Week 2

Topic and Case Summary Non-judicial Review of Administrative Action: Merits Review: the role of Tribunals. CASE: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) Administrative Appeals Tribunal Administrative Appeals Tribunal Act 1975 (Cth) Powers of the Tribunal. FACTS: Drake, an American citizen, was ordered to be deported. The Tribunal affirmed the Ministers decision. Drakes appeal to the Federal Court was allowed and the matter was remitted to the Tribunal for rehearing. The issue for this rehearing was the role of the Ministers policy in Tribunal determinations. The Ministers policy statement regarding his approach in deportation cases provided that (1) all the material facts and circumstances relating to that person would be considered by the Minister, every case being decided upon individual circumstances, and (2) the basic consideration was whether in all the circumstances it was in the best interests of the Commonwealth of Australia that the person be deported. HELD: The Ministers decision to deport Drake was affirmed as his activities were gravely damaging to the welfare of Australian society. Deporting him was in accord with the Ministers policy and would ensure that the community was protected from the risk of his engaging again in large scale drug offences. This outweighed any consideration in favour of allowing him to stay. The application of a stated policy to decision-making in this area ensured consistency and fairness. The stated policy did not fetter the exercise of the Ministers discretion nor did it exceed the lawful limits of policy. The tribunal, in reviewing a Ministers decision, may or may not apply the Ministers policy. The Tribunal is independent and free to make its own decision on the material before it. If it applies ministerial policy it is because of the assistance it provides in arriving at a preferable decision. The laying down of broad policy is a political

function amenable to parliamentary scrutiny. It was, therefore, warranted that the Tribunal adopt a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. 4 Delegated Legislation; Statutory Interpretation. CASE: Re Minster for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) Full Federal Court of Australia Delegated legislation Ultra vires Unreasonableness Administrative Decisions (Judicial Review) Act 1977 (Cth) FACTS: Under the Fisheries Act 1952 (Cth) the Minister determined a management plan for the South East Fishery. The plan was based on a formula for allocating quotas for species of fish to individual fishing operators, based on their catch history. The formula required a percentage for each year for five years. Austral Fisheries sought review under the ADJR Act and an injunction that the formula was based on a statistical fallacy. At first instance the primary judge held that the relevant provisions of the plan were capricious and irrational, such that no reasonable person could ever have devised it. HELD: Appeal dismissed. The plan should result in an operation under the legislation that is not capricious and irrational; that is Parliaments intent. Secondly, a plan will be beyond power if it cannot be justified on any reasonable ground. A court is not at liberty to declare a regulation or by-law invalid on the ground of unreasonableness merely because the court may think it could be more fairly framed, or bear less hardship. Such considerations are entrusted to public functionaries, and although the ultimate power of supervision remains in the court, it is only for the purpose of confining the rulemaking power within the limbs of its jurisdiction, and not for correcting any possible unwisdom. The method adopted by the plan will only be beyond the scope of the provision if no reasonable person could ever have devised it. In the absence of evidence or a process of reasoning to propound any rational basis to warrant the adoption of a statistically

flawed formula for the calculation of catch history over the five year period, it was open to conclude that the relevant provisions of the plan were beyond power and thus void. 5 Introduction to Judicial Review; Justiciability and Standing. Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] High Court of Australia Standing Special Interest Injunction FACTS: The Aboriginal Community Benefit Fund Pty Ltd operated a funeral benefit fund. The Batemans Bay Local Aboriginal Land Council and the New South Wales Aboriginal Land Council (NSW ALC) established a rival fund whose subscription rates were much lower because of subsidies from the NSW ALC. The Aboriginal Community Benefit Fund sought an injunction to restrain the rival business, arguing that it was beyond their statutory powers. Their claim was dismissed on the grounds that they lacked standing. They appealed successfully to the Court of Appeal. The decision was appealed to the High Court by the Local and NSW Land Councils. HELD: Appeal dismissed, unanimously. There is a public interest in the observance by statutory authorities, particularly those having public revenues, of the limitations upon their activities imposed by the legislature. The public interest may be vindicated by a party with a sufficient material interest in the subject matter. Here there was an interest in the observance of statutory limitations upon the activities in respect of funeral funds which was immediate, significant and peculiar to the Aboriginal Community Benefit Fund Pty Ltd. Because the parties would be operating in substantially the same limited market, it was highly likely that, if not restrained from commencing activities, the rival fund would cause severe detriment to the business of the respondents. This gave the respondents a sufficient special interest to seel equitable relief.

North Coast Environment Council Inc v Minister for Resources (1994) Federal Court of Australia Administrative Decisions (Judicial Review) Act 1977 (Cth) Standing FACTS: The Council was the peak organisation for environmental groups in northern New South Wales. It sought reasons under s13 of the Administrative Decisions (Judicial Review) Act for the Ministers decision to grant a particular woodchip export licence. The Minister refused, arguing that the Council was not a person aggrieved. HELD: Per Sackville J. In order to show a special interest in the subject matter of the litigation the Council could not rely solely on its objects or on its role as commentators on the relevant environmental impact statement. It demonstrated its concern with the subject matter of the decision and the closeness of its relationship to the subject matter of the decision and the closeness of its relationship to the subject matter: being the peak environmental organisation in the region its activities related to the areas the subject of the expert licence; it had been recognised by the Commonwealth since 1977, and by the Government of New South Wales as a member of government advising groups; it had been involved with projects and conferences on environmental matters receiving Commonwealth funding and made submissions on forestry management. It was a person aggrieved in relation to its claim to reasons for the decision to grant the export licence. Its concerns were more than merely intellectual or emotional; it had a particular interest in the decision and in woodchipping operations. A regional organisation may well be able to demonstrate a closer concern with a particular decision that a national one. North Coast demonstrated a specific concern with a particular decision than a national one. Nor Coast demonstrated a specific concern with and interest in its defined area of activities; it was no mere

busybody. Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1994) Federal Court of Australia Administrative Decisions (Judicial Review) Act 1977 (Cth) Standing FACTS: The association claimed that the use of the drug, Mifepristone, was contrary to State abortion laws. The secretary allowed the clinical trials of the drug to continue. The association sought reviews of this decision. The secretary argued that the association lacked standing. HELD: The right to speak and to influence public opinion on the sanctity of human life and of the need to defend life against abortion is not transmuted into a right of standing to pursue proceedings in courts of law, per Lockhart J. Standing requires some form of interest in the subject matter of the proceeding other than a mere emotional attachment or intellectual pursuit or satisfaction. In the present case the Therapeutic Goods Act is the source of the regulations. The moral and political questions concerning abortion are not addressed by the Act or the regulations. The Act relates to the quality, safety, efficacy and timely availability of the therapeutic goods, s4. The arguments of the association that the trials be stopped are not based on these matters. It had no greater interest in the subject matter of the case than any other concerned person; nor is it affected in any way to an extent greater than the public generally. It was not a person aggrieved within s5 of the ADJR Act. John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) Supreme Court of New South Wales (Court of Appeal) Certiorari Standing

FACTS: The Police Tribunal issued an order for non-publication of evidence. John Fairfax and sons, a newspaper proprietor, sought relief in the nature of certiorari. HELD: Per Mahoney JA: The prerogative writs are the means by which superior courts supervise the operation of the tribunals inferior to them in the judicial hierarchy. The circumstances include excess of jurisdiction, procedural irregularity such as denial of natural justice and errors of law on the face of the record. The standing required of an applicant is not the same in each of these circumstances. Where there is lack of jurisdiction, a stranger may seek prerogative relief to ensure that the tribunal does not exceed its jurisdiction. In the present case the plaintiff is a stranger to the proceedings before the tribunal. However, as this is a case of excess of jurisdiction, the plaintiff has standing to make the application. Abebe v Commonwealth (1999) High Court of Australia Prerogative Relief Section 75(v) of the Constitution FACTS: Abebe, an Ethiopian national, applied and was refused a protection visa, as a refugee, under s36 of the Migration Act 1958 (Cth) (the Act). The Refugee Review Tribunal affirmed the decision. The Federal Court dismissed Abebes application for review because the grounds specified denial of natural justice and unreasonableness were nonreviewable grounds under Pt 8 of the Act. Abebe sought prerogative relief in the High Court pursuant to s75(v) of the Constitution and began a second proceeding in the High Court seeking a declaration that ss 476(2), (3) and 485 of the Migration Act were invalid. HELD: Per Gleeson CJ, McHugh, Kirby and Callinan JJ (Gaudron, Gummow and Hayne JJ dissenting): Application dismissed. The provisions of Pt 8 of the Migration Act limiting the grounds on which a decision could be subjected to judicial review in the Federal Court are valid. The fact that

Parliament has elected not to give the court all the remedies available to resolve a controversy or conferred limited jurisdiction cannot alter the fact that Parliament has defined the jurisdiction of the court with respect to a matter. The grounds for prerogative relief were not made out. Abebes evidence to the tribunal was inconsistent. No jurisdiction or other legal errors occurred by the Tribunals refusal to act on Abebes claims. R v Toohey; Ex parte Northern Land Council (1981) High Court of Australia Delegated Legislation Ultra Vires Improper Purpose FACTS: An application was made by the Northen Land Council under the Land Rights Act for a claim of traditional land in the Cox Peninsula, NT. The Commissioner held that a large part of this land came under the description of a town within the Land Rights Act and therefore was not available to be claimed as unalienated Crown Land. The Administrator of the Northern Territory made regulations under the Planning Act 1979 specifying areas to be treated as towns. Under a schedule to a regulation, the town of Darwin was described as an area of 4350 square kilometres including most of the area of the Cox Peninsula, which was the subject of the Aboriginal land claim. It was alleged that this regulation was invalid on its face or that it was made for the purpose of defeating the land claim. The Commissioner held that as the regulations were made by the Administrator as a representative of the Crown, bad faith could not be imputed to him and therefore his motives could not be called into question. He further held that the claimants had not discharged the onus of showing that the power had not been used for a town planning purpose. Therefore, the land claimed was in a town and not available. The Northern Land Council sought a writ of certiorari to quash the decision and a writ of mandamus. HELD: By majority: The case was a proper one for mandamus. Unless Parliament has excluded judicial review, the courts may examine an exercise of power granted by Parliament to

determine whether the exercise is within the scope of the power granted. This is the case whether the grant of power is to a Minister or to the representative of the Crown or to some other person or authority. The Commissioner must hear and determine the case according to law in the light of evidence concerning improper purpose. 6 Simple Ultra vires ; Abuse of Power I. R v Toohey (Aboriginal Land Commissioner); Ex Parte Northern Land Council (1981) Same as above. Melbourne Corporation v Barry (1922) High Court of Australia Delegated Legislation Ultra Vires The Prohibition/Regulation Distinction FACTS: The Council of the City of Melbourne passed a by-law which provided: No processions of persons or of vehicles shall, except for military or funeral purposes, parade or pass through any street unless with the previous consent in writing of the Council The by-law was made pursuant to the Local Government Act 1915 (Vic) which allowed local governments to make by-laws for, inter alia, regulating traffic and processions. Barry, who was a ratepayer, applied to have the by-law quashed. This was ordered by the Full Court of the Supreme Court of Victoria. The city appealed to the High Court. HELD: By majority: Appeal dismissed. The by-law was in excess of the power conferred by the Local Government Act. The legislature clearly has not given the Council the power to prohibit processions. Rather it allowed it to make rules to ensure that the public would have the use of the streets with the minimum of inconvenience (per Higgins J). The power to regulate cannot be used to prohibit processions; it implies the continued existence of the thing to be regulated.

Sydney Municipal Council v Campbell [1925] Privy Council Ultra Vires Abuse of Discretionary Power Improper Purpose FACTS: The Council was given power by statute to resume land for carrying out improvements in, or remodeling any portion of, the city or the opening of new public way or for widening, enlarging or extending any public ways in Sydney. It resolved to extend Martin Place to Macquarie Street and to resume adjacent land owned by the respondents. The latter obtained injunctions restraining the Council, whereupon the Council passed a second resolution identical to the first except that it stated that the land was also required for the improvement and remodeling of the area. The respondents again sought and were granted injunctions. The Council appealed. HELD: Appeal dismissed. An authority such as the Municipal Council of Sydney, which is given power to acquire land compulsorily for specified purposes, may not exercise its powers for different purposes. The onus is on the party challenging the use of power to show that the authority, although professing to use the power for a statutory purpose, is in fact furthering some ulterior object. There was no plan of improvement or remodeling before the Council when it passed the second resolution. It was merely the same transaction crouched in the words of the empowering statute. Thompson v Randwick Municipal Council (1950) High Court of Australia Ultra Vires Abuse of Power Improper Purpose FACTS: The Council resolved to resume land for improvement and embellishment of the area pursuant to the Local Government Act 1919 (NSW). The Council proposed to construct a new road and pathway, close to two streets, and re-subdivide a number of allotments to confirm the scheme so that the

surplus could be sold at a profit, which would help defray costs of the scheme. The owners of land affected by the proposal sought an injunction to restrain the Council. When the suit was dismissed in Equity, they appealed to the High Court. HELD: Appeal allowed. The provisions of the Act relied upon by the Council did not support the resumptions. Land could be resumes for the purpose of a new road but not for other purposes, except insofar as the resumption of adjoining land might be reasonably incidental to a purpose under the Act. The land proposed to be resumed went beyond that necessary for the new road and there was no evidence that any excess could be acquired because it was reasonably incidental to any other purpose. Likewise the Councils power to control, regulate, improve and embellish the area had to be carried out in accordance with the purpose for which the Council was resuming land. The only purpose for resuming more land than was necessary was to re-sell it to benefit the Council at the expense of the owners. The Council was not acting in good faith in that it exercised its powers for an ulterior purpose. Re-sale was not its sole purpose but it was still an abuse of power: profit-making by sale of the land was a substantial purpose of the scheme as a whole. King Gee Clothing Co Pty Ltd v Commonwealth [1945] High Court of Australia Delegated Legislation Ultra Vires Uncertainty FACTS: The Prices Commissioner had the power to fix maximum prices for clothing. The clothing company attacked such an order relating to mens and boys clothes as ultra vires for uncertainty because it did not state an amount in money. HELD: The Commissioner had very wide powers to fix prices, which may be of varying kinds, and based on different grounds. However, the standards and criteria prescribed must give definite and objective calculations, not estimates or subjective evaluations. The Commissioners order was

invalid because there was no clear objective formula capable of producing a uniform result which every person, given the facts and figures and calculating correctly, would arrive at. 7 Abuse of Power II. Ansett Transport (Operations) Pty Ltd v Commonwealth (1977) High Court of Australia Crown Fetters on Freedom of Executive Action FACTS: Ansett alleged breach of contract by the Commonwealth under the Airlines Agreement the so-called two airline policy which provided that there be not more than two operators of trunk route airline services, those two operators being Ansett and the Commonwealth airline, [then] TAA. The Commonwealth, under Customs (Prohibited Imports) Regulations, approved the importation of aircraft by two other transport companies. Ansett sought declarations, injunctions and damages against the Commonwealth. HELD: By majority: Permitting the importation of aircraft would not constitute a breach of any of the terms of the Agreement. There was no basis for implying a covenant which would impose an additional and unexpressed obligation on the Commonwealth not to alter the law (per Mason J). Such a term would fetter the governments future executive action. 8 Procedural Fairness application and exclusion. Edelston v Health Insurance Commission (1990) Federal Court of Australia Administrative Decisions (Judicial Review) Act 1977 (Cth) Preliminary Decisions Whether Natural Justice Should be Accorded FACTS: The Applicant, Dr Edeleston, brought two actions, which were heard together at first instance, and on appeal to the Full Court, concerning circumstances in which an investigation was commenced by the Health Insurance Commission into the question of whether his use of

ultrasound, echocardiography and pathology services constituted excessive services with s 79(1B) of the Health Insurance Act 1973 (Cth) (the Act). The Applicant challenged a decision made by Dr Nearhos, as delegate of the Health Commission and pursuant to reg 3(2)(b) of the Health Insurance Commission Regulations, that there was sufficient evidence to warrant a referral of the case investigated to a committee established under Div 3 of Pt V of the Act and to refer the case to the Minister for Community Services and Health. The applicant had voluntarily cooperated in providing information to Dr Nearhos. The second decision challenged was a decision of Dr Dash, as delegate of the Minister and pursuant to s 82 of the Act, to refer to the Medical Services Committee of Inquiry for Victoria the question of whether each of 4011 professional services rendered by the applicant to 544 patients was an excessive service. The primary judge held that both decisions were reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). In relation to the first decision Dr Nearhos had no duty to comply with the rules of natural justice and the application was dismissed. In relation to the second decision there was a denial of natural justice in the failure to inform the applicant of the allegations and afford him an opportunity to reply. This decision was set aside. HELD: Per Northrop, Davies and Lockhart JJ: For a decision to be reviewable under the ADJR Act it must have a quality of finality, not being merely a step taken on the way to the possible making of an ultimate decision, and it must have the essential quality of being a substantive, as distinct from a procedural, determination. There being no duty on the Minister to do anything but consider the reference made to him by Dr Nearhos under reg3(2)(b) of the Health Insurance Commission Regulations, and no rights or legitimate expectation of the applicant being affected by Dr Nearhos decision, the decision to refer was not a reviewable decision under s 31(1) of the ADJR Act.

Per Northrop and Lockhart JJ: The decision of Dr Dash to refer the matter to the committee, the committee being bound under s 94(c) of the Act to do no more at this preliminary stage than consider and decide whether the person may have rendered excessive services, was not a decision reviewable under s 3(1) of the ADJR Act. Twist v Council of the Municipality of Randwick (1976) High Court of Australia Natural Justice Legislative Restriction FACTS: Twist received an order of demolition of his house unless it was restored to the Councils satisfaction within a reasonable time. The empowering legislation, the Local Government Act 1919 (NSW), in s 317B, conferred on an owner receiving such an order the right to appeal to the District Court. Although Twist was given an extension of time to comply with the order, he failed to comply. The Council resolved to order the demolition. Twist had not exercised his right to appeal to the District Court. He sought a declaration that the Councils order was null and void. The Supreme Court of New South Wales dismissed his application and he appealed to the High Court. HELD: The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamentals and universal (Per Barwick CJ). However the rule may be displaced by the legislature, which may provide for the exercise of such power without a hearing being afforded to the effected person. This legislative intention must be made unambiguously clear. But if legislation has made provision for a hearing before a person or his property is affected, the court will not be warranted in supplementing the legislation, even if the legislative provision is not as full and complete as the court might think appropriate. In the present case, in enacting s 317B, the legislature has provided an opportunity for the owner of a property to be heard before his rights are finally affected. It is not for the court to intervene and insist that the Council should have heard the owner before making the

order. Dale v NSW Trotting Club Ltd [1978] Supreme Court of New South Wales (Court of Appeal) Natural Justice Rule Against Bias Reasonable Suspicion of Bias Conduct of Proceedings Domestic Tribunal FACTS: Dale was a bookmaker licensed by the Trotting Club. He was charged with offences under the rules before the stewards; he allegedly sought to induce a trainer not to run a horse on its merits. He was disqualified for life. His appeal to the Appeal Committee was dismissed. In proceedings before the Supreme Court, Needham J held that the Appeal Committee proceedings denied him natural justice and were invalid on the grounds that, to a reasonable bystander, the conduct of the Committees legal counsel would have given the impression that he was improperly influencing the tribunal and its operations. HELD: Maloneys Case [87] concerns the disqualification of a member of a domestic tribunal to sit because of actual bias. Here, the concern is with matters of misconduct, impropriety or denials of natural justice during the course of the proceedings. The Committee follows its own rules as to the conduct of its proceedings, and its rules allow it a wide discretion to seek and apply such assistance from counsel as it sees fit. The facts show that counsel acted properly in fulfilling the role the Committee asked of him. His conduct did not lead to a reasonable suspicion that the Committee proceedings were not conducted with the necessary fairness and impartiality. Durayappah v Fernando [1967] Privy Council Natural Justice The Duty to Observe FACTS: The issue in this appeal from the Supreme Court of Ceylon by the Mayor of Jaffna was whether the Minister of Local

Government was justified in exercising his powers under the Municipal Councils Ordinance to dissolve the Jaffna Municipal Council for alleged incompetent performance without giving it the right to be heard in its own defence. The court, in deciding whether the principle of natural justice applied, considered the following three issues: the nature, status and duties of the office held: the question of when a person such as the Minister could intervene: the sanctions which the Minister could impose. HELD: Per Lord Upjohn, who delivered the judgment of the Board: (1) The Council of Jaffna was a public corporation entrusted with administration of a large area and the discharge of important duties. No Minister should have the right to dissolve such an authority without allowing it the right to be hear unless the statute is so clear that is plain it has no right to self-defence. (2) The Minister could dissolve the Council on three grounds: (a) incompetence; (b) persistent default in performance of duties; (c) persistent default in compliance with the law. As these are most serious charges, it is plain and obvious that the principle audi alteram partem must apply. (3) The sanction was as complete as could be imagined; it involves the dissolution of the Council and therefore the confiscation of all its properties. The principle that no one can be deprived of property without having an opportunity of being heard applies to a statutory body. Therefore, on this ground also the Minister should have observed the principle. (The Privy Council went on to hold that the Ministers order was not void, but merely voidable at the instance of the person aggrieved, that is the Council. Therefore, the Mayors appeal was dismissed. This aspect of the decision has been considered incorrect.) Ridge v Baldwin [1964] House of Lords Natural Justice Duty to Observe Effect of Breach of the Principles

FACTS: The plaintiff was a chief constable who was dismissed from office pursuant to s 191(4) of the Municipal Corporation Act 1882 (UK) which provided: The Watch Committee may at any time suspend, and dismiss, any borough constable whom they think negligent in the discharge of his duty, or otherwise unfit for the same. The plaintiff received no notice of the charges against him and had not been invited to defend himself. He had formerly been charged with, and acquitted of, conspiracy to pervert the course of justice and with corruption. He appealed to the Home Secretary who dismissed the appeal. He then sought a declaration that his dismissal was illegal, ultra vires and void. This action failed. His appeal to the Court of Appeal was unanimously dismissed. He then appealed to the House of Lords. HELD: The appeal must be allowed. There is an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation (per Lord Reid). Where the power to be exercised involves a charge made against the person who is dismissed, the principles of natural justice have to be observed before the power is exercised. Such a decision given without regard to the principles of natural justice is void. Accordingly, the dismissal of the appellant was null and void. Banks v Transport Regulation Board(Vic) (1968) High Court of Australia Natural Justice Duty to Observe FACTS: Bankss tax-cab licence was revoked by the Board on the grounds that he had not complied with certain conditions of the licence, including not notifying the Board of his change of address. HELD: A licence required to earn a livelihood is not a mere privilege; rather it is property. In revoking such a licence the Board is,

therefore, bound to act judicially. Haoucher v Minister of State for Immigration (1990) High Court of Australia Natural Justice Legitimate or Reasonable Expectation Criminal Deportation FACTS: The respondent Minister for Immigration, Local Government and Ethnic Affairs made an order for the deportation of the appellant, pursuant to s 12 of the Migration Act 1958 (Cth) (the Act). On review, pursuant to s 66E of the Act, the Administrative Appeals Tribunal remitted the matter to the Minister for reconsideration in accordance with its recommendation that the deportation order be revoked. The Minister decided not to accept the recommendation of the Tribunal and notified the appellant that he was to be deported. The minister had previously, on4 May 1983, tabled in Parliament a criminal deportation policy stating that recommendations of the Tribunal should be overturned by the Minister only in exceptional circumstances and only when strong evidence could be produced to justify his decision. The appellant sought review of the Ministers decision for denial of procedural fairness in that the Minister failed to give him a hearing before making the second decision to deport. The application was dismissed at first instance and an appeal dismissed by a majority of the Full Federal Court. HELD: Per Deane, Toohey and McHugh JJ (Dawson and Gaudron JJ dissenting): The effect of the published, considered statement of government policy by the responsible minister prescribing procedural steps to be followed in a case such as the present resulted in the appellant having legitimate a legitimate expectation such that procedural fairness required that he be accorded an opportunity of being heard on the questions of whether the recommendations of the Tribunal

should be overturned by reason of exceptional circumstances and whether strong evidence can be produced to justify such an overturning of the Tribunals recommendation. 11 Requirements of Procedural Fairness the hearing rule and the bias rule. Stollery v Greyhound Racing Control Board (1972) High Court of Australia Natural Justice Rule Against Bias Reasonable Suspicion Bias FACTS: The Board, established by statute, regulated greyhound racing in New South Wales. Smith was a member of the Board. He was also the manager of an association, which conducted greyhound racing. Stollery, who was a bookmaker, owner and trainer, sent forms nominating digs for certain races to Smith. He enclosed $200 in the envelope. When challenged by Smith, Stollery said it was a wedding present. Smith, who regarded it as a bribe, reported it to the Board. An inquiry was held. Smith presented his report; Stollery denied it was a bribe. The Board charged him with detrimental conduct. Stollery pleaded not guilty. He was found guilty and disqualified for 12 months. Smith was present during the Boards deliberations, although he took no part. Orders nisi for certiorari and prohibition were discharged by the Court of Appeal. Stollery appealed. HELD: Appeal allowed. Mr Smith stood in a very special relationship to the appellant and to the matter which the Board was called upon to consider (per Barwick CJ). He reported the incident and was personally involved in it. The heart of the matter was the purpose or motive with which Stollery offered money to Smith and the likely effect of the offer upon the control and regulation of the sport. Smith concluded that there had been an attempt to bribe him; he was in the position of an accuser. Therefore, he was disqualified from participating in the discussion of or decision on whether Stollerys conduct was detrimental to the control and regulation of greyhound racing, as well as the question of penalty. He was a member of the

Board and an influential figure in sport. His continued presence in the room, even though he did not participate in the discussion or decision, was inconsistent with the requirements of natural justice. R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group High Court of Australia Natural Justice Rule Against Bias Reasonable Suspicion of Bias FACTS: In the National Wage Case in 1967, the Conciliation and Arbitration Commission inaugurated a new system of wage fixation. It abolished the male and female basic wage to which margins were added and introduced appropriate wages for each classification of work as a single money sum. It decided to add the same increment for males and females alike, thus modifying the percentage relationship between the two. The work implication was that the Commission favoured equal pay for equal work as soon as economic and industrial conditions permitted. A union applied to vary its award to provide for equal pay for male and female employees. The employer applied to restrain the President and Deputy President of the Commission, who sat in the National Wage Case, from hearing the unions application on the ground that there was a reasonable suspicion that they had already made up their minds on this and other relevant issues. HELD: By the Full Bench: Motion dismissed. What is fair depends upon the circumstances of the case. The Commission does not sit to enforce existing private rights. One of its functions is to develop and apply broad lines of action in matters of public concern resulting in the creation of new rights and in the modification of existing rights. It can be expected that views as to the desirability of change in some principle of wage fixation might be expressed. The very nature of the office requires a member to consider questions of general arbitral policy and various methods of conciliation and arbitration for prevention and settlement of industrial

disputes. The expression of opinion upon a general question of policy does not disqualify the members of the Commission from sitting in an equal pay determination. Such an attitude of mind does not justify a reasonable apprehension that a member of the Commission might not be able to decide the question of equal pay with a fair and unprejudiced mind. It is the duty of the members to give full and fair consideration to every relevant argument that may by put to them for a revision or even an abandonment of announced opinions. National Companies and Securities Commission v News Corporation Ltd (1984) High Court of Australia Natural Justice Preliminary Decisions FACTS: The National Companies and Securities Commission (NCSC) proposed to hold a preliminary investigation in private into suspected offences of News Corporation. The company challenged the NCSCs decision to deny it the right to be present throughout the hearing or to cross-examine witnesses. HELD: Per Mason J, Wilson and Dawson JJ, with whom Gibbs CJ and Brennan J concurred: As the NCSC Act requires the Commission to observe the rules of natural justice at its hearing, it was for the court to consider what the rules of natural justice require in this particular circumstance. The word hearing in the NCSC Act is not a term of art. The present hearing was an investigation based on a mere suspicion. There was no charge, no person being accused, and no legal rights being affected. The rules of natural justice would be observed if, as the NCSC proposed, each witness called upon to give evidence was allowed legal representation with the freedom for that representative to participate in the examination of the witness, and for the provision of a transcript of his evidence. More widespread participation of the company in the hearing would frustrate the purpose of the hearing, which was to gather relevant information from a wide range of sources.

Calvin v Carr [1980] Privy Council Natural Justice Breach of the Rules Effect FACTS: Calvin was part owner of a racing horse. After its poor performance in a race, an investigation was held by the stewards. The jockey was charged with a breach and disqualified for one year. An appeal to the Committee of the Australian Jockey Club was dismissed as was an appeal to the Supreme Court of NSW. HELD: Per Lord Wilberforce: Even if the stewards had failed to observe the principles of natural justice, their decision for the purposes of the appeal to the Committee of the Club was not void. The Committee, therefore, had jurisdiction to entertain the appellants appeal. The appeal hearing itself was governed by the Rules of Racing. It is an essentially domestic proceeding, in which experience and opinions as to what is in the interests of racing as a whole play a large part. Those who participate in the sport have accepted the Rules of Racing, and the standards which lie behind them; they must also have accepted to be bound by the decisions of the bodies set up under those rules so long as it can be objectively said that they had fair treatment and consideration of their case on its merits. Calvins case had received full and fair consideration. There was no basis on which the court ought to interfere. Re Pochi and Minister for Immigration and Ethnic Affairs (1980) Administrative Appeals Tribunal Ultra Vires Abuse of Discretionary Power No Evidence Rule FACTS: Pochi had lived in Australia for 20 years as a permanent. He was convicted of being knowingly involved in the cultivation of marijuana. A deportation order under s 12 of the Migration Act 1958 (Cth) was issued against him. At the AAT review of

the deportation order the Minister claimed that Pochis role went beyond that of a farm labourer to include large scale trading in marijuana. It was alleged that Pochi had large sums of money, although there was no evidence that the money was from marijuana trading. Other allegations were made against him by a police officer in closed proceedings. Both the accused and the public were excluded. HELD: Per Brennan J: Matter remitted to the Minister with the recommendation that the deportation order be revoked. Although the Tribunal and the Minister are free to disregard formal rules of evidence in receiving material on which facts are to be found, this does not go so far as to justify orders without a basis in evidence having rational probative force. To depart from the rules of evidence is to put aside a system, which is calculated to produce a body of proof, which has rational probative force. To exclude the public from a hearing is a serious step. The exclusion of a party from a hearing, which affects his interests, is a graver step. It is deny him a full opportunity to cross-examine upon, comment on or to controvert the case against him a denial which, in the absence of statutory authority, would constitute an indefeasible denial of fair treatment by the Tribunal. The confidential information, in conjunction with the other circumstances of the case did not warrant a positive finding that Pochi was involved in commerce in marijuana. There were ample grounds for suspecting that the applicant was so involved, but the evidence did not prove it. When an alien who is an established resident becomes liable to deportation under s 12, the general rules must be that the conduct which is relied on to show that a deportation is in the best interests of Australia must be proved, not merely suspected.

NOTE: APPEAL TO THE FULL FEDERAL COURT WAS DISMISSED: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS v POCHI (1980) 4 ALD 139.

12

Limits to Fairness, the Status of Irregular Decisions and Ouster clauses. Attorney-General (NSW) v Quin (1990) High Court of Australia Natural Justice Legitimate Expectations Limitations FACTS: The New South Wales magistracy was reorganised. Several persons, including Quin, who formerly held office as stipendiary magistrates under the Justices Act 1902 (NSW) were not recommended by the Attorney-General for appointment as magistrates under the new Local Court Act 1982 (NSW). Subsequently the Attorney-General decided to depart from the course previously adopted in recommending former magistrates for appointment to the Local Courts. Previously he had recommended magistrates who were not unfit. He now decided to select entirely on merit and that required an assessment of competing applicants. This policy was challenged by Quin and two other former stipendiary magistrates. The New South Wales Court of Appeal, by majority, made a declaration the effect of which was to require the Attorney-General to consider Mr Quins application for appointment on its own merits and not in competition with applications from other applicants. The Attorney-General appealed unsuccessfully to the Court of Appeal. He then appealed to the High Court. HELD: Per Mason CJ, Brennan and Dawson JJ (Deane and Toohey JJ dissenting): Appeal allowed. There was a legitimate expectation that the Attorney-General, in considering whether or not to recommend appointment, would accord procedural fairness, that is, the opportunity to answer material which was adverse. However, the new policy for appointing magistrates was in conformity with the Act. There was no justification for granting relief in a form which would compel the Executive to adhere to an approach to judicial appointment which it had discarded in favour of a different approach which, in the opinion of the Executive, was better calculated to serve the administration of justice and make it more effective. The grant of substantive relief in the present case would effectively prevent the Executive from giving

effect to the new policy. In speaking of a duty to act fairly, care must be exercised that it is identified only with procedural obligations. The merits of administrative action as distinct from legality are for the repository of the relevant power. Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam [2003] High Court of Australia Natural Justice Legitimate Expectations FACTS: Lam was a refugee (from the age of 13) from Vietnam, who was granted a Transitional (Permanent) visa. He committed a number of criminal offences, including trafficking in heroin, for which he was sentenced to prison for eight years. The Migration Act 1958 (Cth), s 501(2) empowered the Minister to cancel a persons visa if they could not pass the character test formulated in the Act. This applied to Lam because of his criminal history. The Minister decided to cancel Lams visa and he became liable to deportation. The Department told Lam that relatives with whom his two Australian born children were living would be contacted to determine the effect of his deportation on his children. This contact was not made. Lam sought orders of certiorari and prohibition to quash the decision and prevent steps being taken to deport him. The grounds were failure to accord procedural fairness and to take into account the best interests of his children. HELD: Per Gleeson, CJ, McHugh, Gummow, Hayne and Callinan JJ: Dismissed. Minister for Immigration, Local Government and Ethnic Affairs v Teoh [93] did not apply. Lam had lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention of the Department. It was not shown that there was procedural unfairness or a failure properly to take into account the interests of his children. The term legitimate is not to be taken to mean entitlement, but to have the lesser meaning of reasonable. Likewise the term expectation is uncertain, referring to what a reasonable person might be expected to expect in the objective sense. In Australian administrative

law, legitimate expectation in the Teoh sense refers to procedural protection only, not substantive protection. The concern is with the fairness of the procedure not the fairness of the outcome. Anisminic Ltd v Foreign Compensation Commission [1969] House of Lords Jurisdictional Error Excess of Jurisdiction Privative Clause FACTS: Anisminic Ltd had owned a mining property in Egypt said to be worth over 4m pounds. In 1956, as a result of the Suez crisis, the property was confiscated by the Egyptian Government. It was later sold to an Egyptian organisation called TEDO. Anisminic Ltd received 500,000 pounds, but this was not to include any claim it might be entitled to assert against any government authority other than the Egyptian Government, as a result of loss suffered by, or of damage to or reduction in the value of, the business. A treaty between the governments of the United Kingdom and the United Arab Republic was made in 1959. It provided for the return to British subjects of their sequestrated property and a lump sum payment to the British Government to compensate persons such as Anisminic Ltd. The Foreign Compensation Commission denied Anisminic Ltds claim because it did not fulfil the requirement of an article of an Order in Council as an owner of the property or the successor in title of such person, the latter being TEDO, which of course was not a British national. Section 4 of the Foreign Compensation Act 1950 provided that the determination by the Commission of any application made to them under this Act shall not be called in question in any court of law. HELD: By majority, the Commission misconstrued the relevant provision. A claimant who is an original owner does not have to prove anything about succession in title. The Commission, therefore, made an inquiry, which they were not empowered to make, and they based their decision on an irrelevant consideration the nationality of TEDO. The decision was a

nullity as it was based on jurisdictional error. The privative clause (s 4) did not preclude judicial review. 13 Judicial Remedies. Forster v Jododex Australia Pty Ltd (1972) High Court of Australia Declaration Scope and Availability as a Judicial Remedy FACTS: Jojodex Australia Pty Ltd was granted a 12 month exploration licence by the Minister for Mines pursuant to the Mining Act 1906 (NSW). Renewals for six months were successively granted. Forster applied to enter certain parts of the land covered by the companys licence to search for minerals. A mining warden began an inquiry into Forsters application. The company sought and obtained a declaration in the Supreme Court of New South Wales that it was the holder of a valid exploration licence over the land, which was the subject of Forsters application. Forster appealed, and objected that the Equity Court had no jurisdiction to make the declaration or, alternatively, if it had jurisdiction, it should have refused declaratory relief. HELD: Per Gibbs J, with whom McTiernan, Stephen and Mason JJ agreed, on the issue of the Supreme Courts jurisdiction and discretion to grant a declaration: Appeal dismissed. The restrictive view that s 10 of the Equity Act 1901 (NSW) conferred on a judge sitting in equity, jurisdiction to make a declaration of right only in proceedings for equitable relief is no longer valid. An amendment to s 10 removed this limitation. The jurisdiction to make a declaration is now a wide one. It may, however, be ousted by statute by clear words. Such is not the case here. Section 10 gives a broad discretion, which may be exercised when a real interest is at stake. Jojodex had a real interest to establish the validity of its licence and to ensure that the warden would not grant Forsters application to enter the land.

SAT FM Pty Ltd v Australian Broadcasting Authority (1997) Federal Court of Australia Administrative Decisions (Judicial Review) Act 1977 (Cth) Decision of an Administrator Character FACTS: The Australian Broadcasting Authority (ABA) prepared a plan, which provided that no additional commercial licences would be made available in the Kalgoorlie area. SAT FM, which had been interested in bidding for a licence, sought review of the decision under the ADJR Act. The ABA argued that the plan was legislative and could not be challenged under the Act. HELD: Per Sundberg J: The trichotomy of administrative, legislative and judicial Acts is maintained by the ADJR Act. Decisions of legislative or judicial character are excluded from review: Evans v Friemann (1981) 53 FLR 229. Several considerations point to the Kalgoorlie decision, viewed as an element of the Plan, being of a legislative rather than administrative character.