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Admin Review is the administrative law bulletin of the Administrative Review Council.
Since the last edition of Admin Review, the Council has published a report entitled Automated Assistance in Administrative Decision Making. Its report The Scope of Judicial Review is nearing completion.
More information about the work of the Council is available from the Council’s website < and the Council’s Secretariat (ph.0262505800).
EditorsJillian Segal AM, Professor Robin Creyke, Melanie Sloss SC,
and Alison Jermey and Scott Stephenson (Secretariat) / No. 57
March 2006
ISSN 0814 - 1231
Administrative Review Council
Robert Garran Offices
National Circuit
BARTON ACT 2600
Admin Review is an administrative law bulletin concerned with informing government, private organisations and individuals about developments in Commonwealth administrative law and procedure. It is produced under the auspices of the Administrative Review Council, but the views expressed in it are those of the editors or writers and not necessarily the views of the Council or any of its members or the members of its committees. Although every care is taken in the preparation of the bulletin, no liability is accepted in respect of matters published in it. The purpose of the bulletin is to provide general information, not legal advice. Readers should carefully check the detail of the legislation, cases and other material discussed in the bulletin.
Contents
President’s comments......
Focus......
The legitimate scope of judicial review: the prequel......
‘Inquisitorial’ practice in Australian tribunals......
Watching the watchers: how the Inspector-General of Intelligence and Security helps safeguard the rule of law
Regular reports......
The Administrative Review Council......
The Administrative Appeals Tribunal......
The Commonwealth Ombudsman......
Freedom of information......
The courts: case notes......
‘Made under an enactment’ reconsidered......
Notification of decision—rejection of protection visa application......
Procedural fairness—‘dob–in’ letters......
Error of law—failure to take into account relevant considerations......
Procedural fairness—notification of adverse information......
Compulsory acquisition of land: ‘urgent necessity’—procedural fairness......
Admin law watch......
Amendments to the Administrative Appeals Tribunal Act......
Establishment of the Western Australian State Administrative Tribunal......
Tasmanian and ACT tribunal developments......
The 2002 security legislation review and new security laws......
Inquiries into the detention of Cornelia Rau and Vivian Alvarez......
UK tribunal reforms: an update......
Protecting classified and security sensitive information......
Review of the Privacy Act......
The Business Council of Australia report on regulation......
ACT and Victorian human rights developments......
The Age Discrimination Act......
Review of uniform evidence Acts......
The Postal Industry Ombudsman......
The Migration Litigation Reform Act......
The Migration and Ombudsman Legislation Amendment Act......
Personalia......
The Administrative Appeals Tribunal......
The Federal Court......
The High Court......
The Federal Magistrates Court......
The Family Court......
The Administrative Review Council......
The National Alternative Dispute Resolution Advisory Council......
A new Privacy Commissioner......
A new Human Rights Commissioner......
The Australian Law Reform Commission......
President’s comments
I am delighted to be involved in the production of this edition of Admin Review, the first with which I have been involved since my appointment as President of the Administrative Review Council in September 2005.
The Council has been in existence for almost 30 years and during that time has made a very significant contribution to the identification of sound administrative law principles and the education, through the development of best-practice principles, of people involved in making administrative decisions and in reviewing such decisions.
The Council will be celebrating its 30th anniversary in December 2006 and proposes to mark this milestone with an event in the second half of the year. Details are yet to be determined, but when they are they will be posted on the Council’s website. We also propose to produce a special edition of Admin Review later in the year, featuring articles by people who have had strong connections with the Council during its existence.
As reflected in the content of this latest edition of Admin Review, there is every indication that sound administrative law principles are as important this century as they were in the preceding one, when the Council was established. New community developments and business initiatives continue to demand administrative law responses that are both flexible and grounded in sound principle.
The Council’s work reflects this demand for administrative law principles to be appropriately applied to new situations. In the past year the Council tabled and launched its report on the use of expert computer systems in government decision making, Automated Assistance in Administrative Decision Making, and a working group has already been established to develop a set of best-practice guidelines for using expert systems and promoting consistency across government agencies.
Since publication of the previous edition of Admin Review, in June 2004, there have been a number of interesting developments in administrative law. Many of these developments are documented in this current edition. Among them are important amendments to the Administrative Appeals Tribunal Act 1975 (Cth) to streamline procedures for dealing with review applications, and the establishment of a new tribunal, the Western Australian State Administrative Tribunal.
Recently there has been much focus on the question of regulatory reform. The Council considers that sound administrative decision-making and review processes can play an important role in the reform process, and Iam pleased to report that it is contemplating several projects that will complement other broad reform initiatives in this area.
Jillian Segal AM
Focus
The legitimate scope of judicial review: the prequel
Stephen Gageler SC[*]
When is an action taken in fact characterised in law as an exercise of statutory power subject to judicial review? The answer suggested is where a statute attaches to the action legal consequences for the rights of another, but only if the action is of a nature or quality that falls within limits prescribed expressly or by implication in the statute.
Introduction
Four years ago, at the National Conference of the Australian Institute of Administrative Law, I presented a paper that examined the modern jurisprudence of the High Court on the topic of jurisdictional error.[1] The starting point for the paper was the now often repeated statement of Brennan J in Attorney-General (NSW) v Quin. The statement refers to a ‘repository’ of a power, conferred either by statute or the prerogative, and goes on to define the province of judicial review in terms limited to ‘the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power’.[2]
The thesis of my earlier paper was that the content of judicial review is most profitably recognised as being that determined by the legislature in its formulation of the law by which the limits (explicit or implicit) of the statutory power of the ‘repository’ are set and by which the exercise of the statutory power is governed. The traditional grounds of judicial review, I argued, are in truth no more than the default position to be applied in the absence of a legislative intention to define differently the limits of the statutory power or jurisdiction of the ‘repository’.
This present paper constitutes a ‘prequel’ to the 2001 paper. It examines the modern jurisprudence of the High Court on a topic logically anterior to the topic of jurisdictional error. It explores the circumstances in which a person or body of persons will be properly identified as the ‘repository’ of statutory power so as to be capable of falling into jurisdictional error. The answer it suggests is not simply where the legislature has attached a legal consequence to an action of the person or body. More precisely, the answer is where the legislature, expressly or by implication, has placed a limit or qualification on the nature or quality of the action of the person or body to which it attaches a legal consequence. The unifying theme is legislative intention.
Constitutional foundations
Ours is a constitutional system of parliamentary democracy founded on the twin pillars of the common law and the separation of judicial power.
In a constitutional system founded on the common law ‘everybody is free to do anything, subject only to the provisions of the law’.[3] The underlying premise is that a person has freedom to do what is not prohibited. Save for those few vestiges of extraordinary executive power we call ‘the prerogative’, the only provision of the law that can limit the freedom permitted by the common law is one enacted by the legislature.
A legislative provision limiting the freedom permitted by the common law can be absolute or conditional. If it is conditional, the imposition or the removal of the limitation might or might not involve some action on the part of another person. Where the imposition or removal of a limitation is conditional on some action on the part of another person, that other person exercises ‘power’ over the person whose freedom is thereby limited. The power comes not from the capacity to take action: it comes from the legal effect given to that action by statute.
The same is true of a legislative provision making the conferral of some statutory entitlement or benefit conditional on some action on the part of another person. That other person exercises power over the person who seeks the entitlement or benefit. Again, the power comes not from the capacity to take action but, rather, from the legal effect given to that action by statute.
Although there is a borderland in which judicial and administrative functions overlap, in a constitutional system founded on the separation of judicial power it is the exclusive province of the judiciary to declare and enforce the provisions of the legislation that confers such power. Indeed, the unique and distinguishing feature of judicial power is the power to make a binding and authoritative declaration of the legal consequences of an action, including whether or not legal effect is given to that action by statute.[4]
The scope of the judicial power to make a binding and authoritative declaration is limited to the legal consequences of an action. A judicial determination that an action is ‘void’ or ‘invalid’ or a ‘nullity’ is not a determination that the action has not occurred: it is a determination that the action has no legal consequence under statute. Thus, in Minister for Immigration v Bhardwaj Gaudron and Gummow JJ expressed the following view:
it is neither necessary nor helpful to describe erroneous administrative decisions as ‘void’, ‘voidable’, ‘invalid’, ‘vitiated’ or, even, as ‘nullities’. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made.[5]
The nature of judicial power is such that, although in some circumstances the grant of relief is discretionary, a court faced with a properly constituted suit within the limits of its jurisdiction cannot act or be prevented from acting other than by way of declaration and enforcement of the law as judicially determined. In R v Hickman; Ex parte Fox & Clinton, Dixon J said that it was ‘quite impossible’:
for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition.[6]
The language and context of this statement make clear that his Honour was referring to the original and entrenched jurisdiction of the High Court under s 75(v) of the Constitution in matters calling into question the validity or legality of some action of an ‘officer of the Commonwealth’. More recent cases have served only to underline the centrality of that provision in the federal constitutional structure.
Yet the jurisdiction of the High Court under s 75(v) of the Constitution has also been placed in a broader context. Its entrenchment of judicial supervision of the legality of Commonwealth officers’ actions has been seen as a manifestation of the separation of judicial power effected by ChapterIII of the Constitution. Even more generally, it has been seen as an aspect of the ‘rule of law’ that has long been identified as forming an assumption on which the Constitution was framed.[7] Indeed, two Chief Justices have now adopted the description of ‘[j]udicial review’ as ‘neither more nor less than the enforcement of the rule of law over executive action’ and as ‘the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law’.[8]
In the context of a matter arising wholly within state jurisdiction, in Corporation of the City of Enfield v Development Assessment Commission Gaudron J made the following general statement:
Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligations to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less.[9]
That general statement has been repeated by other members of the High Court, and in one case it was described as expressing the ‘animating principle’ of judicial review.[10]
Power in another
Given that an administrative power exists only because a legislative provision attaches a consequence to an action, the question that arises is how and in what sense will a legislative provision limit or govern the taking of the action and therefore the ‘exercise’ of the power?
Take the typical legislative formula: A shall not do B unless X does Y. A shall not transfer a lease unless X gives consent. A shall not drive a taxi unless X gives permission in the form of a licence. A shall not remain in Australia unless X gives permission in the form of a visa.
A court faced with the question of whether A can do B must determine, bindingly and authoritatively in the exercise of judicial power, whether X has done Y. The doing of Y by X is the fact—call it the ‘jurisdictional fact’—on which the right of A to do B turns.
Does the court have any role beyond simply determining as a fact whether X has done Y? The traditional answer to that question is ‘no’.The courtis limited to determining the existence or non-existence of the jurisdictional fact Y. But in so doing the court must scrutinise carefully the action of X to determine whether it truly meets the statutory description Y.
On a traditional analysis—at least where X occupies an official government position—it has been treated as implicit in the statutory description of Y that the description encompasses only those cases in which X acts within certain bounds. So, for example, in R v Anderson; Ex parte Ipec-Air Pty Ltd[11] the High Court was concerned with a customs Regulation that explicitly did no more than prohibit the importation of an aircraft other than with the permission of the Director-General of Civil Aviation. JusticeKitto said:
Neither in the Regulations nor elsewhere is there to be found any express provision as to the principles which the Director-General is to observe, or the matters which he is to take into consideration, when deciding whether to grant or to refuse a permission to import aircraft. But from the fact that he is designated by the title of his office the intention appears, as it seems to me, that the power of lifting the general prohibition is not given him for his own benefit or otherwise than for purposes relevant to his office. It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself: Sharp v Wakefield [[1891] AC 173, 179]. The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed.[12]
This is consistent with the now frequently repeated statement of LathamCJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2):
where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.[13]
The Chief Justice continued:
It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.[14]
The focus in each of these statements is not the ‘source’ of the power of X to do Y: it is whether what has been done by X has all the characteristics implicit in the statutory description of Y. It is taken for granted, at least in a case where X is a natural person, that X will have the capacity in fact to take action by way of giving or withholding consent or permission or forming or not forming an opinion or state of satisfaction. The question of jurisdictional fact is confined to determining whether the action taken in fact in the exercise of that inherent capacity meets the description of the action to which the legislation in question attaches a legal consequence. If so, the action taken in fact is a valid exercise of power having such force and effect as the statute in question gives to it. If not, the action taken in fact is without legal consequence for the purposes of that statute.