JUDICIAL REVIEW • “judicial review”: means by which courts determine whether or not administrative bodies/officials have properly respected the boundaries of the powers and functions formally assigned to them. Public Power Decision, whether under a statutory power or non-­‐statutory prerogative power, must be an exercise of ‘public power’ Statutory Power: i.e powers granted by statute to public bodies and officials to make decisions in accordance with the terms of the relevant statute. Examples: decisions granting or revoking permits allowing persons to enter or remain in Australia; decisions issuing, renewing or revoking occupational licences; and decisions levying rates and charges are all usually made pursuant to statutory power. Toohey Ex parte Nth Land Council: Decision to greatly expand area of Darwin Town was clearly for the sole purpose of defeating an Abbo land claim. The relevant minister thought he was above the law as his administrative discretion was an exercise of prerogative power and not challengeable under judicial review. The aboriginal land council sought judicial review anyway. HCA held that the status of the decision maker is not the deciding factor i.e is irrelevant in seeking judicial review. It may be an influencing factor as to whether or not judicial will exist, but it will not completely prevent you from making an application for review – particularly when there was such an obvious improper purpose. Some prerogative power is therefore reviewable. Non-­‐statutory prerogative powers: i.e those powers exercised by Ministers and members of cabinet. Examples: power to declare war, power to sign and ratify international treaties, power to appoint ambassadors, also AG can initiate or cease criminal proceedings, or bring actions in court in public interest Ex Parte Lain: Eng Court of appeal required to determine whether action of non-­‐statutory board established to consider claim for compensation from the victims of crime wee subject to judicial review. Arguments: board was not amenable to judicial review by way of certiorari because it was not established by legislation and did not exercise statutory powers – simply been promulgated by Home Office to guide provisions of payments to victims of crime. Relying on prerogative rather than stat power is irrelevant as regards amenability to judicial review. Datafin: The Court of Appeal allowed an application for judicial review (which ultimately failed) against the Panel on Take-­‐overs and Mergers, a non-­‐governmental body overseeing the conduct of company take-­‐overs in the City of London. The Court of Appeal refused to tie susceptibility to judicial review exclusively to the source of a body’s power in statute or the prerogative. Instead the court focused on the need for a ‘public element’ (838). This element was found on the facts since the Panel’s source of power was not simply consensual submission to its jurisdiction; it was in fact operating as part of the government framework, it was supported by a periphery of statutory powers and penalties, and it provided no possibility of private law redress. Law: the source of power is not necessarily sole test to determine if reviewable – look at nature and consequences of the power exercised Neat Domestic Trading: Body to govern Australian wheat exports was created by statute based on the single desk policy, but approval /issuing of permit from body was subject to approval byt companies listed in the schedule – i.e essentially such companies could veto body’s decision. AWBI was such company. Requests from Neat for permission to export wheat were rejected and Neat sought judicial review of AWBI’s decisions – firstly under the TPA and then under th Administrative Decisions (Judicial Review) Act. 3/5 judges held that power to veto derived from it being an incorporated company. Overall 4/5 judges held that actions were not amendable to judicial review (Kirby dissented) Justiciable Decision Whether decision itself is justiciable? Council for Civil Service Unions: Facts: The Prime Minister banned trade union membership for workers at GCHQ (Government Communications Headquarters), without consulting the trade union first. The House of Lords held that the trade union had a legitimate expectation that they would be consulted. However, the Lords refused to find that the Prime Minister acted unfairly. The Prime Minister indicated that the decision to ban union membership without consultation was taken on national security grounds, and the judges held this issue was non-­‐justiciable. This case clearly confirms the existence of judicial review of the prerogative, and was the occasion of Lord Diplock’s attempt to explain the grounds of judicial review in terms of ‘illegality’, ‘irrationality’ and ‘procedural impropriety’ Issue: Whether a decision made in exercise of a prerogative power is subject to judicial review and the effect in law to be given by a court to a government national security claim. Held: Simply because a decision-­‐making power is derived from prerogative power doesn’t make it NOT able to be judicially reviewed Where the decision is one which does not alter rights/obligations in private law, but only deprives a person of legitimate expectations, then procedural impropriety (=failure to observe NJ/correct procedure) will normally provide the grounds on which the decision is open to review. Endorsed Ex Parte Lain holding that there was no general rule why exercise of prerogative powers should be immune from judicial review BUT THAT the controlling factor in determining whether the exercise of a prerogative power is subject to Judicial Review is not its source, but its SUBJECT MATTER. = acts done under prerogative power are treated just like acts done under stat authority! = justiciable. [2] Whether there are special features of the decision which make JR inappropriate? Minister for Arts, Heritage & Environment v Peko-­‐Wallsend: involved a cabinet decision to nominate part of Kakdu National Park on the Word Heritage List. Listing meant mining operations were unlawful Peko had mining interest in land so sought judicial review. Issue: is a decision of Fed Body judicially reviewable? Held: Followed Council for Civil Services – prerogative powers aren’t beyond scope of judicial review (1) because they remain immune to it and (2) decisions imbued with special features may lead court to decline to undertake judicial review on the basis that the decisions involves ‘justiciable issues’ Was it justiciable? Decision is so infused with complex high level policy or political issues relating to the environment, rights of Aboriginals, mining interests and the impact on Australia's economy that they are inherently unsuitable for judicial resolution. In addition there were international treaty obligations. Law: simply because decision exercised a prerogative power doesn’t mean it is unreviewable – look at whether its ‘justiciable’. South Australia v O’Shea: Facts: legislation provided that a parole board had power to make a recommendation for a prisoner’s release which could be accepted or rejected by Governor-­‐in-­‐Council. Board recommended release of prisoner Governor declined. Issue: Was G-­‐in-­‐C decision reviewable? Held: the G-­‐in-­‐C decision was essentially a Cabinet decisions, involving an element of policy making it unsuitable for judicial review. BUT NB: simply because decisions made by Cabinet doesn’t mean = unreviewable, in some cases where decisions involves justice to an individual etc – imply duty to act fairly thus reviewable. Process of Judicial Review [a] Common Law System: • State / Territory: regulated by Part 5 of Judicial Review Act 1991 (Qld) (“JRAQ”) • High Court: jurisdiction is conferred by s75(v) “in any matters in which a writ of mandamus (i.e “constitutional writs”) or prohibition or an injunction is sought against an officer of the Cth” • Federal Court of Australia: CL jurisdiction conferred by s39B Judiciary Act 1901 (Cth) [b] Statutory System: • Federal Level: established by ADJRA – exercised in Fed Court • Applicable to Qld: see Part 3 JRAQ – wholly adopts ADJRA -­‐ exercised in SCQ Questions – re statutory process: 1.
Has a decision been made? 2.
Is the decision reviewable? 3.
Are there (published) reasons? 4.
Source of power underlying the decision? 5.
Does applicant have standing? 6.
Avenues of review? 7.
Grounds of review? 8.
Remedies available? s 5 ADJRA (s20JRAQ): “A person who is aggrieved by a decision to which this Act applies…may seek an order of review…” OR s 6ADJRA “A person aggrieved by conduct engaged in for the purpose if making a decisions to which this Act applies may seek and order to review.” Elements: § a person aggrieved (i.e standing) § by a decision to which this Act applies OR conduct engaged in § may seek an order 1. ADJR -­‐ Decision 1. s 5 “Decision” “Decision to which this Act applies” s3(1)ADJRA “Decision [or conduct engaged in] of administrative character made ... under an enactment other than a decision Gov. General [NB same in s4JRAQ except no ‘vice-­‐
regal exception and 4(b)Qld: also applies to non-­‐statutory programs). Elements: § a decision § of an administrative character § under an enactment Exclusions from review under the ADJR Act: § Decisions of the Governor General § Schedule 1 “decision” not expressly defined (See Evans < Lamb < ABT v Bond JRAQ s 4 has adopted meaning given by Bond see Noosa Shire Council v Resort) s3(2)(a)-­‐(g)ADJRA (s5JRAQ): “Making of a decision” -­‐ § making, suspending, revoking or refusing to make an order, award or determination; § giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; § issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; § imposing a condition or restriction; § making a declaration, demand or requirement; § retaining, or refusing to deliver up, an article; or § doing or refusing to do any other act or thing; Ricegrowers Co-­‐operative Mills v Bannerman: “over manifestation of the result of the decision-­‐maker’s thought process” EXAM: Look to Bond: re finality Interim rulings & Finality: Question is whether interim rulings or preliminary decisions constitute a ‘decision’. Riordan v Parole Board (ACT) (1981): Facts: two-­‐stage decision making process re release of prisoners – if board said shouldn’t be released prisoner could appear before board and a final decision would be made. Law Interim rulings are not reviewable where there is a second stage that allows for the original decision to be overturned. Lamb v Moss (1983): if in a two-­‐stage decision making process, the initial stage does have an impact such that it can be classified as a decision then you can review that decision so long at is has some element of finality or a substantial impact on your rights. Australian Broadcasting Authority v Bond (1990): The Broadcasting Act provided in s88(1) “The tribunal may suspend or revoke a commercial television license where…”the tribunal is satisfied that the licensee is no longer a fit & proper person” Held: Rejected the flexible approach of Lamb and returned to a Riordan-­‐type approach. Bond had acted fraudulently. Law: Must consider the nature of the term ‘decision’ per s 5ADJRA (i.e only final steps, not operative steps along the way) BUT given a narrow scope by Mason CJ, Brennan & Deane JJ -­‐ A decision is reviewable where: -­‐ a final or operative decision (e.g. to revoke or renew TV licence) that is provided for under a statue. -­‐ An interim step will only constitute a decision where the relevant statute expressly provides for that step. -­‐ The interim finding must be substantive in nature (e.g. that X Ltd is not a ‘fit and proper person’) and not merely procedural (to reject evidence etc.). Toohey/Gaudron JJ Must also have an element of finality. Reasons for ‘determinative and final’ requirement: -­‐ ‘Decision under enactment’ implies decision which statute requires rather than a step in the process -­‐ Examples given in s 3(2) imply finality -­‐ Extension of decision to include recommendations implies ‘decision’ not intended to be all inclusive -­‐ No need for ‘conduct’ in s 6 if ‘decision’ was all-­‐inclusive. Reports & recommendations: s3(3) / s6JRAQ: “Where provision is made by an enactment for the making of a report or recommendation before a decision …, the making of such a report or recommendation shall itself be deemed … to be the making of a decision. • The reason for s 3(3) is that there are a lot of administrative decisions that involve understaff preparing a report or recommendation before the relevant minister/body makes a proper decision or merely rubber stamps the recommendation. Ross v Costigan; Edelstein v HIC; Magarula: s3(3) only applies where: §
the power to make such a report or recommendation must be in the statute; §
the statute must provide that making the report or recommendation is a condition precedent to the making of the final decision; and the statute must provide that a decision is to be made subsequent to the report or recommendation (decision must have actually been made). Edelstein v HIC: Relevant events: 1. Health Insurance Commission decides to investigate E’s practice. 2. HIC appoints Dr N to conduct investigation and report to delegate of Minister for Health (H). 3. N recommends that M refer matter to medical tribunal (Decision 1 – non-­‐statutory). 4. H considered report then referred to tribunal (Decision 2 – statutory). 5. Tribunal conducted a full hearing a made a formal recommendation to the M (Decision 3 – statutory). 6. M found E had engaged in over-­‐servicing and was penalized (Decision 4 – statutory). Held: § D1 was not a decision as it is not mentioned in the Act (didn’t fall within Bond). § D2, although provided for in Act, was too far removed from final decision and therefore not reviewable. § D3 was held to be a reviewable decision as Minister’s practice was to merely rubber stamp the Tribunal’s findings. § D4 reviewable as it was the official determinative step. Kelson v Forward: Complaint of workplace harassment made to Minister. M referred to agency to conduct investigation and provide recommendations. M then made final decision. Held furnishing of the report to the M was a sufficiently substantive and final decision because it had immediate and obvious career consequences for those involved. Harris v Bryce: decision to investigate sexual discrimination was not reviewable as, on its own, it did not determine any rights. 1. s 6 “Conduct engaged in”: s6ADJRA (s21JRAQ) – “conduct engaged in for the purpose of making a reviewable decision is reviewable [in itself].” s3(5) – ‘conduct’ includes the doing of any act or thing preparatory to making the decision, including taking evidence or holding an inquiry/investigation. NB: Person who engaged in ‘conduct’ doesn’t need to be the person who made the decision. ABA v Bond: The concept of conduct looks to the conduct of the proceedings, rather than to decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character – focus on procedure of reaching decision NOT interim steps (Mason CJ). Conduct is reviewable where: §
There has been a breach of natural justice; §
Statutory procedures not followed; §
The person engaging in conduct does not have jurisdiction; §
The specific Act does not actually authorize the making of the decision; §
The decision is made for an improper purpose (see s 6(2)); §
The conduct involves an error of law; fraud or has no justifying evidence. §