Administrative Law
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Transcript Administrative Law
Pre-Exam Tutorial
Overview:
General Advice:
Approaching study: Summaries
Approaching exam: time allocation, which
question first, etc.
2013 Exam: Problem Question
Problem Q Summary Structure
1. Jurisdiction
2. Judiciability
3. Standing
4. GOR
5. Remedies
6. Statutory Exclusion
2013 Exam:
i – Jurisdiction (20%)
ii – Standing (10%)
iii –PF / Project Blue Sky invalidity (20%)
iv – GOR (30%)
v – GOR (20%)
i: Jurisdiction
High
Court
Federal
Matter
Federal
Court
S75(iii)
2. Is the Cth a
party?
S75(v)
ADJR
1. Cth Act?
State Matter
Supreme Court
Common Law –
ss75(iii) and (v)
(Kirk’s case)
State clones of
ADJR
3. Are you
seeking a
particular
remedy?
4. Is there an
exclusion
clause?
i: Jurisdiction
ADJR rules:
Application
‘Aggrieved’ s5 ADJR
Standing – discuss in Q2
Decision s3(1) ADJR
Decision to cancel ISP is final, operative,
determinative (Bond)
Administrative
Character s3(1) ADJR
Under an enactment
s3(1) ADJR
Factors to consider:
Nature of decision: relates to many
of individual?
Who supervises decision? Merits
Review = usually administrative
(Blewitt, Leg Instruments Act)
Tang:
Expressly authorised and required
under an Act
Affects legal rights & obligations
(Tang)
BUT: Private body NEAT – compare TIO
with AWBI
ii: Standing
Standing Common Law,
5 ADJR ‘aggrieved person’
Application
CDF = not personally affected
1) decision interferes with private rights; Special interest?
or
CDA is a non-profit group
2) ‘special interest’ in subject matter
formed by wealthy
More than a mere ‘intellectual or
Australian musicians and
emotional concern’;
movie makers. ... Has
More than interest of public at large
participated in govt
However: standing recognized for orgs
consultations into the
similar to ACF. Ct Considered:
future of these industries
and has been involved
Prior involvement in particular matter;
extensively in funding
Group recognized/funded by govt;
research into the impact of
Group represents significant strand of
illegal downloads on
public opinion; &
Australia’s film and music
industries. ... Not in receipt
Expertise of org (Tas Conservation Trust)
of any government funding.
Bateman’s Bay: group had standing because
Starting point: ACF :
personally detrimented
Standing liberalising?
iii: Breach of Procedural Fairness: Invalidity?
Would the breach of PF
make the decision invalid?
Clear breach of PF
Application
Project Blue Sky Analysis
Question = will decision to
cancel internet be invalid?
– Project Blue Sky:
Language
Subject Matter
Language of ss951 and 952
Subject matter: Public effect
of decision? Practical effect?
Consequences?
Consequences
SZIZO – Right address,
wrong person – Unfairness?
Miah – nature of the decision
(final?), urgency of decision,
formalities required, subject
matter
SZIZO – means/end
Is Cory aware that he can
challenge notice?
Miah – weigh up factors
How to Approach the GOR Section
Have a list of GOR
Have a list of cases with ‘fact’ catch phrases
Think through before writing
Pick the STRONGEST GOR (likely 1 or 2)
For weaker arguments, mention BRIEFLY if time
Quickly mention remedies –
under ADJR here, so mention that remedies are at the Court’s
discretion, do not need to prove jurisdictional error (s16)
Example of GOR list
Procedural grounds of review (JE)
Rule Against Bias (Actual / Apparent)
Procedural Fairness
(Scope/Content/Unfairness)
Reasoning process grounds (JE)
Duty to inquire
Giving Reasons
‘Consideration’ Grounds:
consideration of irrelevant matters
failure to consider relevant
matters
Unauthorised Purpose
Inflexible application of a rule or
policy
Dictation Ground of review - ‘Rule
against dictation’
Rule against unauthorised delegation
Decisional grounds
Jurisdictional Error
Error of Law
Errors of Fact
Jurisdictional Fact
Decision conditioned on fact
‘State of Mind’
No evidence
‘Wednesbury’ Unreasonableness
Rule Against Bias
Vakauta v Kelly: derogatory or insulting words
Hot-Holdings: mining licence, personal contacts w/
interested parties
Ebner: Pecuniary or proprietary interest
Laws v ABA: necessity, whole DM would be disqualified if
bias
Jia Legeng : Minister expresses public opinion about
deporting accused, wrote to AAT expressing disapproval
with initial decision
Baker v Canada: bias subordinate influenced decision
....
iv: Grounds of Review
GOR
Application
Procedural Fairness – should she get an
oral hearing?
Should she get an oral hearing? Scope,
content
‘Fetter’ – is the policy regarding policy
hearings inflexible
Policy of no oral hearing – not
considering particular case at hand
State of Mind – Jurisdictional Fact
Irrational to consider dog’s name as password
not ‘reasonable effort’ but ‘open to them’?
Misunderstanding of statute in expecting
copywriters not to issue notice if licence held?
Duty to inquire (SZIAI ) - ‘failure to
make an obvious inquiry about a critical
fact, the existence of which is easily
ascertained’ may amount to JE
Limited, narrowly applied:
Obvious
Centrally relevant
Readily ascertainable
That Anna had a licence: can they rely on
copywriters to check?
v: Grounds of Review
GOR
Application
Failure to consider relevant
Effect on Children
information
Letter from principal
Legitimate Expectation
ONLY affects content of PF
Inflexible policy
rule
Is the policy listed on the
website inflexible?
No evidence
Courts wary of applying to
‘insufficient evidence’
No evidence to suggest she
Will breach again?
Final Notes
Cases you should know WELL:
NEAT
Project Blue Sky
Kioa
Facts of GOR cases