ADMINISTRATIVE LAW NOTES JUDICIAL REVIEW 5 COMMONWEALTH STATUTORY JUDICIAL REVIEW: ADJR ACT 5 SCOPE OF JUDICIAL REVIEW 5 Common law 6 ADJR 6 There must be a decision 6 The decision must be of an administrative character 6 The decision must be made under an enactment 7 JURISDICTION 9 High Court 9 Federal Court and Federal Magistrate’s Court 9 State Supreme Courts 9 JUSTICIABILITY 11 STANDING 12 Standing under Common law 12 The rules of standing vary according to the remedy/writ sought 12 Standing under ADJR Act 13 GROUNDS FOR REVIEW 14 Classification & Categories of Grounds 15 Natural Justice & Procedural Fairness 15 Breach of Natural justice or Procedural Fairness 16 Hearing Rule 16 Legitimate Expectations 19 No-bias Rule 23 Procedural requirements not observed 24 Decision was not authorised by the enactment 25 Rule against delegation 25 Jurisdictional Error 26 Narrow Jurisdictional Error 26 Broad jurisdictional error 28 Improper Exercise of Power / Ultra Vires 30 Relevancy 30 Irrelevancy 32 Improper purpose 32 Exercise of discretionary power in bad faith 33 Acting under dictation 34 Exercise of discretionary power in accordance with a rule or policy without regard to the merits of the case 35 Unreasonableness 37 Irrationality 38 Uncertainty 39 Abuse of Power 40 Fraud 41 No Evidence Rule 41 Elements 41 The decision was otherwise contrary to the law 44 REMEDIES 44 Common law 44 Certiorari 44 Prohibition 45 Mandamus 45 Equitable remedies 45 Injunction 45 Declaration 45 ADJR remedies 45 Orders 45 Reasons 45 Damages for successful challenge of judicial review 46 PRIVATIVE CLAUSES 47 Types of privative clauses 48 The Hickman Principle 49 Requirements of The Hickman Principle 49 Approaching the Hickman Principle 49 Examples of the courts getting around privative clauses 50 Privative Clauses in Administrative Tribunals, Inferior Courts and NSW 51 STATUTORY INTERPRETATION 52 READING STATUTES 52 ACTS INTERPRETATION ACT 1901 (CTH) 52 COMMON LAW APPROACHES TO STATUTORY INTERPRETATION 54 The Literal Approach 54 The Purposive Approach 55 Extrinsic materials 55 General Principles of Interpretation 58 Presumptions 59 DELEGATED LEGISLATION, SUBORDINATE LEGISLATION AND LEGISLATIVE INSTRUMENTS 60 LEGISLATIVE REQUIREMENTS 61 ACCOUNTABILITY MECHANISMS 62 Parliamentary Review 63 Judicial Review of Delegated Legislation 64 EXTRA-JUDICIAL REVIEW 68 MERITS REVIEW 68 Avenues of merits review 69 Commonwealth Administrative Tribunals 69 NSW Administrative Tribunals 70 Tiers of Tribunal Review 70 Tribunals 70 Administrative Appeals Tribunal (AAT) 71 Powers 71 Jurisdiction 72 Standing 72 Procedure 72 Evidence 74 Standard of proof and fact-finding 75 Merit review preferable to judicial review 75 AAT process 76 Policy 77 Reasons 78 Appeals 78 FREEDOM OF INFORMATION (FOI) 79 Legislation 80 Australian Information Commissioner 82 Freedom of Information (FOI) Act (Cth) 83 Government Information (Public Access) Act 2009 (NSW) 84 The public interest test 85 Cases 86 OMBUDSMAN 88 Functions 88 Jurisdiction 89 Process 90 Reports/findings 90 Powers 91 Policy questions 91 INTEGRITY BRANCH: HUMAN RIGHTS; AUDITORS-GENERAL 91 Ombudsman 92 Auditors-General 92 Functions 93 ANTI-CORRUPTION COMMISSIONS 94 Corrupt Conduct 94 Police Integrity Commission, ACLEI 95 Crime and Misconduct Commission QLD 95 Corruption and Crime Commission WA 95 Independent Commission Against Corruption (ICAC) 95 ICAC Criticisms 96 Notification 96 High Court Cases 97 WHISTLEBLOWERS 98 Whistleblower legislation 98 Legal framework in Australia 98 Protected Disclosures Act 1994 NSW 98 HUMAN RIGHTS AND SOME FUTURE REFORMS TO ADMINISTRATIVE LAW 99 NATIONAL CHARTER OF HUMAN RIGHTS 99 2009 NATIONAL HUMAN RIGHTS CONSULTATION (BRENNAN REPORT) 99 HUMAN RIGHTS (PARLIAMENTARY SCRUTINY) BILL 99 PROPOSAL FOR AN AUSTRALIAN JOINT COMMITTEE ON HUMAN RIGHTS 99 HUMAN RIGHTS ACT 2004 (ACT) 99 CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 (VIC) 100 CASES 101 FUTURE DIRECTIONS 101