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Administrative Law - Summary - AJ LAWS2115 2012 N
Administrative Law (LAWS2115)
University of Queensland
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ADMINISTRATIVE LAW
- General Introduction............................................................................................... Content
- The ADJA – General.................................................................................................
- The JRA – General...................................................................................................
- Rhe ADJRA/JRA Parts 3 and 4..................................................................................
- A Decision to which this Act Applies........................................................................
- Decision and Conduct.............................................................................................
- Administrative Character......................................................................................
- Under an Enactment.............................................................................................
- Section 4(b) JRA....................................................................................................
- Non-Justiciability..................................................................................................
- Review of Conduct................................................................................................
- Failure to Decide...................................................................................................
- Standing: General.................................................................................................
- Standing: Equitable Remedies...............................................................................
- Standing: Under Statute........................................................................................
- Joinder..................................................................................................................
- Amicus Curiae.......................................................................................................
- Intervention by the Attoreny–General..................................................................
- The Right to Reasons.............................................................................................
- Time Limits...........................................................................................................
- Exclusions from Judicial Review............................................................................
- Powers of Court Hearing a Statutory Judicial Review Application..........................
- Traditional Judicial Review Remedies....................................................................
- Prerogative Writs..................................................................................................
- Prohibition and Certiorari.....................................................................................
- Mandamus............................................................................................................
- Declarations..........................................................................................................
- Injunctions............................................................................................................
- Collateral Challenge..............................................................................................
- JRA Provisions.......................................................................................................
- Comparative Table of Provisions – JRA/ADJRA......................................................
- Flow Charts...........................................................................................................
The ADJA – General.................................................................................................
Administrative Decisions (Judicial Review) Act 1977 (Cth)
WHY? – The ADJRA was a response to the problems associated with common law remedies o Common Law Remedies: Common law remedies includes the prerogative writs and declarations and injunctions Prerogative writs = certiorari (quashing order), prohibition (prohibiting order), mandamus (compelling order) (remedies trace back to 13th century England) Common law remedies are still available for judicial review However, due to the many years of development, the writs have many technical rules and procedures attached which made it difficult for people to obtain relief Thus, the Kerr Committee Report and the Ellicott Report advocated for reform of judicial review procedures created the ADJRA
MAJOR CHANGES – Simplified procedures for seeking judicial review o There were complex procedures attached to the prerogative writs Codified the common law grounds of review o Set out in ss 5 & 6 ADJRA o Essentially the same as common law grounds; however, two grounds are broader than the common law equivalent error of law and no evidence (MIMA v Rajamanikkam (2000) ) Provided a statutory right to reasons in respect of certain government decisions
WHICH COURT? – The Act gives the Federal Court and the Federal Magistrates Court (and the Family Court in some instances – see s 18A ADJRA ) the power to review certain decisions and conduct under Cth legislation (s 8 ADJRA) o State Courts do not have jurisdiction to conduct review under the ADJRA (s 9 ADJRA )
APPLICATION – The Act applies to exercises of certain Commonwealth government powers (in accordance with ss 76(ii), 77 and 122 Constitution) o The ADJRA does not apply to exercises of power under State legislation (s 3 ADJRA – the definition of ‘enactment’ refers to Cth legislation) The Act was not intended to provide merits review “Judicial Review by the Federal Court of Australia will no be concerned with the merits of the decision or action under review. The only question for the court will be whether the action is lawful...”
RELATIONSHIP WITH OTHER MODES OF REVIEW – The Act did not remove common law or equitable remedies (s10 ADJRA ) An applicant may seek judicial review under the Act and, in the alternative, seek judicial review under a common law remedy (known as a combined application) technicalities associated with the Act may exclude judicial review o If there is doubt as to the applicability of the ADJRA, it is advisable to seek both statutory and traditional remedies
Studies show that applicants will almost always plead a combined application of the ADJRA and s39B Judiciary Act It is important to remember that there are cases in which the ADJRA is NOT applicable but common law or equitable remedies are
RIGHT TO REASONS – At common law, there is no general right to reasons or an account of evidence on which the decision was based (even if the decision significantly impacted on an individual’s rights) Under the Act – s 13 provides a legally enforceable right to reasons and an account of material upon which the decision was based (must meet the criteria)
Kirby J made observations in Re MIMA; Ex parte Applica nt S20/2002 (2003) that the codification of grounds of review has stopped the development of these grounds in Australia should the ADJR Act be repealed?
Rhe ADJRA/JRA Parts 3 and 4..................................................................................
Review of a decision – s 5 ADJRA ; s 20 JRA o ADJRA, s 5(1) - “A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one of more of the following grounds” o JRA, s 20(1) – “A person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision.”
Review of conduct - s 6 ADJRA ; s 21 JRA o ADJRA, s 6(1) – “Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the conduct on any one or more of the following grounds” o JRA, s 21(1) - “If a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies (whether by the person engaging in the conduct or by another person), a person who is aggrieved by the conduct may apply to the court for a statutory order of review in relation to the conduct.”
Review of failing to make a decision – s 7 ADJRA ; s 22 JRA o Includes provisions for when there is a time limit and when there is no time limit for making a decision
Significant difference between the ADJRA and the JRA occur because of: o Changes in administrative law that occurred between 1977 and 1991 (e. decisions of the Governor-General are not reviewable under the ADJRA but are reviewable under the JRA) o EARC tried to avoid problems that were associated with the ADJRA or the law in general (e. see ss 4(b), 49, 50 JRA )
A Decision to which this Act Applies........................................................................
“A decision to which this Act applies” a phrase used in ss 5, 6 & 7 ADJRA and ss 20, 21 & 22 JRA JRA states that ‘a decision to which this Act applies’ means o s 4(a) – “a decision of administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)”; OR o s 4(b) – “a decision of administrative character made, proposed to be made, by, or by an officer or employee of, the State or a State authority or local government authority under a non- statutory scheme or program involving funds that are provided or obtained (in whole or part) – (i) out of amounts appropriate by Parliament; or (ii) from a tax, charge, fee or levy authorized by or under an enactment
s4(a) – Critical expressions: o Decision o Administrative character o Under an enactment
s4(a) – Critical expressions: o Decision o Administrative character o Under a non-statutory scheme or program o Funds (public)
Schedule 1 ADJRA contains a list of classes of decisions that are not “decisions to which this Act applies” (e. decisions made by security intelligence bodies or Cth/State ministerial councils or decisions in relation to foreign investment approval, taxation assessment, defence force discipline, etc)
The relevant elements of ‘a decision to which this Act applies’ cannot be construed in isolation Kirby, Gummow, Callinan and Heydon JJ pointed out that it must be considered how each elements interacts with the others when trying to understand their meaning – o “That approach recognises that the elements of "decision", "administrative character" and "under an enactment" in the definition cannot be construed in isolation. They are interrelated. Each informs the meaning and content of the others.” – per Kirby J in Neat Domestic Trading Pty Ltd v AWB Ltd (2003)
Australian Broadcasting Tribunal v Bond (1990)
This is the leading High Court judgment on the meaning of ‘decision’ within the ADJRA
FACTS – The case concerned an enquiry by the Australian Broadcasting Tribunal (ABT) into whether they should suspend or impose conditions on the radio and television licences held by the companies which were effectively controlled by Alan Bond. There were two relevant allegations against Bond: o 1. Bond caused a defamation action to be brought upon one of his companies by the then Premier of Queensland (Sir John Bjelke-Petersen) that was to be settled by paying $400,000 to the Premier. It was alleged that the company’s likely liability would have only been around $50,000. It was also alleged that Bond tried to conceal the extra $350,000 from the ABT and the public. o 2. It was alleged that Bond had personally threatened an executive of the AMP Society that if the Society did not stop acting contrary to his interests in relation to the Board of Directors of Bell Resources Ltd, he would direct his TV reports to gather and broadcast damaging material on the AMP society. Relevant legislation = Broadcasting Act 1942 (Cth) The corporate licences were not held personally by Bond (as they could not be held by a natural person) they were held by companies controlled by Bond Before the ABT could cancel or impose conditions on the corporate licences, the ABT has to consider whether the companies were fit and proper persons to hold the licences
ABT’s reasoning:
Bond was not a fit and proper person Bond controlled the corporate licencees The corporate licencees were not fit and proper The ultimate decision on whether to cancel or impose conditions
ACTION – Bond (and his companies) sought judicial review of the Tribunal’s behavior under the ADJRA Key question = whether the Tribunal’s determination that Bond was not a fit and proper person was a ‘decision’ for the purposes of the ADJRA Bond was successful in the first instance before the Federal Court The ABT appealed to the HCA the appeal was successful
MASON CJ’S REASONING –
The word decision is not limited to a final decision that disposes of a controversy Why? o The ADJRA is a remedial statute it is intended to improve on the traditional remedies by making judicial review available in more situations o There is no reference in the Act to a ‘final’ decision o The traditional remedies extended beyond final decisions
Despite this, the word ‘decision’ must be limited (read down)
Why? o s3(2) ADJRA (examples of decisions) indicates that a decision must be something which has ‘the character or quality of finality’ (“a determination effectively resolving an actual substantive issue” – per Deane J, Director-General Soci al Services v Chaney (1980) ) o s3(3) ADJRA (allowing a report or recommendation to be a decision) qualified the characteristic of finality (if finality was not necessary, this provision would not be necessary) o There are separate provisions dealing with conduct (doing things that are preparatory to making a decision) – if such preparations were defined as a decision, there would be no need for a separate provision providing review of conduct
The scope of ‘decision’ involves two competing policy considerations: A wide interpretation would allow for the widest possible review of government power (increases accountability) A narrow interpretation is needed for the efficient administration of government o “To interpret "decision" in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.”
Definition of decision: “... a reviewable ‘decision’ is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in the practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. Another essential quality of a reviewable decision is that it be a substantive determination.” – p. SUMMARY – o A decision must be made ‘by or under’ an enactment (exception – s4(b) JRA – only in QLD) MIEA v Mayer (1985_ allowed a determination to be considered a ‘decision’ if it was implicitly required by a statute (rather than expressly provided for) o A decision normally needs to have some element of finality (exception – s6 JRA) o An intermediate determination will only be a decision if it is provided for in a statute in the sense of being expressly provided for or impliedly required E. of intermediate steps that were not judicially reviewable: Carter v Minister for Aboriginal Affairs (2005) – advice given by the Minister that he would consider whether to exercise a power granted by legislation to make a declaration of preservation of Aboriginal artefacts Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) – the issue to Telstra of a consultation notice as a prerequisite to the issue of a competition notice under the TPA o The determination must be substantive and not procedural
APPLICATION –
make an application under s 597 of the Corporation Law, allowing the public examination of those involved in the affairs of companies WAS a decision (even though very similar to Harris v Bryce – commencement of an investigation) Redland Shire Council v Bushcliff Pty Ltd (1997) – Thomas J pointed out that the Bond formula does not work outside the judicial context. There is a difficulty in directly transposing the Bond criteria to ‘decisions’ of a body that performs non-adjudicative functions Griffith University v Tang (2005) – Gummow, Callinan and Heydon JJ did not disapprove of the majority view in Bond but had doubts as to whether Mason CJ’s approach commands majority support on the HCA today o E. The majority mentioned the test in Bond but with the ‘substantive element’ absent Gummow, Callinan and Heydon JJ did not mention the ‘substantive’ requirement Toohey and Gaudron JJ rejected the ‘substantive’ requirement
CONCLUDING REMARKS ON BOND –
While a decision or conduct must be established for relief to be granted under the ADJRA/JRA, judicial review may still be available via traditional remedies (Harris v Bryce (1993) ) o Traditional remedies also have pre-conditions (but they are different to statutory requirements) Discretionary rule – the Court can dismiss premature applications (if there is a review application regarding initial proceedings made before a final decision is made, but review is actually available at the end. the Court will dismiss the application if in the circumstances the balance of convenience requires the Court to do so) The underlying rationale of Bond was to avoid situations in which the Applicant would fragment and frustrate government decision-making processes o This rationale indicated that the HCA did not view the traditional remedies discretionary rule sufficient The HCA in Bond adopted a very technical approach. Given that the traditional remedies are not constrained by this technical approach, many have asked whether it was worth the trouble The statutory right to reasons depends on whether there is a ‘decision’ under the ADJRA/JRA thus, the definition of decision in Bond is very important
HOW TO APPROACH THE ‘DECISION’ ISSUE –
Is the decision provided for ‘by or under’ an enactment? o Either expressly or impliedly required Does the decision have some element of finality? If the decision is an intermediate decision, is it provided for in the statute? o Either expressly or implied required Is the determination substantive?
Administrative Character......................................................................................
For a decision to be reviewable, it must be of an administrative character The term “administrative character’ is not defined in the ADJRA/JRA
FIVE PRELIMINARY POINTS – 1. The phrase “administrative character” maintains the trichotomy between legislative, executive (or administrative) and judicial acts and decisions limits judicial review to executive/administrative acts and decisions o See Resort Management Services Ltd v Noosa Shire Council (1995) ; Evans v Friemann (1981) ; Minister for Industry and Commerce v Tooheys Ltd (1982) o The usual approach is to consider whether the decision is of a legislative or judicial character and, if not, the decision will be of an administrative character
2. Courts seek to avoid giving the phrase a narrow or technical construction o As the ADJRA/JRA are remedial statutes, the phrase should be given a wide construction and application o It is the decision which must be of an administrative character, not the subject matter of the decision Evans v Friemann (1981) – this case involved an attempt to review a decision to fail a person in a patent attorney exam. The subject matter of the decision was education. The Court rejected a strict approach, which considered only the subject matter. Rather, the decision must be characterised. In this case, the decision involved the administering of the patent system set up by legislation; thus, was of an administrative character o Administration does not involve an isolated act; it is a process Particular decisions need to be characterised in the context of any such process (Evans v Friemann (1981) )
3. It is the character of the decision which is relevant and generally not the character of the decision- maker (Glenister v Dillion (1976) ) o Should not make a determination on which branch of government the decision-maker comes from; rather, the decision itself (e. a Magistrate may make an administrative decision in the course of a committal hearing) o The decision-maker may be relevant in some cases (e. any decision made by a superior court is generally an indication of judicial character) (Hamblin v Duffy (1981) )
4. “Decisions of an administrative character” cannot be construed in isolation from other sections of the Act o E. the examples of decisions in s 5 JRA gives an example of the type of decisions that are of an administrative character (Evanns v Friemann) E. As s 5 JRA provides that revoking a licence, a typical quasi-judicial activity, is a ‘decision’, it is clear that revoking a licence will be a decision of ‘administrative character’. This indicates that bodies exercising quasi-judicial functions tend to come under the scope of ‘decisions of an administrative character’
5. It is difficult, if not impossible, to set out an all-encompassing definition of ‘legislative’, ‘judicial’ and ‘administrative’ power (Hamblin)
If a decision has actually changed the law, it will be legislative o Queensland Medical Laboratory v Blewett (1988) – it was held that the Minister’s decision to adopt a new schedule of medical fees (appearing at the end of the Statute) had the effect of changing the law; thus, WAS NOT of an administrative character Technicalities – Gummow J stated that if the Minister had decided not to change the schedule, the decision would have been of an administrative character (as this would have involved administering the schedule rather than changing it)
Steps preparatory to a change in the law will often by administrative o Resort Management Services Ltd v Noosa Shire Council (1995) – it was held that a decision by a local authority to propose an amendment to a town plan (which would have eventually led to a change in the law) WAS of an administrative character. To propose to change the plan was part of the process of administering the plan.
o Aerolineas Argentinas v Federal Airports Corporation (1997) – the Federal Airports Corporation made a decision to impose a charge on all aircraft using certain airports to cover security expenses. The imposition of the charge was general as it applied to all aircraft using certain airports; however, it was held that the decision to impose the charge WAS of an administrative character. Why? The degree of executive control over the decision The decision was governed by an Act (Price Surveillance Act) It was held that the decision was part of the process of administering the Corporation’s commercial operation under the statute (through cost recover); thus, was of an administrative character “A distinction often made between legislative and administrative acts is that between the general and the particular. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy of expediency or administrative practice.”
o RG Capital Radio Ltd v Australian Broadcasting Authority (2001) – the applicant was the holder of licences to operate two existing commercial radio services in the Gosford area. The Respondent determined to make a plan for broadcasting services in this area pursuant to the Broadcasting Services Act 1992 (Cth). It was held that this decision WAS NOT of an administrative character due to various factors. Various factors are indicative of legislative character: The decision in question determined the content of a general rule The decision was subject to parliamentary control Publication of the plan was required There was wide public consultation There were wide policy considerations There was an absence of executive variation or control There was an absence of merits review The plan had a binding legal effect No single factor is decisive – need to take them all into account and consider the overall effect
o Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (2007) – the Committee has power pursuant to s 52D of the Therapeutic Goods Act 1989 (Cth) to amend the Poisons Standard. In exercising that power, the Committee were required to take into account the considerations listed in s 52E(1), including the extent and patterns of use of a substance and other matters necessary to protect public health. It was held that the decision to amend the Standard WAS NOT of an administrative character Relevant factors: The future lawfulness of conduct The general application of the Standard Whether wide public consultation was an important element in the process leading to the decision Whether the decision was an important part of a national system of controls designed to ensure a uniform approach by the Cth, States and Territories Absence of merits review Publication in the Gazette Absence of executive variation or control
Can a decision be of both an administrative and legislative character? o Schwennesen v Minister for Environment and Resource Management (2010) The judge accepted that most decisions in which there is a controversy display both legislative and administrative character. It must be determined whether the factors suggesting that the decision is legislative will displace those that suggest that the decision is administrative
Relevance of policy and political considerations o Resort Management Services Ltd v Noosa Shire Council (1993) The Court emphasised that just because a decision involved the determination, implementation or application of a policy or was influenced by political considerations, did not meant that the decision muse be legislative. Such features are commonly associated with decision of the Executive government, which are quintessentially of an administrative character Policy does not always change the law (may provide direction to the Executive in how to apply law) this is of an administrative character
Judicial vs administrative character o Administrative tribunals normally have a duty to proceed judicially. This DOES NOT mean that their decisions are characterised as ‘judicial’ There is an important difference between ‘judicial power’ and ‘proceeding judicially’ (Hamblin v Duffy) A duty to proceed judicially means that there is a duty to act independently and impartially (observe natural justice) o Judicial power = the capacity to conclusively determine facts and law in dispute between two interest OR to decide that there has been a breach of the criminal law and to impose a criminal penalty Judicial power is exercised by Judges/Magistrates Note: official of the courts, registrars, etc may sometimes make decisions of an administrative character (Little v Registrar of High Court (1990) ; Letts v Commonwealth)
Characterization of Decisions
LEGISLATIVE ADMINISTRATIVE JUDICIAL
Making and review of statements of factors relevant to future determinations of veterans’ medical claims – Vietnam Veterans’ Affairs Assoc v Cohen (1996) 6 FCR 419
Decision of Registrar of High Court to strike practitioner’s name from Register of Practitioners -Little v Registrar of High Court (1990) 24 FCR 391
Decision of Registrar of High Court to refer matter under Rules of Court to a judge - Letts v Commonwealth (1985) 8 FCR 585
Decision to amend schedule to Health Insurance Act 1973 - QML v Blewett (1988) 84 ALR 615
Decision of Registrar of Federal Court to dispute Bill of Costs under Family Law Regulations - Legal Aid Commission of Western Australia v Edwards (1982) 4 ALD 598
Decision establishing plan which stipulated number and characteristics of broadcasting services for a certain area – SAT FM Pty Ltd v Australian Broadcasting Authority (1997) 75 FCR 604; Affd in RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 185 ALR 573
Decision to issue warrants under Quarantine Act - Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147
Decision under legislation providing for gazettal of principles upon which future decisions would be made - Melbourne Pathology v Minister for Human Services and Health (1996) 40 ALD 565 at 573
Decision of a Magistrate to issue a search warrant under the Crimes Act – Harts Australia Ltd v Commissioner, Australian Federal Police [2001] FCA 175 at para 26 – but see now s9A ADJR Act
Decision amending the poisons standard provided for under legislation. The decision meant that a substance included in the standard could no longer be lawfully advertised for sale – Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451 at 458- 461
Decision of CJC to not recommend police disciplinary action - Walker v CJC [1993] 2 QdR 467
Decision by the Qld Small Claims Tribunal refusing to authorise a party to a dispute to terminate an agreement – W & T Enterprises (Q) Pty Ltd v Taylor [2005] QSC 360
Determination to establish new fisheries management plan provided for under legislation – Lamason v Australian Fisheries Management Authority [2009] FCA 245 at [1-5]
Decision of Magistrate during committal hearing re criminal charges - but note discretion - Lamb v Moss (1983) 49 ALR 533 – but see now s9A ADJR Act
Decision of Supreme Court not to grant stay of committal proceedings - Emanuele v Cahill (1987) 18 FCR 304 at 313
Decision of Magistrate to order supply of fingerprints - Grollo v Bates (1994) 53 FCR 218 Decision to arrest under Migration Act - Grech v Featherstone (1991) 33 FCR 63
Decision by Governor-in-Council to make water Resources Operations Plan impacting on permissible regional water usage – Schwennesen v Minister for Environment & Resource Management [2010] QCA 340
Decision of DCT to institute proceedings for recovery of tax under s209 of ITAA - Terrule Pty Ltd v DCT (1985) 5 FCR 153
Decision by deputy district registrar of Federal Court to allow question to be asked in examination under Bankruptcy Act - Clark v Wood (1997) 149 ALR 38 Decision by ASC to authorize another to publicly examine Director under s597 Corporations Law - Re Excel Finance Corporation Ltd (1993) 113 ALR 543 AAT decision refusing to set aside summons to produce documents - Pancontinental Mining Ltd v Burns (1994) 124 ALR 471 Decision to promulgate by-laws - Kwiksnax Mobile Industrial and General Caterers Pty Ltd v Logan City Council [1994] 1 QdR 291 at 310-
Decision of Magistrate under Marriage Act re permission to marry under 18 years - K v Cullen (1994) 53 FCR 410
Decision to initiate a process that would lead to the dissolution of a local council – Mauloni v Fraser [2007] 1 QdR 563
Decision of Attorney-General or Minister to plead limitation statute - Dickson v Attorney-General (1987) 15 FCR 338
Decision by State Crown Law Officer in criminal trial to exercise right of reply - Bellino v Clair [1993] 2 QdR 236
Decision to make by-laws (which change laws generally) - Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 QdR 314
Decision of Royal Commission as to whether it had jurisdiction - Queensland v Wyvill (1989) 90 ALR 611 (?) Decision to amend Town Plan - Resort Management Services Ltd v Noosa Shire Council (1995) 1 QdR 311
Decision to start process of amendment of Town Plan - Resort Management Services Ltd v Noosa Shire Council (1995) 1 QdR 311
Under an Enactment.............................................................................................
For a decision to be reviewable, it must be of made under an enactment o Exception only in QLD – s4(b) (non-statutory scheme or program) o This means that private decision-making is not reviewable
THREE OVERLAPPING TOPICS – 1. Non-justiciability at common law o Courts will not engage in judicial review in circumstances where there is high level government decision making that involves a large number of interlocking interests and considerations (‘polycentric disputes’) o E. the exercise of Crown prerogative powers (e. the decision to enter into a treaty, decisions relation to defence and national security, etc) (e. Hicks v Ruddo ck (2007) ; Peko-Wallsend)
2. Crown Prerogative/Contract o Courts have interpreted ‘under an enactment’ to mean that if the source of power for a decision is the Crown’s prerogative, as opposed to a statute or statutory instrument, the decision is not made ‘under an enactment’ and judicial review is not available ‘Crown Prerogative’ can have a broad or narrow meaning Broad = every non-statutory power that the executive exercises (including powers that the Crown has by its status of a legal person – e. the power to contract) this meaning has been criticised Narrow = powers unique to the Crown (e. entering into treaties, power to defend the country, etc) n. this is the meaning used in the course o Given a complete absences of an enactment, decisions made under the Crown prerogative powers or residual executive powers will not be reviewable under the ADJRA/JRA o CONTRACT – Courts have also interpreted the decision to enter into or exercise rights under a contract as deriving its power from the general law; rather than ‘under an enactment’
3. Section 4(b) JRA o This section undermines the ‘under an enactment’ limitations to some extent (exists only in QLD) o s4(b) applies if there is: A decision of administrative character; Made by an officer or employee of the State, a State authority or a local government authority; Under a non-statutory scheme or program; and Involves funds which have either been appropriated by Parliament or have been raised by a tax, fee, charge or levy authorized under an enactment (government money)
‘UNDER AN ENACTMENT’ AS A LIMTATION –
‘Enactment is defined in s 3 ADJRA/JRA o s 3 JRA – ‘enactment’ means an Act or statutory instrument, and includes a part of an Act or statutory instrument ‘Statutory instrument’ is defined in s 7 Statutory Instruments Act 1992 (QLD): s 7(2) The instrument must be made under o (a) an Act; or o (b) another statutory instrument; or
Administrative Law - Summary - AJ LAWS2115 2012 N
Course: Administrative Law (LAWS2115)
University: University of Queensland
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