Topic Four: Abuse of Power in Fact-Finding Abuse of Power relating to Fact finding No Evidence Rule Re Pochi and Minister for

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1 LS200: ADMIN LAW Contents Topic One: Introduction (GREEN)... 4 Why admin law is interesting (spoiler alert: it s not)... 4 Haneef (2007)... 4 The executive branch and political accountability... 4 Government departments and the role of public servants... 4 Political accountability... 5 Non-departmental accountability... 5 The concept of accountability and admin law... 5 Types of accountability... 5 Admin law mechanisms... 5 Freedom of information... 5 Topic Two: Delegated Legislation... 6 Does the Executive have power to exercise legislative power?... 7 Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan... 7 The Process of Making Subordinate Legislation Definition a legislative instrument... 9 Consultation requirements Tabling and Disallowance Parliamentary Scrutiny Sunset clauses Topic Three: Excess and Abuse of Power in Determining and Applying the Law Excess of Power Judicial Review of delegated legislation General Principles of Statutory interpretation London City Council v Attorney General Abuse of power relating to statutory interpretation Unreasonableness Failure to make reasonable enquiries Prasad v Minister for immigration and Ethnic Affairs Uncertainty King Gee Clothing Pty ltd v Commonwealth... 17

2 Topic Four: Abuse of Power in Fact-Finding Abuse of Power relating to Fact finding No Evidence Rule Re Pochi and Minister for Immigration and Ethnic Affairs Minister for Immigration and Ethnic Affairs v Pochi Illogical/irrational Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant s20/ Further information about remedies Topic Five: Jurisdictional Error and the Review Jurisdiction of Court Distinction between jurisdictional and non-jurisdictional error Anisimic v Foreign Compensation Commission Jurisdictional and Non-Jurisdictional Errors relating to fact finding Review jurisdiction of courts Original jurisdiction of High Court Additional original jurisdiction Power to define jurisdiction JUDICIARY ACT SECT 39B Original jurisdiction of Federal Court of Australia JUDICIARY ACT SECT Remittal of matters by High Court to other courts Topic Six: Privative Clauses, Legal Consequences of Errors, Remedies and the Fact-Law Distinction and Appeals Privative Clauses Plaintiff S157/2002 v Commonwealth Plaintiff Kirk v Industrial Court of New South Wales Remedies Fact-law distinction Collector of Customs v Agfa Gavaert Limited Topic Seven: Failure to Exercise Power and Justiciability Topic Eight: Procedural Fairness: General principles and Legitimate Expectations Early Approaches to implying a duty of natural justice Kioa v Minister for Immigration and Ethnic Affairs Statutory provisions pertaining to a duty of procedural fairness and its scope Nature of Interests affected by the decision Policy or Political decisions... 51

3 Peninsula Anglican Boys School v Ryan Queensland Medical Laboratory v Blewett Comptroller General of Customs v Kawasaki Motors Pty Ltd Topic Nine: Procedural Fairness: Hearing Rule The Hearing Rule The Form of the hearing Right to know matters which will be considered by the decision maker Bond v Australian Broadcasting Tribunal (No 2) Heshmati v MILGEA VEAL v Minister for Immigration and Multicultural and Indigenous Affairs Leghaei v Director General of Security The Right to make submissions in response to those matters the form of those submissions Chen v MIEA The Right to Make Submissions in response to those matters a right to legal representation?.. 57 Kristic v Australian Telecommunications Commission The Right to Make Submissions in response to those matters a right to cross examine? O Rourke v Miller The Right to Make Submissions in response to those matters a right to have all members of the tribunal consider the issue? Re Macquarie University; Ex Parte Ong Rights arising out of administrative practices Hamilton v MILGEA Re Minister for Immigration and Multicultural Affairs; Ex parte The Effect of a minor Breach of the hearing rule... 61

4 Topic One: Introduction (GREEN) Why admin law is interesting (spoiler alert: it s not) Exercise of public power Executive arm of government Haneef (2007) Relevant to the post-9/11 laws to prevent terrorism FACTS o Young Indian doctor practising in England and living with two cousins o Left England to come to Australia in 2006; gave cousin a phone with credit on it o In 2007 the cousin drove a car laden with explosives into Glasgow airport o Aussie anti-terror laws allowed AFP to detain Haneef without charge as they had been told by the British government that Haneef was linked to the terror attack o He was charged with providing an organisation with resources and being reckless as to whether the organisation was a terrorist one o Magistrate awarded Haneef bail; hours later the Minister for Immigration cancelled Haneef s visa on character grounds o Haneef was placed in immigration detention, and furthermore his bail was rendered futile o The rule of law states that everyone is subject to the law, including the government. Thus, Haneef could challenge the decision in the Fed Court. o Ultimately came down to the interpretation of association o Minister association is literal; Haneef association is sinister and demonstrates someone is of poor character SIGNIFICANCE o Demonstrates that courts, independent from governments, can champion human rights o Courts also need to recognise the power they have within a democratic system where people are sovereign The executive branch and political accountability Parliament and the exec o House of Reps and Senate o PM needs to appoint ministers who are responsible for certain portfolios o Ministers handle the powers within their portfolios Political accountability o Responsible government o Ministers are responsible/accountable to parliament o When a motion of no confidence in government is passed in HoR, PM should tender resignation o Lower house makes parliament but doesn t really call for accountability; the Senate is more likely to call for the government to account for its actions Government departments and the role of public servants Administer legislation, carry out government policy, assist in drafting of policies and legislation Obey their minister, be politically neutral and give objective, fearless advice to the minister Minister is responsible to parliament for the decisions made by their department Howard era heads of departments are politically appointed and may be dismissed without cause. This in practice eliminates the possibility of frank and fearless advice

5 Political accountability You may raise a grievance with your local parliamentary member but this may not be effective member may not give a shit about helping you Non-departmental accountability Most importantly statutory authorities an authority established by statute o For example ABC doesn t have to follow government, and is encouraged to be independent but may also be dissolved by government The concept of accountability and admin law Types of accountability These may include o Obligation to answer questions o Obligation to offer account of actions to only a specific party o A higher body may quash the decision of someone/somewhere o Higher body can substitute their decision for another s o High body can terminate Admin law mechanisms Freedom of information Access to information allows the government to be more transparent and therefore accountable Public interest in secrecy sometimes

6 Topic Two: Delegated Legislation The use of delegated legislation has a long history. Today the use of delegated legislations is uncontroversial it is accepted that parliament has neither the time not the resources to enact all legislation directly. It is common practice to delegate rule-making power to members of the executive, statutory authorities, tribunals and courts. They build flexibility into legislation since subordinate legislation can be changed quickly, and even when parliament is not in session and allowing parliament to confine its attention to governing principles and essential features. Delegated legislation is made by a variety of persons and bodies including Ministers; secretaries to departments; and heads of agencies. Legislative instruments typically empower persons or authorities to direct, determine, notify, order, instruct, declare, issue or publish there are no rules about what should and should not be delegated to subordinate bodies. Delegated legislation comes in a wide variety of forms. These include: o Regulations o By-laws o Proclamations o Rules o Ordinances o Determinations o Directives o Declarations o General orders and instructions o Directions o Operational plans o University Council statutes o Policy directions o Program standards o Instructions o Codes of practice o Formal or informal guidelines o Circulars o Practice notes Delegated legislation falls uneasily within the scope of Administrative Law. It is difficult to see any justification for treating Council by-laws/local laws as falling within the rubric of administrative law, given that they are both legislative in form and made in part by deliberative and usually elected bodies. Further, delegated legislation by Commonwealth and State officials stands as a constant reproach to those who seek a neat separation of powers with legislators legislating and administrators administering. Characteristically, delegated legislation is legislative in form and executive in source. Whats more, delegated legislation is subject to far more intense political supervision that are ordinary administrative acts. Although the validity of both delegated legislation and ordinary one-off administrative acts is now subject to the same underlying rule namely that each must be within the power of the maker of the relevant decision to the kinds of issues which arise in relation to delegated legislation will tend to be rather different from the kind of issues that arise in relation to ordinary administrative acts. Legislation generally involves rules which apply to road categories of people or situations. By contrast administrative acts involve the application of general rules in particular cases.

7 Does the Executive have power to exercise legislative power? There are two doctrinal reasons why the delegation of rule-making power has been seen as problematic. o The first is the maxim: delegates non potest delegare the delegate may not delegate. o An alternative objection proceeds from the separation of powers doctrine. There has only been one significant decision on the question of the separation of the executive and legislative functions of the Commonwealth government Digans Case involved a challenge to the validity of s3 of the Transport Workers Act which gave extremely broad-ranging power to the Governor-General to make regulations with respect to the employment of transport workers. Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) ] o Meakes and the company were convicted of offences under s 3 of the Transport Workers Act 1928 in that they failed to give priority in employment to members of the Waterside Workers Federation. They appealed against their convictions by way of collateral attack on the legislation under which they were convicted. They claimed that s3 of the Act was invalid as it was beyond the competence of parliament to enact such legislation. Their challenge was based on three constitutional principles: the separation of powers; delegates non potest delegare; and the abduction of power. The Full High Court (Gavan Duffy CJ, Starke, Rich, Evatt and Dixon JJ) upheld the validity of the regulation and therefore of the convictions. o Evatt J It is very difficult to maintain the view that the Commonwealth Parliament has no power, in the exercise of its legislative power, to vest executive or other authorities with some power to pass regulations, statutory rules and by-laws which, when passes, shall have full force and effect. Unless the legislative power of the parliament extends this far, effective government would be impossible. In my opinion every grant by the Commonwealth Parliament of authority to make rules and regulations whether the grantee is the executive government or some other authority, is itself a grant of legislative power. The true nature and quality of the legislative power of the Commonwealth Parliament involves, as part of its content, power to confer law-making powers upon authorities other than parliament itself. The following matters would appear to be material in examining the question of the validity of an Act of the Parliament of the Commonwealth Parliament which purports to give power to the Executive or some other agency to make regulations or by-laws. The fact that the grant of power is made to the Executive Government rather than to an authority which is not responsible to Parliament may be a circumstance which assists the validity of the legislation. The further removed the law making authority is from continuous contact with Parliament the lass likely is it that the law will be a law with respect to any of the subject matters enumerated in ss51 and 52 of the constitution. The scope and extent of the power of regulation-making conferred. The greater the extent of law-making power conferred the less likely it is that the enactment will be a law with respect to any subject matter assigned to the Commonwealth Parliament

8 The fact that Parliament can repeal or amend legislation conferring legislative power will not be relevant matter because parliamentary power of repeal or amendment applies equally to all enactments. But all other restrictions placed by parliament upon the exercise of power by the subordinate law-making authority will be important. The circumstances existing at the time when the law conferring power is passed or is intended to operate. A law conferring power to regulate in time of war or national emergency or under circumstances where it is essential to retain in some authority a continuous power of alteration or amendment of regulations, although clearly a law with respect to legislative power, might also be truly described as a law with respect to the subject matter of naval and military defence, or external affairs or another subject matter. The fact that a Commonwealth statute confers power to make regulations merely for the purpose of carrying out a scheme contained in the statute itself will not prevent the section conferring power to make regulations from being a law with respect to legislative power. A commonwealth enactment is valid if it is a law with respect to a granted subject matter, although it is also a law with respect to the exercise of legislative power. The fact that the regulations made by the subordinate authority are themselves laws with respect to a subject matter enumerated in ss51 and 52 does not conclude the question whether the statute or enactment of the Commonwealth Parliament conferring power is valid. A regulation will not bind as a Commonwealth law unless both it and the statute conferring power to regulate are laws with respect to a subject matter enumerated in ss51 and 52. The parliament of the Commonwealth is not competent to abdicate its powers of legislation because each and every one of the laws passed by Parliament must answer the description of a law upon one or more of the subject matters stated in the Constitution. A law by which Parliament gave all its law-making authority to another body would be bad merely because it would fail to pass the test last mentioned. The Process of Making Subordinate Legislation A matter of terminology The rule making process requires attention to two kinds of legislation. The power to make subordinate rules is conferred by particular pieces of legislation enabling legislation. Historically enabling legislation conferred the power to make subordinate rules and set out the procedure governing the making and parliamentary review of such rules. All Australian jurisdictions have passed general procedural legislation to regulate such matters as whether and how the making and content of subordinate legislation is to be publicised and the procedures for the disallowance of subordinate legislation. In 1903 the Commonwealth passed general legislation to regulate the publication of subordinate legislation Statutory Rules Publication Act 1903 (Cth). The following year the Commonwealth replaced its ad hoc provisions for disallowance of legislation by a set of standard procedures Acts Interpretation Act The states and territories also passed general procedural legislation. NSW has one statute dealing with disallowance, a second with publication and a third with consultation provisions.

9 The commonwealth o Aims for greater uniformity than the state regimes. The Legislative Instruments Act is not restricted to delegated legislation described by reference to a particular term, rather it applies generally to instruments of a legislative character. o Under Commonwealth legislation the procedures governing rule-making depend on whether the rule is a legislative instrument. If it is a legislative instrument its making is governed by the legislative instruments act. 5 Definition a legislative instrument (1) Subject to sections 6, 7 and 9, a legislative instrument is an instrument in writing: (a) that is of a legislative character; and (b) that is or was made in the exercise of a power delegated by the Parliament. (2) Without limiting the generality of subsection (1), an instrument is taken to be of a legislative character if: (a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and (b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right. (3) An instrument that is registered is taken, by virtue of that registration and despite anything else in this Act, to be a legislative instrument. (4) If some provisions of an instrument are of a legislative character and others are of an administrative character, the instrument is taken to be a legislative instrument for the purposes of this Act. o Section 6 provides that an instrument is a legislative instrument if it is a proclamation or if it is described in the enabling legislation as a regulation or if it applies to a non-selfgoverning territory an ordinance of a rule, regulation or by-law made under such an ordinance (s6 (a), (c), (e)) o Statutory instruments also include other instruments made under an Act before the commencement of the Legislative Instruments Act if those instruments were required to be printed and sold as Statutory Rules under the Statutory Rules Publication Act s5(1) or if they were described in the enabling legislation as disallowable instruments. o Section 7 provides that an instrument is not a legislative instrument I the enabling Act so provides or if it falls into one of the 24 categories listed in the table appended to the section. o Rules of courts are not legislative instruments. The States and Territories o NSW Subordinate Instruments Act provides a consultation regime only with respect to statutory rules a regulation, by-law, rule or ordinance that is made or must be confirmed or approved by the Governor (S3(1)). o The procedure governing rule making is typically dependant on the term used in the enabling legislation to describe the rule. o There are no state and territory equivalents to s5. Thus if a rule is described as a regulation it is governed by the general procedural law because the general procedural legislation is formulated so as to apply to regulations. o By choosing a label for a rule, parliament determines the procedures which are to govern the making of that rule. It can if it wished make essentially administrative decisions subject to the safeguards which surround the rule-making process, but it can also, by choice of a name for a class of instruments, exempt legislative instruments from those safeguards.