Administrative Law Exam Notes, Exams of Administrative Law

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 !1 Table of contents Public law 3 Statutory interpretation 5 Commonwealth judicial review 8 Overview 9 Justiciability 10 Jurisdiction 12 Standing 16 Grounds of judicial review 17 Procedural fairness 18 Acting without power 22 Acting for an improper purpose 24 Mandatory relevant considerations 26 Irrelevant considerations 28 Unauthorised decisions 29 Unlawful and inflexible policies 33 Unreasonableness 35 Mistake as to jurisdictional fact 37 Error of law 40 Consequences of breach 44 Remedies 46 Privative clauses 51 Victorian judicial review 53 Human rights protections 57 Merits review 59 Reasons 63 !2 ABC Developmental Learning Centres v DHS — DHS sent letters to ABC Learning Centres inquiring about incidents involving harm, or risk of harm, to children at the Centres; the inquiries were purportedly made pursuant to s 36(1)(f) of the Children Services Act 1996, which required ‘a person… to answer a question to the best of that person’s knowledge, information and belief; or to take reasonable steps to provide information’; ABC Centres argued that the power of that provision was only enlivened when DHS officers were on the premises of a childcare centre. Held that DHS was acting without power. Properly construed, the provision only gave DHS officers such a power when they were on the premises of a childcare centre. Hollingworth J reasoned that this interpretation was consistent with the fact that the prison appeared under a part heading ‘Powers of Entry’. Her Honour concluded that Parliament intended that the powers only be conferred on DHS officers when they were on the premises of a centre. !23 Mandatory relevant considerations Under common law and ss 5(1)(e) and 5(2)(b) of the ADJR Act, an applicant may argue that the decision maker failed to take into account certain mandatory relevant considerations. (1) A person who is aggrieved by a decision … may apply to Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds: … (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; … (2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: … (b) failing to take a relevant consideration into account in the exercise of a power; Requirements To make out this ground, the applicant must establish: (1) the consideration in question was a mandatory consideration; (2) that the decision maker failed to take account of the consideration in making the decision; and (3) that such a failure materially affected the decision. 1. Establish that the consideration in question was a mandatory relevant considerations which the decision maker was obliged to take into account. • Some mandatory relevant considerations are expressly provided for in the statute (Williams), but most failed relevant considerations will be those that are implied (Peko). Relevant considerations may be implied from the subject matter, scope and purposes of the Act. • Consideration may be mandatory and relevant if illogicality or long time lapse occurs when it is not implied (Peko). 2. Establish that the decision maker did not take the relevant consideration into account when making the decision. • The onus is on the applicant to prove this. • Not that in Tickner, ‘consideration’ was defined as requiring an ‘active intellectual process’ by the Minister himself. • If decision maker has taken a relevant consideration into account but has failed to give it due or proper weight in contemplation, rely on ‘unreasonableness’ ground. !26 3. Establish that such a failure to take account of a relevant consideration materially affected the decision. • If a relevant consideration was not taken into account, but it is unlikely to have any affect on the decision, then the ground will not be made out (Peko). Minister for Aboriginal Affairs v Peko-Wallsend — Minister A establishes land trust for indigenous community, which deprives Peko (a mining company) from mining in the region; Peko make a submission to the Aboriginal Land Commissioner, who in turn produces a report for Minister A; Peko’s submission fails to fully disclose material information; before Minister A makes a decision on the basis of the Commissioner’s report, the government changes and Minister B takes over the portfolio; Minister B makes a decision disadvantageous to Peko; Peko challenges Minister B’s decision on the ground that he failed to take into account a relevant consideration. Court held that Minister B failed to take account of a relevant consideration. Mason J stated that the process of statutory interpretation determines what is (and what is not) a relevant consideration. In some Acts, the relevant considerations are stated explicitly, but in others they must be implied. Mason J held that the Minister was obliged to consider the extent of the detriment suffered by Peko as a result of the decision to grant land to the indigenous community. As a result, the decision had to be re-made by Minister B, taking account of that relevant consideration. However, Mason J also noted that some so-called mandatory considerations in statutes may be so insignificant as to have little or no effect on the eventual outcome of the decision. In other words, there must be a causal link between the failure to consider the relevant consideration and the actual outcome of the decision. Tickner v Chapman — Minister Tickner granted a declaration that prevented the construction of the Hindmarsh Bridge; according to the Heritage Protection Act, the Minister was required to appoint someone to prepare a report as to the heritage value of the area; the Minister did this, and the report contained all submissions made to the appointed person; some submissions were, for cultural reasons, for women’s eyes only; as the Minister was a man, he asked a female advisor to review the sealed submissions and summarise their contents; Chapman challenges the Minister’s ultimate decision on the ground that the Minister did not take into account a relevant consideration (in other words, that his advisor did, not the Minister per se). Court held that the Minister had indeed failed to take account of a relevant consideration. The Act in question required the Minister to personally consider each submission (despite the fact that some were for ‘women’s eyes only’). One section of the Act prohibited the delegation of the Minister’s duties. Black CJ held that the Minister should have read the sealed submissions himself, noting that he would have been permitted to under s 27 of the Act. !27