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Using judicial review

Using judicial review. Essentially negative remedies … can be used: t o protect … ANZ v Konza ; t o destroy … WA Land Authority v Minister for Sustainability etc . Cannot be used to create a decision … a successful applicant is most often sent back to the decision-maker.

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Using judicial review

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  1. Using judicial review • Essentially negative remedies … can be used: • to protect … ANZ v Konza; • to destroy … WA Land Authority v Minister for Sustainabilityetc. • Cannot be used to create a decision … a successful applicant is most often sent back to the decision-maker. • Procedural complications in ADJR Act … largely overcome by Judiciary Act, s 39B(1A)(c).

  2. ANZ v Konza [2012] FCA 196 [2012] FCAFC 127 Challenge to 2 notices issued under ITAA, s 264, requiring disclosure of information (stored in Australia) from customers’ accounts with ANZ Vanuatu

  3. Judiciary Act 1903, s 39B(1) & (1A)(c)ADJR Act, s 5 • ANZ sought prohibition against Konza (a delegate of the Commissioner), “an officer of the Commonwealth” … s 39B(1) • ANZ claimed notices not authorised by s 264(1) – “a matter arising under a law made by the Parliament” … s 39B(1A)(c) • ANZ claimed – • notices not authorised by s 264(1), • the decision to issue notices involved an error of law, • the decision to issue notices was contrary to law, • the decision to issue notices involved an improper exercise of power and • the notices were uncertain. Raising s 5(1)(d), (e), (f) and (j) of the ADJR Act

  4. The result • Obligation of confidentiality cannot override s 264 … Lander J at [71]; FFC at [30] • Disclosure would not breach Vanuatu law … Lander J at [128]; FFC at [23] • In any event, s 264 is not subject to constraint by foreign law … Lander J at [81]-[84]; FFC at [31]-[34] • Notices not issued for an improper purpose … Lander J at [133]; FFC at [39]-[42] • Notice 1 not uncertain … Lander J at [186]; FFC at [50] • Notice 2 uncertain … FFC at [63]

  5. WA Land Authority (Landcorp) v Minister for Sustainability etc [2012] FCA 226 • Challenge to delegate’s decision to confirm that development of land was “controlled action” under EPBC Act by reason of likely “significant impact” on protected listed species – Carnaby’sBlack Cockatoo

  6. Judiciary Act 1903, s 39B(1) & (1A)(c)ADJR Act, s 5 • Under ADJR Act, Landcorp claimed: • breach of natural justice – s 5(1)(a); • decision involved an error of law – s 5(1)(f); • irrelevant considerations taken into account – s 5(2)(a); • relevant considerations not taken into account – s 5(2)(b). • Judiciary Act claims not developed.

  7. The result • Irrelevant considerations not taken into account … at [55]-[56], [59]-[60] • Relevant considerations taken into account … at [62]-[63], [71]-[72] • Natural justice denied when Department failed to reveal: • documents reflecting Department’s accumulated knowledge and approach to assessing proposed actions... at [86] • information about other developments in the area … at [129] • an assumed deficiency in an expert’s report … at [138]

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