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86 McMillan and Williams, n1 above, 88. See, for example, Kioa v West (1985) 159 CLR 550
at 629 (Brennan J) (a decision may consider international treaties but is not required
to do so), 570–1 (Gibbs CJ).
87 (1994) 179 CLR 427.
88 ibid, at 437 (Mason CJ and Brennan, Gaudron and McHugh JJ); see also Bropho v
Western Australia (1991) 171 CLR 1 at 17–18; Plaintiff S157 v Commonwealth (2003)
211 CLR 476 at 492; Potter v Minahan (1908) 7 CLR 277 at 304; McMillan and Williams,
n1 above, 78–80.
89 T Poole, ‘Back to the Future? Unearthing the Theory of Common Law Constitutionalism’
(2003) 23 Oxford Journal of Legal Studies 435 at 451.
90 Coco v R (1994) 179 CLR 427 at 437–8.
91 See R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at
131 (Lord Hoffmann): ‘The principle of legality means that Parliament must squarely
confront what it is doing and accept the political cost. Fundamental rights cannot be
overridden by general or ambiguous words. This is because there is too great a risk
that the full implications of their unqualified meaning may have passed unnoticed in
the democratic process.’
92 Building Construction Employees and Builders’ Labourers Federation of New South
Wales v Minister for Industrial Relations (BLF Case) (1986) 7 NSWLR 372 at 404–6
(Kirby P).
93 Evans, n8 above, 4.
94 Human Rights Act 2004 (ACT) s30; Victorian Charter of Rights and Responsibilities Act
s32.
95 McMillan, n24 above.
96 Attorney-General (NSW) v Quin (1990) 93 ALR 1 at 24–5.
395
NOTES


97 Taggart, n27 above, 469.
98 [2004] HC 37.
99 ibid, at [33] (McHugh J); see also [298] (Callinan J), [241] (Hayne J).
100 ibid, at [22] (Gleeson CJ).
101 ibid, at [65] (McHugh J).
102 ibid, at [20] (Gleeson CJ). The rule of law has been invoked elsewhere in support of
liberty: see, for example, McMillan, ‘Recent Themes in Judicial Review’, n1 above, at
355–6.
103 ibid, at [150] (Kirby J), citing Whittaker v The King (1928) 41 CLR 230 at 248; Trobridge
v Hardy (1955) 94 CLR 147 at 152; Watson v Marshall and Cade (1971) 124 CLR
621 at 632; Williams v The Queen (1986) 161 CLR 278 at 292; Re Bolton; Ex parte
Beane (1987) 162 CLR 514 at 532; McGarry v The Queen (2001) 207 CLR 121 at
140–2.
104 J Spigelman, ‘Blackstone, Burke, Bentham and the Human Rights Act 2004’ (2005)
26 Australian Bar Review 1 at 6.
105 News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 77 ALJR 1515
at 1524.
106 K and S Lake City Freighters Pty Ltd v Gordon and Gotch Ltd (1985) 157 CLR 309 at 315
(Mason J). See also D Meagher, ‘The “Tragic” High Court Decisions in Al-Kateb and
Al Khafaji: The Triumph of the “Plain Fact” Interpretive Approach and Constitutional
Form over Substance’ (2005) 7 Constitutional Law and Policy Review 69.
107 Al-Kateb v Godwin [2004] HC 37 at [73] (McHugh J).
108 Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR
1 at 38 (Brennan, Deane and Dawson JJ).
109 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 (Mason
CJ and Deane J).
110 Al-Kateb v Godwin [2004] HC 37 at [63] (McHugh J); see also Polites v Commonwealth
(1945) 70 CLR 60 at 68–9, 77, 80–1.
111 Al-Kateb v Godwin [2004] HC 37 at [63] (McHugh J). In contrast, Kirby J was in
favour of interpreting the Constitution consistently with international law where this
is possible.
112 Evans, n8 above, 8: such as ‘the powers as a landowner to exclude certain types
of protesters from government land . . . or the power to enter into contracts for
the operation of detention facilities with corporations that have poor human rights
records’.
113 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 517–18
(McHugh J, Gummow, Kirby and Hayne JJ).
114 Spigelman, n104 above, 1; G Lombard, ‘Human Rights and the “Breakfast Theory
of Jurisprudence”: Treaty Monitoring Bodies and Public Administration’ (1999) 5
Australian Journal of Human Rights 150 at 152.
115 Lombard, ibid, 152.
116 J Griffith, ‘The Political Constitution’ (1979) 42 Modern Law Review 1 at 17, 19.
117 ibid, 18.
118 See, for example, ICCPR, arts 5, 12(3), 19(3), 21, 22(2); ICESCR, arts 4–5.
119 (1992) 175 CLR 1.
120 ibid, at 42 (Brennan J).
121 Royal Women’s Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85 at
[75] (Maxwell J).
122 Mabo (No 2) (1992) 175 CLR 1.
123 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.
124 Simsek v McPhee (1982) 148 CLR 636 at 641 (Stephen J); see also Dietrich v The Queen
(1992) 177 CLR 292 at 304 (Mason CJ and McHugh J); Minister for Immigration and
Ethnic Affairs v Teoh (1995) 183 CLR 273 at 297 (Mason CJ and Deane J).
125 McMillan, ‘Recent Themes in Judicial Review’, n1 above, 353.
126 (2003) 214 CLR 1.
396 NOTES


127 ibid, at [105] (McHugh and Gummow JJ).
128 (2004) 79 ALJR 397.
129 ibid, at 409.
130 Aronson, n25 above, 214.
131 See, for example, P Sales and K Steyn, ‘Legitimate Expectations in English Public Law:
An Analysis’ [2004] Public Law 564.
132 See Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR
1 at [76] (McHugh and Gummow JJ).
133 Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 476
(Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
134 See resolution of appointment:<www.aph.gov.au/house/committee/jsct/reports/
resolution.pdf>.
135 See generally H Charlesworth, M Chiam, D Hovell and G Williams, No Country Is An
Island: Australia and International Law (UNSW Press, 2006), 41–8.
136 ibid, 76.
137 Nulyarimma v Thompson [1999] FCA 1192.
138 ibid (Wilcox and Whitlam JJ).
139 See, for example, McMillan and Williams, n1 above, 75–8.
140 See, for example, Chaudhary v Minister for Immigration and Ethnic Affairs (1993)
44 FCR 510 (Beazley J), (1994) 49 FCR 84 (Wilcox, Burchett and Foster JJ); Ates
v Minister of State for Immigration and Ethnic Affairs (1983) 67 FLR 449 at 455–6;
Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45
FCR 515 at 527; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR
273 at 304 (Gaudron J); Schlieske v Minister for Immigration and Ethnic Affairs (1988)
84 ALR 719 at 730 (Wilcox and French JJ). But see Minister for Immigration v Teo
(1995) 57 FCR 194 at 204–207 (Black CJ, Gummow and Beazley JJ).
141 W375/01 A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 at
[16] (Lee, Carr and Finkelstein JJ).
142 (1999) 197 CLR 510.
143 ibid, at 577–8.
144 McMillan, ‘Judicial Restraint and Activism in Administrative Law’, n1 above, 353.
145 (1989) 169 CLR 379.
146 ibid.
147 (1999) 93 FCR 220.
148 ibid, at 239–40 (Sackville J).
149 UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under
the 1951 Convention and the 1967 Protocol, HCR/IP/4/Eng/REV.1 Reedited, Geneva,
January 1992, UNHCR 1979 at [196], [203–204].
150 Australian Senate, Standing Order 24(1)(a).
151 ibid.
152 Human Rights Act 2004 (ACT) s38(1).
153 Victorian Charter of Rights and Responsibilities Act 2006 (Vic) s30.
154 ibid. Note: pursuant to the Subordinate Legislation Act 1994 (Vic) s21.
155 NSW Legislative Council Standing Committee on Law and Justice, A NSW Bill of Rights,
Report 17, October 2001, 118.
156 See Parliamentary Committee Act 1995 (Qld) s22 read with the Legislative Standards
Act 1992 (Qld) s4. The Committee considers similar matters to the Senate Standing
Committee, but also whether, for example: property is compulsorily acquired with
fair compensation; sufficient regard is paid to Aboriginal tradition and Island custom;
protection is provided against self-incrimination; judicial warrants authorise entry
to premises or seizure of documents or property; the onus of proof is not reversed in
criminal case without adequate justification; there is consistency with natural justice;
and immunity is not conferred without adequate justification.
157 Parliamentary Committees Act 1968 (Vic) s4D(a)(iiia)–(iiib).
397
NOTES


158 NSW Legislative Council Standing Committee, n155 above, 115–132. See Legislation
Review Amendment Act 2002 (NSW); S Argument, ‘Scrutiny of Bills’, Law Society
Journal, October 2003, 53.
159 See Kable v Director of Public Prosecutions (NSW) (1996) 138 ALR 577.
160 NSW Legislative Council Standing Committee, n155 above, 123–6.
161 Human Rights Act 2004 (ACT) s37.
162 Victorian Charter of Rights and Responsibilities Act 2006 (Vic) s28(1).
163 ibid, s28(2).
164 ibid, s28(3)(a).
165 ibid, s28(3)(b).
166 Human Rights Act 2004 (ACT) s39; Victorian Charter of Rights and Responsibilities Act
2006 (Vic) s29.
167 See L Reif, The Ombudsman, Good Governance and the International Human Rights
System (Martinus Nijhoff, 2004); L Reif, ‘Building Democratic Institutions: The Role
of National Human Rights Institutions in Good Governance and Human Rights Pro-
tection’ (2000) 13 Harvard Human Rights Journal 1.
168 Reif, ‘Building Democratic Institutions’, ibid, at 11.
169 J Hatchard, ‘Developing Appropriate Institutions to Meet the Challenges of the New
Millennium’ (2000) 8 Asia Pacific Law Review 27 at 50.
170 Reif, The Ombudsman, n167 above, 395. Lack of parliamentary support for the
Ombudsman has been a common complaint in Australia: see, for example, McMillan,
n24 above.
171 Hatchard, n169 above, 34–5.
172 Reif, ‘Building Democratic Institutions’, n167 above, 13.
173 Anand Satyanand, ‘Human Rights in the Commonwealth: The Ombudsman Role’
(2002) 28 Commonwealth Law Bulletin 547 at 550.
174 ibid, 550–1.
175 J McMillan, ‘The Immigration Ombudsman Role: Lessons for Public Law’, Address to
an AIAL Forum, Melbourne, May 2006, 1.
176 ibid, 2.
177 Law Enforcement Legislation Amendment (Public Safety) Act 2005 (NSW) s87O; see L
Stockdale, ‘NSW Ombudsman to Scrutinise New Public Safety Powers’, Law Society
Journal, August 2006, 71.
178 Norwegian Parliamentary Ombudsman, Arne Fliflet, quoted in Satyanand, n173
above, 552. See also Hatchard, n169 above, 30–1, 49–50 (discussing the similari-
ties and differences between ombudsmen and human rights bodies).
179 Ombudsman of Trinidad and Tobago, quoted in Hatchard, n169 above, 29.
180 Ombudsman Act 1976 (Cth) s15(1)(a)(i)–(v).
181 ibid, s15(1)(b) and (c)(i)–(ii) respectively.
182 ICCPR, art 2; ICESCR, art 2.
183 Lawful detention may be arbitrary if it is unreasonable (including where it is inap-
propriate, unjust or unpredictable): van Alphen v Netherlands, UN Human Rights
Committee, 1990. Detention is unreasonable if it is unnecessary or disproportionate
to the legitimate end being sought: Toonen v Australia, UN Human Rights Committee,
1994.
184 Victorian Human Rights Consultation Committee, Rights, Responsibilities and Respect
(2005) 122–3.
185 Victorian Charter of Rights and Responsibilities Act 2006 (Vic) schedule.
186 Victorian Charter of Rights and Responsibilities Act 2006 (Vic) s6(2)(c).
187 Victorian Charter of Rights and Responsibilities Act 2006 (Vic) s39.
188 Human Rights and Equal Opportunity Act 1986 (Cth) s11(1)(f).
189 McMillan, n175 above, 1.
190 ibid.
191 ibid, 5.
398 NOTES


192 ibid.
193 ibid, 4.
194 ibid.
195 Human Rights Bill 1973 (Cth) (lapsed following a double dissolution); Australian Bill
of Rights Bill 1985 (Cth) (passed by the lower house but withdrawn in the Senate;
based on an earlier draft of 1984); 1988 Constitution Alteration (Rights and Free-
doms) Bill 1988 (Cth). See generally G Williams, Human Rights under the Australian
Constitution (Oxford University Press, 2002) 250–7.
196 Parliamentary Charter of Rights and Freedoms Bill 2001 (Cth) (introduced into the
Senate by the Australian Democrats leader, Senator Lees and drafted by Senator
Murray as the Australian Bill of Rights Bill 2000 (Cth); reintroduced by Senator Stott-
Despoja in 2005); Australian Bill of Rights Bill 2001 (Cth) (introduced by Labor MP
Andrew Theophanous in the lower house); New Matilda conducted a national con-
sultation on its Human Rights Bill 2006, which it hopes to introduce into Parliament
as a private member’s bill in 2006.
197 Thames Valley Electric Power Board v NZFP Pulp and Paper Ltd [1994] 2 NZLR 641 at
653.
198 McMillan, ‘Judicial Restraint and Activism in Administrative Law’, n1 above, 369. See
also McMillan and Williams, n1 above, 89.
199 Evidence Act 1995 (Cth) s138(3)(f).


Chapter 5
1 See the attempt by L Curtis, ‘Agenda for Reform: Lessons from the States and Territo-
ries’ in R Creyke (ed) Administrative Tribunals: Taking Stock (Centre for International
and Public Law, ANU, 1992) 34.
2 Australian Law Reform Commission, Review of the Adversarial System of Litigation:
Federal Tribunal Proceedings (Issues Paper No 24, 1998) para 12.2.
3 ibid.
4 L Curtis, ‘Agenda for Reform: Lessons from the States and Territories’ in R Creyke
(ed), Administrative Tribunals: Taking Stock (CIPL, 1992) 35.
5 M Allars, Introduction to Australian Administrative Law (Butterworths, 1990) paras
7.1–3; Australian Law Reform Commission, Review of the Adversarial System of Litiga-
tion: Federal Tribunal Proceedings (Issues Paper 24, 1998) para 2.4.
6 LW Maher, ‘The Australian Experiment in Merits Review Tribunals’ in O Mendelsohn
and LW Maher (eds), Courts, Tribunals and New Approaches to Justice (La Trobe UP,
1994) 74–5.
7 Allars, n5 above, para 7.4.
8 ALRC, n5 above, para 2.2.
9 It is equally difficult to distinguish a ‘court’ from a tribunal whether for constitutional
or other reasons: see G Hill, ‘State Administrative Tribunals and the Constitutional
Definition of “Court” ’ (2006)13 Australian Journal of Administrative Law 103.
10 Advice provided by the Administrative Appeals Tribunal. Jurisdiction may be granted
under Administrative Appeals Tribunal Act 1975 (Cth) s25.
11 S Forgie, ‘Commonwealth Tribunals: Past, Present and Future’ (unpublished paper
presented at the Queensland Law Symposium, 3 March 2000) 1.
12 Administrative Decisions Tribunal Act 1997 (NSW) ss113–15. The Tribunal also offers
an appeal for a question of law.
13 Based on figures taken from the 2004–2005 and 2003–2004 Annual Reports of the
High Court of Australia, the Federal Court of Australia and the Federal Magistrates
Court of Australia. This figure does not include family law applications made in the
Federal Magistrates Court.
14 Lord Justice Carnwath, ‘Tribunals under the Constitutional Reform Act’ (2006) 13
Journal of Social Security Law 58 at 62.
399
NOTES


15 Sir G Brennan AC, KBE ‘Foreword’ in R Creyke (ed), Administrative Tribunals: Taking
Stock (ANU Centre for International and Public Law, 1992) i–ii.
16 L Curtis, ‘Crossing the Frontiers Between Law and Administration’ (1989) 58 Canberra
Bulletin of Public Administration 56.
17 P Bayne, ‘Tribunals in the System of Government’ (1990) 10 Papers on Parliament 1 at 3.
18 B Ackerman, ‘The New Separation of Powers’ (2000) 113 Harvard Law Review 633,
694; Chief Justice JJ Spigelman, ‘Jurisdiction and Integrity’ (2005) 2 AIAL National
Lecture Series, Lectures 1, 2–3; J McMillan, ‘The Ombudsman and the Rule of Law’
(2005) 44 AIAL Forum 11–13; R Creyke, ‘Administrative Justice – Towards Integrity in
Government: the First to the Third Way’ (forthcoming), paper presented at the First
Seminar of the ESRC Seminar Series on Administrative Justice, Edinburgh, 27 March
2006, 16–28.
19 University of Griffiths Key Centre for Ethics, Law, Justice and Governance, Chaos or
Coherence? Strengths, Opportunities and Challenges for Australia’s Integrity Systems:
National Integrity Systems Assessment (NISA) Final Report (December 2005).
20 Re Adams and The Tax Agents’ Board (1976) 1 ALD 251.
21 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 94 (Toohey J) 109
(McHugh J) 67 (Brennan CJ, dissenting) 77 (Dawson J, dissenting) 103–4 (Gaudron
J).
22 Commonwealth Administrative Review Committee (the ‘Kerr Committee Report’) (Par-
liamentary Paper 44/1971).
23 ibid, paras 11, 58.
24 Final Report of the Committee on Administrative Discretions (the ‘Bland Committee
Report’) (Parliamentary Paper 316/1973).
25 R Creyke and J McMillan, ‘Administrative Law Assumptions . . . Then and Now’ in R
Creyke and J McMillan (eds), The Kerr Vision of Australian Administrative Law – At the
Twenty-Five Year Mark (CIPL, ANU, 1998) 4.
26 For details see R Creyke and J McMillan, Control of Government Action: Text, Cases and
Commentary (Lexis Nexis Butterworths, 2005) ch 3.
27 Re Staffieri and Commonwealth (1986) 10 ALD N36.
28 ibid, N37.
29 Kerr Committee Report, n22 above, paras 58, 89, 90, 225, 289.
30 J McMillan, ‘Merit Review and the AAT: A Concept Develops’ in J McMillan (ed), The
AAT–TwentyYearsForward:PassingaMilestoneinCommonwealthAdministrativeReview
(AIAL, 1998) 33.
31 For example, Administrative Appeals Tribunal Act 1989 (ACT) s44; Administrative Deci-
sions Tribunal Act 1997 (NSW) s63; District Court Act 1991 (SA) s42F; Victorian Civil
and Administrative Tribunal Act 1998 (Vic) s51; State Administrative Tribunal Act 2004
(WA) s29.
32 Administrative Review Council, Better Decisions: Review of Commonwealth Merits
Review Tribunals (Report 39, 1995) above, para 2.2.
33 (1979) 46 FLR 409.
34 Hon Mr Justice FG Brennan, ‘Comment: The Anatomy of an Administrative Decision’
(1980) 9 Sydney Law Review 1 at 4–5.
35 Environment Protection Authority v Rashleigh [2005] ACTCA 42 at [26], [28].
36 The ‘stands in the shoes’ expression appears in Nation v Repatriation Commission (No
2) (1994) 37 ALD 63 at 68.
37 (1979) 2 ALD 60 at 68.
38 (1990) 170 CLR 267.
39 ibid at 273–4. See also Nation v Repatriation Commission (No 2) (1994) 37 ALD 63 at
68.
40 Re Greenham and Minister for Capital Territory (1979) 2 ALD 137 at 141; Builders’
Licensing Board (NSW) v Sperway Constructions (Syd) Pty Ltd (1976) 51 ALJR 262 at
264.
400 NOTES


41 For example, Administrative Appeals Tribunal Act 1975 (Cth) s29.
42 (1979) 2 ALD 137.
43 ibid, 141.
44 Administrative Appeals Tribunal Act 1975 (Cth) s33(1)(b).
45 Re Greenham and Minister for Capital Territory (1979) 2 ALD 137 at 141–2.
46 The matter is not free from doubt. In Wilkinson v Clerical Administrative and Related
Employees Superannuation Pty Ltd (1998) 152 ALR 332, the fact that a decision of the
Superannuation Complaints Tribunal was ‘unfair or unreasonable’ meant the Federal
Court struck down this provision. On appeal to the High Court, however, in Attorney-
General (Cth) v Breckler (1999) 197 CLR 83, the decision was overturned, largely
because the decision obtained its force by a private arbitration under the trust deed,
rather than the Act and the Act did not purport to give a binding effect to the decision.
47 Crompton v Repatriation Commission (1993) 30 ALD 45 at [19].
48 (1995) 184 CLR 163 at 179.
49 For example, Aged Care Act 1997 (Cth) s85.1; Civil Aviation Act 1988 (Cth) s31(1); Civil
Aviation Regulations r297A(1).
50 Administrative Appeals Tribunal Act 1975 (Cth) s3(3); Administrative Appeals Tribunal
Act 1989 (ACT) s46(1); Administrative Decisions Tribunal Act 1997 (NSW) s6; District
Court Act 1991 (SA) ss42B(2), 42E: Victorian Civil and Administrative Appeals Tribunal
Act 1998 (Vic) s4; State Administrative Tribunal Act 2003 (WA) ss3, 17(3).
51 Director-General of Social Services v Chaney (1980) 31 ALR 571 at 591 per Deane J.
52 Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338.
53 ibid, 342.
54 (1983) 78 FLR 373.
55 ibid, 396–7.
56 R Creyke and G Hill, ‘A Wavy Line in the Sand: Bond and Jurisdictional Issues in Judicial
and Administrative Review’ (1998) 26 Federal Law Review 15.
57 Director-General of Social Services v Chaney (1980) 31 ALR 571.
58 Crompton v Repatriation Commission (1993) 30 ALD 48 at [19].
59 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
60 ibid, 68.
61 Freeman v Secretary, Department of Social Security (1988) 19 FCR 342.
62 Jebb v Repatriation Commission (1988) 80 ALR 329 at 333.
63 Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Com-
munity Services (1992) 39 FCR 225.
64 Kavvadias v Commonwealth Ombudsman (1984) 1 FCR 680.
65 Esber v Commonwealth (1992) 174 CLR 430.
66 See, for example, Acts Interpretation Act 1901 (Cth) ss8, 50.
67 Rodway v R (1990) 169 CLR 515 at 518–19.
68 For a discussion of the meaning of these terms see Australian Law Reform Commission,
Managing Justice: A review of the federal civil justice system (1999) [1.111]–[1.134].
69 Administrative Appeals Tribunal Act 1975 (Cth) ss2A, 33; Administrative Appeals Tri-
bunal Act 1989 (ACT) s32; Administrative Decisions Tribunal Act 1997 (NSW) s73(3);
District Court Act 1991 (SA) s42F; Magistrates Court (Administrative Appeals Division)
Act 2001 (Tas) s34; Victorian Civil and Administrative Act 1998 (Vic) s98(1)(d); State
Administrative Tribunals Act 2004 (WA) s32(2). See also R v War Pensions Entitlement
Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 248–9 (Starke J).
70 (1999) 197 CLR 611.
71 For example, Migration Act 1958 (Cth) s420.
72 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 628.
73 Qantas Airways v Gubbins (1992) 28 NSWLR 29 at 29 (Gleeson CJ and Handley JA)
citing R v War Pensions Appeal Entitlements Tribunal: Ex parte Bott (1933) 50 CLR 228.
74 Re Gee and Director-General of Social Services (1981) 3 ALD 132.
75 McDonald v Director-General of Social Security (1984) 6 ALD 6 at 9.
76 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256.
401
NOTES


77 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at
628 (Gleeson CJ and McHugh J) 635 (Gaudron and Kirby JJ) 642 (Gummow J) 659
(Hayne J) 668 (Callinan J).
78 Kioa v West (1985) 159 CLR 550.
79 ibid, 585.
80 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.
81 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR
75; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
82 Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61.
83 Yung v Adams (1997) 159 CLR 436.
84 Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 at
400 (Finkelstein J).
85 JA Smillie, ‘The Problem of Official Notice’ [1975] Public Law 64. See also Re Pochi
and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41–2; Mahon v
Air New Zealand [1984] AC 808 at 821; Riverside Nursing Care Pty Ltd v Hon Bronwyn
Bishop (2000) 100 FCR 519.
86 Courtney v Peters (1990) 27 FCR 404; Ruangrong v Minister for Immigration and Ethnic
Affairs (1988) 14 ALD 773.
87 Certoma, ‘The Non-Adversarial Administrative Process and the Immigration Review
Tribunal’ (1993) 4 Public Law Review 4.
88 Administrative Decisions Tribunal Act 1997 (NSW) s73(5).
89 Administrative Decisions Tribunal Act 1997 (NSW) s73(5)(b).
90 Curtis, n16 above.
91 CROSROMD Committee report, Non-adversarial review of migration decisions: the way
forward (1992) para 7.1.2.
92 ibid, paras 7.1.3–4.
93 Migration Act 1958 (Cth) Parts 5, 7.
94 Migration Act 1958 (Cth) ss353, 359; Social Security Act 1991 (Cth) s1270; Veterans’
Entitlements Act 1986 (Cth) s138; Administrative Appeals Tribunal Act 1975 (Cth) s33;
Victorian Civil and Administrative Tribunal Act 1998 (Vic) s98.
95 (1992) 175 CLR 408.
96 ibid, 424–5.
97 Grant v Repatriation Commission (1999) 15 VeRBosity 99; Sellamuthu v Minister for
Immigration and Multicultural Affairs [1999] FCA 247 at [23]; Satheeskumar v Min-
ister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15].
98 Australian Law Reform Commission, Managing Justice: A Review of the Federal Justice
System (Report 89, 1999) para 9.53.
99 Sullivan v Department of Transport (1978) 20 ALR 323 at 342.
100 N Bedford and R Creyke, Inquisitorial Processes in Australian Tribunals (Australian
Institute of Judicial Administration Inc, 2006) 65–8.
101 Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR
426.
102 (2005) 80 ALJR 228.
103 ibid, [26].
104 Re McLindin and Acting Commissioner for Superannuation (1979) 2 ALD 261; Re Dennis
and Secretary, Department of Transport (1979) 2 ALD 255; Re Surf Air and Civil Aviation
Authority (1991) 22 ALD 118 at 122.
105 Re Bienstein and Commonwealth Ombudsman (2003) 38 AAR 270.
106 Re Advocacy for the Aged Association Inc and Secretary, Department of Social Security
(1991) 25 ALD 535; Re Prodan and Secretary, Department of Family and Community
Services (2002) 71 ALD 700.
107 Lees v Comcare (1999) 56 ALD 401; Re Reynolds and Defence Force Retirement and
Death Benefits Authority (2000) 58 ALD 539.
108 Cth: AAT (Administrative Appeals Tribunal Act 1975 (Cth) s2A); SSAT (Social Security
Act 1991 (Cth) s1246); MRT, RRT (Migration Act 1958 (Cth) s353(1), 421(1)).
402 NOTES


109 Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324, reversed on
other grounds: (1997) 81 FCR 71, in terms approved by the High Court in Minister for
Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 643 (Gummow
J). See also 628 (Gleeson CJ and McHugh), 668 (Callinan J).
110 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24.
111 McDonald v Director-General of Social Security (1984) 6 ALD 6.
112 Abebe v Commonwealth (1999) 197 CLR 510 at 576; Appellant S v Minister for Immi-
gration and Multicultural Affairs (2004) 217 CLR 387.
113 (2003) 197 ALR 389 at [78].
114 (1936) 55 CLR 192 at 216 (Dixon J).
115 Briginshaw v Briginshaw (1938) 60 CLR 336.
116 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at
282.
117 Federal Court Act 1976 (Cth) s19(2).
118 Federal Court Act 1976 (Cth) s20(2).
119 Administrative Appeals Tribunal Act 1975 (Cth) s44(1).
120 Repatriation Commission v Thompson (1988) 82 ALR 352 at 357.
121 Comcare v Etheridge [2006] FCAFC 27 (Branson J, Spender and Nicholson JJ
agreeing).
122 Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321;
Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at [18].
123 Administrative Appeals Tribunal Act 1975 (Cth) s44(7)–(10).
124 Fox v Percy (2003) 214 CLR 118.
125 ibid, 124–5.
126 Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616
at 621 (Mason J).
127 Kerr Committee Report, n22 above, paras 297, 299.
128 Bland Committee Report, n24 above, para 172g.
129 J McMillan, ‘Review of Government Policy by Administrative Tribunals’ (1998) 9 Law
and Policy Papers (CPIL) 30–1.
130 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Re Drake and
Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
131 McMillian, n129 above, 31.
132 Administrative Decisions Tribunal Act 1997 (NSW) s64; Victorian Civil and Adminis-
trative Tribunal Act 1998 (Vic) s25(3); State Administrative Tribunal Act 2004 (WA)
s28.
133 Social Security (Administration) Act 1999 (Cth) Sch 3 item 2.
134 R Creyke, ‘The special place of tribunals in the system of justice: How can tribunals
make a difference?’ (2004) 15 Public Law Review 230.
135 Administrative Review Council, n32, above, para 6.3.
136 R Creyke and J McMillan, ‘Executive Perceptions of Administrative Law – An Empirical
Study’ (2002) 9 Australian Journal of Administrative Law 180 at 185–7.

Chapter 6
1 The primary focus of this chapter is the Commonwealth Ombudsman, but many
of the points are applicable to state Ombudsmen. At the end of the chapter, some
differences between the Commonwealth and state Ombudsmen are explored. The
terms ‘Ombudsman’ and ‘Ombudsmen’ are used interchangeably throughout this
chapter, whilst I prefer ‘Ombudsman’ many writers often use ‘Ombudsmen’.
2 ibid.
3 A Stuhmcke, ‘Privitisation and Corporatisation: What now for the Commonwealth
Ombudsman?’ (2003) 11 Australian Journal of Administrative Law 102. For an
extensive discussion on the relationship of Ombudsman to administrative justice in
Australia see M Groves, ‘Ombudsmen’s Jurisdiction in Prisons’ (2002) 28 Monash
University Law Review 183.
403
NOTES


4 R Snell, ‘Towards an Understanding of a Constitutional Misfit: Four Snapshots of the
Ombudsman Enigma’ in C Finn (ed), Sunrise or Sunset? Administrative Law in the New
Millennium (AIAL 2000) 189.
5 The Australian Ombudsman was not copied from Sweden, but instead drew from the
New Zealand model which was in turn based on the Danish model. See W Gelhorn,
Ombudsmen and Others: Citizens’ Protectors in Nine Countries (Harvard University Press,
1967) 102; and JE Lane, ‘The Ombudsman in Denmark and Norway’ in R Gregory and P
Giddings (eds), Righting Wrongs: The Ombudsman in Six Continents (IOS Press, 2000)
144.
6 R Creyke and J McMillan, ‘Administrative Law Assumptions . . . Then and Now’ in R
Creyke and J McMillan (eds), The Kerr Vision of Australian Administrative Law – At the
Twenty-Five Year Mark (Centre for International and Public Law, 1998) 34.
7 George Soros, Open Society: Reforming Global Capitalism (Little, Brown and Company,
2000) 30–1.
8 C Harlow and R Rawlings, Law and Administration (2nd edn, Butterworths, 1997) 399.
9 D Pearce, ‘The Jurisdiction of Australian Government Ombudsmen’ in M Groves (ed),
Law and Government in Australia (Federation Press, 2005) 110.
10 Groves, n3 above.
11 Stuhmcke, n3 above, 101–14.
12 Stuhmcke, n3 above, 102.
13 D Pearce, ‘The Commonwealth Ombudsman: The Right Office in the Wrong Place’
in R Creyke and J McMillan (eds), The Kerr Vision of Australian Administrative Law
– At the Twenty-Five Year Mark (Centre for International and Public Law, 1998)
54–9.
14 Stuhmcke, n3 above, 105.
15 Commonwealth Administrative Review Committee, Report (Parl Paper 144/1971) (‘the
Kerr Committee Report’) 95.
16 ibid, 93.
17 ibid.
18 ibid, 94.
19 Pearce, n13 above, 54–72. See also Snell, n4 above.
20 In most states there is some form of parliamentary oversight of, or relationship with,
the Ombudsman. A notable exception is Tasmania.
21 Committee on Administrative Discretions, Final Report (Parl Paper 361/1973) (‘the
Bland Committee Report’).
22 L Curtis, ‘The Vision Splendid: A Time for Re-Appraisal’ in R Creyke and J McMillan
(eds), The Kerr Vision of Australian Administrative Law – At the Twenty-Five Year Mark
(Centre for International and Public Law, 1998) 43.
23 Interim Report of the Committee on Administrative Discretions, Parl Paper
No 53/197.
24 P Bailey, ‘Practical Solutions For Practical Problems: Some Reflections on the Bland
Committee on Review of Administrative Discretions’ in R Creyke and J McMillan (eds),
The Kerr Vision of Australian Administrative Law – At the Twenty-Five Year Mark (Centre
for International and Public Law, 1998) 127–48.
25 ibid, 130–5.
26 Interim Report, n23 above, 3. Although the date and timing of the visit is uncertain.
27 C Bennett, ‘Understanding Ripple Effects: The Cross-National Adoption of Policy Instru-
ments for Bureaucratic Accountability’ (1977) Governance: An International Journal of
Policy and Administration 225–226. Bennett points out how important individuals like
Sir Guy Powles, first New Zealand Ombudsman, were in disseminating the general
efficacy and applicability of the Ombudsman concept.
28 Interim Report, n23 above, 1.
29 R Creyke and J McMillan, Control of Government Action: Text, Cases and Commentary
(LexisNexis Butterworths, 2005) 4.3.15.
30 ibid.
404 NOTES


31 Pearce, n13 above.
32 ibid, 58–9.
33 Harlow, n8 above, 399.
34 ibid, 431.
35 ibid, 427.
36 K del Villar, ‘Who Guards the Guardians? Recent Developments Concerning the Juris-
diction and Accountability of Ombudsmen’ (2003) 25 AIAL Forum 44.
37 Commonwealth Ombudsman and Defence Force Ombudsman, Annual Report (AGPS,
Canberra 1986–1987) 2.
38 Stuhmcke, n8 above, 109.
39 The decision to not grant the Commonwealth Ombudsman determinative powers
helped avoid the problem, at the federal level, that the Ombudsman could not have
been granted powers of a judicial nature.
40 See Stuhmcke, n8 above, 106–7, for an excellent survey of these statistics.
41 D Rowatt, ‘Why a Legislative Ombudsman is Desirable’ (1993) 11 Ombudsman Journal
131.
42 Pearce, n13 above, 64.
43 Stuhmcke, n8 above, 108.
44 Senate Standing Committee on Finance and Public Administration, Review of the Office
of the Commonwealth Ombudsman (Parl Paper 519/1992).
45 ibid, 16.
46 ibid, 19–20.
47 A Cameron, ‘Future Directions in Administrative Law: The Ombudsman’ in J McMillan
(ed), Administrative Law: Does the Public Benefit? (AIAL 1992) 205.
48 Senate Standing Committee, n44 above, 2.
49 ibid, 18.
50 ibid, 17.
51 ibid, 20.
52 ibid, 21–2.
53 ibid, 17.
54 The Ombudsmen in this period were Dennis Pearce 1988–1991; Alan Cameron 1991–
1993; Philippa Smith 1993–1998; Ron McLeod 1998–2003.
55 R Snell and E Langston, ‘Who Needs FOI When Market Mechanisms will Deliver
Accountability on Demand? A Critical Evaluation of the Relationship Between Free-
dom of Information and Government Business Enterprises’ (1999) 3 Flinders Journal
of Law Reform 215 at 217–21.
56 H Arthurs, ‘Mechanical Arts and Merchandise: Canadian Public Administration in the
New Economy’ (1997) 42 McGill Law Journal 29.
57 M Aronson, ‘A Public Lawyer’s Response to Privatisation and Outsourcing’ in M Taggert
(ed), The Province of Administrative Law (Hart Publishing 1997) 40; C Pitham and J
McMillan, ‘Who’s Got the Map? The Changing Landscape of National Law Enforce-
ment, Homeland Security and the Role of Administrative Accountability Bodies’ in
C Finn (ed), Shaping Administrative Law for the Next Generation: Fresh Perspectives
(AIAL, 2005) 165; C Downey, ‘Shifting Models of Accountability: The Consequences
for Administrative Law in the Rise of Contractualism in Social Security’ (2001) 30
AIAL Forum 28; M Allars, ‘Public administration in private hands’ (2005) 12 Australian
Journal of Administrative Law 126.
58 G Airo-Farulla, ‘Administrative Law and Governance’ in C Finn (ed), Sunrise or Sunset?
Administrative Law in the New Millennium (AIAL 2000) 268.
59 R Creyke and J McMillan, ‘Administrative Law Assumptions . . . Then and Now’ in R
Creyke and J McMillan (eds), The Kerr Vision of Australian Administrative Law – At the
Twenty-Five Year Mark (Centre for International and Public Law, 1998) 21.
60 Dennis Pearce had raised concerns about privatised and corporatised government
agencies and resort to private sector industry Ombudsman in his Commonwealth
Ombudsman and Defence Force Ombudsman Annual Report 1989–1990 (AGPS Can-
berra) 102.
405
NOTES


61 Cameron, n47 above, 211.
62 See Commonwealth Ombudsman and Defence Force Ombudsman, Annual Report
1993–1994 (AGPS Canberra) 2. In the Annual Report 1995–96, Chapter 2 was titled
‘The changing boundaries of government’.
63 R McLeod, ‘Twenty Five Years of the Commonwealth Ombudsman’ (2003) 36 AIAL
Forum 15.
64 Commonwealth Ombudsman, Annual Report 1994–95 (AGPS Canberra) 7.
65 ibid, 45.
66 ibid, 45. In the following year’s Annual Report Appendix A was devoted to detailing
Major Projects.
67 P McAloon, ‘When the Business of Business is Government: The Role of the Com-
monwealth Ombudsman and Administrative Law in a Corporatised and Privatised
Environment’ (1999) 23 AIAL Forum 44.
68 D Landa, ‘The Ombudsman Surviving and Thriving into the 2000s’ in Stephen Argu-
ment (ed), Administrative Law: Are the States Overtaking the Commonwealth? (AIAL,
1994) 91–2.
69 ibid, 94 citing DC Pearce, ‘The Ombudsman: Review and Preview: The Importance of
Being Different’ reproduced in International Ombudsman Institute, Fifth International
Ombudsman Conference Report, 29.
70 ibid, 95.
71 ibid, 96–103.
72 Commonwealth Ombudsman, Annual Report 2001–2002 (AGPS Canberra) 138.
73 ibid, 38.
74 ibid, 1.
75 The 1989–90 Annual Report showed a total of 77 staff. In 1996–1997 and 2001–2002
there were 88 staff.
76 B Barbour, ‘What are the Essential Features of an Ombudsman?’ in R Creyke and J
McMillan (eds), Administrative Law the Essentials (AIAL, 2002) 57.
77 Some exceptions include Re Reference (1979) 2 ALD 86, in which the Common-
wealth Ombudsman sought an advisory opinion (s11) and Kjavvadias v Commonwealth
Ombudsman (1984) 1 FCR 80 where a complainant sought access to documents.
78 (1995) 37 NSWLR 357.
79 ibid, 367–8.
80 [2003] TASSC 34.
81 (1995) 134 ALR 238. For a further discussion of judicial review of Ombudsman, see:
Pearce, n9 above, 121–32; Groves, n3 above; Creyke and McMillan, n29 above, 201–7.
82 McMillan had previously worked for the Commonwealth Ombudsman as a young inves-
tigator in 1979.
83 J McMillan, ‘Future Directions – The Ombudsman’ Address to the National AIAL Forum,
Canberra July 2005, available at <www.comb.gov.au/commonwealth/publish.nsf/
Content/research speeches 2005> [accessed 20 September 2006].
84 Pitham, n57 above, 166.
85 ibid, 170.
86 J McMillan, ‘The Ombudsman, Immigration and Beyond’, unpublished paper from an
address to IPAA Seminar, Canberra, 25 October 2005, 4.
87 J McMillan, the Ombudsman and the Rule of Law’, Address to the Public Law Weekend,
Canberra 5–6 November 2004, available at: <www.comb.gov.au/commonwealth/
publish.nsf/Content/research speeches 2004> [accessed 20 September 2006].
88 J McMillan, ‘Key Features and Strengths of the Ombudsman Model – National
Ombudsman Commission of Indonesia’ address to Indonesian Ombudsman Training
Seminars 22–25 June 2004, available at: <www.comb.gov.au/commonwealth/
publish.nsf/Content/research speeches 2004> [accessed 20 September 2006].
89 S Boyron, ‘The Rise of Mediation in Administrative Law Disputes: Experiences from
England, France and Germany’ [2006] Public Law 342.
90 McMillan, n86 above, 6.
91 ibid, 7.
406 NOTES


92 ibid, 5.
93 ibid, 4.
94 McMillan, n87 above, 4.
95 ibid, 6.
96 AJ Brown, Chaos or Coherence? Strengths, Opportunities and Challenges for Australia’s
Integrity Systems, National Integrity Systems Assessment Final Report (Griffith Uni-
versity, 2005) 32.
97 ibid, 35.
98 J McMillan, ‘Chaos or Coherence? Strengths and Opportunities and Challenges for
Australia’s Integrity Systems’ Speech Parliament House Sydney 9 December 2005.
99 Groves, n3 above.
100 Pearce, n9 above.
101 McMillan, n86 above, 2.
102 Pearce, n9 above, 138.
103 McMillan, n86 above, 2–3.
104 ibid, 3.
105 Pearce, n9 above, 138.
See <www.comb.gov.au> [accessed on 20 September 2006].
106
107 McMillan, n86 above, 4.
Chapter 7
1 See Egan v Willis (1998) 195 CLR 424 at 452; C Mantziaris, ‘Egan v Willis and
Egan v Chadwick: Responsible Government and Parliamentary Privilege’ Research
Paper 12 1999–2000 <http://www.aph.gov.au/LIBRARY/pubs/RP/1999–2000/
2000rp12.htm#exploration>. (Accessed 30 May 2006).
2 Health Records (Privacy and Access) Act 1997 (ACT), Privacy Act 1988 (Cth), Health
Records and Information Privacy Act 2002 (NSW), Privacy and Personal Information
Protection Act 1998 (NSW), Information Privacy Act 2000 (Vic), Health Records Act
2001 (Vic); Information Act 2002 (NT).
3 Territory Records Act 2002 (ACT), Archives Act 1983 (Cth), State Records Act 1998
(NSW), Public Records Act 2002 (Qld), State Records Act 1997 (SA), Archives Act 1983
(Tas), Public Records Act 1973 (Vic), State Records Act 2000 (WA). See also the Infor-
mation Act 2002 (NT) Part 9.
4 See, for example, the Public Access to Government Contracts Act 2000 (ACT).
5 S Lamble, ‘Freedom of Information, a Finnish Clergyman’s Gift to Democracy’ (2002)
97 FOI Review 2.
6 Freedom of Information Act 5 USC s552.
7 An article by Enid Campbell (E Campbell, ‘Public access to government documents’
(1967) 41 ALJ 73) played an important role in bringing the US legislation to the
attention of the Australian government: see Gough Whitlam’s Foreword to M Groves
(ed), Law and Government in Australia, 2005 at v–vi.
8 See Report of Interdepartmental Committee, Proposed Freedom of Information Legis-
lation, Australian Government Publishing Service, Canberra 1974; Cth Hansard, Sen-
ate, 5 December 1974, 3175; and Commonwealth ‘Policy Proposals for Freedom of
Information Legislation’, Australian Government Publishing Service, Canberra, 1976;
Cth Hansard, House of Representatives, 9 December 1976, 3577; Commonwealth of
Australia, Royal Commission on Australian Government Administration Report, Par-
liamentary Paper 185/1976; Senate Standing Committee on Constitutional and Legal
Affairs, Report on the Freedom of Information Bill 1978 and Aspects of the Archives Bill
1978, 1979.
9 Freedom of Information Amendment Act 1986 (Cth).
10 Freedom of Information Amendment Act 1991 (Cth).
11 Senate Standing Committee on Constitutional and Legal Affairs, Report on the Oper-
ation and Administration of the Freedom of Information Legislation, 1987.
407
NOTES


12 ARC/ALRC, Open Government: A Review of the Federal Freedom of Information Act 1982,
1995.
13 The Freedom of Information (Open Government) Bill 2003 (Cth) would, if enacted,
implement a small number of them. See also the Legal and Constitutional Affairs
Committee, Inquiry into the Freedom of Information Amendment (Open Government)
Bill 2000.
14 See, for example, Accident Compensation Commission v Croom [1991] 2 VR 322.
15 (1986) 67 ALR 58.
16 See also Arnold v The State of Queensland and the Australian National Parks and Wildlife
Service (1987) 13 ALD 195; P Bayne, ‘The Objects of the Freedom of Information
(FOI) Acts and their Interpretation’ (1995) 2 Australian Journal of Administrative Law
114.
17 See R Snell, ‘The Kiwi Paradox: A Comparison of Freedom of Information in Australia
and New Zealand’ (2000) 28 Federal Law Review 575.
18 Re Wertheim and Department of Health (1984) 7 ALD 121.
19 Re Mann and Capital Territory Health Commission (No 2) (1983) 5 ALN N368.
20 Re O’Grady and Australian Federal Police (1983) 5 ALN N420.
21 See Re Brennan and the Law Society of the ACT (1984) 6 ALD 428.
22 The Archives Act provides an access regime for documents which are more than thirty
years old.
23 Section 9 includes an exception for certain exempt matters.
24 See Formosa v Secretary, Department of Social Security (1988) 46 FCR 117.
25 This has been accepted as extending to children. However, see Wallace v Health Com-
mission of Victoria [1985] VR 403 concerning the issue of lack of capacity to make a
request.
26 For example, Re Hanbury-Sparrow and Department of Foreign Affairs (1997) 47 ALD
779. See further, M Paterson, ‘Freedom of Information and Privacy: A Reasonable
Balance?’ (1992) 66 Law Institute Journal 1001; M Paterson, Freedom of Information
and Privacy in Australia (2005, Lexis Nexis) [5.33]–[5.36].
27 See also s15A regarding access to personnel records.
28 See s15(5) and (6).
29 See ss26A, 27 and 27A.
30 Consultation is required only where there are in place procedures for consulting with
that government.
31 Sections 26(2), 34(4) and 35(4). These address the situation where acknowledgement
that a document exists may be sufficient to reveal information which would otherwise
be exempt. See further M Paterson, Freedom of Information and Privacy in Australia,
n26 above [3.59]–[3.61].
32 Re McKinnon (Cth AAT, 12 December 1995, unreported). A Cossins, Annotated Free-
dom of Information Act New South Wales, LBC Information Services, Sydney, 1997, at
[66.1.1]. See also Ainsworth v Burden (2003) 56 NSWLR 620.
33 See s24A.
34 See, for example, Re SRB and Department of Health, Housing, Local Government and
Community Services (1994) 14 AAR 178 at 187.
35 It must, however, be apparent from the nature of the documents described that no
obligation would arise to grant access to edited copies of them or that the applicant
would not wish to have access to edited copies of them
36 Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190. It should be noted
that the latter words should not be understood as a paraphrase of the former but rather
‘as drawing an emphatic comparison’: see McKinnon v Secretary, Department of Treasury
[2006] HCA 45, at [61] per (Hayne J).
37 Re Connelly and Department of Finance (1994) 34 ALD 655.
38 Harris v Australian Broadcasting Corporation (1983) 50 ALR 551.
39 Ascic v Australian Federal Police (1986) 11 ALN N184.
408 NOTES


40 Re Rae and Department of Prime Minister and Cabinet (1986) 122 ALD 589 at 606; Re
Heaney and Public Service Board (1984) 6 ALD 310 at 323; Re Lawless and Secretary,
Law Department (1985) 1 VAR 42 at 49.
41 Re Lianos and Secretary, Department of Social Security (1985) 7 ALD 475 at 500–1; Re
Downie (1985) 8 ALD 496 at [172]–[173]; Re Birrell and Department of Premier and
Cabinet (Nos 1 and 2) (1986) 1 VAR 230 at 240–1.
42 Re Lianos and Secretary, Department of Social Security (No 2) (1985) 9 ALD 43 at 49;
Re Young and State Insurance Office (1986) 1 VAR 267.
43 For a useful critique of their operation see R Snell, ‘Conclusive or Ministerial Certifi-
cates: An Almost Invisible Blight in FOI Practice’ (2004) 109 FOI Review 9.
44 For a useful critique of their operations see R Snell, ‘Conclusive or Ministerial Certifi-
cates: An Almost Invisible Blight in FOI Practice’ (2004) 109 FOI Review 9.
45 See further JW Shaw, ‘The Established Principles of Cabinet Government’ (2001) 73
The Australian Quarterly 21.
46 Material may be purely factual even though it is not confined to primary facts: see
Harris v Australian Broadcasting Corporation (1984) 1 FCR 150 at 155.
47 Re Anderson and Department of the Special Minister of State (No 2) (1986) 4 AAR 414.
48 Gersten v Minister for Immigration and Multicultural Affairs 61 ALD 445 at 448.
49 See Re Milliss and National Archives of Australia [2000] AATA 565 at [21]–[22].
50 Re Waterford and Department of Treasury (No 2) (1984) 5 ALD 588 at 606–7.
51 See, for example, S Zifcak, ‘Freedom of Information: Torchlight but not Searchlight’,
(1991) 66 Canberra Bulletin of Public Administration 162; P Bayne and K Rubenstein,
‘Freedom of Information: A return to basics?’ (1994) 1 Australian Journal of Adminis-
trative Law 107; Australian Law Reform Commission, Open Government: A Review of
the Federal Freedom of Information Act 1982, Report No 77 (ALRC, Canberra, 1995)
[9.16]. See also General Manager, WorkCover Authority of NSW v Law Society of NSW
[2006] NSWCA 84 in which the NSW Court of Appeal stressed that an equivalent pro-
vision in the Freedom of Information Act 1989 (NSW) should not be constrained by the
application of rigid rules or formulaic recourse to the Howard factors.
52 (1985) 7 ALD 645.
53 See Re Fewster and Department of Prime Minister and Cabinet (No 2) (1987) 13 ALD
139, Re Bartlett and Department of Prime Minister and Cabinet (1987) 12 ALD 659, Re
Kamminga and Australian National University (1992) 26 ALD 585.
54 See the discussion of McKinnon v Secretary, Department of Treasury [2006] HCA 45 at
pp 132 below.
55 Department of Health v Jephcott (1985) 62 ALR 421.
56 See Re Redfern and University of Canberra (1995) 38 ALD 457; Re Ascic and Australian
Federal Police (1986) 11 ALN N184.
57 See Re Public Interest Advocacy Centre and Department of Community Services (No 2) 14
AAR 180.
58 See Re Brennan and Law Society of the Australian Capital Territory (No 2) (1985) 8 ALD
10.
59 See Re Telstra Australia Ltd and Australian Competition and Consumer Commission
[2000] AATA 71; Re Sherrington and Merit Protection and Review Agency (1996) 62
FOI Review 23.
60 (1991) 29 FCR 429.
61 Re Page v Metropolitan Transit Authority (1988) 2 VAR 243, 245–6. See also Re Chandra
and Minister for Immigration and Ethnic Affairs (1984) 6 ALN N257 at N259; Re Pinder
and Medical Practitioners Board (1996) 10 VAR 75 at 81.
62 (1999) 201 CLR 49. See Commonwealth of Australia v Dutton (2000) 102 FCR 168 at
169.
63 Waterford v Commonwealth (1987) 163 CLR 54 at 63–4.
64 (1992) 36 FCR 111 at 119.
409
NOTES


65 Secretary, Department of Workplace Relations and Small Business v Small Business and
Staff Development and Training Centre Pty Ltd (2001) 114 FCR 301, 309.
66 See Searle Australia v Public Interest Advocacy Centre (1992) 36 FCR 111 at 125.
67 (1987) 14 FCR 434 at 443.
68 Department of Health v Jephcott (1985) FCR 85 at 89.
69 See further M Paterson, ‘Commercial in Confidence and public accountability: Achiev-
ing a new balance in the contract State’ (2004) 32 Australian Business Law Review
315.
70 Section 34A.
71 Section 44.
72 Section 46.
73 Section 47.
74 Section 47A.
75 See, for example, Re Sime and Minister for Immigration and Ethnic Affairs (1995) 21
AAR 369.
76 Section 58(2) and (6).
77 Section 63.
78 Section 64.
79 See s66.
80 It must be constituted exclusively by presidential members: s58B(2).
81 [2006] HCA 45. The court’s decision has attracted criticism on the basis that it
failed to give adequate weight to the objectives of the Act and ‘give governments
fresh impetus to suppress information that is embarrassing or politically incon-
venient’: see Australian Press Council, General Press Release No 72 accessed at
<www.presscouncil.org.au/pcsite/activities/guides/gpr272.html>.
82 [2006] HCA 45 at [131].
83 [2006] HCA 45 at [56].
84 [2006] HCA 45 at [60].
85 [2006] HCA 45 at [19].
86 See s58A.
87 See, for example, Harris v Australian Broadcasting Corporation (1983) 50 ALR 551. The
existence of statutory rights to appeal FOI decisions does, however, provide a strong
reason for a court exercising supervisory jurisdiction to decline relief on discretionary
grounds.
88 J McMillan, ‘Twenty years of open government – what have we learnt?’ Inau-
gural Professorial Address, delivered on 4 March 2002 <http://eprints.anu.
edu.au/archive/00001463/>, (accessed 30 May 2006); R Fraser, ‘Where to Next with
the FOI Act? The Need for FOI Renewal – Digging In, Not Giving Up’ (2003) 38 AIAL
Forum 57.
89 See further M Paterson, ‘Transparency in the Modern State: Happy Birthday FOI or
Commiserations?’ (2004) 29 Alternative Law Journal 10–14; R Snell, ‘Administrative
Compliance: Evaluating the Effectiveness of Freedom of Information’ (2001) 93 FOI
Review 26.
90 See M Paterson, ‘Transparency in the Modern State: Happy Birthday FOI or Commiser-
ations?’ (2004) 29 Alternative Law Journal 10; Commonwealth Ombudsman, Scrutin-
ising Government: Administration of the Freedom of Information Act 1982 in Australian
Government Agencies Report (2006).
91 See Paterson, n26 above [2.18] and [12.16]; R Snell, ‘Who Needs FOI when Mar-
ket Mechanisms will Deliver Accountability on Demand? A Critical Evaluation of the
Relationship between Freedom of Information and Government Business Enterprises?’
(1999) 3 Flinders Journal of Law Reform 215.
92 See R Snell, ‘Administrative Compliance – evaluating the effectiveness of freedom of
information’ (2001) 93 FOI Review 26.
410 NOTES


93 Freedom of Information Act 1989 (ACT); Freedom of Information Act 1989 (NSW); Infor-
mation Act 2002 (NT); Freedom of Information Act 1992 (Qld); Freedom of Information
Act 1991 (SA); Freedom of Information Act 1991 (Tas); Freedom of Information Act 1982
(Vic); Freedom of Information Act 1992 (WA). For a detailed overview of the relevant
State and Territory laws see Halsbury’s Laws of Australia (LexisNexis/Butterworths)
Chapter 10(2), Freedom of Information.


Chapter 8
1 (May, 2000) at 3–4.
2 The New Despotism (1932).
3 ibid, 21.
4 See Senate Standing Committee for the Scrutiny of Bills, Second Report of 2006 (2006)
36–43.
5 Henry VIII clauses are discussed in DC Pearce and S Argument, Delegated Legislation
in Australia (3rd edn) (2005, LexisNexis) [1.8], [1.20] and [19.8].
6 Legislation Act 2001 (ACT) s9.
7 Subordinate Legislation Act 1978 (SA) s4; Interpretation Act (NT) s61.
8 Statutory Instruments Act 1992 (Qld) s7.
9 Subordinate Legislation Act 1989 (NSW) s3; Subordinate Legislation Act 1994 (Vic) s3;
Statutory Instruments Act 1992 (Qld) s8.
10 Legislation Act 2001 (ACT) s8.
11 Statutory Instruments Act 1992 (Qld) s9; Subordinate Legislation Act 1992 (Tas) s3.
12 Interpretation Act 1984 (WA) s5.
13 See, generally, Pearce and Argument, n5 above, at [1.11] to [1.18]. See also S Argu-
ment, ‘Quasi-legislation: Greasy pig, Trojan Horse or unruly child?’ (1994) 1 Australian
Journal of Administrative Law 144.
The register can be viewed at <www.frli.gov.au>.
14
15 [2004] FCA 1701 at [41].
16 Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 and RG Capital Radio Ltd
v Australian Broadcasting Authority (2001) 185 ALR 573.
17 McWilliam v Civil Aviation Safety Authority [2004] FCA 1701 at [39].
18 ibid, [41].
19 ibid, [42].
20 (2001) 185 ALR 573.
21 ibid, 580.
22 ibid, 588.
23 ibid, 581–2.
24 (1988) 16 ALD 440 at 456–7.
25 RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 185 ALR 573 at 582–4.
26 ibid.
27 ibid, 584.
28 ibid, 584–5.
29 ibid, 585.
30 ibid, 585–6.
31 ibid, 586.
32 ibid, 587.
33 ibid, 587.
34 ibid, 589.
35 Pearce and Argument, n5 above, 392.
36 (1928) 41 CLR 275.
37 ibid, 279.
38 [1994] 1 Qd R 314.
39 ibid, 321.
411
NOTES


Chapter 9
1 Lindell identifies three major senses of the non-justiciability of political questions. See
G Lindell: ‘The Justiciability of Political Questions: Recent Developments’ in HP Lee
and G Winterton (eds), Australian Constitutional Perspectives (Law Book Company,
1991) 180–250 at 183.
2 See Xenophon v State of South Australia (2000) 78 SASR 25, where the granting of an
indemnity to ministers for their costs and potential liabilities in a defamation action
brought by Mr Xenophon was held to be non-justiciable.
3 See, for example, Horta v Commonwealth (1994) 181 CLR 183; Attorney General (UK)
v Heinemann Publishers (Spycatcher) (1988) 165 CLR 30.
4 A Mason, ‘The High Court as Gatekeeper’ (2000) 24 University of Melbourne Law Review
784.
5 Lon Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353
at 395.
6 J Jowell, ‘The Legal Control of Administrative Discretion’ [1973] Public Law 178 at 213.
7 Case of Impositions (Bates case) (1610) 2 State Tr 371.
8 Prohibitions del Roy (1607) 12 Co. Rep. 63; K and L 108.
9 Case of Proclamations (1610) 77 ER 1352; 1611 12 Co. Rep. 74; K and L 110.
10 ibid 1354.
11 However, existing prerogatives can evolve over time. In R v Secretary of State for the
Home Department, ex parte Northumbria Police Authority [1988] 1 All ER 556, the power
to declare war and make peace was held to have evolved to include the power to ‘keep’
the peace. This allowed Police use of CS gas despite concurrent statutory authority
(the Police Act 1964 (Eng)) for this.
12 Case of Ship Money; R v Hampden (1637) 3 State Tr 826.
13 R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864.
14 Laker Airways v Dept of Trade [1977] QB 643.
15 Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 408.
16 ibid, 409.
17 ibid, 410.
18 ibid, 418.
19 R v Secretary of State for the Home Department; Ex parte Bentley [1993] 4 All ER 442.
20 [1996] 1 AC 527.
21 (1998) 72 SASR 110.
22 Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] 2
WLR 1219.
23 R v Secretary of State for Foreign and Commonwealth Affairs; ex parte Bancoult [2006]
EWHC 1038.
24 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170.
25 (1982) 151 CLR 342.
26 (1987) 163 CLR 378.
27 Minister for Arts, Heritage and Environment v Peko-Wallsend (1987) 75 ALR 219. An
application for special leave to appeal to the High Court in this matter was refused.
28 F Wheeler, ‘Judicial Review of Prerogative Power in Australia: Issues and Prospects’
(1992) 14 Sydney Law Review 432.
29 See the discussion of Ex parte Bentley and the Bancoult litigation above.
30 (1985) 157 CLR 91.
31 Macrae and others v Attorney-General (NSW) (1987) 9 NSWLR 286.
32 Waters v Acting Administrator of the Northern Territory (1994) 119 ALR 557.
33 Re Ditfort; ex parte Deputy Commissioner of Taxation (NSW) (1988) 83 ALR 265.
34 ibid, 288–9.
35 Baker v Carr 369 US 186, 287 (1962).
36 For an extended development of this argument, see C Finn, ‘The Justiciability of Admin-
istrative Decisions: A Redundant Concept?’ (2002) 30 Federal Law Review 239.
412 NOTES


Chapter 10
1 Allan v Transurban City Link Ltd (2001) 208 CLR 167 at 174 (Gleeson CJ, Gaudron,
Gummow, Hayne and Callinan JJ).
2 Bateman’s Bay Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd
(1998) 194 CLR 247 at 279–80 (McHugh J).
3 Robinson v Western Australian Museum (1977) 138 CLR 283 at 327–8 (Mason J).
4 Judiciary Act 1903 (Cth) s78A.
5 Bateman’s Bay Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd
(1998) 194 CLR 247 at 258–9 (Gaudron, Gummow and Kirby JJ), 276 (McHugh J).
6 In Re McBain; Ex parte Catholic Bishops Conference (2002) 209 CLR 372 at 409, Gaudron
and Gummow JJ considered if an Attorney-General were to seek a declaration that a
Commonwealth law should be given a restrictive interpretation whose effect would be
to save a state law from invalidity under Constitution s109, the Attorney-General would
not be maintaining ‘a particular right, power or immunity in which he was concerned’,
and that as a result, the application would not be a ‘matter’.
7 Bateman’s Bay Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd
(1998) 194 CLR 247 at 259 (Gaudron, Gummow and Kirby JJ), 276 (McHugh J).
8 In McBain, for instance, the fiat was granted on condition that the relator not argue
that the Commonwealth legislation was unconstitutional: see at 401 (Gaudron and
Gummow JJ) for the wording of the fiat.
9 Barton v R (1980) 147 CLR 75 at 90–1; Bateman’s Bay Aboriginal Land Council v Aborigi-
nal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 258–9 (Gaudron, Gummow
and Kirby JJ), 276 (McHugh J); Re McBain; Ex parte Catholic Bishops Conference (2002)
209 CLR 372 at 473 (Hayne J).
10 Re McBain; Ex parte Catholic Bishops Conference (2002) 209 CLR 372 at 400–3 (Gaudron
and Gummow JJ; 473–5 (Hayne J), 451–2 (Kirby J).
11 Australian Law Reform Commission, Standing in public interest litigation (AGPS, 1985),
88–95.
12 Bateman’s Bay Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd
(1998) 194 CLR 247 at 262–3 (Gaudron, Gummow and Kirby JJ). McHugh J noted
views to this effect at 278–9, but argued that reform of standing law was a matter for
the legislature.
13 [1903] 1 Ch 109.
14 (1980) 146 CLR 493.
15 ibid, 532–3 (Gibbs J), 546–7 (Stephen J), 552 (Mason J).
16 ibid, 527–8 (Gibbs J), 547 (Mason J). Stephen J did not expressly consider whether
this more liberal interpretation should be applied.
17 ibid, 530.
18 ibid, 539.
19 ibid, 547.
20 ibid, 548.
21 ibid, 531.
22 ibid, 539. Mason J did not expressly address this issue, but acceptance of it is implicit
in his judgment.
23 Stephen J and Mason J did not advert to this.
24 ibid, 531–2 (Gibbs J), 540–6 (Stephen J); 547 (Mason J).
25 (1981) 149 CLR 27.
26 Aickin J considered that the state of the evidence was such that the applicants for the
striking out order had not shown that the plaintiffs lacked standing, but he considered
that it was possible that at a full hearing, they might nonetheless succeed: ibid, 56–7.
27 ibid, 36–7 (Gibbs CJ), 42 (Stephen J), 62, 63 (Wilson J, with whom Aickin J agreed).
The judgments of Murphy J and Brennan J do not advert expressly to this consideration,
but it is implicit in Brennan J’s analysis of the law: at 74–6.
28 ibid, 42 (Stephen J).
413
NOTES


29 ibid, 37. See too Stephen J (at 41–2).
30 ibid, at 36, 42, 77 (respectively). Murphy J seems to have taken it for granted that any
religious interests would suffice to ground standing, and saw no reason why Aboriginal
beliefs should not be accorded the same respect as Judaeo-Christian beliefs: at 46.
31 ibid, 62.
32 ibid, 42.
33 (1998) 194 CLR 247.
34 Bateman’s Bay Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd
(1998) 194 CLR 247 at 275–83 (McHugh J, arguing that there are powerful arguments
for restricted standing), 284–5 (Hayne J, agnostic).
35 (1998) 194 CLR 247, 263.
36 [1978] AC 435.
37 ibid, 266 (citations omitted).
38 See Bruce Dyer, ‘Costs, standing and access to judicial review’ (1999) 23 AIAL Forum
1, 11–15.
39 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
40 It could limit standing in cases where the alleged error was non-jurisdictional, but
courts have been disinclined to treat legally flawed administrative decisions as non-
jurisdictional.
41 See Kirby J’s observations in Re McBain; Ex parte Catholic Bishops Conference (2002)
209 CLR 372 at 393 (Kirby J), and Truth About Motorways Pty Ltd v Macquarie Infras-
tructure Investment Management Ltd (2000) 200 CLR 591 at 642; and see, for example,
Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director, Department of Con-
servation and Land Management (SC WA, Parker J, 9 August 1995); Criminal Justice
Commission v Queensland Advocacy Incorporated [1996] 2 Qd R 118 at 123 (Macrossan
CJ), and see Davies JA, 128; North Coast Environment Council Inc v Minister for Resources
(1994) 55 FCR 492 at 502 (Sackville J); Right to Life Association (NSW) Inc v Secretary,
Department of Human Services and Health (1996) 56 FCR 50 at 64–5 (Lockhart J); North
Queensland Conservation Council [2000] QSC 172 at [8], [12]–[15], [17] (Chesterman
J).
42 Australian Foreman Stevedores Association v Crone (1980) 98 ALR 276; Yates Security
Services Pty Ltd v Keating (1990) 25 FCR 1; Nolan v Development Allowance Authority
(unreported, Federal Court, Goldberg J, 4 February 1997); Maritime Union of Australia
v Minister for Transport and Regional Services (2000) 100 FCR 58.
43 Friends of Castle Hill Association Inc v Queensland Heritage Council (1993) 81 LGERA
346 (which seems a borderline case which arguably should have gone the other way);
Defence Coalition Against RCD Inc v Minister for Primary Industry and Energy (1997) 74
FCR 142; Cameron v Human Rights and Equal Opportunity Commission (1993) 46 FCR
509; Robinson v South East Queensland Indigenous Regional council of the Aboriginal
and Torres Strait Islander Commission (1996) 70 FCR 212.
44 This principle antedated ACF: see, for example, Sinclair v Mining Warden at Marybor-
ough (1975) 132 CLR 473. Post-ACF decisions include: Australian Conservation Founda-
tion v Environmental Protection Appeal Board [1983] VR 385; Australian Conservation
Foundation v South Australia (1990) 53 SASR 349; Australian Conservation Foundation
v Forestry Commission (1988) 19 FCR 127; Australian Institute of Marine and Power Engi-
neers v Secretary, Department of Transport (1986) 71 ALR 73; Queensland Newsagents
Federation Ltd v Trade Practices Commission; Ex parte Newsagency Council of Victoria Ltd
(1993) 118 ALR 527. And see United States Tobacco Co v Minister for Consumer Affairs
(1988) 83 ALR 79 (which recognised that such a right could also ground an application
to be joined as a party in a case where the applicant’s success would have defeated such
a right).
45 Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64; Australian
Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13
FCR 124; Bropho v Tickner (1993) 40 FCR 165; Pharmacy Guild of Australia v Community
414 NOTES


Pharmacy Authority (1996) 70 FCR 462 (a case in which those plaintiffs whose interests
were less directly affected by the decision under challenge were held not to have
standing).
46 Ex parte Helena Valley/Boya Association (Inc); State Planning Commission and Beggs
(1990) 2 WAR 422. In Bridgetown/Greenbushes Friends of the Forest Inc v Executive
Director of Conservation and Land Management (1997) 18 WAR 102 and North Coast
Environment Council (1994) 55 FCR 492, the directness of the relationship between
the members’ interests and the area affected was only one of the matters regarded as
relevant.
47 See for instance Byron Environmental Centre Inc v Arakwal People (1998) 78 FCR 1.
48 See for instance Margaret Allars, ‘Standing: the role and evolution of the test’ (1991)
20 Federal Law Review 83; Michael L Barker, ‘Standing to sue in public interest envi-
ronmental litigation – from ACF v Commonwealth to Tasmanian Trust v Minister for
Resources’ (1996) 13 Environmental and Planning Law Journal 186.
49 Australian Conservation Foundation v South Australia (1990) 53 SASR 353; Bridgetown
Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Man-
agement (1997) 18 WAR 102 at 114; North Australian Aboriginal Legal Aid Service Inc v
Bradley (2001) 192 ALR 625.
50 (1987) 13 FCR 306.
51 (1994) 55 FCR 492 at 510.
52 (1989) 19 ALD 70.
53 ibid, 74.
54 Jeffrey Barnes, ‘Administrative law’ (1990) 18 Australian Business Law Review 338.
55 (1994) 55 FCR 492.
56 (1994) 52 FCR 201 (Lindgren J), (1995) 56 FCR 50 (Full Court).
57 [2000] QSC 172
58 (1987) 13 FCR 306.
59 ibid, 308.
60 (1989) 19 ALD 71 at 74.
61 Rayjon Properties Pty Ltd v Director-General, Department of Housing, Local Government
and Planning [1995] 2 Qd R 559; Big Country Developments Pty Ltd v Australian Commu-
nity Pharmacy Authority (1995) 60 FCR 85; BGL Corporate Solutions Pty Ltd v Australian
Prudential Regulation Authority [1999] FCA 420; Chilcott v Medical Registration Board
of Queensland [2002] ASC 118.
62 Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250.
63 (1994) 52 FCR 201 at 226.
64 (1995) 56 FCR 50 at 83.
65 ibid, 68.
66 Allan v Development Allowance Authority (1998) 80 FCR 583 at 588 (Wilcox J with
whom Finn J agreed). See too Transurban Citylink Ltd v Allan (1999) 95 FCR 553 at
566.
67 At issue in Allan was whether Allan had standing to seek administrative review, and
this clearly does depend on the legislation which purportedly confers the right.
68 (1995) 55 FCR 492 at 509–10; (1995) 56 FCR 50 at 85–6.
69 [1996] 1 Qd R 310.
70 [2000] QSC 172
71 ibid, [12].
72 Save Bell Park Group v Kennedy [2002] QSC 174.
73 The North Queensland approach was rejected in Save The Ridge Incorporated v Australian
Capital Territory (2004) 182 FLR 155 at [18] (Crispin J).
74 (1980) 146 CLR 493 at 509.
75 ibid, 547.
76 Bateman’s Bay Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd
(1998) 194 CLR 247 at 263 (Gaudron, Gummow and Kirby JJ, citing prohibition under
415
NOTES


s75(v)); cf McHugh J (275); Truth About Motorways Pty Ltd v Macquarie Infrastructure
Investment Management Ltd (2000) 200 CLR 591 at 599 (Gleeson CJ and McHugh J,
citing s75(v) prohibition and habeas corpus), 627–8 (Gummow J, prohibition, habeas
corpus, quo warranto), 652–3 (Kirby J, prohibition, certiorari, habeas corpus), 669–
70 (Callinan J, certiorari, prohibition, habeas corpus, quo warranto); Re McBain; Ex
parte Catholic Bishops Conference (2002) 209 CLR 372 at 394–5 (Gleeson CJ), 413–15
(McHugh J), 464–5 (Hayne J) (Gleeson CJ and Hayne J appeared to consider that
strangers could only seek certiorari for jurisdictional error; McHugh J considered that
they could also could seek certiorari for non-jurisdictional error on the face of the
record).
77 Unreported, ACT Supreme Court, 23 June 1998.
78 M Aronson, B Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd
edn, Lawbook Co, 2004) 675–9.
79 Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64; Australian
Institute of Marine and Power Engineers (1986) 13 FCR 124 at 132–3 (Gummow J) (who
considered that the ADJR requirement closely resembled the standing requirements
for ‘equitable’ orders, and for certiorari ex debito iustitiae; Ogle v Strickland (1987) 13
FCR 306 (where the Full Court concluded that the ADJR test was no less liberal than
the ‘special interest’ test); Friends of Castle Hill Association Inc v Queensland Heritage
Council (1993) 81 LGERA 346 (Judicial Review Act 1991 (Qld)); Bropho v Tickner (1993)
40 FCR 165 at 174; Byron Environmental Centre Inc v The Arakwal People (1998) 78 FCR
1 at 33 (Merkel J); Right to Life Association (NSW) Inc v Secretary, Commonwealth
Department of Human Services and Health (1994) 125 ALR 337; Maritime Union of
Australia v Minister for Transport and Regional Services (2000) 175 ALR 411.
80 In North Coast, Sackville J stated that ‘the law, at least for the purposes of the ADJR
Act, appears to be in a state of transition’, but later, he stated that ‘it has never been
held that the principles governing the award of declarations and injunctions under
the general law have been superseded by different and broader conceptions under the
ADJR Act’: (1994) 55 FCR 492 at 502, 511–2.
81 See Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management
Ltd (2000) 200 CLR 591 at 640–2 (Kirby J) for a comprehensive survey of the formulae
used to confer standing under Commonwealth legislation, including formulae which
relax standing requirements. See too Barker n48, 202–4.
82 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd
(2000) 200 CLR 591.
83 The test for the AAT is that the person’s ‘interests are affected’: Administrative Appeals
Tribunal Act 1975 (Cth) s27(1). As to this being similar to other tests, see for example
Ogle v Strickland (1987) 13 FCR 306 at 309–11 (Lockhart J); United States Tobacco Co v
Minister for Consumer Affairs (1988) 83 ALR 79 at 88–9. Standing to make applications
and appeals to the Victorian Civil and Administrative Appeals Tribunal is governed
by the legislation which confers the relevant jurisdiction on VCAT: Victorian Civil and
Administrative Tribunal Act 1998 (Vic) ss43, 45.
84 AAT Act 1975 (Cth) s27(2). See too the broad definition of ‘interests are affected’ in the
VCAT Act 1998 (Vic) s5. (This applies whenever an enabling Act conditions the right
to appeal on whether a person’s interest are affected.)
85 Export Control (Unprocessed Wood) Regulations (Cth) r16 (applicant for licence may
appeal to AAT for review of a decision to refuse a licence or impose conditions).
86 Fisheries Act 1959 (Tas) ss18, 23C (see Re v Dixon; Ex parte Ridler (1993) 31 ALD 531).
87 See for example National Registration Authority v Deputy President Barnett (unreported,
Federal Court of Australia, Carr J, 8 May 1998).
88 See , for example, Alphapharm (where the test was whether an appellant’s ‘interests are
affected’); Criminal Justice Commission v Queensland Advocacy Incorporated [1996] 2
Qd R 118; Transurban City Link Ltd v Allan (2001) 208 CLR 167; Brisbane Airport
Corporation Ltd v Deputy President Wright [2002] FCA 359.
416 NOTES


Chapter 11
1 (1986) 159 CLR 656 at 670 (emphasis added).
2 1[2006] EWCA Civ 397 at [77].
3 1[2002] 1 WLR 2409 at 2417.
4 R v Secretary of State for Home Department; Ex parte Mohammed Fayed [1996] EWCA
Civ 946.
5 R Creyke and J McMillan, Control of Government Action: Text, Cases and Commentary
(LexisNexis Butterworths, 2005) [18.2.4].
6 See pp. 216–230.
7 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.
8 See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme
(2003) 216 CLR 212 at 242 (Kirby J); SA de Smith, H Woolf and J Jowell, Judicial Review
of Administrative Action (5th edn, Sweet and Maxwell, 1995) 459; M Aronson, B Dyer
and M Groves, Judicial Review of Administrative Action (3rd edn, Law Book Co, 2004)
554; R Douglas, Administrative Law (2nd edn, Butterworths LexisNexis, 2004) 241–
2; Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447 at 463
(Kirby J).
9 See, for example, Administrative Review Council, Third Annual Report 1979 (AGPS,
1979) Appendix II, 58; Administrative Review Council, Better Decisions: Review of Com-
monwealth Merits Review Tribunals (Report No 39 (1995).
10 De Smith, n8 above, 459.
11 Kirby J called this promoting ‘public confidence in the administrative process’: Osmond
[1984] 3 NSWLR 447 at 463; Douglas labelled various aspects as ‘[a] safeguard of sound
administration’: n8 above, 241.
12 E Campbell and M Groves, ‘Polycentricity in Administrative Decision-making’ in M
Groves (ed), Law and Government in Australia (Federation Press, 2005) 213.
13 G A Flick, Natural Justice: Principles and Practical Applications(2nd edn, Butterworths,
1984) 120.
14 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 266
(Brennan CJ, Toohey, McHugh and Gummow JJ).
15 ibid.
16 See also R Douglas, Douglas and Jones’s Administrative Law – Commentary and Materi-
als (5th edn, Federation Press, 2006) 144–6; D O’Brien, ‘The Impact of Administrative
Review on Commonwealth Public Administration’ in M Harris and V Waye, Adminis-
trative Law (Federation Press, 1991) 111.
17 See n8 above at 464 (Kirby J).
18 Campbell and Groves, n12 above.
19 See state counterparts at n23 below.
20 AAT Act, s28. AAT itself must provide reasons upon request.
21 Under the ADJR Act, the reviewable decision must be made ‘under an enactment’:
Australian National University v Burns (1982) 64 FLR 166, and Griffith University v
Tang (2005) 221 CLR 99.
22 See ‘Role of Reasons’ above.
23 See judicial review legislation: ADJR Act, s13; Administrative Law Act 1978 (Vic) (ALA)
s8; Administrative Decisions (Judicial Review) Act 1989 (ACT) (ACTADJR Act) s13;
Judicial Review Act 1991 (Qld) (JRAQ) ss32, 33; Judicial Review Act 2000 (Tas) (JRAT)
ss29, 30; see appeals tribunals legislation: AAT Act, s28; Administrative Appeals Tri-
bunal Act 1989 (ACT) (ACTAATAct) s28; Administrative Decisions Tribunal Act 1997
(NSW) (ADTANSW) ss49, 50; the Victorian Civil Administrative Tribunal Act 1998
(Vic) (VCATA) s45; Magistrates Courts (Administrative Appeals Division) Act 2001 (Tas)
(AADT) ss13, 14; State Administrative Tribunal Act 2004 (WA) (SATWA) s21.
24 Usually as soon as practicable and within twenty-eight days: ADJR Act s13(2);
ACTADJR Act, s13(2); JRAQ s33(1); JRAT s30(1) (note ALA, s8(3) ‘reasonable time’);
417
NOTES


AAT and ACTAAT Acts, s28(1); ADTANSW s49(2); VCATA s46(1); AADT s13(2);
SATWA s21(4).
25 See ADJR and ACTADJR Acts s13(1); JRAQ ss3, 34; JRAT ss3, 31; (cf ALA specifies
‘reasons’ only: s8(1); note procedure to compel adequate reasons, s8(4)); AAT and
ACTAAT Acts s28(1); ADTANSW s49(3); VCATA s46(2); AADT s13(3); SATWA s21(5).
Note also s25D of Acts Interpretation Act 1901 (Cth).
26 ANU v Burns (1982) 64 FLR 166 at 176. In Pullicino v Osborne [1990] VR 881 Supreme
Court (Vic) held that the decision suspending the plaintiff ’s trainer’s licence was a
‘decision’ within s2 of the ALA as a ‘decision operating in law to determine a question
. . .to . . .suspend . . . the privilege of a licence’.
27 My database search of state/federal statutes revealed extensive legislation imposing
the duty.
28 VeteransEntitlementAct1986 (Cth) s34 outlines the Repatriation Commission’s require-
ments to provide detailed reasons for pension-related decisions.
29 Racing (Proprietary Business) Licensing Act 2000 (SA) s47 requires the Independent
Gambling Authority to give reasons for decision on request if there is an appeal right
or by leave of the Supreme Court.
30 Gambling Regulation Act 2003 (Vic) s10.1.24 provides for requesting reasons from the
Victorian Commission for Gambling Regulation.
31 School Education Act 1999 (WA) s54 requires both written notice and reasons of the
decision of the minister confirming, varying or reversing the chief executive officer’s
decision cancelling a home educator’s registration.
32 Environmental Protection and Biodiversity Conservation Act 1999 (Cth), for example,
obliges the relevant minister under s77 to give reasons for the decision that action
is a ‘controlled action’; and s54 of the Biological Control Act 1987 (Qld) requires the
Queensland Biological Control Authority to give reasons upon request and to furnish
them within 28 days.
33 Electricity Supply Industry Act 1995 (Tas) s95 provides for written application, by an
interested person within twenty-eight days of the decision’s notification, for a ‘state-
ment of the reasons for the decision’. The Regulator or authorised officer must supply
reasons ‘as soon as practicable and, in any case, within sixty days of the application’.
34 Section 13(11), Schedule 2.
35 JRAQ s31(b), Schedule 2; JRAT s28(b) Schedule 3.
36 Section 13(8).
37 Other decisions may be exempt on public interest grounds; see, for example ADJR Act
s14(1); or personal or business information disclosed in confidence, see, for example,
ADJR Act s13A(1).
38 See, for example, Pettitt v Dunkley [1971] 1 NSWLR 376, where the New South Wales
Court of Appeal held that District Court judge’s failure to give reasons was an error of
law.
39 (1986) 159 CLR 656.
40 [1984] 3 NSWLR 447.
41 (1986) 159 CLR 656 at 668.
42 ibid.
43 ibid, 670 (citing [1984] 3 NSWLR 447 at 474).
44 ibid, 670.
45 ibid.
46 See, for example, M Taggert, ‘Osmond in the High Court of Australia: Opportunity
Lost’ in M Taggert (ed), Judicial Review of Administrative Action in the 1980s: Problems
and Prospects (Oxford University Press with Legal Research Foundation Inc Auckland,
1986) 53. Note: Justice M Kirby, ‘Reasons for Judgment: Always Permissible, Usu-
ally Desirable and Often Obligatory’ (1994) 12 Australian Bar Review 121. Others
were more cautious, considering that adminstrative costs and burdens were relevant
to the question; see, for example, M Allars, Introduction to Australian Administrative
418 NOTES


Law (Butterworths, 1990) at 133. Kirby J remains convinced that his views in the
NSW Court of Appeal ‘will ultimately be vindicated’: interview in Lawyers Weekly
(www.hcourt.gov.au/speeches/kirbyj/kirbyj aug05.html/[accessed 22 June 2006].
47 In, for example, Coope v Iuliano (1996) 65 SASR 405, the Promotion Appeal Board
was not required to give reasons for its promotion decision; in Whalley v Commis-
sioner of Police [2003] NSWSC 273 the Supreme Court of New South Wales adhered
to the general rule in Osmond in not ordering the Commissioner of Police to give rea-
sons for the decision not to approve secondary employment at [8]; in Re Minister for
Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S190 of 2002
[2002] HCA 39, Kirby J acknowledged at [21]: ‘Under current doctrine it is not incum-
bent on an Australian official at common law, deciding even a matter so serious as a
decision affecting an application for refugee status, to provide the reasons for that deci-
sion. [Osmond’s decision] reversed a contrary conclusion in which I had participated
in the [New South Wales] Court of Appeal. Again, at this level of decision-making,
I am obliged to conform to the approach of the Full Court of this Court until it is
changed.’
48 [2003] NSWSC 208.
49 ibid, [41] (Dowd J).
50 (1998) 43 NSWLR 729.
51 [1996] 2 Qd R 462.
52 ibid, 476.
53 ibid.
54 ibid. See also Yung v Adams (1997) 80 FCR 453.
55 Practice Note No. SC CL 3 – Administrative Law List, New South Wales.
56 ibid.
57 See, for example, Pullicino v Osborne [1989] VR 881 (under ALA Victorian Supreme
Court ordered the stewards – ‘a tribunal’ – to give reasons for suspending a trainer’s
licence).
58 See, for example, Palme’s case (2003) 216 CLR 212; Justice A Goldberg, ‘When are
Reasons for Decision Considered Inadequate?’ (2000) 24 AIAL Forum 1; H Katzen,
‘Inadequacy of Reasons as a Ground of Appeal’ (1993) 1 Australian Journal of Admin-
istrative Law 33; T Thawley, ‘An Adequate Statement of Reasons for an Administrative
Decision’ (1996) 3 Australian Journal of Administrative Law189.
59 P Bayne, ‘The Inadequacy of Reasons as an Error of Law’ (1992) 66 Australian Law
Journal 302.
60 Whilst s180(1) of Gene Technology Act 2001 (SA) requires reasons to be given ‘as soon
as practicable’ after the decision, s180(2) states that failure to comply with the reasons
requirements does not affect the decision’s validity.
61 See, for example, Pettitt v Dunkley [1971] 1 NSWLR 376 and Sun Alliance Insurance Ltd
v Massoud [1989] VR 8 at 20.
62 See Dornan v Riordan (1990) 24 FLR 564 where inadequacy of reasons meant the court
could not ascertain whether errors had occurred so the court set aside the tribunal’s

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