MONASH UNIVERSITY
MONASH UNIVERSITY ADMINISTRATIVE LAW NOTES
Guide to Answering Administrative Law Questions If no limitations or qualifications E.g. Advise P as to his prospects of success in seeking to challenge D decision that he should get a licence Consider in this order Merits review – AAT o Jurisdiction o Standing o What it is that the AAT does o What principles it applies when it is doing what it does – hear the matter a fresh o If you can make an argument on behalf of P as to why the AAT on the merits should come to a different decision o Remedies – what you think the AAT is likely to do: make the decision in the same way, or make a different decision Note: If the legislation doesn’t permit appeal to hear the appeal of decision of that particular kind then o Only have regard to the issue of jurisdiction o Say why it doesn’t and what is necessary for the AAT to have jurisdiction and why it doesn’t here ADJR act (if you form the view that any of the following elements are not made out, say assuming I am wrong and move on to consider the next element) o Jurisdiction o Standing o Reasons – indication as to whether reasons are available under the ADJR act - Don’t have to say much – as it is dependent upon jurisdiction and standing would have already done the substantive analysis as to whether the applicant has reasons o Grounds of review o Consider as many of the ground of review that you think are plausible on the facts o If it’s a non-starter then don’t mention it o Remedies S75(5) constitution, s39(b) of the judiciary act (Common Law) o Briefly as an add on to consideration of the ADJR act o Jurisdiction under s75(5) or s39(b) if the decision maker is an officer of the commonwealth – makes a decision under commonwealth legislation is an officer of the commonwealth If the decision is the sort of decision for which one of the prerogative writs is available - Most commonly sought is certiori o Standing o Grounds Same in substance as the ultra vires grounds different label (jurisdictional error) if previously considered the ADJR act say: refer to analysis above in the ADJR act however the arguments would have to be framed in terms of jurisdictional error o
Remedies Very briefly Already discussed remedies you want in jurisdiction If there is a qualification If the question said advise P as to his prospects of success in seeking to challenge D decision pursuant to judicial review – no merits review ADJR S75(5) and s39(b) If it says pursuant to the ADJR act - Only look at the ADJR act
AAT: Tribunal (Merits) Review 1. What is Merits Review? A merits review involves standing in the shoes of the decision maker, with the same powers as the original decision maker. Cf judicial review which concerns the lawfulness of decisions. Merits review involves a reconsideration of all aspects of a decision: questions of law, fact, discretion and policy; the legally correct, or preferable outcome of a decision; o
Legally correct means it is not based on a misunderstanding of the law;
o
preferable involves a balancing of relevant factors (Re Becker; Drake);
Consideration of the merits of the administrative decision : o Decision maker – A decision maker providing an adverse decision to an applicant based on their understanding of the law as relevant to the applicants submissions and relevant policy o
Merits Review Body – A body or tribunal who can rehear a matter an remake a decision based on its understanding of the law as relevant to the applicants submissions and relevant policy
Two forms o Internal review tribunals – operates within government departments o External review tribunal – the legislation pursuant to which the decision is made may provide that a person adversely effected may appeal to an outside person or tribunal such as the AAT
2. Jurisdiction – What are the rights to have a merits review? There is no general law right to have an administrative decision reviewed on a merits basis by the AAT, rather an enactment may allow application to the AAT for decisions under that enactment (s2(1)(a) AAT act) Upon an application, the AAT may review the decision (s25(4)). The AAAT can consider issues not considered by, and can exercise powers and discretion of, the original decision-maker Common Law o There is no general law right to have an administrative decision reviewed on a merits basis, the empowering legislation must give permission to appeal to the AAT There must be express statutory power conferred on a person-tribunal to conduct such a review o The decision challenged must have been made under an enactment which allows a person-tribunal to conduct a merits review Statute: AAT act 1975 (Cth) o Made in Exercise of Power – s25(1)(a) – Allows a Statute to provide a review of decisions to the AAT for an exercise of power of such an Statute
o
“An enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by the enactment Applications made to it – s25(4) – Allows the tribunal to review any decision of any application which is made to it.
Here, clearly falls within the s3 definition of enactment {includes Acts, Ordinances, and other statutory instruments including rules, regulations or by-laws}, with s ______ providing AAT’s power to review. If the power if review is limited under the section s_________ however only confers power to the AAT to review made under the state s25(3)(a)(b). The decision to_____________ falls under/ does not fall under this power and therefore it may be/ may not be reviewed by the AAT Limiting Review Power: o Certain types of Decision – s25 (3)(a) and (3)(b) – the Statute may confer power to the AAT to review only certain types of decisions made under the Statute. o Impose conditions on Review – s25(3)(c) Includes all purported exercises of power = even if they act illegally o Collector of Customs (NSW) v Brian Lawlor Automative o Held: Decision means, under AAT 3(3), a decision in fact so made Delegates o Decision is reviewable ss 34(ab)(1)(c) AAT act
3. Standing – Does the applicant have standing under the AAT act? A person or persons whose interests are affected may bring the application (AAT Act s 27 (1)). An organisation interests whether incorporated or not, shall be taken to have interests which are affected by a decision if the decision related to a matter included in the object and purposes of the organisation (AAT Act s27(2). In this case ____________ If interests are indirectly affected see Re Manhattan v Collector of customs Interests are affected o S27 (1)AAT “An application for appeal may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interest are affected by the decision” o S27(2) AAT Provides that an organisation whether incorporated or not, shall be taken to have interests which are affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation E.g. public interest bodies
Re Manhattan v Collector of customs o Held Brennan J S27(1)- interest of this section speaks of interests ‘to be reviewed’ – not be the review It in enough if there interests are affected indirectly – not directly Here it was thought that his interests are so minor that they are not effected Reputation depends on the repetitive validity or acceptance of opinions expressed the making of a particular demands effect a reputation No ‘hard and fast rule’ as to how ‘remote’ an affection of interest can be
4. Reasons – Right to reasons under the AAT? Where an application can be made to the AAT, a person who may be an applicant is entitled to request written reasons of the decision made(s 28). Materials and reasons behind a reason will have to be lodged with the AAT within 28 days of receiving notice of the application for review (s37) Note: if it is a matter of security or public interest or already know then reasons will not be required S28 AAT – Allows a person who is entitled to bring an application to the AAT to request written reasons of the decision made o Reasons are not required if it is a matter of security interest or public interest or already known S37 – the decision maker who decision is under review by the AAT must lodge material and reasoning behind the decision with the AAT within 28 days of receiving notice of the application for review
5. Power of the AAT (Grounds) The AAT has the same powers of the original DM in a full De Novo hearing (s 43 (1) AATA) and will not be restricted by arguments and material put before the Primary DM. The AAT must stand in the shoes of the original decision maker in order to determine the correct or preferable decision (Esber v Commonwealth). However the AAT will not be limited by the reasons of the primary DM and may rely on additional evidence or arguemnts (Re Greenham v Minister for Capital Territory) S43(1) provides that the AAT – may exercise all the powers and discretions which a primary decision has conferred upon them Tribunal can ‘affirm, vary, set aside or remit’ a decision under review o Trial De Novo – s43(1) AAT infers the Tribunal is NOT restricted by arguments and material put before the primary decision maker Stand in the ‘Shoes’ of the decision maker – the AAT must determine the correct or preferable decision by standing in the shoes of the original decision maker (Esber v Commonwealth ) o They try and make a legal decision – one that doesn’t breach any of the grounds for review The law applied in remaking the decision is the law in force at the time of the appeal rather than the original decision o EXCEPTION (Esber v Commonwealth) : s8 Acts interpretation act – there is a presumption that if someone has an accrued right before the act is repealed the
appealing of the act will not deprive them of that right (a conditional or contingent right) i.
Re Greenham & Minister for Capital Territory i. Held: Scope of review: i. AAT is not limited by the reasons of the primary decision maker for rejecting the applicants arguments ii. AAT is not limited by the reasons advanced by applicant for having the original decision overturned. iii. The body may rely on different or additional evidence or different or additional arguments from those relied on at first instance
ii.
Drake v Minister for Immigration & Ethnic Affairs i. Held: The AAT cannot ‘abdicate its function of determining whether the decision was the correct or preferable one in favour of a function of merely determining whether the primary decision conformed with the relevant policy’
Procedure under the AAT
The AAT is not a court of law. S33 provides broad authority to conduct proceedings as the AAT feels necessary. The AAT is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks appropriate (s 33(1)(c)).The proceedings of the AAT are conducted with as little formality and technicality, and as quickly as permitted by the requirements of the act and proper consideration of the matter (s33(1)(b)) i.
The AAT is not a court of law a. The AAT act doesn’t specify whether they are to act inquisitorially or adversarial b. S33 provides broad authority to conduct proceedings as the AAT feels necessary i. S33 (1) (a) - The procedure the Tribunal adopts will be in its discretion ii. s33(1)(c) - The tribunal is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks appropriate
ii.
Common law requirements a. Logical and relevant evidence – The fact that the Tribunal is not bound by the rules of evidence does not justify the Tribunal making decisions without any basis in evidence that has some rational probative force. Further although the AAT is not bound by the rules of evidence they may be helpful in guiding the Tribunal in a common sense way i. Per( Re Pochi and Minister for Immigration and Ethnic Affairs) b. Standard of proof – plaintiff prove case on the balance of probabilities – this isn’t the case with the AAT – (McDonald v Director General of Social security) i. Because the tribunal is not bound by the rules of evidence, there will be no legal onus on the appellant to prove his case ii. Rather the tribunal should adopt a common sense approach as to what it thinks is the correct answer – this is concerning as how do they come up with what the correct decision (refer below for suggestion) iii. But (cf Epeabanka v Minister) – the AAT 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” and it should therefore do that
6. Government Policy
In making the decision the AAT will often apply governmental policies standards and values to help guide their decision in order promote consistency and compliance with the legislation (Drake
Guide to Answering Administrative Law Questions If no limitations or qualifications E.g. Advise P as to his prospects of success in seeking to challenge D decision that he should get a licence Consider in this order Merits review – AAT o Jurisdiction o Standing o What it is that the AAT does o What principles it applies when it is doing what it does – hear the matter a fresh o If you can make an argument on behalf of P as to why the AAT on the merits should come to a different decision o Remedies – what you think the AAT is likely to do: make the decision in the same way, or make a different decision Note: If the legislation doesn’t permit appeal to hear the appeal of decision of that particular kind then o Only have regard to the issue of jurisdiction o Say why it doesn’t and what is necessary for the AAT to have jurisdiction and why it doesn’t here ADJR act (if you form the view that any of the following elements are not made out, say assuming I am wrong and move on to consider the next element) o Jurisdiction o Standing o Reasons – indication as to whether reasons are available under the ADJR act - Don’t have to say much – as it is dependent upon jurisdiction and standing would have already done the substantive analysis as to whether the applicant has reasons o Grounds of review o Consider as many of the ground of review that you think are plausible on the facts o If it’s a non-starter then don’t mention it o Remedies S75(5) constitution, s39(b) of the judiciary act (Common Law) o Briefly as an add on to consideration of the ADJR act o Jurisdiction under s75(5) or s39(b) if the decision maker is an officer of the commonwealth – makes a decision under commonwealth legislation is an officer of the commonwealth If the decision is the sort of decision for which one of the prerogative writs is available - Most commonly sought is certiori o Standing o Grounds Same in substance as the ultra vires grounds different label (jurisdictional error) if previously considered the ADJR act say: refer to analysis above in the ADJR act however the arguments would have to be framed in terms of jurisdictional error o
Remedies Very briefly Already discussed remedies you want in jurisdiction If there is a qualification If the question said advise P as to his prospects of success in seeking to challenge D decision pursuant to judicial review – no merits review ADJR S75(5) and s39(b) If it says pursuant to the ADJR act - Only look at the ADJR act
AAT: Tribunal (Merits) Review 1. What is Merits Review? A merits review involves standing in the shoes of the decision maker, with the same powers as the original decision maker. Cf judicial review which concerns the lawfulness of decisions. Merits review involves a reconsideration of all aspects of a decision: questions of law, fact, discretion and policy; the legally correct, or preferable outcome of a decision; o
Legally correct means it is not based on a misunderstanding of the law;
o
preferable involves a balancing of relevant factors (Re Becker; Drake);
Consideration of the merits of the administrative decision : o Decision maker – A decision maker providing an adverse decision to an applicant based on their understanding of the law as relevant to the applicants submissions and relevant policy o
Merits Review Body – A body or tribunal who can rehear a matter an remake a decision based on its understanding of the law as relevant to the applicants submissions and relevant policy
Two forms o Internal review tribunals – operates within government departments o External review tribunal – the legislation pursuant to which the decision is made may provide that a person adversely effected may appeal to an outside person or tribunal such as the AAT
2. Jurisdiction – What are the rights to have a merits review? There is no general law right to have an administrative decision reviewed on a merits basis by the AAT, rather an enactment may allow application to the AAT for decisions under that enactment (s2(1)(a) AAT act) Upon an application, the AAT may review the decision (s25(4)). The AAAT can consider issues not considered by, and can exercise powers and discretion of, the original decision-maker Common Law o There is no general law right to have an administrative decision reviewed on a merits basis, the empowering legislation must give permission to appeal to the AAT There must be express statutory power conferred on a person-tribunal to conduct such a review o The decision challenged must have been made under an enactment which allows a person-tribunal to conduct a merits review Statute: AAT act 1975 (Cth) o Made in Exercise of Power – s25(1)(a) – Allows a Statute to provide a review of decisions to the AAT for an exercise of power of such an Statute
o
“An enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by the enactment Applications made to it – s25(4) – Allows the tribunal to review any decision of any application which is made to it.
Here, clearly falls within the s3 definition of enactment {includes Acts, Ordinances, and other statutory instruments including rules, regulations or by-laws}, with s ______ providing AAT’s power to review. If the power if review is limited under the section s_________ however only confers power to the AAT to review made under the state s25(3)(a)(b). The decision to_____________ falls under/ does not fall under this power and therefore it may be/ may not be reviewed by the AAT Limiting Review Power: o Certain types of Decision – s25 (3)(a) and (3)(b) – the Statute may confer power to the AAT to review only certain types of decisions made under the Statute. o Impose conditions on Review – s25(3)(c) Includes all purported exercises of power = even if they act illegally o Collector of Customs (NSW) v Brian Lawlor Automative o Held: Decision means, under AAT 3(3), a decision in fact so made Delegates o Decision is reviewable ss 34(ab)(1)(c) AAT act
3. Standing – Does the applicant have standing under the AAT act? A person or persons whose interests are affected may bring the application (AAT Act s 27 (1)). An organisation interests whether incorporated or not, shall be taken to have interests which are affected by a decision if the decision related to a matter included in the object and purposes of the organisation (AAT Act s27(2). In this case ____________ If interests are indirectly affected see Re Manhattan v Collector of customs Interests are affected o S27 (1)AAT “An application for appeal may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interest are affected by the decision” o S27(2) AAT Provides that an organisation whether incorporated or not, shall be taken to have interests which are affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation E.g. public interest bodies
Re Manhattan v Collector of customs o Held Brennan J S27(1)- interest of this section speaks of interests ‘to be reviewed’ – not be the review It in enough if there interests are affected indirectly – not directly Here it was thought that his interests are so minor that they are not effected Reputation depends on the repetitive validity or acceptance of opinions expressed the making of a particular demands effect a reputation No ‘hard and fast rule’ as to how ‘remote’ an affection of interest can be
4. Reasons – Right to reasons under the AAT? Where an application can be made to the AAT, a person who may be an applicant is entitled to request written reasons of the decision made(s 28). Materials and reasons behind a reason will have to be lodged with the AAT within 28 days of receiving notice of the application for review (s37) Note: if it is a matter of security or public interest or already know then reasons will not be required S28 AAT – Allows a person who is entitled to bring an application to the AAT to request written reasons of the decision made o Reasons are not required if it is a matter of security interest or public interest or already known S37 – the decision maker who decision is under review by the AAT must lodge material and reasoning behind the decision with the AAT within 28 days of receiving notice of the application for review
5. Power of the AAT (Grounds) The AAT has the same powers of the original DM in a full De Novo hearing (s 43 (1) AATA) and will not be restricted by arguments and material put before the Primary DM. The AAT must stand in the shoes of the original decision maker in order to determine the correct or preferable decision (Esber v Commonwealth). However the AAT will not be limited by the reasons of the primary DM and may rely on additional evidence or arguemnts (Re Greenham v Minister for Capital Territory) S43(1) provides that the AAT – may exercise all the powers and discretions which a primary decision has conferred upon them Tribunal can ‘affirm, vary, set aside or remit’ a decision under review o Trial De Novo – s43(1) AAT infers the Tribunal is NOT restricted by arguments and material put before the primary decision maker Stand in the ‘Shoes’ of the decision maker – the AAT must determine the correct or preferable decision by standing in the shoes of the original decision maker (Esber v Commonwealth ) o They try and make a legal decision – one that doesn’t breach any of the grounds for review The law applied in remaking the decision is the law in force at the time of the appeal rather than the original decision o EXCEPTION (Esber v Commonwealth) : s8 Acts interpretation act – there is a presumption that if someone has an accrued right before the act is repealed the
appealing of the act will not deprive them of that right (a conditional or contingent right) i.
Re Greenham & Minister for Capital Territory i. Held: Scope of review: i. AAT is not limited by the reasons of the primary decision maker for rejecting the applicants arguments ii. AAT is not limited by the reasons advanced by applicant for having the original decision overturned. iii. The body may rely on different or additional evidence or different or additional arguments from those relied on at first instance
ii.
Drake v Minister for Immigration & Ethnic Affairs i. Held: The AAT cannot ‘abdicate its function of determining whether the decision was the correct or preferable one in favour of a function of merely determining whether the primary decision conformed with the relevant policy’
Procedure under the AAT
The AAT is not a court of law. S33 provides broad authority to conduct proceedings as the AAT feels necessary. The AAT is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks appropriate (s 33(1)(c)).The proceedings of the AAT are conducted with as little formality and technicality, and as quickly as permitted by the requirements of the act and proper consideration of the matter (s33(1)(b)) i.
The AAT is not a court of law a. The AAT act doesn’t specify whether they are to act inquisitorially or adversarial b. S33 provides broad authority to conduct proceedings as the AAT feels necessary i. S33 (1) (a) - The procedure the Tribunal adopts will be in its discretion ii. s33(1)(c) - The tribunal is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks appropriate
ii.
Common law requirements a. Logical and relevant evidence – The fact that the Tribunal is not bound by the rules of evidence does not justify the Tribunal making decisions without any basis in evidence that has some rational probative force. Further although the AAT is not bound by the rules of evidence they may be helpful in guiding the Tribunal in a common sense way i. Per( Re Pochi and Minister for Immigration and Ethnic Affairs) b. Standard of proof – plaintiff prove case on the balance of probabilities – this isn’t the case with the AAT – (McDonald v Director General of Social security) i. Because the tribunal is not bound by the rules of evidence, there will be no legal onus on the appellant to prove his case ii. Rather the tribunal should adopt a common sense approach as to what it thinks is the correct answer – this is concerning as how do they come up with what the correct decision (refer below for suggestion) iii. But (cf Epeabanka v Minister) – the AAT 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” and it should therefore do that
6. Government Policy
In making the decision the AAT will often apply governmental policies standards and values to help guide their decision in order promote consistency and compliance with the legislation (Drake
