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•    he has received assurance from the decision-maker will not be withdrawn without having an opportunity to advance reasons why it shouldn’t be withdrawn.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of “procedural propriety” in public law, applicable to a case of legitimate expectations that a benefit ought not to be withdrawn until the reason for its proposed withdrawal has been communicated to the person who has enjoyed that benefit and that person has been given an opportunity to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).

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