Published on 4/06/2007

Judicial Review: Justiciability

Justiciability: Who has got jurisdiction and what kinds of issues will the courts entertain. E.g. courts will not review matters of national security  it is not justiciable – not a matter for judges to be involve with

-   Only the superior courts, who are supervising decisions of administration by ordinary decision-makers, tribunals and lower courts, have jurisdiction to hear matters of judicial review.
-   Look at the jurisdiction the piece of legislation relates to: Cth legislation will be dealt with by the Cth courts and NSW legislation by NSW courts

Processes
-   In NSW: Decision-maker  NSWSC  Court of Appeal  HCA (no ADJR Act in NSW, all review based on common law)

-   Decision-maker (Cth) - Fed Ct (single judge) (ADJR ACT or Judiciary Act s39B) - Full Fed Ct (3 judges)  HCA
OR
-    Decision-maker (Cth) - HCA (Constitution)
-    you miss out a lot of steps, saving time and money
-    Problem is the HCA has a slower role. HCA exercising its appellate jurisdiction and ordinary jurisdiction. It is a longer, more costly process
-    Someone would go straight to the HCA if there is a privitive clause in place  restricting the courts ability to review.
-    A priv clause is more likely to reduce the powers of the Fed Ct which is a creature of statute. Parliament has sovereignty over Fed Ct. Parliament can amend legislation and limit the powers of the Fed Ct and its jurisdiction
-    The HCA has constitutional powers. Parl cant amend the constitution and cant affect the powers of the HCA under s75(v).
-    Kirby says it is ridiculous that many cases coming to the HCA in its orig jurisdiction because of privative clauses

Two remedial provisions of the ADJR Act that make it advantageous for applicants:
1.    Broad standing provisions
2.    Right to statement of reasons

-   If you can’t bring claim under ADJR Act can bring it under Judiciary Act. Federal court has jurisdiction under both Acts. You can bring application under both Acts in the alternative. If ADJR avenue is knocked back you can bring claim under s39B Judiciary Act.

1.    Judicial Review: Jurisdiction of the Courts
1.1    HIGH COURT: “CONSTITUTIONAL WRITS”

•    Commonwealth Constitution 1900 s75(iii) & (v) – original jurisdiction of HC
•    Judiciary Act 1903 (Cth) s44

Re Refugee Tribunal; Ex parte Aala
•    Original jurisdiction of HC was invoked because a privative clause in Migration Act (s476) effectively ousted the jurisdiction of the Federal Court
•    See Abebe, where the constitutionality of limiting the Federal Court’s jurisdiction was upheld – Federal Court has statutory jurisdiction
•    HC had to decide what kind of remedies it could grant. There is a group of common law remedies called prerogative remedies that the HC could give if there was unlawfulness.
•    HC said that in its original jurisdiction it will only grant constitutional remedies not common law remedies.
•    HC said we will no longer refer to remedies given to affected individuals as prerogative remedies, because these belong to the common law. Our remedies will be called “constitutional writs”.
•    Read Kirby J  We are doing something different from the common law. We are giving constitutional remedies.
•    Note: HC uses same terminology as common law remedies but they are in fact constitutional remedies.

1.2    FEDERAL COURT – Justiciability under the ADJR Act

The Federal Ct of Australia has two sources of judicial review jurisdiction
(a)    ADJR Act 1977 (Cth)
(b)    Judiciary Act 1903 (Cth) ss39B, 44

1.2.1    ADJR Act: Decisions Subject to Review

s 3(1) ADJR Act:
•    “Decision of an administrative character made under an enactment, other than a decision made by the GG or decisions in Schedule 1”:
•    Decision: ABT v Bond deals with what a decision is
•    Under an enactment: to use ADJR Act must have been a statutory power.
(1) In this Act, unless the contrary intention appears "decision to which this Act applies" means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not) under an enactment, other than a decision specified in Schedule 1.
Definitions:
"Duty" includes a duty imposed on a person in his or her capacity as a public employee; "enactment" means-
(a)    an Act, or a subordinate law (including part of an Act or of such a law);
(b)    sections 50, 51, 53 and 56 of the Australian Capital Territory (Self-Government) Act 1988 of the Commonwealth;
(c)    Division 5 of Part X of the Australian Capital Territory (Planning and Land Management) Act 1988 of the Commonwealth; or
(d)    the Canberra Water Supply (Googong Dam) Act 1974 of the Commonwealth;
"failure", in relation to the making of a decision, includes a refusal to make the decision; "Judge" means a Judge of the Supreme Court; "order of review", in relation to a decision, in relation to conduct engaged in for the purpose of making a decision or in relation to a failure to make a decision, means an order on an application made under section 5, 6 or 7 in respect of the decision, conduct or failure; "Rules of Court" means Rules of Court made under the Supreme Court Act 1933.

SCHEDULE 1 Section 3 DECISIONS TO WHICH THIS ACT DOES NOT APPLY

This Act does not apply to-
(a)    decisions making, or forming part of the process of making, or leading up to the making of, assessments;
(b)    decisions disallowing wholly or partly objections to assessments; or
decisions refusing to amend, wholly or partly, assessments; made under any of the following enactments: Taxation (Administration) Act 1987;Tobacco Licensing Act 1984; Financial Institutions Duty Act 1987; Payroll Tax Act 1987; Stamp Duties and Taxes Act 1987. This Act does not apply to decisions made under the following enactments: Inquiries Act 1991;Royal Commissions Act 1991. This Act does not apply to decisions made under Part IV of the Electoral Act 1992. This Act does not apply to (a) a decision of the Executive under subsection 5 (1) or 16 (3) or section 18 of the Judicial Commissions Act 1994. (b) A decision of a member of the Legislative Assembly to propose a motion in accordance with paragraph 14 (3) (a) of that Act or to give notice of the motion to the Attorney-General in accordance with paragraph 14 (3) (b) of that Act. (c) A decision of the Attorney-General under subsection 16 (1), 17 (1) or 23 (3) of that Act. (d) A resolution for the examination of a complaint in respect of a judicial officer by a Judicial Commission passed by the Legislative Assembly under that Act. Or (e) a decision of a Judicial Commission under that Act.

•    Express Exclusion: Decision made by the Gov General
•    GG exercises prerogative powers  powers which the head of state exercises generally as a matter of constitutional convention
•    Until Toohey case, generally accepted that all powers exerc by head of state were prerogative powers; also the head of state could not be brought before the courts.
•    Now courts don’t accept this
•    If you can’t satisfy all three elements you cannot rely on the ADJR Act. You can’t rely on the person aggrieved standing test and you can’t get statement of reasons. You would have to rely on the common law test which is narrower.

Migration Act 1958 (Cth) Part 8

1.2.2    What is a decision?

ADJR Act s 3(2)
In this Act, a reference to a making of a decision includes a reference to-
(a)    making, suspending, revoking or refusing to make an order, award or determination
(b)    giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission
(c)    issuing, suspending, revoking or refusing to issue a license, authority or other instrument
(d)    imposing a condition or restriction
(e)    making a declaration, demand or requirement
(f)    retaining or refusing to deliver up, an article; or
(g)    doing or refusing to do any other act or thing
- broad definition of a decision
- no absolute right to be reviewed
ADJR Act s3(3) where a provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this act, to be the making of a decision.

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Facts: The ABT commenced an inquiry under the Broadcasting Act 1942 (Cth) into the participation of Mr Bond in certain transactions involving companies he controlled, which had commercial broadcasting licenses. Mr Bond and his companies commenced action under the ADJR Act in respect of 18 decisions, findings or rulings of which 11 were described as ‘decisions’ and 7 as conduct.

Issue: what is a decision for the purposes of the act? Does it include investigatory proceedings?

Held (per Mason CJ):

1.    A reviewable decision is one which statute requires or authorises. That will generally, but not always, entail a decision which is final or operative and determinative of the fact falling for consideration. A conclusion reached as ‘a step along the way’ leading to an ultimate decision will not ordinarily amount to a reviewable decision unless statute requires the making or a report or recommendation as an essential preliminary to the making of the ultimate decision.

2.    Another essential quality of a reviewable decision is that it is a determination ‘effectively resolving an actual substantive issue’ and not a procedural determination. It has the ‘character of finality’. It doesn’t include investigatory proceedings (just a step along the way)
-   BUT: if the statute requires the making of a report or recommendation before a decision made, it would fall under the definition of a decision
-   E.g. O’Shea where parole board under stat requirement to make a formal recommendation- reviewable
-   Note: Person can also bring proceedings bc of conduct in decision making process. E.g. lack of PF. If ABT was a step along the way- can we see it as conduct? What ABT was doing wasn’t procedural, was substantive- going through facts and evidence. This isn’t a procedural matter. Not acts done prior to making decision = conduct
-   ‘decision’- substantive/conduct- procedural

Therefore in this case, the Tribunal’s finding that the licensee’s were no longer fit and proper persons to hold their broadcasting licenses under the Act was a reviewable decision. Although it was an intermediate determination made on the way to deciding whether to revoke or suspend the licenses or to impose conditions on them, it was a decision on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision.

On the other hand, the Tribunal’s conclusion that Bond was not a fit and proper person was not a determination that the Act provided for and was no more than a step in the Tribunal’s reasoning on the way to finding that the licensees were not fit and proper.

Findings of Fact: Are findings of fact a reviewable decision?
•    They are generally seen as a step along the way to the ultimate determination
•    Merits/legality/policy
•    BUT findings of fact are reviewable for error of law/no evidence
•    S5(1)(f) [error of law] not to be interpreted to mean ‘no probative evidence’
•    S5(1)(h) meaning ‘no probative evidence’ distinguishable
o    Particular matter established before exercising power v absence of evidence to support decision
o    Lesser burden and limited qualification to no evidence rule

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Steps taken to define a ‘decision’:
-   is it a final decision? Yes
-   Is it a recommendation/ report made consistently with stat duty to make the report? Making report a condition precedent- in nature of a jurisdictional fact that must be satisfied before the decision. Yes
-   Or is it simply an investigation being made prior to ultimate decision. No

Held (per Toohey & Gaudron JJ - dissent):
-   Decisions reviewable are not confined to acts involving exercise of or refusal to exercise a substantive power
-   Act applies to decisions forming part of the process or made in the course of other decisions
-   Acts confined by requirement of ‘under an enactment’- this is the phrase we should look at and the way of putting restrictions on the ADJR Act.
-   T’s findings re licensees = decision
-   T’s conclusion re bond not itself ‘decision’
-   Findings and conclusions though not required may bear on the issue for determination under an enactment
-   Any error attending conclusions or findings must be analysed to see if its reviewable under s5 of the act.

Policy considerations: ABT v Bond has been used to deny justiciability under ADJR Act where proceedings are a ‘step along the way’. Although s39B Judiciary Act is still available (review officer of CW) or at CL what important procedural entitlement is lost if there’s no ADJR Act.

1.2.3    Of an “Administrative Character”

* Evans v Friemann (1983) 35 ALR 428

Facts: A solicitor was informed by the Board of Examiners of Patent Attorneys that he had failed two out of three subjects in examinations for admission as a patent attorney. He requested the board to give statement of reasons under s13 ADJR act and requested copies of the answers in the subjects he failed. They gave him the reasons but not his answers. Sought review of decisions to fail him and give him his answers under the ADJR Act.

Issue: is the examination process the kind of decision we can regard as of an administrative character?

PRINCIPLE: to determine whether an activity is reviewable, it must be classified as administrative, as distinct from legislative or judicial. The process of examination is administrative. Note: a factor is whether there is any other means of redress; remedial statute. Non judicial tribunals should be subject to the act.

Held:
•    There was a decision w/in s3(1) of the Act
•    Classification of the activity (functions i.e. b/w legislative, judicial and administrative) remains necessary (NB: under PF said don’t need to classify decisions) to ascertain whether the person is making a decision of an administrative character.
•    ADJR Act maintains the constitutional trichotomy.
•    There can be no review of legislative or judicial actions w/in the act. This means no judicial review of subordinate legislation (this is a decision of a legislative nature- cant use ADJR to challenge CW regs) or judicial decisions/ (cant review decisions by judges).
•    Problem: the concept of ‘administrative’ is not by itself clear and distinctive
•    Non judicial tribunals created under an enactment should be subject to the act (even though their functions are quasi-judicial- tribunals are part of the administrative arm of govt so their decision making is reviewable).
•    Act is remedial and should be given wide construction and application. Need to examine the decision itself, not its subject matter.

Process of examination is ‘administrative’- so applicant can rely on ADJR Act:
“In the present case the decision to fail a candidate in an examination could be classified…in my opinion…as an incident in an administrative process and as of an administrative character. The role of the Board of Examiners is one of carrying out a purpose of the Patents Act…the process of arranging for, and promulgating the results of examinations are distinctly administrative”
•    Court said it may be that university exams are also subject to judicial review bc unis exercise stat powers as well. Wont decide now bc it may be that a person can resort to the uni appeal process- resort could be had to a visitor s10(2)(b)(ii).
•    Here there was none the applicant could go to except the board of examiners
•    Also no doubt ‘under an enactment’ – Patent Attorney Regulations.
Lamb v Moss (1983) 49 ALR 533

*Queensland Medical Laboratory v Blewett (1988) 84 ALR 615

Facts: Pursuant to S 4 Health Insurance Act the Minister for Community Services and Health placed a new pathology table in Sch 1A to the Act. Meant that Medicare benefits for pathology would be calculated according to the new table. Minister acted upon recommendations from the Pathology Services Advisory Committee as established in the Act. There was no calculation before the committee supporting the finding of a 5-8% reduction income and the only material dealing with various costs consisted of notes of limited inquiries made by one committee member. The members of the Australian Association of Pathology Practices claimed the new table would reduce pathologists practice income by 15 –20%. They bought proceedings against the Minister and committee seeking review. Minister argued it was a legislative, not administrative decision.

PRINCIPLE: There’s a distinction b/w formulation of new rules of law of general application (legislative) and application of general rules to particular case (administrative). The making of delegated legislation, whether it be by the minister or his delegate under a statutory power is legislative in character in a direct and immediate sense. It will thus be excluded from review from the ADJR Act.

Held:
•    Legislature determines the content of the law, executive applies it.
•    Here making delegated legislation, whether it be by the minister or his delegate under a statutory power is legislative in character in a direct and immediate sense. It will thus be excluded from review from the ADJR Act.
•    There’s a distinction b/w formulation of new rules of law of general application (legislative) and application of general rules to particular case (administrative).
•    Where apply general rules to individual cases = making an administrative decision. Minister’s determination was legislative (making a new rule) not administrative (applying a rule). It was to apply to all pathology services.
•    The minister was required to make a determination as to whether or not to change the schedule.
•    Had the minister’s decision been to not to make a determination, it would have been a decision of an administrative character. Bc legis says ‘you may make a decision’.
•    However, a determination made by the minister to change the schedule to the act is a decision of a legislative character and is not reviewable under the ADJR Act. He is executing a law of the CW.
•    When the minister makes a determination that the table specified in the determination be substituted for the pathology services table…he is making a decision of a legislative rather than an administrative character. The law was a permitted delegation by the Parliament of legislative authority and to exercise the power conferred by the law is to act as delegate of the Parliament and thus to act legislatively.
•    the ADJR Act is not applicable.

1.2.4    “Under an Enactment”?
•    ADJR Act s3(1) – “enactment” means an Act or an instrument (including rules, regulations or by-laws) made under such an Act

* Australian National University v Burns (1982) 43 ALR 25

Facts: The issue here was whether the termination of a persons employment by a university was under an enactment. S23 of the Australian National University Act (Cth) gave the ANU’s council a broad power to appoint staff and manage the university, but no express provision was under the Act or any delegated legislation that empowered the council to terminate appointments. Burns’ contract with the uni provided that ‘the Council may terminate the appointment of … any professor who has become permanently incapacitated from performing the duties of his office’. When Burns was served his termination, (the Council acted on a medical report saying Burns was seriously ill) he took ANU to court demanding a statement of reasons as per s13 of the ADJR. Initially, Burns was granted the request by the court on the grounds that the decision was made under an enactment. The uni appealed.

Held: Bowen CJ and Lockhart J-

PRINCIPLE: whether a decision is made under an enactment is a question of substance. Where a contract is entered into that governs the rights and liabilities b/w the govt and 3rd parties, actions taken in accordance with its provisions cannot be said to be made ‘under an enactment’.

•    All universities do operate under Cth statute, Q is whether termination of contract of employment is ‘under an enactment’
•    S 23 is the source of power to enter contracts, once a person is employed, that relationship is governed by contract. Concluded that the rights and duties between the uni and Burns was derived under a contract, and so the law of contract governed the relationship.
•    However it would be characterised as “under an enactment” if:
o    Uni council (which has power to make by-laws) had made a statute stipulating when profs could be dismissed/ enunciating their rights; and
o    Provisions of statute incorporated into contract
•    ADJR Act, “should not be confined to cases where the particular power is precisely stated. In each case the question to be asked in one of substance, whether, in effect, the decision is made ‘under an enactment’ or otherwise.”
•    They also rejected the test that ‘under an enactment’ is if a decision ‘lies at the very heart of those functions for which the body was established by statute,’ i.e. the particular position of a person (professor, lecturer, librarian etc) is not itself determinative of the question whether a decision of the Council was made under the Act. Since the decision arose from the contract it was not reviewable under the ADJR Act.
•    However, because Burns was dismissed on a particular ground, (permanent incapacity), provided for in the contract of engagement, then the rights and duties of the parties to the contract of engagement were derived under contract law and not the Uni Act.
•    Impact: As soon as govt enters into a contract, the 3rd parties’ rights must be enforced/actions brought in contract- a private law remedy.
•    Government’s personal capacity to enter contracts under CL or regs (Hawker), not under an enactment
Note: however, the two situations where it would have been different.

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* General Newspapers Pty Ltd v Telstra (1993) 117 ALR 629

Facts: Telecom had indicated that it was interested in tenders for printing the white and yellow pages. It went and inspected the premises of General Newspapers and they believed that they would have been called for a tender. Telecom went in house, and did not inform GN, and did not call for tenders. GN appealed.

Issue: whether this was justiciable under ADJR Act

Principle: A contract entered into by a corporation under a general power to enter into contracts is not given force and effect by the empowering statute. The empowering statute merely confers capacity to contract, whilst the validity and effect of the contract is determined by the ordinary laws of contract. The decision to contract is not justiciable under the ADJR Act as being made ‘under an enactment’.

Held: per Davies and Einfeld JJ
•    The term ‘decision’ meant, “an ultimate or operative determination which has force and effect by virtue of an enactment. A contract entered into by a corporation under a general power to enter into contracts is not given force and effect by the empowering statute. The empowering statute merely confers capacity to contract, whilst the validity and effect of the contract is determined by the ordinary laws of contract.”
•    Applying this principle here, GN was challenging the conduct that led into making a contract, and no statute provided specific provisions for this
•    What this case may mean: Shows that the conduct behind entering into a contract by a statutory body like Telecom, is not to be considered as a decision which is ‘under an enactment.’
•    Do get contractual capacity from statute, but the minute enter into contracts is private law.

INTERESTING ISSUES:

•    there a difference b/w ANU and here as here the contract hasn’t been entered into yet- so why is court insisting that Telstra is not engaging in conduct under an enactment?
•    Argument: court too fixated on contract and too willing to cut out of justiciability questions all sorts of govt contracts.
•    should such decisions be justiciable?
•    Implications for GBEs are serious – bc saying even before GBEs contract- in all preliminary stages before finalising contracts the process isn’t justiciable. Authority now excludes contractual decisions of GBEs from justiciability under the ADJR Act. Giorgas v Federal Airports Corporation
•    Courts are reluctant to make GBEs accountable in judicial review.
•    Consider thought: corporatised and privatised GBEs continue to exercise public power
•    Domestic bodies are reviewable for PF; why shouldn’t GBEs also be?

Neat Domestic Trading Pty Ltd v AWB Limited [2003] HCA 85
See Essay

“Conduct engaged in for the purpose of making a decision”

* Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Held: per Mason CJ:

PRINCIPLE: Conduct points to action taken in the decision making process and the way proceedings have been conducted as distinct from decisions made along the way or the final decision made. It is a procedural issue. It does not include findings of fact and inferences drawn from them, unless there has been a breach of procedural requirements.

•    Conduct points to an action taken rather than a decision made. The concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions along the way with a view to the making of a final determination – it is essentially procedural in character. (at 341-2)
•    “A challenge to conduct is an attack upon the proceedings engaged in before the making of a decision…. In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous.” (at 342)
•    “It follows, therefore, that substantive decisions, findings of fact and inferences from findings of fact generally are not capable of review as “conduct” unless what is alleged is some breach of procedural requirements in the course of the conduct involved in the reaching the relevant conclusion, although it is possible that they may give rise to subsequent conduct which is reviewable.” (at 343)
•    Any conclusions cannot be seen as procedural; the conclusion about Bond was  not procedural as it was no more than a step in the reasoning process.

Toohey and Gaudron JJ: Only review conduct if it is conduct for the purpose of making a decision

2.    Justiciability: Decisions that courts may decline to review
•    Justiciability at general law
•    Justiciability rested traditionally upon distinction between statutory/non-stat powers and doctrine of Crown immunity.

R v Toohey (Aboriginal Land Commissioner); Ex p Northern Land Council (1981) 151 CLR 170 at 219-221 (Mason J) and 282-283 (Wilson J)

Facts: A claim was made under the Land Rights Act for traditional Aboriginal land in Cox Peninsula NT. Commissioner held large part of this land came under a ‘town’ within the Act and could not be claimed. Administrator of NT made regulations under an Act specifying areas to be treated as towns. It was alleged that this regulation was invalid on its face or that it was made for the purpose of defeating the claim. Commissioner held that as the regulations were made by a representative of the Crown, bad faith could not be imputed to him and therefore his motives could not be called into question.

PRINCIPLE: The rule that acts of crown cannot be impugned not applicable to exercise of a statutory discretion. - Decision of the Administrator of the Northern Territory was held justiciable on the grounds of bad faith and improper purpose

Held: per MASON J:
•    The old rule was that “the King can do no wrong”.
•    Two reason tending to lead to affirmation of this principle:
1.    “prevention of unnecessary judicial intervention in the administrative process”
2.    “maintaining the secrecy of deliberations of the Crown”
•    Considering this “should the old rule be extended so as to apply to the exercise of statutory discretions? There are powerful reasons for saying “No”…the foundations on which the legal fiction was built have crumbled. It has ceased to serve a useful purpose and it is out of harmony with the current approach of courts to the review of statutory discretions”.
•    Therefore, the rule that the Crown is not subject to review does not apply to judicial review of statutory discretions of the Crown.
•    There is a difference between “the readiness of the courts to review a statutory discretion and their reluctance to review prerogative”. The refusal to review prerogatives has been explained by the “character and the subject matter” of the power.
•    Thus, Crown was reviewed under improper purpose (NB: see FAI case for review of the Crown for procedural fairness).

Council of Civil Service Unions v Minister for the Civil Service (“GCHQ Case”) [1985]
Facts: Govt Communications HQ (GCHQ) was a branch of UK public service. Function was to ensure the security of military and official communications and provide intelligence to govt. Secretary of State announced that GCHQ staff could no longer be permitted to belong to national trade unions. There had been no consultation with the employers or unions. There was a legitimate expectation that they would be consulted.

Issue: The government has prerogative powers by virtue of fact that they are the government. Is the exercise of these prerogative 'special' powers of the government amenable to judicial review?

Why they would be amenable – you need a right, interest of legitimate interest. Here there is a legitimate interest whether there's a prerogative power is neither here nor there.
Why they would not be amenable – Question at issue was national security. Ct said it brings into contrast procedural propriety and national security to which procedural propriety must yield

PRINCIPLE: When deciding whether a prerogative power is judiciable, one looks at the subject matter of the power, not its source. In matters where national security is at stake, the obligation to afford PF may be displaced and the decision wont be justiciable.

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The JUSTICIABILITY TEST:
•    to qualify as a subject for judicial review the decision must have consequences which affect some person, other than the decision-maker, either
a) by altering rights and obligations of that person
b) by depriving him of some benefit or advantage which either
•    he had in the past been permitted by the decision maker to enjoy and could legitimately expect to continue until notified of the grounds for discontinuance and having been given an opportunity to respond; or
•    he has received assurance from the decision-maker will not be withdrawn without having an opportunity to advance reasons why it shouldn’t be withdrawn. (b) is regarded as legitimate expectation)
•    There is no reason why a decision should be immune from judicial review simply because its source of power is derived from the common law (the prerogative) and not a statutory source.

•    Administrative action is subject to judicial review on three grounds:
1.    illegality
2.    irrationality (Wednesbury Unreasonableness)
3.    procedural impropriety (relating to procedural fairness)
•    The “crucial point of law in this case is whether procedural propriety must give way to national security when there is a conflict between
•    (1) the prima facie rule of “procedural propriety” in public law, applicable to a case of legitimate expectations that a benefit ought not to be withdrawn until the reason for its proposed withdrawal has been communicated to the person who has enjoyed that benefit and that person has been given an opportunity to comment on the reason. And
•    (2) on the other hand, action that is needed to be taken in the interests of national security, for which the executive government bears the responsibility and alone has access to sources of information that qualify it to judge what the necessary action is. To that there can, in my opinion, be only one sensible answer. That answer is “Yes”.” (at 412-413)
The appeal was dismissed.
Significance: In matters where national security is at stake the obligation to afford the principles of procedural fairness may be displaced and the decision will not be justiciable.
•    No reason why simply bc a decision making power is derived from common law (prerogative) and not statute it should for that reason alone be immune from judicial review.
•    Prerogative is justiciable, but the subject matter of the prerogative not the source is crucial.
o    Control of armed forces, treaty making, defence of realm, mercy honours, dissolution of Parl and appointment of ministers subject matters here not justiciable.

* Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218
Facts: Peko-Wallsend had mining interests in Kakadu National Park Stage 2. Under the National Parks and Wildlife Conservation Act 1975 (Cth) mining operations had to be confined to any existing mineral leases and any plan of management for the park. Peko-Wallsend made submissions to ministers, other government officers and parliamentary committees that their mining interests needed to be preserved in any plan of management for Kakadu National Park. The World Heritage Properties Conservation Act 1983 (Cth) was enacted to enable the Commonwealth in the future to protect ‘identified property’ under the Act. The Cabinet decided to nominate Kakadu and would present this idea at an international convention. Kakadu Park would then become an ‘identified property’ which was the condition precedent for the Governor-General to make a proclamation that mining operations in the area were unlawful without the consent of the Minister. Prior to the international meeting, Peko commenced a proceeding under s39B of the Judiciary Act claiming it had not been informed of this consideration when they were applying for licenses or for approvals. Peko is asking for an injunction. Peko was urgently trying to restrain the minister from listing the park under the UN convention.

Held:
•    Accepted GCHQ: “subject to the exclusion of non-justiciable matters, the courts of this country should now accept responsibility for reviewing the decisions of Ministers or the Governor-General in Council notwithstanding the decision is carried out in pursuance of a power derived not from statute but from the common law of the prerogative”
•    2 themes concerning justiciability
o    source and subject matter of power
o    status of decision maker

Subject matter: non-justiciable because it was a polycentric decision (involves complex issues of mining rights aboriginal affairs the economy and more). Issues are too complex to be decided by the courts- courts don’t have the expertise. The “subject matter of the decision in conjunction with its relationship to the terms of the convention placed the decision beyond review by the court”. – per Bowen CJ

The decision must have a direct and immediate effect on individual but may be inappropriate because of general policy considerations. Test not satisfied. – per Wilcox J

Status of Decision-Maker: All cabinet decision are non-justiciable: “Cabinet being essentially a political organisation…there is much to be said for the view that…it would be inappropriate for the court to interfere with what it does”. There are recognised channels for making submissions to cabinet and Peko should have pursued one. – per Sheppard J (Bowen J similar)

Obiter: Decision may be justiciable if exercising a statutory power.

* State of South Australia v O’Shea (1987) 163 CLR 378
Facts: The Criminal Consolidation Act 1935 (SA) provided that an offender of certain crimes against children should not be released unless “the Governor is satisfied, on the recommendation of the Parole Board…” (i.e. cabinet had statutory discretion). The Acts Interpretation Act (SA) provided that the “Governor” meant the Governor in Council (Cabinet). The board recommended that O’Shea be released but the Governor in Council decided not to act upon the recommendation. O’Shea commenced proceedings arguing that the Minister for Correctional Services had a duty to afford him a hearing before making a recommendation to the Governor in Council.

PRINCIPLE ► In general cabinet decisions are non justiciable (questions of policy), but exceptions can be made where the decision is closely related to justice to the individual or matters peculiar to the individual.

Held: MASON CJ:
2 objections to review of Cabinet:
1.    The fact that recommendations of the Governor in Council are based on Cabinet decisions and “Cabinet is a political institution primarily concerned with the ‘political, economic and social concerns of the moment’”.
-   However when issues are “more closely related to justice to the individual than with political, social and economic concerns” then there is “a duty to act fairly”.

2.    Cabinet meetings are held in secret and it does not give reasons for it’s decisions.
-   But it is held that this should not prevent “in an appropriate case” the requirement that “as an incident of natural justice of the exercise of a duty to act fairly that there be placed before Cabinet by the responsible Minister the written submissions of the individual affected by the decision to be made or an accurate summary of such submissions”.
•    Thus can review if policy has impact on individual and is not a matter of high level general policy.
•    But in this case there was no new facts and O’Shea had a chance to raise matters relating to pubic policy at the first stage of decision making (the Parole Board Stage).

Ruddock v Vadarlis [2001] FCA 1329 (18 September 2001) (Full Fed Ct) reversing Victorian Council for Civil Liberties Inc v Minister for Immigration & Multicultural Affairs [2001] FCA 1297. Leave to appeal to the High Court refused. (Tampa)

Facts: This case involved the Tampa Incident. A number of “refugees” were rescued from a sinking ship, and the rescuers attempted to take them to Christmas Island even without Australia permission to do so. Australian troops boarded the vessel to ensure that it didn’t enter the Migration Zone. Refugees taken to NZ and Nairu, because they were able to send them there to be kept in camps where UN would process their applications, but no obligation on Aust to process their applications bc they didn’t enter Aust. Vadarlis and Vic Civil Liberties group brought an action to Court for habeas corpus (bringing a person illegally detained before a court). Issue before fed court was whether or not the court could make this order? Justice North single judge decided the detention was unlawful and ordered that the ppl be brought to Australia- then the migration legislation would be applicable. Went to full federal court on appeal- decide whether the executive power of the Cth authorised and supported the expulsion of the rescuees and their detention. Also, if there was no such executive power, whether the rescuees were subject to a restraint attributable to the Cth and hence amenable to habeas corpus.

Issue: (1) Were the powers exercised under statute, or under exercise of the prerogative power to exclude aliens in time of peace, as provided for either under common law of s61 of constitution. (2) Were the rescuees under the custody and control of the Cth.

Held:
3 judges on appeal questions that arose

1) the nature of this executive power- can do things in the national interest- is this applicable here?
•    Statute can replace the prerogative- test is whether the statute deals with the same subject matter. If it does then it displaces the prerogative power. Q: is there an express or implied intention to displace this CL prerogative?
•    Looked at migration act- border protection- the powers therein are very extensive. N.48 an implied intention to supersede the prerogative so the prerogative had gone. Cth couldn’t exercise this executive function. If he’s going to give remedy needs to find they are detained.
•    The Court held that the executive power extends to a power to exclude non-citizens from entering our territory
•    Statutes will not abrogate executive powers unless by express words or necessary implication. The Migration Act, in this instance, did not evince an intention to abrogate executive power.
•    It was held that the actions of the Commonwealth were properly incidental to preventing rescuees from landing on Australian territory. Hence the actions were authorised by law.
•    Strong dissent of Black CJ: ask whether the prerogative of crown could ever give rise to a right to expel aliens from the country- the gate keeping function. He said its hardly ever, if ever been used in these kind of circumstances to act as a gate keeper. Even if it has been used it’s fallen into disuse over a long time  cannot be reactivated.

2) whether they were actually being detained/restrained- a factual question? If yes habeas corpus appropriate remedy- if not detained, inappropriate remedy,
•    have to show Cth had the custody and control of the ppl on board the vessel. Cth argued they didn’t have custody and control- there for humanitarian reasons, not detaining them bc they were free to leave at any point.
•    Black CJ (dissent) said they were under the custody and control because they had no access to communication and nowhere to go (controlled by SAS and ADF).

Continued on page 5

Continued

Majority view
Gate keeping
•    executive power the Cth govt has from constitution isn’t directly related to the prerogative power of crown under CL- need  look at s61. Majority interprets this that its clear the executive is entitled to perform this gate keeping function.
•    At 183- need to find intention to displace prerogative/exec power in statute. Want to see a total and utter exclusion in statute of the power. A partial exclusion of power doesn’t displace the gate keeping function. Don’t find this- is still a residual power.

Custody and control:
•    Court concludes there was no restraint on liberty which could be attributed to Cth.
•    Actions of Cth incidental to prevent rescuees from landing in Australia w/ nowhere else to go. Troops were incidental to objective of preventing a landing- also humanitarian purposes. The Nairu NZ arrangements only practical solution.
•    It’s a dispute of fact as to whether under custody and control and whether executive power survives migration legisl.
•    Applied for leave to appeal to HCA- Gaudron J: says she cant help bc the people are now in NZ or Nairu. Detained under their laws and Australian courts have no jurisdiction.

3.    Justiciability: Privative Clauses
-    A privative clause is a provision in a statute purporting to prevent judicial review by ousting the court’s jurisdiction. They are classified as either absolute privative clauses (no review) or limited privative clauses (review only on certain grounds or within certain time limits).
-    An example of a privative clause is provided in s474 of the Migration Act. A privative clause decision is final and conclusive, and must not be challenged, appealed against, reviewed, quashed or called into question in any court. Decision is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. Most (but not all) sections of the Migration Act are privative clause decisions.
-    Privative clauses have often been described as a “challenge to the rule of law” as they prevent the judiciary from ensuring that Parliament act within their powers. However, there are a number of practical reasons for the clauses:
a.    Will reduce the backlog of cases in the Court system (providing for administrative efficiency).
b.    The Courts do not have the special knowledge of the situation unlike the deciding bodies. However, the Courts argue that this doesn’t matter, as they are only trying to ensure the decision maker stays within their powers (judicial review), not whether they make the correct decision (merits review).
c.    The Parliament is concerned that the judiciary will construe and interpret statutes differently to what the government had in mind. Very weak argument however.
•    Two types of privative clause

3.1 Finality Clauses

* Hockey v Yelland (1984) 157 CLR 124
Facts: A labourer slipped on the job and suffered a cerebral haemorrhage. He claimed under the Worker’s Compensation Act 1916. Section 14C(11) stated that the opinion of the Neurology Board “shall be final and conclusive” and the court shall not “question” its decision.

Principle: To exclude certiorari, the words in the act must be unequivocal (i.e. that the decision “shall not be quashed or called into question”) Privative clause doesn’t exclude ordering certiorari for excess of jurisdiction or error of law on the face of the record.

Held:
Gibbs CJ:
•    To exclude certiorari, the words of the act expressing this must be unequivocal (e.g. that the decision should not be “quashed or called into question”)
•    A provision that a decision is to be final doesn’t prevent the issue of certiorari for excess of jurisdiction or error of law on the face of the record.
•    Here “hearing and determination” related to the findings of fact- they didn’t exclude the court’s power to ascertain whether the decision was made in accordance with the law.
•    Certiorari was available to rectify an error of law on the face of the record.
•    The board accepted the facts before them, but concluded that they did not constitute an injury within the meaning of the act. NO error of law was committed.
Wilson J:
•    Question of the jurisdiction of the court.
•    Can only exclude judicial review if clear legislative intent to that effect is demonstrated- here cant be “quashed or called into question”. Here use the words “heard or determined.. by way of appeal” SAME as “ shall be final and conclusive” these set as final the merits, not the legality of the case.
•    Writ of certiorari is here limited- appellant must show an error of law on the face of the record of the proceedings.
•    HELD there was no error of law.

3.2 “No Certiorari” and “Shall not be questioned” Clauses
*    “No certiorari” clauses try to cut off judicial review by removing available remedies.
*    “Shall not be questioned clauses” try to cut off the grounds of judicial review.
*    ‘Time limit’ tries to cut of applications to the court once time has expired.

Two basic rules of construction:
1.    Cth legislation must be interpreted subject to the Constitution –including s75 the High Court’s jurisdiction.
2.    It is presumed that legislation does NOT intend to curb the jurisdiction of the courts unless the statute expressly states so or it is necessarily implied.

The protection which a privative clause affords is qualified by the Hickman principles:
1.    the decision must be a bona fide attempt to exercise the power
2.    the decision must relate to the subject matter of the legislation
3.    the decision must not on its face go beyond power

The Hickman provisos do not qualify jurisdictional limitations (Plaintiffs S157/2002)
1.    a privative clause cannot extend or expand the power of the decision maker
2.    a non-judicial body cannot determine conclusively the limits of its jurisdiction
3.    a privative clause purporting to protect“ decisions” does not protect “purported decisions” – i.e. invalid decisions

A privative clause does not protect from judicial review decisions that: (Plaintiffs S157/2002)
•    transgress constitutional limits
•    involve jurisdictional error
•    breach a duty to observe procedural fairness
•    involve fraud, bribery, dishonesty or other improper purpose
Some procedural or other requirements may be construed as not essential to the validity of a decision

•    If the error goes to jurisdiction (e.g. tribunal acting beyond jurisdiction), it will still be reviewable BUT an error made within jurisdiction will not be reviewable. The court can get around the ouster clause by classifying the error to be beyond jurisdiction, thereby there would be no valid decision and nothing to oust: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147,

* Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (4 February 2003)
-    The plaintiff applied for a protection visa under the Migration Act, but a delegate for the Minister for Immigration refused the application. The plaintiff challenged s474 and s486A of the Act.
-    The privative clause under s474 would be invalid if it attempted to oust the jurisdiction conferred on the High Court by s75(v) of the Constitution. However, this was not the case in the present situation.
-    A privative clause cannot operate to confer juridical power on a non-judicial body. Thus, a non-judicial decision maker cannot be empowered to determine conclusively the limits of its own jurisdiction.
-    It is presumed that legislation does not intend to cut down the jurisdiction of the courts save to the extent that the legislation expressly states or necessarily implies.
-    A privative clause which purports to protect decisions does not protect “purported decisions”. Thus, decisions infected by jurisdictional error are only purported decisions (in law there is no decision at all).

Issue: whether s474 Migration Act 1958 can oust the original jurisdiction of the HCA to grant remedies of prohibition, mandamus, injunction and certiorari.

Continued on page 6

Continued

PRINCIPLE: 1. Hickman Principle: If the decision on its face appears to be within jurisdiction and is a bona fide attempt to act within authority it will not be regarded as invalid. See statutory construction rules- Parliament doesn’t intend to deprive people of freedoms. 2. privative clauses: need to be reconciled with the rest of the act to ascertain their effect. A privative clause cannot give a tribunal the right to exercise judicial power i.e. the right to determine conclusively the limits of its own jurisdiction. If no juris has been established, at law there has been no decision. It reaffirms the court’s ability to review in spite of a privative clause, where there is a jurisdictional error. Because where there is a jurisdictional error there is no decision. If it is not a decision under the act the privative clause cannot attach to it because the privative clause operates with the act.

Held:
Gleeson CJ:
•    Parliament cannot abrogate or curtain the Court’s constitutional functions of protecting the subject against violation of the constitution.
•    But Parliament can determine the content of the law to be enforced by the court
•    Long line of cases that hold that a court can’t be deprived of the right to review a tribunal on the basis of jurisdictional error.
•    As part of principles of statutory construction, ‘privative clauses are construed ‘by reference to a presumption that the legislature does not intend to deprive the citizens of access to the courts, other than to the extent expressly stated or necessarily to be implied.’
•    Furthermore, ‘what is required is a consideration of the whole Act, and an attempt to achieve a reconciliation between the privative provision and the rest of the legislation.’
•    Need to interpret the legislation as a whole to see if the limits have been transgressed.
•    Hickman Principle: If the decision on its face appears to be within jurisdiction and is a bona fide attempt to act within authority it will not be regarded as invalid.
•    Following principles of statutory construction are relevant:
o    Where legislation is enacted pursuant to international obligations, ambiguities in legislation will be interpreted consistently with the obligation.
o    Courts don’t impute intention to abrogate fundamental freedoms w/o clear intention.
o    Constitution framed consistently with the rule of law
o    Presumption that Parliament doesn’t intend to deprive citizens to access to court except to the extent provided
o    Must consider the whole act (Hickman)
o    Parliament has not evinced intention that tribunal can act in breach of PF
•    People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness. If Parliament intends to provide that decisions of the Tribunal, although reached by an unfair procedure, are valid and binding, and that the law does not require fairness on the part of the Tribunal in order for its decisions to be effective under the Act, then s474 does not suffice to manifest such an intention.
•    S474: It follows then, ..if the Tribunal’s decision in relation to the Plaintiff was taken in breach of the rules of natural justice, as is alleged, then it is not within the scope of protection afforded by s 474. It is not, relevantly, a decision to which s474 applies.
•    s474 not only applies to decisions that have been made but also covers a refusal to make a decision, conduct preparatory to the making of a decision, and other acts or omissions which may involve something that is a purported decision, but not a decision under the Act.
Privative clauses
Gaudron, Mchugh, Gummow, Kirby, Hayne JJ
•    HCA said as far as they’re concerned where there is a privative clause (new privative clause under s474 which said every decision made under act is a privative clause decision- don’t want courts interfering)
•    Court decided bc tribunal doesn’t have jurisdiction, not a decision under act
•    New test interpreting priv clauses- need to reconcile it w/ rest of act to decide its effect. Court found in this legis Parl couldn’t have intended tribunal to make kinds of mistakes that take it outside its jurisdiction. Reaffirming that Jurisdictional Errors are always reviewable.
•    No general rule of meaning of priv clause- effect depends on its reconciliation w/ other provisions. Look at whole act to see which other ways the tribunal’s powers were constrained.
•    A privative clause cannot give a tribunal the right to exercise judicial power i.e. the right to determine conclusively the limits of its own jurisdiction. If no juris has been established, at law there has been no decision.
•    So if there is a jurisdictional error then in law there is no decision at all. If it is not a decision under the act the privative clause cannot attach to it because the privative clause operates with the act.
•    Prohibition, mandamus and injunction apply to jurisdictional errors.
•    Remedies in s75(5) const of prohibition etc are available, certiorari is available where prohibition is appropriate.
•    Migration legis need to find juris errors bc if don’t find them cannot exercise powers of jud rev at all.

Note: If need to court can now bring all grounds of ultra vires w/in scope of juris error. UV-relevant and irrelevant considerations, procedural fairness are both definitely regarded as JEs by courts. Other categories not yet defined.

3.3 Impact of privative clauses on time limits

S157 Case - purpose of a time limit
•    s. 486A of Migration Act - no applications for review outside of 35 day time limit from date of actual notification of decision
•    High Court: s486A will not apply to a “decision” when there has been jurisdictional error (so in effect applications can be made outside of time limit). Because if there is a JE there is in effect no decision, so no time limit can attach.

Woolworths Ltd v Pallas Newco Pty Ltd (NSW Supreme Court)
Facts: ‘Validity of consent cannot be questioned’ outside 3 month time limit
Under planning legislation councils allowed to make Local Environmental Plans (LEPs). Ashfield council would map out the area it has jurisdiction over and zone the area for different uses. In addition to zoning, there are consent provisions. I.e. can put up a house in residential area with consent. Also some things are completely prohibited in zones e.g. industrial prohibited in residential zone. Council granted Woolworths the power to develop under a consent provision. Ct restrained woolworths from exercising power under the consent. If the activity is prohibited, then the council cannot give consent to it otherwise it will be changing the whole LEP. Looks at issue of public participation: If you are going to change an LEP, part 3 says this requires public participation. Council can’t consent to something that is prohibited.

Spigelman CJ:
Distinguishing time limit in s. 101 from the limit in S157 Case on 3 main grounds:
•    Public notification is a precondition of s 101 (policy considerations of certainty needed in planning and development consents). Privative clause is dealing with different policy considerations, planning and development consent is different from decisions about refugees. The whole planning scheme depends on certainty.
•    s. 101 permits any challenge within time period whereas s. 486A is a complete bar outside of time period
•    Phrase ‘validity of consent’ is distinguishable from ‘cannot be called into question’ and word validity is intended to protect decisions from jurisdictional error outside of time period. The language is different from that in S157.

Decisions after the time period can be challenged, but the test is different (not S157 test). The only thing that will challenge a decision outside the time period are the Hickman principles (3 point test). i.e. bona fide attempt to exercise power, decision relates to subject matter, and decision is reasonably capable of reference to power give to decision-maker.