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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