LAWS2011: Administrative Law â NOTES
LAWS2011: Administrative Law – NOTES Jurisdiction
2
Delegated Legislation
5
Remedies
7
Standing
10
Procedural Fairness
13
Reasoning Grounds
19
Jurisdictional Error
23
Privative Clauses
29
1
JURISDICTION NSW => Inherent Jurisdiction of the Supreme Court Application for review brought under s 23 SCA 1970 – inherent jurisdiction Writs now sought by statement of claim – s 69 SCA Cth => Inherent Jurisdiction of HCA HCA has jurisdiction whenever • a writ is sought against an officer of the Cth – s 75(v) • Cth is a party to proceedings – s 75(iii) HCA has the power to remit matters to lower courts with jurisdiction (e.g. FCA, FCCA) – s 44 Judiciary Act 1903 Cth => Inherent Jurisdiction of FCA s 39B Judiciary Act 1903 – inherent jurisdiction extends to writs sought against officers of the Cth, any matter arising under laws of Cth parliament
Cth => FCA under Administrative Decisions (Judicial Review) Act 1977 To be reviewable under the ADJR the decision must be: • Decision – s 5 • Conduct engaged in for the purpose of making a decision – s 6 o Conduct is procedural in character – action taken for the purpose of making reviewable decision (ABT v Bond) • Failure to make decision – s 7 To be reviewable a decision must be a final and operative determination of a substantive issue (ABT v Bond – fit and proper person – B & licensees) • Intermediate steps along the way to a decision will not be reviewable • If a determination is an essential preliminary to the taking of ultimate action/order it will be reviewable – statutory construction
2
Of an “administrative character” – s 3(1) • Factors to consider include (Roche Products – advertising of obesity drug) o Decision determined rules of general application => leg ! Placing of item in schedule determined future lawfulness of conduct o Parliamentary control => leg o Public consultation => leg o Broad policy considerations imposed => leg o Binding effect (i.e. not subject to executive variation or control) => leg Made under an enactment – s 3(1)(a) • Decision must be expressly or impliedly required or authorized by the relevant act (Griffith v Tang – university disciplinary proceedings) • Decision must alter/affect legal rights and its capacity to do so must derive from statute (Griffith v Tang) o Here they only came form code of conduct/contractual obligations – not enough • Decision made by statutory corporation is not made under an enactment – statute does not regulate all behaviour of the legal entity it established (General Newspapers v Telstra) o Look for the source of the power – is it the Act or the status of the entity as a corporation (NEAT v AWB) o Statutory conferral of power to enter into contracts does not entail that such contracts are made under and enactment (GN v Telstra) A report/recommendation will only be reviewable under the ADJR if it is required by the decision – s 3(3) • If this is the case the making of the report is deemed the making of a decision
If you can’t go under ADJR resort to s 39B – i.e. inherent jurisdiction of FCA
But ADJRe preferable – cheaper, better remedies, right to reasons (s 13)
3
The Public/Private Distinction Two approaches • Institutional Approach – Private bodies are generally unable to be subject to judicial review (NEAT, Tang) • Functionalist Approach – Private bodies exercising public functions can be subject to judicial review (Datafin – non-statutory panel of mergers and takeovers, Kirby J in NEAT) o Datafin held that the decision will be reviewable if: ! It contains a public element • e.g. enmeshed with government regulation, power to affect rights/interests etc. ! The sole source of the power is not consensual submission to jurisdiction of the DM A decision by a private contractor may be capable of review if it can be seen as part of the Minister’s exercise of power (Plaintiff M61/2010E v Cth – contractors used to review refugee backgrounds – Minister announced he would rely on them) ADJR Act Seems to endorse the institutional approach through the “under an enactment requirement” – NEAT Common Law Historical acceptance of functionalist approach – sports clubs etc. The exercise of a public power is capable of being reviewed (Forbes v NSW Trotting Club – exclusion from the dogs) • Public power = “power to affect members of the public to a significant degree” (Murphy J) • Here not simply proprietary right of exclusion as lots of people went to the dogs • Public power must be exercised with due regard to the persons affected by its exercise – procedural fairness required NB: no entitlement to prerogative writs – equitable relief only Public Contracts General principle – the executive cannot fetter a statutory discretion by entering into a contract (Ansett – 2 airline policy – could not imply term that Cth would not permit aircraft importation by other groups • Incompatibility => contract will be invalid • Exception applies if the contract is authorized by statute – no fetter
4
If contract relates to discretion of non-party and the unfettered exercise of the discretion is sufficiently preserved the contract will be valid but only enforceable through damages – not specific performance (Mason J in Ansett) DELEGATED LEGISLATION Unable to be reviewed under ADJR (not administrative character etc.) => go under s 39B Judiciary Act 1903 Three Step Process (Brennan J in SA v Tanner): (1) Construe terms of enabling statute (2) Ascertain scope and legal effect of impugned regulation (3) Determine whether the regulation is the ambit of the enabling statute Complement/Supplement Delegate legislation must be strictly ancillary to the enabling act – complement not supplement – look at purpose/object of enabling statute • Shanahan v Scott – general regulation of eggs invalid since enabling statute only enabled regulation for specific purpose There must be a rational relationship between the regulation and the purpose of the act (Evans v NSW – WYD regulations – “necessary and convenient”) • Absence of objective criteria may be sufficient to place regulation outside of ambit (Evans – inconvenience objectively determinable => valid, annoyance was not => invalid) Presumption that statute does not intent to limit common law rights/freedoms without express words (Coco; Evans)
Regulate/Prohibit Power to make regulations “regulating and restraining” does not confer a power to prohibit outright (even subject to approval) • Swan Hill v Bradbury – construction near roads o Maybe an exception for things that are in and of themselves evil or noxious A power to prohibit entails the power to prohibit outright or conditionally (Foley v Padley – pamphlet handing out without permission prohibited) • If prohibition dependent on opinion it is assumed that such an opinion is to be reasonable • Judicial review will operate as normal if discretion/opinion required
5
2
Delegated Legislation
5
Remedies
7
Standing
10
Procedural Fairness
13
Reasoning Grounds
19
Jurisdictional Error
23
Privative Clauses
29
1
JURISDICTION NSW => Inherent Jurisdiction of the Supreme Court Application for review brought under s 23 SCA 1970 – inherent jurisdiction Writs now sought by statement of claim – s 69 SCA Cth => Inherent Jurisdiction of HCA HCA has jurisdiction whenever • a writ is sought against an officer of the Cth – s 75(v) • Cth is a party to proceedings – s 75(iii) HCA has the power to remit matters to lower courts with jurisdiction (e.g. FCA, FCCA) – s 44 Judiciary Act 1903 Cth => Inherent Jurisdiction of FCA s 39B Judiciary Act 1903 – inherent jurisdiction extends to writs sought against officers of the Cth, any matter arising under laws of Cth parliament
Cth => FCA under Administrative Decisions (Judicial Review) Act 1977 To be reviewable under the ADJR the decision must be: • Decision – s 5 • Conduct engaged in for the purpose of making a decision – s 6 o Conduct is procedural in character – action taken for the purpose of making reviewable decision (ABT v Bond) • Failure to make decision – s 7 To be reviewable a decision must be a final and operative determination of a substantive issue (ABT v Bond – fit and proper person – B & licensees) • Intermediate steps along the way to a decision will not be reviewable • If a determination is an essential preliminary to the taking of ultimate action/order it will be reviewable – statutory construction
2
Of an “administrative character” – s 3(1) • Factors to consider include (Roche Products – advertising of obesity drug) o Decision determined rules of general application => leg ! Placing of item in schedule determined future lawfulness of conduct o Parliamentary control => leg o Public consultation => leg o Broad policy considerations imposed => leg o Binding effect (i.e. not subject to executive variation or control) => leg Made under an enactment – s 3(1)(a) • Decision must be expressly or impliedly required or authorized by the relevant act (Griffith v Tang – university disciplinary proceedings) • Decision must alter/affect legal rights and its capacity to do so must derive from statute (Griffith v Tang) o Here they only came form code of conduct/contractual obligations – not enough • Decision made by statutory corporation is not made under an enactment – statute does not regulate all behaviour of the legal entity it established (General Newspapers v Telstra) o Look for the source of the power – is it the Act or the status of the entity as a corporation (NEAT v AWB) o Statutory conferral of power to enter into contracts does not entail that such contracts are made under and enactment (GN v Telstra) A report/recommendation will only be reviewable under the ADJR if it is required by the decision – s 3(3) • If this is the case the making of the report is deemed the making of a decision
If you can’t go under ADJR resort to s 39B – i.e. inherent jurisdiction of FCA
But ADJRe preferable – cheaper, better remedies, right to reasons (s 13)
3
The Public/Private Distinction Two approaches • Institutional Approach – Private bodies are generally unable to be subject to judicial review (NEAT, Tang) • Functionalist Approach – Private bodies exercising public functions can be subject to judicial review (Datafin – non-statutory panel of mergers and takeovers, Kirby J in NEAT) o Datafin held that the decision will be reviewable if: ! It contains a public element • e.g. enmeshed with government regulation, power to affect rights/interests etc. ! The sole source of the power is not consensual submission to jurisdiction of the DM A decision by a private contractor may be capable of review if it can be seen as part of the Minister’s exercise of power (Plaintiff M61/2010E v Cth – contractors used to review refugee backgrounds – Minister announced he would rely on them) ADJR Act Seems to endorse the institutional approach through the “under an enactment requirement” – NEAT Common Law Historical acceptance of functionalist approach – sports clubs etc. The exercise of a public power is capable of being reviewed (Forbes v NSW Trotting Club – exclusion from the dogs) • Public power = “power to affect members of the public to a significant degree” (Murphy J) • Here not simply proprietary right of exclusion as lots of people went to the dogs • Public power must be exercised with due regard to the persons affected by its exercise – procedural fairness required NB: no entitlement to prerogative writs – equitable relief only Public Contracts General principle – the executive cannot fetter a statutory discretion by entering into a contract (Ansett – 2 airline policy – could not imply term that Cth would not permit aircraft importation by other groups • Incompatibility => contract will be invalid • Exception applies if the contract is authorized by statute – no fetter
4
If contract relates to discretion of non-party and the unfettered exercise of the discretion is sufficiently preserved the contract will be valid but only enforceable through damages – not specific performance (Mason J in Ansett) DELEGATED LEGISLATION Unable to be reviewed under ADJR (not administrative character etc.) => go under s 39B Judiciary Act 1903 Three Step Process (Brennan J in SA v Tanner): (1) Construe terms of enabling statute (2) Ascertain scope and legal effect of impugned regulation (3) Determine whether the regulation is the ambit of the enabling statute Complement/Supplement Delegate legislation must be strictly ancillary to the enabling act – complement not supplement – look at purpose/object of enabling statute • Shanahan v Scott – general regulation of eggs invalid since enabling statute only enabled regulation for specific purpose There must be a rational relationship between the regulation and the purpose of the act (Evans v NSW – WYD regulations – “necessary and convenient”) • Absence of objective criteria may be sufficient to place regulation outside of ambit (Evans – inconvenience objectively determinable => valid, annoyance was not => invalid) Presumption that statute does not intent to limit common law rights/freedoms without express words (Coco; Evans)
Regulate/Prohibit Power to make regulations “regulating and restraining” does not confer a power to prohibit outright (even subject to approval) • Swan Hill v Bradbury – construction near roads o Maybe an exception for things that are in and of themselves evil or noxious A power to prohibit entails the power to prohibit outright or conditionally (Foley v Padley – pamphlet handing out without permission prohibited) • If prohibition dependent on opinion it is assumed that such an opinion is to be reasonable • Judicial review will operate as normal if discretion/opinion required
5
