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Table of Content Source of Jurisdiction Standing Remedy Validity of Regulation Procedural Fairness Content of Hearing Rule Rule Against Bias Reasoning Process Decisional Grounds Privative Clause Errors of Law and of Facts
B y M a x G a o
p. 2-‐3 p. 4 p. 5-‐6 p. 7 p. 8 p. 9 p. 10 p. 11-‐12 p. 13-‐14 p. 14 p. 15
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Source of Jurisdiction HCA • Original Jurisdiction in respect of o Cth is suing or being sued – s 75(iii) o Decisions by “officers of the Cth” – s 75(v) • Appellate Jurisdiction wrt to certain matters conferred by parliament (subject to regulation and conditions imposed by parliament) – s 73 • Power of remittance to federal court – s 44 Judiciary Act Cth • Jurisdiction extends to private bodies if there is sufficient connection between the decision and the Cth (e.g. minister making decisions on recommendation from private body) - Plaintiff M61 Federal Court • Original jurisdiction similar to that of the HCA – s 39B Judiciary Act 1903 includes: o Cth is seeking an injunction/declaration – 1A(a) o Arising under the Constitution/its interpretation – (b) o Arising under any laws made by the Parliament, other than criminal matters – (c) • ADJR Act – s3(1) o A decision/making of decision of an administrative character made under an enactment o Excludes GG’s decision s (3)(1)(c) and schedule 1 decisions (migration Act privative D’s) Making of Decision • Making/suspending/revoking/refusing– s 3(2) • Reports/recommendations, if it is required by law before a decision can be made – s 3(3) • Conduct for the purpose of making a decision – s 6 • Failure to make decision – s 7 • Decision is not limited to final determination, yet it requires a degree of finality: it must not a mere step along the way to reach a final decision – Bond o Avoid fragmentation of DM process • Conduct in s 3(5) and s6 are not decisions, it is the way the DM conducting the DM process (procedural matters) o Finding of Facts is not a decision nor is it a conduct – Bond Administrative Character – Roche • Must be a decision affecting a person not the public • Must not be legislative in nature i.e. a rule of general application, the effect of which would determine the lawfulness of future conduct, applicable to the whole nation • If there is a broad, public consideration, it is most likely to be legislative Under an enactment • Authorised or required by an Act; given force or effect by the Act; by a principle applicable to the Act – General News paper v Telstra o Private K entered into by Telstra in the capacity as a company is not reviewable (unless the Act requires it) • Not if the decision is made under private capacity – Tang; NEAT Domestic Trading o Note in NEAT, Gleeson and Kirby JJ both agreed that the company is of a public entity: the difference being the CJ found the decision was made lawfully) • Only if a decision is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives legal force or effect – Tang o Kirby in his forceful dissent: if a person’s interest is so adversely affected, then there should be an avenue to review the decision. 2 Meaning: an ultimate or operative determination, which has force and effect by virtue of an enactment per Davies and Enfield JJ in Telstra
Public/Private Distinction • Nature of power: If a private body is exercising public power, then it is subject to judicial review – Datafin • If a private entity is exercising public power/public function, for the duration of its exercise of public function it must abide by public law – Forbes o 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 – Murphy J in Forbes Public Contract – Ansett v Cth • Private contract cannot fetter the ability of the govt. to make policies in the future • Entities can sue govt. for breach of K but cannot restrain its power State Supreme Court • All jurisdiction that may be necessary for the administration of justice in NSW – s 23 Supreme Court Act 1970 • Proceedings in lieu of writs – s 69 o Shall grant all those reliefs i.e. prohibition, mandamus, certiorari etc. – s 69(1)(c) o Issue of right when there is jurisdictional error – s 69(3)
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