Download Administrative Law: Process and Structure and more Lecture notes Administrative Law in PDF only on Docsity! Administrative Law — Process and Structure 1. Justiciability a. Jurisdiction: is it a Commonwealth or State (NSW) matter? b. Commonwealth — what is the relevant court and basis for judicial review? i. Federal Court 1. AD(JR) Act, s 3(1): ‘decisions of an administrative character made under an enactment’ can be reviewed. a. Does the matter meet this requirement? b. Is it an exempted decision? e.g. national security c. Use AD(JR) if possible: provides statutory procedure, grounds, and remedies to make whole process easier. 2. Judiciary Act, s 39B: use when the AD(JR) is not available —gives FCA common law judicial review power — need to find jurisdictional error OR error of law on face of record: a. Writs: any matter where a writ of mandamus or prohibition (or certiorari) is sought against a Cth officer. b. Equitable Remedies: any matter where an injunction (or declaration) is sought against a Cth officer. c. Cth Laws: any matter arising under Cth law. 3. Migration Act, pt 8: separately granted jurisdiction for migration. 4. Remittal: Judiciary Act, s 44: HCA can remit matters to FCA ii. High Court 1. Constitutional Writs, ss 75(iii), 75(v): jurisdiction to do the following — need jurisdictional error OR error of law on the face of the record: a. Writs: mandamus or prohibition (or certiorari) sought against Cth officer. b. Equitable Remedies: injunction (or declaration) sought against Cth officer. 2. Appellate Jurisdiction, s 73(ii): from FCA and State Supreme Courts c. State (NSW) — NSW Supreme Court has the following jurisdiction: i. Inherent Jurisdiction: Supreme Court has inherent jurisdiction to conduct judicial review and issue writs and equitable remedies need to show either: 1. Jurisdictional error (always available), or 2. Error of law on face of the record (can be modified by statute) – record in NSW includes transcript of decision – s 69(4), Supreme Court Act ii. Supreme Court Act, s 23: affirms common law power of judicial review, still need to show either jurisdictional error OR error of law on face of the record. d. Privative Clause (other limitation clause)? — is there a privative, ‘no invalidity’, or ‘time limit’ clause that purports to limit the jurisdiction of the court or the grounds of review? i. Generally ok: privative clauses are generally valid and can oust as much jurisdiction and as many grounds of review as they like, subject to certain exceptions. ii. Entrenched Minimum Judicial Review: privative clauses cannot remove the jurisdiction of the HCA or State Supreme Courts to issue writs and remedies for jurisdictional errors. 2. Standing — only need to make an issue of standing if facts ask for it. a. Basis for Review — is the matter under the AD(JR) or common law? b. ADJR: aggrieved person test. c. Common Law: special interest test. d. Alternatives to Standing: could the applicant intervene or be an amicus curiae? 3. Grounds of Review: breaches of administrative law norms a. Basis for Review — is the matter under the AD(JR) or common law? i. AD(JR): frame the grounds around the statutory provisions (ss 5-6): 1. Procedural grounds 2. Reasoning Process grounds 3. Decisional grounds ii. Common law: need to show jurisdictional error or error of law on the face of the record (latter may be modified by statute) to invalidate decision — frame response around jurisdictional error or error of law and then go into substantive grounds: For non-ADJR matters, state the basis for judicial review (e.g s 39B, Judiciary Act) and the specific remedy that will be sought by the applicant on the facts. Then becomes a matter of proving whether the ground exist to justify that remedy (e.g. jurisdictional error). Remember: Remedies are discretionary.
