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Week 8 (Seminar 7) Learning Guide and Discussion Questions
Business Policy And Strategy (MGTS3301)
University of Queensland
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LAWS2115/LAWS3701 Administrative Law Semester 1, 2022
LEARNING GUIDE FOR SEMINAR 7:
ACCESS TO JUSTICE (1): JURISDICTION TO REVIEW
Compiled by Prof Anthony Cassimatis, Dr Matt Watson, and Prof Peter Billings
Material which is essential reading for the course is marked with an asterisk (*).
A. GENERAL INTRODUCTION
For the next few weeks, we will be considering the mechanics of statutory judicial review under the Federal Administrative Decisions (Judicial Review) Act (“ ADJR Act ”) and Parts 3 and 4 of the State Judicial Review Act (“ JR Act ”).
We will then look at Part 5 of the JR Act and the traditional judicial review remedies that are still available. We will mention briefly what is described as “collateral challenge.”
In your earlier seminars you looked at the grounds of judicial review in administrative law. For the rest of the semester we will be looking at the context in which these grounds are applied by courts to review the exercise of government power. We will be looking at the statutory and other remedies by which the grounds of review are applied. For example, if you believe that a Commonwealth Government decision-maker has denied you natural justice, this part of the course will assist you in understanding how you actually bring your concerns before a court. You may be able to rely on the ADJR Act or on a common law or equitable remedy to challenge the government decision in question.
LEGALITY v MERITS REVIEW
Your classes to date have been analysing the various grounds of review in administrative law.
Collateral challenge
Grounds of Review
Equitable Remedies Declarations and Injunctions (in Qld found both within and outside Part 5 of the JR Act )
Common Law Remedies The Prerogative & Constitutional Writs (in Qld now incorporated into Part 5 of JR Act )
Statutory Remedies AD(JR) Act/ JR Act Part 3 which ‘codify’ the grounds [NB Right to reasons -Part 4 of JR Act ]
The grounds of review provide for what is often described as “legality review”. This has been contrasted with “merits review”, ie the merits of decisions, etc of those exercising government power. Courts exercising powers of judicial review do not carry out merits review.
Where appeal rights are given from a particular decision, the body hearing the appeal may be authorized to carry out merits review. The Administrative Appeals Tribunal (which you looked at in earlier classes) is a Commonwealth tribunal which carries out merits review. An understanding of the fundamental distinction between legality and merits review is essential. Merits review is normally more attractive to applicants because the body reviewing on the merits will make a decision dealing with all outstanding questions whether legal or factual. Legality review (whether statutory or common law/equitable) only involves a consideration of the legality of the government decision or conduct. If a problem as to legality is found, then the court identifies that problem but often refers the matter back to the original decision- maker for a decision on the merits.
It has, however, been estimated that over 70% of successful judicial review applications may lead to favourable outcomes for applicants – see Robin Creyke and John McMillan, “Judicial Review Outcomes – An Empirical Study” (2004) 11 Australian Journal of Administrative Law 82 at 87. For a perspective from the public service, see Michael D’Ascenzo, Effectiveness of Administrative Law in the Australian Public Service (2008) 57 AIAL Forum 59.
On the potential for alternative dispute resolution techniques to be used in administrative law disputes – see Sophie Boyron, The Rise of Mediation in Administrative Law Disputes: Experiences from England, France and Germany [2006] Public Law 320. The AAT has developed alternative dispute resolution procedures.
THE ADJR ACT - HISTORICAL BACKGROUND
THE GROUNDS OF REVIEW DEVELOPED IN THE CONTEXT OF COMMON
LAW AND EQUITABLE REMEDIES
The various grounds of review developed in the context of certain common law and equitable remedies. These remedies included the prerogative writs of certiorari , prohibition and mandamus and declarations and injunctions. These remedies were (and still are in one form or another) available to review exercises of legislative, administrative and judicial power. Essentially these remedies were the vehicles for raising before a superior court the grounds of review with which you are now familiar.
PROBLEMS WITH COMMON LAW REMEDIES
whether the action is lawful...”
Second reading speech on the ADJR Bill 1977 by the Hon RJ Ellicott, QC, Attorney-General (Parliamentary debate 30th parliament, second session at 1394-6, 28 April 1977 - House of Representatives), see Flick at para ADJR0; see also, for example, Turner v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 237 at 240.
The ADJR Act allows review of the way certain Commonwealth Government powers are used. The ADJR Act does not apply to exercises of power under State legislation - see the definition of “enactment” in s3 of the ADJR Act read with s38(1) of the Commonwealth Acts Interpretation Act 1901. NB also basic constitutional principles - see ss 76(ii), 77 and 122 of the Constitution; and Evans v Friemann (1981) 35 ALR 428 at 432-3.
The Federal Court and the Federal Circuit Court generally do the reviewing under the ADJR Act - see ss 8 and 3 ADJR Act. Note s18A and the potential role of the Family Court. State courts do not have the power to review exercises of Commonwealth Government power - see s9 of the ADJR Act. [But note section 3 and Schedule 3 of the ADJR Act inserted in 2000 .]
RELATIONSHIP WITH OTHER MODES OF REVIEW
NB common law and equitable remedies were not removed by the ADJR Act - see s10 of the ADJR Act.
Judicial review options before the Federal Court:
review the exercise of power under the ADJR Act , or
review the exercise of power relying on a prerogative writ, declaration or injunction. The Federal Court has jurisdiction to review exercises of Commonwealth government power using these remedies via s39B of the Judiciary Act 1903, s32(1) of the Federal Court Act 1976 and the Federal Court’s accrued jurisdiction - see R v Cook ex parte Twigg (1980) 147 CLR 15 at 25-6 and 32-4; cf R v Brown ex parte Federated Clerks’ Union of Australia (1984) 154 CLR 207 at 211; Optical Prescription Spectacle Makers Pty Ltd v Withers (1987) 71 ALR 269 at 270; and E Campbell, “The Accrued Jurisdiction of the Federal Court in Administrative Law Matters” (1998) 17 Australian Bar Review 127.
Following the enactment of the ADJR Act , most cases of judicial review in the Federal sphere soon involved applications under the ADJR Act -
Judicial Review Applications
Year AD(JR) Act only s 39B only Both AD(JR) Act and s 39B
1984 1985 1986 1987 1988
241
258
302
281
278
1360
44
23
25
10
5
107
7
6
1
8
9
31
Statistics taken from Administrative Review Council’s Report No 32 at 18. Kirby J observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/ (2003) 198 ALR 59 at para 157 that the “effects of the ADJR Act were overwhelmingly beneficial and review of federal administrative action was more commonly pursued under that Act than had been the case under the earlier common law.”
important amendments. Most significantly it recommended that s75(v) style applications be incorporated into the ADJR Act (see Chapter 4 and Recommendation 1 of the Report). The ARC did not, however, recommend any equivalent extension to the right to reasons. For a review of the 2012 ARC report, see McMillan, “Restoring the ADJR Act in Federal Judicial Review” (2013) 72 AIAL Forum 12.
RIGHT TO REASONS
The right to reasons is an important feature of the ADJR Act.
At common law no general right to reasons for decision or for an account of facts upon which an administrative decision was based (only exception being right to access information and evidence once proceedings are commenced, eg discovery and inspection, etc).
ADJR Act s13 - provided applicants can fit themselves within terms of s13, they now have legally enforceable right to reasons and an account of material upon which decision was based. Complemented by Commonwealth Freedom of Information Act 1982 and provisions of the Administrative Appeals Tribunal Act 1975.
QUEENSLAND JUDICIAL REVIEW ACT
JR Act passed in 1991 - into force 1992. Similar concerns with the traditional administrative law remedies. NB Fitzgerald Royal Commission - “Report of a Commission of Enquiry Pursuant to Orders in Council” 3 July 1989.
The Commission’s report noted that:
“the judicial mechanisms for challenging ministerial and administrative decisions are quite limited and accordingly, of little practical effect.. must be placed on extremely cumbersome judicial procedures to achieve any review of administrative action.” - at 128.
The Royal Commission’s report recommended the establishment of the Electoral and Administrative Review Commission (EARC) - see pp 144 and 370.
The Commission’s report recommended that EARC be directed to examine a number of priority issues including the establishment “of simpler procedures for obtaining a judicial review of administrative decisions” - at pp 144, 360 and 371.
EARC was established and published its “Report on the Judicial Review of Administrative Decisions and Actions” in December 1990 - Serial No 90/R5. EARC recommended that Queensland follow the Federal Government’s lead and pass an Act with provisions which were, in many respects, identical to the ADJR Act - see the Report at pp 22 and 42. Reports can be referred to by courts in interpreting the JR Act – see s14B of Acts Interpretation Act 1954 (Qld).
EARC’s recommendations were generally endorsed by the Queensland Parliamentary Committee for Electoral and Administrative Review - see Report “Judicial Review of Administrative Decisions and Actions” - 14 June 1991 at p 4.
The Queensland Parliament followed EARC’s and the Parliamentary Committee’s advice and enacted the JR Act. Parts 3 and 4 of the Act contain the same three fundamental features of the Federal Act. The JR Act :
- simplified procedures for seeking judicial review;
- “codified” the traditional grounds of review (in Part 3 of the Act); and
- provided a right to reasons in respect of certain government decisions (in Part 4 of the Act).
Three additional points re JR Act
JR Act only authorises judicial review on grounds of legality. In the words of the Queensland Attorney-General “.. is not the (Supreme) Court’s task to review the merits of an administrative decision” - see Hansard, 26 November 1991; see also Hoffman v Queensland Local Government Superannuation Board [1994] 1 QdR 369 at 370.
decisions of those exercising State government power (or spending State or local government money) can be reviewed - see s4, s3 and its definition of enactment and s14E of the Queensland Acts Interpretation Act 1954.
Supreme Court does the reviewing under JR Act - see s19 and definition of Court in s3.
Queensland courts applying the JR Act can obtain guidance from decisions interpreting the ADJR Act - EARC - see p 42 of its Report.
Section 16(1) JR Act :
if a provision of AD(JR) Act expresses an idea in particular words; and
a provision of JR Act appears to express same idea in different words because of different legislative drafting practice
the ideas must not be taken to be different merely because different words used.
See also section 16(2) and schedule 3 of JR Act - comparative table of equivalent Federal sections reproduced below in this Study Guide.
NB Difference between the Federal Act and the State Act – JR Act’s effect on the traditional common law and equitable remedies. ADJR Act leaves these remedies in place. Queensland Act attempts to draw them into JR Act and sets up Part 5 of Act. Note that Part 4 (the right to reasons) does not link in with Part 5. The right to reasons is tied to reviewability under s (of Part 3) of Queensland Act.
Relationship between common law/equitable and statutory remedies in Queensland - two types of review in one Act. A Part 3 application, known formally as “Application for Statutory Order of Review” (see s3), can be made. Alternatively an application under Part 5, known formally as “Application for Review” (see s43), can be made. The Rules of Queensland Supreme Court provide for the two types of application to be combined together
COMPARATIVE TABLE OF PROVISIONS - JR ACT/ADJR ACT
QUEENSLAND ACT FEDERAL ACT
1 1 2 2 3 3(1) 4 3(1) 5 3(2) 6 3(3) 7 3(4) 8 3(5) 9 - 10 10(1) 11 10(2)(a) 12 10(2)(b) 13-17 - 18 4 19 8 20 5(1) 21 6(1) 22 7 23 5(2) and 6(2) 24 5(3) and 6(3) 25 11(1) 26 11(1), (3) to (5) 27 11(6) 28 12 29 15 30 16 31 13(11) 32 13(1) 33 13(2) to (6) 34 13(1) 35 13A(1) 36 14(1) 37 13A(2) to (4) and 14(2) to (4) 38 13(4A) 39 13(4A) 40 13(7) 41-50 - 51 18 52 17 53 - 54 11(7) 55 11(8) 56 11(9) 57-61 - Sch 1 Sch 1 Sch 2 Sch 2 Schs 3-5 -
B. ACCESS TO JUSTICE (1): JURISDICTION TO REVIEW
1. AD(JR) ACT / JR ACT PARTS 3 AND 4
The focus of classes will be the JR Act provisions, although there will be constant reference to decisions dealing with equivalent ADJR Act provisions. Ways in which Parts 3 and 4 of the JR Act differ from the ADJR Act will be considered. Significant differences between Federal and State Act appear to occur for one of two reasons:
changes in administrative law which have occurred between 1977 (when the ADJR Act was passed) and 1991 (when the JR Act was passed), in particular, decisions of the Governor-General are not reviewable under the ADJR Act but decisions of the Qld Governor are reviewable under Part 3 of the JR Act ; and
the JR Act is different where EARC has sought to avoid perceived problems with the ADJR Act or the law generally - see, for example, s4(b) and s49 and 50 of the JR Act.
NB EARC was clearly influenced by Administrative Review Council’s Report No 32 “Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act” - 17 March 1989.
THE OPERATION OF THE JUDICIAL REVIEW ACT PARTS 3 AND 4
Sections 20, 21 and 22 are the heart of the JR Act.
Section 20(1) provides that:
“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.” (emphasis added)
Subsection 2 then goes on to set out the grounds of review. Key expressions in s20(1):
aggrieved; and decision to which this Act applies.
Section 21(1) applies to conduct engaged in for the purposes of making a decision to which the Act applies. Where such conduct has been proposed, is still being or has been engaged in, then a person aggrieved can apply to the court for review.
NB again expression “a decision to which (the) Act applies”. Section 21(1) allows review of conduct, actual or proposed, which comes before a decision.
Subsections 22(1) and (2) provide that where a person has a duty to make a decision to which the Act applies, and where there is a failure to make such a decision, a person aggrieved by that failure may apply to the court for review.
NB common phrase from sections 20, 21 and 22 is “ decision to which (the) Act applies. ” So if you can’t find such a decision - whether as a reality in terms of s20 or as a potentiality under s21 (conduct) or s22 (failure to decide) - then no review under Part 3.
The Criminal Justice Commission (1992) 66 ALJR 271 at 277.
The Federal equivalent of s6 has been narrowly construed - see Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 70 (following Ross v Costigan (1982) 59 FLR 184 at 198). It was held that the enactment must specifically make the report or recommendation a condition precedent to making of subsequent decision. Note different wording of Queensland provision - see EARC’s report at para 13; and Administrative Review Council’s Report No 32 at paras 172-4. The difference in wording, however, is not directed at overcoming the interpretation of Federal provision in Edelsten. For a consideration of Queensland cases which appear to suggest a more liberal interpretation of the Queensland provision, see Wells v Carmody [2014] QSC 59 at [36]-[48]; although see Vega Vega v Hoyle [2015] QSC 111 at [112].
- Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 - main High Court decision dealing with meaning of “decision” in ADJR Act. Students must read (at minimum) the judgment of Mason CJ with whom Brennan and Deane JJ agreed. Toohey and Gaudron JJ took a more liberal approach.
Facts
The case concerned an enquiry by the Australian Broadcasting Tribunal into whether or not to suspend or impose conditions on the radio and television licences held by companies which were effectively controlled by Alan Bond. At the heart of the Tribunal’s enquiry were two major allegations. The first was that Mr Bond caused a defamation action brought by the then Premier of Queensland against one of Mr Bond’s companies to be settled by paying a sum of $400,000 to the Premier, when it was alleged that the company’s likely liability would have been in the order of only $50 000. It was also alleged that Mr Bond tried to conceal this arrangement from the Tribunal. The other major allegation was that Mr Bond had personally threatened an executive of the AMP Society that if the Society did not stop acting contrary to the interests of Mr Bond in relation to the makeup of the Board of Directors of Bell Resources Limited, then Mr Bond would direct his TV reporters to gather damaging material on the AMP Society and broadcast it.
The main question under the Broadcasting Act 1942 for the Tribunal was whether to cancel or impose conditions on the corporate licences held by the Bond companies. To make that determination the statute required the Tribunal to consider whether the companies were fit and proper “persons” to hold the licences. The Tribunal’s determination on that question was actually reached by considering whether Mr Bond was a fit and proper person to hold media licences. Having found that he was not, and having found that he controlled the company licensees, the Tribunal reached its determination that the companies were not fit and proper “persons”.
The chain of determinations therefore went something like this:
Mr Bond was not a fit and proper person
Mr Bond controlled the corporate licensees
The corporate licensees were therefore not fit and proper
The ultimate decision on whether to cancel or impose conditions
An ultimate decision to cancel had not yet been made by the Tribunal but appeared inevitable.
Mr Bond and the companies sought judicial review of the Tribunal’s behaviour under the ADJR Act. Mr Bond had some success before the Federal Court [see (1989) 89 ALR 185] and the Tribunal appealed to the High Court. The appeal was successful on a number of issues. In the High Court, Sir Anthony Mason considered at length the term “decision” and attempted to distinguish a “decision” from “conduct”, which is reviewable (in Queensland under section 21).
A critical question was whether the Tribunal’s “decision” that Mr Bond was not a fit and proper person was a “decision” for the purposes of the ADJR Act. Sir Anthony Mason’s conclusion was that it was not.
Five steps in Sir Anthony Mason’s approach.
- The word decision was not limited to a final decision disposing of a controversy between the parties. NB 3 observations:
- ADJR Act a remedial statute;
- it did not refer to “final” decisions;
- traditional remedies extended beyond ultimate decisions.
- Despite this, the word “decision” had to be limited. Reasons for limiting the word, included the following:
- ADJR Act equivalent of JR Act s5 indicated that a decision must be something which has “the character or quality of finality. It needed to be something like a determination of an application, enquiry or dispute...‘a determination effectively resolving an actual substantive issue’” - quoting from Deane J in Director-General of Social Services v Chaney (1980) 31 ALR 571 at 590;
The equivalent of JR Act s6 (which allows reports and recommendations to be classed as “decisions”) qualified the characteristic of finality. Some sense of finality must be inherent in the term “decision” or else sections like s6 would not have been necessary;
The expression “conduct” was fleshed out in equivalent of JR Act s8. Doing things
SUMMARY OF POINT 4:
- Provision must be made for a decision “by or under” an enactment (but note s4(b) in Qld);
- A decision normally needs to have some element of finality (one exception to this is where s6 of the JR Act applies);
- An intermediate determination will be a decision only if it is provided for in a statute in the sense of being expressly provided for or impliedly required; and
- To be a decision, the determination needs to be substantive and not procedural.
Applying this test to the facts of the case, the Chief Justice held that the Tribunal’s determination that Mr Bond was not a fit and proper person to hold a licence was a conclusion reached as a step along the way in the course of reasoning leading to the decision as to the suitability of the companies to hold their licences. For that reason, review under the ADJR Act of that determination was not available. Note that the decision that the companies were not fit and proper “people” was also a step in the course of reasoning leading to a decision whether or not to revoke the licenses. The decision re the companies being fit and proper was, however, caught by the ADJR Act because the Broadcasting Act specifically provided for this decision - see p 339.
Even though the determination about Mr Bond was not reviewable, Mason CJ made it clear that if grounds of invalidity were present in the making of this determination they could be raised in review proceedings provided they were raised with respect to a reviewable decision. So a breach of the rules of natural justice relating to an interim determination, to the extent that the breach was incorporated into a subsequent reviewable decision, could be dealt with by the court. But the applicant had to wait. The interim ruling could not be challenged.
- Scope of expression “conduct.” Mason CJ sets out limits of term “conduct,” contrasting “decision” under ADJR Act with “conduct” which is reviewable under Act. Decisions must be substantive, final and operative. Conduct relates to something which is procedural and not substantive. Conduct points to action taken rather than a decision made.
“Procedural decisions”? Here, the Chief Justice could have been clearer:
“A challenge to conduct is an attack on proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision making process, except in the sense that if the decisions are procedural in character, they will precede the conduct which is under challenge” - at p 342.
On the facts in Bond , the decision by the Tribunal that Mr Bond was not a fit and proper person to hold the licences in question was not “conduct” because it was not procedural (ie it was substantive) and did not amount to conduct (it being clearly a determination rather than “action taken”).
The High Court’s approach attempts to ensure that intermediate substantive determinations with no statutory foundation are neither “decisions” nor “conduct” for the purposes of ADJR Act review.
For details of what happened after the High Court’s decision - see The Bond Inquiry – Final
Report , Australian Broadcasting Tribunal, Sydney 1990.
APPLICATION OF THE HIGH COURT’S APPROACH IN BOND
High Court’s approach on scope of expressions “decision” and “conduct” is very technical. Courts applying the High Court’s approach have had difficulty in applying it consistently - see Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 66-70 and 72-3.
See also Harris v Bryce (1993) 113 ALR 726 at 733-4. It was held in this case that a
determination by the Commonwealth Sex Discrimination Commissioner to investigate a complaint of sexual discrimination contrary to section 26 of the Sex Discrimination Act 1984, was not a “decision” for the purposes of the ADJR Act. Bond ’s case was specifically applied and it was noted that the Commissioner’s determination to investigate was not final or operative or determinative of any issue. Nor was the determination seen as substantive in any way, in the sense that it did not determine any person’s rights. Note that the court held that, notwithstanding Bond , s39B relief was potentially available.
Compare Re Excel Finance Corporation Ltd (1993) 113 ALR 543 at 571-2. In this case an applicant was seeking review of the Australian Securities Commission’s determination to authorize a Receiver and Manager of a company to make an application under section 597 of the Corporations Law. Section 597 provided for public examinations of those involved in the affairs of companies. The determination in this case was therefore similar to the one in Harris v Bryce in terms of the commencement of an investigation. Without detailed consideration of Bond , O’Loughlin J [following an obiter statement made by Lockhart J in the decision in Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1992) 112 ALR 463 at 483] ruled that the determination by the ASC to allow a Receiver and Manager to apply for a public examination was a “decision” under the ADJR Act. This aspect of the decision of O’Loughlin J was affirmed on appeal, see 114 ALR 524 at 526.
In Harris the determination to investigate was not considered substantive and yet in Excel Finance a decision to allow an investigation to proceed was considered substantive enough to qualify as a decision.
Decisions under JR Act which have applied Bond are State Bank of New South Wales Ltd v Commissioner of Stamp Duties [1994] 2 QdR 661 at 668 and Summerson v Commissioner of Stamp Duties (Qld) (1995) 95 ATC 4473. Thomas J applied the Bond approach in Redland Shire Council v Bushcliff Pty Ltd [1997] 2 QdR 97 at 99. Thomas J notes, however, the difficulty in “directly transposing” the Bond criteria to “decisions” of a body that performs “non-adjudicative functions”. Contrast the results in Harris and Excel with the decision of McMurdo J in Nona v Barnes [2012] QSC 35 at [11]-[24]; and Crow J in A v Central Queensland Network Authorised Mental Health Service [2019] QSC 15 at [34]-[38].
For reviews of cases attempting to apply the Bond approach, see Creyke R and Hill G, “A Wavy Line in the Sand: Bond and Jurisdictional Issues in Judicial and Administrative Review” (1998) 26 Federal Law Review 15.
The judgement of Gummow, Callinan and Heydon JJ in Griffith University v Tang (2005) 221 CLR 99; 213 ALR 724, whilst not expressly disapproving of the majority approach in Bond , nonetheless gave rise to doubts as to whether Mason CJ’s approach commanded majority support on the High Court. The “substantive” requirement in Bond was conspicuous in its
(ii) “ADMINISTRATIVE CHARACTER”
This expression is not further defined in JR Act.
5 preliminary points about phrase (the first three points are particularly important).
The phrase maintains the trichotomy between legislative, executive (or administrative) and judicial acts and decisions - see * Resort Management Services Ltd v Noosa Shire Council [1995] 1 QdR 311 at 317; see also * Evans v Friemann (1981) 35 ALR 428 at 433-4;
- Minister for Industry and Commerce v Tooheys Limited (1982) 42 ALR 260 at 265. On separation of powers doctrine generally – see E Barendt, “Separation of Powers and Constitutional Government” [1995] Public Law 599.
Courts have generally sought to avoid giving the phrase a narrow or technical construction. The ADJR Act and JR Act are remedial and should therefore be given wide construction and application - see Evans v Friemann (1981) 35 ALR 428 at 435 - Not a strictly analytical approach. Two factors which impel a broad construction.
It is the decision which must be of an administrative character, not the subject matter of decision. Illustration of this factor provided by facts of Evans v Friemann. Evans involved an attempt to review (amongst other things) decisions to fail a person in patent attorney exams. Passes in these exams would have allowed the candidate to seek admission as a patent attorney. Patent attorneys and the system of patents were governed by legislative instruments which included regulations dealing with exams. If a strict analytical approach was taken, and only the subject matter of a decision was considered, then the decision to fail someone in an exam might be characterized as educational. Fox ACJ rejected this approach. One must look at the decision and characterize it. According to Fox ACJ such a decision involves administering the patent system set up by legislative instruments. The focus is not the subject matter of the decision. The same point has been made by courts in relation to “commercial” decisions. These can be of an administrative character - see 435;
Administration does not involve an isolated act - it is a process. Hence, particular decisions need to be characterised in the context of any such process - see Evans at
Character of the decision relevant and not generally the character of the decision maker - cf Glenister v Dillon [1976] VR 550. The JR Act expression clearly points to the characterisation of decisions, eg QCAT was held to be a court in Owen v Menzies [2013] 2 QdR 327, [7]-[20], [43]-[52] and [103], and yet s156 of the Queensland Civil and Administrative Tribunal Act 2009 envisages Part 3 of the JR Act applying to decisions made by QCAT that are of an administrative character. But NB type of decision-maker is not completely irrelevant to characterisation - see Hamblin v Duffy (1981) 34 ALR 333 at
“Decision of an administrative character” cannot be construed in isolation from other sections of JR Act - see eg s5 of JR Act - Federal Court in Evans v Friemann recognised that ADJR Act equivalent of s5 would be relevant to interpreting scope of equivalent of
s4(a) of JR Act - see 431. Thus, looking at s5, decisions granting or revoking licences,
making or revoking an order, etc can be characterized as “administrative”.
- It is difficult, if not impossible, to set out all encompassing definitions of “legislative”, “judicial” and “administrative power” - see Lockhart J in Hamblin at p 338; Fox ACJ in Evans at p 433-5.
THE “TESTS”
Lockhart J in Hamblin v Duffy :
legislative acts usually involve the formulation of new rules of law having general application;
“.. acts generally entail determinations of questions of law and fact in relation to disputes susceptible of determination by reference to established rules or principles” - at 338;
“(a decision of an administrative character).. at least the application of a general policy or rule to particular cases; the making of individual decisions” - at 339. (emphasis added)
The Full Federal Court in Minister for Industry and Commerce v Tooheys Limited (1982) 42 ALR 260, endorsed the following statement by Latham CJ in The Commonwealth v Grunseit (1943) 67 CLR 58 at 82-3 (obviously not made in context of ADJR Act ):
“The distinction between legislation and the execution of legislation is that legislation determines the content of the law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases.”
This type of definition of administrative power has been criticised as being overly simplistic, in particular, because it does not consider the full scope of administration which includes the creation of government policy.
See also Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 634 - Gummow J repeated the same quotation from Latham CJ with a warning that loose terms and unascertainable standards might end up as the product of trying to set down criteria for each of the 3 types of power. Gummow J also noted that “the primary characteristic of the activities of administrators in relation to enactments of the legislature is to maintain and execute those laws...” – at 634.
For a general discussion of factors relevant to distinguishing legislative decisions from administrative decisions – see * RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 185 ALR 573 at paras 40-78; and * Schwennesen v Minister for Environment and Resource Management [2010] QCA 340 at paras 8-37.
On the identification of legislative acts, see also Vietnam Veterans’ Affairs Association v Cohen (1996) 70 FCR 419 at 430-1.
For definition of judicial power in the context of the Constitution – see Love v Attorney- General (NSW) (1990) 169 CLR 307 at 319-320.
Week 8 (Seminar 7) Learning Guide and Discussion Questions
Course: Business Policy And Strategy (MGTS3301)
University: University of Queensland
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