Australian Gas Light Co v ValuerGeneral (1940) 40 SR (NSW) 126, concerning the meaning of ‘premises’ for the purposes of the Valuation of Land Act  1916 (NSW), and in particular whether the term included land, buildings and structures intended to form a permanent feature of the land. The same conclusion was reached in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, concerning the meaning of ‘income’ in the context of the phrase ‘assessable income’ in the Income Tax Assessment Act  1936 (Cth). Whether textile finishing and laminating activities were ‘manufacturing activities’ falling within the Textile, Clothing and Footwear Strategic Investment Program Scheme was a question of law since ‘the relevant expressions … are not used in what can be described as the popular or ordinary sense’: Secretary, Department of Industry, Tourism and Resources v  Kimberly-Clark Australia Pty Ltd (2005) 147 FCR 142 at [74]. The same principle was applied to the term ‘charitable’ in income tax legislation, where it was not defined, and the court found the word was not to be construed according to some popular understanding of charity, namely, the relief of poverty, but with the technical meaning given by the English law of trusts: Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539. 13.5.27  Currie v Inland Revenue Commissioners of Taxation [1921] 2 KB 332 illustrates the point made in Hope 13.5.21C, that a question of mixed law and fact is involved in deciding whether facts necessarily fall within or without a statutory term that is used in its ordinary sense. In Currie, the question arising was whether a person was carrying on a ‘profession’ within the meaning of a taxation statute: Lord Sterndale: There may be circumstances in which nobody could arrive at any other conclusion that what the man was doing was carrying on a profession, and therefore, looking at the matter from the point of view of a judge directing a jury, the judge would be bound to direct them that on the facts they could only find that he was carrying on a profession. That reduces it to a question of law. On the other hand, there may be facts on which the direction would have to be given the other way. But between those two extremes 893

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Control of Government Action

there is a very large tract of country in which the matter becomes a question of degree; and where that is the case the question is undoubtedly in my opinion, one of fact, and if the Commissioners come to a conclusion of fact without having applied any wrong principle, then their decision is final upon the matter.

13.5.28  There are likewise many other decisions that echo the principle stated in Azzopardi 13.5.22C that illogicality or perversity in fact-finding is not an error of law unless it amounts to a jurisdictional error: SZMDS 15.2.17C and Li 15.2.18C. See, for example, Mahony v Industrial Registrar of New South Wales  (1987) 8 NSWLR  1, in which the New South Wales  Court of Appeal declined to grant certiorari to quash a decision that some judges thought to be a ‘surprising’ decision on the facts.

Law/fact — a false dichotomy? 13.5.29  The law/fact distinction is now deeply rooted in public law. In part that reflects the experience of courts, that the decisions they review are a mixture of fact-finding and statutory construction. In part too it reflects that dichotomies — law/fact, legality/merits, jurisdictional/ non-jurisdictional error — can be a valuable analytical and jurisprudential tool. Nevertheless, dichotomies run the risk of misrepresenting what is a more complex process. Can that be said of the law/fact distinction? 13.5.30  One difficulty with the law/fact distinction is that it is premised on the notion that questions of law are resolved by the judicial branch, and questions of fact by the executive branch. In reality, both deal with questions of law and fact, often in similar ways. Many legal principles — such as no evidence and failure to consider relevant matters — inescapably focus on the factual and evidentiary support for a decision. Likewise, the executive branch (and tribunals in particular) play a substantial role in construing and clarifying statutory provisions that rarely receive judicial attention. Any distinction that rests on a misleading premise runs the risk of generating principles that suffer the same difficulty. 13.5.31  As noted above, the law/fact distinction, like jurisdictional and non-jurisdictional error, is often described as elusive and malleable. Every issue of fact can shade into an issue of law: for example, it is a question of law whether a term bears an ordinary or a technical meaning, whether an ordinary term has a special meaning as part of a composite phrase, or whether only one decision is reasonably open on the facts. These distinctions have arguably become more blurred with the rising importance of jurisdictional facts because that category blurs the law/fact distinction but also because of the very uncertainty of the jurisdictional fact concept. The complexity of modern legislation also adds to the difficulty of treating any statutory term as giving rise only to questions of fact. Furthermore, there is now a distinct tension between ‘error of law’ and judicial review principles. For example, a misinterpretation of a statutory term can be an error of fact, yet a decision made pursuant to that misinterpretation can be a decision that is not authorised by the statute: ADJR Act s 5(1)(d). There is also the tension between judicial review and error of law cases as to when perversity and illogicality in fact-finding will be a reviewable or appealable error. Although it is only the more serious cases which amount in law to jurisdictional error, deciding at what point that occurs still involves an evaluative judgment. An extensive discussion of these issues appears in T  Endicott, ‘Questions of Law’ (1998) 114 Law Quarterly Review 292; R  Williams, ‘When is an Error not an Error? Reform of Jurisdictional Review of Error 894

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of Law and Fact’ [2007] Public Law 793; and K  Stern and M  Sherman, ‘The Boundaries Between Fact and Law in Administrative Review’ in N Williams (ed), Key Issues in Public Law, Federation Press, Sydney, 2017, ch 10. 13.5.32  What is the alternative? Endicott has suggested a pragmatic approach to errors of law, which he contends the courts already engage in: T Endicott, ‘Questions of Law’ (1998) 114 Law Quarterly Review 292. He argued that in many cases the judicial approach to an error of law is not based on a clear analytical distinction between law and fact but instead reflects functional considerations, such as the relative expertise or legitimacy of the courts and administrators in a particular legislative context, where judicial substitution of judgment becomes appropriate. Endicott’s argument suggests that difficulties in the law/fact distinction are sometimes resolved pragmatically by the courts — sometimes the courts stretch principles to review errors of law and sometimes they give decision-makers latitude in determining legal questions. An alternative to Endicott’s approach is found in those provisions that do not inevitably require that a law/fact distinction be applied, such as s 44 of the AAT Act and s 5(1)(f ) of the ADJR Act providing for appeal or review on a question of law. In stating that a decision is reviewable or invalid if there is error of law, such provisions can be read as marking the boundary of the supervisory role of the court. It need not follow that an administrative shortcoming on the other side of that boundary is to be classified as an error of fact. It might equally be described as an aspect of administrative decision-making that falls beyond the province of judicial supervision. Another approach may be to treat it as a shortcoming that is to be addressed or if necessary corrected by some other means, such as internal review, an administrative tribunal, an ombudsman or some other complaint mechanism.

REVIEW OF ADMINISTRATIVE FACT-FINDING BY TRIBUNALS AND OMBUDSMAN OFFICES 13.6.1  A core function of administrative tribunals and ombudsman offices is to examine whether administrative decisions are supported by adequate evidence and are soundly reasoned. They are not constrained by either a law/fact or a legality/merits distinction. Within their areas of jurisdiction, tribunals and ombudsman offices are an administrative law mechanism enabling comprehensive review of administrative fact-finding. Their role in doing so is dealt with in Chapters 3 and 4, and this section draws out some of the main points. 13.6.2  It is usual for an administrative tribunal to be given power to ‘exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision’: P  Cane, ‘Judicial Review in the Age of Tribunals’ [2009] Public Law 479 at 486. Another common principle, noted in 3.4.11, is that ordinarily a tribunal ‘is not bound by the rules of evidence but may inform itself in such manner as it thinks appropriate’: ADJR Act s 33(1)(c). An administrative tribunal established in that fashion is free to look at documents, facts and information that were not before the original decision-maker, and to disagree with earlier findings (such as by viewing the same facts but drawing different conclusions). Illustrative cases are Shi v  Migration Agents Registration Authority 3.3.11C, holding that a tribunal decides what is the correct or preferable decision at the date of the tribunal’s decision; Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 (see  3.3.23), holding that a tribunal can address issues not taken up by the decision-maker; and Minister for 895

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Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313, holding that a tribunal can form a different view of the facts from that reached by a court or tribunal in a decided case. An important consequence that can follow when a tribunal takes a different view of the facts is that it is usually empowered to substitute a new decision: see 3.3.2ff. 13.6.3  As noted in 13.5.3, the ombudsman’s role in fact-finding is explicitly recognised in the Ombudsman Act 1976 (Cth) which confers power on the Commonwealth Ombudsman to recommend a remedy where an administrative action is ‘based either wholly or partly on a mistake of law or fact’. The ombudsman is restricted to making a recommendation, yet causing decisions to be changed is one of the more common remedies the ombudsman achieves: see 4.3.7. The ombudsman’s broad focus on factual accuracy and administrative style is discussed more fully in 4.2.16–4.2.22. What often happens during such investigations is that the ombudsman receives new and relevant information from a complainant, perhaps also speaks directly with that person (which often does not happen in departments that make large numbers of decisions) and then uses this more comprehensive material to reach a different conclusion. The following extract is an example of an agency changing a decision after a tribunal and the Commonwealth Ombudsman pointed to factual errors in the decision. See  generally J  Basten, ‘Judicial Review: Grounds, Standards and Intensity of Review of How is Miss Behavin?’ [2011] New South Wales Judicial Scholarship 12; and M Beazley, ‘The Distinction between Question of Fact and Law: A  Question Without Answer?’ (2013) 11 Judicial Review 279. 13.6.4E

Commonwealth Ombudsman, 2013–14 Annual Report Commonwealth Ombudsman, Canberra, October 2014

Case study: That doesn’t seem fair Arthur’s mother, Lily, lived in a nursing home and Arthur helped her with her affairs including dealing with Centrelink. Arthur had taken Lily into a Centrelink service centre to advise that she had moved to a different aged care facility. Arthur then discovered that Centrelink had cancelled Lily’s rent assistance in error four years earlier. Centrelink restored Lily’s rent assistance from the date the error was identified. However, it refused to pay Lily any arrears because more than 13 weeks had passed since it wrote to tell her that it had reduced her rate. Arthur asked for a review of Centrelink’s decision. Three months later Lily passed away, aged 95. Arthur was Lily’s executor. He advised Centrelink of Lily’s death and called Centrelink repeatedly to follow up on the review. Several weeks later an Authorised Review Officer [ARO] reviewed the decision and decided it was correct, but referred the case to a compensation officer to consider under the CDDA [Compensation for Detriment caused by Defective Administration] scheme. Four months later Centrelink decided it would not pay compensation because Lily was now dead and would not benefit from the money. Investigation revealed that Centrelink had a policy of not paying compensation after the person who suffered the loss had died. We asked Centrelink to reconsider Arthur’s case and drew Centrelink’s attention to the delay that /had occurred in the ARO review. We suggested that this should have been treated as a compensation claim at the outset, before Lily’s death. Centrelink then decided to offer compensation for the full amount of rent assistance that Lily would have been paid, if not for its error. Centrelink also agreed to review its internal CDDA guidance.

896

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14

CHAPTER

Failure to Perform a Statutory Duty

INTRODUCTION 14.1.1  The concept of a statutory duty imposed on a government agency is a familiar one. Many statutory duties are simple to define and easy to enforce. An example is the duty imposed by legislation to register a vehicle that complies with registration requirements. A failure by a government agency to heed that duty can easily be corrected by a court, by either a mandatory or a declaratory order. In other situations it is not as clear whether a statutory function conferred on a government agency carries with it a duty of some sort that can be enforced by a court. 14.1.2  Three types of statutory duty are considered in this chapter — the duty to make a decision, to provide a service, and to enforce or implement the law. The issue of statutory duty can arise in other ways as well, often less problematically. For example, a standard use of the writ of mandamus (see  17.4.1ff) is to compel a decision-maker who has erred to remake the decision according to law. The underlying assumption is that there is a duty on the decision-maker enforceable by mandamus to act according to law. The three categories of statutory duty considered in this chapter are not always as straightforward. Often, the issue in dispute is not the existence or otherwise of a statutory duty, but whether the duty can suitably be defined or enforced by a court. 14.1.3  It has been customary in administrative law for the issue of statutory duty to be considered as an element of the writ of mandamus. Historically mandamus was the prerogative remedy by which an executive officer or body could be compelled to perform a public duty. In many cases the issue of statutory duty is entwined with a discussion of mandamus and whether the applicant had standing to seek that remedy. However, the issue of statutory duty is properly considered independently, as a substantive feature of administrative law or a criterion of legality. After all, a statutory duty can be enforced by a remedy other than mandamus, for example, a mandatory injunction, a declaration (Federal Commissioner of Taxation v Biga Nominees Pty Ltd 14.4.4C), or an order under s 16 of the Administrative Decisions ( Judicial Review) Act 1977 (ADJR Act): Mudginberri Station Pty Ltd v Langhorne 14.3.2C. A failure to discharge a duty could similarly be classified as a jurisdictional error, for example, as a failure to exercise a jurisdiction in contravention of an express or implied statutory duty to do so. 897

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14.1.4  The ADJR Act addresses the first of the duties dealt with in this chapter — the duty to make a decision. Section 7 confers jurisdiction on the court in respect of the failure of an agency to make a decision within a prescribed or reasonable period (see 14.2.6); and s 16(1)(d) provides that the court can make an order directing a party to do any act or thing the court thinks necessary to do justice between the parties: see 17.8.1. The other duties discussed in this chapter — to provide a service and to enforce or implement the law — could be raised under s 5(1)(b) (non-observance of procedures required by law), s 5(1)(f ) (error of law) or s 5(1)(j) (otherwise contrary to law). See also sub-paragraphs (b), (f ) and (i) in: ACT: Administrative Decisions ( Judicial Review Act) 1989 s 5(1); Qld: Judicial Review Act 1991 s 20(2); Tas: Judicial Review Act 2000 s 17(2). 14.1.5  The focus of this chapter is on statutory duties that are enforceable by a court in a judicial review proceeding. It should not be overlooked that government non-compliance with statutory duties is a key concern of other administrative law review agencies, chiefly ombudsman offices and oversight commissioners. In that forum, where the review agency is limited to making recommendations to a government agency, there can be greater latitude for debate as to how the duty of a government agency is to be framed and implemented (see 14.5.1). 14.1.6  The focus of this chapter on statutory duties is indicative also. To the extent that there are non-statutory duties owed by government, these are not generally enforceable in the exercise of a court’s supervisory or judicial review jurisdiction. Other means must be used. For example, a government contractual duty can be enforced by an order for specific performance or by a declaration or injunction (as an exercise of equitable rather than supervisory jurisdiction: see  17.1.9). Similarly, the common law duty of a government agency to take reasonable care is cognisable by a court in the context of a tort action for damages: see, for example, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1. A significant example of a successful tort action is S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549, in which the Federal Court held that the Commonwealth Government had breached its duty to ensure that reasonable care was taken of detainees, as a result of a failure to provide adequate mental health services to two Iranian detainees held at Baxter Detention Centre. In limited respects, government duties of a non-statutory kind can be a focus of judicial review proceedings (as discussed in Chapter 9).

STATUTORY DUTY TO MAKE A DECISION OR EXERCISE A POWER 14.2.1  Statutes that confer power to make a decision usually leave it to the executive to decide if and how a decision is to be made. There is an attendant risk that a decision will never be made. The effective remedy for dealing with such a problem will in most instances be a complaint to the agency, the ombudsman or a member of parliament. The law nevertheless provides some discipline by presuming that a statutory power to make a decision carries with it an implied duty to consider an application, that is, to consider whether or not to exercise the power. The following three cases contain judicial dicta to that effect (in each case the dictum was said in response to and rejection of an argument that a statutory discretion which is unconfined in nature carries no obligation to make a decision). • Water Conservation and Irrigation Commission (NSW) v Browning 10.3.10C: Dixon J observed that a discretion conferred on the Water and Irrigation Commission to consent to the transfer 898

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14.2.2 

of an irrigation licence was not entirely free of legal obligation: ‘No doubt the Commission is placed under a duty to consider an application for consent to a transfer and to grant or to refuse or withhold consent’: at 505.

• Murphyores Inc Pty Ltd v  Commonwealth 10.3.16C: Mason J rejected a submission that the legislation under consideration did not impose a duty to consider and determine an application for approval to export goods: ‘the existence of the discretion implies the existence of a duty to determine any application that is made’: at 18.

• Padfield v Minister of Agriculture, Fisheries and Food 10.3.17C: Lord Reid suggested that a discretion conferred on the Minister for Agriculture to direct that a committee investigate a complaint against a milk marketing board carried with it ‘a duty to act … [I]f a complaint relevantly alleges that the board has [acted contrary to the public interest] the Act does impose a duty on the Minister to have it investigated’: at 1032.

14.2.2  To the extent that there is a duty to make a decision, the scope of the duty will be influenced in large measure by the terms of the legislation being administered. The following two contrasting decisions provide an illustration. In Tickner v  Bropho (1993) 40 FCR 183 it was held that a discretion conferred upon the minister by the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) carried a duty that was potentially of a demanding nature. Section 10 of the Act provided that the minister, upon receipt of an oral or written application from an Aboriginal person or group, ‘may make a declaration’ under the Act, if satisfied that the area in question was a significant Aboriginal area under threat of injury or desecration. An application was made to the minister to make a declaration to prevent commercial redevelopment of the old Swan Brewery site in Perth, which was built on the dreaming track of the Waugyl. The Full Federal Court held that the purpose and nature of the Act were such that the minister was under a duty, before exercising his discretion to grant or refuse a declaration, to consider the Aboriginal heritage significance of the area. To discharge that duty, the minister was further required to activate a procedure in the Act for appointing a person to hold a public inquiry and prepare a report on the heritage significance of the area, the threat posed to it, and competing interests. Chief Justice Black observed: It is clear, having regard to the purposes of the Act, that although the Minister is not bound to accede to an application for a declaration, he cannot simply ignore such an application and fail to consider it at all. It would frustrate the whole object of the Act if the Minister were not under an obligation to give some consideration to an application that satisfies the requirements of s 10(1)(a) … I cannot accept that an Act described in the then Minister’s Second Reading Speech … as beneficial legislation, remedying social disadvantage of Aboriginals and Islanders, and of having the effect, by preserving and protecting an ancient culture from destructive processes and of enriching the heritage of all Australians, could have been intended to allow for the rejection of applications for protection without proper consideration being given to the significance of the area sought to be protected … I consider that it must also be concluded that there is, in all such cases, an obligation to obtain a report under s  10(4) and to consider the report and any representations attached to it … The report is part of the mechanism provided by the Act by which the Minister is to be informed in a particular way when considering an application for a declaration … I do not consider that the administrative inconvenience that the existence of a general obligation of this nature might possibly cause provides a sound reason for concluding that it was not intended that there should be such an obligation. 899

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14.2.3  A different view was taken by the Western Australian Supreme Court in Re Kierath, Minister for Heritage; Ex parte City of Fremantle (2000) 22 WAR 342, concerning the heritage protection of buildings under the Heritage of Western Australia Act 1990 (WA) (in this instance, the Fremantle grain silos). The court held that the Act did not impose a duty on the minister, upon receiving a recommendation from the Heritage Council, to decide whether to enter a nominated building on the Heritage Register. Justice Wheeler (Wallwork J concurring) held that Tickner v Bropho could be distinguished on the basis of the different legislation and the relatively few applications likely to be received by the federal minister under the Aboriginal heritage protection legislation: There are at any given time potentially thousands of places which could be the subject of an opinion formed by the Minister pursuant to s 47 [of the WA Heritage Act]. It cannot be intended that he has a duty in relation to every place potentially of heritage significance to consider it with a view to its registration. That would make attention to his other ministerial duties impossible … Apparent obstacles to the implication of such a duty would include the substantial number of places which might be the subject of advice from an expert body such as the Heritage Council; it is unlikely but not unthinkable that, particularly in the early stages of the legislation, the Heritage Council would be in a position to advise the Minister in relation to dozens or perhaps hundreds of such places. Other obstacles would appear to be the somewhat indeterminate nature of the duty, and the inherent unlikelihood of the legislature intending that it would fall to the courts to determine whether the Minister was allocating reasonable priority to s 47 of the Heritage Act as compared with his various other ministerial duties in this and other portfolios.

14.2.4  Statutory language and context will commonly provide a strong indication of whether a power is in the nature of a discretion or a duty, as illustrated by Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1. Legislation provided that the New  South Wales  Consumer, Trader and Tenancy Tribunal may, on the application of a landlord, terminate a tenancy if any person on the premises was using them for an illegal purpose. The New South Wales Court of Appeal held the tribunal had a discretion to decline to make an order even though satisfied that the premises were being used for an illegal purpose. The court observed that the word ‘may’ will ordinarily (but not always) connote a discretion rather than a mandatory duty. A similar view was taken by the court in Waterhouse v Independent Commission Against Corruption (No 2) [2016] NSWCA 133, in considering ICAC’s refusal to investigate a complaint made to it. The Court of Appeal held at  [78]–[79] that while ‘the discretion is not expressly subject to any constraints ... [i]t is trite to say that the discretion is not entirely unconstrained. The power conferred on the Commission must be exercised in accordance with the subject matter, scope and purpose of the statute. The Commission must not decide to investigate, nor decline to investigate, for reasons which are extraneous to its statutory functions.’ Where the statute expressly states that the power is non-compellable, the court is likely to conclude that the power is bereft of duty and that mandamus will not issue. 14.2.5  The consequences of a failure to comply with a duty will also depend on the statutory language and context. In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, the High Court considered a statutory provision which imposed obligations on the minister to give to the applicant particulars of information relevant to the decision on his visa application and to invite the applicant to comment on it. Gageler, Keane and Nettle JJ held at [11] that the provision was a condition of the valid performance of the duties of the 900

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minister to consider a valid application, with the consequence that non-compliance renders a decision to refuse to grant a visa invalid and ineffective in law. Non-compliance with the provision could therefore result in the minister being restrained by an order for prohibition. As the duties of the minister to consider and determine the application remained unfulfilled, their performance could also be compelled by a constitutional writ of mandamus. 14.2.6  Section 7 of the ADJR Act provides that a person who is aggrieved by the failure of a decision-maker to make a decision may seek an order of review in the following two circumstances: •

•

where the decision-maker ‘has a duty to make a decision’, the law does not prescribe a period for doing so, and ‘there has been unreasonable delay in making the decision’s: s 7(1); and where the decision-maker ‘has a duty to make a decision’ within a prescribed period, and the prescribed period has expired: s 7(2).

See also ACT: Administrative Decisions ( Judicial Review) Act 1989 s 7; Qld: Judicial Review Act 1991 s 22; Tas: Judicial Review Act 2000 s 19. 14.2.7  Section 7 gives rise to three issues, on which the ADJR Act does not provide further guidance. When is there ‘a duty to make a decision’? What constitutes ‘unreasonable delay’? And what kind of order can the court make (under s 16 of the ADJR Act) to remedy the failure to make a decision? Some guidance in addressing those issues is provided by Wei v Minister for Immigration, Local Government and Ethnic Affairs 14.2.8C and Thornton v  Repatriation Commission (1981) 3 ALD 281: see 14.2.9. 14.2.8C

Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455; 23 ALD 778 Federal Court of Australia

[Five citizens of the People’s Republic of China, who had been granted temporary residence to study at an Australian university, each lodged an application while in Australia for permanent resident status on humanitarian grounds. Four of the applications were lodged between February and November 1989, and the fifth (from Mr Wei) was lodged in March 1990. The number of such applications by Chinese nationals in Australia had risen steadily after the Tiananmen Square massacre in Beijing, China in June 1989; there had been a dramatic increase after December 1989, when special legislative measures were introduced giving favourable treatment to Chinese nationals wishing to remain in Australia while their applications were processed. The department led evidence of its workload (for example, 13,000 refugee applications, including 8000 from China) and of the steps it had taken to deal with and to prioritise the applications (for example, an additional 160 processing officers were to be recruited; applications were dealt with in chronological sequence), but priority was being given to non-Chinese applicants, for whom no special and favourable legislative measures had been made.] Neaves J: It is abundantly clear on the evidence that, at the date of the hearing, no steps had been taken to consider and determine the applications for permanent resident status lodged by the five applicants presently before the Court. The case for the respondent is that the question whether there has been unreasonable delay within the meaning of s 7(1)

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of the Judicial Review Act in making a decision upon each of those applications must be considered in the context of the large number of applications for such status that have been received. The evidence, however, fails to establish that the Department of Immigration, Local Government and Ethnic Affairs has taken any steps to deal with the applications of that kind lodged by citizens of the People’s Republic of China … I consider the evidence concerning the steps taken to remedy the perceived deficiency in the resources of the Department of Immigration, Local Government and Ethnic Affairs to deal with the increased number of applications for permanent resident status and for the determination of refugee status to be unsatisfactory. That Department and the Department of Finance appear to have been slow to react to the need to put in place sufficient resources to deal with the number of applications being received. Further, while the evidence refers to additional funds being made available to the Department of Immigration, Local Government and Ethnic Affairs in 1989–90 and 1990–91, the evidence is silent … as to what additional staff had been made available to deal with such applications. Clearly, it is not for the Court to dictate to the Parliament or the Executive what resources are to be made available in order properly to carry out administrative functions under legislative provisions. Equally clearly, however, the situation cannot be accepted in which the existence of a right created by the Parliament is negatived, or its value set at nought, by a failure to provide the resources necessary to make the right effective … [Neaves J proceeded to make a finding that there had been unreasonable delay in dealing with four of the applications before the court, which had all been lodged more than 18 months previously and prior to the dramatic increase occurring after December 1989. His Honour found there had not been unreasonable delay in dealing with Mr Wei’s application, lodged 14 months earlier in March 1990.] I am not satisfied on the evidence that [Mr Wei’s] case presents any special features which warrant it being dealt with ahead of applications which had been lodged earlier than his. That applications should, in the absence of special circumstances, be dealt with in chronological sequence according to the date on which they were lodged seems to me to be a reasonable approach … Each of the applicants other than Mr Wei is, therefore, entitled to a declaration that there has been unreasonable delay within the meaning of s 7(1) of the Judicial Review Act in making a decision upon his or her application for permanent resident status on humanitarian grounds. Each of the applicants is also entitled to an order directing the making of a decision upon his or her application. Counsel for the applicants submitted that that order should direct that a decision be made on each application forthwith. To make such an order would, in my opinion, be unrealistic. The order I propose to make is to direct that a decision upon the application of each of the applicants other than Mr Wei for the grant of permanent resident status be made within the period of eight weeks from the date of the Court’s order.

14.2.9  The question of what constitutes ‘unreasonable delay’ was considered also in Thornton. The applicant was unsuccessful in applying for an order under s  7 of the ADJR Act against the Repatriation Commission, which had deferred making a decision on her claim until the High Court had delivered judgment in a similar case then before the court. 902

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Fisher J: In my opinion the reasonableness of the delay on the part of the Commission is a matter for objective determination, the question being whether a reasonable man acting in good faith could consider the decision to delay until the High Court hands down its judgment as appropriate or justified in the circumstances, or whether it was capricious and irrational … In the first instance it is on the evidence a delay for a considered reason and not in consequence of neglect, oversight or perversity. Moreover it is a delay for a finite and not an indefinite period. Admittedly it is uncertain when the High Court will hand down its decision but one is not entitled to assume that there will be any excessive delay. There have been extensive changes made to the Repatriation Act and the procedures thereunder in recent years, and the consequential litigation renders it understandable that claims are not being dealt with, at least for the time being, as expeditiously as in the past.

Thornton was followed by the Full Federal Court in Bidjara Aboriginal Housing and Land Co Ltd v Indigenous Land Corporation (2001) 106 FCR 203, holding that it was not unreasonable for the Land Corporation to await the outcome of a native title proceeding before making a related decision. In PT Pabrik Kertas Tjiwi Kimia TBK v Minister for Justice and Customs (2000) 60 ALD 203 the court accepted that a ministerial delay in making a decision, though unfortunate, was not unreasonable as the minister had chosen to seek additional information and to institute further consultation. In ASP15 v  Commonwealth of Australia (2016) 248  FCR 372, the Full Federal Court affirmed that Thornton remains ‘an authoritative statement of the appropriate test to be applied in deciding whether or not a delay by an administrative decision-maker is reasonable’ (at 379), and held that no unreasonable delay arose from the minister’s decision to wait for an ASIO security clearance before proceeding with the processing of protection visas, in light of serious allegations which had been made against the applicants. 14.2.10  Section  10 of the Ombudsman Act  1976 (Cth) contains a limited procedure to address unreasonable delay in making a decision. If the Commonwealth Ombudsman is of the opinion that there has been unreasonable delay by an agency in failing to make a decision that could otherwise be appealed to the Administrative Appeals Tribunal, the Ombudsman can grant a certificate which has the effect that a decision not to do the act or thing is deemed to have been made, thus enabling an appeal to the tribunal.

STATUTORY DUTY TO PROVIDE A SERVICE 14.3.1  A major function of government is to provide services to the public, in the form of licences, benefits, hospitals, schools, transport services, postal facilities and the like. In what circumstances will government be under an enforceable statutory duty to provide the service in question? The cases bear out a point made in Chapter 8, that the words of a statute are only one factor to be considered in deciding the meaning and effect of a statute: see  8.3.3. Thus, in Yarmirr v  Australian Telecommunications Corporation 14.3.3C the statutory requirement that a service ‘shall’ be provided did not give rise to an enforceable statutory duty; while in Mudginberri 14.3.2C a statutory duty arose by implication in a statute that was silent as to whether there was a duty and who was to discharge it. Other factors considered by the courts in those cases were the nature of the function to be performed, the impact that non-performance of that function would have on the enjoyment of common law rights, the seniority level of the official on whom 903

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the function was conferred, and the practicability of judicial enforcement of the function. The context of the impact of non-performance on other rights is illustrated by Mudginberri, holding that meat could not be exported from Australia unless government had arranged for its prior inspection and export approval; Bradley v Commonwealth (1973) 128 CLR 557 (discussed in Mudginberri), holding that a pivotal role of government is providing a postal service; Zachariassen v Commonwealth (1917) 24 CLR 166, in giving customs clearance to a ship; and R v Mahoney; Ex parte Johnson (1931) 46 CLR 131, granting an employment licence. 14.3.2C

Mudginberri Station Pty Ltd v Langhorne (1985) 7 FCR 482; 68 ALR 613 Federal Court of Australia (Full Court)

[Orders made by the minister pursuant to the Export Control Act 1982 (Cth) prohibited the export of meat from Australia unless it had been slaughtered at a registered establishment and had been inspected by an authorised officer (or meat inspector). Orders 448–450 of the Export Meat Orders provided that the occupier of a registered establishment must apply in writing to a regional office of the Commonwealth Department of Primary Industry for a meat inspector to be appointed; the slaughter was not to commence until an application had been made and an inspector was present at the establishment. The orders did not otherwise specify how or by whom the application was to be dealt with. Mudginberri Station, in Kakadu in the Northern Territory, applied to the department for a meat inspector to be appointed. At the time, a union of meat industry workers had imposed a picket line on the road leading to the station; the Commonwealth inspectors had resolved not to cross the picket line. After attempting unsuccessfully to instruct the inspectors to cross the line (to the point of suspending their pay), an officer of the department (Mr Langhorne) made a decision to refuse to make meat inspectors available at Mudginberri. The company thereupon commenced proceedings seeking an order of review under s 5 of the ADJR Act. The trial judge dismissed the claim, holding that under the Export Meat Orders the department had a discretion to provide inspectors, which had been lawfully exercised. The Full Court reversed that decision, holding that the orders implicitly imposed a duty on the department to provide inspectors.] Bowen CJ, Evatt and Pincus JJ: The fate of the appeal appears to us to depend upon a question of statutory construction, namely whether the relevant provisions … created a duty or gave a discretion … [W]ithout inspection by authorised officers, there can be no export. Must authorised officers be provided? That is the core of this case. It is a curiosity of the drafting of the Orders that, perhaps by a simple mistake, the critical provisions of the Export Meat Orders, namely Orders 448–50, do not say how an application for inspectors is to be dealt with … O 448 requires the occupier to apply for the requisite services, O 449 makes provision for the time of receipt of applications, and O 450 prohibits the commencement of production of prescribed goods where the presence of an authorised officer is required until such officer is present. There is nothing to say whether an application must, or may, be granted, or even who is to deal with it. It is evident enough that some implication must be made, at least to provide that, in response to the application, authorised officers may be provided. Otherwise, the whole scheme is a futility. The question is, however, whether the proper implication to make is

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that which appears to have been made by the learned primary judge, namely that there is a discretion to grant or refuse inspectors, when their presence is requested, on the basis of such considerations as seem proper to the person considering the application. Our first reason for disagreeing, as we do, with the view that such a discretion should be implied is that one should not approach these Orders on the assumption that all rights of processors for export and exporters to deal with their own goods are taken away except in so far as the Orders expressly say otherwise. Not only are the Orders so framed that the relevant goods cannot be exported without inspection; the inspectors are not, under the Orders, chosen by the processor or exporter, nor are they persons whose qualifications are objectively defined in the Orders. They must be ‘authorised officers’ in accordance with the definition referred to above. If there is a right to decline to provide inspectors ‘in the interests of the industry as a whole’ a means of export control is provided such that a would-be exporter, who has complied precisely with every other requirement of the Orders, may nevertheless be effectively prevented from processing goods for export, and consequently exporting them, by a discretionary decision rejecting an application for provision of inspectors. In Bradley v Commonwealth (1973) 128 CLR 557, a majority of the High Court read the Post and Telegraph Act 1901 (Cth) as not entitling the Postmaster-General to deprive citizens of postal services, except in the cases in which the statute or regulations made under it expressly so provided. The court was unwilling to make such an implication in favour of the Postmaster-General as was made here in favour of what might loosely be called the relevant department. The statutory provisions considered in Bradley’s case have no similarity to those with which we are concerned. However, the court’s approach to the matter provides some guidance of a general kind. In the judgment of Barwick CJ and Gibbs J, their Honours referred, at 566, to the importance of postal and telephone services as amenities available to the people of the Commonwealth and described them as: ‘essential to the conduct of trade and commerce as well as to the enjoyment of any real freedom in the dissemination of information and opinion.’ Under the Orders, provision of inspectors is made essential to the carrying on of the relevant trade and commerce. After the words just quoted, their Honours said: It is legitimate to have regard to these considerations in interpreting the Act, although they would not justify a departure from the ordinary meaning of words that were clear and unambiguous in themselves and not inconsistent with other provisions of the statute. When, however, it becomes necessary to resolve an ambiguity or obscurity, it is right to start from the assumption that if the Parliament intended to confer on the Postmaster-General an arbitrary power, subject to no condition and to no review, to deprive any person of the liberty to use the postal and telephone services, with all the grave consequences that might ensue, it would use clear words for that purpose. The assumption mentioned cannot directly apply to the Orders, for decisions made under them are subject to review. Nevertheless, the dictum provides encouragement to be slow, in determining the effect of the Orders, to read in a power — for which the Minister has not thought fit expressly to provide — by the exercise of which unspecified officials may effectively suspend or halt the processing of meat for export. The Commonwealth may, without doubt, achieve these results, but courts should not lightly hold them to be achieved by mere implication.

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Before parting with Bradley’s case, we note that there the court was influenced by the fact that the statute conferred a monopoly in respect of the services in question (at 565); that has an analogue here, for the necessary service may not be provided privately. … [H]ere: O 448 does not even trouble to specify to whom the application is to be made but merely said it is to be made ‘to a regional office’ there to be dealt with, presumably, by anyone whose task it happens to be to allocate officers to their duties. The natural reading of O 448–50 is that the expressed desire to have the services of inspectors is to be enough, in the ordinary way, to produce their attendance. No doubt it was necessary that some notification be given to the appropriate office so that those responsible could become aware of the inspectorate requirements before the commencement of slaughtering, but the whole mode of expression is inconsistent with the notion that there was intended to be superadded to the detailed requirements presently to be discussed an untrammelled discretion to withhold inspection. The statutory context tends against implying a discretion in O 448, because it evinces a tendency to prescribe the rights and obligations of would-be exporters with some precision, rather than leaving all subject to administrative discretion. … [I]t is difficult to suppose that the Minister who has so hedged around practically every other official power given by the Orders intended to give an official, whom he did not bother to designate, the right to refuse inspection on unstated grounds. In so far as any assistance is to be derived from the context, it must surely be in the direction of holding that the application for provision of authorised officers is a purely mechanical matter, not intended to be of any other than routine administrative significance … In our view, the traditional and proper reluctance of courts to hold that, by mere implication, what would otherwise have been personal or property rights of citizens have been abrogated or trenched upon is sufficient reason to resolve the question of construction in favour of Mudginberri. Its expectation of being able to carry on its trade without government interruption and to perform its contractual obligations to purchasers, should not be defeated, in our view, by such an implication as has been made. [Their Honours referred to the evidence of Mr Langhorne as to his reasons for not taking further steps to provide inspection services.] Having interpreted the Orders as set out above, we have come to the conclusion that the application should have succeeded before the learned primary judge, for it seems clear that the Department, at the material time, regarded itself as having such a discretion as was contended for and held to exist. We are of opinion that there was no discretion, but a duty to provide inspectors, and that the applications for inspectors made on behalf of Mudginberri should have been considered on that basis. The only matter remaining for consideration is whether the duty we have held to exist should be regarded as qualified in any relevant way. It was, we think, conceded, and rightly so, that the duty does not extend to doing what is impossible, but we are not prepared to hold that there is any other relevant limitation. In particular, the duty to provide inspectors is not to be regarded as subject to consideration of ‘the overall welfare of the meat industry’. It may very well be — we express no opinion on this aspect — that for practical reasons it would be desirable that the duty be so qualified; if so, it would seem to be a simple matter for the Minister to make an appropriate Order. That, however, is a question of policy and not a matter for us.

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14.3.3C

Yarmirr v Australian Telecommunications Corporation (1990) 20 ALD 562; 96 ALR 739 Federal Court of Australia

[The applicant, representing Aboriginal communities in remote areas of the Northern Territory, sought an order under the ADJR Act requiring Telecom to provide a standard telephone service to the community in accordance with s 27 of the Australian Telecommunications Corporation Act 1989 (Cth), which provided: 27(1) Telecom shall supply a standard telephone service between places within Australia … (3) Telecom shall supply the standard telephone service as efficiently and economically as practicable. (4) Telecom shall ensure: (a) that, in view of the social importance of the standard telephone service, the service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and (b) that the performance standards for the standard telephone service reasonably meet the social, industrial and commercial needs of the Australian community.

The action was dismissed.] Burchett J: On any view, [s 27] is concerned with an extremely broad discretion. The concepts evoked by the expressions ‘efficiently and economically as practicable’, ‘that, in view of the social importance …, the service is reasonably accessible to all people in Australia on an equitable basis’, and ‘reasonably meet the social, industrial and commercial needs of the Australian community’ call, in each case, for an adjustment between ideal goals and what Telecom is able to do. It is Telecom which must make that adjustment, notwithstanding that other sections require it to do so subject to the direction of the Minister. In the making of it, ‘competing considerations have to be carefully weighed and balanced in the public interest’ and ‘the very nature of the task, with its emphasis on the broader public interest, is one which militates strongly against the imposition of a duty of care being imposed upon such an agency in favour of any particular section of the public’. … Although, when parliament enacted this legislation, the task of upgrading the telephone service throughout Australia was almost completed, it is not likely that the remaining needs of orderly progress to final completion were wholly ignored. Parliament could hardly have intended to interrupt the programme as it reached success. Finance, manpower and the availability of equipment being all subject to limitations, it could only have been disruptive to have conferred a right such as that which the applicants claim — a right enforceable in the courts, and not restricted by the wide discretion which the nature of the problems suggests … If it intended, by s 27, to provide that Telecom ‘shall ensure’ that there is accessible to all people in Australia a better service than that, it must have intended that Telecom do so within a reasonable time, not all at once. And if a reasonable time was intended, the factors which make one time reasonable rather than another are so complex and so bound up with the needs to be served, the resources available, and the relative priorities of each, that the intrusion of other than the most limited private rights could only obstruct the goals of efficiency, economy and practicability which are expressly stated in the section. Only the conferral of a power to choose the appropriate means to the statutory end could provide any satisfactory solution … There is probably no practicable alternative to setting up an authority which with some but incomplete guidance from the legislature will apply its own notions concerning these matters …

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When parliament imposes on a functionary a broad duty involving the development and application of policy, to be performed nationally, the fulfilment of which must be subject to many constraints and may be achieved in many different ways, according to the measure allowed to those constraints, but cannot be achieved absolutely, if only because it involves an ideal, detailed supervision by the courts of the manner of performance of the duty is not likely to have been intended.

14.3.4  Yarmirr 14.3.3C was distinguished in Environment East Gippsland Inc v  VicForests (2010) 30 VR 1 where it was held that ‘guidelines’ and standards relating to the conservation of threatened species under the East Gippsland Forest Management Plan were ‘not of such a general and indefinite character as to be properly characterisable as aspirational and incapable of enforcement’: at [312]. 14.3.5  A related issue is whether the conferral of a function upon a body carries with it an enforceable duty to discharge that function.The issue arose in Majar v Northern Land Council (1991) 37 FCR 117, concerning a statutory provision which stated: ‘The functions of an [Aboriginal] Land Council are … to assist Aboriginals claiming to have a traditional land claim … by arranging for legal assistance for them at the expense of the Land Council’. The Federal Court held that implicit in the function of the council was an obligation to provide applicants with legal assistance to pursue a land claim. By contrast, in Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission 2.4.17C the court suggested that the educative function of the Australian Competition and Consumer Commission to provide consumer information to the public was properly to be characterised as a duty, but not a duty that was open to legal challenge as to the legal accuracy of the commission’s advice. 14.3.6  Account has to be taken also of the discretion of a court to refuse to compel a government agency to provide a service: see  17.9.1.  Attorney-General v Colchester Corporation [1955] 2 QB 207 is illustrative. The court accepted that a municipal corporation was in breach of the duty, inherent in its role, to continue providing a ferry service to cross a river. The court nevertheless refused a remedy on the basis that performance of the duty was uneconomic (there were only four regular users, paying 2d per journey): see E Campbell, ‘Enforcement of public duties which are impossible to perform’ (2003) 10 Australian Journal of Administrative Law 201.

STATUTORY DUTY TO ENFORCE AND IMPLEMENT THE LAW 14.4.1  Another major function of government is to implement and enforce the law. A government decision as to whether and how to enforce the law is often of interest or consequence to a great many people, both directly and indirectly. Can a failure or refusal by government to enforce the law be challenged in judicial review proceedings? Courts, it will be seen, are loath to concede that the responsibility of government to administer and enforce the law according to its terms is not also a legal duty. Equally, courts are alive to the difficulty of casting the duty as one that is enforceable by a member of the public, even when standing is not an issue. One way of resolving that dissonance is to say that government has a broad discretion to decide how the duty to enforce the law is to be discharged. 908

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14.4.2C

R v Metropolitan Police Commissioner; Ex parte Blackburn [1968] 2 QB 118 Court of Appeal

[Mr Blackburn sought mandamus to compel the commissioner to enforce the gambling laws against illegal gaming clubs. In part, the action was in response to a confidential instruction by the commissioner to police to take proceedings against clubs in limited circumstances only. During the proceedings the commissioner agreed to withdraw the instruction, and the court accordingly dismissed the action on that basis. The court commented, however, on the duty of the commissioner to enforce the law.] Lord Denning MR: [His Lordship first outlined the constitutional role of the Commissioner of Police, noting that he was ‘independent of the executive’.] I hold it to be the duty of the Commissioner of Police of the Metropolis, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or no suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. But in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone. … Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter. He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide. But there are some policy decisions with which, I think, the courts in a case can, if necessary, interfere. Suppose a chief constable were to issue a directive to his men that no person should be prosecuted for stealing any goods less than £100 in value. I should have thought that the court could countermand it. He would be failing in his duty to enforce the law. A question may be raised as to the machinery by which he could be compelled to do his duty. On principle, it seems to me that once a duty exists, there should be a means of enforcing it. This duty can be enforced, I think, either by action at the suit of the Attorney-General or by the prerogative writ of mandamus. I am mindful of the cases cited by Mr Worsley which he said limited the scope of mandamus. But I would reply that mandamus is a very wide remedy which has always been available against public officers to see that they do their public duty. It went in the old days against justices of the peace both in their judicial and in their administrative functions. The legal status of the Commissioner of Police of the Metropolis is still that he is a justice of the peace, as well as a constable. No doubt the party who applies for mandamus must show that he has sufficient interest to be protected and that there is no other equally convenient remedy. But once this is shown, the remedy of mandamus is available, in case of need, even against the Commissioner of Police of the Metropolis. [Salmon LJ and Edmund Davies LJ delivered concurring judgments.]

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Control of Government Action

Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 House of Lords

[The Inland Revenue granted an amnesty to as many as 5000 workers in the printing industry (Fleet Street casuals) who were suspected of illegally evading income tax, provided they adhered to a scheme to pay tax thereafter. The federation, claiming that small businesses which it represented had been treated more harshly, sought a declaration that the amnesty was unlawful and an order of mandamus to compel the Inland Revenue to assess and collect income tax from the workers. The court dismissed the action, on the grounds that the federation did not have a sufficient interest in the matter to apply for relief, and had not shown that the Inland Revenue acted unlawfully in exercising its statutory responsibilities in that manner. The court also commented generally on the duty of the Inland Revenue to enforce the taxation laws.] Lord Wilberforce: The Inland Revenue Commissioners are a statutory body. Their duties are, relevantly, defined in the Inland Revenue Regulation Act 1890 and the Taxes Management Act 1970. Section 1 of the Act of 1890 authorises the appointment of commissioners ‘for the collection and management of inland revenue’ and confers on the commissioners all necessary powers for carrying into execution every Act of Parliament relating to inland revenue. By s 13 the commissioners must ‘collect and cause to be collected every part of inland revenue  and all money under their care and management and keep distinct accounts thereof.’ [His Lordship noted the statutory powers of the commissioners to assess a person’s liability to pay taxation, and to make special arrangements (of the kind made in the present case) for the collection of tax.] From this summary analysis it is clear that the Inland Revenue Commissioners are not immune from the process of judicial review. They are an administrative body with statutory duties, which the courts, in principle, can supervise. They have indeed done so — see R v Income Tax Special Commissioners (1881) 21 QBD 313 (mandamus) and Income Tax Special Commissioners v Linsleys (Established 1894) Ltd [1958] AC 569, where it was not doubted that a mandamus could be issued if the facts had been right. It must follow from these cases and from principle that a taxpayer would not be excluded from seeking judicial review if he could show that the revenue had either failed in its statutory duty toward him or had been guilty of some action which was an abuse of their powers or outside their powers altogether. Such a collateral attack — as contrasted with a direct appeal on law to the courts — would no doubt be rare, but the possibility certainly exists. The position of other taxpayers — other than the taxpayers whose assessment is in question — and their right to challenge the revenue’s assessment or non-assessment of that taxpayer, must be judged according to whether, consistently with the legislation, they can be considered as having sufficient interest to complain of what has been done or omitted. I proceed thereto to examine the revenue’s duties in that light. These duties are expressed in very general terms and it is necessary to take account also of the framework of the income tax legislation. This establishes that the commissioners must assess each individual taxpayer in relation to his circumstances. Such assessments and all information regarding taxpayers’ affairs are strictly confidential. There is no list or record of assessments which can be inspected by other taxpayers. Nor is there any common fund of the produce of income tax in which income taxpayers as a whole can be said to have any interest.

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14.4.3C

The produce of income tax, together with that of other inland revenue taxes, is paid into the consolidated fund which is at the disposal of Parliament for any purposes that Parliament thinks fit. … The structure of the legislation relating to income tax… makes clear that no corresponding right is intended to be conferred upon taxpayers. Not only is there no express or implied provision in the legislation upon which such a right could be claimed, but to allow it would be subversive of the whole system, which involves that the commissioners’ duties are to the Crown, and that matters relating to income tax are between the commissioners and the taxpayer concerned. No other person is given any right to make proposals about the tax payable by any individual: he cannot even inquire as to such tax. The total confidentiality of assessments and of negotiations between individuals and the revenue is a vital element in the working of the system. As a matter of general principle I would hold that one taxpayer has no sufficient interest in asking the court to investigate the tax affairs of another taxpayer or to complain that the latter has been under-assessed or over-assessed: indeed, there is a strong public interest that he should not. And this principle applies equally to groups of taxpayers: an aggregate of individuals each of whom has no interest cannot of itself have an interest. That a case can never arise in which the acts or abstentions of the revenue can be brought before the court I am certainly not prepared to assert, nor that, in a case of sufficient gravity, the court might not be able to hold that another taxpayer or other taxpayers could challenge them. Whether this situation has been reached or not must depend upon an examination, upon evidence, of what breach of duty or illegality is alleged. Lord Diplock: [T]he board are charged by statute with the care, management and collection on behalf of the Crown of income tax, corporation tax and capital gains tax. In the exercise of these functions the board have a wide managerial discretion as to the best means of obtaining for the national exchequer from the taxes committed to their charge, the highest net return that is practicable having regard to the staff available to them and the cost of collection. The board and the inspectors and collectors who act under their directions are under a statutory duty of confidentiality with respect to information about individual taxpayers’ affairs that has been obtained in the course of their duties in making assessments and collecting the taxes; and this imposes a limitation on their managerial discretion. I do not doubt, however, and I do not understand any of your Lordships to doubt, that if it were established that the board were proposing to exercise or to refrain from exercising its powers not for reasons of ‘good management’ but for some extraneous or ulterior reason, that action or inaction of the board would be ultra vires and would be a proper matter for judicial review if it were brought to the attention of the court by an applicant with ‘a sufficient interest’ in having the board compelled to observe the law … [O]ccasions will be very rare on which an individual taxpayer (or pressure group of taxpayers) will be able to show a sufficient interest to justify an application for judicial review of the way in which the revenue has dealt with the tax affairs of any taxpayer other than the applicant himself. [His Lordship observed that such rare cases could nevertheless arise in which the commissioners acted unlawfully in performing their statutory duties.] It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. The Attorney-General, although he occasionally applies for prerogative orders against public authorities that do not form part of the central government, in practice never does so against government departments. It is not, in my view, a

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Control of Government Action

sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge. Lord Scarman: [T]he statutory provisions … establish a complex of duties and discretionary powers imposed and conferred in the interest of good management upon those whose duty it is to collect the income tax. But I do not accept that the principle of fairness in dealing with the affairs of taxpayers is a mere matter of desirable policy or moral obligation. Nor do I accept that the duty to collect ‘every part of inland revenue’ is a duty owed exclusively to the Crown. Notwithstanding Reg v Lords Commissioners of the Treasury, I am persuaded that the modern case law recognises a legal duty owed by the revenue to the general body of the taxpayers to treat taxpayers fairly: to use their discretionary powers so that, subject to the requirements of good management, discrimination between one group of taxpayers and another does not arise: to ensure that there are no favourites and no sacrificial victims. The duty has to be considered as one of several arising within the complex comprised in the care and management of a tax every part of which it is their duty, if they can, to collect. [His Lordship cited dicta from other cases, concluding that the law recognises a ‘duty of fairness as between one taxpayer and another’.] [I]s it acceptable for the courts to leave matters of right and wrong, which give rise to genuine grievance and are justiciable in the sense that they may be decided and an effective remedy provided by the courts, to the mercy of policy? Are we in the twilight world of ‘maladministration’ where only Parliament and the Ombudsman may enter, or upon the commanding heights of the law? The courts have a role, long established, in the public law. They are available to the citizen who has a genuine grievance if he can show that it is one in respect of which prerogative relief is appropriate. I would not be a party to the retreat of the courts from this field of public law merely because the duties imposed upon the revenue are complex and call for management decisions in which discretion must play a significant role. [Lord Fraser agreed with Lords Wilberforce and Roskill, adding that a person may be able to establish a sufficient interest to seek relief in a case of ‘exceptionally grave or widespread illegality’: at 647. Lord Roskill observed that a taxpayer may have a sufficient interest to commence proceedings of the present kind where ‘because of some grossly improper pressure or motive the [commissioners] have failed to perform their statutory duty as respects a particular taxpayer or class of taxpayer’: at 662.]

14.4.4C

Federal Commissioner of Taxation v Biga Nominees Pty Ltd [1988] VR 1006 Supreme Court of Victoria (Full Court)

[Under a leasing arrangement, Biga Nominees leased a truck from a finance company that had purchased the truck from a retailer. The transaction between the retailer and the finance company was subject to sales tax, payable by the retailer. Biga was obliged under the sales tax legislation to reimburse the retailer. Biga claimed that the transaction fell within a statutory exemption. However, the right to appeal under the legislation was conferred only

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on the taxpayer (in this case, the retailer). Biga instead commenced proceedings, claiming a declaration that the truck was exempt from tax. The commissioner objected that Biga did not have standing to initiate proceedings, on the basis that the commissioner did not owe any legal duty to Biga. The Full Court dismissed the objection.] Murphy, Gobbo and Southwell JJ: [The court quoted the observation of Salmon LJ in the Fleet Street casuals case 14.4.3C that ‘a legal duty of fairness is owed by the revenue to the general body of taxpayers’.] The dicta of Lord Scarman referred to above are, if we may respectfully say so, not without difficulty in application, or indeed, in concept. Whilst it would be difficult to quarrel with such a view as a matter of philosophy, it does not follow that in law there is a public duty owed by an equivalent such as the Commissioner of Taxation so that, subject to special interest being shown, any taxpayer may have standing to pursue proceedings in respect of any other taxpayer’s assessments or exemptions. Moreover, it is an equally large step also to extend the duty and a correlative right to non-taxpayers. With great respect, it would seem to be more appropriate to analyse the particular legislation in question and to endeavour to ascertain, having regard to the structure of that legislation, whether there may be identified particular duties either to the public at large or to particular sections of the public. We are satisfied in the present case that there is a duty owed to persons such as the present respondent and that that duty is sufficient, both in its content and in the width of the persons to whom it is owed, that it can properly be described as a public duty. We are of this opinion because the legislation contemplated a category of persons who, though not taxpayers, would be directly affected by the legislation. [The legislation] gives the taxpayer the right to recover from the purchaser the amount of the sales tax payable by him and stated upon the invoice, a right which is co-extensive with the right of the taxpayer to recover the price or other payment for or in respect of the goods. If there is then added to that provision the existence of categories of exemptions along with the fact that the Act does not provide any mechanism for resolving any dispute as to the purchaser’s obligation to pay tax or to secure the benefit of any appropriate exemption, it can be found that the Commissioner owes a duty in relation to the proper enforcement of the taxation and exemption provisions, not merely to the taxpayer but to the direct purchaser so affected. To describe the duty here owed by the Commissioner as a public duty does not necessarily involve a finding that there is an equivalent public right residing in each member of the public as against the Commissioner. It may be that certain statutes by their nature create duties that may be properly described as being public duties and that such a conclusion is essentially based on the content of the duty rather than the identity of the person to whom the duty is owed. It is, in our view, unnecessary to adopt such a conclusion in this case for the reasons we have indicated, as Biga, in our opinion, has made out the essential ingredients to establish its standing to proceed with its action. Biga’s obligation as the direct purchaser to pay the tax gives it an interest clearly greater than ordinary members of the public. We note in passing that in the Fleet Street Casuals Case, counsel for the Commissioner conceded that if some commercial disadvantage had been demonstrated the Federation would have had standing. There is an obvious commercial disadvantage in being obliged to disgorge the amount payable in sales tax. The question whether the exemption applies involves the affairs and activities of Biga, and not [the retailer of the finance company], whichever be the taxpayer. It is right that Biga should be a party to any proceedings relating to the exemption, and Biga ought not to have to rely upon the taxpayer to take proceedings.

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14.4.5 

Control of Government Action

14.4.5  To the extent that there is a duty on the police or other government agencies to enforce the law, it is generally acknowledged by courts that the duty is not an absolute one. There is a discretion to be exercised, having regard to matters such as budgetary considerations, the practicality of enforcing the law, and competing rights, duties and policy considerations. R v Chief Constable of Sussex; Ex parte International Trader’s Ferry Ltd [1999] 1 All ER 129 provides an illustration. The House of Lords reviewed, but did not interfere with, a decision by the Chief Constable to scale down the number of police allocated to controlling a demonstration that was impeding live animal exports by International Trader’s Ferry Ltd. Lord Slynn, after noting that the police had to strike a balance between protecting the right of a trader to trade lawfully, and the right of the public to protest lawfully, observed: In a situation where there are conflicting rights and the police have a duty to uphold the law the police may, in deciding what to do, have to balance a number of factors, not the least of which is the likelihood of a serious breach of the peace being committed. The balancing involves the exercise of judgment and discretion. The courts have long made it clear that, though they will readily review the way in which decisions are reached, they will respect the margin of appreciation, or discretion, which a chief constable has. He knows, through his officers, the local situation, the availability of officers, his financial resources and the other demands on the police in the area at different times … Where the use of limited resources has to be decided, the undesirability of the court stepping in too quickly was made very clear by Bingham MR in R v Cambridge Health Authority, ex p B [1995] 2 All ER 129 at 137 …

14.4.6  Comments to like effect — that police have a duty to enforce the law, but a broad discretion as to how best to discharge that duty — were made by the Federal Court in O’Malley v Keelty, Australian Federal Police Commissioner [2004] FCA 1688. In dismissing a claim that police had failed to respond to an alleged unlawful telephone interception, Emmett J stressed the importance that complaint investigation plays in gauging whether there has been an actionable breach of duty by the police: [8] [T]he Commissioner of Police is not beyond the law. If the police fail in the duties, however ephemeral it may be to describe them, a citizen is entitled to assistance in ensuring that the police do their duty. For example, if there was evidence of a dishonest refusal to investigate on the part of an investigating officer, or if the evidence suggests that an honest police officer acting reasonably could not properly come to the view that the matter was not capable of investigation there may be, and I emphasise may be, a basis upon which the Court could interfere.

14.4.7  The competing considerations that bear upon a decision by government whether to enforce the law were noted by McHugh J in Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd 17.6.7C: The enforcement of the public law of a community is part of the political process; it is one of the chief responsibilities of the executive government. In most cases, it is for the executive government and not for the civil courts acting at the behest of disinterested private individuals to enforce the law. There are sometimes very good reasons why the public interest of a society is best served by not attempting to enforce a particular law. To enforce a law at a particular time or in particular circumstances may result in the undermining of the authority of the executive government or the courts of justice. In extreme cases, to enforce it may lead to civil unrest and bloodshed. 914

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Chapter 14  Failure to Perform a Statutory Duty

14.5.2E

Moreover, any realistic analysis of law, politics and society must recognise that not every law on the statute books continues to have the support of the majority of members of the community or always serves the public interest. Laws that once had almost universal support in a community may now be supported only by a vocal and powerful minority. Yet to attempt to repeal them may be more socially divisive than to allow them to lie unenforced. Moreover, the interests of a society arguably are often furthered by not enforcing particular laws … Attorneys-General have long taken the view that the institution of legal proceedings is not justified simply because there is prima facie evidence of a breach of the law (Gouriet v Union of Post Office Workers [1978] AC 435 at 489) … The decision when and in what circumstances to enforce public law frequently calls for a fine judgment as to what the public interest truly requires. It is a decision that is arguably best made by the Attorney-General who must answer to the people, rather than by unelected judges expanding the doctrine of standing to overcome what they see as a failure of the political process to ensure that the law is enforced.

14.4.8  Another Australian case in which the issue arose was King-Brooks v Roberts (1991) 5 WAR 500. The applicants were prostitutes operating in Kalgoorlie, Western Australia who alleged that the police commissioner was acting unlawfully by selectively enforcing the laws against prostitution. The action failed on the evidence, though at least one judge expressed a preparedness in a properly constituted action to grant relief against unlawful police enforcement: at 521.

NON-JUDICIAL ENFORCEMENT OF STATUTORY DUTIES 14.5.1  The ascertainment and declaration of legal rights and duties ultimately requires an exercise in judicial power: see  5.3.22. That occurs only infrequently, as the cases in this chapter illustrate. Legal duties and obligations nevertheless play a major role in the work of government. For the most part those duties are enforced by measures other than judicial review, including by internal agency controls. This is illustrated by the following extracts from reports of the Office of the Australian Information Commissioner 14.5.2E and from a publication of the Australian National Audit Office 14.5.3E. 14.5.2E

Office of the Australian Information Commissioner, Processing of Non-routine FOI Requests by the Department of Immigration and Citizenship Report No OM12/00001, 26 September 2012

In 2010–11 the Department of Immigration and Citizenship (DIAC) received 8057 document requests under the Freedom of Information Act 1982 (FOI Act) — the largest number received by any Australian Government agency. Over 96 per cent of those requests were for personal information, and DIAC complied with the time limits specified in the FOI Act in processing 88 per cent of those personal information requests. DIAC’s record of compliance with FOI time limits has not been as high in managing non-routine requests, particularly complex requests for non-personal information. This point is brought out by the findings of this own motion investigation into DIAC’s handling of 27 FOI requests from 10 individual requesters. …

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Control of Government Action

Unwarranted delay in FOI processing runs counter to the objectives of the FOI Act … A declared object of the FOI Act is ‘to facilitate and promote public access to information, promptly and at the lowest reasonable cost’ (s 3(4)). … This report concludes that DIAC must address a number of matters that appear to have caused the significant delays that affected the processing of the 27 FOI requests studied in this investigation. The matters that require further consideration are listed in Recommendation 2, and include the resources allocated to the DIAC Central Office team, the performance of that team, the governance arrangements to ensure FOI compliance across DIAC, procedures for consultation with third parties, arrangements for retrieving documents from contractors, consultation with the Minister’s office, the use of FOI extension of time options and liaison with the OAIC. … The response by the Acting Secretary of DIAC to the Information Commissioner’s report … advises that both recommendations in the report are accepted, and acknowledges the unacceptable delays in FOI processing within DIAC’s National Office team.

14.5.3E

Australian National Audit Office, ‘Meeting Entities’ Statutory Responsibilities’ Audit Focus, August 2007

The effective administration of an entity’s statutory responsibilities is an essential element of public administration today. Entities’ responsibilities range from specific requirements in enabling legislation, to requirements included in legislation that has general application to all public sector entities. Examples of the latter include the Privacy Act 1988, and the Occupational Health and Safety (Commonwealth Employment) Act 1991. Statutory compliance has been an issue commented on in a number of recent audit reports. Our work has pointed to the following factors that are important to reduce the risk of non-compliance: • governance arrangements that involve the identification of all statutory responsibilities, establishing the assignment of responsibility to specified work areas or individuals to ensure these responsibilities are met, and having in place effective oversight and review arrangements. In many agencies audit committees have been tasked with this latter responsibility • implementing cost effective arrangements for meeting an entity’s statutory responsibilities • clarifying, in a timely manner, any potential uncertainty about an agency’s statutory responsibilities • conducting a risk assessment of the ability of an agency to efficiently and effectively meet its responsibilities • establishing business processes that are designed to ensure that an agency’s statutory reporting obligations are met • promulgating Chief Executive instructions or other procedural guidance designed to assist staff in meeting their statutory responsibilities in relation to financial management • requiring the approval by relevant business areas of new systems or system enhancements in situations where systems are used in administering statutory responsibilities, and • informing senior management of situations where resource constraints may bear on the ability of the entity to meet its statutory responsibilities.

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Chapter 14  Failure to Perform a Statutory Duty

14.5.4 

14.5.4  Internal agency controls and oversight by integrity and performance bodies can provide more systematic mechanisms for ensuring compliance with government duties than applications for judicial review, which rely on disaffected applicants bringing proceedings. In addition to agency oversight bodies, governments have also sought to emphasise timely and efficient decision-making through public sector values. For example, the Australian Public Service Values, set out in s 10 of the Public Service Act 1999 (Cth), include commitment to service and refers to efficient and timely advice.

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15

CHAPTER

Unreasonableness, Irrationality and Proportionality

INTRODUCTION 15.1.1  An underlying expectation of government is that it will act reasonably and rationally. The community expects that administrative decision-making will be guided by good sense and sound judgement, that the process of reasoning will be logical, and that decisions will be based on accurate and relevant facts. This expectation is deeply rooted in the Western tradition, in theories of government, and in the human condition. The expectation has been recognised in the ‘presumption of law that Parliament intends an exercise of power to be reasonable … [s]ubject to any impinging Constitutional consideration, the presence of a clear statutory qualification or contrary intention’: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [43], citing Minister for Immigration and Citizenship v Li 15.2.18C at [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88] (Gageler J). As one author noted of this notion: ‘Rationality’ is probably the most ubiquitous concept used in studying how humans behave as individuals, members of groups, and in institutions. It plays a central role in disciplines as varied as economics, psychology, philosophy, the philosophy of science, public administration, organisational theory, sociology and business management — not to mention law. However, it is a ‘highly ambiguous expression’. [G Airo-Farulla, ‘Rationality and Judicial Review of Administrative Action’ (2000) 24 Melbourne University Law Review 543]

15.1.2  Should the expectation that government acts reasonably, rationally and logically be framed as a legal requirement? This chapter looks at how courts have approached that question in Australia. In doing so, courts have had to deal with a range of complex issues concerning their role in supervising executive action, including:

• Does a legal standard of ‘unreasonableness’ pose a threat to the legality/merits distinction? Would an alternative label such as ‘perverse’, ‘irrational’, ‘illogical’ or ‘lack of proportionality’ be better? • What does ‘unreasonableness’ add to the other grounds of legal invalidity? Should it be left as an overarching legal requirement, or should it be spelt out in more precise legal principles? • Is there a separate ground of review at common law for irrationality or illogicality? Or is it simply an expansion of the existing unreasonableness ground? 919

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Control of Government Action

• Does review for ‘unreasonableness’ or ‘irrationality’ extend to looking at  the substantive fairness of a decision or the adequacy of the factual support for it?

• Can the principles of good administration be reduced to legal standards? Or is it the province of the executive, overseen by tribunals and ombudsmen, to ensure good administration?

• Should the word ‘unreasonable’, wherever used in a statute, have the same meaning as ‘unreasonableness’ as a ground of judicial review?

THE DEVELOPMENT OF WEDNESBURY UNREASONABLENESS 15.2.1  The starting point for analysing this topic is customarily the decision of the UK Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (Wednesbury) 7.2.3C. Lord Greene MR in that case rejected the idea that a court could substitute its view for that of a government official as to what is a reasonable decision. His Lordship went on to accept, however, that unreasonableness could constitute a free-standing ground for legal challenge, but only in the sense that a decision ‘is so unreasonable that no reasonable authority could ever have come to it … [T]o prove a case of that kind would require something overwhelming’: at  230. It has been accepted since that Wednesbury unreasonableness is a ground of review at common law. Lord Greene’s formulation has been given statutory recognition in the Administrative Decisions ( Judicial Review) Act 1977 (Cth) (ADJR Act), which provides that an order of review can be sought in respect of ‘an exercise of power that is so unreasonable that no reasonable person could have so exercised the power’: s 5(2)(g). See also: ACT: Administrative Decisions ( Judicial Review) Act 1989 s 5(2)(g); Qld: Judicial Review Act 1991 s 23(g); Tas: Judicial Review Act 2000 s 20(g). At common law, the historical caution concerning application of this standard may have been reduced following Li: see 15.2.18C. 15.2.2  To mix metaphors, the ground serves multiple purposes — as a ‘safety net’, to catch legal errors that do not fit easily under one of the other criteria of invalidity; as an ‘umbrella’, under which to gather related themes and principles applying in judicial review; and as a ‘springboard’, from which to define new (or adapted) legal standards to guard against executive abuse. At the heart of Wednesbury unreasonableness is a perennial feature of the common law: that it can evolve incrementally both to adapt to changed circumstances in society and government, and to reflect developments elsewhere in the law, as well as current community values. In an ADJR Act context, there are two other grounds that serve the same purpose as Wednesbury unreasonableness and which are sometimes used interchangeably in legal submissions and reasoning: ‘that the decision was otherwise contrary to law’: s 5(1)(j); and ‘any other exercise of a power in a way that constitutes abuse of the power’: s 5(2)(j). See also ACT: Administrative Decisions ( Judicial Review) Act  1989 ss  5(1)(j), 5(2)(j); Qld: Judicial Review Act 1991 ss 20(2)(i), 23(i); Tas: Judicial Review Act 2000 ss 17(2)(i), 20(i). 15.2.3  The test in Wednesbury referred to the ground as one of ‘unreasonableness’. Nonetheless, it has been recognised that the description has a close affinity with notions of ‘irrationality’ and ‘illogicality’ and the connection between these concepts has been drawn in many cases. Partly 920

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Chapter 15  Unreasonableness, Irrationality and Proportionality

15.2.7

that has been done to overcome the circularity inherent in Lord Greene’s formulation, but partly too to spell out a philosophy to guide the development of jurisprudence in this area. The modern jurisprudence, in England at least, traces from the observation of Lord Diplock in Council of Civil Service Unions v  Minister for the Civil Service (CCSU ) 7.2.18C that the grounds for judicial review could conveniently be classified under three and possibly four heads — ‘illegality’, ‘irrationality’, ‘procedural impropriety’ and ‘proportionality’. The irrationality standard was defined thus: By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ … It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at  it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system …  ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review.

15.2.4  The underlying theme in that and similar comments collected in this chapter is that the law requires a degree of ‘rationality’, ‘logic’ or ‘reasonableness’ in the way that decisions are made. As French CJ observed in Li 15.2.18C at [14], ‘lawfulness, fairness and rationality … lie at the heart of administrative justice’. The same has been said of the way that legislation should be construed and applied, including that ‘when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised’: Kruger v Commonwealth (1997) 190 CLR 1 at 36 (Brennan CJ). 15.2.5  The frequency with which a principle of ‘reasonableness’ or ‘rationality’ has been endorsed should not, however, obscure the caution that is customarily expressed in Australian cases about applying the principle. Early Australian case law denied that ‘unreasonableness’ was an independent ground of challenge, at least of subordinate legislation: see, for example, Williams v Melbourne Corporation (1933) 49 CLR 142. That era has now passed (see Parramatta City Council v Pestell 15.3.4C), but the caution is still repeated from time to time, particularly with regard to invalidating subordinate laws: Attorney-General (SA) v Corporation of the City of Adelaide 8.4.29C. 15.2.6  The caution has been reflected in three ways. The first was a scarcity of cases in which administrative decision-making was declared invalid solely as being Wednesbury unreasonable, notwithstanding the frequency with which the ground was argued. Indeed the dearth of cases invalidated on the sole ground of unreasonableness has been described as ‘a sighting of the “rare bird” of unreasonableness in solo flight’: L  McDonald, ‘Rethinking Unreasonableness Review’ (2014) 25 Public Law Review 117. The second is the statement made in many cases that ‘unreasonableness’ is often little more than a short-hand for describing other grounds of legal invalidity, such as the relevant and irrelevant grounds, bad faith and breach of natural justice. The third is the customary warning that ‘unreasonableness’ is to be applied against the backdrop of the legality/merits distinction. 15.2.7  There is now support for a less onerous approach to deciding whether an administrative exercise of power is unreasonable, as evidenced in the following observation in Li 15.2.18C of Hayne, Kiefel and Bell JJ: 921

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15.2.7

Control of Government Action

[86] The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision — which is to say one that is so unreasonable that no reasonable person could have arrived at it — nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury.

Chief Justice French and Gageler J did not go so far in Li with French CJ reaffirming the principle in Wednesbury (at [28]) and Gageler J noting that the facts presented a ‘rare case’ and that the stringency of the Wednesbury test should be maintained: at [113]. 15.2.8  Other factors that have traditionally constrained the development of Wednesbury unreasonableness are likely to have a continuing influence. One such factor is that unreasonableness overlaps with other grounds of review that provide an alternative ground of challenge. This is illustrated by the oft-cited remark of Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407: [W]here 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 … formed by a reasonable man who correctly understands the meaning of the law under which he acts. … If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational or not bona fide.

It was similarly noted in Li 15.2.18C at  [72] (Hayne, Kiefel and Bell  JJ), that ‘[t]he more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness’, and, referring to Lord Greene MR’s observation in Wednesbury, that ‘all these things run into one another’. 15.2.9  The legality/merits distinction will also continue in Australia to be a strong constraint on the development of unreasonableness. This is captured in a classic observation of Brennan J in Attorney-General (NSW) v Quin 7.2.5C that ‘[p]roperly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power’: at 36. To similar effect is the observation of Tobias JA (Basten JA and Handley AJA agreeing), following a survey of the Australian case law on unreasonableness: ‘The cases are replete with this warning [of not exceeding the court’s supervisory role by reviewing the decision on its merits] with the consequence that the success of a challenge on the Wednesbury unreasonable ground is confined to extreme cases involving … “demonstrably absurd decisions”’: Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council (2010) 174 LGERA 67 at 93–4. Similarly, as the plurality observed in Li 15.2.18C: [66] The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker.

15.2.10  Following the decision in Li 15.2.18C, there are mixed themes in the case law. Unreasonableness has been raised far more frequently as the ground of legal challenge, with success in some cases, but not to a significant level. Research conducted by Creyke (using search terms ‘irrational’ and ‘illogical’) identified over 1000 cases Australia-wide in the four-year 922

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period following Li to June 2017 in which unreasonableness was raised as a ground of review or in an appeal, predominantly in the Federal Courts. An examination of the Federal Court cases in which the appeals were upheld (368 or 44 percent of the total) revealed that the unreasonableness ground succeeded in only 8.6 percent of cases: R Creyke, ‘Judicial Review and Merits Review: Are the Boundaries Being Eroded’ (2017) 45 Federal Law Review 627. In many cases the courts have been mindful of continuing to observe the legality/merits distinction: see, for example, Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [48]; Jones v Office of the Australian Information Commissioner [2014] FCA 285 at [22]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [54]; and the judgments of Allsop CJ and Griffiths J in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1. Judicial caution in expanding unreasonableness review is evident in cases in which it was claimed that a credibility finding by a lower court or tribunal was unreasonable (credibility traditionally being a matter for the merits reviewer): BNH16 v Minister for Immigration and Border Protection [2017] FCAFC 109 and CQG15 v  Minister for Immigration and Border Protection (2016) 70 AAR 413. There are, however, prominent examples of cases in which the unreasonableness argument succeeded: see, for example, Minister for Immigration and Border Protection v SZSNW (2014) 229 FCR 197; Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393; Huynh v Minister for Immigration and Border Protection (2015) 232 FCR 497; AZ4FB v Minister for Immigration and Border Protection (2015) 68 AAR 171; ABAR15 v  Minister for Immigration and Border Protection (No 2) (2016) 242 FCR 11; Shaw v Buljan (2016) 153 ALD 282; and Muggeridge v Minister for Immigration and Border Protection (2017) 351 ALR 153. 15.2.11  English courts, by contrast, have long shown greater readiness than Australian courts to develop ‘unreasonableness’, ‘irrationality’ and ‘proportionality’ as pivotal criteria in administrative law. That trend derives partly from the judgment of Lord Diplock in CCSU 7.2.18C, describing ‘irrationality’ as one of three umbrella grounds of review, and partly from the influence on English jurisprudence of the Human Rights Act 1998 (UK) and European law, which requires English courts to apply a test of proportionality. But the divergence in English law is to be explained also by a greater readiness in some English decisions to escape the constriction of the legality/merits distinction and to declare administrative action to be invalid. 15.2.12  The contrast in approaches taken in England and Australia was aptly summarised by Spigelman CJ (Beazley and Tobias JJA concurring) in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11; [2005] NSWCA 10: [127] A challenge to the exercise of a statutory power on the basis of irrationality or unreasonableness requires the Court to be conscious of the permissible scope of judicial review. The legality/merits dichotomy is at the heart of Australian administrative law and the boundary between the two is policed more rigorously in this country than appears to have become the case in recent years in other common law jurisdictions …

[139] It is always necessary to commence with the identification of the particular statutory power, understood in its context, and to assess the exercise of that power against the high standard of unreasonableness or of irrationality which the outcome must reach before the Court can legitimately infer that the legal limits to the exercise of the power have not been observed so that, to adopt the formulation from Williams v Melbourne Corporation [(1933) 49 CLR 142, the decision] ‘could not reasonably have been adopted as a means of attaining the ends of the power’ and, therefore, ‘is not a real exercise of the power’. 923

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15.2.13 Following Li, commentators have given significant attention to the scope and availability of unreasonableness and whether it may in the future provide greater scope for substantive review. See in particular: W Gummow, ‘Rationality and Reasonableness as Grounds for Review’ (2015) 40 Australian Bar Review 1; D Mortimer (ed), Administrative Justice and Its Availability, Federation Press, Sydney, 2015, especially ch 3, J Gleeson SC, ‘Taking Stock after Li’ and ch 4, K Walker QC, ‘Judicial Review for Unreasonableness or Irrationality: The Role of Proportionality’; C Bleby SC, ‘Reasons, Reasonableness and Rationality’ (2016) 85 AIAL Forum 54; M Barker and A Nagel, ‘Legal Unreasonableness: Life after Li’ (2015) 79 AIAL Forum 1; A  Freckelton, ‘The Changing Concept of “Unreasonableness” in Australian Administrative Law’ (2014) 78 AIAL Forum 61; J  Boughey, ‘The reasonableness of proportionality in the Australian administrative law context’ (2015) 43 Federal Law Review 59; and J  Townsend, ‘Adequacy of Risk Assessment in the Exercise of the Character Cancellation Power under the Migration Act 1958 (Cth)’ (2017) 28 Public Law Review 158. For recent analyses from an English law perspective, see: D Wang, ‘From Wednesbury Unreasonableness to Accountability for Unreasonableness’ (2017) 76 Cambridge Law Journal 642; and R  Williams, ‘Structuring substantive review’ [2017] Public Law 99–123.

Irrationality, illogicality and unreasonableness 15.2.14  The recent development by the High Court of illogicality and irrationality as grounds of review that can be understood separately from unreasonableness review, has to be seen in the context of the restricted and different schemes for review of migration decisions that applied in some of the relevant cases. At the time Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 was decided, s 476(2)(b) of the Migration Act  1958 (Cth) (Migration Act) provided that a decision of the Refugee Review Tribunal could not be challenged on the ground of unreasonableness. The applicant had accordingly claimed that the tribunal’s decision was ‘irrational, illogical and not based upon findings or inferences supported by logical grounds’. Generally, the High Court in Applicant S20 was open to the proposition that a decision can be invalid on the separate basis of irrational or illogical reasoning or fact-finding by a decision-maker, although something more serious than poor expression or reasoning will have to be shown. As Gleeson CJ observed: [T]o 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  … It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality, or unreasonableness of some degree. In a context such as the present, it is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged.

Another distinction drawn in Applicant S20 that has been applied in subsequent cases was between review of jurisdictional fact-finding and review of an exercise of discretion. McHugh and Gummow  JJ observed (at 74–6) that Wednesbury unreasonableness is concerned only with the exercise of discretion, and not with jurisdictional fact-finding (which was the type of decision under review in that case). 15.2.15  The Migration Act had been amended by the time of the later decision of the High Court in Minister for Immigration and Citizenship v SZMDS 15.2.17C. The amendment 924

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introduced a privative clause provision (s 474), which was interpreted in Plaintiff S157/2002 v Commonwealth 16.3.17C to mean that a tribunal decision could be quashed on the basis of jurisdictional error. It was therefore open to the High Court in SZMDS to decide as a matter of general principle how concepts such as unreasonableness, irrationality and illogicality could be a factor in deciding if there was jurisdictional error. This is reflected in the joint judgment of Crennan and Bell JJ, who refer to the overlap between those concepts. Their judgment, as well as the dissenting joint judgment of Gummow ACJ and Kiefel J, proceeded from the basis that the decision under review was a decision as to a jurisdictional fact (namely, whether, as required by s 65 of the Migration Act, the tribunal was ‘satisfied’ that the applicant met the criteria for the grant of a protection visa). The judgments, particularly that of Gummow ACJ and Kiefel J, note that concepts of irrationality and illogicality appropriately apply in examining whether there was error in a jurisdictional fact decision; by contrast, the legality/merits distinction more directly arises in reviewing an exercise of discretion. 15.2.16  The decision in Li 15.2.18C arose under the same Migration Act review provisions as in SZMDS 15.2.17C, that is, under the privative clause. The court in Li did not place the same express emphasis on whether different standards apply in reviewing a jurisdictional factfinding as against reviewing whether there was legal error in an exercise of discretion (cf Sydney Ferries v Morton [2010] NSWCA 156 at [25] (Allsop P)). Nor did the court in Li emphasise a distinction (if any) between unreasonableness, illogicality and irrationality. It may be, following Li, that courts will regard those concepts as overlapping or integrated, and as applying at all stages in judicial review. This is the approach taken in Fiorentino v Companies Auditors and Liquidators Disciplinary Board 15.2.19, which summarises the main points to be drawn from Li. A unified approach to judicial review is reflected also in a comment of Beazley J (Bathurst CJ concurring) in D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242 at [90]–[91], following a discussion of the authorities including Li: ‘the condition of reasonableness applied both to the exercise of a discretion and to the reaching of a state of satisfaction required as a pre-requisite to the exercise of a statutory function’. This unified approach to review for unreasonableness, irrationality and illogicality is adopted in many of the ADJR Act cases in other chapters in this book and is adopted in the remainder of this chapter. See also M Barker and A Nagel, ‘Legal Unreasonableness: Life after Li’ (2015) 79 AIAL Forum 1; A Freckleton, ‘The Changing Concept of “Unreasonableness” in Australian Administrative Law’ (2014) 78 AIAL Forum 61; and W Gummow, ‘Rationality and Reasonableness as Grounds for Review’ (2015) 40 Australian Bar Review 1. 15.2.17C

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; [2010] HCA 16 High Court of Australia

[The High Court held by majority that the Refugee Review Tribunal had not made a jurisdictional error in refusing a protection visa to SZMDS (Heydon, Crennan and Bell JJ; Gummow ACJ and Kiefel J dissenting). The various judgments all noted that the decision to be made by the tribunal under s 65 of the Migration Act, as to whether it was satisfied that SZMDS met the criteria in the Act for the grant of a protection visa, was a decision as to a jurisdictional fact. The following extracts discuss the approach to be taken by the court in deciding if there is jurisdictional error in a decision of that kind.]

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Gummow ACJ and Kiefel J: [23] In Australia … the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd of the terms ‘arbitrary, capricious, irrational’ as well as ‘not bona fide’ to stigmatise the formation of an opinion upon which a statutory power was enlivened. [Their Honours noted that different considerations may arise when a court is reviewing the exercise of a discretionary power, and in particular the courts’ apprehension to avoid merits review of the decision.] … [38] The apprehensions respecting ‘merits review’ assume that there was jurisdiction to embark upon determination of the merits. But the same degree of caution as to the scope of judicial review does not apply when the issue is whether the jurisdictional threshold has been crossed. … [A relevant] distinction concerns attacks upon the exercises of discretionary power which are said to be unreasonable in the sense attributed to Associated Provincial Pictures Houses Ltd v Wednesbury Corporation. The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts. Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view. … [40] It was against this background that, when considering s 65 of the Act in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, Gummow and Hayne JJ said: The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a ‘jurisdictional fact’ or criterion upon which the exercise of that authority is conditioned. … The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. Crennan and Bell JJ: [124] [I]t has been suggested that statutory tribunals must not only act reasonably as intended by the legislature, they must also act rationally. If rationality is a separate freestanding common law standard for good administrative decision-making it seems at least related to the implied standard of reasonableness following the articulation by Lord Greene MR of what has come to be known as ‘Wednesbury unreasonableness’. It appears closely allied also to the requirement in Avon Downs that extraneous reasons should not be taken into consideration but relevant considerations must be. It appears to be allied as well to the principle that fact finding must be based on probative material, one correlative of which is that a decision based on no evidence displays jurisdictional error. Accepting rationality, as a freestanding common law requirement in decision-making, with the consequence that irrationality may attract judicial review, is complicated by three considerations. First, describing reasoning as ‘illogical or unreasonable, or irrational’ may merely be an emphatic way of expressing disagreement with it, and to describe a conclusion that a decision maker is not satisfied as ‘irrational’ might mean no more than that, on the material before the decision maker, the court would have reached the required state of satisfaction.

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[125] Secondly, the word ‘irrationality’ is conventionally defined as ‘the quality of being devoid of reason’, ‘illogicality’ is conventionally defined as ‘unreasonableness’ and ‘unreasonableness’ is conventionally defined as ‘irrationality’. … [126] [T]he authors of de Smith’s Judicial Review have remarked: ‘Although the terms irrationality and unreasonableness are these days often used interchangeably, irrationality is only one facet of unreasonableness’. [127] Thirdly, in England ‘irrationality’ as a basis for judicial review appeared to emerge first as a redefinition of Wednesbury unreasonableness. … [128] If, despite the undeniable semantic overlap between ‘irrationality’, ‘illogicality’ and ‘unreasonableness’, ‘Wednesbury unreasonableness’ is confined to the exercise of a discretion in circumstances where no reasons are required, then the approach articulated in SGLB … can be seen as occupying somewhat different ground. On the other hand, to the extent that a standard of reasonableness, of wide application to decision-making, has emerged from Wednesbury, there will be inevitable overlap with that standard and a standard of rationality. [129] It can be acknowledged that the contemporary invocation of ‘illogicality’ or ‘irrationality’ as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in [Applicant] S20, as a reaction to the ouster of the review ground of ‘Wednesbury unreasonableness’ in immigration law. Equally it may be that the development of ‘irrationality’ as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of ‘illogicality’ or ‘irrationality’ must mean something other than emphatic disagreement as explained above by reference to Eshetu and [Applicant] S20 and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do ‘illogicality’ and ‘irrationality’ fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is ‘clearly unjust’, ‘arbitrary’, ‘capricious’ or ‘Wednesbury unreasonable’? [130] In the context of the Tribunal’s decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for 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 to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence,

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a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. [Their Honours held that the tribunal had not made a jurisdictional error; a logical or rational decision-maker could have come to the same conclusion as the tribunal.] [136] There is no sense in which the decision that the first respondent did not fear persecution, or the findings upon which that decision was based, could be said to be ‘clearly unjust’, ‘arbitrary’, ‘capricious’, ‘not bona fide’ or ‘Wednesbury unreasonable’. Whilst 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. …

15.2.18C

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332;139 ALD 181; 297 ALR 225; [2013] HCA 18 High Court of Australia

[Ms Li was an overseas student who was training to be a cook. She had applied in 2007 for a Skilled-Independent Overseas Student visa. Her application was refused on the basis that she had not obtained an assessment that her skills met the criteria required for the visa. She sought review by the Migration Review Tribunal (MRT). A second skills assessment in November 2009 was also unsuccessful. In January 2010 Ms Li’s migration agent advised the MRT that the November assessment was based on two fundamental errors and a review had been sought of that decision. The agent requested that no decision be made by the MRT until the outcome of the review was known. Without waiting for that advice, the MRT affirmed the initial decision on the grounds that Ms Li had ‘been provided with enough opportunities to present her case’, had not provided evidence that she sought a reassessment, and had had a ‘reasonable period of time to obtain evidence of competent English’. The Federal Magistrates Court set aside the MRT’s decision on the basis that its refusal to adjourn proceedings under s 363 of the Migration Act was unreasonable, unfair and involved jurisdictional error. The court’s decision was affirmed on appeal by a majority of the Full Federal Court, and on further appeal by the High Court.] French CJ: Reasonableness Every statutory discretion, however broad, is constrained by law. … Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred. Where the discretion is conferred on a judicial or administrative officer without definition of the grounds upon which it is to be exercised then: ‘the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case’. … That view, however, must be reached by a process of reasoning. … As Professor Galligan wrote in 1986 in Discretionary Powers: A Legal Study of Official Discretion, the requirement that officials exercising discretion comply with the canons of rationality means, inter alia, that their decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power. Those canons … were reflected in the powers of the English Court of Chancery to control public bodies ‘if they proceed to exercise their powers in an unreasonable manner; whether induced to do so from improper motives or from error of judgment’. They were acknowledged in the earliest years of this Court.

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The rationality required by ‘the rules of reason’ is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character. They may be express statutory conditions or, in the case of the requirements of procedural fairness, implied conditions. Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations. A failure to accord, to a person to be affected by a decision, a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account. … That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred. Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider ‘they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it’. In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense. … The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, ‘may have no particular legal consequence’. … A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions. The decision of the MRT to proceed to its determination was not, on the face of it, informed by any consideration other than the asserted sufficiency of the opportunities provided to the first respondent to put her case. The MRT did not in terms or by implication accept or reject the substance of the reasons for a deferment put to it by the first respondent’s migration

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agent. It did not suggest that the first respondent’s request for a deferment was due to any fault on her part or on the part of her migration agent. It did not suggest that its decision was based on any balancing of the legislative objectives set out in s 353. Its decision was fatal to the first respondent’s application. There was in the circumstances, including the already long history of the matter, an arbitrariness about the decision, which rendered it unreasonable in the limiting sense explained above. Hayne, Kiefel and Bell JJ: An unreasonable exercise of discretion? Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably. [Their Honours then noted the cases in which the standard of reasonableness in decision-making had been imposed prior to Wednesbury.] … This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested. … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused. Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury has been criticised for ‘circularity and vagueness’, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision — which is to say one that is so unreasonable that no reasonable person could have arrived at it — nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. … The test proposed by Lord Russell of Killowen CJ in Kruse v Johnson, a case which is cited chiefly in relation to the unreasonableness of the exercise of delegated lawmaking power, may avoid some of the circularity identified in the Wednesbury formulation. Lord Russell considered that unreasonableness was found where delegated laws were: ‘partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; [or] if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men’. … [I]n Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable”. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having

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committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decisionmaker has been unreasonable in a legal sense. In Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation, reference was made to an analysis of three paradigm cases of unreasonableness. … The third paradigm involved the application of a proportionality analysis by reference to the scope of the power. In the present case, regard might be had to the scope and purpose of the power to adjourn in s 363(1)(b), as connected to the purpose of s 360(1). With that in mind, consideration could be given to whether the Tribunal gave excessive weight — more than was reasonably necessary — to the fact that Ms Li had had an opportunity to present her case. So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached. However, the submissions in this case do not draw upon such an analysis. … What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent. As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion ‘if upon the facts [the result] is unreasonable or plainly unjust’. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. Gageler J: Reasonableness as a statutory implication Brennan CJ [in Kruger v Commonwealth (1997) 190 CLR 1 at 36] cited … Wednesbury … for the proposition that ‘when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised’. He explained the application of ‘Wednesbury unreasonableness’ as a court acting on the ‘implied intention of the legislature that a [statutory] power be exercised reasonably’ to hold invalid ‘a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action’. That explanation accords with references in earlier High Court decisions to reasonableness as a condition of the exercise of a discretionary power. It has been approved in more recent decisions. It is an explanation that is well-understood by legislatures and courts alike and that has ‘stood the test of time’. It explains the nature and scope of Wednesbury unreasonableness in Australia. Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.

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The implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made: Just as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course. Like procedural fairness, to which it is closely linked, reasonableness is not implied as a condition of validity if inconsistent with the terms in which a power or duty is conferred or imposed or if otherwise inconsistent with the nature or statutory context of that power or duty. The common law principle of construction by reference to which reasonableness is implied does not exclude implication of a different or more particular condition of an exercise of a particular statutory discretionary power or of the performance of a particular statutory duty. The principle rather establishes a condition of reasonableness as a default position. Absent an affirmative basis for its exclusion or modification, a condition of reasonableness is presumed. … Judging unreasonableness … Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’. The label ‘Wednesbury unreasonableness’ indicates ‘the special standard of unreasonableness which has become the criterion for judicial review of administrative discretion’. Expression of the Wednesbury unreasonableness standard in terms of an action or decision that no reasonable repository of power could have taken ‘attempts, albeit imperfectly, to convey the point that judges should not lightly interfere with official decisions on this ground’. Potential for legitimate disagreement in the judicial application of the standard of Wednesbury unreasonableness is inevitable, as it would be in the judicial application of any other standard. … Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy. … … [F]or the purpose of applying the test, ‘guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion’. There is, in particular, a close analogy with the settled principle that an appellate court will review the exercise of a judicial discretion ‘if upon the facts it is unreasonable or plainly unjust’, or if ‘failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court’. It is therefore fair to say that ‘[i]f a discretionary power is exercised in a way in which a reasonable repository of the power might exercise it, the exercise of the power is supported by the statute which confers it, whether the discretion is judicial or administrative in nature’. … There is no … practical difficulty in a court applying the test of Wednesbury unreasonableness to a refusal by the MRT to adjourn a review. … [T]he stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. This is a rare case.

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15.2.19  The Full Court of the Federal Court has warned against treating Li 15.2.18C as having created some kind of factual checklist to be applied in deciding whether unreasonableness has been established: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [42]. Nonetheless, a useful summary of the principles in Li and Singh, excluding the observations relating to the specific adjournment provisions in the Migration Act, were provided by Wigney J in Fiorentino v Companies Auditors and Liquidators Disciplinary Board [2014] FCA 641 at [76]: (a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43]. (b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]–[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44]. (c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or ‘plainly unjust’: Li at [28], [110]; Singh at [44]. (d) In those circumstances, where reasons are given, the supervising court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at  [105]; Singh at  [44]–[45]. The intelligible justification must generally lie within the reasons given by the decision-maker: Singh at [47]. (e) Regard can also be given to the outcome of the decision: whether the ‘decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law’: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–221); Singh at [44]–[45]. (f ) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. … (j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at  [30], [66]; Singh at  [47]. The test of legal unreasonableness is stringent: Li at [113].

See also the summaries in Muggeridge v Minister for Immigration and Border Protection (2017) 351 ALR 153 at [35] and Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [52] and [54]–[56]. 15.2.20 After Li 15.2.18C, the High  Court revisited the question of unreasonableness in the context of a failure to adjourn a tribunal hearing in Minister for Immigration and Border Protection v  SZVFW 15.2.21C. The observations in SZVFW re-emphasise that the test for unreasonableness is a stringent one and will depend heavily on the statutory context in which the decision is made.

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Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 High Court of Australia

[SZVFW and his wife were refused protection visas by the Minister for Immigration and Border Protection. They applied to the Refugee Review Tribunal (RRT) for a review of the delegate’s decision. SZVFW and his wife did not appear before the tribunal’s review hearing (they had also failed to attend an earlier interview with departmental officials, despite many attempts to schedule an interview). Section 441A(4) of the Migration Act deemed the letter of invitation to attend a hearing, addressed to the nominated address, to have been met. An invitation to attend had been sent to the couple, followed by a telephone call. Section 426A of the Migration Act provided that, if an applicant for review of a decision by the RRT did not provide further information nor appear before the RRT on the scheduled day of their hearing, the RRT may make a decision on the review. The RRT proceeded under s 426A to review the application and affirmed the minister’s delegate’s decision. The couple sought judicial review of the decision. The primary judge determined that the decision of the RRT to proceed in the absence of SZVFW and his wife was legally unreasonable, because the RRT should have taken steps to communicate with the couple before deciding the matter. The minister appealed to the Full Federal Court. The Full Court dismissed the appeal, holding that the question before it was whether error had been established in the decision of the lower court rather than the RRT. It held that the minister had not established error in the primary judge’s reasoning. The High Court upheld the appeal, finding that the Full Court was required to examine for itself whether the RRT’s decision was unreasonable. The High Court further held that the RRT’s decision was not unreasonable. The following extracts address the High Court’s comments on the relevant standard of legal unreasonableness for review of an administrative decision (the RRT decision) rather than an appeal court’s task on review (the Full Court’s decision).] Kiefel CJ: [9] It is difficult to see how it might be concluded that the decision that the Tribunal then made — not to make further contact with the respondents and adjourn its hearing for that purpose — was unreasonable. To the contrary, it was perfectly explicable given the history of the respondents’ non-responsiveness. It is to be inferred that a conclusion that it was unreasonable must involve some misapprehension of what is comprehended by the legal standard of unreasonableness. [10] In the joint judgment in Minister for Immigration and Citizenship v Li [15.2.18C] it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case. [11] Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.

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[12] In Minister for Immigration and Citizenship v Li reference was made to what had been said in Klein v Domus Pty Ltd regarding the need to look to the purpose of the statute conferring the discretionary power. Where it appears that the dominating, actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully. But this is not to deny that within the sphere of the statutory purpose there is scope for a decision-maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts. [13] The Migration Act requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. In reviewing a decision the Tribunal is required to act according to substantial justice and the merits of the case. Clearly enough s 426A is directed to the aims of efficiency contained within these objectives, although it is not to be exercised in a way which would be contrary to the others. Consistently with what has earlier been discussed, it is to be understood that the Tribunal has a degree of latitude in determining what is fair and just in a given case. … [15] The crux of the primary judge’s reasoning concerning the exercise of the power given by s 426A appears to be that the Tribunal should have exercised it in the respondents’ favour because, in a practical sense, it could have done so. This analysis fails to identify an unreasonable decision in the sense explained above. The requirement to be implied in a provision such as s 426A, that a decision-maker act reasonably, does not require the decision to be one which is advantageous to the person who is the subject of it. [16] The primary judge’s reasoning implies an obligation on the part of the Tribunal which would apply in most, if not all, cases where there had been no response to the invitation to attend. No such obligation is to be found as expressed or to be implied in the statute. The fact that the Tribunal could contact the respondents is but a factor which it could take into account in deciding whether to proceed to make its decision on the evidence before it. Gageler J: [52] Expression of the standard of legal reasonableness in terms of the minimum to be expected of any ‘reasonable repository of the power’ in the circumstances of the impugned decision or action has the benefit of emphasising both the ‘extremely confined’ scope and context-specific operation of the limitation it imposes. That is not to say that the standard might not be appropriately expressed in another form of words. [53] Whatever room might remain for argument about the most appropriate expression of the standard of legal reasonableness, however, the nature of legal unreasonableness should be taken to be settled by the explanation of it in Quin. The requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power. The implication arises through operation of a common law presumption of statutory interpretation that a statutory power is conferred on condition that the power can be exercised only within those bounds. The presumption prevails to condition the exercise of the power on the repository complying with the standard of legal reasonableness absent statutory indication that the repository must meet some higher standard (an example of which is where the repository is restricted to exercising the power only on reasonable grounds) or will sufficiently comply with the statute by meeting some lower standard (an example of which is where the statute requires no more than that the repository exercise the power in good faith and for a purpose permitted by the statute). Where the presumption prevails so as to condition the exercise of the power on the repository complying with the standard of legal reasonableness, a decision made or action taken in purported exercise of a statutory power in

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breach of the standard of legal reasonableness is a decision or action which lies beyond the scope of the authority conferred by the power. ... [67] The primary judge pointed out that the decision on the review was of immense significance to the respondents, that the time between the invitation and the scheduled hearing was relatively short, that the Tribunal had nothing before it to indicate that its letter of invitation had in fact come to the attention of the respondents, and that the Tribunal did not follow up the respondents in the absence of a response to its letter of invitation despite them having given an email address and telephone number in the application for review of the delegate’s decision. Neither individually nor in combination, however, do those factors take the Tribunal’s choice to make a decision without further notice to the respondents beyond the bounds of reasonableness. … [69] Where the Tribunal is satisfied that the statutory procedure contemplated by s 425 for inviting the applicant for review to appear before it has been followed and where the applicant without explanation fails to appear, the Tribunal being mindful of the exhortations to be fair and just but also to be economical and quick would ordinarily act reasonably in deciding in the exercise of the discretion under s 426A(1) to proceed to make a decision on the merits of the application for review without making any further attempt to make contact with the applicant. Ordinarily, it could not later be said on judicial review that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken that course. [70] Nothing before the Tribunal took the respondents’ application for review into the realm of the extraordinary. … [Gageler J concluded on the facts:] [A] further attempt by the Tribunal to make contact with them would be unlikely to elicit a response. [71] The Tribunal did not act unreasonably in choosing to make the decision without taking any further action to allow or enable the respondents to appear before it. The primary judge’s conclusion that the Tribunal did act unreasonably in so doing was wrong. The Full Court should have so decided. Nettle and Gordon JJ: [97] The discretion in s 426A recognises that the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course the review has taken, the Tribunal’s approach throughout the review, the applicant’s situation and conduct throughout the review and the other surrounding circumstances. That is, there is an area within which the decision-maker has a genuinely free discretion which resides within the bounds of legal reasonableness. [Nettle and Gordon JJ referred to the fact that the invitation letter was deemed to be received, the place of the presumption in the statutory scheme, the fact that there was no attempt to rebut that statutory presumption, and the consistent failures of SZVFW and his wife to respond to requests to appear or provide further evidence. Their Honours concluded:] [123] The exercise of the statutory decision-making power by the Tribunal was not beyond power. Having regard to the statutory source of the power exercised in making the decision, the subject matter of the particular review, the course the review had taken, the Tribunal’s approach throughout the review, the situation and conduct of SZVFW and his wife throughout the review and the other surrounding circumstances, the exercise of the power was not unreasonable. Edelman J: [131] The reasonableness constraint that usually applies to the exercise by an administrator of statutory power is generally based upon a statutory implication. Where the statutory implication imposes a duty of reasonableness as a condition of decision making,

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violation of that duty means that the decision will have been made beyond power and therefore unlawfully. … … [134] … As for the content of the duty of reasonableness, following the classic exposition by Lord Greene MR, the content of the implication of reasonableness as an independent ground of judicial review has often been expressed in this Court in terms similar to those which ask whether a decision is ‘so unreasonable that no reasonable repository of the power could have taken the impugned decision or action’. … [I]t is not helpful to attempt to divide unreasonableness into predetermined species. Rather, the precise content of an implication of reasonableness, where it is implied, will be based upon the context, including the scope, purpose, and real object of the statute. [135] … The strong terms of the common description of unreasonableness may be based upon an assumption that Parliament did not manifest an intention that such a conclusion be lightly reached. To reiterate, this is not to suggest that there are two, or more, tests of unreasonableness. There is only one, but its content is assessed in light of the terms, scope, purpose, and object of the statute … [Edelman J referred to the facts relied on by the primary judge and the statutory context and concluded:] [141] The decision by the Tribunal, for the reasons it gave, was not legally unreasonable. …

15.2.22  A discernible theme in many of the recent statements about illogicality and unreasonableness is that they should not be seen as distinct concepts divorced from unreasonableness. As Allsop CJ noted in Stretton at [2], ‘it is unhelpful to approach the task by seeking to draw categorised differences between words and phrases such as arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other’.

ILLUSTRATIVE CASES AND CATEGORIES 15.3.1 In Applicant S20 15.2.14 Gleeson CJ observed that ‘unreasonableness is a protean concept, and may require closer definition’: at 64. One earlier attempt at a closer definition of unreasonableness was by Gummow J in Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation (1990) 19 ALD 731, where he referred to ‘three paradigm cases of unreasonableness’ outlined in a book by Dr M Allars: The first [paradigm] involves the capricious selection of one of a number of powers open to an administrator in a given situation to achieve a desired objective, the choice being capricious or inappropriate in that the exercise of the power chosen involves an invasion of the common law rights of the citizen, whereas the other powers would not. The second ‘paradigm’ involves discrimination without justification, a benefit or detriment being distributed unequally amongst the class of persons who are the objects of the power. [T]he  third ‘paradigm’ [involves] the exercise of power by withdrawing [an approval or benefit in a manner that] was out of proportion in relation to the scope of the power.

15.3.2  Building on these notions, the plurality in Li 15.2.18C at [70] referred to the longstanding examples of unreasonableness referred to in Kruse v Johnson [1898] 2 QB 91 at 99–100, 937

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as decisions which were partial and unequal in their operation, were manifestly unjust, disclosed bad faith, or involved oppressive or gratuitous interference with rights. In Li the plurality observed that to be unreasonable a decision need not be ‘bizarre’ but must attract epithets such as ‘arbitrary, capricious, without common sense or “plainly unjust”’: at  [28], [110]; and French CJ observed at [26] that ‘vitiating unreasonableness may be characterised in more than one way susceptible of judicial review’. As was noted in Stretton at [60], there are ‘subtleties’ and conceptual overlap between unreasonableness and other concepts, such as proportionality, which are obscured by a formulaic, ‘tick-a-box’ approach to the heads of review. As Dunn LJ noted in R v Secretary of State for the Home Department; Ex parte Khan [1985] 1 All  ER 40, ‘[t]he categories of unreasonableness are not closed’: at 52. Some of these paradigms are taken up under different headings in the discussion that follows.

Lack of plausible justification 15.3.3  A theme common to many explanations of unreasonableness is that it applies where a decision, on its face, is devoid of plausible justification. For example, in Bromley London Borough Council v Greater London Council [1983] AC 768 at 821 Lord Diplock referred to ‘decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them’. That could suggest that the decision is irretrievably wrong, or merely that the logic of the decision defies the known facts or explanation for the decision. In Pestell 15.3.4C the High Court declared a decision invalid on this basis. 15.3.4C

Parramatta City Council v Pestell (1972) 128 CLR 305 High Court of Australia

[Section 121 of the Local Government Act 1919 (NSW) provided that a council could levy a rate upon land to defray the cost of work or service that ‘in the opinion of the council would be of special benefit’ to the land. The council resolved that a rate should be imposed on some (but not all) land in an industrial area, where roads, kerbs, footpaths and drainage were to be constructed. The rate was not imposed on 90 lots that contained old dilapidated houses. The rate was imposed on land being used for industrial purposes and on one house (occupied by Mr Pestell) which contained a home workshop at the rear. The High Court held by majority that the council rate was invalid.] Gibbs J: [T]he legislature has left it to the council to form its opinion as to whether a particular work is of special benefit to a portion of the area. A court has no power to override the council’s opinion on such a matter simply because it considers it to be wrong. However, a court may interfere to ensure that the council acts within the powers confided to it by law. If, in purporting to form its opinion, a council has taken into account matters which the Act, upon its proper construction, indicates are irrelevant to its consideration, or has failed to take into account matters which it ought to have considered, the opinion will not be regarded as validly formed. Even if the council has not erred in this way an opinion will nevertheless not be valid if it is so unreasonable that no reasonable council could have formed it. … [A] council might reasonably form the opinion that one locality derives special benefit from a work, notwithstanding that another locality derives some lesser benefit from the work. However, if in the opinion of the council two parcels of land would benefit equally from

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a work, the council could not define a portion under s 121(1) so as to include one parcel and exclude the other. It could not say that, although block A and block B would equally share the benefit, only block A should bear the rate. The portion to be defined is that to which the work will in the opinion of the council be of special benefit. Such portion will not be defined if the definition excludes land which the council in fact considers, or which no reasonable council could fail to consider, would derive from the work a benefit equal to that derived by the lands within the portion. A ratepayer who asserts that the opinion which a council has purported to form for the purposes of s 121(1) is one not reasonably capable of being held has a heavy burden, since due weight must be given to the fact that the council is a responsible elected body with a particular knowledge of local conditions. In the present case, however, the burden has been discharged … I regard it as impossible that in the circumstances of this case a council could reasonably have considered both that the land included in the defined portion derived a special benefit and that the blocks excluded from the defined portion did not derive the same benefit. The action taken by the Council was understandable enough. Owners of land in a developing area often suffer by being compelled to pay rates which may be appropriate to the potential use of the land but are heavily burdensome when regard is had to its actual use. It was not unnatural that the Council should have wished to make the rate fall on persons who were using the land for industrial purposes and not on those using it for residential purposes, since the work whose expense was to be defrayed by the rate was for the development of an industrial area. However, s 121(1) does not permit this course. The section is concerned with the question whether a portion of the area will receive a special benefit from the work, and not with the question whether the owners of some lands in that portion will, having regard to their personal circumstances, in fact be able immediately to avail themselves of that benefit. Although an individual landowner may personally derive no present benefit from the work, his land does benefit when its value is increased by the additional amenity … Menzies J: [His Honour reached the same conclusion as Gibbs J, and observed:] The definition of the land that may be subjected to a local rate is determined by the council’s justifiable opinion of special benefit so that, if the so-called opinion could not be justified on any reasonable ground, then, the requisite opinion is lacking. There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible — it is right. The validity of a local rule does not depend upon the soundness of a council’s opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court. [Barwick CJ, and Stephen J delivered concurring judgments, focusing on the requirements of the statutory scheme; McTiernan J dissented. Barwick CJ held (at 314) that there was ‘no rational basis … no circumstances which, in my opinion, could reasonably warrant’ the council’s view that some blocks derived a special benefit and others did not.]

15.3.5  Other examples of unreasonableness arising from a lack of plausible justification include: Aboriginal Land Council (NSW) v  Aboriginal and Torres Strait Islander Commission (1995) 38 ALD 573 (in which the court held invalid a decision by ATSIC to allocate over 80 per cent of its Land Fund for two years to land acquisition in the Northern Territory, thus depriving other land acquisition and land management projects around Australia of grant 939

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funding); Cotterill v Minister for Immigration and Border Protection (2016) 150 ALD 252 (in which the Full Federal Court held that the minister’s decision to cancel Mr Cotterill’s visa on character grounds relating to historical sexual offences was unreasonable: the minister made Mr Cotterill’s low risk of reoffending a determinative consideration and treated his offending as serious without providing any intelligible justification and without a factual basis for finding that the child victims had suffered ‘serious harm’); and Australian Securities and Investments Commission v McCormack [2017] FCA 672 (in which the court held that it was ‘manifestly unreasonable and irrational’ for the Administrative Appeals Tribunal to overturn a banning order that ASIC had issued against a financial planner who had engaged in deliberate deception that included forging signatures and documents). 15.3.6  Li 15.2.18C emphasised that in the exercise of a discretion ‘there is generally an area of decisional freedom’ within which ‘reasonable minds may reach different conclusions’: at [28] (French CJ), [66] (Hayne, Kiefel and Bell JJ), [105] (Gageler J). Such a case was Director of Animal and Plant Quarantine v Australian Pork Ltd 15.3.7C. The facts illustrate the difficulty of establishing that a decision lacks rational support, especially where some degree of estimation or assumption, or reliance on expert evidence, is involved.

15.3.7C

Director of Animal and Plant Quarantine v Australian Pork Ltd (2005) 146 FCR 368; 88 ALD 325 Federal Court of Australia (Full Court)

[The Quarantine Act 1908 (Cth) prohibited the importation of meat products into Australia, unless authorised by a permit granted by the Director of Animal and Plant Quarantine. In deciding whether to grant a permit the director was to ensure that the risk of disease was kept ‘acceptably low’. Australian Pork Ltd (APL) challenged a decision of the director to allow the importation of pig meat from the United States, arguing that it could introduce a pig meat disease not present in Australia which would substantially damage the pig industry. APL argued that an expert panel that had advised the director (the Panel) lacked scientific research evidence to support a finding it had reached about the risk of disease, and that the report of the Panel and the decision of the director were Wednesbury unreasonable. The decision of the trial judge upholding the challenge was reversed by the Full Court.] Heerey and Lander JJ: [The Panel] adopted a complex and transparent decisionmaking process, the basic structure of which was not challenged (although there was an attack on some features such as the width of probability bands and the particular percentiles adopted). The Panel’s good faith and expertise are not in issue. If in some steps, or substeps, of the process in relation to [pig meat disease] the Panel used estimate, or analogy, or indeed speculation, the Panel might be guilty of unscientific procedures. However APL had to show that the ultimate decision was not just unreasonable, but so unreasonable that no other similarly qualified decision-maker would have made it. That test necessarily allows for some degree of unreasonableness. Even if error in reasoning is disclosed, a conclusion of Wednesbury unreasonableness requires a major step further. [Their Honours referred to and cited from Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.] It seems therefore that it is inherently more difficult to impugn a decision on the ground of Wednesbury unreasonableness when the decision involves fact finding rather than the exercise of a discretion …

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In the present case, the Panel was not only concerned with fact rather than discretion, it had to make an assessment of future risk and measure that risk against the imponderable standard of acceptable lowness. An element of speculation, in the sense of assessing the likelihood of future occurrences, was necessarily involved … The Panel took an unarguably reasonable, if unquantified, factual conclusion and applied it to a qualitative, verbal standard. One can legitimately argue that this was not an ideal process as a matter of scientific method. Perhaps, as was suggested in argument, some experiments might have been conducted. But the approach of the Panel cannot be characterised as one so unreasonable that no reasonable decision-maker could take it. [Branson J dissented, holding that the Director had failed to follow statutory procedures required by the statute.]

15.3.8  The area of decisional freedom may be greater when the decision-maker is an expert in the matter for decision. Such a case was Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 (see  10.4.4) in which the court rejected an argument that a decision of the Reserve Bank imposing standards on the EFTPOS electronic funds transfer system was unreasonable. In doing so the court noted that the decision-making body of six people included the Governor and Deputy Governor of the Reserve Bank and the Chairman of the Australian Prudential Regulation Authority: Weinberg J: To suggest that a body comprising persons with such qualifications and experience has acted ‘irrationally’, and arrived at an ‘absurd’ decision is, to put it colloquially, ‘a big ask’. That ‘ask’ is all the ‘bigger’ when the material makes it plain that the decision was only arrived at after a lengthy process of consideration, extensive consultation and the receipt of expert advice.

Capricious use of power 15.3.9  Judicial review is primarily concerned with the manner in which decisions are made, not with their substance or effect. Those qualities go more to the merits of a decision. A possible exception to that principle is that Wednesbury unreasonableness can provide a basis for invalidating a decision that constitutes an abuse of power or is capricious. Examples include Edelsten v Wilcox 15.3.10C; Wheeler v Leicester City Council [1985] AC 1054 15.3.11; and Ziade v Randwick City Council (2001) 51 NSWLR 342 15.3.11. The principle under discussion has a parallel in the principle of proportionality discussed at 15.3.26ff. 15.3.10C

Edelsten v Wilcox (1988) 15 ALD 546; 83 ALR 99 Federal Court of Australia

[Section 218 of the Income Tax Assessment Act 1936 (Cth) provided that the Commissioner of Taxation could require ‘any person by whom any money is due or accruing or may become due to a taxpayer’ to pay all or part of that money to the commissioner in satisfaction of an outstanding taxation debt. The commissioner issued a notice requiring the Health Insurance Commission to pay to the Tax Office 100 per cent of any Medibank payments owing to

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Dr Edelsten. Those payments constituted almost the whole of Dr Edelsten’s income to be used for living expenses and the expenses of his medical practice. At the time of the notice Dr Edelsten had lodged an appeal against the assessments that had not yet been heard. The court held that the s 218 notice was invalid on the ground of unreasonableness.] Burchett J: [Section 218] is a strong power designed to protect the revenue, but it was not intended to subvert the principle which has been established at least since Magna Carta, that a citizen’s property should not be subject to arbitrary seizure. It cannot have been contemplated that the power should be used to negate the rights to contest assessments contained in the Act by the complete wiping out of the business of a taxpayer who is genuinely pursuing proper avenues of appeal. As was stated in the joint judgment of Mason and Wilson JJ in FJ Bloemen Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 360 at 375: It is true that Pt VI contains large powers to enable the recovery of tax; powers the exercise of which may make life uncomfortable both for the taxpayer and perhaps others who owe money to the taxpayer. So much may be conceded, but the Act does not proceed upon the hypothesis that the Commissioner will be motivated in the exercise of his powers by improper or collateral purposes. … An extraordinary power has been conferred on the Commissioner, and it must carry with it a special obligation. He is not given this power so that he may bring to the collection of the Commonwealth’s revenues the rapacity of a Verres [who represented the corruption of the final years of the Roman Empire] who takes what he can, but because wide discretions, fairly exercised, have been found necessary. There must be advertence to the quality of fairness, which is applicable to the analogous procedure for the attachment of debts by garnishee order … Section 218 was not intended to become an instrument of oppression, to be utilised for a collateral purpose of extorting money from other sources, such as friends or relatives, by making it impossible for the taxpayer to continue to earn his living by the ordinary conduct of his business or profession. Nor was such a facility for the collection of tax intended as a means for the infliction of punishment upon a taxpayer who in the past had adopted, or was presently persisting in, legal and permissible means for the limitation of his liability to tax. If the means employed exceed what is truly permissible, well known provisions of the Act may be attracted, but that does not entail the consequence that s 218 may be employed, not to collect tax from the source which attracts its operation, but to penalise the taxpayer’s conduct, or to abolish his business … [T]he exercise of the power to … substitute notices relating to 100% of the amount of the payments, was so unreasonable that no reasonable person could have so exercised the power. I do not reach that view lightly, bearing in mind the limitations upon the ground it invokes.

15.3.11  The finding of invalidity in Edelsten v Wilcox 15.3.10C was based on a few features, including the harsh impact of the decision on the enjoyment of other rights by the plaintiff, the special responsibility of a government agency to take account of the effect of its actions, and the alternatives open to the agency to address the issue in dispute. Those features have been prominent in a number of other cases applying Wednesbury. So, for instance in Wheeler the House of Lords held invalid a decision by the council to ban the Leicester Football Club for 12 months from using training grounds situated on council property on the basis that the club had not taken steps to prevent three of its members from touring apartheid South Africa as members of a British football team. In Ziade the New South Wales Supreme Court held invalid a decision 942

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by the council to restrict public parking in favour of residential parking in the area adjacent to a cinema, after the cinema owner had been successful in earlier litigation against the council. 15.3.12  Ordinarily, to demonstrate that an alternative decision could have been made which would have caused less injury to a person will not render a decision unreasonable. Murrumbidgee Groundwater 15.2.12 provides an illustration. The plaintiffs argued that a new groundwater management plan for the lower Murrumbidgee River region did not serve its objective of limiting water extraction to sustainable usage as the plan failed to take account of particular features of the region. It was argued that an across-the-board cut on existing water entitlements was both irrational and unfair. The New South Wales Court of Appeal dismissed the challenge: Spigelman CJ (Beazley and Tobias  JJA agreeing): [144] Inevitably, when significant changes are made to an established regulatory regime, there will be winners and losers. Considerations of equity are quintessentially matters for political decision-making. I am not satisfied that anything in the nature, scope and purpose of the Act prevents the Minister from implementing a scheme which operates to the detriment of some persons and to the advantage of others, in a manner not determined by availability of water but by broader considerations of what the Minister regards as equitable … [152] No doubt some persons would regard pre-existing water access licences as some sort of accrued right, notwithstanding their statutory origin. It may appear to be unfair for such persons to have to pay additional money to obtain access to water which they could presently achieve under their licences, without adverse effects on water availability in the immediate region, particularly as they have to pay other persons who could not use the water in any event. What is fair or unfair in such a context is a matter on which reasonable minds can differ. In view of the conflicting interests involved, a broad brush approach of general application is not, in my opinion, irrational.

However, as observed by French CJ in Li 15.2.18C, ‘taking a sledgehammer to crack a nut’ (at 352) or making an ‘obviously disproportionate’ decision is ‘one path by which a conclusion of unreasonableness may be reached’: at 366. The availability of a less restrictive, proportionate means for achieving the same objective might indicate that the decision is an unreasonable or irrational exercise of power.

Evidentiary weighting 15.3.13  While a decision-maker bears a legal obligation to consider all relevant matters, the weight or importance attached to those matters generally goes to the merits and not the legality of a decision: Peko-Wallsend 10.4.13C. Moreover, factual errors and insufficiency of evidence to support findings of primary fact are not generally regarded as errors of law unless they are classified as jurisdictional facts: see  13.3.9. In Peko-Wallsend (from which a larger extract is given in 10.4.13C), Mason J noted that Wednesbury unreasonableness has a minimal role to play in monitoring the decision process. [I]n some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’. [His Honour referred to Wednesbury] [I]n the context of administrative law, a court 943

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should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

15.3.14  Instances of the principle enunciated by Mason J Peko-Wallsend 10.4.13C at 41–2 have mostly been in single-judge decisions in immigration cases. For example, Yuen v Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 713 held that it was unreasonable to conclude that a 60-year-old applicant for migrant entry was not of good character because of a conviction 30 years previously, and Othman v Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 707 at 711 held that the decision-maker could not infer that a person had ‘imposed significant costs on the community’ from the fact alone that the person had claimed workers’ compensation and hospital and sickness benefits. There was an ‘insufficient rational relationship’. 15.3.15  There is a related stream of authority, now confirmed in Li 15.2.18C, that deficiencies in the reasoning, evidentiary or fact-finding process can breach the ground of Wednesbury unreasonableness. Earlier illustrations of a similar principle being applied, that a decision will be invalid, include: where there is ‘an illogicality in, or misapplication of, the reasoning adopted by the decision-maker so that the factual result is perverse by the decision-maker’s own criteria’ (Taveli v Minister for Immigration and Ethnic Affairs (1989) 18 ALD 87 at 93); where an official ‘simply brush[es] aside information specifically furnished by an interested party in respect of a central issue’ (GTE (Australia) Pty Ltd v Brown 13.3.3C at 337); where there is an ‘arbitrary selection of one possibility over others from an available number of possibilities’ using ‘conjecture, surmise or guesswork’ (Tisdall v Webber (2011) 193 FCR 260); where ‘the tribunal did not identify any material on which its conclusory finding was based’ (Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362); where there is internally inconsistent or contradictory reasoning underlying key evidential findings of the decision-maker (SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404); where the decision-maker’s findings of adverse credibility are based on ‘a false factual premise’ (Minister for Immigration and Border Protection v SZSNW (2014) 229 FCR 197 at [55]); where the decision-maker ‘rejects the substance of an applicant’s case without giving reasons which can rationally support that rejection’ (Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77 at 80); and where the decision-maker devises a plan that is ‘capricious and irrational, such that no reasonable person could ever have devised it’: Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 401, see 8.4.24. 15.3.16  An illustrative example of a finding of ‘extreme’ illogicality in fact-finding is Abboud v Minister for Immigration and Border Protection [2018] FCA 185. The Federal Court overturned a decision of the Administrative Appeals Tribunal (AAT) involving an application for a partner visa. The AAT had concluded that the female applicant and the male sponsor were not, and never had been, involved in a ‘genuine, continuing and exclusive spousal relationship’ as required by the Migration Act, because the sponsor had previously obtained a protection visa on the basis of being homosexual. The AAT concluded that the sponsor’s previous homosexuality undermined his claims to be in a genuine heterosexual relationship for the purposes of a partner visa. The Federal Court quashed this decision on the basis of illogicality on the following basis: Jagot J: [15] I consider the Tribunal’s process of reasoning involves assumptions, pre-conceptions or pre-judgments which prevented the Tribunal from engaging with the 944

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claims of the appellant and her sponsor that their marriage was and is genuine and the material which supported those claims (such as the child of the marriage). Further, these assumptions appear to be based on a premise about homosexual men in general, rather than the sponsor in particular. The premise is that if, as the Tribunal’s view of the ‘gay rights movement’ would have it, males are born either heterosexual or homosexual (or, in the Tribunal’s words, ‘genuinely bisexual’), then a man born homosexual can never enter into a genuine spousal relationship with a woman. By proceeding on the basis of this premise as if it represents a universal truth, I  consider that the Tribunal has disabled itself from engaging with the material before it. Alternatively, I am satisfied that the Tribunal’s process of reasoning is affected by illogicality of the kind required to constitute jurisdictional error.

15.3.17  Successful challenges based on illogical or unreasonable fact-finding and evidentiary weighting must nevertheless be viewed alongside other statements emphasising the need for judicial restraint in the scrutiny of administrative reasons, as confirmed in SZMDS 15.2.17C and Li 15.2.18C; see  also 7.5.18 and 13.3.8. Striking a balance between judicial review for Wednesbury unreasonableness and judicial deference to executive fact-finding was addressed in Independent FM Radio Pty Ltd v  Australian Broadcasting Tribunal (1989) 17 ALD 529. The court held that a decision of the Australian Broadcasting Tribunal (ABT) awarding a commercial FM radio licence to one of two applicants was not invalid as a result of factual errors made by the ABT in analysing the economic data submitted by both applicants. As Allsop J observed in Minister for Immigration and Multicultural and Indigenous Affairs v NBDS (2006) 90 ALD 614 at [11], ‘one illogical aspect of fact finding in a wider scheme of factual analysis will rarely betray such a failure to attend to the jurisdictional task’ so as to lead to a finding of invalidity; ‘all one has really done, at best, is demonstrate how an error of fact came to be made’.

Duty of inquiry 15.3.18  There is no free-standing legal duty on an administrative decision-maker to assist a person to make the best possible application, to initiate inquiries to supplement the information provided by an applicant, or to advise a person of deficiencies in their application. In a large number of cases it has been held that a decision-maker acted lawfully by confining  their attention to the information presented in an application or submission. (See at 3.4.23–3.4.28 for a discussion of this issue under the inquisitorial/adversarial procedure required of tribunals.) As noted in Enichem ANIC Srl v Anti-Dumping Authority (1992) 29 ALD 431: Hill J (Gummow and O’Connor JJ agreeing): Decision-making is a function of the real world. A decision-maker is not bound to investigate each avenue that may be suggested to him by a party interested. Ultimately, a decision-maker must do the best on the material available after giving interested parties the right to be heard on the question.

Nevertheless, the view has been taken that in limited circumstances there can be a duty on a decision-maker to initiate an inquiry to obtain additional information or clarification before making a decision: Minister for Immigration and Citizenship v  SZIAI 15.3.20C. The line of authority was initiated by Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155: Wilcox J: Where it is obvious that material is readily available which is centrally relevant to the decision to be made … to proceed to a decision without making any attempt 945

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to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.

Other lines of authority, noted in 10.4.4ff and 15.3.13–15.3.17, attached a similar duty to the obligation to consider all relevant matters and to observe natural justice. 15.3.19  Prior to the High Court’s decision in SZIAI 15.3.20C, the duty to inquire occupied a tenuous position in judicial review of tribunal decisions. There was reluctance by the courts — mindful of the statutory objective of many tribunals to operate in a manner that is ‘economical, informal and quick’ — to impose positive obligations to seek out information or evidence. Conversely, the inquisitorial method in tribunals was consistent with a limited duty to inquire. The compromise reached by the courts was that a duty only arose where the additional evidence sought was readily available, obvious and centrally relevant material. Examples arose where: • there were clear conflicts in the evidence which could be easily resolved: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155;

• the information on which the decision-maker relied was outdated: Tickner v Bropho (1993) 40 FCR 183;

• the applicant was unrepresented and in detention (Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167) or was interviewed in detention for over five hours, in circumstances involving inaccurate translations: Minister for Immigration and Citizenship v Le (2007) 164 FCR 151;

• the agency or department was to blame for the failure of the information to come to light: SZJBA v Minister for Immigration and Citizenship (2007) 164 FCR 14; and • the decision affected fundamental rights: Goldie v Commonwealth 8.3.58C.

The decision of the High Court in SZIAI, though eschewing the label of ‘duty to inquire’, accepted that a failure to make an inquiry might, in limited circumstances, constitute a failure to conduct a review according to law. See  generally: M  Smyth, ‘Inquisitorial Adjudication: The Duty to Inquire in Merits Review Tribunals’ (2010) 34 Melbourne University Law Review 230; M Groves, ‘The Duty to Inquire in Tribunal Proceedings’ (2011) 33 Sydney Law Review 177; and N Bedford and R Creyke, Inquisitorial Processes in Australian Tribunals, Australasian Institute of Judicial Administration, Melbourne, 2006. 15.3.20C

Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; 259 ALR 429 High Court of Australia

[SZIAI was a Bangladeshi citizen who applied for a protection visa upon arrival in Australia in 2005. He claimed that he faced persecution after converting from being a Sunni to an Ahmadiyya Muslim. Pakistan had refused recognition of the Ahmadiyya community as Muslim in 1984. SZIAI provided the Refugee Review Tribunal with certificates from the Ahmadiyya Muslim Jamaat (community) in Bangladesh attesting to his membership and involvement. The certificates contained the authors’ telephone numbers. The tribunal sought verification of the authenticity of the certificates from the Ahmadiyya Muslim Association Australia Inc. It informed the tribunal that inquiries of the National Ameer

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of Bangladesh indicated the certificates were forgeries. Presented with that information, SZIAI disagreed with it but said he could not otherwise prove his claims. The tribunal found that SZIAI was not a credible witness and rejected his application for a protection visa. The Federal Court held that the tribunal had made a jurisdictional error by failing to follow through on the inquiry that it had commenced and attempting to resolve the diametrically opposed evidence received about the authenticity of a document. The High Court reversed the Federal Court’s decision and held that the tribunal had not made a jurisdictional error.] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ: In the exercise of its review function, the Tribunal may obtain such information as it considers relevant. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act. … Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that. The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the Tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.

15.3.21  There have been many subsequent attempts in migration cases in the Federal Circuit Court and Federal Court to rely on the undefined potential obligation to make inquiries outlined in SZIAI 15.3.20C. The reluctance of the courts to find there was a duty is apparent from the many cases rejecting the claim. See, for example, Chen v Minister for Immigration and Citizenship [2011] FCAFC 56, Kowalski v  Military Rehabilitation and Compensation Commission (2011) 191 FCR 345 and BZAED v Minister for Immigration and Border Protection 947

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(2015) 150 ALD 433. An exception applies where fault can be attributed to a tribunal deciding a matter. For example, in SZMYO v Minister for Immigration and Citizenship (2011) 121 ALD 272 the tribunal relied on a summary of an airport interview which it should have realised was inaccurate. Any obligation to inquire will depend on ‘the nature of the tribunal and its powers and obligations’: Chand v  Administrative Decisions Tribunal [2011] NSWCA 131 at [58]. The High Court reiterated the limited obligation to inquire at common law in Minister for Immigration and Citizenship v  SZGUR (2011) 241 CLR 594, in finding there was no obligation on a tribunal to arrange for an independent mental health assessment to account for evidentiary inconsistencies in the case of an applicant suffering depression, bipolar mood disorder and forgetfulness. Discerning the line between the need for further inquiry and the absence of that need is often a matter of anxious deliberation for tribunal members.

Unjustified unequal treatment 15.3.22  A common complaint made by people about government decisions is that someone else in the same position was treated differently and better. Inconsistent action is not of itself a legal error: indeed, a mantra of judicial review is that decision-making should focus on the individual merits of the case and not be fettered by general policies or the pursuit of consistency for its own sake. Nevertheless, courts have suggested that conspicuous inequality or discrimination which has not been explained or justified can be invalid as unreasonable or irrational. Sunshine Coast Broadcasters Ltd v Duncan 15.3.23C and Dilatte v MacTiernan [2002] WASCA 100 (see 15.3.24) are among the few cases in which the argument has succeeded. 15.3.23C

Sunshine Coast Broadcasters Ltd v Duncan (1988) 15 ALD 525; 83 ALR 121 Federal Court of Australia

[The minister administering the Broadcasting and Television Act 1942 (Cth) made a decision that prevented Sunshine Broadcasters from broadcasting into an adjoining shire. Eight other Brisbane metropolitan stations located on the other side of the shire were permitted to broadcast into the shire. One reason given for denying Sunshine Broadcasters the same opportunity was that the shire was being served by the other metropolitan stations. The court held the minister’s decision to be invalid.] Pincus J: It was put by Mr Douglas for the applicant that the decision attacked constituted an abuse of power, within the meaning of s 5(2)(j) of the [ADJR Act], in that there was unfairness in a certain sense. The unfairness complained of was, in essence, that the first respondent had applied against the applicant a guideline which was equally applicable to competing applicants against whom it was not applied, no reason for this discrimination appearing or being given. Before expounding that point further, it is necessary to refer to the authorities which were relied on. [Pincus J referred to English cases in which it was said that there was a duty on administrative agencies to act fairly and to balance conflicting interests: HTV Ltd v Price Commission (1976) ICR 170; the Fleet Street casuals case 13.4.5C; and Bromley London Borough Council v Greater London Council [1983] 1 AC 768.] There is a question whether these authorities should be followed, in dealing with allegations of abuse of power under the [ADJR Act]. Here, it is unnecessary to consider the whole scope

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of abuse of power by unfair or inconsistent action. The question is a narrower one: if the first respondent, having competing applications before him in respect of the same area, applied a guideline against one and not against another, without any stated or rational justification for that discrimination, is that an abuse of power? [His Honour examined the facts and continued:] The principal reason given for the decision was erroneous, in that it involved rejecting the applicant for a reason equally applicable to other applicants whose claims had just been allowed, and who formed, indeed, part of a group whose entitlements were thought to be destructive of the applicant’s claim. If one follows the first respondent’s approach and considers the Brisbane stations as a group, it appears that they have been allowed to transmit such signals as effectively to compete with the applicant in the heart of its home territory — but not vice versa … It seems scarcely fair to make a decision based on preserving to the Brisbane stations the area they were ‘established to serve’ (as was said in the minute of 20 October 1987), when the applicant was already competing with Brisbane stations transmitting strongly to the area it was established to serve. … The decision was vitiated by inconsistency of application of the guideline thought to be relevant: it was true of a number of the competing applicants that their licences did not, and others did, include part of the shire — but that ground was used to defeat this applicant only, and not others similarly placed.

15.3.24  An argument of ‘arbitrary and inconsistent’ decision-making was accepted by the Full Court of the Supreme Court of Western Australia in Dilatte v MacTiernan. The court held that a decision refusing permission for alterations to a residential house was inconsistent with earlier decisions concerning the same alterations to a neighbour’s house. The court observed: Malcolm CJ (Wallwork J and White AUJ agreeing): [61] Inconsistency has the potential of bringing the decision making process into disrepute because it suggests that the decision is arbitrary, rather than one made in accordance with a disciplined approach reflecting the application of sound town planning principles and consistent with commonly accepted notions of justice. … [62] The test is that ordinarily there would need to be ‘a similarity, if not a virtual duplication of circumstances and conditions to establish the basis for a complaint of inconsistency’: Progress Properties Ltd v Woollahra Municipal Council (1969) 18 LGRA 166 at 171 … [63] Concurrent or alternative applications, by the same landowner in respect of the same land with a common sub-stratum of development factors, should also be dealt with consistently, both for the sake of ‘consistency from the council’s point of view and to ensure justice from the applicant’s point of view’: Progress Properties Ltd v  Woollahra Municipal Council (1969) 18 LGRA 166 at 171 …

A similar observation in Knight v Wise [2014] VSC 76 is that ‘Wednesbury unreasonableness may … be established where the decision under review is plainly inconsistent with other decisions made in respect of circumstances that are substantially similar, if not identical, to those of the decision under review’: at [62]. 15.3.25  The argument of unequal treatment has been raised frequently in taxation cases, but with limited success: see Daihatsu Aust Pty Ltd v Deputy Commissioner of Taxation (2000) 182 ALR 239 at 255–9 (the differential treatment of a taxpayer arose from the tax law, not a discretionary decision of an official), and Smiles v Federal Commissioner of Taxation (1992) 35 949

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Control of Government Action

FCR 405 (a decision to prosecute a taxpayer for tax evasion could be based on their high public profile as a parliamentarian and the deterrent value of the prosecution, provided that was not the sole reason for the prosecution). In the recent decision of R (Gallaher Group Ltd) v Competition and Markets Authority [2018] 2 WLR 1583; [2018] UKSC 25, the United Kingdom Supreme Court confirmed that unequal treatment is not a distinct principle of domestic English administrative law. Unequal treatment will only give rise to invalidity if that differential treatment is properly characterised as unreasonable or irrational. That will be unlikely when the agency can demonstrate an objective justification for the differential treatment.

Proportionality 15.3.26  Dissatisfaction with Lord Greene’s formulation of the Wednesbury test has led to calls in England and Australia for its replacement with another test of substantive review, such as proportionality. The judgment of Lord Greene in Wednesbury has been criticised for being vague, circular and providing insufficient guidance to reviewing courts, while at the same time unduly constraining the scope of judicial review. In R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, Lord Cooke observed: I think that the day will come when it will be more widely recognised that [Wednesbury] was an unfortunately retrogressive decision in English administrative law, insofar as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd.

15.3.27  In England, calls for a lower threshold of unreasonableness than Wednesbury are often accompanied by advocacy of a proportionality principle to guide the judicial control of administrative discretion. This trend originated in Lord Diplock’s suggestion in 1985 in CCSU 15.2.3 that ‘proportionality’ could be adopted as a ground of judicial review additional to Wednesbury unreasonableness. Since then, in England the pressure to adopt proportionality as a separate ground of review has been increased by three trends. The first was the debate in legal and academic circles following CCSU about whether judicial review was unnecessarily constrained by the Wednesbury doctrine. The second was a move to align English and European law. The principle of proportionality is recognised as a general principle of European law, and will therefore be applied by English courts in cases with a European law dimension (for example, where there is an allegation of an unlawful restraint on the free movement of goods: see Chief Constable of Sussex, Ex parte International Traders Ferry Ltd [1999] 2 AC 418). The third trend was the importance of the European Court of Human Rights’ jurisprudence and the enactment of the Human Rights Act 1998 (UK), which conferred a new role on the English judiciary of examining whether laws and executive decisions contravened the fundamental Convention rights in the Act (such as the right to family life enshrined in Art 8: see Huang v Secretary of State for the Home Department [2007] 2 AC 167). Nevertheless, in Keyu v Secretary of State for Foreign and Commonwealth Affairs 15.3.29C, the UK Supreme Court sounded a note of caution when it held that the question of whether proportionality should replace unreasonableness as a free-standing test of substantive review in domestic English law cases should only be decided by a nine-justice panel. 950

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15.3.28  The thrust of the proportionality principle is that an executive action can be declared invalid if it is arbitrary or excessive, in the sense that it interferes with a recognised right, interest or freedom in a manner, or to an extent that is disproportionate to the objective sought to be achieved. The test was summarised by Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700 as follows: [A]n exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.

15.3.29C

Keyu v Secretary of State for Foreign and Commonwealth Affairs [2016] AC 1355; [2015] UKSC 69 United Kingdom Supreme Court

[The appeal concerned the decision of the Secretaries of State for Foreign Affairs and Defence to refuse to hold a public inquiry when a British Army patrol shot and killed 24 civilians. This event occurred while the United Kingdom was the colonial power in the former Federation of Malaya. In 2011 the claimants, Malaysian citizens who were relatives of those killed, sought judicial review of the decisions of the Secretary of State to exercise their discretion under s 1(1) of the Inquiries Act 2005 (UK) not to order an inquiry into the deaths. In dismissing the appeal (Baroness Hale dissenting), the Supreme Court rejected a contention that the Secretaries of State exercised their discretion unreasonably or irrationally. The Court also held that, if the matter were to be considered by reference to principles of proportionality, the decision would also be proportionate. In considering the question of whether proportionality should be applied to domestic cases, the court held that it would not be appropriate for a five-judge panel of the Supreme Court to take such a significant step, given its wide-ranging implications.] Lord Neuberger: The appellants raise the argument that the time has come to reconsider the basis on which the courts review decisions of the executive, and in particular that the traditional Wednesbury rationality basis for challenging executive decisions should be replaced by a more structured and principled challenge based on proportionality. The possibility of such a change was judicially canvassed for the first time in this jurisdiction by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410E, and it has been mentioned by various judges in a number of subsequent cases often with some enthusiasm, for instance by Lord Slynn of Hadley in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, para 51. In other words, the appellants contend that the four-stage test identified by Lord Sumption and Lord Reed JJSC in Bank Mellat v HM Treasury (No 2) [2014] AC 700, 770–771, 790–791, paras 20, 74 should now be applied in place of rationality in all domestic judicial review cases.

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It would not be appropriate for a five-justice panel of this court to accept, or indeed to reject, this argument, which potentially has implications which are profound in constitutional terms and very wide in applicable scope. Accordingly, if a proportionality challenge to the refusal to hold an inquiry would succeed, then it would be necessary to have this appeal (or at any rate this aspect of this appeal) re-argued before a panel of nine justices. However, in my opinion, such a course is unnecessary because I consider that the appellants’ third line of appeal would fail even if it was and could be based on proportionality. The move from rationality to proportionality, as urged by the appellants, would appear to have potentially profound and far reaching consequences, because it would involve the court considering the merits of the decision at issue: in particular, it would require the courts to consider the balance which the decision-maker has struck between competing interests (often a public interest against a private interest) and the weight to be accorded to each such interest. … However, it is important to emphasise that it is no part of the appellants’ case that the court would thereby displace the relevant member of the executive as the primary decision-maker. Lord Kerr: Lord Neuberger PSC has said that it would not be appropriate for a five member panel of this court to reach a final conclusion on the question whether proportionality should supplant rationality as a ground of judicial review challenge at common law. I tend to agree, although I suspect that this question will have to be frankly addressed by this court sooner rather than later. As Lord Neuberger PSC has said, it is possibly a matter of some constitutional importance, although it is perhaps not as great as many commentators believe. Lord Neuberger PSC also suggested that a change from irrationality to proportionality had implications which might be ‘very wide in applicable scope’. This could very well be true but I believe that some of these have been overestimated in the past. Indeed, the very notion that one must choose between proportionality and irrationality may be misplaced. Without rehearsing all the arguments which swirl around this issue and keeping in mind the perils of over simplification, it is important to start any debate on the subject with the clear understanding that a review based on proportionality is not one in which the reviewer substitutes his or her opinion for that of the decision-maker. At its heart, proportionality review requires of the person or agency that seeks to defend a decision that they show that it was proportionate to meet the aim that it professes to achieve. It does not demand that the decision-maker bring the reviewer to the point of conviction that theirs was the right decision in any absolute sense. … In the present case, the appellants must present their case for a proportionality review of the decision not to hold an inquiry in a context where they cannot assert that there has been interference with their right to have such an inquiry. Conventionally, of course, interference with a fundamental right has been the setting where proportionality has most frequently been considered … As Lord Reed JSC pointed out in Pham [v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] 1 WLR 1591] at para 113, it is necessary to distinguish between proportionality as a general ground of review of administrative action, confining the exercise of power to means which are proportionate to the ends pursued, from proportionality as a basis for scrutinising justifications put forward for interferences with legal rights. Lord Neuberger PSC has suggested in para 131 above that the appellants have contended that the four-stage test identified by Lord Sumption and Lord Reed JJSC in Bank Mellat at paras 20 [15.3.28] and 74 should now be applied in place of rationality in all domestic judicial review cases. If this is the appellants’ position I question its feasibility. In the first

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instance there is no legislative objective and no interference with a fundamental right; secondly, it is difficult to see how the ‘least intrusive means’ dimension could be worked into a proportionality exercise where the decision did not involve interfering with a right. I envisage a more loosely structured proportionality challenge where a fundamental right is not involved. As Lord Mance JSC said in Kennedy [2015] AC 455 , para54, this involves a testing of the decision in terms of its ‘suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages’. In the present case, such a proportionality challenge would require the court to assess whether the government has struck the right balance between two incommensurate values: protecting the public purse from the substantial expenditure that would inevitably be involved, with (from its perspective) little tangible or practical benefit, as opposed to exposing historic crimes by the British forces, with the associated vindication of the appellants’ long-fought and undeniably worthy campaign. I have been reluctantly driven to the conclusion that, without an identifiable fundamental right in play, it is difficult to say that the decision not to hold an inquiry is disproportionate. Baroness Hale: Much of the argument before us (but not in the courts below) was devoted to whether the time had now come to recognise proportionality as a further basis for challenging administrative actions, a basis which, if adopted, would be likely to consign the Wednesbury principle to the dustbin of history. The claimants’ principal argument (relying in particular on the work of Professor Paul Craig) was that proportionality should be adopted as the basis of challenge for all administrative decisions. An alternative argument was that it should now be openly adopted by this court in a human rights context (relying again on those commentators, including Professor Craig, who suggest that it already applies in the context of fundamental rights). This is indeed a complex issue, but I agree with Lord Kerr JSC (para 283) that it is one thing to apply a proportionality analysis to an interference with, or limitation of, a fundamental right and another thing to apply it to an ordinary administrative decision such as whether or not to hold some sort of inquiry. The recent observations of this court on the relevance of a proportionality analysis, in Pham …, were in the context of stripping the claimant of his British nationality and all that goes with it, which is clearly a grave invasion of a fundamental right. The context here is, of course, the killing of unarmed civilians by British soldiers. The right to life of those civilians was undoubtedly engaged by whatever took place. Two of the four claimants were present at the scene, but the women and children were separated from the men overnight, and loaded onto a lorry to be driven away from the scene the following day. The claim of all four is as relatives of the deceased. The right which they claim is to a proper investigation and a retraction of the official explanation of what took place. But, for the reasons given earlier, that is not a right recognised by the common law or under the Human Rights Act. [Lord Mance agreed with Lord Neuberger PSC and Lord Kerr JSC that there was no ground for treating the refusal of an inquiry as either Wednesbury unreasonable or disproportionate. In Youssef v Secretary of State for Foreign and Community Affairs [2016] 3 All ER 261, Lord Carnwath referred to Keyu and commented at [55]: It is to be hoped that an opportunity can be found in the near future for an authoritative review in this court of the judicial and academic learning on the issue, including relevant comparative material from other common law jurisdictions. Such a review might aim for rather more structured guidance for the lower courts than such imprecise concepts as ‘anxious scrutiny’ and ‘sliding scales’.]

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Control of Government Action

15.3.30  The difference between proportionality and the standard grounds of judicial review in England was explained by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532: The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, [the proportionality principle requires the court to ask whether] the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and whether the interference was really proportionate to the legitimate aim being pursued. The differences in approach between the traditional grounds of review and the proportionality approach may, therefore, sometimes yield different results. This does not mean that there has been a shift to merits review. [T]he respective roles of judges and administrators are fundamentally distinct and will remain so. And Laws LJ rightly emphasised in Mahmood [2001] 1 WLR 840 at 847, [18], ‘that the intensity of review in a public law case will depend on the subject matter in hand’. That is so even in cases involving Convention rights. In law context is everything.

15.3.31  In Australia, proportionality has not been adopted as a freestanding test of substantive review in administrative law. Australian courts have been even more cautious about proportionality in administrative law than UK courts. The different context in England and Australia for the development of a proportionality principle is explained in the extract from a report of the Administrative Review Council (ARC) 15.3.33E. The reluctance of Australian judges to embrace a proportionality principle, or to move beyond Wednesbury unreasonableness, is discussed in the extracts from Sir Anthony Mason 15.3.34E and Bradley Selway QC 15.3.35E. 15.3.32  Nevertheless, Australian courts have drawn upon proportionality principles in various contexts, including in deciding on the constitutional validity of legislation, reviewing the adequacy of damages, penalties and costs orders, and deciding the validity of subordinate legislation: see Attorney-General (SA) v Corporation of City of Adelaide 6.5.1 and 8.4.29C; Gummow J in Minister for Resources v Dover Fisheries Pty Ltd 8.4.30–8.4.31; and B Selway, ‘The Rise and Rise of the Reasonable Proportionality Test in Public Law’ (1996) 7 Public Law Review 212. In South  Australia v  Tanner 8.4.27C, the High  Court applied the proportionality doctrine by asking whether a subordinate regulation was ‘capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose’ as enacted in the statute pursuant to which the regulation was made. As later cases noted (see  8.4.26–8.4.29C), the focus of that analysis is still on statutory construction, generally to gauge whether a subordinate rule was within the scope of the statutory limits set by the parliament.

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Chapter 15  Unreasonableness, Irrationality and Proportionality

15.3.33E

Administrative Review Council, Federal Judicial Review in Australia Report No 50, Commonwealth of Australia, Canberra, 2012

Proportionality [7.42] Proportionality is a ground of review that originated in civil law countries in Europe, but has made its way into the common law of the UK. However, proportionality is not regarded as a separate ground for review in the Australian context, and most Australian courts and commentators regard it, as Michael Taggart remarked, as a ‘bridge too far’, largely because of its perceived incursion into the merits of a particular case. [7.43] In the UK, proportionality is established when executive action interferes with a recognised right, interest or freedom in a manner that is disproportionate to the objective to be achieved. It is a ground often applied in the UK in cases involving human rights, supported by the Human Rights Act 1998 (UK). Taggart has argued that it owes much of its ‘muchadmired analytic and structuring qualities’ as a methodology to an enumerated list of rights. [7.44] Australia does not have a statutory list of human rights, meaning that proportionality would not have the same certainty in terms of what rights, interests or freedoms would give rise to a consideration of the proportionality of an executive action. The Law Council of Australia commented, for example, that: ‘The reason for the UK “expansion” of judicial review is due to peculiar factors — UK’s geopolitical positioning in Europe; the Human Rights Act and the absence of a written Constitution which incorporates a strict separation of powers. Due to the nature of Australia’s written Constitution it might not be desirable (or even possible) to create rights of review that use a principle such as proportionality.’ [7.45] The main argument in support of proportionality is that the courts currently perform a similar exercise using existing grounds of review, to the extent that they may apply a varying intensity of review where more significant rights or interests are in question—for example, the content of procedural fairness may alter depending on the decision-making context. [7.46] Separate questions could arise about the meaning of proportionality. There seems to be no single definition of proportionality from the jurisdictions which have engaged the concept. Adoption of this ground would require consideration of whether it should be defined or simply listed. The latter would be consistent with the ADJR Act approach to other grounds and would enable a statutory ground of proportionality to incorporate common law evolution of the concept. [The ARC concluded that proportionality should not be added to the ADJR Act as a ground of review: at [7.51].

15.3.34E

Sir Anthony Mason, ‘The Scope of Judicial Review’ (2001) 31 AIAL Forum 21

In Australia, we are free from the influences which favour making proportionality a separate ground of review. As I see it, for us, the question is whether proportionality is a concept which should inform our understanding of Wednesbury unreasonableness and its application. The question should be answered in the affirmative. A decision which involves the application of policy to an individual to his detriment in circumstances where there is no reasonable basis for thinking that the integrity of the policy will be significantly compromised

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if the decision went the other way, is Wednesbury unreasonable and it is unreasonable because the end result is grossly disproportionate to the interest which the decision-maker seeks to protect. Gross disproportionality in this sense often lies behind a conclusion that a decision is unreasonable. It is proportionality in this sense that is relevant to Australian Administrative Law rather than the various applications which it has in European law. [Sir Anthony then observed that proportionality as so understood should not be confined to policies that impair fundamental rights or freedoms.]

15.3.35E

Bradley Selway QC, ‘The Principle behind Common Law Judicial Review of Administrative Action — the Search Continues’ (2002) 30 Federal Law Review 217

The English jurisprudence is leading increasingly to the position that there are rights — variously thought of as fundamental rights, human rights, or common law assumptions — that inhere in the constitutional structure. It is therefore said to be part of the judicial role to identify, articulate and safeguard those values as constitutional or legal rules. Notions of ‘fairness’, ‘proportionality’ and ‘equality’ quickly emerge as legally enforceable conditions on the exercise of executive power. This [English] approach is necessarily inconsistent with any attempt to give any role to legislative intent in relation to the legislative function. It is also inconsistent with separation of powers principles. The new English approach clearly permits merit review subject only to whatever forbearance the judge, as a matter of policy, is prepared to give. But in almost all cases the Parliament has given the task of merit determination to the executive, not to the courts. For the courts to take on that function themselves necessarily involves both ignoring the parliamentary intent and the performance by the judiciary of an executive function.

15.3.36  Qualified support was expressed in Li 15.2.18C for the use of proportionality as an aid to assessing unreasonableness: French CJ: [30] A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions. Hayne, Kiefel and Bell JJ: [74] In the present case, regard might be had to the scope and purpose of the power to adjourn in s 363(1)(b), as connected to the purpose of s 360(1). With that in mind, consideration could be given to whether the Tribunal gave excessive weight — more than was reasonably necessary — to the fact that Ms Li had had an opportunity to present her case. So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached. However, the submissions in this case do not draw upon such an analysis. 956

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15.3.37 After Li 15.2.18C, Australian courts have continued to approach proportionality cautiously: Le v Minister for Immigration and Border Protection (2015) 149 ALD 582 at [21]–[23]. The Full Federal Court’s decision in Minister for Immigration and Border Protection v  Eden 15.3.38C emphasises that only a decision which is ‘on any view’ or ‘obviously’ disproportionate can give rise to unreasonableness.

15.3.38C

Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 Full Federal Court of Australia

[Mr Eden was a New Zealand citizen with Australian resident status. He was convicted of sexually assaulting a woman passenger in a taxi he was driving and was sentenced to a twelve months suspended sentence. Four years after his conviction, the Assistant Minister for Immigration and Border Protection cancelled his visa on character grounds under s 501(2) of the Migration Act based on Mr Eden’s conviction and sentence for sexual assault. A single justice of the Federal Court quashed the minister’s decision as being disproportionate and unreasonable, having regard to the objective seriousness of Mr Eden’s offence and the delay involved in making the cancellation decision. The Full Federal Court reversed the primary judge’s decision on appeal.] Allsop CJ, Griffiths and Wigney JJ: [65] [T]he evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are ‘plainly unjust’, ‘arbitrary’, ‘capricious’, ‘irrational’, ‘lacking in evident or intelligible justification’, and ‘obviously disproportionate’. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a ‘checklist’ exercise: Singh at 445[42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes. … [96] Mr Eden contended that the Minister’s decision was outside the range of proportionate responses available to the Minister, and that no reasonable Minister could, on the objective facts, have concluded that the cancellation power should have been exercised. He pointed, in support of that submission, to the particular conduct of Mr Eden that was in question, being sexual advances under the mistaken belief that they were consensual, the low risk of reoffending and the fact that Mr Eden had been permitted to remain in and develop further ties with Australia for some years after he was convicted of the offence. [97] There could be little doubt that Mr Eden’s circumstances presented the Minister with a difficult decision about which reasonable minds could differ. Mr Eden received the bare minimum sentence necessary to enliven the s 501(2) discretion by reason of the operation of s 501(6)(a) and (7). He was sentenced on the basis that his offence was the result of a mistake, albeit one not based on objectively reasonable grounds. His offence was perhaps

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towards the low end of the scale of seriousness of sexual assault offences. It was accepted that the risk of him re-offending was low. In the four years since his conviction, he had committed no further offences and he and his family had developed further ties with Australia. [98] On the other hand, it is difficult to accept that the Minister’s findings concerning the potential risk of harm to the Australian community, should Mr Eden be permitted to remain in Australia, were not findings that were reasonably open. The Minister reasoned that, whilst the prospects of Mr Eden reoffending were low, the harm that would be suffered if he did was great. Given the sexual nature of the offence and the harm that was in fact suffered by the victim, the Minister’s view that the risk of harm was an unacceptable risk was a view that was open on the facts. It could not be considered to be in any sense unreasonable, illogical or irrational. [99] It follows that the Minister’s findings in relation to the risk of harm to the Australian community provided an evident and intelligible justification for the cancellation decision, albeit not a justification that everyone would necessarily agree with. … [E]ven if the primary judge did disagree with the Minister’s finding and justification for the cancellation based on the protection of the Australian community, that provided no proper basis for a conclusion that the decision was legally unreasonable if, as was the case, that finding and justification was one that was reasonably open on the objective facts. [100] To the extent that the primary judge’s reasons for concluding that the decision was legally unreasonable rested on an absence of proportionality, the primary judge did not explain why cancellation was not a proportionate response, beyond merely concluding that the Minister had ‘taken a sledge hammer to crack a nut’. … [102] [I]t should perhaps be observed that, in Mr Eden’s case, the competing considerations were far from overwhelming. Although he and his family had developed ties with Australia, they were of fairly recent origin. Whilst it was accepted that Mr Eden may experience some hardship if required to return to New Zealand, Mr Eden had some family links to New Zealand, prospects of securing accommodation and employment and access to a social support system that was comparable to Australia’s. Whilst removal may not have been in the best interests of Mr Eden’s young child, to an extent that depended very much on whether, as asserted, Mr Eden’s wife and child would ultimately accompany him back to New Zealand. In circumstances where the competing considerations were far from compelling, even a relatively small risk to the Australian community was capable of swinging the balance in favour of cancellation. [103] Parliament has entrusted the power to cancel a visa on character grounds under s 501(2) of the Act to the Minister. Where the Minister exercises that power personally, Parliament has expressly provided for no merits review of that decision, unlike the situation which prevails if the decision is made by the Minister’s delegate. In such circumstances, the Court must be astute to ensure that it is not seen to engage in a form of impermissible merits review under the guise of the legal unreasonableness ground of judicial review. In such circumstances, one would expect (consistently with the observation of Gageler J in Li at [113]) that in the case of decisions made by the Minister personally, intervention on the ground of legal unreasonableness would be fairly rare and would only occur in relatively clear cases. This was not such a case.

15.3.39  An additional source of proportionality jurisprudence is the human rights charters in two Australian jurisdictions (see  4.4.24) that require courts to apply a proportionality standard in deciding whether statutory provisions and administrative actions are consistent with the rights guaranteed in the charter. Section  7(2) of the Charter of Human Rights and Responsibilities 2006 (Vic) (Victorian Charter) provides as follows: 958

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7(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including — (a) (b) (c) (d) (e)

the nature of the right; and the importance of the purpose of the limitation; and the nature and extent of the limitation; and the relationship between the limitation and its purpose; and any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

Section 28 of the Human Rights Act 2004 (ACT) is in similar terms. 15.3.40  The provision referred to was given a limited scope of operation in Momcilovic v The Queen 8.3.33C. The majority (French  CJ, Heydon, Crennan, and Kiefel  JJ; Bell  J dissenting on the outcome) found that s 7(2) of the Victorian Charter had no role to play in applying s 32(1) of the Charter, which provided that, so far as possible, statutory provisions were to be interpreted consistently with human rights. French CJ: [22] Section 7(2) sets out criteria for determining whether a limit imposed by law on a human right is ‘reasonable’. As was said, in the Second Reading Speech for the Charter, it embodies ‘what is known as the “proportionality test”’. That test is of a kind well known to European jurisdictions and originates in German law and rule of law concepts, and may have application in particular contexts in Australia. [His Honour described those contexts as ‘judicial review of legislation for constitutional validity’.] … [34] The [Human Rights Law] Centre submitted that a proportionality assessment of the reasonableness of legislation is not an interpretive function. Section 7(2) cannot, it was said, form part of the interpretive process because the proportionality assessment that it requires cannot be undertaken until a construction has been reached. These submissions made by the Centre should be accepted. … [60] … In R v Lambert the House of Lords construed a reverse onus provision requiring the accused to ‘prove’ want of knowledge or suspicion of certain matters, as imposing an evidential rather than a legal burden. Its interpretive approach embodied proportionality considerations of the kind that would be relevant under s 7(2) of the Charter. That approach to s 32(1) is not open under the Charter. …

Heydon J: [432] Section  7(2) creates a kind of ‘proportionality’ regime without comprehensible criteria. The regime operates as a method of determining what the formulation of the law is to be — ie the precise form a legislatively recognised human right is to take, which in turn is used as a factor relevant to determining the interpretation of other statutes. But it creates a type of proportionality which ‘is plastic and can in principle be applied almost infinitely forcefully or infinitely cautiously, producing an area of discretionary judgment that can be massively broad or incredibly narrow — and anything else between’. [433] In particular, at  least in the non-constitutional context of s  7 and s  32(1), a consideration pursuant to s 7(2)(e) of whether there are less restrictive legislative means available to achieve a statutory purpose is a matter for a legislature, not a court. Courts decide what the language chosen by the legislature means. They do not decide on the meaning, 959

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operation and utility of language which the legislature might have chosen. The AttorneyGeneral for the State of Victoria pointed to various supposed constitutional doctrines of proportionality. Constitutional doctrines are different from doctrines applicable to statutory interpretation. … It does not follow from the employment of ‘proportionality’ techniques in applying the Constitution that they can be conferred by statute in relation to statutory interpretation.

Crennan and Kiefel JJ: [575] [Section  7(2)] forms no part of the role of the courts in interpreting a statutory provision in connection with the charter or the making of a declaration by the Supreme Court.

Bell J: [684] If the literal or grammatical meaning of a provision appears to limit a Charter right, the court must consider whether the limitation is demonstrably justified by reference to the s 7(2) criteria. As the Commonwealth submitted, these are criteria of a kind that are readily capable of judicial evaluation. Consideration of the purpose of the limitation, its nature and extent, and the question of less restrictive means reasonably available to achieve the purpose are matters that commonly will be evident from the legislation. If the ordinary meaning of the provision would place an unjustified limitation on a human right, the court is required to seek to resolve the apparent conflict between the language of the provision and the mandate of the Charter by giving the provision a meaning that is compatible with the human right if it is possible to do so consistently with the purpose of the provision. Provisions enacted before the Charter may yield different, human rights compatible, meanings in consequence of s 32(1). However, the scope for this to occur is confined by the requirement of consistency with purpose. This directs attention to the intention, objectively ascertained, of the enacting Parliament. The task imposed by s 32(1) is one of interpretation and not of legislation. …

15.3.41  In summary, there are at  least five reasons for thinking that Australian judicial review doctrine will not move along an expansive path under the umbrella of Wednesbury unreasonableness. The first is the well-entrenched attachment to the legality/ merits distinction as described in this chapter and Chapter 7, and the focus on statutory interpretation in judicial review. The second is the different constitutional framework in Australia, which places more emphasis on the limited role of the judiciary in a system of separation of powers as opposed to its role in controlling abuse of power. The third is that the ADJR Act (and similar judicial review statutes) contain broad ‘abuse of power’ and ‘otherwise contrary to law’ criteria that would provide flexibility in judicial review. Nor does the concept of jurisdictional error readily embrace a proportionality analysis. The fourth is that most Australian legislatures have not adopted a human rights charter that invites a proportionality analysis. The fifth is the more active role played by non-judicial agencies — tribunals and ombudsman offices in particular — in overseeing administrative action and defining the standards for good decision-making. For a fuller discussion of the issue and the status of proportionality in domestic English administrative law see: M Aronson, M Groves and G  Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, Thomson Reuters, Sydney, 2017, at [6.510]–[6.530]; P Craig, Administrative Law, 8th ed, Sweet and Maxwell, London, 2016, ch 21; L Grolman, ‘Life beyond Legality: Lessons from the EU and the UK for an Australian Charter or Principle of Good Administration’ (2014) available at . Arguments for and against the adoption of proportionality as a free-standing ground of review in the United Kingdom and New Zealand 960

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are comprehensively analysed in M Taggart, ‘Proportionality, Deference, Wednesbury’ [2008] New Zealand Law Review 423; and the responses in P Craig, ‘Proportionality, Rationality and Review’ [2010] New Zealand Law Review 265; T Hickman, ‘Problems for Proportionality’ [2010] New  Zealand Law Review 303; and J  King, ‘Proportionality: A Halfway House’ [2010] New Zealand Law Review 327.

STATUTORY UNREASONABLENESS Meaning of ‘reasonable’ or ‘unreasonable’ 15.4.1  Many statutes use ‘reasonable’ or ‘unreasonable’ in defining a power or function. The usual rule is that in a statutory context the word bears its popular or dictionary meaning, not its far narrower Wednesbury sense. That was the construction adopted in Re  Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25, in the context of legislation which provided that a minister could block a change to the rules of a medical contribution fund if the change ‘imposed an unreasonable or inequitable condition affecting the rights of any contributors’. President O’Connor J, Members PA Staer and SD Hotop: The issue here is one of statutory unreasonableness. In such a case, the very narrow meaning of ‘unreasonable’ that is appropriate in the context of judicial review of the exercise of broad discretionary power is inappropriate. That very narrow meaning — which has come to be known at common law as ‘Wednesbury unreasonableness’ — may be described as gross or manifest unreasonableness and has been adopted as a ground of judicial review in the [ADJR Act s 5(2)(g)]. In the context of statutory unreasonableness, the term ‘unreasonable’ should be given its ordinary, natural meaning. The word ‘unreasonable’ is defined in The Shorter Oxford English Dictionary as follows: ‘1. Not having the faculty of reason; irrational. 2. Not acting in accordance with reason or good sense; … 3. Not based on reason or good sense. 4. Going beyond what is reasonable or equitable; excessive.’ The test of reasonableness or unreasonableness is an objective one and whether that test is satisfied or not will normally be a question of fact or degree depending upon the circumstances of the particular case.

15.4.2  Ombudsman legislation in Australia typically contains a provision stating that the ombudsman may make a formal report upon finding that an agency action is ‘unreasonable, unjust, oppressive or improperly discriminatory’: for example, Ombudsman Act  1976 (Cth) s 15(1)(a)(ii). At an early stage the Commonwealth Ombudsman rejected the suggestion that his function was limited to action that was unlawful in the Wednesbury sense: I am in no doubt that section 15 reveals a plain intention on the part of the Parliament that the Ombudsman should be able to conduct an inquiry in order to determine whether there has been fair play irrespective of whether the action complained about is one taken pursuant to a statutory power or in the ordinary discharge of administrative  responsibility. A decision according to law is one thing; justice according to law can be something else and is recognised in section 15 in establishing a variety of grounds upon which official action may be impugned. [Commonwealth Ombudsman, Third Annual Report 1979–80, Australian Government, Canberra, 1980] 961

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Control of Government Action

Bad faith and fraud 15.4.3  The concepts of bad faith and fraud fit appropriately in this chapter, though both are independent grounds for judicial review. The ADJR Act provides that an order of review can be sought on the following grounds: ‘that the decision was induced or affected by fraud’: s 5(1)(g); and that there was ‘an exercise of a discretionary power in bad faith’: s 5(2)(d). See also: ACT: Administrative Decisions ( Judicial Review) Act  1989 ss  5(1)(g), 5(2)(d); Qld: Judicial Review Act 1991 ss 20(2)(g), 23(d); Tas: Judicial Review Act 2000 ss 17(2)(g), 20(d). The ADJR Act grounds echo countless statements that bad faith and fraud are grounds for common law review of administrative action: see, for example, Wednesbury 7.2.3C, Australian Broadcasting Corporation v Bonner (1984) 2 FCR 561, Church of Scientology Inc v Woodward 8.2.9C and Bodruddaza v Minister for Immigration and Multicultural Affairs 5.3.37C. Absent a statutory indication to the contrary, good faith and honesty are implied statutory requirements applying to all decision-making under legislation (see  9.3.9), and possibly constitutional implications controlling the exercise of executive power: see 5.3.59.

Fraud 15.4.4  Fraud or dishonesty by a decision-maker is self-evidently a serious default, almost certainly attracting disciplinary and criminal penalties, together with civil liability. The proof required to substantiate a case of fraud by a decision-maker is commensurately strict, in line with the commonsense principle that a serious allegation cannot be established by ‘inexact proofs, indefinite testimony or indirect inference’: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 (Dixon J) cited at  3.4.20. Accordingly, courts have indicated that the ground will only be made out by proof that a decision was actually induced by fraud, not that there is a ‘real possibility’ or a ‘real suspicion’ of fraud: Wati v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 1 at 3; see also Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443. Those strict requirements explain why the ground is encountered infrequently in administrative law. 15.4.5  A frequent allegation is not that a decision stemmed from the fraud of the decisionmaker, but that the fraud of a third party has undermined the statutory integrity of a decision. The High Court accepted in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 that fraud of a third party could vitiate a decision, even though the decision-maker was blameless. In that case the applicants for a protection visa had accepted advice not to attend a hearing of the Refugee Review Tribunal, given by a person (Mr  Hussain) who had fraudulently misrepresented that he was a practising lawyer and migration agent. After discussing the principle of law that ‘fraud unravels everything’, the court observed: Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ: The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants … In short, while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review. That state of affairs merits the description of the practice of fraud ‘on’ the Tribunal. The consequence is that the decision made by the Tribunal is properly regarded, in law, as no decision at all … The significance of the outcome in this appeal should not be 962

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misunderstood … [T]here are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.

15.4.6  Principles to be drawn from SZFDE were summarised in SZSXT v  Minister for Immigration and Border Protection (2014) 222 FCR 73 at  [51]–[52] as follows (paragraph numbers from SZFDE omitted): [51] SZFDE establishes the following principles … : (a) in the framework of general legal principle, fraud can come in various guises and is ‘infinite in variety’; (b) different considerations may arise when fraud is alleged in a public law case, which involves the due administration of Commonwealth laws and has an important constitutional underpinning in Ch III of the Constitution; (c) ‘fraud’ can attract different meanings in private and public law and in the latter context has been used in a broad sense which encompasses ‘bad faith’; (d) in a case seeking certiorari based on the fraud of a third party, there is no requirement that one of the parties to the litigation be privy to the fraud; (e) another practical aspect of fraud in public law which may set it apart from fraud in civil law is that ‘often a victim of it will have no useful remedy except to have the fraudulently affected result set aside and a fresh untainted hearing conducted’; (f ) in a public law case, fraud is not limited to that of a decision-maker, a party or a party’s representative; and (g) there was no necessity in SZFDE to determine at  large and in generally applicable terms the scope for judicial review for ‘third party fraud’ of an earlier administrative decision where the judicial review applicant did not collude in the fraud and was not aware of it at  the time. But in the particular circumstances in SZFDE the rogue’s fraudulent dealings with the family had the effect of disabling the Tribunal from duly discharging its imperative statutory functions in conducting a review, such that there had also been a fraud ‘on’ the Tribunal which meant that the Tribunal’s jurisdiction remained constructively unexercised.

[52] It is well settled that mere negligence, inadvertence or incompetence on the part of an agent representing a visa applicant will not constitute fraud so as to warrant judicial intervention. …

15.4.7  The thrust of the ruling in SZFDE is that a decision can be vitiated by bad faith, where matters that were unknown to, and perhaps undiscoverable by, a decision-maker or an applicant, have rendered the decision seriously defective in some way. In SZSXT, the court found that an application for review was wrongly dismissed on the basis that it had been lodged out of time, as a third party who lodged the application falsely represented to the applicant and the court that he had the expertise to represent the applicant and had properly lodged the application. A decision to issue a search warrant can be set aside if there was fraud, misrepresentation or a misleading half-truth in information given by the police officer applying for the warrant to the judicial or tribunal officer granting the warrant: Carmody v Mackellar (1997) 76 FCR 115; Lego Australia Pty Ltd v  Paraggio (1994) 52 FCR 542. A decision to grant a certificate of citizenship on the basis of a false representation by the applicant to 963

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the department may be cancelled: Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400. 15.4.8  However, a decision that is based on alleged misrepresentations to the decisionmaker will not be vitiated for fraud where the misrepresentation by an agent to the client was known to the tribunal: SZEEU v  Minister for Immigration and Citizenship [2008] FCA  269. A  decision by a party not to put relevant material before the tribunal which could harm its case will not vitiate a decision for fraud unless the failure to do so means the tribunal’s decision is ‘seriously defective or irregular’: Burragubba v Queensland (2016) 151 ALD 471. 15.4.9  For a further discussion of the issue, see  E  Campbell, ‘Effect of Administrative Decisions Procured by Fraud or Misrepresentation’ (1998) 5 Australian Journal of Administrative Law 240; T  Moe, ‘Fraud: “Infinite in Variety” but Rare in Practice? SZFDE and its Scant Progeny’ (2009) 16 Australian Journal of Administrative Law 130; and Z  Chami, ‘Fraud in Administrative Law and the Right to a Fair Hearing’ (2009) 61 AIAL Forum 5.

Bad faith 15.4.10  There was an unprecedented resurgence of interest in this ground in Australian administrative law for a short while between 1994 and 2002. The removal from the Migration Act (see  2.2.25ff) of grounds that are popularly used elsewhere (such as natural justice and relevant and irrelevant considerations) meant that bad faith was frequently a ground of challenge in migration litigation. The principles as they had emerged in the case law were summarised by the Full Federal Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749: Tamberlin, Mansfield and Jacobson JJ: [43] First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial … [44] The fifth proposition is that the circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review … [45] Sixth, mere error or irrationality does not of itself demonstrate lack of good faith … Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism … [46] Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness … [47] Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task … [48] Ninth, it is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.

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15.4.11  The final proposition of the court — that bad faith can be demonstrated by recklessness — was qualified in a later decision of the Full Court in Minister for Immigration and Multicultural Affairs v SBAN [2002] FCAFC 431: Heerey and Kiefel JJ: [8] As with other areas of the law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision — in the  case of the RRT, affirming the rejection of a protection visa application — which must be shown to have been taken in bad faith. Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker’s duty … [9] Bad faith may manifest itself in the form of actual bias. Actual bias in this context is a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented. It is something more than a tendency of mind or predisposition.

The Full Court disagreed with the trial judge’s finding of bad faith, concluding that the individual errors alleged against the tribunal were not so serious as to constitute bad faith and could be explained in other ways. 15.4.12  Subsequently, in Minister for Immigration and Multicultural and Indigenous Affairs v  NAOS of 2002 [2003] FCAFC 142 the court also doubted the usefulness of the seventh proposition in SBBS, namely that errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness: [21] The concept of capriciousness is encountered in the law in circumstances which are concerned with unreasonableness  … A motivation may be a conscious or unconscious stimulus for action. The qualification added by Heerey and Kiefel JJ in SBAN to the ninth proposition stated by the Full Court in SBBS is important, and we agree with it. Indeed it should be extended to the seventh proposition so as to make it clear that want of bona fides will only be made out in such circumstances where whim or fancy has consciously been preferred to considered judgment.

15.4.13  The emphasis in those three Full Court judgments is on establishing personal fault or dishonesty on the part of the decision-maker. Courts have declined to give a comprehensive definition of bad faith but, for example, an exercise of power to secure personal gain would be tainted by bad faith: R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 232–3. Consistent with the requirement for personal fault, it has been held that there is ‘no such thing as deemed or constructive bad faith’ (SBAN at  [8], [18]), and that acting with carelessness or indifference to the law will not necessarily amount to bad faith in the absence of wilful blindness or conscious maladministration: Hii v  Commissioner of Taxation (2015) 230 FCR 385. Similarly, it has been said that ‘mere error or irrationality does not equate to bad faith’: Thompson v Department of Environment and Conservation [2011] FCA 617 at [142]. 15.4.14  An example of a first instance finding of bad faith was SBAU v  Minister for Immigration and Multicultural Affairs (2002) 70 ALD 72 in which the combination of factors 965

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that supported the finding of bad faith were: the tribunal’s understating or ignoring factual claims of which it must have been aware; its attribution of inherent unlikelihood to events that were inherently likely; and its wrongful analysis of the legal system in another country. Together those errors showed that ‘the Tribunal embarked upon its review with a mind fixed upon rejecting the claims [indicating] a degree of capriciousness in addressing the review which … points firmly towards it failing to endeavour in good faith to review the delegate’s decision’: at 88.

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D

PART

Remedies for Unlawful Government Action

Pt D.1  A decision by a government agency that breaches one of the criteria for lawful decision-making found in Part C of this book can be set aside by a court undertaking judicial review. This part examines issues to do with who can commence judicial review proceedings, the remedies available and the order that a court may make. Pt D.2  The doctrine of standing, examined in Chapter 18, limits the class of people entitled to initiate proceedings to challenge the validity of government decisions and actions. Each remedy or method for commencing proceedings has its own test for standing, though a core concept is whether the person bringing the proceedings has a special interest in the subject matter of the litigation. An important practical consequence of the doctrine of standing is that a government decision that is liable to be set aside may withstand scrutiny if a litigant is adjudged to lack standing to initiate the proceedings. Pt D.3  A special feature of administrative law is the role that remedies and forms of remedial relief play in correcting unlawful government action — a topic covered in Chapter 17. Most jurisdictions in Australia still rely solely or partly on the prerogative writs and equitable remedies. Each writ or remedy serves a different purpose, such as declaring the law, quashing unlawful action, restraining unlawful action, or compelling performance of a public duty. Some remedies are closely tied to one or other of the criteria covered in Part C: examples are that mandamus is tied to breach of statutory duty, and certiorari to error of law. Shortly stated, the objective of controlling unlawful government action cannot be divorced from the choice of remedy. Even in Australian jurisdictions that provide a simplified statutory remedy for judicial review, many requirements must still be met concerning the way that proceedings are commenced and the form of relief that is sought. Moreover, in all jurisdictions courts retain a discretion to refuse relief notwithstanding that a breach of a ground of review has been established. Pt D.4  It may be a straightforward matter for a court to make an order that effectively corrects unlawful government action. Thus, for example, a court may order that a deportation decision is invalid or that a licence was improperly revoked. But the choice of order can be more complex

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in other situations. It may not be a simple matter to unravel a decision that has already been implemented, such as a decision to disburse grant funds. Or the error detected by a court may taint only part of the decision, or have occurred at a preliminary stage of a more extended process, or be of a minor procedural nature. Another complicating factor is that parliament may have enacted a privative clause stating that an invalid decision is not to be set aside in judicial review proceedings. How courts respond to issues of this kind is taken up in Chapter 16.

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CHAPTER

The Consequences of Unlawful Decision-Making

THEORIES OF INVALIDITY — OPTIONS AND OUTCOMES 16.1.1  This chapter examines a difficult and puzzling aspect of administrative law. What is the consequence when it is established that a government decision-maker broke one of the criteria for lawful decision-making? In many cases the answer will be straightforward. If, for example, a transport board revoked a person’s driver’s licence, a declaration by a court that the revocation was invalid will mean that the licence subsists, and the person can continue to drive. Equally, if a court declares that a deportation order is unlawful, the plaintiff continues to remain in Australia pending any other government action. 16.1.2  The position is not as clear-cut in many other situations:

• If a court finds that an agency dealt unlawfully with a person’s employment application to the agency, should the court declare that the agency’s personnel decision is invalid? On the one hand, to take that course might negate the rights of the successful applicant, who is already occupying the position, after having resigned a position elsewhere. On the other hand, if the court declines to intervene, the unsuccessful applicant’s right to insist that the law is observed will be a hollow right.

• If legislation stipulates a procedural code to be followed in granting a development application, should a breach of any element of the code (for example, as to public notification of the application) spell invalidity for a subsequent decision to grant the application? What if the breach was not the fault of the applicant, but of the government agency responsible for processing the application? Does it matter whether the element of the code that was broken was insignificant or procedural in character? • Where a tribunal has conducted a lengthy hearing before making a decision, does an error committed at one point in the hearing taint the entire proceeding, requiring that a fresh proceeding be conducted, at considerable cost and delay?

• If a government agency unlawfully exercises a statutory authority to detain a person for interrogation or deportation, does it mean that the detainee was unlawfully detained and can institute a tort action for false imprisonment? Would the detainee be justified in seeking to escape during the period of detention? Or, as that dilemma suggests, can a decision be lawful for some purposes but not for others? 969

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•

Control of Government Action

If part of a subordinate legislative instrument is invalid, can a court sever that invalid portion, or does the whole instrument fall and with it any decision that relies on it?

The complexities raised by those examples serve to make one point clear: a single rule (or theory of invalidity) will not adequately resolve all problems. To postulate that a decision made in breach of a ground of review is ‘invalid’, ‘unlawful’, ‘null’ or ‘void’ will only serve to mask the difficult choices that lie behind those labels. 16.1.3  The case law in fact contains a great many rules, some of them conflicting and contradictory. There are, however, two contrasting principles that lie behind many of the decisions. One is the principle that a government agency must have proper legal authority for any action that it takes. The other is the doctrine of the separation of powers, which commits to a court the exclusive function of deciding authoritatively whether official action is unlawful, and implies that others must presume the regularity of official action until it is set aside by a court. To give primary weight to either principle will sometimes produce an outcome or set of rules that would be qualified or contradicted if primary weight was given to the other principle. The principles are nevertheless a starting point in developing theories of invalidity, and are adopted as a framework for analysis in this section. 16.1.4  Four other themes permeate the analysis in this chapter. One is that the consequence attaching to a legal error in decision-making can depend on whether the error is classified as a jurisdictional or a non-jurisdictional error. A second approach is to discern the intention of the legislature as to the consequence that should attach to a legal error. The process of statutory construction is sometimes undertaken to resolve whether an error was jurisdictional or non-jurisdictional, and at other times is undertaken as a self-contained exercise. A third and different approach is adopted if the legal error is raised in proceedings commenced under the Administrative Decisions ( Judicial Review) Act  1977 (Cth) (ADJR Act). The focus of analysis in ADJR Act proceedings is on whether there was a breach of a ground of review in s 5 of the Act (and not on whether any such breach was jurisdictional or non-jurisdictional), and if there was such a breach, the order the court should make in exercise of the broad discretion under s 16 of the Act. A fourth approach — that can yield different answers to the same problem of legal non-compliance — is to focus on the time at which the issue is raised before a court and the remedy sought in the proceedings, and in particular, whether the issue of non-compliance is raised before or after the relevant decision was made and implemented.

Absence of legal authority and the consequence of invalidity 16.1.5  A foundation principle of public law is that government decision-makers need legal authority to support action they undertake: see  8.2.1ff. The legal authority may be supplied either by legislation or executive power, though legislative authority is generally essential to support administrative orders that are coercive or punitive in nature, that impose a financial impost or that infringe established freedoms or immunities: see  8.3.28 and 8.3.42. If legal authority is absent, or if the decision-maker oversteps the limits of that authority, the logical consequence would be the invalidity of the resulting action. 16.1.6  There are many illustrations of that outcome. An action undertaken without proper legal authority will ordinarily be classified as ‘invalid’ or ‘unlawful’ — or by one of a number of 970

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other terms discussed in State of New South Wales v Kable 16.1.15C and Minister for Immigration and Multicultural Affairs v Bhardwaj 16.1.20C. An invalid administrative order may be incapable of providing a lawful foundation for subsequent administrative action. This point is illustrated by Cooper v Board of Works for the Wandsworth District 11.1.18C, in which a landowner brought a successful trespass action against a council that had demolished his house without according natural justice. Similarly, in two immigration cases the courts acknowledged that an action for damages may lie for wrongful apprehension or detention based on an invalid order: Park Oh Ho v Minister for Immigration and Ethnic Affairs 16.1.16, 17.8.6C; Goldie v Commonwealth 8.3.58C; see also R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245. By contrast, an action for damages would not lie for detention on the basis of a judicial order that is later set aside: Kable 16.1.15C. 16.1.7  The consequences of invalidity can be substantial, as explained in a report by the Commonwealth Ombudsman on 57 people who were wrongly detained by reason of an error in notifying them of a decision to refuse or cancel a visa. The department had not acted to implement a decision of a court that identified the error: Chan Ta Srey v  Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308. The Ombudsman report noted that as many as 35,000 other notices with the same error had been posted by the department, and commented: ‘This saga illustrates how judicial decisions can have far reaching and unforeseen consequences for government agencies’: Commonwealth Ombudsman, Report into Referred Immigration Cases: Notification Issues, Report No 9, 2007, at [2.11]. 16.1.8  Other legal effects of invalidity are illustrated by the facts of Bhardwaj 16.1.20C. The Immigration Review Tribunal, having made a decision with no legal effect because of a breach of natural justice, could proceed to make the decision afresh. Similarly, in Re Kretchmer and Repatriation Commission (1988) 16 ALD 206 (see 8.5.17) the Administrative Appeals Tribunal (AAT) could ignore an order purporting to dismiss an application that was earlier made by an improperly constituted tribunal, and thus proceed to hear the application. Another legal effect is that invalid action can usually be challenged either directly in a judicial review action, or collaterally in an action of a different kind, as illustrated by the trespass action in Cooper 11.1.18C. 16.1.9  However, there are limitations on those ground rules. The existence of the judicial discretion to refuse relief does not fit easily with a principle that invalid action leads inexorably to a void outcome. Nevertheless, Australian courts follow a practice of not refusing a remedy on discretionary grounds unless there are special reasons for doing so. Thus, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd 10.4.13C the High Court did not withhold relief even though the minister’s error in not considering a submission from Peko-Wallsend would not have occurred had it made that submission to the earlier inquiry which had reported to the minister. Peko’s failure to make a submission, Mason J noted, ‘revealed no more than mistake or carelessness in the presentation of their case’. Similarly, a person is entitled to relief following a breach of natural justice unless the court is satisfied that the breach could have no bearing on the outcome: see Re Refugee Review Tribunal; Ex parte Aala (Aala) 17.1.14C at 116–17. 16.1.10  The presumptive consequence of invalidity following wrongful executive action also means that courts do not ordinarily expect a party to utilise a statutory appeal process before resorting to judicial review or making a collateral assertion of invalidity. Partly that rests on a judicial reluctance to find that the legislature intended to deprive the citizen of access 971

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to the courts: see  8.3.46. Against that, s 10(2)(b)(ii) of the Administrative Decisions ( Judicial Review) Act 1977 (Cth) (ADJR Act) confers a discretion on a court to decline an application for review if adequate alternative provision is made by some other law for review by another court, tribunal, authority or person: see 17.9.5. 16.1.11  Another illustration of the emphasis given to the consequence of invalidity is that courts often do not give full effect to privative or ouster clauses that purport to prevent parties from challenging the validity of decisions by judicial review: see, for example, Plaintiff S157/2002 v  Commonwealth of Australia 16.3.17C, Bodruddaza v  Minister for Immigration and Multicultural Affairs 5.3.57C and Kirk v  Industrial Relations Commission of New South Wales 16.4.18C.

Separation of powers and the presumption of regularity 16.1.12  The separation of powers doctrine (see 5.2.13ff) stipulates that the task of deciding definitively whether administrative action is invalid is a judicial function to be exercised by a court. It follows that administrative action should be regarded as valid until it has been set aside by a court. As Lord Radcliffe put it in Smith v East Elloe Rural District Council [1956] AC 736, quoted in Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry 16.1.18C, an invalid order ‘is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead’. An attempted escape from custody would thus be illegal notwithstanding a subsequent finding of unlawful detention. More widely, an invalid administrative order may be treated as providing lawful justification at the relevant time for an action that would otherwise be tortious. A court may indeed make an order that invalidity operates only from the date of the court order, and not from the earlier date of the invalid decision: Jadwan Pty Ltd v Secretary, Department of Health and Aged Care 16.1.28.C. Equally, a statutory appeal can be brought against a decision that is alleged to be invalid (Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd 3.3.14C and Macksville and District Hospital v Mayze 16.1.17C), and the appeal can in fact ‘cure’ the legal defect in the decision: see  11.3.21. This principle, that a predictable and certain legal system rests on providing lawful recognition of orders that are yet to be set aside, reaches its highest in relation to judicial orders: Kable 16.1.15C. 16.1.13  A related illustration is that a court may find that the invalidity of an order cannot be asserted in collateral proceedings, but must be raised directly by judicial review or statutory appeal. Thus, in Hoffman-La Roche 16.1.18C it was held that the plaintiff could not ignore a prices order which it alleged to be invalid, but must institute judicial review proceedings to test that claim. A variation on that principle is that an invalid step taken by a court is usually treated as an error occurring within the jurisdiction of the court and can only be challenged by a statutory appeal (if such is available) or by certiorari for error of law on the face of the record. That is, the error cannot be challenged either collaterally or by a judicial review remedy other than certiorari: Craig v South Australia 16.4.17C. 16.1.14  A further illustration is that a declaration of invalidity made by a court only applies to the decision that was challenged and the declaration binds only the parties to the proceeding. The court ruled accordingly in Wattmaster Alco Pty Ltd v Button 16.1.30C that it would set aside an unlawful imposition of tariff duty as against the plaintiff alone, and that the government agency could insist on the validity of the decision as against other affected persons. (In practice, 972

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government agencies generally do apply a court ruling to other recipients of government benefits or licences who have not sought to challenge a decision.) A further option facing a court is to exercise its discretion to refuse relief if, for example, other innocent parties would be affected by a decision, a declaration of invalidity would be futile, or the plaintiff has acquiesced in the invalid action: Hoffman-La Roche 16.1.18C. 16.1.15C

State of New South Wales v Kable (2013) 252 CLR 118; 298 ALR 144 High Court of Australia

[The Community Prevention Act 1994 (NSW) (CP Act) authorised the Supreme Court of New South Wales to make an order for the continuing detention of Mr Kable. Justice Levine made an order that Mr Kable be detained in custody for a period of 6 months. After that order expired and Mr Kable was released from detention, the High Court held that the CP Act was invalid, with the consequence that Mr Kable’s continuing detention had been invalid: Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (Kable (No 1)). Mr Kable then commenced proceedings in the Supreme Court, seeking damages for false imprisonment. His claim was accepted by the New South Wales Court of Appeal, but dismissed on appeal by the High Court.] French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ: The majority in Kable (No 1) held that the CP Act was invalid because it required the Supreme Court to exercise judicial power and act institutionally as a court, but to perform a task that was inconsistent with the maintenance (which Ch III of the Constitution requires) of the Supreme Court’s institutional integrity. … Mr Kable submitted that the detention order of Levine J was void or was later avoided ab initio. In support of these submissions, he pointed to statements made in this Court (referring to earlier English decisions) distinguishing between what is ‘void’ or ‘voidable’ and what is an ‘irregularity’ or a ‘nullity’. It is necessary to exercise great care in using words like ‘void’, ‘voidable’, ‘irregularity’ and ‘nullity’ in connection with the issues that arise in this matter. Each word was used in Mr Kable’s argument in this appeal to state a conclusion about the legal effect of the order of Levine J. More often than not, each word was used in a way which expressly or impliedly sought to convey a meaning identified by its opposition to another word (void versus voidable, nullity versus irregularity). Used in that way, each of the words, void, voidable, nullity and irregularity, suggests that the whole of the relevant universe can be divided between two realms whose borders are sharply defined and completely closed. None is used in a way which admits (or readily appears to admit) of the possibility that the legal effect to be given to an act affected by some want of power may require a more elaborate description which takes account not only of who may complain about the want of power, but also of what remedy may be given in response to the complaint. The difficulties associated with using words like ‘void’ and ‘voidable’ in connection with administrative actions have long been recognised. Writing in 1967, H W R Wade said that: [T]here is no such thing as voidness in an absolute sense, for the whole question is, void against whom? It makes no sense to speak of an act being void unless there is some person to whom the law gives a remedy. If and when that remedy is taken away, what was void must be treated as valid, being now by law unchallengeable. It is

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fallacious to suppose that an act can be effective in law only if it has always had some element of validity from the beginning. However destitute of legitimacy at its birth, it is legitimated when the law refuses to assist anyone who wants to bastardise it. What cannot be disputed has to be accepted. Although directed to administrative actions, these statements may find some reflection in connection with the acts of courts and judges. If a curial decision cannot be disputed, it must be accepted. To the extent to which the orders of a superior court are valid until set aside, there seems little point in attempting to classify those orders as void or voidable. [Their Honours explained that the order made by Levine J under the CP Act was a judicial order.] The roots of the doctrine, that the orders of a superior court of record are valid until set aside even if made in excess of jurisdiction, lie in the nature of judicial power. … More fundamental considerations The conclusions reached in these reasons about the effect of the order made by Levine J accord with fundamental considerations about the operation of any developed legal system. There must come a point in any developed legal system where decisions made in the exercise of judicial power are given effect despite the particular decision later being set aside or reversed. That point may be marked in a number of ways. One way in which it is marked, in Australian law, is by treating the orders of a superior court of record as valid until set aside. Were this not so, the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose rights and liabilities are affected by the order. In this case, if the detention order made by Levine J was not effective until set aside, those apparently bound by the order were obliged to disobey it, lest they be held responsible for false imprisonment. On Mr Kable’s argument, the order was without legal effect and should not have been obeyed. The decision to disobey the order would have required both the individual gaoler and the Executive Government of New South Wales to predict whether this Court would accept what were then novel constitutional arguments. More fundamentally, as the legal philosopher Hans Kelsen wrote, ‘[a] status where everybody is authorised to declare every norm, that is to say, everything which presents itself as a norm, as nul, is almost a status of anarchy’. Finally, it will be recalled that Mr Kable submitted that the effect of this Court’s orders in Kable (No 1) was to render the order of Levine J void ab initio. This Court did not declare the order made by Levine J to be void. As a judicial order of a superior court of record, the order of Levine J was valid until set aside. It was not ‘void ab initio’. Gageler J: [His Honour decided the case on the same basis as other justices, that Levine J’s order was a judicial order, and also commented:] [A] purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a ‘nullity’ in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or

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that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid.

16.1.16  The New South Wales Court of Appeal in Kable 16.1.15C had accepted Mr Kable’s claim for damages for false imprisonment, on the basis (reversed by the High Court) that Levine  J’s order was administrative in nature. In Park Oh Ho 17.8.6C the High Court had earlier accepted that detention on the basis of an invalid administrative order could ground an action for damages for wrongful imprisonment. The court had found that Mr  Park Oh Ho’s detention under the Migration Act 1958 (Cth) was void, because he was detained for an impermissible purpose — namely, to be a witness in a forthcoming proceeding rather than ‘pending deportation’ as required by the Act. The court acknowledged that this finding had a bearing on proceedings underway in the Supreme Court of New South Wales for damages for wrongful imprisonment: Mason CJ, Deane, Toohey, Gaudron and McHugh JJ: [The effect of this] conclusion that the deportation orders were vitiated by an impermissible purpose was that the making of the orders and the subsequent detention of the appellants constituted an unlawful abuse of deportation procedures. … [E]ach of the appellants was entitled to a declaratory order that his detention was unlawful in addition to an order formally quashing the deportation order on which that detention was based. … The effect of declaratory relief will be to resolve finally, as between the appellants and the Minister, the question whether the appellants’ detention in custody during the relevant period was unlawful. It will not conclude as against the Minister the question of the Minister’s responsibility for that unlawful detention.

The different status accorded to judicial and administrative decisions was explained in Eastman v R (2008) 166 FCR 579, in which the court rejected the applicant’s motion to re-open an earlier proceeding that confirmed his conviction for murder: Spender, Gray and Logan JJ: [T]he essence of judicial power, particularly the judicial power of the Commonwealth derived from Ch III of the Constitution, includes the making of determinations that are binding and conclusive … The final and binding effect of a judicial determination forms the basis of a number of principles. A judgment of a superior court of record is binding on the parties to the proceeding in which it is given. It cannot be ignored, or treated as a nullity, whatever defects there might be in it. Even if the judgment is beyond the jurisdiction of the court giving it, this does not deprive it of its binding effect, and it must be obeyed unless and until properly set aside, eg on appeal … In this respect, a judgment of a superior court differs from a decision of an administrative decision-maker, a decision not made in the exercise of judicial power. If the decision is the result of jurisdictional error on the part of the decision-maker, it is ‘properly regarded, in law, 975

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as no decision at all’. [Their Honours referred to Bhardwaj 16.1.20C at [51] (Gaudron and Gummow  JJ); and Plaintiff S157/2002 16.3.17C at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne  JJ).] Thus, if an administrative decision-maker discovers that there has been jurisdictional error (including an inadvertent denial of procedural fairness), the decision-maker may disregard the purported decision already made and proceed to perform the statutory function to make a decision. This was what occurred in Bhardwaj. By contrast, the principle that a judgment of a superior court is binding applies equally to the court itself, which cannot choose to ignore a judgment and proceed to decide the case again. Unless and until the judgment is set aside according to law, it remains binding, not only on the parties, but also on the court itself. The binding nature of judgments also underlies the principles that prevent the relitigation of controversies already litigated to a conclusion. The principle described by the Latin term res judicata prevents a second proceeding being brought where a judgment has been entered in a previous proceeding in relation to the same cause of action: Jackson v Goldsmith (1950) 81 CLR 446 at 466.

16.1.17C

Macksville and District Hospital v Mayze (1987) 10 NSWLR 708 New South Wales Court of Appeal

[Dr Mayze held an appointment as a medical practitioner entitled to practise at the hospital. The hospital revoked the appointment, in circumstances that were accepted as constituting a breach of natural justice. Dr Mayze appealed to the minister, pursuant to a statutory appeal procedure. Before the appeal was heard, and at a time when Dr Mayze’s term of appointment would have expired, he commenced proceedings against the hospital, claiming damages for the unlawful termination. The action succeeded.] Kirby P: [His Honour dissented on the damages claim, but discussed an argument that Dr Mayze could not appeal against a decision while at the same time alleging that it was void.] [T]he view has now been generally accepted, in this country at least, that a denial or breach of the obligations of natural justice renders the decision affected null and void. But if the decision of the Board in this case is to be so classified, the question is immediately posed as to whether the jurisdiction of the appellate tribunal may be invoked. That jurisdiction depends, by virtue of s 33H of the Act, upon the Board relevantly terminating the appointment of a person as a visiting practitioner. Prima facie, that means validly and effectively terminating the appointment. But if the decision of the Board is a nullity for all purposes, then there has been, in law, no such termination and thus there can be no appeal from it. This would appear to be the consequence of an absolute theory of nullity. By such a theory, a tainted ‘decision’ just never was. The inconvenience of this logical consequence of a doctrine of absolute nullity has been acknowledged in virtually every jurisdiction of the common law. In Canada, Beetz J observed in Harelkin v University of Regina [1979] 2 SCR 561 at 585 that ‘[a] purely conceptual view of absolute nullity … would … cause such inconvenient and impractical results [that it] cannot … be theoretically sound’. Hutley JA in ‘The Cult of Nullification in English Law’ (1978) 52 ALJ 8 at 11 drew attention to a ‘counter principle’, in competition with the principle of total voidness. This he described as the ‘principle of legitimacy’. By this rule ‘whatever is done by a public officer in

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purported execution of his office cannot be collaterally attacked, even though his appointment is wholly invalid’. His Honour described (at 12) treating departure from natural justice as going to jurisdiction (and thereby rendering the decision concerned void) as a ‘strait-jacket’ which the courts had imposed upon themselves and from which it was desirable to escape. He called for a ‘type of hybrid’ which, whilst ‘an anathema to purists’ would ensure that courts could continue to control administrative acts by the doctrine that the principles of natural justice must be obeyed whilst recognising that, to be effective, the doctrine ‘depends in part upon the limitation of the operation of declarations of total avoidance’ … The attempt by the courts to reconcile the competing policies at stake here (namely the observance of the purity of absolute voidness of decisions made without jurisdiction and the necessity to recognise the decision as valid for some practical purposes, including relief) has led to a number of verbal distinctions of varying degrees of persuasiveness. So far as Australia is concerned, three authorities only need be cited. The first is the passage in the judgment of Lord Wilberforce, speaking for the Privy Council in Calvin v Carr [11.3.32C] … The case involved alleged breaches of natural justice by racing stewards in a disciplinary proceeding … As to the argument that there was no jurisdiction to enter upon an appeal from the tainted decision, Lord Wilberforce said: The plaintiff’s proposition is that it had … [no jurisdiction to hear the appeal] for the reason that the stewards’ ‘decision’ was … void. A condition precedent, it was said, of an appeal was the existence of a real, even though voidable, decision. This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships’ opinion would be, if it became necessary to fix upon one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal … [the] consequences … [of disqualification] remained in effect unless and until the stewards’ decision was challenged and, if so, had sufficient existence in law to justify an appeal. In Australia the problem has been discussed in Twist v Randwick Municipal Council [11.3.26C] by all members of the Court. Either in terms, or by inference, the doctrine of absolute voidness was rejected. For example, Mason J (at 116) said: … If the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have ‘cured’ a defect in natural justice or fairness which occurred at first instance. Certainly this view has been taken in a number of cases … The contrary view was taken [in others]. In this conflict of authority my preference is for the [for]mer approach taken by the Privy Council and the Supreme Court of Canada: first, because the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing — in

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appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal. Perhaps the strongest statement of a ‘relative’ theory of invalidity in the High Court of Australia is to be found in the judgment of Aickin J in Forbes v New South Wales Trotting Club Ltd [2.5.7C] at 277, where his Honour said: That which is done without compliance with applicable principles of natural justice, in circumstances where the relevant authority is obliged to comply with such principles, is not to be regarded as void ab initio so that what purports to be an act done is totally ineffective for all purposes. Such an act is valid and operative unless and until duly challenged but upon such challenge being upheld it is void, not merely from the time of a decision to that effect by a court, but from its inception. Thus, though it is merely voidable, when it is declared to be contrary to natural justice the consequence is that it is deemed to have been void ab initio. Pure principle tugs the mind, in these cases, to the absolute theory of voidness. Pragmatic considerations (such as those to which Mason J referred) pull the mind back from the unacceptable consequences of the absolute theory. This then requires a search for an alternative, acceptable theory. None is, to my mind, wholly satisfying. The weight of opinion applicable in this country certainly appears to favour what might be described as the ‘contingently void’ theory expressed by Lord Wilberforce and Mason J. That is the approach which I would apply in the present case. It has the additional attraction here of appearing to be consistent with (if not necessary for) the operation of the appeal provisions of the Act.

16.1.18C

Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 Court of Appeal and House of Lords

[The Monopolies Commission made a finding that Hoffman-La Roche was charging excessive prices for two of its tranquillising drugs, Valium and Lithium. Pursuant to a procedure designated in the Monopolies Act 1965 (UK), parliament then approved an order setting a maximum price. Hoffman-La Roche threatened to ignore the order, on the basis that the commission’s finding was invalid for the reason that the commission had breached natural justice. The Court of Appeal and the House of Lords were prepared to grant the secretary an injunction to enforce the order.] Lord Denning MR (in the Court of Appeal): I will assume for present purposes that the Monopolies Commission did act contrary to the rules of natural justice though I would not wish to imply that it was in fact the case. Mr Yorke says that their report would be void … I have always understood the word ‘void’, to mean that the transaction in question is absolutely void — a nullity incapable of any legal consequences — not only bad but incurably bad — so much so that all the world can ignore it and that nothing can be founded on it. … If the word ‘void’ is used in that sense, the report of the Monopolies Commission was certainly not void. A failure to observe the rules of natural justice does not render a decision or order or report absolutely void in the sense that it is a nullity. The legal consequences

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are best told by recounting the remedies available in respect of it. A person who has been unfairly treated (by reason of the breach of natural justice) can go to the courts and ask for the decision or order or report, or whatever it is, to be quashed, or for a declaration that it is invalid, that it has not and never has had any effect as against him. But it is a personal remedy, personal to him. If he does not choose himself to query it and seek a remedy, no one else can do so. … But it is within the discretion of the court whether to grant him such a remedy or not. He may be debarred from relief if he has acquiesced in the invalidity or has waived it. If he does not come with due diligence and ask for it to be set aside, he may be sent away with nothing. … If his conduct has been disgraceful and he has in fact suffered no injustice, he may be refused relief. … If it is a decision or order or report which affects many other persons besides him, the court may not think it right to declare it invalid at his instance alone. … Moreover, pending a decision by the courts as to its validity, other persons may be justified in acting on the footing that it is valid. If the decision or order or report is good on the face of it, and there is no good reason for supposing it to be invalid, other persons can treat it as valid. To it I would apply the words of Lord Radcliffe in Smith v East Elloe Rural District Council [1956] AC 736, 769–70: An order … is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. So here, the report of the Monopolies Commission, even if it was made in breach of the rules of natural justice, is still capable of legal consequence. The question, therefore, is of what legal consequences is it capable? In my opinion, when the Secretary of State received the report of the Monopolies Commission, he was entitled to treat it as valid and to act as he did on the faith of it. It was perfectly good on the face of it. Under the statute he was authorised to make an order if it appeared to him ‘on the facts found by the commission as stated in the report’ that the prices charged were such as ‘to operate, against the public interest’: see section 3(4)(c) of the Act of 1965. Applying that provision, the Secretary of State was entitled to go by the facts stated in the report. He was entitled to make the statutory order so as to compel the plaintiffs to reduce their prices. Likewise when the Secretary of State laid the order before Parliament, each House was entitled to treat the order as valid. [Buckley and Lawton LJJ delivered concurring judgments.] Lord Wilberforce (in the House of Lords): This phrase ‘void ab initio’ has engendered many learned distinctions and much confused thinking unnecessarily, in my opinion. There can be no doubt in the first place that an ultra vires act is simply void — see in confirmation Ridge v Baldwin [1964] AC 40. In truth when the court says that an act of administration is voidable or void but not ab initio this is simply a reflection of a conclusion, already reached on unexpressed grounds, that the court is not willing in casu to give compensation or other redress to the person who establishes the nullity. Underlying the use of the phrase in the present case, and I suspect underlying most of the reasoning in the Court of Appeal, is an unwillingness to accept that a subject should be indemnified for loss sustained by invalid administrative action. It is this which requires examination rather than some supposed visible quality of the order itself

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16.1.19  Bhardwaj 16.1.20C raised the issue of legal non-compliance (in that case by a tribunal) in a different setting. Two competing pressures — or principles — confronted the court (and the tribunal): on the one hand, a tribunal should presume that it is functus officio after making a decision and thus not be able to revisit its decision, even if thinks it may have been in error; and, on the other hand, a rehearing by the tribunal of a contestable decision would avoid the need for an aggrieved party to commence proceedings to set aside the tribunal’s decision to pave the way for a rehearing. The court in Bhardwaj approached the issue by asking whether the tribunal had made a jurisdictional error, and placed emphasis on discerning the intention of the legislature as to the legal effect of the decision the tribunal had purportedly made. 16.1.20C

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; 67 ALD 615 High Court of Australia

[Mr Bhardwaj had been studying in Australia on a student visa. The Department of Immigration asked him to provide reasons for his non-attendance at classes. When it received no response, his visa was cancelled. Mr Bhardwaj sought review of that decision. The Immigration Review Tribunal (the tribunal) advised him of the hearing date (15 September 1998). On 13 September, Mr Bhardwaj became ill. At around 6pm on 14 September, Mr Bhardwaj’s agent sent an urgent fax notifying the tribunal. By administrative error, the tribunal did not receive this fax, and affirmed the decision to cancel the visa and published its decision. When the mistake was uncovered, the tribunal conducted another review on 23 September. On 22 October, the visa cancellation was revoked. The minister appealed on the grounds that after the first tribunal decision, the tribunal could not go back and revisit its decision — it was functus officio. By a 6:1 majority (Kirby J dissenting) the High Court found that as the tribunal had not performed its functions in the first instance it could make a new decision.] Gleeson CJ: There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. In Ridge v Baldwin [1964] AC 40 at 79, Lord Reid said: I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid. That general proposition must yield to the legislation under which a decision-maker is acting. And much may depend upon the nature of the power that is being exercised and of the error that has been made … The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the

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exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh? [His Honour summarised the scheme of the Act that allowed a decision of the tribunal to be challenged on limited grounds and by following specified procedures.] I would accept that it is inconsistent with the scheme of the Act to conclude that the Tribunal, upon being persuaded that it has denied procedural fairness, at any time after it has made or purported to make a decision, and regardless of what a person affected by the decision has done or failed to do, may treat that decision as legally ineffective and consider afresh the matter that was originally before it … It follows that, at the time the decision was made, it was inaccurate to say that it was completely without legal effect. In the present case there was a denial of procedural fairness; but there was more to it than that. There was an error of the kind described as ‘error in fact’ in the context of proceedings by writ of error: the non-fulfilment or non-performance of a condition precedent to regularity of adjudication such as would ordinarily induce a tribunal ‘to stay its hand if it had knowledge, or to re-open its judgment had it the power’ (Gordon, ‘Certiorari and the Revival of Error in Fact’ (1926) 42 Law Quarterly Review 521 at 526). … When it learned of its own administrative error, the Tribunal recognised that it had not performed its functions and proceeded to do so. In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate’s decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act. Gaudron and Gummow JJ: The failure of the Tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the Tribunal did not conduct a review as required by the Act and the September decision was, thus, not a ‘decision on review’ for the purposes of ss 367 and 368 of the Act. To say that the September decision was not a ‘decision on review’ for the purposes of ss 367 and 368 of the Act is simply to say that it clearly involved a failure to exercise jurisdiction, and not merely jurisdictional error constituted by the denial of procedural fairness. … In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as ‘void’, ‘voidable’, ‘invalid’, ‘vitiated’ or, even, as ‘nullities’. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made … There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all (Ex parte Hebburn Ltd [7.2.14C] at 420 where Jordan CJ stated that constructive failure to exercise jurisdiction left ‘the jurisdiction in law constructively unexercised’). Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged …

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As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. Kirby J (dissenting): The Parliament has decided that migration decisions represent one field of the law’s operation where there should be a high measure of clarity and certainty. The application to a decision of the Tribunal, formally made in accordance with the Act, of a theory of legal nullification in a case such as the present is inadmissible. It is incompatible with the provisions and contemplation of the Act whose validity has not been challenged. It would be grossly inconvenient. It would also be destructive of good administration which I, at least, am prepared to assume was a purpose of the Parliament in providing for decisions in the Act in the manner that it did. Certainly, it need not be embraced to cure any irremediable injustice suffered by the respondent. Other remedies, perfectly effective, exist in law, some even now, to cure any such injustice. I dissent from the interpretation of the Act that effectively makes decisions of the Tribunal, to which so many statutory consequences attach, provisional. [McHugh J agreed with Gaudron and Gummow JJ that the tribunal’s decision was of no force or effect because of jurisdictional error on the part of the tribunal. Callinan J and Hayne J each held that the tribunal had failed to exercise a jurisdiction which it was bound to exercise.]

16.1.21  The decision in Bhardwaj 16.1.20C — that a decision affected by jurisdictional error can be remade — is an exception to the general rule that a decision once made is final. Another way this principle of finality is stated is that a decision-maker is functus officio when a decision is made: ‘once the statutory function is performed there is no further function or act for the person authorised under the statute to perform’: Jayasinghe v  Minister for Immigration and Ethnic Affairs (1997) 48 ALD 265 at 274 (Goldberg J). This is illustrated by the decision of the Victorian Court of Appeal in Kabourakis v Medical Practitioners Board of Victoria (2006) 25 VAR 449. The court held that a panel of the board could not, on receipt of new evidence, re-open an earlier finding that a doctor had not engaged in professional misconduct. There was at most an error of fact in the panel’s finding, rather than jurisdictional error. Accordingly, the doctor ‘was entitled to believe, quite properly, that once the finding of the panel was published, together with comprehensive reasons, the matter had reached certainty and finality’: at [5] (Warren CJ). Furthermore, ‘a statutory tribunal cannot revisit its own decision simply because it has changed its mind or recognises that it has made an error within jurisdiction’: at [48] (Nettle JA). However, until its decision is final, a tribunal is not functus, as illustrated by Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25. The Federal Court held that the Refugee Review Tribunal could revise a decision after receiving a fax providing further information, as a decision the tribunal member had sent to the Registry had not yet been communicated to the parties. The decision was not beyond recall, as Logan J noted: [40] The intellectual process in undertaking the core function of review is not an end in itself. The decision and reasons which are the result of that intellectual process must be made known to the persons interested. Those persons are the applicant for the review and the Secretary. 982

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It is only when the decision of the RRT as constituted by the particular member has either been pronounced orally or, if given in writing, sent to the applicant and to the Secretary in accordance with the notification obligation that the core function of review is complete. Before then, the member is entitled to have second (or more) thoughts perhaps on the basis of further reflection on all of the material hitherto to hand, perhaps stimulated by further material.

The fine line between a finalised and an ongoing decision is illustrated by a later decision in Minister for Immigration and Citizenship v  SZRNY (2013) 214 FCR 374. The tribunal’s decision had been notified to the minister and, initially, to an incorrect address for the applicant but later to the correct address. The Federal Court held by majority that the tribunal’s decision was not ‘finally determined’ until sent to the correct address and that it could be revised prior to that date. (Section 430(2) of the Migration Act 1958 (Cth) was subsequently amended to provide that a decision is taken to have been made at the time that the written decision is made.) 16.1.22  The court in Bhardwaj 16.1.20C intimated that the tribunal could self-initiate a review of its existing decision without the need for a judicial ruling that its decision was void for jurisdictional error. This was earlier recognised in Comptroller-General of Customs v Kawasaki Motors Pty Ltd (G405 of 1991) (1991) 32 FCR 243, holding that a government agency and the person affected by a decision can agree to set aside an invalid decision: Hill and Heerey JJ: Ordinarily a person adversely affected by an administrative order which the decision-maker subsequently accepts has not been validly made would be only too ready to agree that the order should be treated as void … It would in our opinion be strange if an administrative order remained valid until set aside by an order of a court even though the decision-maker did not seek to uphold the order. Courts have long recognised the rule of policy that there is a public interest in the avoidance of litigation and the termination of litigation by agreement when it has commenced.

16.1.23  If the parties can agree to set aside a decision, there is considerable flexibility available to them to agree that a decision is void, provided their agreement does not affect the rights of a third party. Indeed, Beaumont J in Kawasaki stated the principle more broadly: ‘[W]here it appears to a decision-maker that his or her decision has proceeded upon a wrong factual basis or has acted in excess of power, it is appropriate, proper and necessary that the decision-maker withdraw his or her decision’: at 27. In other circumstances, too, it is possible for a decision to be remade without the need for agreement between the parties that there was a jurisdictional error. For example, it is accepted that a re-hearing initiated by a decision-maker can cure a breach of natural justice: Ridge v Baldwin 11.1.19C. Some statutes confer an explicit power to remake a decision; for example, s 85-4(1) of the Aged Care Act 1997 (Cth). 16.1.24  An unresolved question is whether s 33 of the Acts Interpretation Act 1901 (Cth) confers a broader power to remake a decision: (1) Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires. … (3) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be 983

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construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Section 33 is usually construed narrowly, such that s 33(1) is read as reversing the common law presumption that a power once exercised is spent, and that s  33(3) achieves a similar result in relation to the making and remaking of legislative and administrative instruments. Section 33(1) is discussed in Minister for Immigration and Multicultural and Indigenous Affairs v Watson (2005) 145 FCR 542, which held that s 33(1) did not enable the re-exercise of a power in the Migration Act 1958 (Cth) to cancel a visa, that is, to reissue the visa. Section 33(3) is discussed in Flaherty v  Secretary, Department of Health and Ageing (2010) 184 FCR 564; [2010] FCAFC 67, which held that s 33(3) did not apply to a decision to cancel an approval to dispense pharmaceutical benefits. Whether s 33(1) and (3) were relevant was adverted to but not resolved in Bhardwaj 16.1.20C. 16.1.25  The ability of the tribunal in Bhardwaj 16.1.20C to remake its decision worked to the advantage of a person seeking a favourable government decision. It can equally work to the disadvantage of a person, as illustrated by Re Palmer and Defence Force Retirement and Benefit Authority (2004) 85 ALD 148. The authority reconsidered a decision it had made five years earlier to grant a spouse pension to the applicant. The authority considered that the earlier decision was in error, because the parties had been separated at the relevant time. The AAT held that the authority was not functus officio; its earlier decision ‘was tainted by jurisdictional error in the nature of an error of fact’: at 163. 16.1.26  The decision in Bhardwaj 16.1.20C can raise practical problems that were not fully addressed in the decision (though alluded to by Kirby J). On its face, Bhardwaj meant that any person dissatisfied by an adverse decision can approach the decision-maker or tribunal to have a decision re-opened. The issues that this raises for a tribunal were commented on in Re  Michael and Secretary, Department of Employment, Science and Training 16.1.27C and Jadwan 16.1.28C. 16.1.27C

Re Michael and Secretary, Department of Employment, Science and Training (2006) 90 ALD 457 Administrative Appeals Tribunal

[An application was made by the widow of a deceased veteran to the AAT to reconsider an earlier decision of the tribunal denying him a benefit. The tribunal observed that it should take the course adopted in Bhardwaj 16.1.20C only in a clear case.] President Downes J: Bhardwaj was a simple, and perhaps obvious case. An administrative error resulted in the person constituting the tribunal being unaware of an application for an adjournment. The matter proceeded without consideration of the application and in the absence of the applicant. When the error was discovered it is not surprising that the matter was relisted and considered afresh. These were the facts which the High Court was asked to consider. The Court did not address the question of when it is appropriate for a Tribunal to reconsider a matter. There are problems of substance as well as practical problems in a tribunal reconsidering its own decision. The original decision contains its own assertion, express or implied, that it is

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given within jurisdiction. How can the same tribunal be subsequently reconstituted with power to determine that the first assertion is wrong? How are such applications to be dealt with in practice? A fresh application for review seems inappropriate because the argument is that the original application is on foot and has not been dealt with. On the face of the Tribunal’s record, however, the application has been dealt with and the tribunal is functus officio. The practical problems are obvious. Does every application for reconsideration have to be heard? Should such an application be heard by the tribunal as originally constituted or by a differently constituted tribunal? In the latter case, is it appropriate for the tribunal to follow the earlier decision, in comity? Should every complaint made by a disappointed party be treated as an application for reconsideration under Bhardwaj? … It follows that, except in the clearest case, the making of a second decision by a tribunal will only lead to uncertainty of result. This is, at the least, a sound reason for a tribunal to act with extreme caution before reconsidering a matter which has already been decided … It seems to me that because of the substantive and practical problems I have adverted to it will very rarely be ‘wise’ for a tribunal to reconsider its own decisions … I conclude that it will only be appropriate for tribunal decisions to be reconsidered pursuant to the Bhardwaj principle when an impugned decision was obviously wrong and when the cause of the error is some administrative or similar mistake. In all but the rarest of cases, tribunal decisions must be treated as final and subject only to reconsideration for error of law on appeal.

16.1.28C

Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1; 204 ALR 55 Federal Court of Australia (Full Court)

[In earlier proceedings the Full Court of the Federal Court held that a decision by a delegate of the minister to revoke Jadwan’s approval to provide subsidised places for nursing home care under the Aged Care Act 1997 (Cth) was invalid. The reason was that the revocation decision was based on the recommendation of a Standards Review Panel that was invalidly constituted. Its recommendation was therefore an irrelevant consideration. In the present proceedings Jadwan sought a declaration that the revocation decision was invalid from the date it was made, rather than the later date of the Full Court’s order. The Full Federal Court in the present proceedings declined to make a declaration in those terms.] Gray and Downes JJ: [T]he judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the [Immigration Review Tribunal] force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function. All six judges who formed the majority did so on that basis. Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition. Kirby J in his dissenting judgment clearly did not. Gaudron and Gummow JJ did not explain in detail the consequences of the proposition that a decision has no legal effect. They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another. Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an

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administrative decision if no challenge to its validity is ever made, or if any challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party. Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the Court has declined to grant relief in relation to the decision by reason of discretionary considerations. The facts of Bhardwaj did not call for pronouncement upon these issues. The IRT had itself chosen to ignore its previous decision. The validity of that decision was in issue in the very proceeding with which the High Court was dealing. … In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. [Their Honours held that the decision to revoke Jadwan’s nursing home approval should operate from the date of the earlier Full Court decision. This was based on three considerations. First, given that the court ‘was exercising jurisdiction under the ADJR Act, it was unnecessary for that Full Court to determine whether the error was jurisdictional or not. The grounds specified in s 5 of the ADJR Act, upon which the court may make orders in respect of administrative decisions, are not expressed in terms of jurisdictional error. At least in some cases, those grounds include errors that are not necessarily described as jurisdictional errors.’: at 17. Second, it was not obvious that the revocation decision of the delegate involved a jurisdictional error. ‘There is no suggestion that the minister’s delegate failed to understand the task to be performed. There is every reason to suppose that an error in giving too much weight to evidence, because of ignorance as to the true status of the persons providing that evidence, would have been regarded as something less than jurisdictional error.’: at 17 Third, it was open to the earlier Full Court under s 16 of the ADJR Act to set aside the revocation decision from a date earlier than the Full Court decision, but the court (for reasons unexpressed) had not chosen to do so, apparently deciding to leave the revocation decision in effect until the date of the Full Court decision. Their Honours continued:] If it were open to this court to look afresh at the effect of the decision of the minister’s delegate, the proper conclusion is that the decision could not be ignored for all purposes. Nothing in the scheme of the National Health Act at the time required that that be done … Given that scheme, there was nothing about the National Health Act that suggested a legislative intention that a decision revoking approval pursuant to s 44(1) should have no effect if the decision-maker wrongly took into account evidence provided by a panel that had no authority under the legislation. Kenny J: [Her Honour reached the same conclusion, observing that it would be erroneous to resolve the issue by reference to the common law concept of jurisdictional error.] [T]he ADJR Act does not incorporate the common law distinction between jurisdictional and nonjurisdictional errors. The grounds of review specified in s 5 of the ADJR Act are not expressed in terms of jurisdictional error. Some of these grounds may include errors that would not be jurisdictional errors in the common law sense. [Her Honour referred also to the flexibility that s 16 of the ADJR Act gave the court as to the order to be made.]

16.1.29  A distinguishing feature of the judicial review scheme established by the ADJR Act is s 16, which confers a broad power upon the Federal Court to make an appropriate order of review. The flexibility that s 16 offers the court is noted in Wattmaster 16.1.30C (dealing with 986

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the date from which an invalid decision could be set aside), Jadwan 16.1.28C (concerning choice of a date of operation of a court order) and Park Oh Ho 16.1.16 and 17.8.6C (as to the associated orders a court can make to resolve the dispute between the parties and avoid unnecessary relitigation of issues). 16.1.30C

Wattmaster Alco Pty Ltd v Button (1986) 13 FCR 253; 70 ALR 330; 12 ALD 151 Federal Court of Australia

[In earlier proceedings brought by Wattmaster under the ADJR Act, Pincus J held that a declaration made by the minister, Senator Button, under the Customs Tariff (Anti-Dumping) Act 1975 (Cth) was invalid. Wattmaster had paid dumping duty under that declaration. Pincus J determined that his order would take effect from the date on which it was made, which was 17 months after the date on which the declaration was made by Senator Button. An appeal was brought against that decision. The Federal Court upheld the appeal and decided that the order should operate from the date of the minister’s declaration. In the course of the judgment the court considered the effect of s 16(1) the ADJR Act which stated: On application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders: (a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Court specifies … (c) an order declaring the rights of the parties in respect of any matter to which the decision relates.] Sheppard and Wilcox JJ (with whom Fox J agreed): Section 16(1) of the Administrative Decisions (Judicial Review) Act 1977 gives to the Court a wide discretion as to the orders appropriate to be made … The words ‘with effect from the date of the order or from such earlier or later date as the Court specifies’, in para (a), are, in our opinion, intended to do no more than to indicate that the Court has a choice from all the available possibilities: the date of the order, an earlier date or a later date. … Having in mind what is involved in ‘setting aside’ or ‘quashing’ … it may, at first sight, seem strange to speak of setting at nought a decision as at a particular date. However, it is consonant with the general scope and purpose of the Act and its varied application that there may be cases in which a decision is to be set aside, and, according to ordinary understanding, to become a nullity, but in which the nullifying should nevertheless take effect from some later date. The provision of such an option provides greater flexibility than is available with a writ of certiorari, which quashes a decision ab initio … The processes of the Court when granting relief under the Administrative Decisions (Judicial Review) Act 1977 are very wide and considerations going to the date as at which an order is to take effect quite naturally fit the general scheme. In our opinion no presumption arises under s 16(1)(a) as to the appropriate date from which a decision should be quashed or set aside. The matter is left entirely to the discretion of the Court. Neither is there any onus upon any party to demonstrate a special reason for selecting a date other than the date of the order. It is for the Court, having regard to all relevant circumstances, to select amongst the alternatives the date which will best do justice as between the parties and any other affected persons. … [Their Honours referred to cases in which terms such as ‘void’, ‘voidable’ and ‘nullity’ were discussed.] In the end the label does not matter. A decision made in purported

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exercise of a statutory discretion, but which is affected by a relevant irregularity, will normally be treated as valid until successfully impugned by an appropriate plaintiff; but once the decision is held to be bad in law it will be treated as being invalid — at least insofar as substantive rights are concerned — as from the date upon which it was made. If the issue between the present parties had been resolved in proceedings of a different type, for example by proceedings for an injunction to restrain the Collector of Customs from demanding payment of the dumping duty, the effect of the finding [of invalidity] … would have been that the Minister’s declaration was never valid; so that any previous payments were made at a time when the declaration was without effect. If, in the present proceedings, the matter had been resolved by the making of a declaration pursuant to s 16(1)(c) of the Administrative Decisions (Judicial Review) Act 1977, a like result would have obtained. Desirably, procedural circumstances ought not to affect substantive rights. In cases where an applicant is concerned only with the future the point does not matter. But, where it does, it seems generally appropriate that the substantive effect of orders under s 16(1)(a) be consistent with that of those made in the grant of other forms of relief … As the matter is one of discretion it is undesirable to attempt to define the exceptions. It is enough for present purposes to say that no reason appears in this case why the effect of an order under s 16(1)(a) should differ from that of a declaration which might have been made under s 16(1)(c) or an injunction which might have been granted under s 39B of the Judiciary Act 1903. Counsel for the respondent supports the order made by Pincus J. He points out that the declaration made by the Minister was a general notice applying to all importers. It is appropriate, he says, that all importers be upon an equal footing: all bound by the declaration up to the date of the Court’s decision, none thereafter. This approach is superficially attractive but it seems to us to misunderstand the effect of an order under s 16(1)(a). As a matter of strict law, a finding that a statutory decision is invalid — at least where invalidity stems from a procedural defect — binds the decision-maker only as against the applicant in the particular proceedings … [T]he finding is binding only as between the original parties. Thus, although the decision is ‘set aside’ under s 16(1)(a) it is set aside only as against the applicant in the particular proceedings in which the order is made. Theoretically, it would be open to the decision-maker to continue to insist upon the validity of the decision as against all other affected persons; putting those other persons to the trouble of bringing their own proceedings for appropriate relief. Although the doctrine of precedent would be relevant in the subsequent proceedings, in respect of holdings of law, it is possible that different evidence could result in different findings of fact and, thus, a different result. Of course, considerations of fairness and economy weigh against decision-makers taking that course. They are usually willing to accept any ultimate decision of invalidity in the first litigation as definitively establishing the invalidity of the decision as against all affected persons. In the present case there is no evidence as to the position of any other importer; but the point is that there is no justification in law for the assumption that the date of the decision in the first proceedings has equal significance for all affected persons. Upon that approach, the appropriate date in respect of other parties could only be fixed by the inconvenient course of forcing them to institute their own proceedings. On the other hand, the common law position of invalidity from the outset puts all affected persons upon an equal footing, regardless of when — or, in cases where invalidity is conceded as against particular persons who have not instituted proceedings, whether — an action is brought.

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16.1.31  The court in Wattmaster 16.1.30C decided that the declaration of invalidity should operate from the date of the minister’s decision (cf Jadwan 16.1.28C holding that it should operate from the date of the court order). A  similar approach to that in Wattmaster was adopted by the Full Federal Court in Lansen v Minister for Environment and Heritage (2008) 174 FCR 14. The minister had granted approval for an open-cut mine and the diversion of the McArthur River, Northern Territory. That decision was challenged by native title claim groups, which voiced concern at the potential environmental impact of the river diversion on the land over which they had a claim interest. The court held that the approval was invalid, as the minister had failed to consider relevant matters specified in the Environment Protection and Bio-Diversity Conservation Act 1999 (Cth). The diversion of the river had by that stage been completed. Nevertheless, to vindicate the rights of the applicants, the court held that the minister’s approval should be set aside from the date on which it was made. The matter would be remitted to the minister for further consideration, on the assumption that restoration and remediation works would have to be undertaken if no valid approval was granted. As the court explained, its assistance was needed to bring about that result. Moore and Lander JJ: In Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 … Finkelstein  J spoke of an invalid administrative decision having operational effect because no one has sought to have it set aside or the Court has refused to declare it invalid for a discretionary reason … In other words, even though a decision infected by jurisdictional error was always of no legal effect, a person affected by the decision could not compel the decision-maker to so treat the decision without the Court’s declaration. In a practical sense, therefore, a person who claims that a decision has no legal effect will usually need the Court’s assistance to require the decision-maker to so treat the decision. But simply because the Court’s assistance is required does not make the decision any more effective. … If the Court in the exercise of its discretion refuses to issue the constitutional writs, that does not necessarily mean that the person affected by the impugned decision could not bring other proceedings to vindicate that person’s private law rights … It is a fact that a flawed decision will usually have a practical effect until the Court declares it to be a decision made in circumstances of jurisdictional error or quashes it.

16.1.32  Aronson has summarised the remedial flexibility of courts in the following way: First, retrospective nullification might be the usual consequence of a finding of jurisdictional error, but even in the usual case, not everything is undone. The court will try to fashion an order that undoes only the consequences that are harmful to the challenger, but even that must be both possible and appropriate. … Second, a court might refrain from making any order that either declares or treats a decision as a nullity, even though it has agreed with the applicant that the challenged decision was jurisdictionally flawed. If judicial review is refused because the challenger lacks standing to sue, and if no-one with standing wants to sue, the net result is that the flawed decision remains undisturbed. … The remedies might be refused because the applicant took so long to institute proceedings … because third parties had already acted in reliance upon the challenged decision … [or] it would have been more appropriate for the challenger to use statutory appeal mechanisms first. [M  Aronson, ‘Jurisdictional Error and Beyond’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context, Cambridge University Press, Melbourne, 2014, p 248]

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Justice Perram, writing extra-curially, gave a critical assessment of the assumptions underlying current jurisprudence, especially the emphasis on discerning legislative intention: [A]dministrative law should be focused on whether administrative action is lawful and, if it be concluded that it is not, that the courts should decide what the consequences of that unlawfulness are to be. We should abandon the fiction — of which Project Blue Sky Inc v Australian Broadcasting Authority [16.2.10C] is the exemplar — that the Parliament has told the courts what to do when unlawful administrative action is discovered — when it clearly has not — and instead develop jurisprudence directed to explaining why some unlawful action should be set aside whilst other unlawful action should be left in place. As an essential step in that process we ought to free ourselves from the notion that administrative action is ever invalid and dispense with its handmaiden, the concept of jurisdictional error, which gives rise to many more problems than it solves. [N  Perram, ‘Project Blue Sky and the Evolution of Consequences for Unlawful Administrative Action’ (2014) 21 Australian Journal of Administrative Law 62 at 63]

See also R Orr and R Briese, ‘Don’t think Twice? Can Administrative Decision Makers Change their Mind?’ (2002) 35 AIAL Forum 11; D Feldman, ‘Error of Law and Flawed Administrative Acts’ (2014) 73 Cambridge Law Journal 275.

BREACH OF ASSOCIATED STATUTORY REQUIREMENTS 16.2.1  There are often statutory steps to be observed or fulfilled in making a decision. For example, a government agency decision to grant development approval for a new building will be preceded by a host of statutory requirements: a development application must be lodged; it must be in a particular form and accompanied by specified plans; payment of an application fee will be required; the application will be publicised to allow for public comment; consultation may be necessary with other agencies; and the decision must be recorded in a certain form. What is the consequence if there is a breach of one of those associated statutory requirements — for example, the application fee was not paid, or the public notice was issued a day late? It is safe to assume that parliament expected each and every statutory requirement to be observed. But did parliament likewise intend that the validity of any development approval would be conditional on strict compliance with each and every statutory requirement? 16.2.2  Similar issues can arise in another form. Legislation may stipulate principles or objectives to be met whenever a decision is made. An example is the statutory provision considered in Project Blue Sky Inc v Australian Broadcasting Authority 16.2.10C, that a government agency was to perform its functions in a manner consistent with ‘any general policies of the Government’, ‘any directions given by the Minister’, and ‘Australia’s obligations under any’ international convention. Was compliance with those statutory provisions both required and a condition of validity of all decisions? 16.2.3  In addressing those questions it is necessary to distinguish two different points at which the question can arise: at a preliminary stage of the decision-making process in proceedings to prevent a decision being made; or in later proceedings to invalidate a decision on the basis that a preliminary statutory step was not observed. If proceedings are commenced before any substantive decision is made (for example, at the time that a development application is lodged but in a defective form), it is likely that a court would rule that compliance with the statutory 990

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condition was essential, and make an appropriate declaratory or injunctive order to enforce compliance with the statutory requirement. However, if the issue is raised after the development application is granted — after considerable time and resources have been expended on public hearings, consultation and analysis of the application — it is not as certain that a court would declare that the final decision was tainted by the earlier defect. This distinction is drawn in Project Blue Sky 16.2.10C and Australian Broadcasting Corporation v Redmore Pty Ltd (Redmore) 16.2.11C, both noting that legal compliance with a statutory provision may be necessary, yet breach will not necessarily result in the invalidity of a resulting decision. 16.2.4  The case law is mainly concerned with the second of those two questions, as to whether the validity of an action hinges on compliance with an associated statutory requirement. The issue has been approached and resolved in various ways. In Project Blue Sky 16.2.10C the court held that the ‘better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid’: at 390. The legislative purpose is to be ascertained by reference to factors such as the language of the statute, the subject matter, and the consequence for those affected of a finding of invalidity. For example, applying that test, it was held to have been the intention of the legislature that the execution of a search warrant would be invalid if there was a failure to provide the occupier of the premises with a full copy: Commissioner, Australian Federal Police v Oke (2007) 159 FCR 441. Similarly, in Commissioner of Taxation v  Futuris Corporation Ltd (2008) 237 CLR 146 (discussed at 16.3.7) the High Court accepted that it was the intention of the legislature that errors in the taxation assessment process would be reviewed by a statutory objection and appeal process, rather than by judicial review of the validity of an assessment. By contrast, it was not the intention of the legislature that a draft environmental plan would be invalid if there was a failure to comply with all the onerous requirements of the statute: McGovern v Ku-ring-gai Council (2008) 161 LGERA 170. 16.2.5  The court in Project Blue Sky 16.2.10C disapproved of a long-standing distinction between statutory requirements being either ‘mandatory’ or ‘directory’. Strict compliance was required with mandatory requirements; substantial compliance was required with directory requirements, though non-compliance was disregarded at times. Redmore 16.2.11C is an example of an earlier High Court decision that applied the mandatory/directory distinction: see also Scurr v Brisbane City Council (No 5) (1973) 133 CLR 242 (holding that public notification of a development application for a shopping centre was a mandatory requirement). Although the High Court disapproved of the mandatory/directory distinction in Project Blue Sky (later commenting that Project Blue Sky ‘changed the landscape’: Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 (see  16.3.7)), the distinction and the cases applying it continue to be influential. For example, in the situation discussed in 16.2.3, where the question of statutory compliance is raised directly and at a preliminary stage before any substantive decision is made, the only issue to be resolved is whether strict compliance with the statute is required. It may be premature and unnecessary at that stage to enquire whether the validity of a decision that is yet to be made will hinge on compliance with the statutory requirement. 16.2.6  Cases applying the mandatory/directory distinction have adverted to the same factors relied upon by the court in Project Blue Sky 16.2.10C — such as statutory language, subject matter, consequences, the nature of the requirement, and who is responsible for ensuring compliance. To that extent, the earlier case law remains illustrative and authoritative. For  example, in Montreal Street Railway Co v  Normandin [1917] AC 170 the factor of 991

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‘convenience and consequences’ weighed heavily in a decision by the Privy Council that a failure by an official to update jury lists did not cause subsequent criminal trials to be invalid: When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, although punishable, not affecting the validity of acts done.

Kutlu v Director of Professional Services Review 8.5.19C illustrates the competing influences that different factors can have. The Federal Court held that members were invalidly appointed to a Professional Services Review Committee, because the words ‘must consult’ and ‘before advising’ in the statute had a ‘rule-like quality’ and ‘imposed essential preliminaries or preconditions to the exercise of the minister’s power to appoint a person’: at [27]. The inconvenience flowing from invalidating both their appointment and the decisions they had made did not counteract the statutory language: Rares and Katzman JJ: The public inconvenience resulting from a finding of invalidity of the various impugned appointments is likely to be significant. However, the scale of both ministers’ failures to obey simple legislative commands to consult the AMA before making the appointments is not likely to have been a matter that the parliament anticipated. If the appointments were treated as valid, the unlawfulness of the ministers’ conduct in making them would attract no remedy. And, if that were so, the appointees would hold the offices to which the minister had unlawfully appointed them and they could not be prevented by injunction or other orders of a court from exercising the powers of those offices.

16.2.7  There are other ways the statutory non-compliance issue has been approached, of which three will be mentioned. First, procedural errors — particularly in the context of the proceedings of courts — are often treated as errors within jurisdiction rather than errors that go to the jurisdiction of the court: see  16.4.1ff. As such, the error can only be set aside by statutory appeal or by certiorari for error of law on the face of the record (see 16.4.4); the error cannot be set aside by judicial review generally, or by collateral action. Thus, in Posner v Collector for Inter-State Destitute Persons (Victoria) (1946) 74 CLR 461 the High Court held that a failure to serve upon Mr Posner a family maintenance order that a court had made against him was an error within jurisdiction; until the order was set aside properly, it could be enforced by a court on the application of the Collector. Justice Starke observed: Irregularities in procedure do not, it is clear, invalidate or make void orders within jurisdiction … [W]hat is procedure, and therefore, if wrong, matter of appeal only; and what is jurisdiction, and if wrongly asserted, matter for prohibition, is almost impossible to define in general language … [I]f the court of limited jurisdiction, in dealing with a matter over which it has jurisdiction, has fallen into an error of practice or of the law which it administers, this can only be set right by appeal, and affords no ground for prohibition. When, however, an Act of Parliament has imposed restrictions, as to the circumstances under which a court of limited jurisdiction is to act in matters otherwise within its jurisdiction, then, if the court of limited jurisdiction disregards the restrictions so imposed, and acts in violation of the statutory restrictions, the party aggrieved has a remedy by prohibition. 992

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16.2.8  Second, the ADJR Act has gone a step further than the common law, by providing that an order of review can be sought on the ground ‘that procedures that were required by law to be observed in connection with the making of the decision were not observed’: s 5(1)(b). That ground was applied in Our Town FM Pty Ltd v  Australian Broadcasting Tribunal (No  1) (1987) 13 ALD 740, in relation to the failure of the tribunal to comply adequately with a statutory requirement to prepare statements of reasons for decisions made under the broadcasting legislation. Notwithstanding that the requirement arose after the substantive decision was made to award a broadcasting licence to one applicant rather than another, the court held that the substantive decision was invalid by reason of the failure to comply with a ‘procedure required by law’ to be observed ‘in connection with’ the substantive decision, giving ‘in connection with’ a broad and flexible meaning: at 742, 743. By contrast, in Jadwan 16.1.28C the court rejected an argument that a breach of s 5(1)(b) of the ADJR Act occurred by reason that a panel that reported to a minister prior to a decision being made was improperly constituted; it was not a procedure required by law for the making of that decision. The potential scope of s 5(1)(b) is adverted to in dicta by some judges in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. 16.2.9  Third, legislation sometimes expressly spells out the consequence attaching to noncompliance with a statutory requirement. For example, s 15K(1) of the Legislation Act 2003 (Cth) provides that a legislative instrument is unenforceable if it is not registered as required by the Act. In contrast, the Acts Interpretation Act 1901 (Cth) provides: ‘Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient’: s 25C. A different example is s 75 of the Telecommunications (Interception and Access) Act 1979 (Cth) which provides that evidence obtained by telephone interception can still be used in a prosecution, notwithstanding a breach of the Act, but only if the breach was ‘a defect or irregularity (other than a substantial defect or irregularity)’ and ‘in all the circumstances, the irregularity should be disregarded’. 16.2.10C

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490 High Court of Australia

[Under the Broadcasting Services Act 1992 (Cth), the Australian Broadcasting Authority (ABA) was given functions of developing and monitoring codes of practice, and program standards, for broadcasting in Australia. Section 160 of the Act provided: The ABA is to perform its functions in a manner consistent with: (a) the objects of this Act and the regulatory policy described in section 4; and (b) any general policies of the Government notified by the Minister under section 161; and (c) any directions given by the Minister in accordance with this Act; and (d) Australia’s obligations under any convention to which Australia is a party or any agreement between Australia and a foreign country. The ABA implemented a ‘local content standard’, ensuring that television in Australia would have a certain minimum percentage of shows produced in Australia. Project Blue Sky, a New Zealand company, challenged the validity of a program standard on the basis that

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the ABA had not performed its functions consistently with Australia’s obligations under the Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations Trade Agreement, which provided that Australia and New Zealand were to give preferential treatment to each other’s trade in services in the respective markets. Specifically, the agreement stated that New Zealand producers would be treated in a manner no less favourable than Australian producers. The High Court held per curiam that the program standard was made in breach of s 160(d) of the Act. However, the majority held that the standard was not invalid; their Honours went no further than to make a declaration that the standard was unlawfully made. Brennan CJ dissented to the extent of holding that the standard was invalid.] McHugh, Gummow, Kirby and Hayne JJ: Does the failure to comply with s 160 mean that cl 9 of the Australian Content Standard is invalid? 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 can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to 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. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied …; there is not even a ranking of relevant factors or categories to give guidance on the issue. Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. … Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. … As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. [Their Honours referred to Redmore 16.2.11C.] However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been ‘substantial compliance’ with the provisions governing the exercise of the power (Scurr v Brisbane City Council (No 5) (1973) 133 CLR 242 at 255–56 [see 16.2.5]). But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 249 when discussing the statutory provision in that case: ‘substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not.’ In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood [1978] 1 NSWLR 20 at 23–4 in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ … and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid.

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The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. … That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years. … In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’ (Tasker v Fullwood [1978] 1 NSWLR 20 at 24). An act done in breach of s 160 is not invalid Section 160 proceeds on the hypothesis that the ABA has power to perform certain functions and directs that it ‘is to perform’ those functions ‘in a manner consistent with’ the four matters set out in the section … The fact that s 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. That indication is reinforced by the nature of the obligations imposed by s 160. Not every obligation imposed by the section has a rule-like quality which can be easily identified and applied. Thus, s 160 requires the functions of the ABA to be performed in a manner consistent with: the objects of the Act and the regulatory policy described in s 4; any general policies of the Government notified by the Minister under s 161; any directions given by the Minister in accordance with the Act. In particular situations, it is almost certain that there will be room for widely differing opinions as to whether or not a particular function has been carried out in accordance with these policies or general directions. When a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity (cf Broadbridge v Stammers (1987) 16 FCR 296 at 300). Furthermore, while the obligations of Australia under some international conventions and agreements are relatively clear, many international conventions and agreements are expressed in indeterminate language … as the result of compromises made between the contracting State parties. … Often their provisions are more aptly described as goals to be achieved rather than rules to be obeyed. The problems that might arise if the performance of any function of the ABA carried out in breach of Australia’s international obligations was invalid are compounded by Australia being a party to about 900 treaties … [Their Honours referred to Teoh 11.3.11ff.]. Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act. [Their Honours referred to Montreal Street Railway (see  16.2.6) at 175.] Having regard to the obligations imposed on the ABA by s 160, the likelihood of that body breaching its obligations under s 160 is far from fanciful, and, if acts done in breach of s 160 are invalid, it is likely to result in much inconvenience to those members of the public who have acted in reliance on the conduct of the ABA. Among the functions of the ABA, for example, are the allocation and renewal of licences (s 158(c)) and the design and administration of price-based systems for the allocation of commercial television and radio broadcasting licences (s 158(e)). It is hardly to be supposed

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that it was a purpose of the legislature that the validity of a licence allocated by the ABA should depend on whether or not a court ultimately ruled that the allocation of the licence was consistent with a general direction, policy or treaty obligation falling within the terms of s 160. … In many cases, licensees would have great difficulty in ascertaining whether the ABA was acting consistently with the obligations imposed by s 160. Expense, inconvenience and loss of investor confidence must be regarded as real possibilities if acts done in breach of s 160 are invalid. Because that is so, the best interpretation of s 160 is that, while it imposes a legal duty on the ABA, an act done in breach of its provisions is not invalid. In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision ‘may in particular cases be punishable’ (Simpson v Attorney-General (NZ) [1955] NZLR 271 at 281). That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.

16.2.11C

Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 456; 84 ALR 199 High Court of Australia

[The Australian Broadcasting Corporation (ABC) claimed that a tenancy agreement it had entered into with Redmore Pty Ltd was unenforceable as the ABC had not obtained the minister’s consent to the contract as required by s 70(1) of the Australian Broadcasting Corporation Act 1983 (Cth): (1) The Corporation shall not, without the approval of the Minister, enter into a contract under which the Corporation is to pay or receive an amount exceeding $500,000. The High Court by majority dismissed that argument and held that the agreement was enforceable.] Mason CJ, Deane and Gaudron JJ: The question for determination on the appeal is whether s 70(1) of the Act is … merely directory (to the ABC) in character or whether it operates to confine the actual powers of the ABC or to render illegal or unenforceable any contract of the type to which it refers which is entered into by the ABC otherwise than in accordance with its terms … [T]he question whether s 70(1) should be construed as confining power or as directory of the manner of its exercise is a finely balanced one. The words of the sub-section are not compelling either way. In strict terms, they are directory. They speak of the exercise (‘shall not … enter into a contract’), rather than the existence, of power. Their direction is to the ABC and not to an innocent outsider having contractual dealings with the ABC, who would be likely to act on the basis that the ABC would have complied with any statutory duty to obtain the approval of its responsible Minister before purporting to enter into a contract of a kind which required such approval. In that regard, it is relevant to note that the sub-section

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neither requires that the Minister’s approval be in writing nor establishes any procedure by which a person dealing with the ABC can ascertain whether the Minister has given his approval to the precise terms of a particular contract. Nor do the words of s 70(1) either spell out the effect on third parties of a failure by the ABC to observe its statutory duty to obtain the Minister’s prior approval or speak in terms which would be appropriate to refer to a purported or ineffective entry into a contract. If the statutory direction to the ABC not to enter into a contract of the specified kind without the approval of the Minister has the effect either of confining the actual powers of the ABC or of invalidating any contract with an innocent outsider entered into otherwise than in compliance with its terms, it must be by reason of a legislative intent to be discerned in the words of the sub-section construed in the context of the Act as a whole. [Their Honours examined the Act, noting that the Part of the Act containing s 70 (Pt VI) did not contain any express reference to the grant or confinement of powers, but was plainly concerned with the provision of funds and the institution of a system of government controls, checks and supervision of the expenditure of funds by the ABC.] It can therefore be seen that both the general structure of the Act and the context provided by the other provisions of Pt VI … support a construction of s 70(1) which sees the sub-section as directory (to the ABC) about the manner of exercise of powers conferred and confined by other provisions and as not concerned to confine the actual content of those powers or to invalidate or render unenforceable contracts with innocent outsiders made in the exercise of them. … It follows from the foregoing that the preferable construction of s 70(1) is that [it is not] a pious admonition. The sub-section imposes a statutory duty upon the ABC and its officers which the ABC Board is required to enforce (the Act, s 8). Failure to observe the directive of s 70(1) could, depending upon the circumstances, constitute misconduct for the purposes of disciplinary proceedings under Pt V Div 4 of the Act (see s 64(10)(f)(i)) and would, at the least, call for a report by the Auditor-General to the responsible Minister whose approval to the relevant contract had not been obtained. On that construction of s 70(1), the failure of the ABC to obtain the prior approval of the Minister did not have the effect that the making of the contract was ultra vires the ABC. Nor did it have the effect that the contract was illegal or unenforceable. That being so, the courts below were correct in resolving the remaining issue in the appeal against the ABC. [Brennan and Dawson JJ dissented in a joint judgment, emphasising that the purpose of s 70(1) was the protection of public funds.]

PROTECTION OF AN INVALIDITY BY PARLIAMENT — PRIVATIVE/ OUSTER/PRECLUSION CLAUSES 16.3.1  A privative (ouster/preclusion) clause in legislation is one which attempts to prevent a court pronouncing on the lawfulness of administrative action taken under a statute. Not surprisingly, courts have resisted any such attempt by parliament to limit judicial oversight, by giving a restrictive interpretation to privative clauses. Although enactment of privative clauses has waxed and waned over the lifetime of administrative law in Australia, there was a renewed reliance on this device in the context of attempts to restrict judicial review of migration decisions and industrial relations rulings. 997

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Control of Government Action

16.3.2  Privative clauses take numerous forms. The Administrative Review Council (ARC) identified the following varieties of legislative limitations on judicial review (in The Scope of Judicial Review, Discussion Paper, Commonwealth of Australia, Canberra, 2003, App 2): • clauses that seek to ‘make orders, awards or other determinations final’ (p 160);

• clauses that forbid ‘the courts from granting the remedies traditionally used by them for judicial review, such as certiorari, prohibition or mandamus’ (p 160); • clauses that ‘expressly’ state that ‘judicial review lies only on stipulated grounds’ (p 160);

• clauses that prescribe time limits ‘beyond which there can be no judicial review’ (p 161); • clauses that give ‘a decision-making body very wide jurisdiction’ (p 162);

• clauses that provide ‘protection for a body’s decisions or purported decisions, or providing that anything that the body does shall have effect as if enacted by parliament’ (p 163); • clauses of an evidentiary nature deeming valid all things done or results achieved ‘on production of a certificate, or other formal proof of proper form’ (p 164);

• clauses that provide for a ‘self-executing decision, that is, a decision where the “decision” follows automatically’ (p 165); and • clauses that amend ‘the range and scope of judicial review’ (p 166).

The list gives some indication of the range of legislative devices which come under the general label of ‘privative clause’ and of the menu available to parliamentary drafters when called on to limit or oust review. The list also suggests that it is not unusual for parliaments to include privative or ouster clauses of one variety or another in current legislation. The practice, however, is not new. As the Kerr Committee report noted, ‘[s]tatutory provisions of this kind have been frequently enacted in Australia in connection with the jurisdiction given to inferior courts, industrial courts and tribunals and other tribunals’: Report of the Commonwealth Administrative Review Committee, AGPS, Canberra, 1971, at [54]. 16.3.3  The difficulty with such clauses is that ‘a statutory provision of this kind confronts the court with the necessity of resolving and reconciling two expressions of intention which appear to be inconsistent, the creation of a tribunal, but with limited jurisdiction and power only, and a declaration that its proceedings and orders are not to be the subject of challenge’: Kerr Committee report at [55]. 16.3.4  In undertaking the reconciliation task a court will be influenced by a number of important principles:

• Parliamentary supremacy: ‘[P]arliamentary supremacy requires obedience to the clearly expressed wish of the legislature’: Osmond v Public Service Board of New South Wales 16.3.14C. • Preserving access to the courts: ‘It is a well recognised principle that the subject’s right of recourse to the courts is not to be taken away except by clear words’ (Hockey v  Yelland 16.3.13C at 130); and ‘courts must not too readily surrender the beneficial facility of judicial review which is the ultimate machinery to protect the rule of law’: Osmond at 451.

• High Court’s original jurisdiction: ‘The jurisdiction of the [High] Court conferred by s 75(v) of the Constitution to grant mandamus and prohibition directed to an officer of the Commonwealth cannot be ousted by a privative clause’ (R v Coldham; Ex parte Australian Workers’ Union (Coldham) 16.3.16C at 418); and: ‘The Parliament cannot abrogate or curtail 998

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the Court’s constitutional function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution’: Plaintiff S157/2002 16.3.17C at 483. 16.3.5  As those three principles suggest, there is a tension inherent in any privative clause. A classic test for resolving that tension was that a privative clause would be effective to insulate a decision from review provided the decision was a ‘bona fide attempt on the part of the inferior tribunal to exercise its power, that it related to the subject matter of the legislation creating the tribunal and conferring powers upon it and that the decision was reasonably capable of reference to those powers’: Kerr Committee report at [55]. The formulation is taken from the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (Hickman), and has been repeated numerous times; for example, in the judgment of Mason  ACJ and Brennan J in Coldham 16.3.16C. More recently, this classic view has given way to a test based on whether an error is jurisdictional. If not, a privative clause will be effective: Kirk 16.4.18C. Although these principles are expressed to be applied to courts and tribunals, they apply equally to the decision-making powers of officials, as Gleeson CJ noted in Plaintiff S157/2002 16.3.17C at 484. 16.3.6  There was a rebuff to privative clauses in the United Kingdom Tribunals and Inquiries Act 1958, s 11 of which, with some exceptions, denied effect to any privative clause enacted prior to the passage of the Act. This example, on the recommendation of the Kerr Committee, was followed in Australia for privative clauses in federal legislation. Section 4 of the ADJR Act declared that privative clauses in existence in 1980 (when the ADJR Act commenced) did not restrict judicial review under the ADJR Act. That move led to minimal use of privative clauses in Commonwealth (but not state or territory) legislation for a number of years. In more recent times, however, interest in the use of such clauses at the federal level reawakened — as the ARC’s discussion paper of 2003, The Scope of Judicial Review, illustrated — only to wane after Plaintiff S157/2002 16.3.17C. 16.3.7  The role of a court faced with a privative clause that purports to exclude review of an administrative decision is to construe the clause in the context of its legislative framework. However, there are some general presumptions that will influence that process. These principles are illustrated in relation to the most commonly encountered forms of privative clause: • No appeal: Clauses which say that a decision is ‘final and conclusive’, or not appealable, are generally construed as meaning simply that there is no right of appeal; that is, such a clause will not be effective to oust judicial review by a court: Hockey 16.3.13C; Kirk 16.4.18C.

• Denial of a specific remedy: A clause which denies a specific remedy, but not judicial review generally, will usually be given effect by a court. Certiorari is the remedy that has most commonly been denied, because it was the remedy used most frequently to quash the proceedings of inferior courts and tribunals. Thus, the court was prepared in Houssein v Department of Industrial Relations and Technology 16.3.15C to give effect to a clause which stated ‘[n]o writ of prohibition or certiorari shall lie …’ and even to a clause which employed language associated with the writ of certiorari, namely, a decision shall not ‘be quashed or called in question in any court of law’. The court expressly excluded from its findings the effect of a breach amounting to a jurisdictional error. Similarly, in Probuild Constructions (Aust) Pty Ltd v  Shade Systems Ltd 16.3.19C the court found a clear legislative intent to exclude the jurisdiction of the Supreme Court to grant certiorari to quash an adjudicator’s determination for non-jurisdictional error of law on the face of the record. 999

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Control of Government Action

• Denial of judicial review: As a general proposition, a privative clause will not be effective to exclude judicial review generally, particularly of jurisdictional errors. One reason is that privative clauses that purport to exclude the supervisory jurisdiction of superior courts to grant relief for jurisdictional error contravene the provisions of the Constitution: see 16.3.8ff. Another reason is that privative clauses that are framed in general terms are construed strictly, and may not preclude the particular proceeding in question. For example, in the seminal case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 it was held that a clause precluding judicial review of a ‘decision’ did not protect a decision which was a nullity since it would, for example, protect a forged or fraudulent decision. On that reading, the privative clause in Anisminic was effective only in relation to inconsequential errors of the kind described as errors of law within jurisdiction: see  16.4.1ff. A similar approach was adopted to the meaning of ‘privative clause decision’ in Plaintiff S157/2002 16.3.17C and Kirk 16.3.18C. Following Plaintiff S157/2002, the privative clause in s 486A of the Migration Act 1958 (Cth) was extended to protect not only decisions, but ‘purported’ decisions, which was defined to mean ‘a decision purportedly made, proposed to be made, or required to be made, under this Act … that would be a … decision if there were not: (a) a failure to exercise jurisdiction; or (b) an excess of jurisdiction; in the making of the decision’. Both Plaintiff S157/2002 and Bodruddaza 5.3.57C indicate that the addition of the word ‘purported’ was for precautionary reasons only and would not change the outcome. Two other examples of strict construction of private clauses are: Osmond 16.3.14C, holding by majority that a clause that precluded review of personnel appointment decisions did not prevent the court from pronouncing on whether reasons should have been given in relation to such a decision; and Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129, holding by majority that a clause that precluded review of investigations did not preclude review of a refusal to investigate. Nevertheless, the parliament may ‘determine the content of the law to be obeyed’ (Plaintiff S157/2002 at 482 (Gleeson  CJ)), and in that way constrain the opportunity for judicial review. Commonwealth, state and territory legislatures have relied on that principle in declaring in particular statutes that there is no duty on a decision-maker to observe procedural fairness beyond compliance with prescribed statutory procedures: see  Saeed v  Minister for Immigration and Citizenship 11.3.31C, and Seiffert v Prisoners Review Board [2011] WASCA 148.

• Time clauses: Clauses which limit the time within which judicial review proceedings must be commenced have generally been accepted by the courts. For example, the ADJR Act provides that judicial review must be commenced within 28 days of a decision: s 11. Similar time limits apply to review by tribunals. This again reflects the theme in the above distinctions: a court will give effect to a privative clause, provided the clause preserves to some degree a citizen’s access to the courts. It is notable, however, that the High Court in Bodruddaza 5.3.57C struck down a provision in the Migration Act 1958 (Cth) which imposed a time limit of 84 days from notification of a visa refusal decision for commencing proceedings under s 75(v) of the Constitution to challenge that decision. The court held that the provision (enacted following Plaintiff S157/2002) unduly curtailed or limited the ability to seek relief under s 75(v). • Alternative to judicial review: Legislation may stipulate a procedure for review or appeal that is designed to operate in place of judicial review. An example is the Income Tax Assessment Act 1936 (Cth), which provides that a taxation assessment can be reviewed by an objection and appeal to the AAT (s 175A), that the validity of an assessment is not affected by reason 1000

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that a provision of the Act was not complied with (s 175), and that (in proceedings other than the objection and AAT appeal procedure) a notice of assessment ‘shall be conclusive evidence of the due making of the assessment and … that the amount and all the particulars of the assessment are correct’: s 177(1). The High Court in Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 explained that the effect of this scheme is that an error in the assessment process did not go to jurisdiction and did not attract the remedies under either s  75(v) of the Constitution or s  39B of the Judiciary Act 1903 (Cth), except where an assessment was ‘tentative or provisional’ or there was ‘conscious maladministration of the assessment process’: at 612. This outcome, the court explained, did not arise from the Hickman principle but from the application of Project Blue Sky 16.2.10C.

• Discretionary powers: It is common to couch a grant of power in subjective and discretionary terms, typically, ‘if X is satisfied’. The impact of a statutory formula of this kind is to limit judicial review in any event to broad legality issues, as was evidenced in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 and George v Rockett 8.3.56C. If such a formulation is coupled with a privative clause, parliament’s intention to exclude review is regarded as stronger (Deane and Dawson JJ in Coldham 16.3.16C), although that conclusion has less force since Plaintiff M61/2010E v Commonwealth 11.2.20C.

Privative clauses and s 75(v) of the Constitution 16.3.8  A special test was developed to deal with the dilemma that arises when the apparent purpose of a privative clause was to deny review of a decision in the original jurisdiction of the High Court. The constitutional inhibitions on such action typically had been resolved by resort to the three Hickman conditions (see  16.3.5). A privative clause which on its face appeared to oust the High Court’s jurisdiction would be effective provided ‘the purported exercise [of power was] a bona fide attempt to exercise the power, it related to the subject matter of the legislation, and it was reasonably capable of being referred to the power (that is, did not on its face go beyond the power)’: as quoted in Coldham 16.3.16C at 418. As the court noted in Coldham, justification for this approach was that the test resolved ‘the prima facie inconsistency between one statutory provision which seems to limit the powers of the tribunal and another provision, the privative clause, which seems to contemplate that the tribunal’s order shall operate free from any restriction. The inconsistency is resolved by reading the two provisions together and giving effect to each’: at 418. At the same time, the High Court signalled in Plaintiff S157/2002 16.3.17C that satisfaction of the Hickman provisos was insufficient on its own. It is still a question of construing the privative clause to glean the intention of parliament, and it can usually be presumed that parliament did not intend the privative clause to protect ‘manifest’ errors, ‘imperative duties’, ‘inviolable limitations or restraints’ or breaches amounting to a jurisdictional error that will attract the issue of a constitutional writ. Moreover, as Plaintiff S157/2002 and Bodruddaza 5.3.57C indicate, s 75(v) ensures that the constitutional jurisdiction of the High Court cannot be ousted by a privative clause. Today these various tests are subsumed under the concept of an error that is jurisdictional, and the tests may be used in deciding whether a jurisdictional error has occurred. 16.3.9  As noted at 16.3.7, parliament can alter the substantive law to be applied by the courts. This principle applies to the operation of s 75(v) of the Constitution, as noted by Gleeson CJ in Plaintiff S157/2002 16.3.17C at 5: 1001

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Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed [by ‘officers of the Commonwealth’—Constitution s 75(v)]. But it cannot deprive this Court of its constitutional jurisdiction to enforce the law so enacted.

Justice Gaudron and Gummow J made a similar point in Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 633: [T]here is no constitutional reason, in our view, why a privative clause might not protect against errors of other kinds by, within the limits of the relevant legislative powers, operating to alter the substantive law to ensure that the impugned decision or conduct or refusal or failure to exercise a power is in fact valid and lawful.

An argument framed in those terms was, however, rejected in Bodruddaza 5.3.57C. It was there argued that the purpose of the revised s 486A of the Migration Act 1958 (Cth) was to validate all migration decisions once the 84-day limit expired for commencing judicial review proceedings. The argument was rejected by the High Court in the following terms: Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ: It would be a bold exercise of legislative choice for the Parliament to enact that Ministers and their delegates were authorised to exercise fraudulently any of the powers of decision conferred upon them by statute. A legislative purpose of that kind would not be imputed in the absence of ‘unmistakable and unambiguous language’. Further, in such an unlikely eventuality, questions of validity might well arise of the nature outlined in Plaintiff S157/2002. But there is no occasion here further to pursue such questions. That is because, as the … text of s 486A indicates … it is directed not to the conferral of validity but to deny the competency of applications to this Court not commenced within the stipulated period.

The consequence has been that no privative clauses of the type enacted in the Migration Act 1958 (Cth) have been enacted in Commonwealth legislation since Plaintiff S157 was decided. This may be an admission by governments that such clauses are simply not worthwhile. All in all, it now appears that Hickman was a post-WWII aberration in Australian law. A  number of commentators have suggested that privative clauses in Commonwealth legislation should simply be invalid, on the basis that they are inconsistent with s 75(v) of the Constitution. Justice Perram, writing extra-curially, has expounded the basis for invalidity of privative clauses as follows: If one accepts that it is the role of the judiciary to decide what is lawful and what is not that function would be altogether pointless if it was not also accompanied by an ability to say what the consequences of the fact that the conduct was unlawful were to be. If it be accepted that an indispensable aspect of the judicial power is to declare the consequences of unlawful governmental action, it is very difficult to see how Parliament may intrude upon that function by seeking to pre-empt what the outcome of the Court’s eventual inquiry should be. Just as we deny any role to the Parliament in findings of guilt so too we ought to affirm that ouster clauses involve an impermissible exercise of judicial power. If one accepts that, the simple answer to the private clause problem is … that privative clauses are invalid. [N  Perram, ‘Project Blue Sky and the Evolution of Consequences for Unlawful Administrative Action’ (2014) Australian Journal of Administrative Law 62 at 74–5]

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See also J Kirk, ‘The Entrenched Minimum Provision of Judicial Review’ (2004) 12 Australian Journal of Administrative Law 64 at 65.

Privative clauses and the states 16.3.10  Although the Hickman test was developed in the context of s 75(v), it was not so confined. Indeed, Dixon J in Hickman acknowledged (at 615) that it would apply to a jurisdiction with a unitary constitution as well as to the federal sphere. Similarly, Gaudron and Gummow JJ pointed out in Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 633 that ‘[t]he Hickman principle has been treated as applying in respect both of the limits of the constitutional competence of the legislature in question and of the ambit or nature of the power conferred by a valid law’. In practice, state courts have applied the Hickman provisos to the interpretation of privative clauses in state legislation, though often posing the question whether in the action being challenged there was a ‘manifest’ error, breach of an ‘imperative duty’ or ‘inviolable limitation or restraint’: see, for example, Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695. State courts have also followed the customary path of strict construction of privative clauses, as noted by the New South Wales Court of Appeal in Sin Yong Yim v Industrial Relations Commission of NSW (2007) 162 IR 62: ‘The words of the [provision], which permit this Court to exercise its supervisory jurisdiction, should not be given a narrow or technical meaning’: at [24]. 16.3.11  In Kirk 16.3.18C the High Court held that the operation of privative clauses in state legislation is affected by constitutional considerations. State Supreme Courts are part of an Australian judicial system established by the Constitution, and their supervisory jurisdiction to enforce limits on the exercise of state executive and judicial power was, at federation, a defining characteristic of those courts. The consequence, applied in that case, is that the jurisdiction of a Supreme Court to grant prohibition, certiorari or mandamus in respect of a jurisdictional error was not denied by a statutory privative provision. Chief Justice Spigelman, writing extra-curially, has noted that the ‘centrality of jurisdictional error’ in contemplating the effect of privative clauses at Commonwealth level has now exercised a ‘gravitational pull’ at state level, and accordingly that ‘[t]he effect of Kirk will be that the full range of jurisdictional error must remain at both Commonwealth and State levels’: JJ Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21 Public Law Review 77 at 82. 16.3.12  Courts have nevertheless adopted a cautious approach in applying Kirk 16.3.18C in a state context. In Probuild 16.3.19C the High Court held that a state Act could preclude judicial review of non-jurisdictional errors of law on the face of the record. In Kaldas v Barbour 16.3.20C the New South Wales Court of Appeal affirmed the operation of a privative clause that constrained judicial review of ombudsman investigations. The court held that the Kirk principle did not apply to the remedies the plaintiff sought in that case (declaration and injunction), nor did the principle apply to the exercise of power by an ombudsman who did not make a decision affecting the rights of individuals.

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Control of Government Action

Privative clauses — leading cases 16.3.13C

Hockey v Yelland (1984) 157 CLR 124; 56 ALR 215 High Court of Australia

[Section 14C(11) of the Workers’ Compensation Act 1916 (Qld) provided: ‘The determination by the [Neurology] Board … shall be final and conclusive, and the claimant … shall have no right to have any of those matters heard and determined … by way of appeal or otherwise, by any court or judicial tribunal whatsoever’. Mr Hockey sought certiorari to quash a decision of the board for error of law on the face of the record, after it rejected his compensation claim. The High Court discussed the effect of s 14C(11).] Gibbs CJ: It was correctly conceded that the provisions of s 14C(11) do not oust the jurisdiction of the Supreme Court to issue writs of certiorari. It is a well recognized principle that the subject’s right of recourse to the courts is not to be taken away except by clear words. If the subsection had provided that the determination should not be ‘quashed or called in question’ it would have been effective to oust certiorari for errors of law not going to jurisdiction (Houssein [16.3.15C]), but although that formula is by no means unfamiliar to the Queensland legislature, it is not used in s 14C(11). The provision that the board’s determination shall be final and conclusive is not enough to exclude certiorari. It has been held in SE Asia Firebricks v Non-Metallic Products [1981] AC 363 at 369–70, that a provision that a decision shall be final does not prevent the issue of certiorari for excess of jurisdiction or error of law on the face of the record, and in my opinion the addition of the words ‘and conclusive’ does not have that effect. The words of the further provision that the worker shall have no right to have any of the matters which have been determined by the medical board ‘heard and determined by an Industrial Magistrate, or, by way of appeal or otherwise, by any Court or judicial tribunal whatsoever’ are in my opinion quite inapt to take away from the Court its power to issue certiorari for error of law on the face of the record. [Mason, Wilson, Brennan and Dawson JJ agreed with Gibbs CJ in separate judgments.]

16.3.14C

Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447 New South Wales Court of Appeal

[Section 65A(6) of the Public Service Act 1979 (NSW) provided in part that ‘no proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, shall lie in respect of … the appointment or failure to appoint a person to a position in the Public Service’. The Court of Appeal held that Mr Osmond was entitled to be given reasons for a decision by the Public Service Board not to appoint him to a position — a decision subsequently reversed by the High Court: Public Service Board (NSW) v Osmond 21.1.19C. The Court of Appeal held by majority that the jurisdiction of the Supreme Court to grant a declaration had not been ousted by s 65A(6).] Kirby P: As Whitmore and Aronson point out, courts in Australia have approached such provisions, which are not uncommon in legislation, with caution. On the one hand,

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parliamentary supremacy requires obedience to the clearly expressed wish of the legislature. On the other hand, courts must not too readily surrender the beneficial facility of judicial review which is the ultimate machinery to protect the rule of law. The facility of judicial review ensures that public power is exercised in accordance with the law. These considerations have tended to render nugatory the attempts by legislation to make the actions of inferior tribunals immune from the scrutiny of superior courts. This has proved so particularly in cases of excess of jurisdiction or non-compliance with the obligations of the rules of natural justice. So it has been in many cases. So it is here. ‘Exclusionary’, ‘ouster’ or ‘privative’ clauses such as s 65A(6) are properly read strictly by the courts. … In this case, the precise acts that are protected are ‘the appointment’ or ‘failure to appoint’, the ‘entitlement or non-entitlement’ of a person to be so appointed, or ‘the validity or invalidity’ of any such appointment. Unless caught by the ample expression ‘in respect of’, which links the prohibited relief and the protected acts, the claimed facility of reasons sought by the appellant appears outside the scope of the purported ouster. In its revised form, the appellant’s claim sought primarily a declaration that the appellant was entitled to be given reasons and that the Board was obliged to give them. Alternatively, it sought an order that the Board perform its legal duties in issuing reasons. These steps are anterior to the appointment of Mr Galvin and the failure to appoint the appellant. Although it is true the expression ‘in respect of’ is one of ample connection, adopting a strict construction of s 65A(6) of the 1979 Act, as amended, there is no reason to apply the ouster of jurisdiction to the precise relief sought by the appellant. [Priestley JA delivered a concurring judgment. Glass JA dissented.]

16.3.15C

Houssein v Department of Industrial Relations and Technology (1982) 148 CLR 88; 38 ALR 577 High Court of Australia

[Section 84(1)(a) of the Industrial Arbitration Act 1940 (NSW) provided in part that ‘any decision of the [Industrial] commission in court session … shall be final; and no award and no order, proceeding or contract determination of the commission in court session or of any such member shall be vitiated by reason only of any informality or want of form or be liable to be challenged, appealed against, reviewed, quashed or called in question by any court of judicature on any account whatsoever’.] Stephen, Mason, Aickin, Wilson and Brennan JJ: Because the appellants’ complaints are confined to errors of law said to appear on the face of the record, and involve no suggestion of want or excess of jurisdiction, disregard of the requirements of natural justice or other impropriety, we are concerned only with the operation of s 84 upon certiorari to quash for such errors. What follows is to be understood as so confined … It is provided [in s 84] that a decision of the commission is not ‘liable to be challenged, appealed against, reviewed, quashed or called in question by any court of judicature on any account whatsoever’. The first question is whether these words are capable of the effect which the Court of Appeal attributed to them, namely, of ousting the jurisdiction of the Supreme Court to review the decision of the commission for errors of law made within jurisdiction.

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In South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees Union (1981) AC 363, the Judicial Committee of the Privy Council had occasion to consider whether similar words appearing in the Industrial Relations Act 1967 of Malaysia ousted the jurisdiction of the Malaysian High Court to issue writs of certiorari to the Industrial Court. In the course of delivering the judgment of their Lordships, Lord Fraser of Tullybelton, after reviewing the earlier words of the section, said [1981] AC at 370: … the final words ‘quashed or called in question in any court of law’ seem to their Lordships to be clearly directed to certiorari. ‘Quashed’ is the word ordinarily used to describe the result of an order of certiorari, and it is not commonly used in connection with other forms of procedure (except in the quite different sense of quashing a sentence after conviction on a criminal charge). If ‘quashed’ were for some reason not enough, the expression ‘called in question in any court of law’ is in their Lordships’ opinion amply wide enough to include certiorari procedure. Accordingly they are of opinion that paragraph (a) does oust certiorari at least to some extent. In the result their Lordships concluded that the words in question ousted the jurisdiction of the High Court to grant certiorari in respect of errors of law not going to the jurisdiction of the Industrial Court. In our opinion the observations we have cited from their Lordships’ judgment are wholly applicable to the similar words appearing in par (a).

16.3.16C

R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415; 49 ALR 259 High Court of Australia

[Section 60(1) of the Conciliation and Arbitration Act 1904 (Cth) Act provided that an award (including an order) of the Australian Conciliation and Arbitration Commission was final and conclusive and shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and that an award ‘is not subject to prohibition, mandamus or injunction in any court on any account’. The High Court (Mason ACJ and Brennan J; Deane and Dawson JJ agreeing; Murphy J dissenting) granted writs of prohibition and mandamus directed to the commission in respect of a decision it made pursuant to s 142A(1) of the Act, which provided that the commission could decide which union should have the right to represent ‘a class or group of employees who are eligible for membership of the organization’.] Mason ACJ and Brennan J: The jurisdiction of the Court conferred by s 75(v) of the Constitution to grant mandamus and prohibition directed to an officer of the Commonwealth cannot be ousted by a privative clause. However, it has been established by a long course of judicial decisions in this Court that a privative clause in the form to be found in s 60 of the Act will validate an award or order of the Commission, so far as it can do so constitutionally, provided that three conditions are fulfilled ‘… namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (that is, does not on its face go beyond the power) …’: [Hickman] at 614–15. As Dixon J explained … it is a matter of reconciling the prima facie inconsistency between one statutory provision which seems to limit the powers of the Tribunal and another provision,

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the privative clause, which seems to contemplate that the Tribunal’s order shall operate free from any restriction. The inconsistency is resolved by reading the two provisions together and giving effect to each. The privative clause is taken into account in ascertaining what the apparent restriction or restraint actually signifies in order to determine whether the situation is one in which prohibition lies. The object of a provision of this kind is generally to protect the award or order from challenge. Consequently, the making of the award or order is the occasion for taking the privative clause into account in interpreting the Tribunal’s authority or power more liberally. … But a clause like s 60 cannot affect the operation of a provision which imposes inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal. In the face of such a provision, a clause like s 60 is ineffective to prevent prohibition going when the Tribunal transgresses those limitations or restraints. … The present is just such a case. The terms of s 142A(1) are quite explicit. The Commission is authorized to make an order that an organization of employees shall have the right to represent a class or group of employees who are eligible for membership of the organization to the exclusion of any other organization. Section 142A neither expressly nor impliedly confers jurisdiction on the Commission to give a binding decision on the question whether persons are eligible for membership of an organization. … Indeed, we are unable to perceive how the Commission could be given authority to determine conclusively the question of eligibility for membership consistently with its character as a body which does not exercise the judicial power of the Commonwealth. … Fundamental to the conclusion that s 142A did not vest judicial power in the Commission was the proposition that it could not give a binding decision of eligibility for membership. That, so the Court held unanimously, was a jurisdictional fact reviewable by prohibition (1981) 147 CLR at 488–89.

16.3.17C

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24; 72 ALD 1 High Court of Australia

[The plaintiff challenged a decision of the Refugee Review Tribunal (RRT) confirming a refusal to grant a protection visa, on the basis of a denial of natural justice. In the following extracts, the High Court considered the operation of s 474 of the Migration Act 1958 (Cth) (a privative clause purporting to limit judicial review of the RRT) and s 486A (which imposed a time limit on applications). Section 474 provided: (1) A privative clause decision: (a) is final and conclusive; (b) must not be challenged, appealed against, reviewed, quashed or called into question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: ‘privative clause decision’ means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act. Section 486A provided: (1) An application to the High Court for a writ of mandamus, prohibition or certiorari or an injunction or declaration in respect of a privative clause decision must be made

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to the High Court within 35 days of the actual (as opposed to deemed) notification of the decision. (2) The High Court must not make an order allowing, or which has the effect of allowing, an application mentioned in subsection (1) outside the 35 day period.] Gleeson CJ: Section 75(v) of the Constitution confers upon this court, as part of its original jurisdiction, jurisdiction in all matters in which a writ of mandamus, or prohibition, or an injunction, is sought against an officer of the Commonwealth. It secures a basic element of the rule of law. The jurisdiction of the court to require officers of the Commonwealth to act within the law cannot be taken away by parliament. Within the limits of its legislative capacity, which are themselves set by the Constitution, parliament may enact the law to which officers of the Commonwealth must conform. If the law imposes a duty, mandamus may issue to compel performance of that duty. If the law confers power or jurisdiction, prohibition may issue to prevent excess of power or jurisdiction. An injunction may issue to restrain unlawful behaviour. Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed. But it cannot deprive this court of its constitutional jurisdiction to enforce the law so enacted … The parliament cannot abrogate or curtail the court’s constitutional function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution. However, in relation to the second aspect of that function, the powers given to parliament by the Constitution to make laws with respect to certain topics, and subject to certain limitations, enable parliament to determine the content of the law to be enforced by the court. Privative clauses which deprive, or purport to deprive, courts of jurisdiction to review the acts of public officials or tribunals in order to enforce compliance with the law, or which limit, or purport to limit, such jurisdiction, may apply in either state or federal jurisdiction. Many of the considerations relevant to their interpretation and application are common to both (eg Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602). … In a federal nation, whose basic law is a Constitution that embodies a separation of legislative, executive, and judicial powers, there is a further issue that may be raised by a privative clause. It is beyond the capacity of the parliament to confer upon an administrative tribunal the power to make an authoritative and conclusive decision as to the limits of its own jurisdiction, because that would involve an exercise of judicial power [Coldham 16.3.16C at 419.] Legislation which confers power or jurisdiction on officials or tribunals, or imposes public duties, or enacts laws which govern official conduct, and which, in addition, deprives, or purports to deprive, courts of jurisdiction to control excess of power or jurisdiction, or to compel performance of duties, or to restrain breaches of the law, involves a potential inconsistency. A provision that defines and limits the jurisdiction of a tribunal may be difficult to reconcile with a provision that states that there is no legal sanction for excess of jurisdiction … This court’s approach to the interpretation of provisions such as s 474 has been developed over a long period. In Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 180), Mason CJ said that ‘they are effective to protect an award or order from challenge on the ground of a mere defect or irregularity which does not deprive the tribunal of the power to make the award or order’. Some years earlier, in Church of Scientology v Woodward [8.2.9C], he had said of privative clauses that, ‘notwithstanding the wide and strong language in which these clauses have been expressed, the courts have traditionally refused to recognize that they protect manifest jurisdictional errors or ultra vires acts’. In both cases, reference was made to [Hickman] at 614–17.

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The case of Hickman was decided in 1945, but even then there was a history of English and Australian decisions on the meaning and effect of privative clauses. [Gleeson CJ referred to Colonial Bank of Australasia v Willan (1874) LR 5 PC 417, holding that a privative clause would not stop a court from granting certiorari to quash a decision ‘upon the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it’.] The concept of ‘manifest’ defect in jurisdiction, or ‘manifest’ fraud, has entered into the taxonomy of error in this field of discourse. The idea that there are degrees of error, or that obviousness should make a difference between one kind of fraud and another, is not always easy to grasp. But it plays a significant part in other forms of judicial review … Such an idea is influential in ordinary appellate judicial review, and it is hardly surprising to see it engaged in the related area of judicial review of administrative action. The reasons for judgment of Dixon J in Hickman have been taken up in the approach of Australian courts to privative clauses, both in State and federal jurisdiction … The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited. When the power or authority is conferred by a federal statute, and it is this Court’s constitutional jurisdiction to prohibit acts of officers of the Commonwealth in excess of power or authority that the statute purports to take away, a possible solution is that urged by the plaintiff in the present case: accept the privative clause at face value, and declare it invalid. However, the reasons of Dixon J show that, although Hickman was decided in the context of federal jurisdiction, he also had unitary constitutions in mind. And his preferred solution, both in State and federal jurisdiction, was attempted reconciliation … Giving effect to the whole of a statute which confers powers or jurisdiction, or imposes duties, or regulates conduct, and which also contains a privative provision, involves a process of statutory construction described as reconciliation. The outcome of that process may be that an impugned act is to be treated as if it were valid. … On the other hand it may be that, as in Hickman, the impugned act is not to be treated as if it were valid. In the case of a purported exercise of decision-making authority, limitation on authority is given effect, notwithstanding the privative provision. That may involve a conclusion that there was not a ‘decision’ within the meaning of the privative clause. In a case such as the present, it may involve a conclusion that a purported decision is not a ‘decision … under this Act’ so as to attract the protection given by s 474. … In that case [R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399–400, Dixon J] described the process of statutory construction contemplated in Hickman as involving two steps. … The first step is to note that the protection afforded by a provision such as reg 17 will be inapplicable unless there has been ‘an honest attempt to deal with a subject matter confided to the tribunal and to act in pursuance of the powers of the tribunal in relation to something that might reasonably be regarded as falling within its province’. The second step is to consider ‘whether particular limitations on power and specific requirements as to the manner in which the tribunal shall be constituted or shall exercise its power are so expressed that they must be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action’. In explanation of the second step, Dixon J referred, by way of analogy, to the distinction between statutory provisions that are directory and those that are mandatory (1949) 77 CLR 387 at 399. That distinction is now in disfavour [Project Blue Sky 16.2.10C at 390]. Even so, the process of ascribing legislative purpose, which underlay the distinction, is one with which courts are familiar. The question is ‘whether

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it was a purpose of the legislation that an act done in breach of the provision should be invalid’. Later again, in R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248, Dixon J referred to ‘imperative duties or inviolable limitations or restraints’ which may be imposed by legislation, contravention of which would not be protected by a privative provision. To describe a duty as imperative, or a restraint as inviolable, is to express the result of a process of construction, rather than a reason for adopting a particular construction; but it explains the nature of the judgment to be made. Because what is involved is a process of statutory construction, and attempted reconciliation, the outcome will necessarily be influenced by the particular statutory context. The approach to the interpretation of statutes containing privative provisions enunciated by Dixon J in Hickman, and developed by him in later cases, has been accepted by this Court as authoritative (eg Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602). Parliament has legislated in the light of that acceptance. … A statute may regulate and govern what is required of a tribunal or other decisionmaker in these respects, and prescribe the consequences, in terms of validity or invalidity, of any departure. … In the present context, there is a question whether a purported decision of the Tribunal made in breach of the assumed requirements of natural justice, as alleged, is excluded from judicial review by s 474. The issue is whether such an act on the part of the Tribunal is within the scope of the protection afforded by s 474. Consistent with authority in this country, this is a matter to be decided as an exercise in statutory construction, the determinative consideration being whether, on the true construction of the Act as a whole, including s 474, the requirement of a fair hearing is a limitation upon the decision-making authority of the Tribunal of such a nature that it is inviolable. The line of reasoning developed by Dixon J in Hickman and later cases identifies the nature of the task involved, and the question to be asked. By identifying the task as one of statutory construction, all relevant principles of statutory construction are engaged … [Gleeson CJ went on to define the established principles of statutory construction which were relevant. These were: (1) if legislation is enacted pursuant to or in contemplation of an international instrument, in cases of ambiguity, a court should favour a construction which accords with Australia’s obligations; (2) courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless the intention is clearly manifest; (3) the Commonwealth Constitution ‘is framed upon the assumption of the rule of law’; (4) privative clauses are construed against the presumption that the legislature does not intend to deprive the citizen of access to the courts; and (5) what is required is a consideration of the whole Act, and an attempt to achieve a reconciliation between the privative provision and the rest of the legislation.] The principles of statutory construction stated above lead to the conclusion that parliament has not evinced an intention that a decision by the Tribunal to confirm a refusal of a protection visa, made unfairly, and in contravention of the requirements of natural justice, shall stand so long as it was a bona fide attempt to decide whether or not such a visa should be granted. Decision-makers, judicial or administrative, may be found to have acted unfairly even though their good faith is not in question. People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness. If parliament intends to provide that decisions of the tribunal, although reached by an unfair procedure, are valid and binding, and that the law does not require fairness on the part of the tribunal in order for its decisions to be effective under the Act, then s 474 does not suffice to manifest such an intention.

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It follows that, in my view, if the tribunal’s decision in relation to the plaintiff was taken in breach of the rules of natural justice, as is alleged, then it is not within the scope of protection afforded by s 474. It is not, relevantly, a decision to which s 474 applies. [Gleeson CJ said of s 486A that it would ‘not operate in relation to a purported decision made in breach of the requirements of natural justice’: at [42].] Gaudron, McHugh, Gummow, Kirby and Hayne JJ: It follows from Hickman, and it is made clear by subsequent cases [Coldham 16.3.16C] that the so-called ‘Hickman principle’ is simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions. Once this is accepted, as it must be, it follows that there can be no general rule as to the meaning or effect of privative clauses. Rather, the meaning of a privative clause must be ascertained from its terms; and if that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made, its effect will depend entirely on the outcome of its reconciliation with that other provision. … Construction of s 474 of the Act There are two basic rules of construction which apply to the interpretation of privative clauses. The first, which applies in the case of privative clauses in legislation enacted by the Parliament of the Commonwealth, is that ‘if there is an opposition between the Constitution and any such provision, it should be resolved by adopting [an] interpretation [consistent with the Constitution if] that is fairly open’ (R v Hickman … at 616 per Dixon J). The second basic rule, which applies to privative clauses generally, is that it is presumed that the Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies (Shergold v Tanner (2002) 76 ALJR 808 at 812 [27] per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ; 188 ALR 302 at 307). Accordingly, privative clauses are strictly construed. Quite apart from s 75(v), there are other constitutional requirements that are necessarily to be borne in mind in construing a provision such as s 474 of the Act. A privative clause cannot operate so as to oust the jurisdiction which other paragraphs of s 75 confer on this court, including that conferred by s 75(iii) in matters ‘in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party’. Further, a privative clause cannot operate so as to allow a non-judicial tribunal or other non-judicial decisionmaking authority to exercise the judicial power of the Commonwealth (R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254). Thus, it cannot confer on a nonjudicial body the power to determine conclusively the limits of its own jurisdiction. So much is clear from the observation of Mason ACJ and Brennan J in Coldham that they were ‘unable to perceive how the Commission could be given authority to determine conclusively the question [upon which its jurisdiction depended] consistently with its character as a body which does not exercise the judicial power of the Commonwealth’ ((1983) 153 CLR 415 at 419. See also at 426–8 per Deane and Dawson JJ) … Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression ‘decision[s] … made under this Act’ must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This court has clearly held that an administrative decision which involves jurisdictional error is ‘regarded, in law, as no decision at all’ [Bhardwaj 16.1.20C at 129, 131, 154–5]. Thus, if there has been jurisdictional error because, for example, of a failure to discharge ‘imperative duties’ … or to observe ‘inviolable limitations

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or restraints’ …, the decision in question cannot properly be described in the terms used in s 474(2) as ‘a decision … made under this Act’ and is, thus, not a ‘privative clause decision’ as defined in ss 474(2) and (3) of the Act. … To say that a decision that involves jurisdictional error is not ‘a decision … made under [the] Act’ is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction. The effect of s 474 is to require an examination of limitations and restraints found in the Act … Because, as this court has held, the constitutional writs of prohibition and mandamus are available only for jurisdictional error and because s 474 of the Act does not protect decisions involving jurisdictional error, s 474 does not, in that regard conflict with s 75(v) of the Constitution and, thus, is valid in its application to the proceedings which the plaintiff would initiate. The plaintiff asserts jurisdictional error by reason of a denial to him of procedural fairness and thus s 474, whilst valid, does not upon its true construction protect the decision of which the plaintiff complains. A decision flawed for reasons of a failure to comply with the principles of natural justice is not a ‘privative clause decision’ within s 474(2) of the Act. Construction of s 486A of the Act Before turning to the constitutional validity of s 486A, it is important to note that it applies only to a ‘privative clause decision’, which is defined in s 5(1) of the Act, unless the contrary intention appears, to have ‘the meaning given by subsection 474(2)’ … If the expression ‘privative clause decision’ in s 486A is given the meaning assigned by s 474(2) of the Act, it follows from what has been said earlier that s 486A will not apply to a ‘decision’ when there has been jurisdictional error. That ‘decision’ would not be a decision ‘made under [the] Act’. On that construction of s 486A, no question of constitutional validity would arise in relation to applications for prohibition, mandamus or certiorari in respect of ‘decisions’ where there has been jurisdictional error. Those applications would not be applications ‘in respect of a privative clause decision’. Of course, that may not be so if injunctive relief is sought on the grounds of fraud, dishonesty or other improper purpose. … [Their Honours then pointed out that s 486A might still have ‘useful work to do’ in a case where injunctive relief is sought.] [Callinan J found that s 474 would be effective against certiorari and was valid to that extent. However, it would not be effective ‘to cure manifest error of jurisdiction’. His Honour held that s 486A was invalid, as it went further than regulating access to the High Court, and effectively denied access to the s 75(v) remedies, having regard to the short time limit, that people seeking to access the court may be incapable of speaking English and be located or detained in a place remote from lawyers, and there was no time to extend the time limit.]

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16.3.18C

16.3.18C

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 High Court of Australia

[The facts of this case are summarised at 16.4.18C, which contains the court’s analysis of jurisdictional error. The following extract deals with the court’s analysis of the privative clause in the Industrial Relations Act 1996 (NSW). Section 179 provided that decisions of the New South Wales Industrial Court could be appealed to the Full Bench of the Court, but were otherwise ‘final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal’ (s 179(1)), including by prohibition, certiorari or mandamus, injunctions and declaration (s 179(5)). The High Court held in this case that the Industrial Court made jurisdictional errors, and that s 179 did not prevent the Supreme Court from making an order in the nature of certiorari to quash the Industrial Court decision.] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ: Finality or privative provisions have been a prominent feature in the Australian legal landscape for many years. The existence and operation of provisions of that kind are important in considering whether the decisions of particular inferior courts or tribunals are intended to be final. They thus bear directly upon the second of the premises that underpin the decision in Craig [16.4.17C] (that finality of decision is a virtue). The operation of a privative provision is, however, affected by constitutional considerations. More particularly, although a privative provision demonstrates a legislative purpose favouring finality, questions arise about the extent to which the provision can be given an operation that immunises the decisions of an inferior court or tribunal from judicial review, yet remain consistent with the constitutional framework for the Australian judicial system. … [The majority then considered the test in Hickman, and continued:] But the question presented by a privative provision is not just a conundrum of contrariety requiring a resolution of competing elements of the one legislative instrument. In considering Commonwealth legislation, account must be taken of the two fundamental constitutional considerations pointed out in Plaintiff S157/2002 [16.3.17C] (at [98]): First, the jurisdiction of this Court to grant relief under s 75(v) of the Constitution cannot be removed by or under a law made by the Parliament. Specifically, the jurisdiction to grant s 75(v) relief where there has been jurisdictional error by an officer of the Commonwealth cannot be removed. Secondly, the judicial power of the Commonwealth cannot be exercised otherwise than in accordance with Ch III. The Parliament cannot confer on a non-judicial body the power to conclusively determine the limits of its own jurisdiction. In considering State legislation, it is necessary to take account of the requirement of Ch III of the Constitution that there be a body fitting the description ‘the Supreme Court of a State’, and the constitutional corollary that ‘it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description’ … [A]ccepted doctrine at the time of federation was that the jurisdiction of the colonial Supreme Courts to grant certiorari for jurisdictional error was not denied by a statutory privative provision. The supervisory jurisdiction of the Supreme Courts was at Federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State

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executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, ‘with such exceptions and subject to such regulations as the Parliament prescribes’, s 73 of the Constitution gives this court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this court as the ‘Federal Supreme Court’ in which s 71 of the Constitution vests the judicial power of the Commonwealth. There is but one common law of Australia. The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of state executive and judicial power by persons and bodies other than that court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of ‘distorted positions’. And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics. This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for nonjurisdictional error of law appearing on the face of the record is not beyond power. IR Act, s 179 Section 179 of the IR Act must be read in a manner that takes account of these limits on the relevant legislative power. … Orders in the nature of prohibition, certiorari and mandamus may be directed to the Industrial Court. It is a court subject to the supervisory jurisdiction of the Supreme Court of New South Wales.

16.3.19C

Probuild Constructions (Aust) Pty Ltd v Shade Systems Ltd 92 ALJR 248; [2018] HCA 4 High Court of Australia

[The Building and Construction Industry Security Payments Act 1999 (NSW) (Security of Payment Act) established a scheme by which a contractor could lodge a claim for a progress payment for work undertaken pursuant to a construction contract. A claim disputed by the other party to the contract was to be referred to an adjudicator who could determine that a progress payment be made, and the determination could be enforced as a judgment debt in a court. The Security of Payment Act specified short timeframes for each stage in making a determination on a claim. The Act preserved the parties’ rights, duties and remedies arising

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under a construction contract, and provided that a court or tribunal must take account of any progress payment made as a result of a determination by an adjudicator. Probuild sought certiorari to quash a determination of an adjudicator awarding a substantial progress payment to Shade Systems. The parties accepted in the High Court appeal that the adjudicator had made non-jurisdictional errors of law. The Act did not expressly preclude the Supreme Court of New South Wales from making an order in the nature of certiorari to quash a determination of an adjudicator. The High Court held (affirming a decision of the New South Wales Court of Appeal) that the Security of Payment Act nevertheless ousted the jurisdiction of the Supreme Court to make such an order for non-jurisdictional error of law.] Kiefel CJ, Bell, Keane, Nettle and Gordon JJ: The jurisdiction of the Supreme Court of New South Wales to make an order in the nature of certiorari is an aspect of its jurisdiction as ‘the superior court of record’ in that State. The jurisdiction is exercised by judgment or order, not by writ. The function of an order in the nature of certiorari is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights. The principal basis for making such an order is jurisdictional error, thus enforcing the limits of a decision-maker’s functions and powers. The jurisdiction of a State Supreme Court to review an exercise or purported exercise of power for jurisdictional error, and to grant relief in the nature of certiorari (and prohibition and mandamus) where jurisdictional error is found, serves to enforce the limits of State executive and judicial power. In that sense, it may aptly be described as a ‘supervisory jurisdiction’. As was explained in Kirk [16.3.18C], that supervisory jurisdiction was and is a defining characteristic of the State Supreme Courts. Unlike the supervisory jurisdiction enforcing the limits of executive and judicial power, the jurisdiction of a Supreme Court to review, and to make an order in the nature of certiorari, for error of law on the face of the record is not part of the defining characteristics of the State Supreme Courts. This jurisdiction may be ousted by statute. [The court referred to the discussion of certiorari in Craig 16.4.17C.] It is a noteworthy feature of our legal history that it has long been taken as axiomatic that inferior courts or tribunals exercise their powers under the supervision of the superior courts in accordance with the law as expounded and applied by those courts. … An intention to alter the settled and familiar role of the superior courts must be clearly expressed. But the question is a matter of statutory construction; and in the resolution of such a question, context is, as always, important. The Security of Payment Act contains no privative clause providing in terms that an adjudicator’s determination is not to be quashed by way of certiorari on the basis of error of law on the face of the record. But that is not the end of the inquiry. There remains for consideration the question whether, absent an express statement but read as a whole, the Security of Payment Act has that effect. Whether it does depends on examination of the text, context and purpose of the Security of Payment Act. In undertaking that process, ‘[w]hether and when the decision of an inferior court or other decision-maker should be treated as “final” (in the sense of immune from review for error of law) cannot be determined without regard to a wider statutory and constitutional context’ (Kirk at 577–578). Certiorari for error of law on the face of the record ousted The Security of Payment Act evinces a clear legislative intention to exclude the jurisdiction of the Supreme Court to make an order in the nature of certiorari to quash an adjudicator’s determination for non-jurisdictional error of law on the face of the record. [The Court

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referred to a number of features of the Act: the object of the Act is to stamp out delayed payment of contractors by an interim payment scheme that is coherent, expeditious and self-contained; the scheme preserves the parties’ contractual entitlements; the procedures in the Act are designed to operate quickly, recognising that cash flow is the lifeblood of the construction industry; the time frames in the Act are not conducive to lengthy consideration by the adjudicator of legal submissions; there is no right of appeal from an adjudicator’s determination; and a determination does not give rise to any issue estoppel for the purposes of civil proceedings.] To permit potentially costly and time-consuming judicial review proceedings to be brought on the basis of error of law on the face of the record, regardless of whether an adjudicator had exceeded the limits of their statutory functions and powers, would frustrate the operation and evident purposes of the statutory scheme. The jurisdiction to make an order in the nature of certiorari to quash an adjudicator’s determination for error of law on the face of the record has been excluded. … No inference can be drawn from the fact that the Security of Payment Act does not purport to exclude review for jurisdictional error. As Kirk shows, exclusion of that jurisdiction would be beyond the power of the Parliament of New South Wales. That the Parliament has not attempted to legislate beyond power says nothing about whether the Security of Payment Act evinces a clear intention to exclude the review jurisdiction of the Supreme Court to the extent that the Parliament had power to do so: relevantly, to prevent an order in the nature of certiorari being made on the basis of nonjurisdictional error of law. [Gageler J and Edelman J delivered separate judgments in which they reached the same conclusion, based on similar reasoning. Both judgments contain an extensive discussion of the development of certiorari, and the distinction between jurisdictional and non-jurisdictional errors of law. Both observed that it is no longer appropriate to start from the presumption that express words are required to deprive a person of recourse to the courts.]

16.3.20C

Kaldas v Barbour [2017] NSWCA 275 Court of Appeal, New South Wales

[The background to this case is explained at 4.3.29. In summary, Mr Kaldas commenced proceedings against the New South Wales Ombudsman, seeking a declaration that an Ombudsman report that contained adverse findings against Mr Kaldas was legally flawed, and an injunction to restrain the Ombudsman from publishing the report on the Ombudsman website. The Court of Appeal held that s 35A of the Ombudsman Act 1974 (NSW) precluded the Supreme Court from granting that relief. Section 35A provided that the Ombudsman is not amenable to proceedings ‘on the ground of want of jurisdiction or on any other ground’, except in a case alleging bad faith by the Ombudsman and with the leave of the Supreme Court. The plaintiff had not alleged bad faith by the Ombudsman nor sought the leave of the Supreme Court. The Court of Appeal dismissed the plaintiff’s submission that s 35A was invalid on the basis of the decision of the High Court in Kirk 16.3.18C.] Bathurst CJ: [127] [A] legislative intention to exclude judicial review is consistent with the functions that the Ombudsman is required to perform under the Act. They are principally the

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investigation of complaints but not their adjudication and the making of recommendations to the Minister or the public authority in question: see Ombudsman Act s 26. As was indicated in the Second Reading Speech … the function of the Ombudsman is to persuade not adjudicate. In these circumstances, it is entirely explicable that the legislature intended to exclude judicial review. … [150] The issue is whether s 35A is invalid insofar as it precludes the claims made in the present case. It is important in those circumstances to keep in mind that what is sought is not the issue of any of the prerogative writs or orders of that nature, but rather declarations and injunctive relief. … [151] The plaintiff’s assertion of constitutional invalidity was based on the decision in Kirk. It is important in those circumstances to keep in mind what in fact was decided in that case. [152] In Kirk the plurality stated that the supervisory jurisdiction of the Supreme Court at the time of Federation was not denied by the statutory privative provision in that case: at [98]. The plurality expressed the supervisory jurisdiction of the Court in these terms: The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. … [153] The plurality explained (at [99]) that to deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons or bodies other than the Supreme Court, in accordance with principles set in the end by the High Court, would create islands of power immune from supervision and restraint, and the development of distorted positions. The plurality also stated it would remove from the Supreme Court one of its defining characteristics. [154] It should be noted that the principle in Kirk extends in its terms to review of executive decisions subject to privative clauses: see Kirk at [98] … … [156] However, there remain two areas of difficulty confronting the plaintiff. The first is whether the supervisory jurisdiction of the Supreme Court referred to in Kirk extends to judicial review of bodies such as the Ombudsman, whose powers do not extend to the making of decisions affecting the rights of individuals, but rather only to the making of recommendations, which if accepted by other bodies, may affect such rights. Put another way, if the report of the Ombudsman is not susceptible to review by any of the prerogative writs, then s 35A does not affect the power of the Court to grant such relief. [157] The second difficulty is whether, irrespective of the question of whether s 35A is constitutionally invalid to the extent it excludes relief by any of the prerogative writs, it is necessary to consider whether that invalidity extends to proceedings for declarations and injunctions. [Bathurst CJ described the Ombudsman’s function of preparing a report that may contain the Ombudsman’s conclusions and recommendations, and the absence of any legal obligation on a minister or public authority to act on the report. His Honour referred to cases discussing whether certiorari would quash a report of that nature.]

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[168] Were it necessary to finally decide the point, I would conclude that on the present state of authority, certiorari would not lie to quash a report of the Ombudsman. This is because the report could not be said to be part of a process which would lead to the affectation of an individual’s rights. The fact that the relevant Minister or public authority may take unidentified action which may affect the legal rights of a public authority (including an individual falling within that definition) does not seem to me to affect the position. … [176] The critical issue is what I have described [in 157] above as the second issue, namely, whether the power to make a declaration in the exercise of its supervisory jurisdiction was at Federation, and is a defining characteristic of the Supreme Court which cannot be denied by a statutory privative provision. [177] In my opinion, the power to grant a declaration in aid of its supervisory jurisdiction is not a defining characteristic of the Supreme Court in the sense described in Kirk. In these circumstances, s 35A is valid to the extent it precludes an action seeking such relief. [Bathurst CJ discussed the history of the declaration in England and New South Wales, and concluded that the power to grant a declaration as a public law remedy is separate and distinct from the power to grant relief by way of a prerogative writ, and that at the time of Federation it is doubtful the Supreme Court had power to grant a bare declaration of right whether in public law cases or otherwise.] [185] It is correct that at the present time, relief for jurisdictional error is frequently granted by way of declaratory relief. … … [195] In Kirk the supervisory jurisdiction referred to was explicitly grounded in that which existed at the time of Federation, exercised by way of the prerogative writs of prohibition, certiorari and mandamus (at [98]), or the grant of orders in the nature of that relief (at [99]). The plaintiff acknowledged that what he contended for amounted to an extension of Kirk. That is correct in at least two respects. First, by extending the principle to bodies which do not directly affect rights and, second, by extending the principle to cases where relief other than relief in the nature of the prerogative writs is sought. [196] It does not seem to me appropriate for an intermediate Court of Appeal to take this step, particularly having regard to the uncertainty of the Court’s power to grant such relief at the time of Federation. It may be said that this is contrary to the principle which underpinned Kirk, namely, that the Court’s power to grant relief for jurisdictional error should not be constrained … It also may be thought anomalous that whilst prohibition may have been granted prior to the issue of the report, s 35A precludes relief after its issue. Notwithstanding these considerations, which are powerful, I do not think the Court should extend the principle in Kirk to apply in the present situation. Basten JA (MacFarlan JA concurring): [His Honour reached the same conclusion as Bathurst CJ, having regard to the essential characteristics of the supervisory jurisdiction of the Supreme Court in 1901. After explaining that a report of the Ombudsman did not affect legal rights or interests in the same fashion as the Industrial Court in Kirk, his Honour concluded:] [349] … The prerogative writs did not in 1901, and still do not, provide a basis for reviewing decisions of statutory authorities which do not affect legal rights or interests in the way described above. … [358] … [T]here is no historical basis for the proposition that an essential characteristic of a State Supreme Court, in 1900, was to grant any form of relief with respect to conduct of an administrative officer which did not affect legal rights or impose legal liabilities.

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[359] No caselaw was relied upon for the proposition that a declaration would have been available in those circumstances. Indeed, even in relation to established private rights and interests, there is no acceptance of the proposition that a bare declaration was available in circumstances where no other relief could be sought. Rather, the availability of bare declaratory relief in support of private interests is best understood as dependent upon statutory intervention. [355] The turning point heralding a new willingness to grant bare declarations was Dyson v Attorney General [17.7.4C] decided in 1911. … … [361] As this Court noted in Trives v Hornsby Shire Council ((2015) 89 NSWLR 268 at [46]) any expansion of the principle established in Kirk beyond its sphere of operation should be undertaken with caution. That is because Kirk identified an irreducible characteristic of State Supreme Courts by reference to what was understood to be the scope of the supervisory jurisdiction in 1901. Further restraints on the legislative power of State Parliaments can only be imposed on a similar principled basis. None was identified in the present case. The impugned provisions are not invalid. [Mr Kaldas applied for special leave to appeal to the High Court against the Court of Appeal decision, but later withdrew the application. The proceeding before the Supreme Court was accordingly dismissed on the basis that it was precluded by s 35A in the absence of the leave of the Supreme Court to proceed.]

JURISDICTIONAL ERROR AND INVALIDITY 16.4.1  As Toohey J said in Harris v Caladine (1991) 172 CLR 84 at 136: Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and ‘such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred’.

Put more briefly: ‘Jurisdiction is the authority to decide’: Abebe v Commonwealth (1999) 197 CLR 510 at 524 (Gleeson CJ and McHugh J). An error in the exercise of the ‘authority to decide’ is described as a ‘jurisdictional error’. The concepts of ‘jurisdiction’ and ‘jurisdictional error’ originate in the exercise of judicial power, but are now applied widely in Australian administrative law to administrative decision-making. Chapter 7 describes the development of jurisdictional error as a foundation concept of judicial review now entrenched by s 75(v) of the Constitution: see 7.3.9. 16.4.2  Jurisdictional error is a concept that has been described as ‘frustratingly elusive’ ( J Griffiths, ‘Commentary on Professor Aronson’s article “Is the ADJR Act Hampering the Development of Australian Administrative Law?”’ (2005) 12 Australian Journal of Administrative Law 98 at 100), and as one that ‘ought to be discarded because it is uncertain and open-ended and most importantly, adds little of substance to constitutional doctrine’: M Groves, ‘Federal Constitutional Influences on State Judicial Review’ (2011) 39 Federal Law Review 388 at 417. To describe an error as jurisdictional explains a result but not necessarily the reason for that 1019

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result; it is a label or conclusion. Nor, as explained by Hayne J in Aala 17.1.14C, will all errors by a body necessarily be classified as jurisdictional: The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.

Although the scope of jurisdictional error has been explored in cases such as Craig 16.4.17C, Kirk 16.4.18C and Hossain v Minister for Immigration and Border Protection 16.4.19C, courts have declined to define the concept exhaustively. As the High Court said in Kirk: ‘It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error’: at 573. In both Kirk (at 570–1) and Hossain at [18]–[19] the High Court cited with approval the following passage from Professor Jaffe, that denominating questions as ‘jurisdictional’: is almost entirely functional; it is used to validate review when review is felt to be necessary … If it is understood that the word ‘jurisdiction’ is not a metaphysical absolute but simply expresses the gravity of the error, it would seem that this is a concept for which we must have a word and for which use of the hallowed word is justified. [LL Jaffe, ‘Judicial Review: Constitutional and Jurisdictional Fact’ (1957) 70 Harvard Law Review 953 at 963]

Professor Aronson, though acknowledging that ‘[t]here is no hard and fast list of jurisdictional errors’, has identified possible ‘generic instances of jurisdictional error’ (which are similar to the grounds in the ADJR Act) and provide a useful starting point for identifying jurisdictional error in a decision: M Aronson, ‘Jurisdictional Error and Beyond’ 7.2.22E. 16.4.3  Despite these conceptual difficulties, the concept of jurisdictional error has long played a special role in limiting the scope for judicial review of errors committed by courts and, to a lesser extent, tribunals. Although the notion of ‘jurisdiction’ is now commonly applied to all administrative decision-making (see  16.4.13), it more easily describes the function of a court or a tribunal. For example, the Federal Court has jurisdiction to decide issues arising under the ADJR Act and other Commonwealth statutes. The Family Court has a different jurisdiction to hear cases arising under the Family Law Act 1975 (Cth) and similar legislation. Thus, for example, if the Family Court heard a case arising under the ADJR Act it would be exceeding its jurisdiction: presumptively, the court would be committing a jurisdictional error, and any decision it made would be a nullity. By contrast, if the Family Court misinterpreted a provision in the Family Law Act 1975 (Cth) while hearing a case arising under that Act, the error would be one arising in the course of exercising a valid jurisdiction: the error would presumptively be classified as an error within jurisdiction. 16.4.4  Various consequences flow from the classification of an error by a court as either a jurisdictional error or as an error within jurisdiction. An error within jurisdiction does not cause a decision or proceeding to be void or a nullity. Rather, the decision is liable to be set aside in either of two ways: by appeal, if statute has created a right to appeal against the decision; or by certiorari 1020

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for error of law on the face of the record, if there is another court with jurisdiction to issue that writ. These points are illustrated by Craig 16.4.17C, 17.2.12C, referred to with approval in Kirk 16.4.18C. In Craig, there was no right to appeal against a ruling by a District Court judge to adjourn the hearing of a criminal trial. Nor, the High Court held, could the judge’s ruling be challenged by judicial review, because the alleged error by the judge was neither a jurisdictional matter (see Kirk 16.4.18C) nor an issue arising on the face of the record. There is a different illustration of the same point in Posner v Collector for Inter-State Destitute Persons (Victoria) (1946) 74 CLR 461 (discussed in 16.2.7), where it was held that a failure to serve a court order for payment of family maintenance was a non-jurisdictional matter. The court’s order could not therefore be the subject of collateral challenge in a proceeding in another court to enforce the maintenance order. The error could only be corrected in the jurisdiction in which the maintenance order was made. 16.4.5  A jurisdictional error causes the proceeding or order that is tainted by the error to be invalid. The error can be corrected by statutory appeal, if such is available. But, more importantly, the error can be corrected in proceedings for judicial review, for example: prohibition to prevent an excess of jurisdiction; mandamus to compel a fresh exercise of jurisdiction; certiorari to quash the proceedings; or a declaration that the order or proceeding is a nullity. Importantly, too, the jurisdictional error can be proved by evidence outside the formal record of the court, including affidavit evidence: see  Craig 16.4.17C. Other consequences attach to a jurisdictional error. A privative clause will not generally be effective to preclude judicial review of a jurisdictional error; see, for example, Anisminic Ltd v Foreign Compensation Commission (see 16.3.7), Plaintiff S157/2002 16.3.17C and Kirk 16.3.18C. Another consequence, according to some members of the court in Bhardwaj 16.1.20C at 616, is that ‘a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all’; the result in law is that ‘the duty to make the decision remains unperformed’. The function can be re-performed without the existing decision first being set aside in judicial review proceedings. 16.4.6  An implication inherent in that last point is that a decision involving jurisdictional error can often be ignored or undermined in a collateral challenge. For example, if the error in Posner (see  16.4.4) had been classified as a jurisdictional error, it is possible that the maintenance order could have been treated as invalid and not enforced in the court in which the enforcement proceedings were taken. To counter that result and avoid disregard of court orders, there is a presumption that the jurisdiction of a court (including an inferior court) extends to the determination of all questions arising before it, including questions on which its own jurisdiction depends. Issues arising before a court are normally classified as issues arising within jurisdiction and not as matters that go to jurisdiction, particularly if the court is a superior court. This presumption is subject to the error not going to the institutional integrity of the court: Kirk 16.3.18C and South Australia v Totani 5.3.16C. The strength of the presumption has also been affected by the extension of the notion of jurisdictional fact: Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship 13.3.17C. An oft-cited statement of principle was given by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, in holding that a ruling by a Court of Petty Sessions as to whether proceedings before it had been commenced within a statutory time limitation period was not a ruling that went to the jurisdiction of the court: In courts possessing the power, by judicial writ, to restrain inferior tribunals from an excess of jurisdiction, there has ever been a tendency to draw within the scope of the remedy provided by the writ complaints that the inferior court has proceeded with some 1021

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gross disregard of the forms of law or the principles of justice. But this tendency has been checked again and again, and the clear distinction must be maintained between want of jurisdiction and the manner of its exercise … It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.

16.4.7  Much of the law in Australia on jurisdictional error has been developed in the High Court in cases brought under s  75(v) of the Constitution: see  7.3.10. Special considerations arise under s 75(v) that require explanation. The High Court’s jurisdiction conferred by s 75(v) is to grant three remedies — prohibition, mandamus and injunction — against an officer of the Commonwealth. The jurisdiction cannot be taken away by statute. Thus, relief can be obtained under s 75(v) in circumstances where there is no other avenue available to question a decision made by a Commonwealth officer. A common description of the High Court’s jurisdiction conferred by s 75(v) (at least as to prohibition and mandamus) is that it is a jurisdiction to correct a jurisdictional error by an officer of the Commonwealth, manifested either as a want of jurisdiction, an excess of jurisdiction or a failure to exercise jurisdiction. 16.4.8  In more recent times the High Court’s s  75(v) jurisdiction has been exercised frequently in proceedings initiated under s 75(v) to review the validity of migration decisions, in circumstances where either there was no right to initiate similar proceedings in the Federal Court (for example, Re  Minister for Immigration and Multicultural Affairs; Ex parte Miah 11.2.19C) or the ground on which the decision was being challenged was not available in the Federal Court (for example, Aala 17.1.14C). 16.4.9  Another area in which resort has frequently been made to the High Court’s s 75(v) jurisdiction is in industrial litigation to challenge decisions and rulings by industrial courts and commissions. Once again, this has often occurred in circumstances where there was no other suitable avenue available to bring a challenge, usually because there was no right to appeal against the industrial decision or ruling. Appeal rights were restricted for the policy reason of preventing the prolongation of industrial disputes and litigation. The split decision of the High Court in R v Gray; Ex parte Marsh (1985) 157 CLR 351 illustrates the competing tensions that arise in proceedings of that kind: on the one hand, the role that s 75(v) can play in facilitating alternative relief to correct unlawful action; yet on the other the High Court’s hesitation at hearing cases under its original jurisdiction (s 75(v)) rather than its appellate jurisdiction (s 73). The Conciliation and Arbitration Act 1904 (Cth) conferred a jurisdiction upon a single judge of the Federal Court to examine whether there was an ‘irregularity’ in a union election that could have affected the result of the election. There was no right to appeal against the judge’s decision to a Full Bench of the Federal Court. Proceedings were instead commenced in the High Court under s 75(v) for a writ of prohibition to restrain a hearing of the matter by the Federal Court (Gray J). The 1022

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case was heard by six judges of the High Court, with all agreeing that Gray  J had erred in deciding that an irregularity had occurred. Three members of the High Court (including the chief justice) were prepared to grant prohibition on the basis that the error by Gray J constituted a jurisdictional error, while three other justices held that it was an error within jurisdiction and would have refused prohibition. (Under s 23 of the Judiciary Act 1903 (Cth) the decision of the chief justice prevailed.) The competing considerations that were brought to bear on this question are illustrated by the following extracts from the judgments of Gibbs CJ (holding there was a jurisdictional error) and Mason J (holding there was an error within jurisdiction): Gibbs CJ: The special and restricted nature of the jurisdiction conferred by Pt IX … suggest[s] that it was not intended that the Australian Industrial Court or the Federal Court should have power to determine conclusively the question on which the jurisdiction under Pt IX depends. The facts of the present case … illustrate the inconvenience that might arise if the Court were free to decide the limits of its own jurisdiction and erroneously to embark on an inquiry beyond the limits set by the Act. … In the present case the provisions of Pt IX define and limit the power of the Federal Court and the construction and effect of those provisions are appropriate to be considered on this application for prohibition. Mason J: In general the grant of jurisdiction to a superior court carries with it the power to determine conclusively, subject to any appeal, the existence or otherwise of facts upon which the jurisdiction depends, unless the legislature otherwise provides. As Dixon J pointed out in Parisienne Basket Shoes, at p 391, to make an actual fact, event or circumstance a condition on which jurisdiction depends: ‘produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.’ The point has special force in relation to a superior court, even if it be a superior court with limited jurisdiction … It is nonsense to suppose that Parliament intended the Federal Court’s jurisdiction to depend on the actual occurrence of an irregularity. The exclusion of a right of appeal to the Full Court of the Federal Court clearly indicates that Parliament’s intention was that the primary judge’s determination was to be conclusive on the issue he was called upon to decide, that is, whether the alleged irregularity had occurred.

16.4.10  Traditionally, as noted by the High Court in Craig 16.4.17C, a narrow view was taken of what constitutes jurisdictional error by a court, including an inferior court. This narrow view may be on the wane, because of the constitutional emphasis on maintaining the independence and impartiality of courts: Totani 5.3.16C. Matters that have been treated as arising within jurisdiction and not giving rise to jurisdictional error include a ruling by a court as to whether documents had been served (Posner 16.4.4); whether proceedings were commenced within a statutory time limit (Parisienne Basket Shoes 16.4.6); whether a party had standing to commence proceedings (R  v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113); whether proceedings should be adjourned indefinitely (Craig); whether a solicitor was guilty of contempt of court (O’Brien v Northern Territory (2002) NTR 1); whether there was a power to admit additional evidence (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194); whether a decision was based on an irrelevant consideration (Jadwan 16.1.28.C); a District Court’s ruling on whether it was properly constituted to hear a matter (Downey v  Acting District Court Judge Boulton (No 3) [2010] NSWCA 50); and failure to comply with a statutory requirement to give notice of a decision: Re  Minister for Immigration and Multicultural and 1023

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Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212. Decisions by a court or commission on the meaning of legislation it is applying have sometimes been treated as issues arising within jurisdiction (for example, Hickman; Re  Independent Schools’ Staff Association (ACT); Ex parte Hubert (1986) 60 ALJR 458) and sometimes as matters going to jurisdiction; for example, Coldham 16.3.16C; R v Industrial Court; Ex parte Maynes (1978) 139 CLR 482. 16.4.11  The discussions in Craig 16.4.17C, Yusuf (2001) 206 CLR 323 and Kirk 16.4.18C illustrate that a broader view has generally been taken of what constitutes jurisdictional error by an administrative tribunal. Courts are more likely to hold that a legal error by a tribunal is a jurisdictional error: Craig at 179. Examples of tribunal errors that have been classified as jurisdictional errors include: the failure of a medical appeal panel to deal with a party’s request to make oral submissions (Dar v State Transit Authority of NSW (2007) NSWLR 468); the Refugee Review Tribunal’s refusal to seek a full transcript of an applicant’s airport interview with the department where there was reason to suspect it was deficient (SZMYO v Minister for Immigration and Citizenship (2011) 121 ALD 272); and the AAT’s failure to consider new information adduced during an oral hearing (which had not been provided to the minister in advance of the hearing as required by the statute) or to grant an adjournment to enable the required statutory notice to be given: Uelese v Minister for Immigration and Border Protection (2015) 319 ALR 181. These complexities have been avoided in England, where there is no equivalent of s 75(v) of the Constitution and a broader view has been taken of what amounts to a jurisdictional error. This means ‘that any error of law by a decision maker (whether an inferior court or a tribunal) rendered the decision ultra vires’: Kirk at [94]. The court added: ‘[T]hat is a step which this Court has not taken’: at [65] and [95]. 16.4.12  Another refinement, spelt out in Hossain 16.4.19C, is that the gravity of an error is relevant to the distinction between jurisdictional and non-jurisdictional error. An error of law will not be jurisdictional in nature if it does not materially affect the decision. Chief Justice Gleeson similarly noted in Plaintiff S157/2002 16.3.17C at 484 that their could be ‘degrees of error’, reflected in the use of terms such as ‘manifest’ defect in jurisdiction. 16.4.13  The concept of jurisdictional error can arise in other situations as well. As noted in 13.4.10, jurisdictional error is a separate ground of review under the ADJR Act. In that setting it has been overshadowed by other ADJR Act grounds that do not rest on a finding of jurisdictional error: Jadwan 16.1.28C. It was otherwise under the Migration Act 1958 (Cth) between 1994 and 2001, when the equivalent ground became comparatively more important in the scheme of review in that Act because many other ADJR Act grounds had been excluded. In Yusuf (2001) 206 CLR 323 the High Court gave a broad construction to jurisdictional error in the Migration Act 1958 (Cth) context, as indeed the court has done in many cases in which the Act’s privative clause has been in issue. 16.4.14  The notions of jurisdiction and jurisdictional error are capable of applying to any decision made pursuant to statute. Accordingly, judicial review of tribunal decisions is often undertaken by applying the language of jurisdiction and jurisdictional error. Two other cases illustrate how the concepts have been applied (perhaps unconventionally, but commonly today) in other situations. In Central Queensland Land Council Aboriginal Corporation v  AttorneyGeneral (Cth) (2002) 116 FCR 390, it was held that a minister had made a jurisdictional error in making subordinate legislation that was not supported by the parent Act. In Epic Energy (WA) Nominees Pty Ltd v Michael (2003) 27 WAR 515, the Western Australian Supreme Court 1024

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held that a draft tariff decision by the Independent Gas Pipelines Access Regulator was invalid, because the regulator’s misconstruction of the Act and Code was a jurisdictional error. 16.4.15  Yet another context in which jurisdictional concepts arise is in classifying issues to be decided under legislation as ‘jurisdictional facts’. Where parliament has stipulated that a power to make a decision is conditional on the existence or occurrence of a special fact, event or circumstance, it has been common to describe that condition as a ‘jurisdictional fact’. As discussed in Chapter 7, a separate set of legal principles applies in this area; for example, the jurisdictional fact may be either a legal or a factual stipulation or require judgement (‘if satisfied’) by the decision-maker: Plaintiff M70/2011 13.3.17C. The right and duty of deciding whether a jurisdictional fact has been satisfied rests with a court undertaking judicial review; and the court is not restricted to the evidence or material that was before the decision-maker. 16.4.16  The preceding discussion can be summarised in the following four points: • The concept of jurisdictional error arises in many different areas of administrative law: as a ground of review under the ADJR Act; as a ground on which the writ of prohibition issues; in defining the scope of the jurisdiction of the High Court under s 75(v) of the Constitution to issue the writs of prohibition and mandamus; in identifying which errors are protected by a privative clause; in controlling whether an erroneous decision can be the subject of collateral challenge or must be set aside by appeal or judicial review; in ascertaining whether an erroneous decision can be self-corrected by a decision-maker; and as a concept linked to the related concept of jurisdictional fact.

• Since the concept of jurisdictional error plays a different role in each of those settings, it can correspondingly have different meanings, and the same error can be jurisdictional in one context but not in another. For example, in Yusuf the concept was construed broadly as a ground of review under the Migration Act 1958 (Cth) and the ADJR Act. By contrast, a narrower approach is usually taken when the question arising is whether there has been a jurisdictional error by a court. The distinction between jurisdictional error as applied to courts and as applied to administrative tribunals is addressed in Craig 16.4.17C and Kirk 16.4.18C. The unifying principle in all areas, as explained in 13.4.11, is that a decision-maker has exceeded authority or wrongly exercised a power, whether by flouting a statutory limitation, breaching natural justice, asking the wrong question, misconstruing a task or being wrongly constituted. In short, a jurisdictional error is an error that leads to invalidity. A process of statutory construction is therefore required to identify the scope and limits of a decisionmaker’s authority and powers, and whether it was the intention of the legislature that an error by the decision-maker would have the consequence of invalidity; see, for example, Hickman at 614–17, endorsed in Coldham 16.3.16C and Plaintiff S157/2002 16.3.17C.

• In summary, in deciding whether something is a jurisdictional error it is necessary to look at the rules and objects of a statutory scheme, the nature and significance of a suggested error by the decision-maker, the consequence of non-compliance with the statutory requirements, whether the decision-maker was a court or other body, and the context in which the question has arisen: Fox v Australian Industrial Relations Commission (2007) 97 ALD 617. • An important and traditional role played by the concept of jurisdictional error (of especial relevance to the theme of this chapter) is that the concept can limit the scope for judicial invalidation of erroneous decisions. Put another way, the consequence of invalidity does not automatically apply to an error of law within jurisdiction. This is illustrated by cases such as Craig 16.4.17C, Hossain 16.4.19C and Posner 16.4.4. 1025

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The foregoing summary naturally prompts the question of whether the distinction between jurisdictional errors and errors within jurisdiction has become an overloaded distinction in administrative law. That larger issue is not taken up in this chapter, though it bears some similarity to another debate addressed in Chapter 13 as to whether the law/fact distinction is a false dichotomy that has become both problematic and overloaded: see  13.5.29ff. The topic of jurisdictional error is widely covered in recent articles, including: J Basten, ‘Jurisdictional Error after Kirk: Has It a Future?’ (2012) 23 Public Law Review 94; M Leeming, ‘The Riddle of Jurisdictional Error’ (2014) 38 Australian Bar Review 139; M Aronson, ‘Jurisdictional Error and Beyond’ in M Groves (ed), Modern Australian Administrative Law: Concepts and Context, Cambridge University Press, Melbourne, 2014, p 248; JK Kirk, ‘The Concept of Jurisdictional Error’ in N Williams SC, Key Issues in Judicial Review, Federation Press, Sydney, 2014, p 11; Justice A Robertson, ‘The Contemporary Approach to Jurisdictional Error’, paper presented at the seminar Administrative Justice and Its Availability, August 2014, Melbourne; K Walker, ‘Jurisdictional Error since Craig’ (2016) 86 AIAL Forum 35; M  Aronson, M  Groves and G  Weeks, Judicial Review of Administrative Action, 6th ed, Thomson Reuters, Sydney, 2017, pp  17–21, 731ff; and M  Aronson, ‘Judicial Review and the Charter’ (2018) 25 Australian Journal of Administrative Law 52 (on the incompatibility of jurisdictional error principles with those in the Victorian Charter of Human Rights and Responsibilities Act 2006). 16.4.17C

Craig v South Australia (1995) 184 CLR 163; 131 ALR 595; 39 ALD 193 High Court of Australia

[The facts of this case appear in 17.2.12C.] Brennan, Deane, Toohey, Gaudron and McHugh JJ: Jurisdictional error In considering what constitutes ‘jurisdictional error’, it is necessary to distinguish between, on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ. Putting to one side some anomalous exceptions, the inferior courts of this country are constituted by persons with either formal legal qualifications or practical legal training. They exercise jurisdiction as part of a hierarchical legal system entrusted with the administration of justice under the Commonwealth and State constitutions. In contrast, the tribunals other than courts which are amenable to certiorari are commonly constituted, wholly or partly, by persons without formal legal qualifications or legal training. While normally subject to administrative review procedures and prima facie bound to observe the requirements of procedural fairness, they are not part of the ordinary hierarchical judicial structure. In what follows, the anomalous courts or tribunals which fall outside the above broad descriptions can be ignored. Since the District Court of South Australia is undoubtedly a court, the primary focus of discussion will be upon what constitutes jurisdictional error on the part of an inferior court. An inferior court 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. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes

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of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction. Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern. It was submitted on behalf of the respondent State of South Australia that an inferior court commits jurisdictional error whenever it addresses the wrong issue or asks itself the wrong question. Particular reliance was placed, in support of that submission, upon the well-known passage in Lord Reid’s speech in Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147 at 151: … there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.

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In Anisminic, the respondent Commission was an administrative tribunal. Read in context, the above comments should, in our view, be understood as not intended to refer to a court of law. [Their Honours noted that the distinction between jurisdictional error and error within jurisdiction has been effectively abolished in England.] That distinction has not, however, been discarded in this country (R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 371–72) and, for the reasons which follow, we consider that Lord Reid’s comments should not be accepted here as an authoritative statement of what constitutes jurisdictional error by an inferior court for the purposes of certiorari. In that regard, it is important to bear in mind a critical distinction which exists between administrative tribunals and courts of law. At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd [1981] AC 374 at 383: Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so. The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

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Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 High Court of Australia

[Mr Kirk was the director of a company (Kirk Group Holdings Pty Ltd) that owned a farm in New South Wales. Due to Mr Kirk’s poor health and lack of farming experience the company employed Mr Palmer to manage the farm. He was given an all-terrain vehicle to use on the property. In 2001, Mr Palmer was using the vehicle to deliver steel to contractors working in a back paddock. The vehicle was travelling off-road down a steep slope and crashed. Mr Palmer was killed. Mr Kirk and the company were convicted in the Industrial Court of New South Wales of offences under ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW). Section 15 of the Act required employers to ‘ensure the health, safety and welfare at work of all the employer’s employees’; s 16 extended the obligation to other persons at the workplace. Employers were liable when they failed to take measures to obviate an identifiable risk. It was a defence under s 53(a) of the Act to establish that taking the required measures was not reasonably practicable. Section 179 of the Industrial Relations Act 1996 (NSW) provided that decisions of the Industrial Court could be appealed to the Full Bench of the Industrial Court, but were otherwise ‘final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal’ (s 179(1)), including by prohibition, certiorari or mandamus, injunctions and declaration (s 179(5)). Mr Kirk and the company unsuccessfully challenged the convictions by a number of routes — appealing to the New South Wales Court of Criminal Appeal; applying for certiorari and prohibition in the New South Wales Court of Appeal; applying (out of time) for leave to appeal to the Full Bench of the Industrial Court; and applying for certiorari in the Court of Appeal to quash the Full Bench decision. The Court of Appeal held that the lower court decisions did not disclose jurisdictional error and dismissed the application. The High Court granted special leave to appeal and reversed the decision of the New South Wales Court of Appeal. The High Court held that the Industrial Court made jurisdictional errors, and that s 179 did not prevent the Supreme Court from making an order in the nature of certiorari to quash the Industrial Court decision. The High Court’s consideration of s 179 is extracted at 16.3.28C.] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ: As Jaffe rightly pointed out, it is important to recognise the use to which the principles expressed in terms of ‘jurisdictional error’ and its related concept of ‘jurisdictional fact’ are put. The principles are used in connection with the control of tribunals of limited jurisdiction on the basis that a ‘tribunal of limited jurisdiction should not be the final judge of its exercise of power; it should be subject to the control of the courts of more general jurisdiction’. Jaffe expressed the danger, against which the principles guarded, as being that ‘a tribunal preoccupied with special problems or staffed by individuals of lesser ability is likely to develop distorted positions. In its concern for its administrative task it may strain just those limits with which the legislature was most concerned’. It is not useful to examine whether Jaffe’s explanation of why distorted positions may develop is right. What is important is that the development of distorted positions is to be avoided. And because that is so, it followed, in that author’s opinion, that denominating some questions as ‘jurisdictional’ ‘is almost entirely functional it is used to validate review when

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review is felt to be necessary … If it is understood that the word “jurisdiction” is not a metaphysical absolute but simply expresses the gravity of the error, it would seem that this is a concept for which we must have a word and for which use of the hallowed word is justified.’… Jurisdictional error in Australia In Craig [16.4.17C], this court recognised the difficulty of distinguishing between jurisdictional and non-jurisdictional errors, but maintained the distinction. … As was also pointed out in Aala [17.1.14C] there can be no automatic transposition to Australia of the principles that developed in England in relation to the availability of certiorari and prohibition. The constitutional context is too different to permit such a transposition. At the federal level, allowance must be made for the evident constitutional purposes of s 75(v) of the Constitution; at a state level, other constitutional considerations are engaged. As was pointed out by Gummow J … ‘[w]hen viewed against the Constitution in its entirety, Ch III presents a distinct appearance. Upon what had been the judicial structures of the Australian colonies and, upon federation, became the judicial structures of the states, the Constitution by its own force imposed significant changes.’ The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig to require different application as between ‘on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ’. … By contrast, demonstrable error on the part of an inferior court ‘entrusted with authority to identify, formulate and determine’ relevant issues, relevant questions, and what is and what is not relevant evidence was held, in Craig, not ordinarily to constitute jurisdictional error. … The basis for the distinction thus drawn between courts and administrative tribunals was identified in the lack of authority of an administrative tribunal (at least in the absence of contrary intent in the statute or other instrument establishing it) ‘either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law’. By contrast, it was said that ‘the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine’. Behind these conclusions lies an assumption that a distinction can readily be made between a court and an administrative tribunal. At a state level that distinction may not always be drawn easily, for there is not, in the states’ constitutional arrangements, that same separation of powers that is required at a federal level by Ch III of the Constitution. No less importantly, behind the conclusions expressed in Craig lie premises about what is meant by jurisdictional error. Unexpressed premises about what is meant by jurisdictional error give content to the notion of ‘authoritative’ when it is said, as it was in Craig, that tribunals cannot ‘authoritatively’ determine questions of law, but that courts can. When certiorari is sought, there is often an issue about whether the decision is open to review. If ‘authoritative’ is used in the sense of ‘final’, a decision could be described as ‘authoritative’ only if certiorari will not lie to correct error in the decision. To observe that inferior courts generally have authority to decide questions of law ‘authoritatively’ is not to conclude that the determination of any particular question is not open to review by a superior court. Whether a particular decision reached is open to review is a question that remains unanswered. The ‘authoritative’ decisions of inferior courts are those decisions which are not attended by jurisdictional error. That directs attention to what is meant in this context by ‘jurisdiction’ and ‘jurisdictional’. It suggests that the observation that inferior courts have authority to decide questions of law ‘authoritatively’ is at least unhelpful.

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16.4.18C

Jurisdictional error — this case It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. Professor Aronson has collected authorities recognising some eight categories of jurisdictional error. It is necessary, however, to make good the proposition stated earlier in these reasons that the two errors that have been identified as made by the Industrial Court at first instance (and not corrected on appeal to the Full Bench) were jurisdictional errors. The court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows. First, the court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court 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’ (emphasis added). Secondly, the court pointed out that jurisdictional error ‘is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers’ (emphasis added). (The reference to ‘theoretical limits’ should not distract attention from the need to focus upon the limits of the body’s functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court’s functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The court said of this last example that ‘the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern’ and gave as examples of such difficulties, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks’ Union. As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that — examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example. The first of the errors in question in this case — the errors of construction of s 15 of the OH&S Act — can be identified as a jurisdictional error of the third kind identified in Craig. That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission,

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or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct. The explanation just offered also demonstrates that the error made by the Industrial Court was not only an error about the limits of its functions or powers. It was an error which led to it making orders convicting Mr Kirk and the Kirk company where it had no power to do so. The Industrial Court had no power to do that because an offence against the OH&S Act had not been proved. It follows that the Industrial Court made orders beyond its powers to make. In addition to the error just considered, the Industrial Court misapprehended a limit on its powers by permitting the prosecution to call Mr Kirk at the trial. [Their Honours explained that the laws of evidence did not permit Mr Kirk as an accused to be called as a witness for the prosecution.] The Industrial Court thus conducted the trial of Mr Kirk and the Kirk company in breach of the limits on its power to try charges of a criminal offence. For these reasons, putting aside consideration of the privative provisions of s 179 of the IR Act, certiorari would lie in this case for jurisdictional error in both of the respects identified. [Their Honours went on to hold that s 179 did not prevent the Supreme Court from making an order in the nature of certiorari to quash the Industrial Court decision: see 16.3.18C.]

16.4.19C

Hossain v Minister for Immigration and Border Protection [2018] HCA 34 High Court of Australia

[The AAT decided that Mr Hossain did not meet two criteria prescribed by the Migration Regulations 1994 (Cth) for the grant of a partner visa. The Federal Circuit Court held that the tribunal had made an error of law as to one of the criteria but not the other, and set aside the decision of the tribunal. The High Court held (affirming a decision of the Full Federal Court, but on a different ground) that the tribunal’s decision should stand as it had not exceeded its jurisdiction. Notwithstanding the error in the tribunal’s reasoning, Mr Hossain did not meet an essential criterion for the grant of a partner visa. There is a fuller extract from the judgment of the plurality on the meaning of jurisdictional error at 7.2.21C.] Kiefel CJ, Gageler and Keane JJ: [2] The Federal Circuit Court was correct to find an error of law in the reasoning of the Tribunal which led to the decision; indeed, the error of law was conceded. The Federal Circuit Court was incorrect to characterise that error as a jurisdictional error. That is because, on the facts found by the Tribunal, the Tribunal had a duty to affirm the decision of the delegate in any event. The Tribunal had not exceeded its jurisdiction by making the decision which it made. … [24] Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as ‘involving jurisdictional error’ is to describe that decision as having

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16.5.2

been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a ‘nullity’, in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as ‘no decision at all’. To that extent, in traditional parlance, the decision is ‘invalid’ or ‘void’. [25] To return to the explanation of Professor Jaffe, jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error. … … [27] … The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute. … [32] … Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision. [Their Honours concluded that the tribunal’s error in construing and applying one criterion did not rise to the level of jurisdictional error, as the tribunal could not reasonably have been satisfied that the other criterion was met. Accordingly, the tribunal had no option but to affirm the decision of the delegate.] Edelman J: [His Honour reached the same conclusion that there was an absence of a jurisdictional error by the tribunal, as the tribunal’s error did not affect the other criterion on which the visa was refused. Edelman J explained that an error was jurisdictional only if the ‘error was material, in the sense that it affected the exercise of power by depriving a person of the possibility of a successful outcome’: at [78]. His Honour concluded:] [72] … There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome. One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. Another may be the circumstance discussed by Nettle J, where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion. [Nettle J agreed with Edelman J (at [39]).

SEVERANCE AND INVALIDITY 16.5.1  Severance is a concept which potentially applies to all administrative acts or decisions. Thus severance could apply to proceedings claimed to be tainted by breach of natural justice as to one aspect of the proceedings; to a decision by a local authority to grant a licence on conditions some of which are unlawful; and, as was discussed in Chapter 8, to clauses of subordinate legislative instruments which are invalid. Severance involves removing an unlawful action or invalid part of a document in order to retain the remainder. By severing the wrong findings, or excising the invalid or unlawful conditions, or the invalid elements of the instrument, the remainder of the document or decision can be upheld. The advantage of severance is that it can be used to avoid the consequence of total invalidity. 16.5.2  Severance involves two steps: identifying the elements of the decision or instrument which are invalid; and then assessing the impact of excision on the remainder. The second step is required because a restriction on the principle is that the excision must not make the 1033

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character of the original decision or document different in substance from that originally intended. In other words, severance will not be possible when, with the severed parts removed, the remainder operates differently in relation to the person, matter or thing to which the document refers. Thus, where invalid parts are fundamental or inextricably interwoven with the remainder, severance is not possible. Thus, in Coco v The Queen 8.3.31C the High Court held that an otherwise valid approval to use a listening device could not be severed from an invalid approval to enter private premises to install the device: ‘The fact that what is bad is an integral and essential element of what is good leads to the conclusion that the approval is wholly void’: at [31]. Similarly, in Telstra Corp Ltd v Australian Competition and Consumer Commission (No 3) (2007) 99 ALD 268 it was not possible to sever certain conduct from a competition notice issued by the commission as it would alter the nature of the conduct referred to in the notice and the content and meaning of the notice. See also Morgan v Commissioner of Police [2011] NSWCA 134 as to when an invalid portion of an appeal court decision can be severed from other aspects of the decision. 16.5.3  There is a presumption against severance at common law so far as legislative instruments are concerned. The features which determine whether severance can occur were stated by Dixon J in Bank of New South Wales v Commonwealth (1948) 76 CLR 1: In the absence of [legislation creating a presumption in favour of validity] the rule is that legislation which by a general collective expression covers objects some of which are and some of which are not within the scope of the power of the legislature, the whole must be considered bad. For although the test is one of intention, it cannot be presumed that parliament gave its assent to a partial operation of its enactment. Thus unless parliament has said otherwise, a uniform general rule including persons or matters some of which are outside the competence of the legislature must fall as a whole because there is no warrant for the introduction of unexpressed exceptions and limitations and only thus could the provision be given the more restricted operation. Further, if the invalid portion consists in or contains provisos, qualifications, exceptions or conditions affecting the operation of the other provisions severance is impossible. In the same way the invalidity of a clause which would operate by way of relief, compensation or alleviation brings down the provisions to which it has this relation. All these matters were considered to be incompatible with the supposition that the provisions were meant to receive an independent or distributive operation or, at all events, they were thought to tend too strongly against such an assumption. It was not to be assumed that connected or associated provisions were enacted as separate expressions of the will of the legislature. No severance could be effected unless an inference that the provisions are not to be interdependent can be positively drawn from the nature of the provisions, from the manner in which they are expressed or from the fact that they independently affect the persons or things within power in the same way and with the same results as if the full intended operation of the legislation had been valid.

16.5.4  A doctrine related to severance but which does not involve excision is to read down a provision or a document in order that its operation is lawful. In relation to legislative instruments, this is effected by provisions in interpretation legislation. These provisions reverse the common law presumption against severability or minimisation. Typical of such provisions is s 46(1) of the Acts Interpretation Act 1901 (Cth), which states: If a provision confers on a person (the authority) the power to make an instrument other than a legislative instrument, notifiable instrument or a rule of court, then: 1034

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(a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and (b) expressions used in any instrument so made have the same meaning as in the Act or instrument, as in force from time to time, that authorises the making of the instrument in which the expressions are used; and (c) any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the authority.

A comparable provision in relation to constitutional invalidity issues is provided by s 15A of the Acts Interpretation Act 1901 (Cth): see Evans v Minister for Immigration and Multicultural Affairs 16.5.6C. For equivalent provisions see  ACT: Legislation Act  2001 ss  43, 120; NSW: Interpretation Act  1987 ss  31, 32; NT: Interpretation Act ss  59, 61; Qld: Acts Interpretation Act 1954 s 9, Statutory Instruments Act 1992 s 21; SA: Acts Interpretation Act 1915 ss 13, 14A, 22A; Tas: Acts Interpretation Act 1931 s 3; Vic: Interpretation of Legislation Act 1984 ss 6, 22; WA: Interpretation Act 1984 s 7. 16.5.5  A similar reading-down principle applies at common law. This principle is taken from the judgment in Seeligson v  City of Melbourne [1935] VLR 365 at 369–70 where the court remarked that: [A]ll legislation must of necessity be in ‘more or less general terms’ and a regulation is not to be rendered invalid because its application to particular circumstances is not warranted in terms of the enabling purpose.

As the quoted words make clear, the principle is intended only to apply to the issue of whether a legislative instrument is beyond power. In that context, the principle was used with effect in South Australia v Tanner 8.4.27C at 167 to assist the majority in their conclusion that even if the regulation could be characterised as ‘using a sledge hammer to crack a nut’, it should not be disturbed. In Foley v Padley 8.4.18C, too, Gibbs CJ found that although a by-law went further than necessary and was capable of applying to some people that it was not intended to reach, the Seeligson proposition could be used to read it down in order to prevent the by-law being beyond power. 16.5.6C

Evans v Minister for Immigration and Multicultural Affairs (2003) 78 ALD 65; 203 ALR 320 Federal Court of Australia (Full Court)

[Mr Evans alleged that a decision by the minister to cancel his visa was invalid, as the minister had breached natural justice by not disclosing the contents of a document provided by the Western Australian Police Force. The minister argued that the non-disclosure of the document was authorised by s 503A of the Migration Act 1958 (Cth) which prohibited the disclosure of information provided by a criminal investigation body ‘specified in a notice published by the Minister in the Gazette’. The minister had published a notice listing nearly 300 countries, as well as ‘bodies, agencies or organisations responsible for criminal investigation in Australia’. The Full Court held by majority that the notice was invalid to the extent that it listed the names of other countries, rather than the criminal investigation bodies in those countries. The two judges so holding (Gray and Kenny JJ) differed on the further question of whether the notice was valid and severable to the extent that it listed Australian criminal intelligence bodies. Kenny J held that the valid portion of the notice was severable.]

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Kenny J: [T]he respondent submitted that par 46(1)(b) of the Acts Interpretation Act 1901 operated to save the Notice from total invalidity … Dixon J had earlier noted in Bank of New South Wales v The Commonwealth (1948) 76 CLR 1, at 370 and elsewhere that: ‘The practice of introducing what are called “severability clauses” into legislation became common in the United States, where much consideration has been given to their operation and effect’ … Dixon J added that: It can at least be said of [severability clauses] that they establish a presumption in favour of the independence, one from another, of the various provisions of an enactment, to which effect should be given unless some positive indication of interdependence appears from the text, context, content or subject matter of the provisions. To the extent to which the Notice specifies an agency (in the sense that, by reference to a nominated class, the agency is named definitely) the Notice is not entirely beyond power. In this case, par 46(1)(b) of the Acts Interpretation Act 1901 requires that the Notice be read down to bring it within power, providing the Notice itself contains some test that would permit severance. Dawson J made this point in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 in connection with s 15A. His Honour said, at 347–48: The effect of s 15A is to reverse the presumption that an enactment is intended to operate as a whole. Under s 15A each provision is to be read upon the basis that it was the intention of the legislature that it should be given effect to the extent that it is not in excess of legislative power. That process is, of course, most conveniently carried out where the statute is organised so that its various applications are separately expressed, thus enabling the valid portions to be simply severed from the invalid. Even then, s 15A will not operate to save the remaining provisions if, after severance, they have a different operation or effect from that which they had before severance, for the intention of Parliament is to be discerned by reading the statute as a whole and that intention is not to be displaced as a result of a reading down process under s 15A. It is one thing to give that which remains the operation which it was always intended to have. It is another thing to give it a different operation as a result of severing the invalid from the valid … I agree with the primary judge that par 46(1)(b) of the Acts Interpretation Act 1901 is capable of applying to the Notice … There is nothing in the text or context of the Notice (or s 503A) to indicate that the various classes are interdependent. On the contrary, the content and subject matter of the Notice (and s 503A) indicate that the classes are independent of one another. If there is a class in the Notice by reference to which bodies, agencies or organisations are specified for the purpose of par (b) of the definition of ‘gazetted agency’ in s 503A(9), then this class can be severed from the generality of the classes that lack specificity and, in relation to the severed class, the Notice will have the effect that it was intended to have. One class by reference by which bodies, agencies or organisations are identified definitely is the class responsible for criminal investigation in Australia. The agencies in Australia that fall within this class are readily ascertainable by reference either to Commonwealth law, or to the law of the state or territory pursuant to which they are established. By referring to this class, a body, agency or organisation can be identified with sufficient particularity that it is specified for the purposes of par (b) of the definition of ‘gazetted agency’ … The effect of par 46(1)(b) of the Acts Interpretation Act 1901 is that the valid part of the Notice is to be severed from that which is beyond power.

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CHAPTER

17

Judicial Review Remedies

INTRODUCTION 17.1.1  This chapter considers the three types of remedies used in judicial review of administrative action. They are the prerogative writs of certiorari, prohibition, mandamus and habeas corpus; the equitable remedies of declaration and injunction; and the statutory remedies available under the Administrative Decisions ( Judicial Review) Act 1977 (Cth) (ADJR Act) and its equivalents in the Australian Capital Territory, Queensland and Tasmania,1 and the Administrative Law Act 1982 (Vic). Chapter 2 considered the jurisdiction of courts to grant these remedies, noting that three of the remedies (prohibition, mandamus and injunction) have special significance as constitutional remedies under s 75(v) of the Constitution. 17.1.2  The origins of administrative law lie in the thirteenth-century system of writs by which the Court of King’s Bench could require an official to appear before the court and account for the official’s actions. In the eighteenth century the writs came to be known as prerogative writs on the basis of both their discretionary nature and their purpose in safeguarding the Crown and its prerogatives against legal non-compliance. The prerogative writs included the writs of prohibition, certiorari, mandamus, habeas corpus, quo warranto, scire facias, ne exeat regno (or colonia) and procedendo. A writ of certiorari commanded an inferior court to certify its record of proceedings and allowed the superior court to quash those proceedings for error of law; a writ of prohibition restrained an inferior court from exceeding its powers; a writ of mandamus ordered an executive officer or body to perform its public duty; a writ of quo warranto required a decision-maker to show by what authority the person held a public office; a writ of scire facias required a person to show cause why a judgment should not be enforced; a writ of ne exeat regno required that a person not leave the realm; a writ of procedendo was a direction from a superior court that a matter proceed; and a writ of habeas corpus required that a person in custody be brought before the court so that the legality of the detention could be decided. Today, the most commonly encountered prerogative writs are prohibition, certiorari and mandamus, although the writs of quo warranto and habeas corpus continue to perform a public law function. Two contemporary and notorious examples of habeas corpus being sought are Minister for Immigration and Multicultural Affairs v Vadarlis 1. ACT: Administrative Decisions ( Judicial Review) Act 1989; Qld: Judicial Review Act 1991; Tas: Judicial Review Act 2000.

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17.5.4C, which concerned an application to the Federal Court made in 2001 by the Victorian Council for Civil Liberties and a solicitor for an order in the nature of habeas corpus to seek the release of 433 people who were stranded on board the MV Tampa; and Hicks v Ruddock 17.5.5C, relating to an application to seek the release of Mr David Hicks from confinement by United States authorities at the Guantanamo Bay Naval Base. An example of an application for the writ of quo warranto arose when Mr Ned Kelly sought to challenge a Senate election from which he was excluded: Re Australian Electoral Commission; Ex parte Kelly (2003) 198 ALR 262. For a detailed historical account of the development of the writs, see C Langford, ‘The Prerogative Writs and the Origins of English Administrative Law’ (2014) 88 Australian Law Journal 567.

17.1.3  Over time the procedure for issuing prerogative writs became increasingly complex. A  leading United States administrative lawyer, Professor KC  Davis, in a seminal work on administrative law, was scathing about this complexity: An imaginary system cunningly planned for the evil purpose of thwarting justice and maximising fruitless litigation would copy the amazing features of the extraordinary remedies. For the purpose of creating treacherous procedural snares and preventing or delaying the decisions of cases on their merits such a scheme would insist upon a plurality of remedies, no remedy would lie when another is available, the lines between the remedies would be complex and shifting, the principal concepts confusing, the boundaries of each remedy would be undefined and undefinable, judicial opinions would be filled with misleading generalities and courts would studiously avoid discussing or even mentioning the lack of practical reasons behind the complexities of the system. The system of extraordinary remedies is brimming over with these qualities. [KC  Davis, Administrative Law Treatise, KC Davis Publishing Co, San Diego, 1958]

Davis added: ‘Either Parliament or the Law Lords should throw the entire set of prerogative writs into the Thames River, heavily weighted with sinkers to prevent them from rising again’: KC Davis quoted by D Mullan, ‘Reform of Judicial Review of Administrative Action — the Ontario Way’ (1974) 12 Osgoode Hall Law Journal 125 at 134. 17.1.4  The most significant reform in Australia to overcome those procedural complexities was the introduction of a statutory judicial review procedure in the ADJR Act including codification of the grounds of review. Another important reform in every Australian jurisdiction (except the High Court and Western Australia) was the introduction of a simpler procedure for obtaining ‘an order in the nature of certiorari, prohibition or mandamus’. The simpler procedure is by way of a summons to commence proceedings, and a court order or judgment to conclude the proceedings, in place of the more complex prerogative writ procedure: see, for example, Supreme Court Act  1970 (NSW) ss  69, 70, 71; Uniform Civil Procedure Rules 2005 (NSW) r 6.4(1)(b1). The change is procedural, and the same principles govern the making of a writ or order: Craig v South Australia 17.2.12C; Dickinson v Perrignon [1973] 1 NSWLR 72 at 79, 82. 17.1.5  The essence of the prerogative writ procedure is that ordinarily the applicant (called the ‘prosecutor’) appears before the court ex parte (that is, in a proceeding for the benefit of one party) to obtain a rule nisi or temporary order, calling on a government officer or body named in the application to show cause on a named day why the writ should not issue. On that day both sides appear and argue the case. In making its decision the court either discharges 1038

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the rule nisi, and rejects the application, or makes it absolute, that is, issues the remedy sought. This procedure is captured in the title to prerogative writ proceedings, usually written as ‘R v [government official]; Ex parte [prosecutor]’ (see R v Murray and Cormie (1916) 22 CLR 437 for a discussion of the form of the action). In those jurisdictions that have reformed the prerogative writ system, the writ of habeas corpus has been maintained, perhaps because of its important symbolic status in common law legal history. A feature of the prerogative writs (and the equitable remedies) is that they are discretionary and can be refused on grounds referred to in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (Ozone Theatres) 17.4.10C (see  also 17.9.1ff). Although the discretion to refuse relief is regularly acknowledged by the courts, it appears that the exercise of this discretion is becoming increasingly rare. 17.1.6  The Federal Court is in a special position, explained more fully in 2.2.7ff. It has jurisdiction under the ADJR Act, but jurisdiction also under s 39B of the Judiciary Act 1903 (Cth) to grant an injunction or a writ of mandamus or prohibition. Under ss  21–23 of the Federal Court of Australia Act 1976 (Cth) the court can grant other remedies, such as a declaration, certiorari and habeas corpus. Vadarlis 17.5.4C and Hicks 17.5.5C provide examples of the court exercising a jurisdiction to decide whether an order in the nature of habeas corpus should be directed to the Commonwealth. 17.1.7  In the High Court the use of the term ‘prerogative writ’ has fallen out of favour because the High Court’s power to grant writs of prohibition and mandamus does not lie in the Crown but derives from s  75(v) of the Constitution. For this reason the High Court in Re Refugee Review Tribunal; Ex parte Aala (Aala) 17.1.14C preferred to use the term ‘constitutional writ’, a description now in common usage. As well, the court signalled that different legal principles may govern the issue of ‘constitutional’ as opposed to ‘prerogative’ writs. One illustration was the court’s decision in Bodruddaza v Minister for Immigration and Multicultural Affairs 5.3.57C, declaring invalid provisions in the Migration Act 1958 (Cth) that imposed a rigid time limit on obtaining a constitutional writ. The High Court has not yet decided whether inflexible time limits are incompatible with the constitutionally protected role of state and territory Supreme Courts. In Trives v Hornsby Shire Council (2015) 89 NSWLR 268 at 280–1 the New South Wales Court of Appeal suggested the issue should be decided by the High Court rather than an intermediate state court. 17.1.8  Another possibility is that the constitutional writs will be more readily available to restrain Commonwealth action that involves jurisdictional error. An example is that the High Court can grant certiorari to quash a decision of the Federal Court or the Family Court, contrary to the principle that certiorari does not ordinarily issue against a superior court: see 17.2.3. A related possibility is that the concept of jurisdictional error will be defined more broadly when a constitutional writ is being sought: 17.2.16–17.2.17. Special issues also arise in the constitutional jurisdiction concerning the writ of certiorari, as discussed in 17.2.14–17.2.19. 17.1.9  In earlier times the jurisdiction to grant the equitable remedies of injunction and declaration was exercised by the Court of Chancery, and was separate and distinct from the jurisdiction of common law courts to grant prerogative writs. Following the fusion of the equitable and common law jurisdiction in the United Kingdom with the Judicature Act 1873 reforms, a court can choose to grant an equitable remedy in addition to or instead of a 1039

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Control of Government Action

prerogative writ. Strictly speaking, the equitable jurisdiction is distinct from the exercise of the court’s judicial review or supervisory jurisdiction, being based on equity’s interest in due administration and the inadequacy of common law remedies: Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd 17.6.7C. Nowadays, however, it is convenient to use the term ‘judicial review’ to cover the use of equitable remedies, prerogative writs and statutory judicial review remedies. Similarly, as noted in 2.2.47, it is common to use the term ‘common law jurisdiction’ (or ‘general law jurisdiction’) to cover the non-statutory jurisdiction of courts, embracing equitable and prerogative remedies. 17.1.10  In administrative law proceedings the declaration is the remedy most commonly used, because of its flexibility and the preparedness of government agencies as a general rule to abide by the declaration of a court. There are, as well, many technical advantages that equitable remedies have in contrast to prerogative writs. Many examples appear throughout this chapter, but two bear mention at this stage. One is that the equitable remedies can be used without differentiation in private law and public law matters; this does not overcome the public/private distinction, which permeates the substantive principles of administrative law (see  2.5.1ff), but it means that the distinction does not become a remedial issue as well. By contrast, the prerogative writs can only be used in public law matters, being hedged with restrictions. For example, does the defendant have a public duty to perform (mandamus) or does the body have legal authority to determine questions affecting the rights of subjects (certiorari)? A second general advantage of equitable remedies is that the time limits for applying for them are less strict: see Tavitian v Commissioner of Highways [2010] SASC 206 which found that the court was not obliged to apply the time limits for judicial review of administrative action under Rules of Court since the grant of a declaration was discretionary. Nonetheless, the court confirmed that the time limits provide a guide for the exercise of the discretion. To take the High Court Rules 2004 (Cth) (High Court Rules) as an example, the time limit for applying for certiorari is six months (Ch 1, r 25.06.1) and for mandamus is two months: Ch 1 r 25.07.2. (There is no time limit for prohibition, because of the time-limited nature of the writ (see  17.3.4), nor for habeas corpus or quo warranto.) While different time limits may apply to different remedies, those differences become blurred if the applicant seeks more than one remedy. This occurred in Dimitrov v Supreme Court (Vic) (2017) 92 ALJR 12, where Edelman J noted that the applicant was out of time to either seek certiorari or lodge an appeal and the issues relevant to each time limit were largely the same. 17.1.11  Extensions of time are always possible but they are not easy to obtain. The High Court can extend the period for commencing an action (High Court Rules Ch 1, r 4.02), but the view has been expressed that ‘[i]n all but very exceptional cases’ the time limits ‘should be rigidly applied’: Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491 at 496. An example of an exceptional case is Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 85 ALJR 740, in which Hayne  J granted an extension of time where the delay in seeking certiorari amounted to about 18 months, since the merit of the plaintiff ’s case was strong, and the delay may have been due to psychiatric illness and impecuniosity. In Vella v Minister for Immigration and Border Protection (2017) 90 ALJR 89, Gageler  J refused to grant an extension of time for an applicant to make claims not raised in earlier proceedings. His Honour reasoned that parties were normally bound by their own tactical or forensic choices; time would therefore not normally be extended to enable parties to raise issues they could have raised earlier and within time. 1040

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17.1.12  The issues considered in Plaintiff M13/2011 and Vella are consistent with the longstanding principles governing the extensions of time to seek non-constitutional writs. The most widely cited Australian case is Hunter Valley Developments Pty Ltd v  Cohen (1984) 3 FCR 344 at 348–9, where Wilcox  J held that courts should consider any explanation for delay, any prejudice the respondent and other parties might suffer if an extension was granted, and the prospects of success of the claim. This non-exhaustive list enables courts to consider the individual merits of applications to commence judicial review outside the relevant time limit. Cases on this issue usually raise several relevant issues, which are weighed together. An example is Esposito v Commonwealth (2015) 235 FCR 1. The applicants were landowners who challenged state and federal government decisions that imposed conservation orders over their land and made it virtually worthless. The Full Federal Court refused to issue declarations, even though the decisions appeared partially invalid, because: the decisions could easily be made again; the applicants gave no clear reason why they took several years to commence judicial review; other landowners had accepted compensation for their land in the period that the applicants delayed their action; and it would be unfair to those former owners and disruptive to the real estate market if the status of the land was thrown into doubt by judicial review proceedings. 17.1.13  There are situations when it is necessary or desirable to apply for a prerogative writ rather than an equitable remedy. An example is that it is sometimes necessary formally to quash a decision by certiorari, such as a decision revoking a licence, imposing a sanction, or granting a contested interest to another person. Certiorari would be especially useful in such cases because no other remedy would have the same quashing effect. Another historical remnant is that the standing requirements for prerogative writs are in some respects more liberal than those for the equitable remedies: Corporation of the City of Enfield v Development Assessment Commission (Enfield) 17.7.6C; Re  McBain; Ex parte Australian Catholic Bishops Conference (McBain) 18.4.6C. And, to the extent that there can be a strategic advantage merely in commencing proceedings, there is a ‘low hurdle for the grant of an order nisi’: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609 at 611. For instance, upon the commencement of proceedings there may be a greater chance that the decision under challenge will be suspended either by executive discretion or by judicial direction until the conclusion of the proceedings. 17.1.14C

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219 High Court of Australia

[The prosecutor, Mr Aala, commenced an action in the original jurisdiction of the High Court, contending that he had been denied natural justice by the Refugee Review Tribunal, which had affirmed a decision by a delegate of the minister that Mr Aala did not qualify for a protection (refugee) visa. The reason Mr Aala commenced the proceedings in the High Court was that the Federal Court could not at that time grant relief on the ground of breach of natural justice: Migration Act 1958 (Cth) s 476(2). The High Court upheld Mr Aala’s contention that there had been a breach of natural justice, and granted three prerogative remedies: 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. The following

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Control of Government Action

extract deals with the appropriate designation of the writs in s 75(v) of the Constitution as ‘constitutional writs’.] Gaudron and Gummow JJ: [I]n R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 201, Barwick CJ referred to the term ‘prohibition’ in s 75(v) as importing ‘the law appertaining to the grant of prohibition by the King’s Bench’. However, in the operation of s 75(v) of the Constitution, terms such as ‘prohibition’ and ‘jurisdiction’ are not simply institutions or concepts of the general law. They are constitutional expressions. … The term ‘prerogative writ’ came to be used in England with respect to prohibition and other writs because they were conceived as being intimately connected with the rights of the Crown and to ensure that the prerogative was not encroached upon by disobedience to the prescribed structure for the administration of justice. … In Australia, the Parliament consists of the Queen, the Senate and the House of Representatives (Constitution, s 1) and the executive power of the Commonwealth is vested by s 61 in the Queen and is exercisable by the Governor-General as the Queen’s representative. However, save perhaps provision in s 72(i) for appointment of judges by the Governor-General in Council, the Crown is not an element in the Judicature established by Ch III. In Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 204–5, Deane and Gaudron JJ said that, taken together, s 75(iii) and s 75(v) had the effect of ensuring ‘that there is available, to a relevantly affected citizen, a Ch III court with jurisdiction to grant relief against an invalid purported exercise of Commonwealth legislative power or an unlawful exercise of, or refusal to exercise, Commonwealth executive authority’. What is thereby enforced is the fidelity required by covering cl 5 to the Constitution itself rather than any fidelity owed to the Crown as a particular element in the constitutional structure. The term ‘prerogative writ’ has been used as a convenient shorthand, particularly to differentiate in s 75(v) writs of mandamus and prohibition from an injunction. But it is an inapt description of any remedy granted by a court exercising the judicial power of the Commonwealth. If any shorthand expression is to be used, ‘constitutional writ’ would be preferable. Prohibition goes against officers of the Commonwealth in circumstances not contemplated by the Court of King’s Bench and not within the expression ‘excess of jurisdiction’ as understood in England. Thus, an officer of the Commonwealth may be restrained by prohibition in respect of activity under an invalid law of the Parliament or of activity beyond the executive power of the Commonwealth identified in s 61 of the Constitution. Further, the common law did not have to take into account the errors of a superior federal court in determining the constitutional limits of its own jurisdiction, a point developed by Brennan J in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 217–18. Hence the force of the statement by Mason, Brennan and Dawson JJ in Re Grimshaw; Ex parte Australian Telephone and Phonogram Officers’ Association (1986) 60 ALJR 588 at 594: The jurisdiction of this Court to grant prohibition under s 75(v) of the Constitution directed to a non-judicial tribunal is not necessarily governed by the same principles as those which govern the common law jurisdiction of a superior court to grant prohibition to an inferior court. [Kirby J noted similarly that the term ‘constitutional writs’ was more appropriate, observing that ‘where the Constitution uses words (including “Mandamus or prohibition or an injunction”) those words take on a special significance by reason of their constitutional use and context’: at 133. Hayne J similarly observed that a ‘constitutional writ’ was not constrained by the same principles applying to a prerogative writ.]

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17.1.15  The term ‘constitutional writ’ was approved by the High Court in Bodrudazza 5.3.57C: Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan  JJ (Callinan  J agreeing): [W]hat was to be protected in the Australian constitutional context was not only the rights of all natural and corporate persons affected, but the position of the States as parties to the federal compact, and jurisdictional error might arise from a want of legislative or executive power as well as from decisions made in excess of jurisdiction itself validly conferred. It is out of its recognition of these features of the remedies provided by s 75(v), and their high constitutional purposes, that in more recent years this Court has described the remedies there provided as ‘constitutional writs’ rather than (as earlier and historically in England) as ‘prerogative writs’.

17.1.16  The constitutional function of these writs was subsequently explained in Graham v Minister for Immigration and Border Protection (2017) 91 ALJR 890. The High Court noted that the writs in s  75(v) served the constitutional purpose of enabling the High Court to enforce the limits imposed by the Constitution on the legislative power of the parliament: Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ: [42] The power of a court exercising jurisdiction under, or derived from, s 75(v) to grant a writ of mandamus, or prohibition or an injunction against an officer of the Commonwealth is a power to enforce the law that limits and governs the power of that officer. [43] What follows from the inclusion of s 75(v) in the Constitution is that is ‘impossible’ for Parliament ‘to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition’ [R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616]. The same is to be said of the impossibility of Parliament imposing a public duty with the intention that the duty must be performed and yet depriving this Court of authority by mandamus to compel performance of the duty imposed and of the impossibility of Parliament imposing a constraint on the manner or extent of exercise of a power with the intention that the constraint must be observed and yet depriving this Court of authority by injunction to restrain an exercise of that power rendered unlawful by reason of being in breach of that constraint.

CERTIORARI 17.2.1  The writ of certiorari enables a superior court to quash a decision on the ground of jurisdictional error, breach of natural justice, fraud, or error of law on the face of the record (grounds that overlap to a substantial degree). The core legal principles concerning certiorari have remained the same from one age to the next, yet those principles have adapted as the context of law and government has itself changed. In that way, the adaptation and development of certiorari illustrate a theme about remedies generally. 17.2.2  A classic statement about certiorari (and prohibition) that proved influential was the dictum of Atkin LJ in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171 at 205: 1043

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Control of Government Action

Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench division exercised in these writs.

17.2.3  The principle that certiorari issues to a body having ‘the duty to act judicially’ reflected the origins of the writ, specifically, that it was directed to an inferior court or tribunal requiring it to certify its official record to a superior court so that it could be scrutinised for legal error: see  R  v Northumberland Compensation Appeal Tribunal; Ex parte Shaw (Shaw) 17.2.9C; and McBain 2.3.9C especially McHugh and Hayne  JJ. It follows that a superior court of record is not generally amenable to the writ: Makucha v Sydney Water Corporation [2011] NSWCA 234. The notion of ‘acting judicially’ has broadened considerably over time, principally through the influence of parallel developments in the doctrine of natural justice. In Ridge v Baldwin 11.1.19C the House of Lords decided that the obligation to act judicially, to the extent of complying with the doctrine of natural justice, applied to administrators as well as courts and tribunals. Cases in which it is accepted that certiorari can be directed to administrative decision-makers include R  v Criminal Injuries Compensation Board; Ex parte Lain 17.2.10C, and Hot Holdings v Creasy 17.2.13C. It has even been suggested that ‘[t]here is no longer a requirement that there be an identifiable, additional element that the relevant decision-maker has a duty to act judicially before that decision-maker is amenable to the prerogative writs’; instead, ‘[t]he critical issue is whether the relevant decision-maker is exercising public power, relevantly, a statutory power’: Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 at [10] (Spigelman CJ). In that case it was held that even if the ‘superadded’ requirement of a duty to act judicially remained, ‘there seems little doubt that the adjudicator, in exercising a statutory function of determining the amount of a progress payment and the date on which such amount becomes payable, would fall comfortably within the scope of such a requirement’: at [84] (Basten JA). 17.2.4  The next principle in Lord Atkin’s formulation is that certiorari is directed to a body that can ‘determine questions affecting the rights of subjects’. The modern reformulation of that principle is that certiorari is granted only where there is a decision that has ‘a discernible or apparent legal effect upon rights’, that is, something that can be quashed: Hot Holdings Pty Ltd 17.2.13C at 159. Applying that principle the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 declined to issue certiorari to quash the opinion of a medical panel which had resulted in the dismissal of a statutory compensation application, as the application had been finalised and quashing the opinion would have no legal consequences: French CJ, Crennan, Bell, Gageler and Keane JJ: [492] The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an ‘apparent legal effect’. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.

This explanation of the role of certiorari was affirmed in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd 16.3.19C at [28] (Keifel CJ, Bell, Keane, Nettle and Gordon JJ). 1044

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17.2.5  A disputed issue in many cases is whether a report to government, or a preliminary step in an administrative process, has a legal effect or consequence within the scope of that principle. Certiorari was refused in Ainsworth v  Criminal Justice Commission 11.3.4C (discussed in Hot Holdings 17.2.13C) to quash a report that had been prepared in breach of natural justice because no legal consequence attached to the preparation of the report. Conversely, certiorari can issue if the action to be quashed is ‘a precondition to a course of action or as a step in a process capable of altering rights, interests or liabilities’: City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1 at [11]; see also Rodger v De Gelder (2011) 80 NSWLR 594. An illustration, from Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) (2009) 26 VR 172, is that