Administrative Law

1. Administrative Law Pre-Exam Tutorial

2. Overview: • General Advice: • Approaching study: Summaries • Approaching exam: time allocation, which question first, etc. • 2013 Exam: Problem Question

3. Problem Q Summary Structure • 1. Jurisdiction • 2. Judiciability • 3. Standing • 4. GOR • 5. Remedies • 6. Statutory Exclusion

4. 2013 Exam: • i – Jurisdiction (20%) • ii – Standing (10%) • iii –PF / Project Blue Sky invalidity (20%) • iv – GOR (30%) • v – GOR (20%)

5. i: Jurisdiction 2. Is the Cth a party? 3. Are you seeking a particular remedy? 4. Is there an exclusion clause? 1. Cth Act?

6. i: Jurisdiction ADJR rules: Application • ‘Aggrieved’s5 ADJR • Decision s3(1) ADJR • Administrative Character s3(1) ADJR • Under an enactment s3(1) ADJR • Standing – discuss in Q2 • Decision to cancel ISP is final, operative, determinative (Bond) • 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 withAWBI

7. ii: Standing Standing Common Law, 5 ADJR ‘aggrieved person’ Application • Starting point: ACF : • 1) decision interferes with private rights;or • 2) ‘special interest’ in subject matter • More than a mere ‘intellectual or emotional concern’; • More than interest of public at large • However: standing recognized for orgs similar to ACF. Ct Considered: • Prior involvement in particular matter; • Group recognized/funded by govt; • Group represents significant strand of public opinion; & • Expertise of org (Tas Conservation Trust) • Bateman’s Bay: group had standing because personally detrimented • Standing liberalising? • CDF = not personally affected • Special interest? • CDA is a non-profit group formed by wealthy Australian musicians and movie makers. ... Has participated in govt consultations into the future of these industries and has been involved extensively in funding research into the impact of illegal downloads on Australia’s film and music industries. ... Not in receipt of any government funding.

8. iii: Breach of Procedural Fairness: Invalidity? Would the breach of PF make the decision invalid? Application • Clear breach of PF • Question = will decision to cancel internet be invalid? – Project Blue Sky: • Language • Subject Matter • Consequences • SZIZO– Right address, wrong person – Unfairness? • Miah– nature of the decision (final?), urgency of decision, formalities required, subject matter • Project Blue Sky Analysis • Language of ss951 and 952 • Subject matter: Public effect of decision? Practical effect? • Consequences? • SZIZO– means/end • Is Cory aware that he can challenge notice? • Miah– weigh up factors

9. 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)

10. 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

11. 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 • JiaLegeng :Minister expresses public opinion about deporting accused, wrote to AAT expressing disapproval with initial decision • Baker v Canada: biassubordinate influenced decision ....

12. iv: Grounds of Review GOR Application • Procedural Fairness – should she get an oral hearing? • ‘Fetter’ – is the policy regarding policy hearings inflexible • State of Mind – Jurisdictional Fact • 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 • Should she get an oral hearing? Scope, content • Policy of no oral hearing – not considering particular case at hand • 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? • That Anna had a licence: can they rely on copywriters to check?

13. v: Grounds of Review GOR Application • Failure to consider relevant information • Legitimate Expectation • Inflexible policy • No evidence • Courts wary of applying to ‘insufficient evidence’ • Effect on Children • Letter from principal • ONLY affects content of PF rule • Is the policy listed on the website inflexible? • No evidence to suggest she Will breach again?

14. Final Notes Cases you should know WELL: • NEAT • Project Blue Sky • Kioa • Facts of GOR cases

15. Questions?