ADMINISTRATIVE LAW Exam Notes 2016 - StudentVIP
ADMINISTRATIVE LAWExam Notes 2016
MERITS REVIEWWhat is Merits Review?Merits review involves the reconsideration of a decision, a decision by the executive. The merits reviewbody will stand in the shows of the original decision maker and make a fresh decision based on the meritsof the case.In Drake v Minister for Immigration and Ethnic Affairs, Bowen CJ and Deane J held that ‘the question forthe determination of [a] Tribunal is whether that decision was the correct or preferable one on thematerial before the TribunalIn the Council’s guide, What Decisions should be Subject to Merits Review, the Council explained that adecision is ‘correct’ in the sense of being made according to law and preferable in the sense that it isthe best decision that could have been made on the basis of the relevant facts.Essentially it is repetition of the process of the original decision maker but by a different decision makerMerits review- statute says “decision can be made in these circumstances” on the facts- do they satisfythe listed criteria? If not, entitled to merits reviewDifference between Merits Review and Judicial Review: Constitutional basis for difference/distinction- Federal Courts cannot engage in merits reviewbecause to do so would be to exercise non-judicial power and therefore would be in breach of theBoilermaker’s principle In General:Merits review- question: was the decision the best decision based on the meritsJudicial review- was the decision correctly made according to law The process and outcome:Merits review- involves a new administrative decision maker substituting his/her own decision for that ofthe original decision maker. The facts, the law and policy are considered again and a new decision is made.Therefore merits review offers the prospect of a new more favourable decision.
Judicial review- courts decide upon the lawfulness of a decision and make orders to quash it if it is wrongaccording to law. The judiciary do not express their opinions on policy matters or if another decision waspreferable. The exercise of power just has to be lawfulRight to Merits Review/ StandingThere is no right to seek merits review under the common lawRight to merits review depends entirely on the relevant legislation- you must look at the statute todetermine whether merits review is available and if so, what body will determine the reviewThe test for standing, along with the procedure to be adopted, the standard of review and the powers ofthe review body is all dictated by the statute.Exception: merits review is always open to a person affected by a decision to make an informalrequest that the decision-maker reconsider their decision. This has no statutory basisNature of Merits Review: Hearings de novo & re-hearingsDe novo review: most common and comprehensive type of merits review.Here the new decision maker stands in shoes of original decision maker, the new body makes afresh decision, having regard to all the material put forwardFresh evidence can be given. So, new evidence that was not available at original decision can be putforward.Shi v Migration Agents Registration Authority (2008) 235 CLR 286o AAT took into account evidence of conduct after MARA decision up until AAT decisiono Shi had been allowed to practice (with conditions) until AAT appeal was heardo In that time he improved his conduct etc- AAT took this into account when considering theappeal the appellate body is required to exercise its powers whether or not there was error at first instance Grounds for the review don’t need to be given. They just simply need to present all the evidenceand convince the new review body that the decision they seek is the correct one. Then a newdecision is made Aim of de novo review- reaching the correct or preferable decision- Drake v Minister forImmigration and Ethnic Affairs (1979). Correct lawful.
If, once applying the law to the facts there are a range of possible decisions, the decision makerjudges the best of the available options Doesn’t need to be an error in original decision- just makes a new decision and that decision iswhatever it thinks best!Re-Hearing: More restricted than hearing de novoConducted on basis of material before the original decision maker, although they may havediscretion to admit fresh evidenceInvolves a search for errors in original decision rather than a completely fresh decision makingprocessThe errors can include factual or discretionary errors ie too much weight put on one factor inparticular.If no error, the review body cant alter the original decision even if the review body believes a betterdecision could have been madeInternal & External Merits ReviewThe legislation provides for the TYPE of merits review: ie Freedom of Information act provides for internalmerits review followed by an additional External merits review body such as the Administrative AppealsTribunal (AAT)Internal Merits Review- statute may provide that a government decision can be reviewed within thedepartment. Often by a more senior officer than the original decision maker.Often the statute will have the minister being responsible for making the decision. If the minister is theprimary decision maker then there will rarely be provision for internal review as the minister is the highestranking official within any department.External Merits Review- external review bodies are executive institutions that sit outside of agencies thatreview the agency’s decisions.Often given titles such as tribunal, board, panel, commission- but the title isn’t important. Only its powersand functions are important.There are some specialist bodies that deal with specific areas ie social security appeals tribunal. And thereare generalist tribunals that have jurisdiction to review a range of administrative decisions such as theAAT - From 1 July 2015 all the specialist tribunals with the exception of the Veterans Review Board wereamalgamated with the AAT as part of the Abbott government’s budget changes.
Courts that have merits review jurisdiction- some merits review functins can be carried out by statecourts. Its not common but can happenIn the states there is no separation of powers so it is permissible to confer non-judicial functions on statecourts- Kable v Director of Public Prosecutions (NSW) (1996)There are constitutional limits on functions conferred on federal-courts. Federal courts can only exercisejudicial power of the commonwealth. De novo review requires exercise of executive power. Sine meritsreview however have “chameleon powers”and these functions can be conferred on federal courts.What is a tribunal?A tribunal is an external merits review body that is NOT a court, although may have court characteristicsExternal to government agencies. But are not completely separate as they are established by statute,funded by government and form part of the executive.Tribunals exercise executive power.Procedure is more formal than internal merits review and bear similarity in procedure to courts.Some functions of tribunals are chameleon powersDoes not have to be called a “tribunal” to be a tribunal. Can also be called a panel, a board or commissionDecisions of tribunals can in turn be reviewed by courtsCommonwealth tribunals- judicial power of commonwealth can only be exercised by Chapter III courtsR v Kirby; Ex Parte Boilermakers Society of Australia (1956).Brandy v Human Rights and Equal Opportunity Commission- commission dealt with complaints underRacial Discrimination Act. If claim was substantiated, the commission had power to order offending partyto take certain steps including paying compensation. Moreover, the determination although was notbinding and conclusive, it was lodged in a registry of the Federal Court and upon registration thedetermination had the effect of an order of the Federal Court. The HC held that the legislation creatingthe scheme for registering the determinations in the Federal Court was invalid as it had the effect ofconferring judicial power on the Commission. The effect of the registration made the commissions’determinations binding and authoritative – a defining characteristic of judicial power. This infringed theBoilermakers principle.Drake v Minister for Immigration and Ethnic Affairs- the AAT did not infringe Chpt III of the constitutionby appointing a federal judge. Therefore it is constitutionally permissible for serving federal judges to siton merits review tribunals.
Status of Tribunal Decisions- commonwealth administrative tribunals cannot be given the power toenforce the decision. This does not mean that tribunals don’t have legal effect. To do otherwise wouldinvolve a disregard for the rule of law. The tribunals decision will be treated as determining the legal rightsof the parties which the court may enforce.Conferral of Jurisdiction- as creations of statute, tribunals have no inherent jurisdiction- parliament mustspecify which decisions a tribunal can review.Common that the Act that establishes the tribunal, also allows other Acts (enabling Acts) to conferjurisdiction on the tribunal.Tribunal Procedure – tribunals must comply with rules of procedural fairness – often specified in thestatute ie Administrative Appeals Tribunal Act 1989 s7(b) “the tribunal must observe natural justice andprocedural fairness”Tribunals and Standing- each tribunal is created by statute, therefore parliament specifies the rules ofstanding. The standing test can come from the Act establishing the tribunal itself ie AAT act s 27- allowspersons “whose interests are affected” The standing test can come from the statute conferring review jurisdiction on the tribunal in respectof that decisionAppeal and Review of Tribunal Decisions- tribunal decisions are administrative decisions therefore canbe reviewed by merits review and judicial review. THE ADMINISTRATIVE APPEALS TRIBUNAL Jurisdiction- s 25(1) of AAT act provides:(1) An enactment may provide that applications may be made to the Tribunal:(a) For review of decisions made in the exercise of powers conferred by that enactment AAT has no general jurisdiction to review on the merits – ONLY has jurisdiction where it isspecifically conferred.S 37 – all documents relevant to the original decision must be made available to the Tribunal
S 43(2) – AAT must give reasons for its decisions – in writing. STATE ADMINISTRATIVE TRIBUNALS: SACATSA- South Australian Civil and Administrative Tribunal- SA’s generalist merits tribunalRecently the passage of South Australian Civil and Administrative Tribunal Act 2013 changed thatAct came into operation at end of 2014 (but there are still some separate tribunals operating whilst inthis transition phase) SACAT’s Jurisdiction: Jurisdiction conferred by the Act or any other state Act s 31 Section 32-Three kinds of Jurisdiction:- Original jurisdiction-s 33- Review Jurisdiction-s 34- Internal Review jurisdiction s 70s.33 Original jurisdiction-applies where the matter given to tribunal by a statute does not involve areviewable decision. Tribunal acts as original decision maker in the matter, can resolve a disputebetween parties and adopt other courses of action that it considers appropriate to deal with the matterexample of the Tribunal’s civil jurisdictions 70 internal review jurisdiction- sets out a procedure for the Tribunal to review its own decisions wherethe Tribunal was exercising its original jurisdiction. Sets out rules for how it takes place. Obviously it willnot be a review by the Tribunal member who made the original tribunal decision.SACAT’s review jurisdiction-s.34:Review of matter before Tribunal governed by following matters:a. It must examine the decision of the decision maker by way of rehearing s 34(3)( so not strictly a denovo hearing)b. It must ‘reach the correct or preferable decision but in doing so must have regard to, and giveappropriate weight to, the decision of the original decision maker’ s 34(4)
c. It must consider the evidence and material before the original decision maker, but with discretion toadmit new material s 34(5)d. It must also have regard to any relevant factors referred to in the legislation under which thedecision was made s 34(6)e. Relevant Act may modify operation of the Act in relation to a matter that comes before theTribunal’s review jurisdiction.***Not strictly a de novo hearing- its more limited than a de novo hearingTribunals powers on a review – s37(1) Affirm the decision being reviewed, or Vary the decision being reviewed, or Set aside the decision being reviewed andi.Substitute its own decision, orii.Send the matter back to the decision maker for reconsideration in accordance with anydirections or recommendations that the Tribunal considers appropriateAND, in any case, may make any order the Tribunal considers appropriate (including any interim orderpending the reconsideration & determination of the matter by the decision maker, or any ancillary orconsequential order, that the Tribunal considers appropriate).The Tribunal decision takes effect(substitutes) as a decision of the decision maker S 37(3)Principles governing Tribunal hearings –s 39On the hearing of any proceedings, but subject to the provisions of a relevant Act—(a) the procedure of the Tribunal will, subject to this Act, be conducted with the minimum offormality; andJudicial Review takes the facts and law as they were at the time of the original decisionThe outcome of a successful JR (judicial review) application is that the original decision is legally‘quashed’ and the matter is remitted (sent back) to the original decision maker who then has to make afresh decision
A Court CANNOT exercise executive power –federal courts cannot engage in merits review because todo so would to be exercise non-judicial power and therefore be in breach of the Boilemakers principle- Rv Kirby; Ex Parte Boilermakers Society of Australia (1956)Moreover, a court can only review errors of law, but not errors of facthence it cannot substitute its own decision – and must remit the matter to the executive branch forreconsideration if it finds a legal error in the original decisionoverall: the grounds of judicial review are based on legal errors in the original decision not ondisagreements as to whether the ‘correct or preferable’ decision has been made.Step 1. Applicant must make out ‘ground of review’ - the grounds are errors of law.Sources of Judicial Review:1.the common law2.The Constitution3.StatutesHow to determine what jurisdiction is available?1.is this a state or commonwealth matter?2.SA has no statute for judicial review, so relies on the common law.3.choice as to whether to commence judicial review under statute before the Federal Court OR FederalCircuit Court (AD(JR) Act 1977 (Cth) s 8), OR constitutional judicial review before the Federal Court(Judiciary Act 1903 (cth) s 39B) or the High Court (Constitution s 75(v))
Option 1. COMMON LAW JUDICIAL REVIEW:at common law, state courts have inherent jurisdiction to undertake judicial review of decisions ofinferior courts, of tribunals etc.this means that courts can conduct judicial review even if there is no statute that expressly confersjurisdictionThere are many common law remedies: Certioti -quashing an unlawful decision Prohibition – prohibit an unlawful exercise of power mandamus- order an official to exercise a power he lawfully held or show cause why notGROUNDS/BASIS FOR COMMON LAW REMEDIES:1. JURISDICTIONAL ERROR- Common law ground of review Jurisdiction - the authority to decide Jurisdictional error – go beyond jurisdictionA jurisdictional error involves:A) a misunderstanding of the nature, scope or existence of a decision-makers jurisdiction, and alsoB) extends to an error made while exercising a power if that error leads a decision-maker to exceedtheir authorityOne of the basis for certiori and breaches of procedural fairness and non-jursidctional errors of law onthe face of the record.Craig v South Australia (1995) 184 CLR 163Facts: Mr Craig was charged in the District Court of SA with three offences involving a motor vehicle. ApplyingDietrich v R (1992) 177 CLR 292, the trial judge ordered that the trial be stayed until legal representation wasmade available to him. The State applied to the Supreme Court for an order in the nature of certiorari to quashthe order of the District Court. The Crown disagreed with Trial Judge’s interpretation of the Dietrich test: Buthad no statutory appeal rights – so sought judicial reviewHeld: On appeal, the High Court held that an error (if any) by the District Court could not be quashed bycertiorari, because any such error was neither a jurisdictional error nor an error on the face of the record of theDistrict Court.
If Judge Russell fell into error in assessing the effect of the majority judgment in Dietrich or in concluding thatC's inability to obtain legal representation was through no fault on his part, that error was within jurisdiction. Itwas not a jurisdictional error for the purposes of certiorari.Judicial Review and Inferior Courts:Judicial review is available against inferior courts as well as administrative decision makersIn craig- the district court made a decision for Mr Craig. The crown applied to supreme court for certiori to quashdistrict courts decision. Supreme court held that district court had failed to take relevant matters into account andheld these were jurisdictional errors. On appeal the HC reversed the supreme court’s decision- they held that thedistrict court has jurisdiction to decide questions of law and was within jurisdiction to determine what matterswere relevantAs a court, even though it was an inferior court, the judge had the jurisdiction to determine the law and thisextended to getting the law wrong! This is not the case for administrative decision makers such as tribunals “ anadministrative tribunal lacks authority either to authoritatively determine questions of law or to make an order ordecision otherwise than in accorance with the law”. In craig the district courts decision was made withinjurisdiction and was not subject to certiori for jurisdictional error.Therefore:1.Courts can make errors but theyre not necessarily jurisdictional errors2.Tribunals- administrative decision makers. Cant get law wrong. Errors of law will most likely be jurisdictional.Has the error of law taken them beyond jurisdiction? Not always work out on case by case basis if this is thecaseExamples of Jurisdictional Errors by Inferior Courts (list from Craig): mistakenly asserts or denies the existence of jurisdiction misapprehends or disregards the nature or limits of its functions or powers if, having civil jurisdiction only, it purported to hear and determine a criminal charge making an order beyond power - such as an order for specific performance when its powers were limitedto awarding damages for breach lack of an objectively required jurisdictional fact
Examples of Jurisdictional Errors by Administrative TribunalsWith tribunal decisions, Errors of law are more likely to be jurisdictional errorsBut need to argue that it is in fact a jurisdictional error- case by case analysisThese examples came from craig:evidence. Misapprehended the limits of its functions and powers – jurisdictional errorHow to actually determine if the error is a Jurisdictional error?Example: FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1 (High Court):Facts: The criminal allegations were not relevant to the protection visa. Visa refused by minister. AATdecision being reviewed. Did AAT make a jurisdictional error? Found by federal court there was nojurisdictional errorHC appeal- to consider, had federal court erred in finding no jurisdictional error?Held: AAT had not made findings of fact that required it to come to the conclusion it did. High Court held– AAT had made a jurisdictional errorHow did they determine the errors were jurisdictional? Questions to consider/ask: The AAT did not respond to the question it was required to ask By that omission it committed ajurisdictional error” [19] French CJ and Gageler J. “The tribunal failed ‘to apply itself to the real question to be decided or [misunderstood] the natureof the opinion it [was] to form.’” [25] Hayne J. “the tribunal misconstrued the test it had to apply.” [42] That was a jurisdictional error [43] Hayne J. “the tribunal misconstrued its functions and powers” [97] Crennan and Bell JJ.2.NON-JURISDICTIONAL ERRORS OF LAW ON THE FACE OF THE RECORD: A basis for certiorari
Judicial review- was the decision correctly made according to law The process and outcome: Merits review- involves a new administrative decision maker substituting his/her own decision for that of the original decision maker. The facts, the law and policy are considered again and a new decision is made.
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