<<

. 17
( 19)



>>

decision ab initio; Commissioner of State Revenue v Anderson [2004] VSC 152 where
Nettle J stated at [33]: ˜Section 117 of the [VCATA] requires the Tribunal to furnish
reasons that are intelligible. The failure to do so is an error of law in itself.™
63 Brennan J in The Repatriation Commission v O™Brien (1985) 155 CLR 422, 445“6
stated: ˜In any event, a failure by a tribunal adequately to fulfil its statutory obli-
gation to state the reasons for making an administrative decision does not, without
more, invalidate the decision or warrant its being set aside by a court of competent
jurisdiction.™
64 Note limited reasons requirement first introduced by Tribunals and Inquiries Act 1958
(UK).
65 See, for example, HWR Wade, Administrative Law (5th edn, OUP, 1982) 486.
66 [2006] EWCA 397 at [73].
67 [1991] 4 All ER 310.
419
NOTES


68 The compensation award was so low as to be prima facie irrational, warranting judicial
review.
69 [1999] 1 WLR 1293 at 1300“1.
70 [2003] EWCA Civ 329.
71 Wooder, R v Feggetter [2002] EWCA Civ 554 at [24].
72 ibid. The decision was of a Second Opinion Appointed Doctor (SOAD) under the Mental
Health Act 1983 (UK).
73 See Lord Justice Potter in Wooder, R v Feggetter [2002] EWCA Civ 397 at [49].
74 In Gupta v General Medical Council [2002] 1 WLR 1691, the Court of Appeal held
that there was no duty to provide reasons for the decision to remove the registration
of a doctor. However the terms of the decision in the light of the evidence sufficiently
revealed the reasons. In R v Higher Education Funding Council; Ex parte Institute of Dental
Surgery [1994] 1 WLR 242, an earlier case, it was held that a decision to downgrade
the Institute of Dental Surgery™s rating (used for the purposes of allocating higher
education funding) did not, in the circumstances, require reasons to be given: see at
256“7.
75 [2002] 1 WLR 2409.
76 [2006] EWCA 397.
77 ibid, [78].
78 [2003] EWCA Civ 329 at [49].
79 In Anya v Oxford University [2001] ICR 847, Sedley J stated: ˜What were lacking were
the industrial tribunal™s conclusions on the factual issues essential to its conclusion,
and in consequence, a proper and rounded determination of the single legal matter of
complaint, the selection of [one person] in preference to the appellant™.
80 [2002] EWCA Civ 923.
81 ibid, [80]. Although the statutory scheme imposed a duty to give reasons, the duty was
not fulfilled where the particular reasons for accepting one view over another were not
included.
82 ibid, [76].
83 All of the states, except Victoria, enacted their freedom of information legislation after
Osmond.
84 [2006] EWCA 397 at [85].
85 ibid.
86 ibid, [86].
87 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560.
88 (1996) 185 CLR 259.
89 ibid, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
90 ibid, 292.
91 ibid.

Chapter 12
1 Associated Provincial Picture Houses v Wednesbury Corporation [1948] KB 223 at 228
(Lord Greene MR).
2 ibid.
3 (1986) 162 CLR 24.
4 (1981) 38 ALR 363.
5 J McMillan, ˜Judicial Restraint and Activism in Administrative Law™ (2002) 30 Federal
Law Review 335 at 357.
6 ibid, 356. McMillan states that it is the second most argued ground of review. See also
R Creyke and J McMillan, Control of Government Action Text, Cases and Commentary
(LexisNexis Butterworths, 2005) 482; and M Aronson, B Dyer and M Groves, Judicial
Review of Administrative Action (3rd edn, Lawbook Co, 2004) 254.
7 See n3 above.
8 (2003) 198 ALR 59.
420 NOTES


9 (2001) 206 CLR 323.
10 See for example McMillan, n5 above.
11 See n3 above.
12 As provided for in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
13 See n3 above, 45.
14 ibid, 40“1.
15 McMillan, n5 above, 356.
16 ibid, 357.
17 Aronson, Dyer and Groves, n6 above, 255.
18 See n3 above, 41. Mason J suggested that the appropriate ground of review in these
circumstances would be unreasonableness. However, the ambit of this ground of review
has itself recently become less clear due to Re Minister for Immigration and Multicultural
Affairs; Ex parte Applicant S20/2002, n8 above. See Aronson, Dyer and Groves, ibid,
258“9.
19 Mason J, n3 above, 40.
20 Aronson, Dyer and Groves, n6 above, 255; and Creyke and McMillan, n6 above, 466.
21 [1925] AC 578.
22 See n4 above, 375.
23 Migration Act 1958 (Cth) s6A(1)(e).
24 Creyke and McMillan, n6 above, 510.
25 ibid 511, citing E Arthur, ˜The Impact of Administrative Law on Humanitarian Decision-
making™ (1991) 66 Canberra Bulletin of Public Administration 90. Other factors that have
been considered in determinations of relevance include human rights principles and
conventions. Creyke and McMillan, n6 above, 504“9; and Aronson, Dyer and Groves,
n6 above, 258, 262“3.
26 (1999) 197 CLR 510 at 579.
27 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004)
205 ALR 487 at 520 (Kirby J).
28 See n3 above, 39.
29 Creyke and McMillan, n6 above, 482.
30 (1981) 38 ALR 363 at 375.
31 ibid.
32 Aronson, Dyer and Groves, n6 above, 261.
33 Creyke and McMillan, n6 above, 483.
34 See n3 above.
35 (1988) 91 ALR 586.
36 See n3 above.
37 ibid, 31 (Gibbs CJ), 45 (Mason J).
38 All of the judges in Peko-Wallsend agreed that the minister was entitled to rely on a
briefing paper.
39 McMillan, n5 above, 358.
40 ibid.
41 ibid, 359.
42 (2001) 182 ALR 657.
43 McMillan, n5 above, 359“60.
44 ibid, 359.
45 G Airo-Farulla, ˜Rationality and Judicial Review of Administrative Action™ (2000) 24
Melbourne University Law Review 543 at 563.
46 (1985) 65 ALR 549.
47 (1989) 91 ALR 39.
48 (1993) 114 ALR 409.
49 Aronson, Dyer and Groves, n6 above, 268.
50 Foster v Minister for Customs and Justice (2000) 200 CLR 442. See Creyke and McMillan,
n6 above, 503.
51 See Aronson, Dyer and Groves, n6 above, 268“75.
421
NOTES


52 See n3 above, 41. Note however the comments by Aronson, Dyer and Groves, n6 above,
259 concerning the potential limitation on Wednesbury unreasonableness posed by
Applicant S20, n8 above.
53 (1981) 38 ALR 363.
54 (1987) 14 ALD 291.
55 See n35 above.
56 (1983) 48 ALR 566.
57 (1989) 18 ALD 77.
58 McMillan, n5 above, 362.
59 See n6 above, 259.
60 (1998) 45 NSWLR 163.
61 (2001) 106 FCR 426.
62 ibid, 442.
63 See n6 above, 259.
64 ibid, 260.
65 (1995) 57 FCR 451. See McMillan, n5 above, 358“9.
66 McMillan, ibid.
67 (1996) 71 FCR 265.
68 McMillan, n5 above, 359.
69 Aronson, Dyer and Groves, n6 above, 262.
70 See n1 above, 228 (Lord Greene MR).
71 [1925] AC 578.
72 ibid, 594.
73 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
at 505 (Dixon J).
74 (1976) 136 CLR 1.
75 Creyke and McMillan, n6 above, 469. See for example R v Australian Broadcasting
Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; O™Sullivan v Farrer (1989) 168 CLR
210.
76 [1968] AC 997.
77 See n 45 above, 550“60.
78 See, for example, the need for the High Court to intervene in the face of government
attempts to oust judicial review in Plaintiff S157/2002 v Commonwealth (2003) 211
CLR 476.
79 Minister for Immigration and Multicultural Affairs v Yusuf, n9 above. See also C Beaton
Wells, ˜Judicial Review of Migration Decisions: Life After S157™ (2005) 33 Federal Law
Review 141 at 153“4.
80 See McMillan, n5 above, for criticism of the expanding role of judicial review in this
area.
81 ibid, 356.
82 M Crock, ˜Abebe v Commonwealth, Minister for Immigration and Multicultural Affairs
v Eshetu, Of Fortress Australia and Castles in the Air: The High Court and the Judi-
cial Review of Migration Decision™ (2000) 24 Melbourne University Law Review 190 at
216.



Chapter 13
1 De Smith, Woolfe and Jowell, Judicial Review of Administrative Action (5th edn Sweet
and Maxwell, 1995) 330.
2 ADJR Act 1977 (Cth) ss5(2)(c) and 6(2)(c) respectively. At state level, see ADJR Act
1989 (ACT) s5(2)(c); Judicial Review Act 1991 (Qld) s23(c); Judicial Review Act 2000
(Tas) s20(c).
3 (1981) 151 CLR 170.
4 ibid, 186.
422 NOTES


5 (1950) 81 CLR 108.
6 ibid, 120.
7 [1925] AC 338.
8 ibid, 340.
9 ibid, 342.
10 (1988) 84 ALR 719.
11 ibid, 729 per Wilcox and French JJ.
12 ibid.
13 (1988) 81 ALR 288.
14 ibid, 315.
15 (1994) 121 ALR 95.
16 ibid, 104.
17 M Allars, Introduction to Australian Administrative Law (Butterworths, 1990) 176“7.
For a conspectus of the protracted legal proceedings flowing from the High Court™s
decision in Toohey, see R Creyke and J McMillan, Control of Government Action: Text,
Cases and Commentary (LexisNexis Butterworths, 2005) 456“8.
18 Aickin and Wilson JJ. Gibbs CJ held to the contrary.
19 Stephen and Mason JJ. Murphy J regarded the issue of whether the Administrator was
˜the Crown™ as immaterial.
20 (1981) 151 CLR 170, 193.
21 ibid, 261.
22 ibid, 218.
23 ibid.
24 [1997] 1 QB 643.
25 ibid, 705.
26 ibid, 283.
27 ibid, 220 per Mason J.
28 ibid, 233.
29 (2005) 223 ALR 346.
30 ibid, 357.
31 (1998) 194 CLR 355.
32 ibid, 389.
33 R. Creyke and J McMillan, Control of Government Action: Text, Cases and Commentary
(LexisNexis Butterworths, 2005), p 463.
34 (1931) 34 WALR 18.
35 ibid, 23.
36 ibid, 24.
37 M Aronson, B Dwyer and M Groves, Judicial Review of Administrative Action (3rd edn,
Lawbook Co, 2004) 299.
38 ibid.
39 [1925] AC 338, 343.
40 Warringah Shire Council v Pittwater Provisional Council (1992) 26 NSWLR 491, 509 per
Kirby J.
41 [1970] AC 379.
42 See Gordon Means, Malaysian Politics (2nd edn, Hodder and Stoughton, 1976) who
said that, because of the strained relations between the Sarawak State government and
the Federal government, the latter was ˜determined to engineer the overthrow of the
Ningkan government™ (at 383).
43 [1970] AC 379, 389.
44 ibid, 391.
45 ibid, 392. In Dean v Attorney-General of Queensland [1971] Qd R 391 an attempt to
seek a declaration that a proclamation of emergency and an order in council were
void was dismissed by Stable J of the Supreme Court of Queensland wholly on the
ground that the plaintiff had no locus standi. It was obvious at that time that the state
423
NOTES


of emergency was proclaimed for the purpose of ensuring that matches involving the
visiting South African Rugby Union football team could proceed. Stable J at 404“5
concluded that it was not for the court ˜to question the validity of any opinion formed
by His Excellency in Council™ under s22 of The State Transport Acts 1938“1981 (Qld).
Section 22 provided as follows: ˜Where at anytime it appears to the Governor in Council
that any circumstances exist or are likely to come into existence within the State . . .
whether by fire, flood, storm, tempest, Act of God, or by reason of any other cause or
circumstance whatsoever whereby the peace, welfare, order, good government, or the
public safety of the State . . . is or is likely to be imperilled, the Governor in Council
may, by Proclamation . . . declare that a state of emergency exists . . . ™
46 North Australian Aboriginal Legal Aid Service Inc v Bradley (2002) 192 ALR 701.
47 ibid, 704.
48 ibid, 705.
49 ibid, 707.
50 ibid, 707“8.
51 ibid, 708.
52 ibid, 709.
53 ibid, 710. An appeal to the High Court failed: (2004) 218 CLR 146.
54 (2004) 136 FCR 259.
55 ibid, 275.
56 (1981) 151 CLR 170, 233.
57 (2004) 136 FCR 259, 275.
58 ibid.
59 ibid. The irony did not escape Branson J™s notice when she said: ˜[E]ven today a question
might arise as to the propriety of an exercise of the legislative power of South Australia
for the purpose of restricting the exercise of power given to “the Minister” by s24 of the
Lands Acquisition Act . . . ™ (at 273). However, this question was not posed to the court
because of the basis upon which the appeals were determined.
60 (1992) 26 NSWLR 491.
61 ibid, 509.
62 P Craig, Administrative Law (5th edn, Sweet and Maxwell, 2003) 559.
63 ibid.
64 (1950) 81 CLR 87.
65 ibid, 106.
66 ibid.
67 ibid.
68 (1982) 41 ALR 467.
69 ibid, 468“9.
70 M Allars, Introduction to Australian Administrative Law (Butterworths, 1990) 178.
71 ibid.
72 (1982) 41 ALR 467, 469.
73 (1992) 26 NSWLR 491, 509.
74 (1996) 90 LGERA 178.
75 (1997) 191 CLR 1.
76 ibid, 51 per Kirby J.
77 ibid, 31.
78 ibid, 32.
79 ibid.
80 ibid, 32“3.
81 ibid, 50.
82 ibid, 51.
83 ibid.
84 ibid, 66.
85 ibid.
424 NOTES


86 EJ Sykes, DJ Lanham and RRS Tracey, General Principles of Administrative Law (But-
terworths, 1979) 63.
87 [1956] AC 736.
88 ibid, 770.
89 ibid.
90 (1981) 151 CLR 170, 205 per Stephen J.
91 ibid.
92 (1928) 42 CLR 1, 8“9.
93 Jones v Metropolitan Meat Industry Board (1925) 37 CLR 252, 263“4.
94 R v Burgess, Ex parte Henry (1936) 55 CLR 608 at 687 per Evatt and McTiernan JJ.
95 (1982) 153 CLR 168.
96 ibid, 260. See also Mason J at 224.
97 ibid, 200.
98 R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 54 (HC); Attorney-
General for Australia v R [1957] AC 288 (PC).
99 (2004) 219 CLR 562.
100 ibid, 617 [153].
101 (2004) 210 ALR 369.
102 ibid, 385 [60].
103 ibid, 385 [61].
104 R Creyke and J McMillan, Control of Government Action:Text, Cases and Commentary
(LexixNexis Butterworths, 2005) 446.
105 (1927) 27 SR (NSW) 209.
106 ibid, 215.



Chapter 14
1 The courts usually review the correctness of administrative determinations of legal
questions, particularly an agency™s interpretation of its empowering statute. However,
if the statute uses a word according to its ˜ordinary English meaning™, then the word™s
meaning is a question of fact, not law, and the court™s role is to determine whether the
administrative interpretation was reasonable, rather than correct: see M Aronson, B
Dyer and M Groves, Judicial Review of Administrative Action (3rd edn, Lawbook Co,
2004) 196“9 and the cases cited there. Space precludes detailed treatment of this
issue here.
2 See further G Airo-Farulla, ˜Rationality and Judicial Review of Administrative Action™
(2000) 24 Melbourne University Law Review 543.
3 See the excellent discussion in Aronson, Dyer and Groves, n1 above, at 96“115.
4 Kruger v Commonwealth (1997) 190 CLR 1 at 36.
5 See, for example, Chief Justice JJ Spigelman, ˜Foundations of Administrative Law:
Towards General Principles of Institutional Law™ (1999) 58 Australian Journal of Public
Administration 3 at 4, 9.
6 For example, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367
(Deane J).
7 (2003) 211 CLR 476 at 492 (Gleeson CJ), 513 (Gaudron, McHugh, Gummow, Kirby
and Hayne JJ).
8 (1951) 83 CLR 1 at 193.
9 C Montesquieu, On the Spirit of the Laws (1748) (T Neuman trans, Hafner Publishing
Company, New York, 1949), Book XI § 4; Book XI § 6.
10 For more detail, see Airo-Farulla, n2 above, at 545“50.
11 [1948] 1 KB 223, 223“4.
12 (1986) 162 CLR 24, 40“1.
13 (1997) 191 CLR 559 at 574“5 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and
Gummow JJ).
425
NOTES


14 Sometimes power may appear to be granted in the bare form ˜X may do Z™. However,
such grants of power must be read in the context of the Act as a whole, and usually
the ˜Y™ in which X may do Z will be defined in an earlier or later provision. Even
where power to do Z appears unlimited by any ˜Y™ requirement, it is subject to the
fundamental administrative law principle that all statutory grants of power have some
limits: Aronson, Dyer and Groves, n1 above, at 85“6. At the very least, the power must
be exercised only for the purposes for which it was granted, and by reference only
to the considerations that the Act makes relevant: Padfield v Minister for Agriculture,
Fisheries and Food [1968] AC 997; Gerlach v Clifton Bricks Pty Ltd (2002) 188 ALR 353
at [69]“[70] (Kirby J); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162
CLR 24.
15 Waterford v Commonwealth (1987) 163 CLR 54 at 77 (Brennan J); Attorney-General v
Quin (1990) 170 CLR 1 at 35“6 (Brennan J); Australian Heritage Commission v Mount
Isa Mines Ltd (1997) 187 CLR 297 at 303 (Dawson, Gaudron, McHugh, Gummow and
Kirby JJ).
16 Such as ˜if X decides . . .™, ˜if X determines . . .™, ˜if X believes . . .™, ˜if X reasonably
believes . . .™, ˜if X is of the opinion that . . .™, ˜if X considers . . .™, or ˜if it appears to X
that . . .™
17 Aronson, Dyer and Groves, n1 above, at 231.
18 (2000) 199 CLR 135 at 150 (emphasis added).
19 (2003) 198 ALR 59.
20 (2004) 207 ALR 12.
21 S20 (2003) 198 ALR 59 at 91, [147] (Kirby J).
22 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355“6, 359“60 (Mason
CJ), 367 (Deane J); Aronson, Dyer and Groves, n1 above, at 193“4, 239. I am not dealing
here with the ˜no evidence™ ground of review in the Administrative Decisions (Judicial
Review) Act 1977 (Cth).
23 R v Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456 at 488
(Diplock J); Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 68
(Deane J).
24 Shulver v Sherry (1992) 28 ALD 570 at 574.
25 (2004) 77 ALD 402.
26 Aronson, Dyer and Groves, n1 above, at 239.
27 ˜De minimis non curat lex™: ˜the court does not concern itself with trifles™.
28 See, for example, Seguin Moreau, Australia v Chief Executive Officer of Customs (1997)
77 FCR 410.
29 For example, R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring
Co Pty Ltd (1953) 88 CLR 100.
30 NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC
328.
31 Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989)
18 ALD 77 at 80; Luu v Renevier (1989) 91 ALR 39; Othman v Minister for Immigration,
Local Government and Ethnic Affairs (1991) 24 ALD 707; Hill v Green (1999) 48 NSWLR
161.
32 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388; SFGB v Minister for
Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at 407, [18]“
[19]; Carcione Nominees Pty Ltd v Western Australian Planning Commission (2005) 140
LGERA 429.
33 Greyhound Racing Authority (NSW) v Bragg, ibid, at [65] (Santow JA, Ipp JA and
Brownie AJA agreeing).
34 (2003) 198 ALR 59 at 88, [130]“[131]; 91, [146].
35 Airo-Farulla, n2 above, at 564“7.
36 (1999) 84 FCR 411.
37 The ˜yes™ cases include: SFGB v Minister for Immigration and Multicultural and Indige-
nous Affairs (2004) 77 ALD 402; WAIJ v Minister for Immigration and Multicultural and
426 NOTES


Indigenous Affairs (2004) 80 ALD 568; NADH v Minister for Immigration and Multicul-
tural and Indigenous Affairs [2004] FCAFC 328; WAKK v Minister for Immigration and
Multicultural and Indigenous Affairs [2005] FCAFC 225. The ˜no™ cases include: NACB v
Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235;
NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC
52; VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004]
FCAFC 286.
38 (2003) 198 ALR 59 at 70, [49]; see also 63, [12] (Gleeson CJ).
39 ibid, 63, [14].
40 ibid, 70, [49].
41 ibid, 89, [135]; 80, [93].
42 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80
ALD 568 at 581“3, [60]“[69] (RD Nicholson J); NADH v Minister for Immigration
and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [135]“[136] (Allsop J,
Moore and Tamberline JJ agreeing).
43 J Cohen, ˜Questions of Credibility: Omissions, Discrepancies and Errors of Recall in the
Testimony of Asylum Seekers™ (2002) 13 International Journal of Refugee Law 293; G
Coffey, ˜The Credibility of Credibility Evidence at the Refugee Review Tribunal™ (2003)
15 International Journal of Refugee Law 377.
44 Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 17 ALD 529;
WAKKvMinisterforImmigrationandMulticulturalandIndigenousAffairs [2005] FCAFC
225; NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004]
FCAFC 263.
45 In S20 (2003) 198 ALR 59 at 96“8, [162]“[168], Kirby J was alone in endorsing the
English cases holding that some purely factual mistakes are reviewable, but see also
NABE v Minister for Immigration and Multicultural and Indigenous Affairs, ibid at [63],
holding that such an error of fact may be ˜tantamount to a failure to consider the
[applicant™s] claim and on that basis can constitute jurisdictional error™.
46 Subject to procedural fairness requirements.
47 (1996) 185 CLR 259.
48 (2003) 198 ALR 59 at 92, [148].
49 WAKKvMinisterforImmigrationandMulticulturalandIndigenousAffairs [2005] FCAFC
225.
50 Administrative Decisions (Judicial Review) Act 1977 (Cth) ss5(1)(h), 5(3).
51 Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR
222.
52 Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 221 (Black CJ); Raja-
manikkam, ibid at 257“9 (Kirby J).
53 Often referred to as the ˜Briginshaw standard™, in reference to Briginshaw v Briginshaw
(1938) 60 CLR 336, although as pointed out in Greyhound Racing Authority (NSW) v
Bragg [2003] NSWCA 388 at [74] (Santow JA, Ipp JA and Brownie AJA agreeing), the
Briginshaw standard does not apply as rigorously to administrative tribunals who are
not bound by the rules of evidence.
54 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80
ALD 568 at 575“7, [27], [34], [40] (Lee and Moore JJ).
55 McDonald v Director-General of Social Security (1984) 1 FCR 356 at 358, 368“9.
56 Kioa v West (1985) 159 CLR 550 at 587 (Mason J); unless there are specific statutory
duties to enquire, see for example C v T (1995) 58 FCR 1 at 12 (Burchett J).
57 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Minister for
Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; Abebe v Commonwealth
(1999) 197 CLR 510 at 544“5 (Gleeson CJ and McHugh J).
Buck v Bavone (1976) 135 CLR 110 at 118“9 (Gibbs J); Attorney-General (NSW) v Quin
58
(1990) 170 CLR 1 at 36 (Brennan J).
59 See n14 above.
60 For example Ziade v Randwick City Council (2001) 51 NSWLR 342.
61 (1993) 112 ALR 211.
427
NOTES


62 Aronson, Dyer and Groves, n1 above, at 339.
63 ibid.
64 [1985] 1 AC 375 at 410.
65 (1997) 190 CLR 1 at 36.
66 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at
640 (Brennan J).
67 Dilatte v MacTiernan [2002] WASCA 100 at [61] (Malcolm CJ, Wallwork J and White
AJ).
68 [1898] 2 QB 91 at 99“100.
69 (1972) 128 CLR 305.
70 (1988) 83 ALR 121.
71 See also Aboriginal Land Council (NSW) v Aboriginal and Torres Strait Islander Commis-
sion (1995) 131 ALR 559.
72 (1989) 89 FCR 502.
73 Minister for Arts, Heritage and the Environment v Peko-Wallsend (1987) 75 ALR 218 at
256 (Wilcox J).
74 Sir Anthony Mason, ˜The Scope of Judicial Review™ (2001) 31 Australian Institute of
Administrative Law Forum 21 at 38.
75 [1964] 1 WLR 240.
76 (1988) 83 ALR 99. See also Payne v Deer [2000] 1 Qd R 535.
77 Coco v R (1994) 179 CLR 427.
78 Council for Civil Service Unions v Minister for Civil Service [1985] 1 AC 375 at 410.
79 [1987] AC 514.
80 R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 at [18]
(Laws LJ).
81 ibid.
82 Begum v Tower Hamlets London Borough Council [2003] 2 AC 430 at 440 (Lord Bingham
of Cornhill).
83 Bugdaycay v Secretary of State for the Home Department [1987] AC 514 at 531 (Lord
Bridge of Harwich); R v Ministry of Defence; Ex parte Smith [1996] QB 517 at 554 (Sir
Thomas Bingham MR); R (Daly) v Secretary of State for the Home Department [2001] 2
AC 532.
84 R (Daly) [2001] 2 AC 532 at 546“8 (Lord Steyn).
85 Parramatta City Council v Pestell (1972) 128 CLR 305; Foley v Padley (1984) 154 CLR
349.
86 (1933) 49 CLR 142 at 155. See further Airo-Farulla, n2 above, at 570“1.
87 Stenhouse v Coleman (1944) 69 CLR 457, 467 (Starke J); South Australia v Tanner (1989)
166 CLR 161; Bienke v Minister for Industries and Energy (1996) 63 FCR 567.
88 For example Minister for Foreign Affairs v Magno (1992) 112 ALR 529; New South Wales
v Macquarie Bank (1992) 30 NSWLR 307. In both cases the dissenting judges (Einfield
J and Kirby P respectively) applied the test correctly.
89 R v Toohey; Ex Parte Northern Land Council (1979) 151 CLR 170; Da Silva v Minister for
Immigration and Multicultural Affairs (1989) 89 FCR 502.
90 ibid.
91 See, for example, Australian Retailers Association v Reserve Bank of Australia [2005]
FCA 1707 at [567] (Weinberg J).




Chapter 15
1 For a contemporary expression of this judicial reluctance, see Re Minister for
Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481
(McHugh J).
2 Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003)
198 ALR 59 at [55] (McHugh and Gummow JJ).
428 NOTES


3 M Aronson, B Dyer, and M Groves, Judicial Review of Administrative Action (Lawbook
Co, 2004) at 179 and 184ff.
4 Explained, for example, in H Jones and R Thomas, ˜The “No Evidence” Doctrine and
the Limits of Judicial Review™ (1999) 8 Griffith Law Review 102 at 104.
5 (2003) 198 ALR 59 at 84, referring to Australian Broadcasting Tribunal v Bond (1990)
170 CLR 321 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1990) 162 CLR 24 at 40“1 Mason
CJ stated that it is generally for the decision maker and not the court to determine the
weight to be given to any relevant matters which the administrative decision maker is
required to take account of. Similarly and in the context of judicial review under the
Administrative Decisions (Judicial Review) Act 1977 (Cth) see Borkovic v Minister for
Immigration and Ethnic Affairs (1981) 39 ALR 186 at 188 (Fox J).
6 (1990) 170 CLR 321.
7 ibid, 341.
8 (1990) 170 CLR 1.
9 ibid, 37. See also Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam
(2003) 214 CLR 1 at 24“5 where, according to McHugh and Gummow JJ, ˜An aspect
of the rule of law under the Constitution is that the role or function of Ch III courts
does not extend to the performance of the legislative function of translating policy into
statutory form or the executive function of administration.™
10 Discussed later.
11 Aronson, Dyer and Groves, n3 above, 240.
12 The ˜template™ method of expressing this obligation in statutory form in relation to
tribunals is seen in s33 of the Administrative Appeals Tribunal Act 1975 (Cth).
13 Represented in other Australian jurisdictions by the Judicial Review Act 1991 (Qld)
Part 3; Judicial Review Act 2000 (Tas) and Administrative Decisions (Judicial Review)
Act 1989 (ACT).
14 The relevance of this is highlighted by the fact that the ADJR Act and equivalent regimes
in other Australia jurisdictions only apply to decisions ˜of an administrative character™
and are thus not applicable in respect of decisions constituting an exercise of judicial
power, where the rules of evidence would normally apply.
15 See, for example, RJ Allen and MS Pardo, ˜The Myth of the Law-Fact Distinction™ (2003)
97 North ULR 1769 and the general discussion in Aronson, Dyer and Groves, n3 above,
184ff.
16 McPhee v Bennett (1935) 52 WN (NSW) 8 at 9; The Australian Gaslight Company v The
Valuer-General (1940) 40 SR (NSW) 126 per Jordan CJ at 138; Azzopardi v Tasman
UEB Industries Limited (1985) 4 NSWLR 139 per Glass JA at 155.
17 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355.
18 [1965] 1 QB 456
19 Re Pochi v The Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41 (per
Brennan J) and Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666
at 688 (per Deane J).
20 (1985) 4 NSWLR 139.
21 ibid, 150 where Kirby P indicated this three-stage process follows that described in CT
Emery and B Smythe, ˜Error of law in Administrative Law™ (1984) 100 Law Quarterly
Review 150.
22 ibid, 156 (Glass JA, Hope JA agreeing). Note that this view needs to be qualified by
reference to the general principle expressed by Mason CJ in Bond that an error of
law will occur whenever there is no evidence to support a finding or an inference of
fact.
23 ibid, 151.
24 ibid, 157.
25 The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring
Company Pty Ltd (1953) 88 CLR 100; Ramah v Government of Ghana [1968] AC
192.
429
NOTES


26 (1941) 65 CLR 150.
27 ibid, 155. According to the High Court, it was open to a taxation review board to adopt
a meaning of the phrase which encompassed the activities in question.
28 See, for instance, Australian Gaslight Company v Valuer-General (1940) 40 SR (New
South Wales) 126; Hope v Bathurst City Council (1980) 144 CLR 1; Collector of Customs
v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 and Collector of Customs v Agfa-
Gevaert (1996) 186 CLR 389.
29 These early cases are discussed in RRS Tracey, ˜Absence or Insufficiency of Evidence
and Jurisdictional Error™ (1976) 50 Australian Law Journal 568.
30 [1922] 2 AC 128.
31 ibid, 151.
32 For instance, in Allinson v General Council of Medical Education and Registration [1894]
1 QB 750, a professional body was restrained from de-registering a medical officer on
the basis that there was no evidence upon which it could reach a determination that
the person™s behaviour fulfilled the statutory requirement of ˜infamous conduct in a
professional respect™. However, Allinson pre-dates Nat Bell and involved the remedy of
injunction.
33 See, for example, R v Ludlow; Ex Parte Barnesley Corporation [1947] 1 KB 634 per Lord
Goddard. Additional authorities are referred to in Tracey, n29 above.
34 The jurisdictional fact doctrine “ see R v Australian Stevedoring Industry Board; Ex
parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 and Corporation of the City
of Enfield v Development Assessment Commission (2000) 199 CLR 135. For a complete
analysis, see M Aronson, ˜The Resurgence of Jurisdictional Facts™ (2001) 12 Public Law
Review 17.
35 P Craig, Administrative Law (2nd edn, 1999) 489.
36 [1969] 2 AC 147.
37 [1951] 1 KB 711. Certiorari for error of law on the face of the record is consistent with
the original purpose of the writ, which commanded that the record of proceedings
be brought before the superior court of record for correction of any legal errors. As
the High Court decision in Craig v South Australia (1995) 184 CLR 163 indicates,
certiorari for error of law on the face of the record remains as part of the law in
Australia.
38 Identifying a ˜legal error™ and determining what constitutes ˜the record™ has spawned a
large body of case law much of which, in an Australian context, is discussed in Aronson,
Dyer and Groves, n3 above, chapter 4, especially at 218.
39 [1968] AC 192.
40 ibid, 257 (Lord Upjohn), 234 (Lord Reid).
41 ibid, 235 (Lord Reid).
42 D Bowman, ˜Judicial Review “ ˜No Evidence™ (1984) 14 Manitoba Law Journal 195 at
199.
43 Craig (1995) 184 CLR 163 at 181, citing R v District Court of Queensland Northern
District; Ex parte Thompson (1968) 118 CLR 480; Hockey v Yelland (1984) 157 CLR 124
and Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.
44 Craig (1995) 184 CLR 163 at 181, citing Public Service Board of New South Wales v
Osmond (1986) 159 CLR 656.
45 ibid, 181.
46 (1990) 170 CLR 321.
47 [1969] 2 AC 147.
48 See initially Re Racal Communications Limited [1981] AC 374 and then R v Hull University
Visitor; ex parte Page [1993] AC 682; Boddington v British Transport Police [1999] 2 AC
143 per Lord Irvine LC at 154.
49 See R v Hull University Visitor; ex parte Page [1993] AC 682. At the same time, Anisminic™s
effect in rendering all errors of law jurisdictional errors, reduced reliance on certiorari
for error of law on face of the record.
50 Craig v South Australia (1995) 184 CLR 163.
430 NOTES


51 [1965] 1 WLR 1320.
52 ibid, 1326.
53 The Court of Appeal concluded (Lord Denning at 1327) that whilst the court could
receive evidence indicating what material was before the Minister, it could not approach
the case de novo and decide the matter afresh.
54 Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 WLR 433.
See also R v Governor of Brixton Prisons; Ex parte Armah [1968] AC 192; Secretary of
State for Education and Science v Tameside Metropolitan Borough Council [1977] AC
1014; Reid v Secretary of State for Scotland [1999] 2 WLR 28 at 54.
55 See HWR Wade and CF Forsyth, Administrative Law (8th edn, 2000) 282.
56 [1999] 2 AC 330.
57 ibid, 343 (Lord Slynn).
58 [2004] 2 WLR 1351.
59 ibid, [66].
60 In the case of one applicant, the tribunal™s conclusion that membership of a certain
organisation would not render him subject to persecution was rendered false by two
reports made subsequent to the tribunal™s decision, which revealed that membership
carried a significant risk of detention and torture. In the case of the other applicant, a
similar report made subsequent to the decision revealed that, contrary to the tribunal™s
assumption, a convert from Islam to Christianity would face persecution or death if
returned to Afghanistan, even though the Taliban were no longer in power.
61 ibid, [42].
62 P Craig, ˜Judicial Review, Appeal and Factual Error™ [2004] Public Law 788.
63 The issue was discussed by Craig, ibid, 804ff.
64 ibid, 797.
65 Early authorities are referred to in Tracey, n29 above, 571.
66 (1938) 59 CLR 369.
67 ibid, 388.
68 ibid, 385.
69 ibid, 391. It is true that the thrust of Dixon J™s judgment is a criticism of what he saw
as a tendency on the part of reviewing courts to adopt an excessively interventionist
approach in proceedings by way of certiorari against magistrates.
70 (1953) 88 CLR 100.
71 According to the joint judgment of Dixon CJ, Williams, Webb and Fullagar JJ, the
Board™s opinion was erroneous in law because it had applied the wrong test as to what
the legislature intended by the use of the word ˜unfit™. In that sense, the Board appeared
intent on enforcing a policy, not consistent with the legislation, of requiring employers
to maintain close supervision of stevedores.
72 (1953) 88 CLR 100 at 119.
73 (1975) 132 CLR 473.
74 T Jones and R Thomas, ˜The “No Evidence” Doctrine and the Limits to Judicial Review™
(1999) 8 Griffith University Law Review 102 at 109.
75 (1975) 132 CLR 473 at 479“80. See also Gibbs J at 483 and Stephen J at 485. Jacobs
J took the view that the grant of a lease was not dependent upon the existence of
minerals in the relevant areas, such an issue being relevant in determining where the
public interest lies (487).
76 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 358,
noting also that a mere mistake of fact is not a sufficient basis for judicial intervention.
See also Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.
77 (1986) 13 FCR 511 at 514.
78 Particular reference was made to Smith v General Motor Camp Co Ltd [1911] AC 188;
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; and R v Deputy
Industrial Injuries Commissioner; Ex-parte Moore [1965] 1 QB 456 and particularly
Mahon v Air New Zealand Ltd [1984] AC 808.
431
NOTES


79 See, for example, Corporation of the City of Enfield v Development Assessment Commis-
sion (2000) 199 CLR 135; Timbarra Protection Coalition Inc v Ross Mining NL (1999)
46 NSWLR 55. For a complete analysis see Aronson, n34 above.
80 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
81 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; W375/01 A v Minister
for Immigration and Multicultural Affairs (2002) 67 ALD 757.
82 Re Pochi v The Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41
(Brennan J) and Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR
666 at 688 (Deane J).
83 [1984] 1 AC 808.
84 ibid, 825.
85 ibid, 824. Their Lordships accepted that the Commissioner was entitled to take the
view that evidence given at the inquiry by several witnesses was false.
86 ibid, 821.
87 [1999] 2 AC 330.
88 ibid, 343.
89 P Craig, ˜Judicial Review, Appeal and Factual Error™ [2004] Public Law 788.
90 Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR
346.
91 Minister for Immigration v Eshetu (1999) 197 CLR 611 at 627 (Gleeson CJ and McHugh
J), citing Pulhofer v Hillingdon London Borough Council [1986] AC 484 at 518 (Lord
Brightman).
92 Re Minister for Immigration and Multicultural Affairs; Ex Applicant S20/2002 (2003)
198 ALR 59. Reference was made to the New South Wales Court of Appeal decision
in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, where, according
to Samuels and Glass JJA, ˜patent error, illogicality or perversity™ in determining the
existence of primary facts will never constitute an error of law. Note that Azzopardi
involved an appeal on a possible question of law whereas the comments in Applicant
S20/2002 were made in the context of the High Court™s judicial review jurisdiction
under s75(v) of the Constitution.
93 In Canada, for example, see s28 of the Federal Court Act RSC 1970 and the discussion
in Bowman, n42 above.
94 Judicial Review Act 1991 (Qld) Part 3; Judicial Review Act 2000 (Tas); Administrative
Decisions (Judicial Review) Act 1989 (ACT).
95 Administrative Decisions (Judicial Review) Act 1977 (Cth) s3.
96 Administrative Decisions (Judicial Review) Act 1977 (Cth) ss5 and 6. Arguably, the
list of specified grounds of review is not a ˜code™ in the sense that it does not exclude
incorporation of modified or new grounds resulting from common law development “
see especially ADJR Act ss5(1)(j) and 6(1)(j) and comments made by the Full Federal
Court in Bond v Australian Broadcasting Tribunal (1989) 89 ALR 185 at 201.
97 Administrative Decisions (Judicial Review) Act 1977 (Cth) s5(1)(h). The initial report
of the Commonwealth Administrative Review Committee (˜Kerr Committee™ Report)
“ Parliamentary Paper No. 144 (AGPS), did not specifically address the possibility of
including a ˜no evidence™ ground of review. A specific recommendation to this effect
was made in the subsequent Ellicott Committee Report (Report of the Committee of
Review of Prerogative Writ Procedures). The legislative history of the ADJR Act ˜no
evidence™ rule is discussed by Wilcox J in Television Capricornia Pty Ltd v Australian
Broadcasting Tribunal (1986) 13 FCR 511 at 519.
98 Administrative Decision (Judicial Review) Act 1977 (Cth) s5(3), discussed later.
99 Administrative Decisions (Judicial Review) Act 1977 (Cth) s5(1)(g).
100 Ellicott Committee Report, para 43.
101 ibid. The legislative history of the ADJR Act ˜no evidence™ rule is referred to by Wilcox
J in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR
511 at 519.
432 NOTES


102 ibid.
103 Explanatory Memorandum to the Bill, para 22.
104 [1977] AC 1014.
105 (1986) 13 FCR 511 at 520.
106 (2002) 190 ALR 402.
107 ibid, 422.
108 (1986) 12 FCR 419.
109 Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 419.
110 (1990) 170 CLR 321.
111 ibid, 357 (Mason CJ) 365 (Brennan J) and 369 (Deane J) agreed with Mason CJ.
112 (2002) 190 ALR 402.
113 ibid, [49] and [53] (Gaudron and McHugh JJ).
114 Sections 476(1) and 476(4) of the Migration Act 1958 (Cth) corresponded with
ss5(1)(h) and 5(3) of the ADJR Act.
115 Section 476(1)(e) of the Migration Act 1958 (Cth) was worded in a significantly
different manner than s5(1)(h) of the ADJR Act.
116 Mason CJ simply referred to comments by Barwick CJ and Gibbs J in Sinclair v Mining
Warden (1975) 132 CLR 473 (at 481 and 483 respectively) as indicative of common
law restrictions on the ˜no evidence™ rule without any further explanation of the
common law position.
117 ADJR Act ss5 and 6.
118 As indicated earlier, the list of specified grounds of review in ss5 and 6 of the ADJR Act
does not exclude incorporation of modified or new grounds resulting from common
law development “ see ADJR Act ss5(1)(j) and 6(1)(j) and comments made by the
Full Federal Court in Bond v Australian Broadcasting Tribunal (1989) 89 ALR 185 at
201. See also WMC Gummow, ˜Reflections on the Current Operation of the ADJR Act™
(1991) 20 Federal Law Review 129.
119 (2002) 190 ALR 402 at [54].
120 (1986) 12 FCR 419.
121 ibid, 429.
122 (1986) 13 FCR 511.
123 ibid, 515. Wilcox J observed (at 414) that in all cases of this nature, the making of a
decision depended upon the prior establishment of a particular fact in circumstances
where there was no evidence that that fact existed.
124 Broadcasting and Television Act 1942 (Cth) s83(9).
125 Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414 at 429.
126 ibid, 515.
127 See, for example, Minister for Immigration and Multicultural Affairs v Applicant C
(2001) 116 FCR 154.
128 Aronson, Dyer and Groves, n3 above, 240.
129 (1990) 170 CLR 321 at 359“60.
130 See Re Pochi v The Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41
(Brennan J) and Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR
666 at 688 (Deane J).
131 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358 (Mason CJ).
132 Aronson, Dyer and Groves, n3 above, 243.
133 Explained in the context of s5(3) of the ADJR Act by Finklestein J in Jegatheeswaran v
Minister for Immigration and Multicultural Affairs [2001] FCA 865 at [52] (Sundberg
J agreeing).
134 ibid, [55].
135 At least this appears to have been the position adopted by Finklestein J in Jegath-
eeswaren v Minister for Immigration and Multicultural Affairs [2001] FCA 865 at [52].
136 (1985) 4 NSWLR 139.
137 ibid, 156 (Glass JA, Hope JA agreeing).
433
NOTES


138 (1992) 34 FCR 212 at 223.
139 (1990) 170 CLR 321 at 357“8.
140 ibid, 358.
141 (2002) 190 ALR 402 at [33] (Gleeson CJ). According to Callinan J (at [155]), ˜based
on™ implies more than ˜had regard to™ or ˜took into account™ and requires a finding that
the non-existent fact was the ˜base™ or ˜foundation™ for the decision. In this case the
High Court in this case was dealing with both an ˜error of law™ and a ˜no evidence™
ground of judicial review contained in the Migration Act 1958 (Cth). Although the
˜error of law™ ground was significantly different than its ADJR Act counterpart in
s5(1)(f ), the ˜no evidence™ ground was identical to that found in ss5(1)(h) and 5(3)
of the ADJR Act, hence the comments are apposite.
142 Luu v Renevier (1989) 91 ALR 39 at 47.
143 ibid, [35].
144 (1992) 34 FCR 212 at 223.
145 ibid, 220. See also Fernando v Minister for Immigration and Multicultural Affairs [1999]
FCA 962 at [26] per Heery J who notes a preference for the metaphor of the ˜net™,
rather than that of the ˜chain™ or ˜fork in the road™.
146 (2002) 190 ALR 402.
147 ibid, 414.
148 ibid.
149 ibid.
150 Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 223.
151 (2002) 190 ALR 402.
152 Migration Act 1958 (Cth) s36(2). Under the statute, the test for determining refugee
status is that set forth in the UN Convention on the Protection of Refugees.
153 Minister for Immigration and Multicultural Affairs v Rajamanikkam (2000) 179 ALR
495 at 506.
154 ibid, [16] (Gleeson CJ) [70] (Gaudron and McHugh JJ).
155 ibid.
156 ibid, [37] (Gleeson CJ). Gaudron and McHugh JJ noted at [70] that the tribunal had
considered ˜a range of factors™.
157 See, for instance, the discussion in Sarancharkh v Minister for Immigration and Multi-
cultural Affairs [2001] FCA 1461 [43] (Hill J). See also comments made in N258/00 A
v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 478 at 486 (Katz
J).
158 ibid, [157] (Callinan J). See also comments made by Kirby J at [104].
159 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358 (Mason CJ).
160 Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 223 (Black CJ).
161 Citing comments made by Mason CJ in Bond, Gleeson CJ warned that the distinction
between judicial review and merits review would be obliterated if every step in the
process of reasoning towards an ultimate decision was subject to judicial review “
Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 170 ALR
402 at [26] (Gleeson CJ).
162 ibid, [152]“[153].
163 The point was emphasised by Wilcox J in Television Capricornia Pty Ltd (1986) 70 ALR
147 at 156. See also Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at
223 (Black CJ).
164 Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR
511 (Wilcox J), referring to comments made in the Ellicott Committee Report. See
also Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 223“4 (Black
CJ).
165 (1986) 13 FCR 511 at 519.
166 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357.
167 (1992) 34 FCR 212 at 220.
434 NOTES


168 See also Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193, per Sackville J
at 203; Applicant C (2001) 66 ALD 1 at 17; Jegatheeswaran v Minister for Immigration
and Multicultural Affairs [2001] FCA 865; Fernando v Minister for Immigration and
Multicultural Affairs [1999] FCA 962; Sarancharkh v Minister for Immigration and
Multicultural Affairs [2001] FCA 1461.
169 Rajamanikkam (2002) 170 ALR 402 at [34] (Gleeson CJ).
170 ibid, [51]“[52] (Gaudron and McHugh JJ).
171 ibid. Oddly enough, as Aronson, Dyer and Groves, n3 above, 243, point out in a
subsequent decision, Re Minister for Immigration and Multicultural Affairs; Ex parte
Applicants S134/2002 (2003) 211 CLR 441 at 458, Gleeson CJ; McHugh, Gummow,
Hayne and Callinan JJ wrote in a joint judgement that the second limb of s5(3) of the
ADJR Act was ˜an exegesis of the ground of review in s5(1)(h)™.
172 ibid.
173 ibid, [111] (Kirby J).
174 As indicated earlier, see for instance, indications in Re Minister for Immigration and
Multicultural Affairs; Ex Applicant S20/2002 (2003) 198 ALR 59 that ˜manifest illog-
icality or irrationality™ may be a basis of judicial review. Cf. the New South Wales
Court of Appeal decision in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR
139, where, according to Samuels JA and Glass JA concluded (Kirby P dissenting),
˜patent error, illogicality or perversity™ in determining the existence of primary facts
will never constitute an error of law™. (Again, note that Azzopardi involved an appeal
on a possible question of law, whereas the comments in Applicant S20/2002 were
made in the context of the High Court™s judicial review jurisdiction under s75(v) of
the Constitution.)

Chapter 16
1 For example, the Radiocommunications Act 1992 (Cth) s100(1) provides that the
relevant decision maker ˜may issue to the applicant an apparatus licence . . . ™ (emphasis
added).
2 For example, the Migration Act 1958 (Cth) s189 provides: ˜If an officer knows or
reasonably suspects that a person in the migration zone (other than an excised off-
shore place) is an unlawful non“citizen, the officer must detain the person™ [emphasis
added].
3 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 69“70 (Deane and Toohey JJ),
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 559.
4 Egan v Willis (1998) 195 CLR 424 at 451 (Gaudron, Gummow and Hayne JJ); Re
Patterson; Ex parte Taylor (2001) 207 CLR 391 at 402“3 (Gleeson CJ) 460 (Gummow
and Hayne JJ).
5 This is discussed in the main text at 258“90.
6 See also ADJR Act 1977 ss6(1)(e) with ss6(2)(e) re: conduct. See also Administrative
Decisions (Judicial Review) Act 1989 (ACT), ss5(1)(e) with ss5(2(e) and ss6(1)(e)
with ss6(2)(e); Judicial Review Act 1991 (Qld), ss20(2)(e) and s21(2)(e) with ss23(e);
Judicial Review Act 2000 (Tas), ss17(2)(e) and ss18(2)(e) with ss20(e).
7 [1970] 1 WLR 1231 (Willis J).
8 ibid, 1240.
9 ibid, 1241. Compare this to the approach of Windeyer J in Ipec, below in the text
accompanying n19“22.
10 (1965) 113 CLR 177.
11 Ipec™s application for a charter licence to carry air freight was also refused on the basis
that Ipec would not be in a position to provide the necessary aircraft.
12 (1965) 113 CLR 177 at 200“1 (Taylor and Owen JJ), 204“6 (Windeyer J). Kitto and
Menzies JJ in dissent held that the evidence showed that the decision was in fact that
of the government (Kitto J at 193; Menzies J at 202).
435
NOTES


13 Their Honours were in the minority on the facts.
14 (1965) 113 CLR 177 at 193 (Kitto J), 202 (Menzies J).
15 ibid, 192 (Kitto J), 202 (Menzies J).
16 ibid, 192 (Kitto J), 202 (Menzies J).
17 ibid, 202 (Menzies J).
18 ibid, 200 (Taylor and Owen JJ).
19 ibid, 205 (Windeyer J).
20 ibid, 204 (Windeyer J). Compare this to the decision in Lavender which explicitly stated
that a policy could not be applied so that it is the only material consideration, see n9
above.
21 ibid, 206 (Windeyer J).
22 ibid, 204“6 (Windeyer J).
23 (1977) 139 CLR 54.
24 ibid, 61 (Barwick CJ), 87 (Murphy J).
25 ibid, 87 (Murphy J).
26 ibid, 115 (Aickin J).
27 ibid, 62 (Gibbs J).
28 ibid, 83 (Mason J).
29 ibid.
30 ibid.
31 ibid, 82 (Mason J).
32 Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404 (Gibbs CJ, Mason,
Murphy, Aickin and Wilson JJ).
33 ibid, 418“20 (Gibbs CJ), 439“40 (Mason and Wilson JJ), 441 (Murphy J). But see
Aickin J™s qualification at n34 below.
34 ibid, 418 (Gibbs CJ). See also Mason and Wilson JJ at 430. However, Aickin J noted that
it would not be proper for the Commission to ˜sound out™ the Minister before making a
decision in order to avoid the exercise of his or her veto power (at 446).
35 ibid, 429 (Mason and Wilson JJ), cited with approval by the NSW Court of Appeal in
Rendell v Release on Licence Board (1987) 10 NSWLR 499 (Kirby P, Priestley and Clarke
JJA).
36 See, for example, Migration Act 1958 (Cth) s499; Australian Securities and Investment
Commission Act 2001 (Cth) s12.
37 See M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3rd
edn, Law Book Co, 2004) 285.
38 On this point, see R Creyke and J McMillan, Control of Government Action (Lexis Nexis
Butterworths, 2005) 628.
39 See, for example, Riddell v Secretary, Department of Social Security (1993) 42 FCR 443
at 449. See also Zayen Nominees Pty Ltd v Minister for Health (1983) 47 ALR 158 and
Aboriginal Legal Service Ltd v Minister for Aboriginal and Torres Strait Islander Affairs
(1996) 139 ALR 577.
40 See, for example, NSW Farmers™ Association v Minister for Primary Industries and Energy
(1990) 21 FCR 332 (Bowen CJ, Lockhart and von Doussa JJ) where a minister was held
not to have acted ultra vires by directing the Australian Wool Corporation to set the
price for wool at no more than a certain level.
41 Sir Anthony Mason, ˜Administrative Review: The Experience of the First Twelve Years™
(1989) 18 Federal Law Review 122 at 131.
42 See, for example, Bropho v Tickner and Anor (1993) 40 FCR 165; Adams v Minister for
Immigration and Multicultural Affairs (1997) 70 FCR 591.
43 Telstra Corp Ltd v Kendall (1995) 55 FCR 221 at 231.
44 See, for example, K C Davis, Discretionary Justice: A Preliminary Inquiry (University of
Illinois Press, 1969) 221; Drake No 2 (1979) 2 ALD 634 at 640 (Brennan J).
45 See. for example, Green v Daniels (1977) 13 ALR 1 and NEAT Domestic Trading Pty Ltd
v AWB Ltd (2003) 216 CLR 277 at 289 (Gleeson CJ).
436 NOTES


46 The scope of this ground is explained in chapter 12.
47 See also ADJR Act 1977 ss6(1)(e) with ss6(2)(f ) re: conduct. See also Administrative
Decisions (Judicial Review) Act 1989 (ACT) ss5(1)(e) with ss6(1)(f) and ss6(1)(e) with
6(1)(f); Judicial Review Act 1991 (Qld) ss20(2)(e) and s21(2)(e) with ss23(e); Judicial
Review Act 2000 (Tas) ss17(2)(e) and ss18(2)(e) with ss20(f).
48 [1971] AC 601. In Australia, the approach in British Oxygen has been cited extensively.
See, for example, Riddell v Secretary, Department of Social Security (1993) 42 FCR 443;
NCA (Brisbane) Pty Ltd v Simpson (1986) 13 FCR 207; Lofthouse v Australian Securities
and Investments Commission (2004) 82 ALD 481.
49 British Oxygen [1971] AC 601 at 625 (Lord Reid, with whom Lord Morris of Borth-y-
Gest, Lord Wilberforce and Lord Diplock agreed).
50 ibid, 625.
51 (1977) 13 ALR 1. Green has been applied in a number of later cases, see, for example,
Cummeragunga Pty Ltd (in liquidation) v Aboriginal and Torres Strait Islander Commis-
sion (2004) 210 ALR 612 at 630 [151]“[155]; Save our Suburbs (SOS) NSW Incorporated
v Electoral Commissioner of New South Wales (2002) 55 NSWLR 642 at 655.
52 Green v Daniels (1977) 13 ALR 1 at 9 (Stephen J).
53 ibid.
54 See, for example, Cummeragunga (2004) 210 ALR 612 at [155].
55 Khan v Minister for Immigration, Local Government and Ethnic Affairs (unreported,
Federal Court, 11 December 1987, Gummow J) at [25]. This has been emphasised in a
number of other Federal Court cases, see, for example, Le v Minister for Immigration and
Multicultural and Indigenous Affairs (2005) 215 ALR 521 at 539 (Full Federal Court).
56 Rendell v Release on Licence Board (1987) 10 NSWLR 499 at 505. However, in a later
NSW Court of Appeal decision, a condition imposed by a mining registrar on a mining
claim pursuant to the directions of the relevant department was held to be lawful:
Wetzel v District Court of NSW (1998) 48 NSWLR 687. Mason P placed great reliance
on ministerial responsibility and ˜line management™ accountability (at 688).
57 The effect of such provisions is explained in Drake v Minister for Immigration (1979)
24 ALR 577 at 590“1 and Drake No 2 (1979) 2 ALD 634 at 644“5. See also chapter 5
of this book.
58 (1990) 21 FCR 193 (Neaves, Ryan and Gummow JJ). However, Gummow J noted that
estoppel could possibly be applied to ˜operational decisions™ (at 215).
59 Attorney-General (NSW) v Quin (1990) 170 CLR 1.
60 See chapter 17 of this book.
61 ˜Sub-delegation™ refers to where the decision maker acting as delegate proposes to
further delegate that power to another person.
62 See also ADJR Act 1977 s6(1)(c) and s6(1)(d). See also Administrative Decisions (Judi-
cial Review) Act 1989 (ACT) ss5(1)(c), ss5(1)(d), ss6(1)(c) and ss6(1)(d); Judicial
Review Act 1991 (Qld) ss20(2)(c), ss20(2)(d), ss21(2)(c) and ss21(2)(d); Judicial
Review Act 2000 (Tas) ss17(2)(c), ss17(2)(d), ss18(2)(c) and ss18(2)(d).
63 [1963] SR (NSW) 723.
64 ibid, 733.
65 ibid, 733.
66 ibid, 734.
67 (1982) 153 CLR 1.
68 ibid, 30 (Gibbs CJ, Wilson and Murphy JJ agreeing).
69 [1943] 2 All ER 560 (Lord Greene MR, with whom the two other judges concurred).
70 ibid.
71 ibid.
72 O™Reilly (1982) 153 CLR 1 at 11 (Gibbs CJ). See also Wilson J at 31.
73 ibid, 11 (Gibbs CJ). See also Wilson J at 31.
74 ibid, 31 (Wilson J).
75 ibid, 31 (Wilson J). Mason J dissented, holding that the doctrine of ministerial respon-
sibility ˜has no application to the Deputy Commissioner™ (at 20).
437
NOTES


76 ibid, 12 (emphasis added).
77 ibid, 12 (Gibbs CJ), 32 (Wilson J).
78 See the terms of this ground in ADJR Act s7. See also Administrative Decisions (Judicial
Review) Act 1989 (ACT) s7; Judicial Review Act 1991 (Qld) s22; Judicial Review Act 2000
(Tas) s19.
79 ADJR Act s7(1).
80 See NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80
ALJR 367.
81 See, for example, Ipec Air (1965) 113 CLR 177 at 204“6 (Windeyer J) and Ansett (1977)
139 CLR 54 at 87 (Murphy J).
82 See, for example, Sir Anthony Mason, n41 above, at 129 who explained that ˜in Australia
the doctrine of individual ministerial responsibility, which was once a valuable sanction
compelling sound administrative action, is in decline™.
83 O™Reilly (1982) 153 CLR 1 at 12.
84 Perder Investments Pty Ltd v Elmer (1991) 23 ALD 545 at 549 (Pincus J).




Chapter 17
1 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 489 (Gleeson CJ).
2 The rule against bias is explained in the next chapter.
3 (1985) 159 CLR 550 at 584.
4 Cooper v Wandsworth Board of Works (1863) 143 ER 414.
5 Ridge v Baldwin [1964] AC 40.
6 Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629; Council of Civil Service
Unions v Minister for Civil Services [1985] AC 374; FAI Insurances Ltd v Winneke (1982)
151 CLR 342.
7 I Holloway, Natural Justice and the High Court of Australia (Ashgate, 2002).
8 See, for example, M Aronson, B Dyer and M Groves Judicial Review of Administrative
Action (3rd edn, LBC Information Services, 2004) Chapters 7“9.
9 ibid, 379.
10 [1964] AC 40.
11 [1967] 2 AC 337.
12 (1968) 119 CLR 222.
13 (1985) 159 CLR 550 at 582.
14 Aronson, Dyer and Groves, n8 above, 389.
15 Aronson, Dyer and Groves, n8 above, cite as examples Bates v Lord Hailsham [1972] 1
WLR 1373; Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446.
16 (1985) 159 CLR 550 at 583.
17 ibid, 585.
18 For example, R Creyke and J McMillan, Control of Government Action: Text, Cases and
Commentary (LexisNexis Butterworths, 2005) 517.
19 Aronson, Dyer and Groves, n8 above, 378, quoting Brennan J in Kioa v West (1985) 159
CLR 550 at 616.
20 (1990) 169 CLR 648 at 653 (citations omitted).
21 (2003) 214 CLR 1.
22 ibid, 27 quoting from Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR
273 at 311“12.
23 Commencing with his judgment in Kioa v West (1985) 159 CLR 550, and repeated in
South Australia v O™Shea (1987) 163 CLR 378 at 411, Attorney-General (NSW) v Quin
(1990) 170 CLR 1 at 34, and Annetts v McCann (1990) 170 CLR 596 at 606.
24 (2003) 214 CLR 1 at 13.
25 [1911] AC 179 at 182.
26 Creyke and McMillan, n18 above, 523.
438 NOTES


27 Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274;
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
28 (1985) 159 CLR 550 at 615.
29 Aronson, Dyer and Groves, n8 above, 382“4.
30 (1985) 159 CLR 500 at 619.
31 The relevant cases are South Australia v O™Shea (1987) 163 CLR 378, Attorney-General
(NSW) v Quin (1990) 170 CLR 1, and Ainsworth v Criminal Justice Commission (1992)
175 CLR 564. An exception was Annetts v McCann (1990) 170 CLR 596, in which
Brennan J and Mason J differed in substantial respects including the final result of the
case.
32 (2000) 204 CLR 82.
33 (1985) 159 CLR 550 at 584.
34 (1985) 159 CLR 500 at 619.
35 (2001) 206 CLR 57.
36 This is the term increasingly used to refer to remedies sought in applications made in
the original jurisdiction of the High Court in s75(v) of the Constitution.
37 ibid, 84.
38 ibid, 74.
39 ibid, 95.
40 See, for example, WAJR v MIMIA (2002) 204 ALR 624 (French J), Moradian v MIMIA
(2004) 142 FCR 170.
41 See, for example, NAQF v MIMIA (2003) 130 FCR 456; Wu v MIMIA (2003) 133 FCR
221; VXDC v MIMIA (2005) 146 FCR 562; SZEGT v MIMIA [2005] FCA 1514; SZBDF v
MIMA (2005) 148 FCR 302.
42 [2006] FCAFC 61.
43 ibid, [66]. The bias rule is not excluded: VXDC v Minister for Immigration and Multicul-
tural and Indigenous Affairs (2005) 146 FCR 562.
44 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62.
45 See C Beaton-Wells, ˜Judicial Review of Migration Decisions: Life After S157™ (2005)
33 Federal Law Review 141 at 144“7.
46 Annetts v McCann (1990) 170 CLR 596 at 599 (Mason CJ, Deane and McHugh JJ).
47 (2001) 206 CLR 57 at 99“102.
48 A de novo rehearing refers to one in which the review body may consider new evidence
rather than just whatever evidence was before the original decision maker.
49 (1976) 136 CLR 106.
50 G Brennan, ˜The Purpose and Scope of Judicial Review™ in M Taggart (ed), Judicial
Review of Administrative Action in the 1980s: Problems and Prospects (Oxford University
Press, 1986) 18 at 28.
51 Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 (Tucker LJ).
52 Discussed in Holloway, n7 above, 121“53. For the broader context, see also B Schwartz,
Lions over the Throne: The Judicial Revolution in English Administrative Law (New York
University Press, 1987).
53 G Ganz, Administrative Procedures (Sweet and Maxwell, 1974) 1.
54 ibid.
55 [1911] AC 179 at 182.
56 Holloway, n7 above, 58.
57 [1915] AC 120.
58 ibid, 62.
59 See S Sterett, Creating Constitutionalism? The Politics of Legal Expertise and Adminis-
trative Law in England and Wales (Univ of Michigan Press, 1997).
60 The Board of Education comprised a President appointed by the Crown; the President of
the Privy Council; ˜Her Majesty™s Principal Secretaries of State, the First Commissioner
of her Majesty™s Treasury, and the Chancellor of Her Majesty™s Exchequer™: Board of
Education Act 1899 (62 and 63 Vict. 33) s1(2). The Local Government Board was
439
NOTES


similarly constituted, with the Lord Privy Seal instead of the First Commissioner of Her
Majesty™s Treasury: Local Government Board Act 1871 (34 and 35 Vict. 70) s3.
61 Board of Education v Rice [1911] AC 179 at 182. This is not unlike the comments of Calli-
nan and Heydon JJ in NAIS v Minister for Immigration and Multicultural and Indigenous
Affairs (2005) 80 ALJR 367 at [172] where their Honours noted that unfairness could
arise by the denial of an opportunity to either present or consider a case.
62 Russell v Duke of Norfolk [1949] 1 All ER 109 at 118.
63 Creyke and McMillan, n18 above, 572.
64 The broader dimensions of judicial review of migration decision-making is traced in
J McMillan, ˜Federal Court v Minister for Immigration™ (1999) 22 AIAL Forum 1; J
McMillan, ˜Judicial Restraint and Activism in Administrative Law™ (2002) 30 Federal
Law Review 335.
65 In 2004“5, forty percent of decisions of the RRT were subject to judicial review: Annual
Report 2004“5, i.
66 Migration Reform Act 1992 (Cth).
67 Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth).
68 [1999] FCA 615 at [3]“[4].
69 (2005) 80 ALJR 228.
70 (2005) 80 ALJR 367 at [14].
71 Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous
Affairs [2006] FCAFC 16 at [72].
72 Craig v South Australia (1995) 184 CLR 163.
73 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; Hot Hold-
ings Pty Ltd v Creasy (2002) 210 CLR 438.
74 See, for example, South Australia v Slipper [2004] FCAFC 164, where the focus was
on whether the circumstances demonstrated such urgency that the special hearing
process set out in the statute could be dispensed with, rather than the fact that it was
the minister making the decision.
75 Aronson, Dyer and Groves, n8 above, 489.
76 N Bedford and R Creyke, Inquisitorial Processes in Australian Tribunals (AIJA, 2006)
43“4.
77 ibid, 35“45.
78 (1994) 49 FCR 576 at 591“2.
79 Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57
at 69 (Gummow and Hayne JJ).
80 Re Refugee Review Tribunal and Anor; ex parte Aala (2000) 204 CLR 82 at 115“16
(Gaudron and Gummow JJ).
81 An example is Somaghi v Minister for Immigration, Local Government and Ethnic Affairs
(1991) 102 ALR 339, where the majority held that the minister™s delegate was required
to disclose to the applicant the conclusion that his sole purpose in sending a letter to
the Iranian Embassy was to enhance his claim for refugee status.
82 Muin v Refugee Review Tribunal (2002) 190 ALR 601.
83 (1995) 183 CLR 273 at 311.
84 Administrative Decisions Tribunal Act 1997 (NSW) s73(4)(a).
85 [2005] FCA 1514.
86 ibid, [29].
87 [2006] FCAFC 16.
88 ibid, [76].
89 ibid, [171].
90 (1994) 49 FCR 576 at 592.
91 (1985) 159 CLR 550 at 629.
92 (2005) 80 ALJR 228 [18] (emphasis added).
93 (2005) 80 ALJR 367.
94 ibid, [172].
440

95 (2003) 77 ALJR 1088.
96 ibid, [78].
97 (2000) 204 CLR 82.
98 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
99 (2003) 203 CLR 1.
100 A test derived from Stead v State Government Insurance Commission (1986) 161 CLR
141.
101 (1985) 159 CLR 550 at 603.
102 ibid, 633.
103 See Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003)
133 FCR 541; Lu v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCAFC 340.
104 Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133
FCR 541; NARV v Minister for Immigration and Multicultural and Indigenous Affairs
(2003) 203 ALR 494.
105 (2001) 204 CLR 82 at 109.
106 (2003) 214 CLR 1 at 14.

Chapter 18
1 For a discussion of the rule of law concept see C Stewart, ˜The Rule of Law and the
Tinkerbell Effect: Theoretical Considerations, Criticisms and Justifications for the
Rule of Law™ (2004) 4 Macquarie Law Journal 135.
2 [2000] 2 WLR 622.
3 Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223.
4 M Robert, ˜Public Law Representations and Substantive Legitimate Expectations™
(2001) 64 Modern Law Review 112 at 112“13; M Allars, Australian Administrative
Law: Cases and Materials (1997) 458. Also note Council of Civil Service Unions v Min-
ister for the Civil Service [1985] AC 374 at 410“11 (Lord Diplock).
5 (1985) 159 CLR 550.
6 ibid, 563.
7 J Spigelman, ˜The Integrity Branch of Government™ (AIAL National Lecture Series,
2004) 1 at 7.
8 P Craig, Administrative Law (5th edn, Thomson, 2003) 641.
9 ibid, 639“41.
10 H Woolf and J Jowell, De Smith Woolf and Jowell™s Judicial Review of Administrative
Action (5th edn, Sweet and Maxwell, 1995) 417.
11 [1898] 2 QB 91.
12 ibid, 99“101.
13 [1972] 2 QB 299.
14 ibid, 308.
15 [1983] 2 AC 629.
16 [1977] QB 643.
17 M Allars, Introduction to Australian Administrative Law (Butterworths, 1990) 254.
18 [1976] ICR 170.
19 ibid, 185.
20 [1984] 1 WLR 1337.
21 ibid, 1347.
22 [1985] AC 835.
23 ibid, 866“7 (Lord Templeman).
24 ibid, 866.
25 [1990] 1 All ER 91.
26 [1996] STC 681
27 ibid, 695.
28 [1995] 2 All ER 714.
441
NOTES


29 [1997] 1 WLR 906.
30 [1997] 1 WLR 906 at 920.
31 See also C Stewart, ˜Substantive Unfairness: A New Species of Abuse of Power?™ (2000)
28 Federal Law Review 618“635.
32 Coughlan [2000] 2 WLR 622 at 649.
33 ibid, 648“9.
34 ibid, 649.
35 ibid, 654.
36 For example, rights to accommodation and care in Coughlan or a right to not be
reassessed for tax in R v IRC; Ex parte Preston [1985] AC 835.
37 Laker Airways Ltd v Department of Trade [1977] QB 643.
38 HTV v Price Commission [1976] ICR 170.
39 Coughlan [2000] 2 WLR 622 at 655; R v IRC; Ex parte Preston [1985] AC 835.
40 Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629.
41 Coughlan [2000] 2 WLR 622 at 656.
42 Matrix Securities Ltd v Inland Revenue Commissioners [1994] 1 WLR 334.
43 Coughlan [2000] 2 WLR 622 at 656.
44 R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators™ Association [1972] 2
QB 299.
45 Coughlan [2000] 2 WLR 622 at 656.
46 Liverpool Taxis [1972] 2 QB 299.
47 Coughlan [2000] 2 WLR 622 at 656“7.
48 [2001] Lloyds Law Reports Medical 73.
49 [2001] EWCA Civ 1779.
50 [2001] EWHC Admin 479.
51 [2002] EWHC 181(Admin).
52 [2001] EWCA Civ 607.
53 [2001] EWCA Civ 607 [31]“[55].
54 [2001] 1 WLR 1115.
55 ibid, 1129.
56 ibid, 1130“1
57 R v Secretary of State for the Home Department; Ex Parte Hindley [2000] UKHL 21.
58 [2004] EWHC 2251.
59 [2000] UKHL 22.
60 [2002] EWHC 230 (Admin).
61 [2002] EWHC 2119.
62 ibid, [38].
63 [2002] UKHL 8.
64 ibid, [34].
65 [2003] EWCA Civ 1885.
66 ibid, [120].
67 [2002] UKHL 3.
68 ibid, [44].
69 [2005] EWCA Civ 744.
70 [2005] EWHC 2720.
71 [2005] EWHC 1378 (Admin).
72 [2005] EWCA Civ 1363.
73 ibid, [67].
74 ibid, [68].
75 ibid, [69].
76 Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121; David Jones Finance and
Investments Pty Ltd v Commissioner of Taxation (1991) 28 FCR 484; Bellinz v Commis-
sioner of Taxation (1998) 84 FCR 154.
77 (1990) 170 CLR 1.
78 ibid, 23.
442 NOTES


79 ibid.
80 ibid, 35“6.
81 (1990) 21 FCR 193.
82 ibid 228.
83 (1995) 183 CLR 273 at 291 (Mason CJ and Deane J).
84 (1997) 73 FCR 303.
85 Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303 at 325.
86 (2000) 170 ALR 529.
87 ibid, 546.
88 [2000] FCA 1658.
89 [2000] FCA 1420 [97].
90 (2003) 195 ALR 502.
91 ibid, [37].
92 ibid, [73].
93 See, for example, McWilliam v Civil Aviation Safety Authority [2004] FCA 1701.
94 Rush v Commissioner of Police [2006] FCA 12.
95 Though the chapter in this book by Airo-Farulla (chapter 14) suggests that the role of
judges in this ground might now not be as limited as was previously the case.
96 C Stewart, ˜Health Care and Judicial Review: A further role for the courts?™ (1999) 7
Journal of Law and Medicine 212.
97 Quin (1990) 170 CLR 1 at 39“40.
98 Hon M Gleeson, ˜Judicial Legitimacy™ (2000) 20 Australian Bar Review 4 at 11.



Chapter 19

The author thanks Sarah Finnin for her helpful research assistance in preparing this
chapter.
1 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.
2 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1.
3 G Griffiths and C Evans, ˜Teoh and Visions of International Law™ (2000) 21 Australian
Yearbook of International Law 75.
4 Opened for signature 20 November 1989, 1577 UNTS 44, 28 ILM 1457 (entered into
force 2 September 1990).
5 C Beaton-Wells, ˜Australian Administrative Law: The Asylum-Seeker Legacy™ [2005]
Public Law 267.
6 For example, Migration Act 1958 (Cth) s474 and s486A.
7 See the High Court™s decision in Plaintiff S157/2002 v Commonwealth of Australia
(2003) 211 CLR 476.
8 The relevant sections of the policy are reproduced in Teoh (1995) 183 CLR 273 at
279“80.
9 This outline of the facts is taken from the judgment of Mason CJ and Deane J in Teoh
(1995) 183 CLR 273 at 279“80.
10 ibid, 281.
11 ibid, 281.
12 ibid, 291“2 (Mason CJ and Deane J), 302 (Toohey J).
13 ibid, 292 (Mason CJ and Deane J), 302“3 (Toohey J).
14 See below at Part 3(b).

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