ADMINISTRATIVE LAW EXAM NOTES. PART I - ESSAY The Rule of Law... Separation of Powers... Open Standing... PART II - PROBLEM Q DELEGATED LEGISLATION...

Transcription

1 ADMINISTRATIVE LAW EXAM NOTES PART I - ESSAY The Rule of Law... Separation of Powers... Open Standing... PART II - PROBLEM Q DELEGATED LEGISLATION... JUDICIAL REVIEW... SIMPLE ULTRA-VIRES... PROCEDURAL ULTRA-VIRES... EXTENDED ULTRA-VIRES ABUSE OF POWER Improper Purpose... Irrelevant and Relevant Considerations... Unreasonableness and Irrationality... Uncertainty... No Evidence... FAILURE TO EXERCISE DISCRETION Inflexible Application of Policy... Acting under Dictation... Sub-delegation... PROCEDURAL FAIRNESS Hearing Rule... Bias Rule... Jurisdictional Error... Privative or Ouster Clauses... REMEDIES PREROGATIVE WRITS... Prohibition... Certiorari... Mandamus... DECLARATION... INJUNCTION... STATUTORY REMEDIES (ADJR ACT)... 1

2 PART I - ESSAY THE RULE OF LAW The conceptualisation of the rule of law, as articulated by English jurist A.V. Dicey ( ) in Introduction to the Study of the Law of the Constitution (1959), provides the conceptual foundation of modern administrative law. Mason J writing extra-judiciously has described the Rule of Law in the modern context as having a "chameleon-like quality", which can be "illustrated by the many different claims made for its application, including among other things, parliamentary supremacy,judicial review of the executive action,judicial review of legislative action, adherence to precedent, persistence in a minority opinion and the protection of human rights 1. Government action will be unlawful unless it is supported by legal authority - Entick. 2. Legislation is presumed not to abrogate fundamental rights, freedoms or immunities other than by express and unambiguous language - Coco. i.e protection of civil liberties - Haneef v Minister for Immigration (2007) held minister s power to cancel visa for association with suspect in criminal conduct. 3. Governments do not inherently possess power to authorise officials to act in defiance of the criminal law - Hayden. Fullagar J noted in Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 262 (Communist Party Case), in our system the principle of Marbury v Madison is accepted as axiomatic. As a judicial check upon Parliament, the power is a fundamental protection for the people from arbitrary, or unconstrained action by their elected representatives (Kerr and Williams, 2003, 219). Gleeson CJ further stated that it is also relevant that the Australian Constitution is framed upon the assumption of the rule of law, and quoted Brennan J in Church of Scientology v Woodward (1982) 154 CLR 25 at 70 as follows: Judicial review is neither more nor less than the enforcement of the rule of law over executive action; JUDICIAL REVIEW the principles underlying judicial review are the rule of law and the principle of legality that is, that the role of judicial review is to ensure that only administrative decisions authorised by law have legal force (Selway) Privative clauses - purport to exclude review of an exec decision by the judiciary. Plaintiff s Gaudron, McHugh, Gummow, Kirby and Hayne JJ stated that the outcome in Plaintiff S157 reflected two fundamental constitutional propositions (at 473): First, the jurisdiction of this court to grant relief under s 75(v) of the Constitution cannot be removed by or under a law made by the parliament. Specifically, the jurisdiction to grant s 75(v) relief where there has been jurisdictional error by an officer of the Commonwealth cannot be removed. Secondly, the judicial power of the Commonwealth cannot be exercised otherwise than in accordance with Ch III. The parliament cannot confer on a non-judicial body the power to conclusively determine the limits of its own jurisdiction. 2

3 s 75 of the Comm Constit the joint judgment expressed the view that s 75(v) introduces into the Constitution of the Commonwealth an entrenched minimum provision of judicial review (at 474). As Gleeson CJ ephasised, the grant of jurisdiction [by s 75(v)], unalterable by the Parliament, secures a basic element of the rule of 456 Jurisdictional error - any error of law renders decision reviewable - SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 at 196, the High Court referred to the oftquoted statement that fraud unravels everything, articulating that decisions made in bad faith may be invalid regardless of questions about the decision-maker s powers. All ultra-vires grounds of admin review (abuse of power and procedural fairness) stem from the notion of the rule of law. the rule of law enforces minimum standards of fairness, both substantive and procedural. R (Pierson) v Secretary of State for the Home Department [1998] AC 539 CF Justiciability (prerogative powers etc - illustrates tension/balance)/ (NB very broad interpretation given to s 51 HoP which 'strongly point against the restraint creating any real guarantee of judicial review' (Meyers, 2012, 146) Gaudron, McHugh, Gummow, Kirby and Hayne JJ recognised that the Constitution does not preclude the Parliament from authorising in wide and general terms subordinate legislation under any of the heads of its legislative power (at 474), Gleeson CJ recognised this in Plaintiff S157 when he stated: Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed. But it cannot deprive this court of its constitutional jurisdiction to enforce the law so enacted. In Marbury v Madison, Marshall CJ stated (at 177): It is emphatically the province and duty of the judicial department to say what the law is. In Plaintiff S157, the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ concluded with the following words (at 474): In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this court. The court must be obedient to its constitutional function. 3

4 SEPARATION OF POWERS The doctrine of separation of powers is part of a robust interplay and delicate balance between the arms of government. The division of government powers between the legislature (parliament), which makes the law; the executive, which administers and enforces the law; and the judiciary, which interprets and applies the law. Cf distribution of power. The tripartite scheme of separation of powers can be traced to the work of the French philosopher Montesquieu. It is reflected in the Australian Constitution Ch III: legislative power vests in the Parliament (s 1); executive power (nominally) in the Queen (s 61); and judicial power in the courts (s 71). Recognised in: Boilermaker's Case (1956) Dixon CJ, McTiernan, Fullagar and Kitto JJ joint judgment: Even if you knew nothing of the history of the separation of powers you would still feel the strength of the logical inferences from Chaps I, II and III and the form and contents of ss 1, 61 and 71. It would be difficult to treat it as a mere draftman s arrangement this cannot all be treated as meaningless and of no legal conseq Effect of Separation of Powers: - Act as a system of checks and balances; 'the ideal of separation of powers is a principle of institutional design that recommends disaggregation of power and a system of checks and balances' (2003, 117) - Prevent arbitrary use of power; Tension between separation and concentration of power will always exist. Meakes v Dignan recognised that there was little separation between exec and legislative powers, as they are inextricably linked. Legislative power may be delegated to the executive. Recent years - Federal Parliament has sought greater power as a response to social or political issues such as terrorism (ASIO Act 2003) and refugees (Malaysian Solution Case). Merits Review v Judicial Review (admin v judicial power) The division between judicial and exec functions is reflected in the criteria for lawful decision making applied by the court, which is premised on a legality/merits distinction. Drake v MIEA - AAT and persona designata Extension of judicial review of: - actions taken by vice-regal officers - Toohey + FAI; - actions of security intelligence organisations - Woodward; - exercise of prerogative power - Peko-Wallsend; The courts apply the statutory expression of the people s will in individual cases - Brennan J writing extra-judiciously (cited in Creyke and McMillan, 2009, 317). In Enfield v Develop Assis Corp (2000) Gleeson CJ, Gummow, Kirby and Hayne JJ cited with approval Brennan J in Quin (1990) that the essential characteristic of judicature is 4

5 that it declares and enforces the law which determines the imits of power conferred by statute upon admin decision-makers. Classification of Powers - While the classification of powers as legislative, judicial or executive (administrative) has been increasingly questioned, the labelling of powers still occurs for various purposes. In R v Kirby, Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 (the Boilermakers case) the High Court upheld a strict distinction between the judicial and other powers, denying the validity of bodies other than courts exercising the judicial powers of the Commonwealth. - For example, the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) only applies to decisions or conduct of an "administrative character". Conversely, the Legislative Instruments Act 2003 (Cth), which covers delegated legislation, applies to instruments of a legislative character. The principle of not mixing two powers - executive (administrative) and judicial power has not been applied with the same strictness to the delegation of legislative power to the executive. The most important case in this regard is: Victorian Stevedoring and Meakes v Dignan (1931) 46 CLR 73. FACTS: The result of a protracted political controversy, the case was a challenge to the Scullin Labor government's use of regulations to introduce preference for trade union members on the waterfront. HELD: The High Court upheld wide-ranging powers granted to the Executive Council to make regulations on the employment of transport workers, and to give those regulations the status of law regardless of contrary legislation. The court ruled the delegation did not infringe on the principle of the separation of powers, and that there was no invalid delegation of power under the Latin.maxim delegatus non potest delegare - the delegate may not delegate. SIGNIFICANCE: It established the principle that in the absence of any provisions to the contrary, legislatures established by British imperial legislation possess the power to delegate their legislative powers. Judicial review v merits review Another aspect of the separation of powers doctrine is the theory that the courts will only review the legality of decisions and actions, not their merits. Merits review is generally confined to tribunals. The administrative tribunals function quite differently from courts. Tribunals usually have the power to completely re-consider a decision, as if they were making the decision afresh, armed with the same powers as the original decision-maker. They will take into account any relevant changes in circumstances and law since the initial decision was made. Courts, by contrast, can only determine whether a decision was made lawfully or not, at the time it was made. Judges may only set aside a decision or order it to be re-made in accordance with the law. It can be an arbitrary distinction, with a potential to be used or abused according to the circumstances. The difficulties are increased, because the courts may, in strictly defined 5

6 circumstances, quash a decision made on "unreasonable" grounds, either as an excess of power or a breach of procedural fairness. According to some legal and political opinion, this comes close to merits review. Green v Daniels (1977) 51 ALJR 463 FACTS: Karen Green, a 16-year-old unemployed Tasmanian school leaver, was denied access to the dole due to a government policy to deny school kids the dole during holidays. This was the case even though she had no intention of returning to school after the holdiays. HELD: She won the case. The court ruled that she had been unlawfully denied payment of an unemployment benefit through the inflexible application of a policy directive against the payment of benefits to all school leavers during the summer holidays. OUTCOME: However, she did not receive a cent. The departmental Director-General merely reconsidered the decision in the light of the High Court's ruling - and came to the same decision. Moreover, subsequent amendments to the legislation entrenched the government's policy of initially denying benefits to school leavers. SIGNIFICANCE: The courts can only review the lawfulness of the decision. They cannot review the merit of the decision and issue an alternative one. They can only return the matter to the original decision maker with a direction to make the decision in a lawful way. AAT and persona designata The constitutionality of the AAT was questioned in an early deportation case, which was presided over by Deputy President Davies J, on the grounds of a breach of the separation of powers doctrine. Drake v MIEA ((1979) 24 ALR 577 FACTS: Drake, a US citizen had been convicted of drug and firearm offences in Australia, and sentenced to imprisonment of a year. Upon release the minister determined that he should be deported. In Drake v MIEA (No. 1) [1978] MTA 71 (1978) 1 ALN No. 42 Davies J sitting as AAT Deputy President affirmed the Minister's decision. Drake sought judicial review of the decision pursuant to s44 of the AAT Act by the Federal Court, on a number of grounds, one being that it was constitutionally impermissible for a Federal Court judge to conduct administrative inquiries of a quasijudicial nature. HELD: The Federal Court held (Bowen CJ and Deane J, Smithers J agreeing) that there was no breach of the separation of powers doctrine as the judge was appointed 'in his personal capacity'-this was the classic statement of the persona designata rule. The emphasis both then and now is that the appointment of a judge as President secures independence and impartiality while simultaneously eschewing court-like legalism. However, both the preponderance of lawyers on the AAT and its adversarial mode of proceeding have seen an entrenchment of court-like processes and decisions. Note: The Drake decision was made in the Federal court and as far back as Since then there have been High Court decisions in regards to other tribunals that have determined that persona designata does not apply even if the judge is acting in a 6

7 personal capacity IF their role and responsibilities are likely to be inconsistent with judicial impartiality see e.g. Wilson v Minister of Aboriginal Affairs (Hindmarsh Island Case). It is possible that a future challenge to the High Court on these grounds would be successful. OPEN STANDING The common law traditionally requires a plaintiff to show locus standi, or standing - a sufficient interest in the matter - before being given the right to take action. One of the justifications for the standing rule is to protect the courts from meddlesome busybodies, but this argument has been discredited and rejected by the Australian Law Reform Commission (ALRC) (ALRC, Beyond the Doorkeeper: Standing to Sue for Public Remedies, Report No 78, AGPS, 1996). The ALRC recommended that any person be permitted to commence a public law case unless the litigation would unreasonably interfere with another person's private interests. The Basic Rule special interest required In Australia there is no "public interest standing" doctrine. Instead, the basic test for standing was established in Australian Conservation Foundation Incorporated v Commonwealth (1980) 146 CLR 493, where the High Court ruled out open standing. With Murphy J dissenting, the court rejected the 'standing of the ACF to challenge the minister's decision to approve a tourist development without a final Environmental Impact Statement as required by statute. Although the ACF had previously submitted written comments to the minister on a draft EIS, the court ruled that the ACF had no "special interest" at stake, merely "an intellectual or emotional concern". Mason J equated "special interest" to property, business or economic interests, or perhaps social or political interests. Therefore, the test for standing for both injunction and declaratory relief in administrative law at common law is that the complainant have a special interest in the subject matter of the action. Gibbs J.: a person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage other than a sense of grievance or a debt for costs, if his action fails. Application of the special interest test Examples of how this test has been interpreted include: Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, where it gave two members of an Aboriginal tribe standing to challenge Alcoa's breach of the Victorian Archeological and Aboriginal Relics Preservation Act 1972 that affected their people's land and relics. Gibbs CJ said that, although the two Aborigines had no individual rights infringed, they had a substantially greater interest in the subject-matter than other members of the public did. Ogle v Strickland (1987) 13 FCR 306 the Federal Court recognised the standing of two priests challenging the censorship board's registration of an allegedly blasphemous film. The court said the doctrines of the Christian Church had no less cultural and spiritual significance for the priests than relics for Aborigines. 7