Cheat Sheet, Study notes of Administrative Law

Download Cheat Sheet and more Study notes Administrative Law in PDF only on Docsity! LLAW2223 Administrative Law 2: Merits Review Cheat Sheet Exam 2016 Nadia You got this  QUESTIONS to ask of a question: TAILOR YOUR ANSWER TO THE QUESTION What happened in this question? Ask: is what I am writing relevant to what you are specifically being asked to do? 1. Who are the decision makers? (e.g., The Minister, The Commission, The Secretary) 2. What did they decide? (E.g., to grand a visa, to revoke a passport, to convene a hearing) 3. What procedure, if any, did they follow? 4. What factors did they take into account? Identify on work paper the issues, i.e. the questions to be addressed The ascertain the principles that would apply Then identify the cases/statutes that apply Apply the law to the facts of the problem Come to a conclusion o If the legal question is critical to the resolution of a matter they have to refer that matter to the federal court or federal circuit court to be determine there first, and then the tribunal matter can proceed  e.g., if the matter revolves around the legal definition of a word in a statute (matter of law) o They would be exercising a judicial style power o They can decide incidental matters of law  e.g., they can determine what a by-law in a statute means (or if the meaning has already been decided by a court they can use that meaning) o If you think the tribunal has made an error of law, then you have to go to a court to resolve that (or decided a matter of law that they shouldn’t have)  No judicial powers o Commonwealth tribunals lack the power to make determinative findings of law, and their decisions are subject to scrutiny by the courts, either through judicial review or statutory appeal on questions of law. The decision-making powers of tribunals are drawn from, and cannot exceed, those of the primary decision maker 2A Tribunal’s objective In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that: (a) is accessible; and (b) is fair, just, economical, informal and quick; and (c) is proportionate to the importance and complexity of the matter; and (d) promotes public trust and confidence in the decision-making of the Tribunal. Firstly, identify the decision to be reviewed The decision made to ____ was administratively made by _____ under ___(statute?). The nature of the power exercised to make this decision is a State/Federal statutory(?) power under ____Act. The responsible Minister for this Act is _____(?). Therefore, merit review should be at Federal level under the AAT Act 1975 (Cth). KEY THINGS YOU NEED FROM YOUR CLIENT: - What is the date of the decision? - Who is the letter from? Need the names of the decision-makers/authority o Department file number? - The reasoning of the decision - Does your client have an internal review option first that they have exercised? o Most organisations normally have an internal review officer o You go to the AAT after the internal review is finalised Justiciability and Reviewability Power/jurisdiction – what can the AAT review? ‘Decision’ Definition The idea of a decision being made is critical to what the AAT does - Better to chase after more final and operative decisions (have better odds) – in a more final stage - Looking for that it has affected the outcome/the person  has to have operative status to affect the person so they can get standing - Definition is similar to ADJR Act definition of a decision s 3(3) of the AAT Act 1975 (Cth) (3) Unless the contrary intention appears, a reference in this Act to a decision includes a reference to: (a) making, suspending, revoking or refusing to make an order 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 licence, 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. Definition of “decision” subject to review: s 3(3) - Decision has been judicially defined to be interpreted very broadly o Riordan v Parole Board of the ACT (1981) 3 ALD 144, 148 - Covers operative or final decisions - The AAT has no power to review a failure to make a decision o Its task is to review decisions o If no decision has been made, the AAT has nothing to review and it does not have the power to order action to be taken - There is a difference between a decision and the reasons for it (pointing to the differentiation in s 28 of the AAT Act between a decision and the reasons for it) o Austin v Secretary, Dept of Family and Community Services (1999) 92 FCR 138 - A person can only seek review of a decision. The reasons support the decision but cannot be reviewed independently of the decision o Re Tait and Secretary, Dept of Family and Community Services (2003) 74 ALD 247 Interpretation of “decision” - Interpreted to mean that the range of reviewable activity is unlimited o “aoristic” – Lockhart J in Riordan v Parole Board of the ACT (1981) 3 ALD 144, 148  (indefinite; indeterminate) - Prima facie it is intended to cover ultimate or operative determinations rather than determinations of issues arising in the course of making an ultimate or operative determination o Director-General of Social Services v Chaney (1980) 3 ALD 161 - However, the expression is not necessarily to be so confined. Its operation is ambulatory (not fixed; alterable or revocable). The items listed are only said to be “included” within the word and therefore it is permissible to look beyond the definition to ………(more detail in document) 1 Standing (aka locus standi) Who has the right to apply for AAT review? Standing means whether the applicant for AAT review is recognised (has standing) by the tribunal in the case. The rational for standing rules is broadly to exclude busy-bodies from intervening in matters that are not their proper business. AAT is empowered by ss 31 and 44(2) to determine standing issues. This should be sorted out at the beginning of proceedings. AAT Act 1975 (Cth) s 27(1) (1) Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision. Note: The enactment may be regulations made for the purposes of subsection 25(2) (review of decisions made in the exercise of powers conferred by a Norfolk Island enactment).  Key test: ‘interests affected’ (in a good or bad manner)  The applicant can be made by someone who’s interests are affect by the decision (there is case law on this)  Does that decision have some operative effect on your client?  Just have the show the tribunal that your client’s interests are affected – has been widely interpreted by the AAT to include your interest being affect in a bad way but in a good way as well  What kind of interest might someone have? o E.g. financial, reputation, economic interest (not a very hard test to satisfy) this is for individuals  Very wide standing rule  Cases: o Re Phillips (1978) 1 ALD 341 o Re Control Investments (No 1) (1981) 3 ALD 74  You can apply for review while interstate and even if you’re not a citizen (so very broad standing rules) o Re Akubata-Brown (1981) s 27(2)-(3) (2) An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association. (3) Subsection (2) does not apply in relation to a decision given before the organization or association was formed or before the objects or purposes of the organization or association included the matter concerned.  Dealing with an organisation being affected – objects or purposes of the organisation affected  Bit more to be proven here  Quite important for all of the environmental organisations………(more detail in document) 2