ADMINISTRATIVE LAW
ADMINISTRATIVE LAW
SUMMARY
PX SOLUTIONS
Sources used......
THE FRAMEWORK OF ADMINISTRATIVE LAW
Judicial review
Grounds for judicial review of administrative decisions
Equitable remedies
Declaration
Injunction
Common law remedies
Justicability
Bond case
Eddleston v Health Insurance Commission
Wednesbury case
Chief Constable of North Wales Police v Evans
Johnson v Federal Commissioner of Taxation
Attorney General (NT) v Hand
Minister of Ethnic Affairs v Conyngham
Classification of functions
The relevance of statutory phraseology
Judicial Deference
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
CRITERIA FOR LAWFUL DECISION-MAKING
Judicial review of subordinate legislation
Shanahan v Scott
Morton v Union Steamship
Unauthorised decision making
Determining the scope of statutory authority
Executive power as a source of government authority
Limitations on the use of executive authority
A v Hayden
Ridgeway v The Queen
Legislation as a source of government authority
Principles for determining the scope of the statutory authority: rules of statutory interpretation
Specific examples of statutory presumptions which are relevant to public law
Attorney General v Smethwick Corp
Decision making by an unauthorised official - ADJR Act s(5)(1)(d)
Circumstances in which delegate or agent can be appointed:
Secretary, Department of Social Security v Alvaro
Fazal Din v Minster for Immigration
Decisions not made by an authorised body
Failing to make or implement a decision in accordance with statutory procedure -ADJR s5(1)(b)
Legislative scope and purpose
Acting for an unauthorised purpose
The authorised purpose
Municipal Council of Sydney v Campbell
The actual purpose
Multiple purposes
Considering irrelevant matters
Padfield v Minister of Agriculture, Fisheries and Food
Murpheyores Inc v Cth
Failing to take into account a relevant consideration
Failure to consider relevant matter
1. The matter was a relevant consideration
Sean Investments Pty Ltd v Mackellar
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
2. There was an obligation to consider
3. The decision-maker must have had actual/constructive knowledge of the matter
4. The matter was not considered
Other issues of relevance – axioms of interpretation
Human rights considerations
Anderson v Sullivan
Beneficial construction
Procedural fairness / natural justice
The four elements:
1. The nature of the interest being effected
Legitimate expectation:
Expectation in fact not required
2. The nature of the power being exercised
3. Specific decisional criteria
4. Nature of the officer making the decision
Decisions of vice-regal officers e.g Governor-general
Decisions of Cabinet
5. The effect or impact of the decision
6. The legislative procedural framework under which the decision is made
Circumstances when right of appeal will displace right to a hearing before primary decision-maker:
One decision but several operative parts of the decision-making process
7. Circumstances imply that no procedural fairness is needed
When will procedural fairness apply?
Implication of the Duty to Observe Natural Justice
The nature of the decision must be considered
Teoh
Koppen v Commissioner for Community Relations
Annetts v McCann
SA v O'Shea
Scope or content of the obligation of procedural fairness
The hearing rule
3 minimum requirements
Specific principles
- The requirement to give prior notice of the decision:
- Conduct of hearing: oral hearing or written submission:
The rule against bias
Waiver of bias
Vakauta v Kelly
Evidentiary basis for decisions
Pochi
Duty to enquire
The role of policy in government administration
Introduction
s5(2)(e) and s5(2)(f) of the AD(JR) Act.
The legal status of executive policies: legal principles
Relevance of policy
Weight/Influence of Policy
Ignoring/Breaching Policy
s5(2)(f)- exercise of a discretion in accordance with a rule/policy without regard to the merits of the case:
Directions
Ministerial Directions
Administrative tribunals and government policy
The error of law/error of fact distinction
Areas in which distinction arises
Distinguishing errors of law from errors of fact when applying legislation
Wrong application of a legislative standard to facts of particular case
Error of law at common law-‘error of law on the face of the record’
Practical Dimension to applying error of law
Statutory Review for error of law/fact
s5(1)(d): Decision not authorised by law
s5(2)(a): Taking into account of an irrelevant consideration
s5(2)(b) Failure to take account of a relevant matter
s5(2)(g) Unreasonableness
Two preconditions
No Evidence - s5(1)(h) and s5(3)(a), (b)
No evidence at common law
No evidence as a statutory ground of review
s5(3)(a): Non existence of an essential fact
ABT v Bond
Using other grounds of review under ADJR for factual deficiencies
Unreasonableness s5(1)(e), s5(2)(g)
General Principles
Ambit of Ground
Categories of unreasonableness
Decision devoid of any plausible justification
Giving Excessive or inadequate weight
Erroneous fact finding in relation to a significant point
Failure to seek information that was centrally relevant to decision and was readily available
Failing to have proper regard to departmental policy or representation
Decisions which are harsh in their effect/lack of proportionality
Choosing the least intrusive of harsh course of action
Making a decision that is inexplicably discriminatory or demonstrably inconsistent with other decisions
Procedural Irregularity
STANDING
Test for standing
What are 'Special Interests'
Standing under ADJR Act
Standing for AAT (and other Tribunals)
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THE FRAMEWORK OF ADMINISTRATIVE LAW
Administrative law = rules as to whether the decision of an administrative authority is to be subject to the controls of the courts.
A citizen with a grievance may seek redress by:
- action in the law courts
- proceedings in tribunals (judicial review or merits review)
- complaints within the administrative hierarchy
- working through the parliamentary process
- complaint to the ombudsman
Judicial review
Decisions which are legally flawed can be reviewed by courts. If a legal error is established , the court may set the decision aside.
Courts are limited to setting aside the decision complained of. Usually they are not vested with a power to substitute a different decision.
Judicial review facilities are not required to be traced to any legislative creation. They exist as part of the common law.
The Administrative Decisions (Judicial Review) Act 1977 facilitates judicial review.
Grounds for judicial review of administrative decisions
- Denial of natural justice
- Ultra Vires
- Jurisdictional error
- Error of Law on the Face of the Record
Where judicial review is available under the AD(JR) Act of the ALA it will often be advantageous to an applicant to pursue a statutory course rather than review at general law.
Equitable remedies
Declaration
A court order which creates, preserves, asserts or testifies to the existence of a legal right or duty or the correct legal position between the parties.
A declaration may be sought and granted:
- to the effect that only part of an administrative decision or action is invalid, provided the invalid part can be separated from the rest of the decision or action.
- in conjunction with some other remedy (e.g an injunction)
Injunction
A court order which
- restrains the commission or continuance of a wrongful act (prohibitory injunction); or
- directs the doing of something which ought to be done (mandatory injunction)
Common law remedies
Certiorari(use to get rid of a decision that has already been made)
An order from a superior court to:
- remove the official record of an administrative authority or tribunal or inferior court into the superior court for judicial review; and
- quash the decision of the inferior body, in the event that the superior court finds decision was ultra vires or was otherwise made in want or excess of jurisdiction or that there was a breach of the rules of procedural fairness or fraud.
- an error of law on the face of the record
Mandamus (used to compel a person or body to perform a lawful 'public duty')
Three requirements must be satisfied:
i) There must be a 'duty' to be performed
ii) The duty must be a 'public' one
iii) The duty must be 'lawful'
Prohibition(restrains decision-maker from exceeding its powers)
The ‘flip-side’ of mandamus.
Justicability
Some disputes are not reviewable under the AD(JR) Act
Bond case
Facts: Q. Whether Bond was a fit and proper person to hold a broadcasting license.
ADJR Act s3(1) defines 'decision to which this act applies' as meaning: a decision of an administrative character...made under an enactment.
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