<<

. 18
( 19)



>>

15 This provision was introduced in 1998 by an amendment to the Migration Act 1958
(Cth). See Migration Legislation Amendment (Strengthening of Provisions relating to
Character and Conduct) Act 1998 (Cth), referred to in Lam (2003) 214 CLR 1 at 15“
16.
16 This summary of the facts is taken from the judgment of Gleeson CJ in Lam (2003) 214
CLR 1 at 4“8.
17 ibid, 9.
443
NOTES


18 See, for example, Chow Hung Ching v The King (1948) 77 CLR 449 at 478; and Bradley v
Commonwealth (1973) 128 CLR 557 at 582. There are possible exceptions to this rule,
for example, a treaty of peace may be directly enforceable in the courts: Chow Hung
Ching v The King (1948) 77 CLR 449 at 478.
19 Dietrich v The Queen (1992) 177 CLR 292 at 306.
20 J Perry, ˜At the Intersection “ Australian and International Law™ (1997) 71 Australian
Law Journal 841.
21 Polites v Commonwealth (1945) 70 CLR 60 at 68“9.
22 Kruger v Commonwealth 190 CLR 1 at 71 (Dawson J), and Teoh at 287 (Mason CJ and
Deane J).
23 See Jago v Judges of the District Court of NSW (1988) 12 NSWLR 558 at 569 (Kirby P).
24 Mabo v Queensland [No 2] (1992) 175 CLR 1.
25 ibid, 29.
26 Teoh (1995) 183 CLR 273 at 286“8 (Mason CJ and Deane J), 298 (Toohey J), 304
(Gaudron J) and 315 (McHugh J).
27 ibid, 291“2 (Mason CJ and Deane J). See also Toohey J at 302.
28 [1994] 2 NZLR 257 at 266.
29 ibid, 300.
30 ibid, 304 (Gaudron J).
31 ibid, 316.
32 ibid.
33 M Allars, ˜One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in
Government: Teoh™s Case and the Internationalisation of Administrative Law™ (1995)
17 Sydney Law Review 204.
34 Lim v Minister for Immigration, Local Government and Ethnics Affairs (1992) 176 CLR 1.
35 Kioa v West (1985) 159 CLR 550.
36 International Covenant on Civil and Political Rights, opened for signature 26 December
1966, 999 UNTS 171 (entered into force 23 March 1976), Convention Relating to the
Status of Refugees, opened for signature 28 July 1951, 198 UNTS 150 (entered into force
22 April 1954), and Protocol relating to the Status of Refugees, opened for signature
16 December 1966, 606 UNTS 267 (entered into force 4 October 1967).
37 Lim (1992) 176 CLR 1 at 38.
38 Kioa (1985) 159 CLR 550 at 570.
39 ibid, 630.
40 ibid, 571.
41 Teoh (1995) 183 CLR 273 at 292. See also Lam at 33.
42 Allars, n33 above, at 205.
43 Joint statement by the Minister for Foreign Affairs and the Attorney-General, Interna-
tional Treaties and the High Court Decision in Teoh, 10 May 1995 (1995 joint statement).
44 H Charlesworth, ˜Australia™s Split Personality: Implementation of Human Rights Treaty
Obligations in Australia™ in P Alston and M Chiam (eds), Treaty-Making and Australia
(1995) 130; and A Duxbury, ˜The Anti-Teoh Bill Revisited™ (1997) International Law
News 28, 29.
45 1995 joint statement.
46 See Senate Legal and Constitutional Legislation Committee, Administrative Decisions
(Effect of International Instruments) Bill 1995 (1995) 20. Following the introduction of
a second Bill in 1997, the Committee produced another report “ Senate Legal and Con-
stitutional Legislation Committee, Administrative Decisions (Effect of International
Instruments) Bill 1997 (1997).
47 Duxbury, n44 above, at 29.
48 Joint statement by the Minister for Foreign Affairs and the Attorney-General and Minis-
ter for Justice, ˜The Effect of Treaties in Administrative Decision-Making™, 25 February
1997 (1997 joint statement).
49 ibid, at para 3.
50 See footnote 70 and accompanying text.
444 NOTES


51 Administrative Decisions (Effect of International Instruments) Bill 1995 (Cth) cl5; and
Administrative Decisions (Effect of International Instruments) Bill 1997 (Cth) cl5. For
differences between the two Bills see Duxbury, n44 above, 31“3.
52 South Australia was the only state to enact such legislation. At the time there was
some confusion as to whether Teoh applied to state as well as federal administrative
decision makers, however, it would appear that these concerns were not warranted.
See K Walker, ˜Treaties and the Internationalisation of Australian Law™ in C Saunders
(ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 224.
53 Collins v The State of South Australia (1999) 74 SASR 200 at 207 (˜Collins™).
54 ibid, 208.
55 Article 10 2(a) of the ICCPR provides that ˜Accused persons shall, save in exceptional
circumstances, be segregated from convicted persons and shall be subject to treatment
appropriate to their status as unconvicted persons.™
56 Collins (1999) 74 SASR 200 at 213. Millhouse J (at 209) suggested that the ICCPR was
binding on the Commonwealth by virtue of its reproduction to the Human Rights and
Equal Opportunity Commission Act 1986 (Cth). This view was flatly rejected by the Full
Court of the Federal Court in Minogue v Williams (2000) 60 ALD 366 at 373.
57 For example, Allars, n33 above, 239“41.
58 (1995) 38 ALD 435 at 440“1.
59 For example, Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 50 ALD 690,
and Holani v Department of Immigration and Ethnic Affairs (1996) 44 ALD 370. For a
further list of similar cases see Griffith and Evans, n3 above, 78.
60 (1996) 69 FCR 431 at 437“8.
61 Lam (2003) 211 CLR 1 at 32“3.
62 ibid, 33.
63 ibid, 38.
64 ibid, 45.
65 ibid, 49.
66 Sanders v Snell (1998) 196 CLR 329 at 351 (Callinan J).
67 L Ruddle and S Nicholes, ˜Case Note: B and B and MIMIA: Can International Treaties
Release Children from Immigration Detention Centres™ (2004) 5 Melbourne Journal of
International Law 256 at 265.
68 H Charlesworth, M Chiam, D Hovell and G Williams, ˜Deep Anxieties: Australia and
the International Legal Order™ (2003) 25 Sydney Law Review 423 at 446.
69 ibid.
70 David Dyzenhaus, Murray Hunt and Michael Taggart, ˜The Principle of Legality in
Administrative Law: Internationalisation as Constitutionalism™ (2001) 1 Oxford Uni-
versity Commonwealth Law Journal 5 at 11.
71 Lam (2003) 214 CLR 1 at 32.
72 ibid, 34.
73 ibid, 48.
74 For example, see comments by Ewing of the Australian Mining Industry Council and
Hadler of the National Farmers™ Federation in Senate Legal and Constitutional Refer-
ences Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties
(1995) 94.
75 ibid. See Duxbury, n44 above, 30.
76 Kioa v West (1985) 159 CLR 550 at 582.
77 ibid, 610 (Brennan J).
78 M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3rd edn,
Lawbook Co, 2004) at 395.
79 ibid, 395.
80 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 672
(˜Haoucher™)
81 Aronson, Dyer and Groves, n3 above, at 396.
82 Teoh (1995) 183 CLR 273 at 291.
445
NOTES


83 ibid, 291“2.
84 ibid, 311.
85 ibid, 311.
86 Kioa (1985) 159 CLR 550.
87 [1969] 2 Ch D 149.
88 Kioa (1985) 159 CLR 550 at 617.
89 ibid, 617“18.
90 See, for example, Aronson, Dyer and Groves, n3 above, 409.
91 Lam (2003) 214 CLR 1 at 45.
92 ibid, 38.
93 ibid, 34.
94 Teoh (1995) 183 CLR 273 at 291.
95 Haoucher (1990) 169 CLR 648 at 683“4.
96 Lam (2003) 214 CLR 1 at 32 (McHugh and Gummow JJ). Hayne J (at 38) also
suggested that Teoh may not stand beside Haoucher, but expressly left the issue
undecided.
97 ibid, 32.
98 ibid, 13.
99 ibid, 45.
100 ibid, 47.
101 B Dyer, ˜Legitimate Expectations in Procedural Fairness After Lam™, in M Groves (ed),
Law and Government in Australia (Federation Press, 2005) 207.
102 Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 22.
103 [2001] QB 213. The English position is discussed in HRW Wade and CF Forsyth,
Administrative Law (9th edn, OUP, 2004) 500“6.
104 Lam (2003) 214 CLR 1 at 10.
105 ibid, 23.
106 Kioa (1985) 159 CLR 550 at 622.
107 H Burmester, ˜Teoh Revisited After Lam™ (2004) AIAL Forum No 40 33 at 38.
108 Lam (2003) 214 CLR 1 at 12“13.
109 ibid, 14.
110 ibid, 36.
111 See generally B Dyer, ˜Determining the Content of Procedural Fairness™ (1993) 19
Monash University Law Review 165.
112 Kioa (1985) 159 CLR 550 at 612.
113 ibid, 563.
114 ibid, 585.
115 Lam (2003) 214 CLR 1 at 35 (McHugh and Gummow JJ), 48 (Callinan J).
116 W Lacey, ˜Case Commentary: A Prelude to the Demise of Teoh: The High Court Deci-
sion in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam™ (2004)
26 Sydney Law Review 131 at 142.
117 Lam (2003) 214 CLR 1 at 14.
118 ibid, 35.
119 Lacey, n116 above, 142.
120 ibid, 151.
121 Dyer, n111 above, 192.
122 (2004) 221 CLR 1 (˜Applicant NAFF of 2002™).
123 ibid, 14.
124 ibid, 15.
125 ibid, 11“14. See also Dyer, n111 above, 211.
126 Lam (2003) 214 CLR 1 at 23.
127 Applicant NAFF of 2002 (2004) 221 CLR 1 at 23.
128 ibid, 24.
129 ibid, 25.
130 ibid, 25 (per Kirby J).
446 NOTES


131 (2003) 77 ALD 1 at 13 (˜WACO™).
132 ibid, 13.
133 ibid, 13“14 (emphasis added).
134 ibid, 10.
135 ibid, 13.
136 [2006] FCAFC 53 at [55].
137 ibid, [56].
138 ibid.
139 Expo-Trade Pty Ltd v Minister for Justice and Customs and Another (2003) 134 FCR
189 (Expo-Trade Pty Ltd). The non-injurious price is a mechanism under s269TACA
of the Customs Act 1901 (Cth) for determining the price that could be achieved in the
absence of dumping or a subsidy: see Customs Manual reproduced at (2003) 134 FCR
189, 202.
140 ibid, 206.
141 ibid, 207.
142 Dyer, n101 above, 205.
143 Le v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD
17 at 38 (Jacobson and Bennett JJ).
144 Royal Women™s Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85 at
[79“80] (footnotes omitted).
145 ibid, [75“78].
146 S French, ˜How “Legitimate” are Legitimate Expectations?™ (2006) 80 Law Institute
Journal 54, 57 (March).
147 Dyer, n101 above, 191.



Chapter 20
1 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80
ALJR 367 at [172].
2 Allegations of actual bias remain rare, particularly against judicial officers, but they
are often now raised in migration decision-making because amendments to the Migra-
tion Act 1958 (Cth) restricting the potential grounds of judicial review have limited
the scope of judicial review on the ground of bias to actual and not apprehended bias.
3 See, for example, Sun v Minister for Immigration and Ethnic Affairs (1997) 151 ALR
505 at 551“2; Gamaethige v Minister for Immigration and Multicultural Affairs (2001)
109 FCR 424 at 443.
4 Apprehended bias is sometimes also referred to as ˜imputed™ or ˜suspected™ bias:
Australian National Industries Ltd v Spedley Securities Ltd (in Liq) (1992) 26 NSWLR
411 at 414.
5 See, for example, R v Luskink; Ex parte Shaw (1980) 32 ALR 47 at 50 (Gibbs CJ).
6 Migration law is an exception. Amendments to the procedures governing refugee
applications have restricted the ground of judicial review for bias to claims of actual
bias only. Not surprisingly, the number of claims for actual bias in refugee applications
dramatically rose after these amendments.
7 Minister for Immigration and Multicultural Affairs; Ex parte Jia (2001) 205 CLR 507
at 541.
8 A point conceded by Callinan J in Johnson v Johnson (2000) 201 CLR 488 at 517.
9 This conception of fairness might also support the grant of differing procedural rights
to parties, if that places the parties on a more equal footing. For example, the grant
of legal or other representation to a layperson may allow that person to better his
or her case. An experienced administrative official might have such knowledge and
experience of administrative review that the requirements of procedural fairness do
not warrant a reciprocal grant of legal or other representation.
447
NOTES


10 In the context of judicial decision-making it has been suggested that bias will be estab-
lished if it is clear the judge™s mind is, or appears to be, incapable of alteration: Re
JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (Mason J). On this view, perceptions and
predispositions on the part of the judge are permissible so long as they do not preclude
the judge from reaching a conclusion different to those views in an appropriate case.
A judge who brings pre-existing views to an issue, even strongly-held ones, will not
necessarily fall afoul of the rule against bias. A similar view has been adopted in many
other contexts. See, for example, Ferguson v Cole (2002) 121 FCR 402 at 422“3 [views
aired by a royal commissioner in an interim report did not indicate an unalterable
mindset by the commissioner, so any predispositions evidenced in the interim report
was insufficient to establish bias]; Eaton v Overland (2001) 67 ALD 671 at 728 [senior
police officer involved in disciplinary proceedings was not required to ˜entirely lack™
preconceived views on the matter].
11 See, for example, Ebner v Official Trustee (2000) 205 CLR 337 at 362“5 (Gaudron
J). Kirby J also accepted that requirement of impartiality might, for judges, have a
constitutional foundation and suggested that this might extend to state judges: 373.
See also Smits v Roach [2006] HCA 36 at [121] (Kirby J).
12 The issue of waiver, which is discussed later in this chapter, would also become more
complex if the rule against bias had a constitutional basis. At present parties may waive
a claim of bias, but it would difficult to imagine that the bias rule could be waived if it
was a constitutional requirement. But a similar argument can be made even if the rule
does not have a constitutional basis. If the rule against bias operates to promote public
confidence in the judiciary, it can be argued that this element of public interest is not
one for the parties to waive. See B Toy-Cronin, ˜Waiver of the Rule Against Bias™ (2002)
9 Auckland University Law Review 850 at 864 where it is argued that bias may constitute
a jurisdictional error, the consequences of which cannot be waived by a party.
13 Kable v DPP (NSW) (1996) 189 CLR 51.
14 Gaurdon J thought otherwise in Ebner v Official Trustee (2002) 205 CLR 337 at 363,
but her Honour™s view has not been adopted in later cases.
15 The classic statement comes from R v Sussex Justices; Ex parte McCarthy [1924] 1 KB
256 at 259 where Lord Hewart CJ said that ˜justice should not only be done, but should
manifestly and undoubtedly be seen to be done™. The case involved a solicitor who
was acting for a client suing a motorist for damages caused in a car accident. The
solicitor also worked as a clerk to the justices, and he stayed with the justices when
they adjourned to decide their verdict on the motorist™s charges. It emerged that the
justices did not know of the conflict of solicitor/clerk (who had not made prejudicial
statements while the justices deliberated) but the conviction was overturned. The court
was not only about whether impropriety had occurred, but also ˜what might appear™
from the actions of the clerk.
16 A point affirmed by the House of Lords in Gillies v Secretary of State for Work and
Pensions [2005] 1 All ER 731 at 739.
17 Ebner v Official Trustee (2000) 205 CLR 337 at 381 (Kirby J).
18 (1852) 3 HLC 759.
19 The many cases to this effect were reviewed by Kirby J in Ebner v Official Trustee (2000)
205 CLR 337 at 376“87.
20 R v Bow Street Magistrate; Ex parte Pinochet (No 2) [2000] 1 AC 119.
21 R v Bow Street Magistrate; Ex parte Pinochet (No 1) [2000] 1 AC 61.
22 R v Bow Street Magistrate; Ex parte Pinochet (No 2) [2000] 1 AC 119.
23 Pinochet (No 2) 1 AC 119 at 135 (Lord Browne-Wilkinson, Lord Nolan agreeing), 143
(Lord Hope).
24 (2000) 205 CLR 337.
25 ibid, 356 (Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J agreeing). Kirby
J disagreed strongly with that approach, which he described as an ˜ahistorical reinter-
pretation™ of Dimes: 378.
448 NOTES


26 ibid, 356“7. On this point the majority effectively agreed with the suggestion in Pinochet
(No 2) that financial and other interests were conceptually similar for the purposes of
the rule against bias, but took a quite different view as to whether such interests should
lead to automatic disqualification.
27 ibid, 349.
28 ibid, 345. The references to jurors were no doubt inspired by Webb v R (1994) 181 CLR
41, where a claim of bias succeeded against a juror.
29 Gleeson CJ appeared to support a similar approach to the requirements of procedural
fairness in the Lam case. His Honour rejected the claim of the applicant (Lam) because
he had failed to explain how the alleged denial of natural justice had actually affected
his case. The Chief Justice stressed the practical nature of fairness and concluded that
Lam had not demonstrated any ˜practical injustice™ by reason of the alleged denial of
procedural fairness: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam
(2003) 214 CLR 1, 14. This approach is similar to that of Ebner because it compels an
applicant to explain the effect of the alleged source of unfairness.
30 A point emphasised by the High Court in Smits v Roach [2006] HCA 36.
31 To echo Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 1
AC 532 at 548 where his Lordship commented that ˜In law context is everything.™
32 Ebner v Official Trustee (2000) 205 CLR 337 at 344.
33 Minister for Immigration and Multicultural Affairs; Ex parte Jia (2001) 205 CLR 507.
34 There was little doubt that if the court had held otherwise, the minister would certainly
have been disqualified from determining Mr Jia™s case and possibly many others.
35 (2001) 205 CLR 507, 539 (Gleeson CJ and Gummow J, Hayne J agreeing).
36 ibid, 583.
37 ibid, 584.
38 Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206
CLR 128.
39 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; Minister for Immigration
and Multicultural Affairs v Wang (2003) 215 CLR 518.
40 (2002) 210 CLR 438.
41 ibid, 460. Callinan J agreed with Gaudron, Gummow and Hayne JJ, but pointedly
declined to decide this point because he concluded that the involvement of the officers
whose interest was alleged to give rise to the apprehension of bias was so peripheral
that it could not have supported a reasonable apprehension of bias: 489.
42 ibid, 455.
43 [1993] AC 646.
44 ibid, 670.
45 (1994) 181 CLR 41 at 50“3 (Mason CJ and McHugh J), 68 (Deane J).
46 This approach was regarded as settled law in Ebner v Official Trustee (2000) 205 CLR
337 at 350 (Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J agreeing). That
approach has since been accepted in England: In re Medicaments and Related Classes
of Goods (No 2) [2001] 1 WLR 700 at 726“7 and Porter v Magill [2002] 2 AC 357. The
evolution of recent English law is traced in HWR Wade and CF Forsyth, Administrative
Law (9th edn, OUP, 2004) 464“7.
47 A point acknowledged by the Privy Council in Man O™War Station Ltd v Auckland Council
(No 1) [2002] 3 NZLR 577. The Council was invited to adjust the bias test in New
Zealand, by adopting the ˜real possibility™ test of bias accepted in Porter v Magill [2002]
2 AC 357. The Council refused the invitation because the issue had not been argued
before the Court of Appeal of New Zealand, but it also noted that the difference between
the two tests was ˜a fine one™ that could not arguably influence the case at hand: 3 NZLR
577 at 583.
48 Johnson v Johnson (2000) 200 CLR 488 at 509.
49 (2002) 210 CLR 438.
50 ibid, 480.
449
NOTES


51 ibid, 484.
52 A point conceded by Kirby J when he admitted that the ˜reasonable person™ test was
often ˜invoked . . . to give the allure of objectivity beyond the opinions of the actual
judges who make the decision™: Smits v Roach [2006] HCA 36 at [97].
53 (1994) 181 CLR 41.
54 ibid, 74.
55 [2000] 1 AC 119.
56 [2000] QB 451. The judgment had particular status because the court was comprised
of the Lord Chief Justice, the Master of the Rolls and the Vice-Chancellor.
57 It has long been clear that parties cannot choose their judge: Re JRL; Ex parte CJL (1986)
161 CLR 342 at 352.
58 A criticism made cogently in K Malleson, ˜Safeguarding Judicial Impartiality™ (2002)
22 Legal Studies 53.
59 The description of the Locobail decision as dogmatic is made in M Taggart, ˜Adminis-
trative Law™ [2003] New Zealand Law Review 99 at 101.
60 See, for example, Hoekstra v Lord Advocate [2001] 1 AC 216 (complaint of bias in a
human rights case upheld against a judge who had written a very negative newspaper
article about human rights legislation). See also E Campbell, ˜Judges™ Freedom of
Speech™ (2002) 76 Australian Law Journal 499 where it is argued that judges should
accept that the demands of judicial office might require judges to speak carefully or
stay silent on some issues, to guard against future claims of bias.
61 See, for example, Brown v Police (1999) 74 SASR 402 (magistrate disqualified from
hearing a charge against a defendant whom he had previously convicted of offences of
violence because the second charge raised similar issues).
62 This conception of the judicial role is not affected by the rise of an increasingly assertive
form of case management in most Australian courts. Even the most active style of case
management is consistent with traditional judicial neutrality.
63 An instrumental rationale is one that justifies the rule against bias by reference to direct
outcomes, such as the greater quality and accuracy of decisions caused by observance of
the rule. A non-instrumental rationale places greater weight on more indirect outcomes
or values, such as increased participation by parties and the greater level of respect the
parties might receive through observance of the rule.
64 See, for example, Huang v University of NSW (No 3) [2006] FCA 626 (apprehension of
bias found when magistrate introduced affidavit evidence on his own motion).
65 Vakauta v Kelly (1989) 167 CLR 568.
66 A problem recognised by Callinan J in Johnson v Johnson (2000) 201 CLR 488 at 517“19.
67 But some cases suggest it is better to object prematurely than not at all because a failed
objection may be revived on appeal: Hutchinson v RTA [2000] NSWCA 332.
68 Johnson v Johnson (2000) 201 CLR 488 at 517. See also K Mason, ˜Unconscious Judicial
Prejudice™ (2001) 75 Australian Law Journal 676 at 681.
69 See, for example, Heap, in the matter of an Application for Writs of Prohibition, Certiorari
and Mandamus against the Australian Industrial Relations Commission [2003] FCAFC
36 at [33]; Magazzu v Business Licensing Authority [2001] VSC 5 at [16]“[19].
70 Smits v Roach [2006] HCA 36 at [46] (Gleeson CJ, Heydon and Crennan JJ, Gummow
and Hayne JJ agreeing); Jones v ACCC [2002] FCA 1054 at [126].
71 Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206
CLR 128 at 138“9 (Gleeson CJ, McHugh, Gummow and Hayne JJ, Callinan J agreeing).
72 The cases on this are reviewed in Metropolitan Fire and Emergency Services Board v
Churchill (1998) 14 VAR 9 at 27“9.
73 See, for example, CREEDNZ Inc v Governor-General [1981] 1 NZLR 172; Builders™ Reg-
istration Board (Qld) v Rauber (1983) 47 ALR 55.
74 (1998) 14 VAR 9 at 31.
75 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 70 at 88“9 (Mason CJ and
Brennan J). Deane J agreed with this proposition but took a stricter view of the
450 NOTES


circumstances in which necessity could excuse compliance with the rule against bias:
95“6.
76 See, for example, Builders™ Registration Board (Qld) v Rauber (1983) 43 ALR 55; National
Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296.
77 A classic example is a local council that has previously rejected planning applications
from a person. The council might be precluded from considering further applications
from that person, but it may not be if no other body may approve applications. See,
for example, R v City of Whyalla; Ex parte Kittel (1979) 20 SASR 386; IW v City of Perth
(1997) 191 CLR 1 at 50.
78 See, for example, R v Optical Board; Ex parte Qurban [1933] SASR 1 (necessity failed
where a medical board sent its members to visit a doctor to test whether he would
assault patients as alleged in a complaint before the Board. The removal of members
who had visited the doctor left the Board without a quorum but the court held that the
Board could have used people other than adjudicators to investigate the doctor).
79 See, for example, Sidney Harrison Pty Ltd v City Of Tea Tree Gully (2001) 112 LGERA
320 at 326.


Chapter 21
1 Several judges have said that taken alone, ˜jurisdiction™ is a ˜slippery™ word: Bray v F
Hoffmann-La Roche Ltd (2003) 200 ALR 607 at [235] (Finkelstein J); and Minister for
Immigration and Multicultural and Indigenous Affairs v B (2004) 206 ALR 130 at [106]
(Gummow, Hayne and Heydon JJ).
2 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR
57 at 122“3, references omitted.
3 That is how the Federal Court now treats it. See Hill, Branson and Stone JJ in SDAV v
Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43
at [27]: ˜The statement that a particular error is a “jurisdictional error” is a statement
of conclusion.™
4 See Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
at 657; and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant
S20/2002 (2003) 198 ALR 59 at [36].
5 This extension is an historical inheritance from England. It is curious because of its
greater tolerance of latent (as opposed to patent) legal errors, and because by def-
inition, the decision maker™s legal error was in a field in which the decision maker
was entitled to decide rightly or wrongly. A further curiosity is that certiorari usually
quashes the challenged decision retrospectively (i.e., from its inception), even where
the error was a non-jurisdictional patent error of law: Re McBain; Ex parte Australian
Catholic Bishops Conference (2002) 209 CLR 372 at 424“5.
6 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
7 Namely, s179 of the Industrial Relations Act 1996 (NSW). The Industrial Relations
Amendment Act 2005 (NSW) plugged one of s179™s few loopholes, which had allowed
judicial review applications to be brought ahead of the making of a purported decision.
In a concession to the judicial structure, however, the Act now allows judicial review
of Industrial Court decisions, effectively postponing ˜external scrutiny™ until the com-
pletion of the appeal processes within the industrial tribunal system. The Migration
Litigation Reform Act 2005 (Cth) tries to achieve a similar result, but it is unclear
whether that will withstand constitutional challenge.
8 Mr M Orkopoulos, NSW Legislative Assembly, Hansard 17 November 2005, p 20010.
9 A federal clause forbidding High Court review of a ˜purported decision™ would
be unconstitutional: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at
506.
10 Fish v Solution 6 Holdings Ltd [2006] HCA 22; Batterham v QSR Ltd [2006] HCA 23;
and Old UGC Inc v Industrial Relations Commission (NSW) [2006] HCA 24.
451
NOTES


11 Batterham v QSR Ltd [2006] HCA 23 at [26], Gleeson CJ, Gummow, Hayne, Callinan
and Crennan JJ.
12 Kirk Group Holdings Pty Ltd v Workcover Authority (NSW) [2006] NSWCA 172 at [31]
and [83].
13 Ousley v R (1997) 192 CLR 69.
14 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
15 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 339
and 350“2.
16 R Creyke and J McMillan, Control of Government Action (LexisNexis Butterworths,
2005) 790“5.
17 Fingleton v R (2005) 216 ALR 474. See also Fleet v Royal Society for the Prevention of
Cruelty to Animals (NSW) [2005] NSWSC 926.
18 See Public Service Association (SA) v Federated Clerks™ Union (1991) 173 CLR 132.
19 Creyke and McMillan, n16 above, 295.
20 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307.
21 Park Oh Ho v Minister for Immigration and Ethnic Affairs (1988) 14 ALD 787 at 792“3;
and Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR
55 at [44].
22 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 93, Gaudron and
Gummow JJ.
23 M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3rd edn,
2004) 29.
24 Supreme Court judges had issued the surveillance warrants in Ousley v R (1997) 192
CLR 69, but their validity could be reviewed on the theory that the judges had been
acting in an administrative role, rather than as Supreme Court judges.
25 See Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 638“40; Re Refugee
Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 93, 134, 140; Re Macks; Ex parte
Saint (2000) 204 CLR 158 at 177, 184“6, 248, 274“6; Continental Venture Capital Ltd
v Amann Aviation Pty Ltd (In Liq) (2001) 53 NSWLR 687 at 696; Minister for Immigra-
tion and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 645“6; and Berowra
Holdings Pty Ltd v Gordon [2006] HCA 32 at [11] and [88].
26 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 93, Gaudron and
Gummow JJ.
27 Aronson, Dyer and Groves, n23 above, 24“5.
28 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 156“7; Re McBain;
Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 403“4, 438“9,
466, 471“2; and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 520“5.
29 See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
at 657; and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant
S20/2002 (2003) 198 ALR 59 at [36].
30 Statutory requirements must always be observed, but not all of them are so important
that their breach will result in invalidity. We used to be able to describe those provisions
whose breach resulted in invalidity as ˜mandatory™, and those whose breach did not
have that result as ˜directory™. The terms are conclusory, and this has led the High Court
in one case to frown on their usage as a potential source of distraction from the real
issue, which is to ascertain the true legislative meaning: Project Blue Sky Inc v Australian
Broadcasting Authority (1998) 194 CLR 355 at 390. Others are not so easily distracted;
see: Aronson, Dyer and Groves, n23 above, 325; Plaintiff S157/2002 v Commonwealth
(2003) 211 CLR 476 at 488 (Gleeson CJ) and 533 (Callinan J); and J Spigelman,
˜Integrity and Privative Clauses™, in AIAL National Lecture Series on Administrative Law
No 2 (2004) 43 at 48.
31 Their Honours might well allow some level of entrenchment when it comes to the
requirements of natural justice in the context of courts exercising the judicial power of
the Commonwealth. They might also imply some of the grounds as regards the exercise
452 NOTES


of non-statutory Executive power, although one might doubt whether they would also
entrench any ground so implied.
32 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002
(2003) 198 ALR 59 at [154].
33 See Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206
CLR 57 at 122.
34 See Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at
470“1; and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 522“3.
35 (1995) 184 CLR 163 at 176“80, Brennan, Deane, Toohey, Gaudron and McHugh JJ.
36 Craig v South Australia (1995) 184 CLR 163 at 177.
37 Aronson, Dyer and Groves, n23 above, 214“16.
38 [1969] 2 AC 147 at 171.
39 There is a curious line in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at
509 that injunctive relief for ˜fraud, dishonesty or other improper purpose™ might extend
beyond jurisdictional error. A similar passage appeared earlier (at 508), although the
reference there was to the availability of injunctive relief for ˜fraud, bribery, dishonesty
or other improper purpose™ (emphasis added). Their Honours may have had in mind
only those cases of visa applicants improperly procuring favourable decisions which
the Minister might want to challenge.
40 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.
41 ˜Want™ or ˜excess™ of ˜jurisdiction™ were the terms commonly used in the High Court
in the early days; see Mooney v Commissioners of Taxation (NSW) (1905) 3 CLR 221.
Earlier still, Mr WC Wentworth argued that a Visitor™s immunity from judicial scrutiny
ceased to apply if there were ˜want of jurisdiction™ which would be established if he
acted in excess of jurisdiction, which would result in his proceedings being coram non
judice: Walker v Scott (No 1) [1825] NSWSupC 60. The actual term ˜jurisdictional error™
did not make its first High Court appearance until R v Coldham; Ex parte Australian
Workers™ Union (1983) 153 CLR 415.
42 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 93 (Gaudron and
Gummow JJ) and 132 (Kirby J).
43 ibid, 141.
44 ibid, 143.
45 See: South East Asia Fire Bricks Sdn Bhd v Non-Metallic Products Manufacturing Employ-
ees Union [1981] AC 363; Re Racal Communications Ltd [1981] AC 374; and O™Reilly v
Mackman [1983] 2 AC 237 at 278.
46 R v Hull University Visitor; Ex parte Page [1993] AC 682; and Boddington v British
Transport Police [1999] 2 AC 143 at 154.
47 SA de Smith, H Woolf and J Jowell, Judicial Review of Administrative Action (5th edn,
1995) 223“56. Kirby J referred without qualification to the death of the English dis-
tinction between jurisdictional and non-jurisdictional errors: for example, Re McBain;
Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 439“40.
48 For example, HWR Wade and CF Forsyth, Administrative Law (9th edn, 2004) 280.
49 E v Secretary of State for the Home Department [2004] QB 1044.
50 E v Secretary of State for the Home Department [2004] QB 1044 at 1064.
51 P Craig, Administrative Law (5th edn, 2003) 492“501 and 511“19.
52 Aronson, Dyer and Groves, n23 above, 179“202.
53 Indeed, the High Court rejected a government argument that all of the grounds of
judicial review had to be errors of law in one way or another: Re Minister for Immigration
and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [54]
(McHugh and Gummow JJ) and [120] (Kirby J).
54 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171.
55 Darling Casino Ltd v Casino Control Authority (NSW) (1997) 191 CLR 602 at 634 note
52 (Gaudron and Gummow JJ).
453
NOTES


56 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351
(McHugh, Gummow and Hayne JJ). One could point to Re Minister for Immigration and
Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 as proof that the
common law is still capable of generating new grounds of judicial review or, at the very
least, re-labelling old grounds. S20 narrowed Wednesbury unreasonableness so as to
apply only to the review of the exercise of discretionary power, and gave recognition to
serious irrationality or illogicality as a ground for reviewing the fact-finding process.
57 Craig v South Australia (1995) 184 CLR 163 at 177.
58 ibid, 178.
59 See: R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 267“9 (Aickin J);
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000)
203 CLR 194 at 227 (Kirby J); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 453
(Gummow and Hayne JJ); Minister for Immigration and Multicultural Affairs v Bhardwaj
(2002) 209 CLR 597 at 615 (Gaudron and Gummow JJ); Minister for Immigration and
Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 339“40 (Gaudron J); Re Minister for
Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 61 (Gleeson
CJ and Hayne J), 81 (Gaudron J), and 89 (McHugh J); Re McBain; Ex parte Australian
Catholic Bishops Conference (2002) 209 CLR 372 at 439“40 (Kirby J); and Re Minister
for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR
59 at [122] (Kirby J).
60 (1947) 47 SR (NSW) 416 at 420.
61 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR
57 at 81.
62 Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (Jordan
CJ) emphasis added.
63 DM Gordon, ˜The Relation of Facts to Jurisdiction™ (1929) 45 Law Quarterly Review
459; ˜Tithe Redemption Commission v Gwynne™ (1944) 60 Law Quarterly Review 250;
˜Conditional or Contingent Jurisdiction of Tribunals™ (1960) 1 UBC Law Review 185;
˜Book Review of SA de Smith, Judicial Review of Administrative Action™ (Stevens, 1959)
(1960) 76 Law Quarterly Review 306; ˜Book Review of A Rubinstein, Jurisdiction and
Illegality™ (OUP, 1965) (1966) 82 Law Quarterly Review 263; and ˜Jurisdictional Fact:
an Answer™ (1966) 82 Law Quarterly Review 515. Gordon™s articles are discussed in:
SA de Smith, H Woolf and J Jowell, Judicial Review of Administrative Action (5th edn,
1995) 228“9; and P Craig, Administrative Law (5th edn, 2003) 479“82.
64 [1922] 2 AC 128 at 151.
65 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 149 at 171, 199 and 210.
66 [1958] 1 WLR 434.
67 R v Commissioner of Patents; Ex parte Weiss (1939) 61 CLR 240 at 249; R v District Court;
Ex parte White (1966) 116 CLR 644 at 658; R v Refugee Review Tribunal; Ex parte Aala
(2000) 204 CLR 82 at 97“8; Conway v R (2002) 209 CLR 203 at 209; and Re McBain;
Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 463“4.
68 Rejecting it as entirely irrational, as if legislative preconditions to validity must always
be rational.
69 ˜Essential preliminaries™ were used in Colonial Bank of Australasia v Willan (1874) LR
5 PC 417 at 443.
70 Spigelman CJ spoke in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707
at 718 of the ˜extrinsic or ancillary or preliminary nature™ of ˜jurisdictional facts™, and
added: ˜The word ˜˜preliminary” does not, in this context, refer to a chronological
sequence of events, but to matter that is legally antecedent to the decision-making
process. A decision maker may well determine whether or not s/he has jurisdiction at
the same time as s/he carries out the substantive decision-making process.™
71 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389
and 391. Distinctions between ˜threshold™ and other issues are similar: Dranichnikov
454 NOTES


v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 407 [87]
(Kirby J).
72 He argued in ˜Conditional or Contingent Jurisdiction of Tribunals™ (1960) 1 UBC Law
Review 185 at 203 that it was irrational to require a tribunal to investigate and
determine an issue, and yet hold that it had no jurisdiction if the reviewing court
disagreed. For a review of cases allowing tribunals and specialist courts of limited
jurisdiction to determine challenges to their jurisdiction, see Radio 2UE Sydney Pty Ltd
v Burns [2005] NSWADTAP 69.
73 For an historical account of ultra vires, see H A Street, A Treatise on the Doctrine of Ultra
Vires: Being an Investigation of the Principles which Limit the Powers and Liabilities of
Corporations, Quasi-Corporate Bodies and Non-Sovereign Legislatures (1930, Sweet and
Maxwell, formerly by S B Brice).
74 As in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 91.
75 ˜The Relation of Facts to Jurisdiction™ (1929) 45 Law Quarterly Review 459.
76 ˜The Relation of Facts to Jurisdiction™ (1929) 45 Law Quarterly Review 459.
77 ˜Conditional or Contingent Jurisdiction of Tribunals™ (1960) 1 UBC Law Review 185 at
307.
78 Three meanings were noted in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 at
[30].
79 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389.
80 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002
(2003) 198 ALR 59 at [122]; 77 ALJR 1165. A better term might be ˜merely conclusory™.
See Hill, Branson and Stone JJ in SDAV v Minister for Immigration and Multicultural and
Indigenous Affairs (2003) 199 ALR 43 at [27]: ˜The statement that a particular error is
a ˜˜jurisdictional error” is a statement of conclusion.™
81 On the assumption that Craig v South Australia (1995) 184 CLR 163 is not overruled.
82 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR
57 at 123.
83 See S Gageler, ˜The Underpinnings of Judicial Review of Administrative Action: Com-
mon Law or Constitution?™ (2000) 28 Federal Law Review 303; B Selway, ˜The Principle
Behind Common Law Judicial Review of Administrative Action “ the Search Continues™
(2002) 30 Federal Law Review 217 at 235; K Mason, ˜What is Wrong with Top-down
Legal Reasoning?™ (2004) 78 Australian Law Journal 574; and M Aronson, ˜Is the ADJR
Act Hampering the Development of Australian Administrative Law?™ (2004) 15 Public
Law Review 202.
84 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at
23“4 (McHugh and Gummow JJ); and NAIS v Minister for Immigration and Multicultural
and Indigenous Affairs (2005) 223 ALR 171 at [14]“[16] (Gummow J). Cf Combet v
Commonwealth [2005] HCA 61 at [4] (Gleeson CJ).
85 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002
(2003) 198 ALR 59 at [161]“[170].
86 For example, Public Service Act 1999 (Cth) s10.
87 It appears that no one has even pleaded the point. The ˜values™ lists get a very occasional
mention in other contexts, such as the ˜public interest™ test in FOI; for example, McK-
innon v Secretary, Department of Treasury [2005] FCAFC 142 at [78]. See M Groves,
˜Ethics in Public Administration™, in C Finn (ed), Shaping Administrative Law for the
Next Generation (AIAL, Canberra, 2005) 60.
88 Lustig-Prean v United Kingdom (No 1) (2000) 29 EHRR 548, on appeal from R v Ministry
of Defence; Ex parte Smith [1996] QB 517. See Aronson, Dyer and Groves, n23 above,
336“8.
89 R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213; R v
Secretary of State for Education and Employment; Ex parte Begbie [2000] 1 WLR 1115;
and R v East Sussex County Council; Ex parte Reprotech (Pebsham) Ltd [2003] 1 WLR
348.
455
NOTES


90 E v Secretary of State for the Home Department [2004] QB 1044.
91 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam
(2003) 214 CLR 1 at 23, McHugh and Gummow JJ. But query the effect of ADJR™s
explicit ˜abuse of power™ ground in s5(2)(j).
92 (2005) 223 ALR 171.
93 ibid, [90] and [98].
94 ibid, [107].
95 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 341and
372; Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [169]; and Re Minister for
Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002
(2003) 211 CLR 441 at 460.
96 (2003) 204 ALR 55 at [45] (Gray and Downes JJ), [68] and [78] (Kenny J).
97 See also NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005)
223 ALR 171 at [21] and [39], where Gummow J noted the ADJR™s relative generosity
to challengers complaining of bureaucratic delay.
98 Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1.



Chapter 22
1 G Brennan, ˜The Pursuit and Scope of Judicial Review™ in M Taggart (ed), Judicial
Review of Administrative Action in the 1980s: Problems and Prospects (Oxford University
Press, 1986) at 19.
2 Various other terms are used to denote this statutory device. They are discussed later
in the chapter.
3 See, for example, R v Gray; Ex parte Marsh 1985 157 CLR 351; and Fish and Ors v
Solution 6 Holdings Limited [2006] HCA 22.
4 For a recent review of issues raised by privative clauses, see Administrative Review
Council (ARC), The Scope of Judicial Review: Report to the Attorney General (ARC, Report
No 47, 2006).
5 See the discussion of the doctrine of jurisdictional error below, and to the discussion
of what constitutes an error of law in Chapter 21.
6 J Stone, Precedent and the Law: Dynamics of Common Law Growth (Butterworths, 1984),
ch 4. See also M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action
(3rd edn, Law Book Company, 2004), 167; and TRS Allan, ˜Doctrine and Theory in
Administrative Law: An Elusive Quest for the Limits of Jurisdiction™ [2003] Public Law
429.
7 For a recent example, see the High Court™s ruling in Plaintiff S134 v Minister for Immi-
gration and Multicultural Affairs (2003) 211 CLR 441.
8 This is illustrated most starkly by the highly critical response from a number of senior
judges in the United Kingdom to a Bill which, if it had been enacted, would have
inserted a new, draconian privative clause into UK migration law. See, for instance:
J Steyn, ˜Speech to Inner Temple™ (speech delivered at the Inner Temple, London, 3
March 2004); H Woolf, ˜The Rule of Law and a Change in the Constitution™ (speech
delivered at the Squire Centenary Lecture, Cambridge University, 3 March 2004). This
issue is dealt with in detail in pp. 363“4 of this chapter.
9 J Steyn, ˜The Weakest and Least Dangerous Department of Government™ [1997] Public
Law 84 at 86.
10 See B Selway, ˜The Principle Behind Common Law Judicial Review of Administrative
Action: The Search Continues™ (2002) 30 Federal Law Review 217 at 222 and 235; P
Craig, ˜Ultra Vires and the Foundations of Judicial Review™ in C Forsyth (ed), Judicial
Review and the Constitution (Oxford University Press, 2000), 47; the comments of Bren-
nan J in Attorney General (NSW) v Quin (1990) 170 CLR 1 at 26; and G Brennan, ˜The
Review of Commonwealth Administrative Power: Some Current Issues™ in R Creyke and
456 NOTES


P Keyzer (eds), The Brennan Legacy: Blowing the Winds of Legal Orthodoxy (Federation
Press, 2002) at 23.
11 See, for example, the approach taken by Mason J (as he then was) in cases such as
Kioa v West (1985) 159 CLR 550; and A Mason, ˜The Foundations and Limitations of
Judicial Review™ (2001) 31 AIAL Forum 1.
12 See, for example, Industrial Relations Act 1996 (NSW) s179, which limits review of
rulings by the Industrial Relations Commission of NSW sitting in court session. See
further below.
13 R Creyke and J McMillan, Control of Government Action (LexisNexis Butterworths,
2005) at 3.
14 In Administrative Review Council, The Scope of Judicial Review: Report to the Attor-
ney General (Canberra: ARC, Report No 47, 2006), the Administrative Review Council
(ARC) identified twelve factors ˜impinging on the availability and scope of judicial
review™: see ˜Justifications put forward for reducing the scope of judicial review™, chap-
ter 5, part 5.2.
15 Administrative Review Council, The Scope of Judicial Review: Report to the Attorney
General (ARC, Report No 47, 2006), part 5.2.4.
16 In this context, it is common to use the example of aspiring migrants attempting to
delay or avoid removal from Australia: see Administrative Review Council, The Scope
of Judicial Review: Report to the Attorney General (Canberra: ARC, Report No 47, 2006),
part 5.2.6. Note, however, that judicial review has been used as a delaying tactic in many
other contexts. Examples include the many judicial review applications by disgraced
businessman, Alan Bond, in the 1980s and the procedural points taken frequently
in industrial relations cases. See, for example, Australian Broadcasting Commission v
Bond (1990) 170 CLR 321; and (in industrial relations) Miller v Australian Industrial
Relations Commission (2001) 108 FCR 192.
17 See M Aronson, ˜The Resurgence of Jurisdictional Facts™ (2001 12 Public Law Review
17; and JJ Spigelman, ˜Jurisdiction and Integrity™ (2004) AIAL National Lecture Series
on Administrative Law No 2, Lecture 2, 25, 31. See also City of Enfield Corporation v
Development Assessment Corporation (2000) 199 CLR 135.
18 See, for example, R v Connell; Ex parte the Hetton Bellbird Collieries Ltd (1944) 69 CLR
407; Buck v Bavone (1976) 135 CLR 110; R v Australian Stevedoring Industry Board; Ex
parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; and Minister for Immigration
and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 276.
19 See, for example, NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; and
Silveira v Australian Institute of Management (AIM) (2001) 113 FCR 218. For analyses
of the decision in NEAT see: C Mantziaris, ˜A “Wrong Turn” on the Public/Private Dis-
tinction “ Case Note; NEAT Domestic Trading Pty Ltd v AWB Ltd™ (2003) 14(4) Public Law
Review 197; M Allars, ˜Public Administration In Private Hands™ (2005) 12 Australian
Journal of Administrative Law 126; and G Hill, ˜The Administrative Decisions (Judi-
cial Review) Act and “under an enactment”: Can NEAT Domestic be reconciled with
Glasson?™ (2004) 11 Australian Journal of Administrative Law 135.
20 ˜Ouster clause™ is the term preferred in the United Kingdom; ˜preclusive clause™ and
˜finality clause™ are used most frequently in the United States.
21 A more comprehensive list of the various types of privative clauses is available in
Administrative Review Council, The Scope of Judicial Review: Discussion Paper, 2003,
Appendix 2 at 160“7; and in Administrative Review Council, The Scope of Judi-
cial Review: Report to the Attorney General (Canberra: ARC, Report No 47, 2006),
chapter 3.
22 Compare the similarity of approach taken in relation to the privative clauses variants
in, for example, R v Hurst ex parte Smith [1960] 2 QB 133 (consideration of a ˜no
certiorari™ clause); Minister of Health v R, ex parte Yaff´ [1931] AC 494 (consideration
e
of an ˜as if enacted clause™); Attorney-General v Ryan [1980] AC 718 (consideration of
457
NOTES


a clause stating that certain administrative decisions ˜shall not be subject to appeal or
review in any court™).
23 In Australia, see for example, Plaintiff S157/2002 v Commonwealth (2003) 201 CLR
323 at [165]; and E Campbell and M Groves, ˜Time Limitations on Applications for Judi-
cial Review™ (2004) 32 Federal Law Review 29; and E Campbell and M Groves, ˜Privative
Clauses and the Australian Constitution™ (2004) 4 Oxford University Commonwealth Law
Journal 51. In the United Kingdom, the courts have taken a case-by-case approach. A
twenty-one day period was found to be ineffective (Pollway Nominees Ltd v Croydon
LBC [1987] 1 AC 79) but a six-week period was permitted (Smith v East Elloe RDC
[1956] AC 736). The European Court of Human Rights found that a limitation period
does not violate the European Convention on Human Rights provided the restriction
does not impair ˜the very essence of the . . . right™ of access to the courts: Stubbings v
UK (1996) 23 EHRR 213 at 233. Therefore, courts must decide whether the particular
time limit is ˜reasonable™: HWR Wade and CF Forsyth, Administrative Law (8th edn,
Oxford University Press, 2000) at 719.
24 See Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [164]“[176]
(Callinan J).
25 For an example in point, see Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47, where a
police disciplinary tribunal was found to have no jurisdiction to entertain complaints
about a police office who was still under probation.
26 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
27 Interpreted to include Ministers of the Crown in some cases.
28 D Kerr and G Williams, ˜Review of Executive Action and the Rule of Law under the
Australian Constitution™ (2003) 14 Public Law Review 219 at 225. A great many articles
have been written on this case. See, for example, E Campbell and M Groves, ˜Privative
Clauses and the Australian Constitution™ (2004) 4 Oxford University Commonwealth
Law Journal 51; J Basten, ˜Constitutional Elements of Judicial Review™ (2004) 15 Public
Law Review 187; C Beaton-Wells, ˜Restoring the Rule of Law “ Plaintiff S157/2002 v
Commonwealth of Australia™, (2003) 10 Australian Journal of Administrative Law 125;
C Beaton-Wells, ˜Judicial Review of Migration Decisions: Life After S157™ (2005) 33
Federal Law Review 141.
29 D Gifford, Statutory Interpretation (Law Book Company, 1990) at 3.
30 This is consistent with the approach taken in other comparable jurisdictions. In the
United Kingdom, see J Bell and G Engle (eds), Cross on Statutory Interpretation (3rd
edn, Butterworths, 1995) at 57; in the United States, see Cabell v Markham 148 F 2 d
737 (1945).
31 See especially the extra-judicial writings of Lord Steyn. For instance, J Steyn, ˜Dynamic
Interpretation Amidst an Orgy of Statutes™ (2004) 3 European Human Rights Law Review
245 at 252; J Steyn, ˜The Intractable Problem of the Interpretation of Legal Texts™ (2003)
25 Sydney Law Review 5. In the latter article, he states at 13: ˜In the Westminster Par-
liament exchanges sometimes take place late at night in nearly empty chambers whilst
places of liquid refreshment are open. Sometimes there is a party political debate with
whips on. The questions are often difficult but political warfare sometimes leaves little
time for reflection. These are not the ideal conditions for the making of authoritative
statements about the meaning of a clause in a Bill.™
32 Such was the case with the privative clause in Migration Act 1958 (Cth) s474(1), which
was considered by the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211
CLR 476.
33 HWR Wade and CF Forsyth, Administrative Law (8th edn, Oxford University Press,
2000) at 700. See also M Elliott, The Constitutional Foundations of Judicial Review
(Oxford, 2001) at 28.
34 (1760) 2 Burr 1040.
35 [1957] 1 QB 574.
458 NOTES


36 [1957] 1 QB 574 at 587.
37 See, for example, Hockey v Yelland (1984) 157 CLR 124.
38 Contrast, for example, R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (where
no jurisdictional error was found to have occurred) and Re Coldham; Ex parte Brideson
(1989) 166 CLR 338 (where the error in question was found not to be a jurisdictional
error). Moreover, the continued relevance of the distinction between jurisdictional
errors and non-jurisdictional errors was affirmed by the High Court in Craig v South
Australia (1995) 184 CLR 163.
39 See for example, R v Commonwealth Court of Conciliation and Arbitration; Ex parte
Whybrow and Co (1910) 11 CLR 1 (Griffith CJ, Barton and O™Connor JJ).
40 See Pearlman v Keepers and Governors of Harrow School [1979] QB 56 at 69“70.
41 (1984) 157 CLR 124.
42 See (1984) 157 CLR 124 at 130 (Gibbs J). The tendency to restrict the range of material
that can be scrutinised by a court in the judicial review of decisions affected by a
privative clause is seen again in the more recent case of Craig v South Australia (1995)
184 CLR 163 at 176“7.
43 TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University
Press, 2001) at 203 (emphasis in original).
44 On this point, see the more detailed discussion in E Campbell and M Groves, ˜Privative
Clauses and the Australian Constitution™ (2004) 4 Oxford University Commonwealth
Law Journal 51.
45 This is most evident in privative clauses stating that the administrative decision
maker™s decision represents ˜conclusive evidence™ of fulfilment of the legislative
requirements. See JF McEldowney, Public Law (2nd edn, Sweet and Maxwell, 1998)
543“4.
46 The Hickman doctrine derived from R v Hickman; Ex Parte Fox and Clinton (1945)
70 CLR 598 at 617 (Dixon J). His Honour there stated, in obiter, that administrative
decisions are not considered ˜invalid™ provided that they meet certain requirements:
that ˜they do not upon their face exceed the . . . authority [conferred by the legislation in
question]; that they . . . amount to a bona fide attempt to exercise powers [conferred];
and [that they] relate to the subject matter of the legislation™.
47 RS French, ˜Judicial Review Rights™ (2001) 28 AIAL Forum 33 at 40.
48 In M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3rd edn,
LBC, 2004), the authors observed at 842 that ˜a logician might protest that the one is
the corollary of the other™.
49 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 502.
50 Cth Parl Deb (House of Representatives), 26 September 2001 at 31559 (Philip Rud-
dock).
51 Explanatory Memorandum, Migration Legislation Amendment (Judicial Review) Bill
1998 at [15] (emphasis added).
52 Plaintiff S157 v Commonwealth (transcript of proceedings before the High Court of
Australia, 3“4 September 2002) at 94 (David Bennett, QC SG).
53 Plaintiff S157 v Commonwealth (transcript of proceedings before the High Court of
Australia, 3“4 September 2002) at 89 (David Bennett, QC SG).
54 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 276 at 499.
55 Cth Parl Deb (Senate), 27 June 2002 at 3005 (Sen Andrew Bartlett).
56 J Laws, ˜Law and Democracy™ [1995] Public Law 72 at 79.
57 C Forsyth, ˜Of Fig Leaves and Fairy Tales: the Ultra Vires Doctrine, the Sovereignty of
Parliament and Judicial Review™ [1996] Cambridge Law Journal 122 at 136.
58 See, for example, Coal Miners Industrial Union of Workers of WA v Amalgamated Collieries
of WA (1960) 104 CLR 437.
59 See Anisminic v Foreign Compensation Commission [1969] 2 AC 147. In this case the
House of Lords considered a clause stating that a determination of the Foreign Compen-
sation Commission ˜shall not be called into question in any court of law™. Their Lordships
459
NOTES


held unanimously that the clause did not preclude judicial review of determinations
resulting from jurisdictional error. Further, by majority, it held that a misconstruction
of the Order in Council applied by the Foreign Compensation Commission.
60 See Craig v South Australia (1995) 184 CLR 163. Compare the comments of Kirby P
(as he then was) in Kriticos v State of NSW (1996) 40 NSWLR 297. The case of Plaintiff
S157 is another example of this approach.
61 See, for example, Hockey v Yelland (1984) 157 CLR 124.
62 This was first noted by Dennis Pearce in ˜Executive Versus the Judiciary™ (1991) 2 Public
Law Review 179. See also M Crock, ˜Administrative Law and Immigration Control in
Australia: Actions and Reactions™, Unpublished PhD Thesis, Melbourne University, 1994
(Available at Melbourne University and the National Library of Australia).
63 For a history of privative clauses in New South Wales labour legislation, see Houssein v
Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148
CLR 88.
64 The president and judicial commission members have the status of New South Wales
Supreme Court judges.
65 Industrial Arbitration Act 1912“1952 (WA) s108 provided that proceedings in the Court
of Arbitration or before the President of that Court shall not be impeached or held bad
for want of form, nor shall the same be removable to any court by certiorari or otherwise;
and no award, order or proceeding of the Court or before the President shall be liable
to be challenged, appealed against, reviewed, quashed, or called in question by any
court of judicature on any account whatever.
66 (1960) 104 CLR 437 at 442 (footnotes omitted).
67 (1960) 104 CLR 437 at 447.
68 (1945) 70 CLR 598 (hereinafter Hickman).
69 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615.
70 See Powercoal Pty Ltd and Anor v Industrial Relations Commission of NSW and Anor
(2005) 145 IR 327 (NSWCA). See also, R McCallum, ˜The Role of the Criminal Law
in 21st Century Occupation Health and Safety Regulation™ in AMPLA Yearbook 2005
(Melbourne, AMPLA 2006) at 184“98.
71 [2006] HCA 22. In fact, the High Court considered an earlier version of s179. Although
s179 has been amended since the dispute in this case arose, the differences between
the two versions of the privative clause are irrelevant for present purposes.
72 Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004)
60 NSWLR 558.
73 Fish v Solution 6 Holdings Limited [2006] HCA 22. The majority consisted of a joint
judgment of Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ. Kirby and Heydon
JJ wrote separate dissenting judgments.
74 ibid, [44].
75 ibid, [139], citing Ultra Tune (Aust) Pty Ltd v Swann (1983) 8 IR 122; Maltais v Industrial
Commission (NSW) (1986) 14 IR 367.
76 ibid, [169]. His Honour cites the comments of Brennan J in R v Ross-Jones; Ex parte
Green (1984) 156 CLR 185 at 219“20.
77 ibid, [33] (Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ).
78 ibid, [146]. The significance of the inclusion of ˜purported™ decisions within the ambit
of a privative clause is considered in greater detail later in this chapter.
79 See M Crock, Immigration and Refugee Law in Australia (Federation Press, 1998), ch
12.
80 H Martin, Angels and Arrogant Gods (AGPS Press, 1989).
81 See, for example, Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; Plaintiff
S134 v Minister for Immigration and Multicultural Affairs (2003) 211 CLR 441.
82 On the effect of moving from objective criteria to an ˜is satisfied™ test in refugee decision-
making, see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185
CLR 259 at 276.
460 NOTES


83 These are clauses that empower the minister to make rulings in circumstances where
the minister cannot be compelled to make a decision and if she or he chooses to do
so, the decision cannot be reviewed. In practice, successive ministers have used these
powers when minded to intervene on behalf of an applicant. Where the minister does
not wish to intervene, she or he simply signals that the power is not to be exercised. See,
for example, ss357 and 417, considered in Ozmanian v Minister for Immigration and
Multicultural Affairs [1997] 256 FCA (17 April 1997). See J Hohmann, ˜Report on the
Senate Select Committee on Ministerial Discretion in Migration Matters: Inconclusive
Witch Hunt or Valuable Contribution to the Australian Migration Debate?™ (2004) 19
Immigration Review 5.
84 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.
85 See M Crock, Immigration and Refugee Law in Australia (Federation Press, 1998), ch
13; and J McMillan, ˜Federal Court v Minister for Immigration™ (1999) 22 AIAL Forum
22; and J McMillan, ˜Judicial Restraint and Activism in Administrative Law™ (2002) 30
Federal Law Review 335.
86 The Joint Standing Committee on Migration, which addressed concerns arising from
the Part 8 legislative reforms, stated: ˜The tightly defined framework for judicial
review . . . is intended to provide a guard against de facto merits review by the courts,
and to remove the fluidity or uncertainty which has characterised the grounds for
review under the common law and AD(JR)™: Parliament of the Commonwealth of Aus-
tralia, Asylum, Border Control and Detention: Joint Standing Committee on Migration
(AGPS, 1994) at 95.
87 M Crock, ˜Judicial review and Part 8 of the Migration Act: Necessary Reform or
Overkill?™(1996) 18 Sydney Law Review 267.
88 (1999) 197 CLR 510 (hereinafter Abebe).
89 The majority consisted of Gleeson CJ, McHugh, Callinan and Kirby JJ.
90 The majority held that the word ˜matter™ could validly imply a part thereof, and thus
some grounds (or some ˜matters™ of a legal dispute) could be excluded from judicial
review. See Abebe at [28] (Gleeson CJ and McHugh J).
91 On the face of things, it is beyond the power of the Parliament to withdraw any matter
from the grant of jurisdiction or to abrogate or qualify the grant: see Waterside Workers™
Federation of Australia v Gilchrist, Watt and Sanderson Ltd (1924) 34 CLR 482; Australian
Coal and Shale Employees™ Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161;
and Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168.
92 As stated earlier, the High Court refused to accept the minister™s gloss on the Hickman
Principle in Plaintiff S157.
93 Further, the High Court took pains to make clear that the construction of s474 has
implications for remitter of actions by it to both the Federal Court and the Federal
Magistrates Court. See Plaintiff S157/2002 v Commonwealth (2003) 201 CLR 323 at
[96]“[97]: ˜The limitation . . . of the jurisdiction otherwise enjoyed by the Federal Court
and the Federal Magistrates Court . . . will be controlled by the construction given to
s474. Decisions which are not protected by s474 such as that in this case . . . will not be
within the terms of the jurisdictional limitations just described; jurisdiction otherwise
conferred upon federal courts . . . will remain, to be given full effect in accordance with
the terms of that conferral.™
94 Plaintiff S157/2002 v Commonwealth (2003) 201 CLR 323 at [76]“[77] (citations
omitted).
95 On a practical level, it is important to note that while the High Court™s decision in S157
has been hailed as a victory for the institution of judicial review, it is not necessarily
a victory for individual applicants. S157 was handed down with a companion case,
Plaintiff S134 v Minister for Immigration and Multicultural Affairs (2003) 211 CLR 441,
and it is notable that this companion case did not result in success for the applicants,
despite the expanded grounds of review once again available.
461
NOTES


96 See, for example, SAAP v Minister for Immigration and Multicultural and Indigenous
Affairs (2005) 215 ALR 162; Applicant VEAL v Minister for Immigration and Multicul-
tural and Indigenous Affairs (2005) 222 ALR 411.
97 Clause 10(7), which contained the privative clause, was removed at the second read-
ing: United Kingdom Parl Deb (House of Lords), 15 March 2004, col. 51.
98 (Emphasis added.) This proposed legislation was introduced in the House of Com-
mons on 27 November 2003 as clause 10(7) of the Asylum and Immigration (Treat-
ment of Claimants, etc.) Bill. If it had been adopted, the Bill would have inserted a
new s108A into the Nationality, Immigration and Asylum Act 2002 (UK).
99 See Anisminic v Foreign Compensation Commission [1969] 2 AC 147.
100 J Jowell, ˜Heading for constitutional crisis?™ 154 (7120) New Law Journal 401 at
401.
101 Migration Amendment (Judicial Review) Bill 2004 (Cth).
102 ibid, cl 2 (emphasis added).
103 Explanatory Memorandum, Migration Amendment (Judicial Review) Bill 2004, [7].
104 Commonwealth of Australia, ˜Migration Amendment (Judicial Review) Bill 2004™ in
Bills Digest, Parl Paper No 118 (2003“4) at 8.
105 Explanatory Memorandum, Migration Amendment (Judicial Review) Bill 2004, [8].
106 H Woolf, ˜The Rule of Law and a Change in the Constitution™ (speech delivered at the
Squire Centenary Lecture, Cambridge University, 3 March 2004).
107 5 US (1 Cranch) 137 (1803). In this case, the US Supreme Court held that it could
declare void legislation that was ˜repugnant to the constitution™.
108 See, for example, Pickin v British Railways Board [1974] AC 765 at 789 (Lord Morris).
109 Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004)
60 NSWLR 558; affirmed by the High Court in Fish v Solution 6 Holdings Limited
[2006] HCA 22.
110 C de Secondat (Baron de Montesquieu), The Spirit of Laws (Nugent translation,
Nourse, 1773) at 174.
111 See, for example, R v Kirby, Ex p Boilermakers™ Society of Australia (1956) 94 CLR 254
(affirmed by the Privy Council: [1957] AC 288).
112 See, for example, J Jowell, ˜Heading for constitutional crisis?™ 154 (7120) New Law
Journal 401 at 401.
113 Indeed, this was partly the rationale for their being proposed in the first place.
114 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR
57 at 102.
115 For an early, and oft-cited, articulation of this aspect of the rule of law, see J Locke, The
Second Treatise of Civil Government (Blackwell, first published in 1690, revised edn
1948) at 68 [136]: ˜[t]he legislative, or supreme authority, cannot assume to itself a
power to rule by extemporary arbitrary decrees, but is bound to dispense justice and
decide the rights of the subject by promulgated standing laws, and known authorised
judges.™
116 R v Medical Appeal Tribunal ex parte Gilmore [1957] 1 QB 574 at 586.
117 J Steyn, ˜Speech to Inner Temple™ (speech delivered at the Inner Temple, London, 3
March 2004).
118 Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 193.
119 In Kartinyeri v Commonwealth (1998) 195 CLR 337 at 381, Gummow and Hayne JJ
noted that ˜the occasion has yet to arise for consideration of all that may follow from
Dixon J™s statement™.
120 Fish v Solution 6 Holdings Limited [2006] HCA 22. Although Kirby J dissented in this
case, the issue to which he referred did not arise for consideration by the majority
judges.
121 Fish v Solution 6 Holdings Limited [2006] HCA 22 at [146].
462 NOTES


Chapter 23
1 Davey v Spelthorne [1984] AC 262 at 276 quoted in J Laws, ˜Judicial remedies and the
Constitution™ (1994) 57 Modern Law Review 213.
2 FW Maitland, The Forms of Action at Common Law (1968) at 1.
3 W Paterson, A Treatise on the Law and Practice of Injunctions (5th edn, 1914) 1.
4 Judicature Act 1873 (UK).
5 FW Maitland, The Forms of Action at Common Law (1968) 66.
6 Pavey and Mathews Pty Ltd v Paul (1987) 162 CLR 221.
7 HWR Wade and CF Forsyth, Administrative Law (9th edn, 2004) 647.
8 FW Maitland, Collected Papers I, 478, quoted in HWR Wade and CF Forsyth, Adminis-
trative Law (9th edn, 2004) 606.
9 A Denning, Freedom under Law (1949) 126.
10 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242“3.
11 R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd
[1924] 1 KB 171 at 205; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 158“9.
12 Ridge v Baldwin [1964] AC 40 at 75.
13 R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338.
14 [1969] 2 AC 147.
15 O™Reilly v Mackman [1983] 2 AC 237 at 278.
16 Dyson v Attorney-General [1911] 1 KB 410.
17 HWR Wade and CF Forsyth, Administrative Law (9th edn, 2004) 648“50.
18 Boyce v Paddington Borough Council [1903] 1 Ch 109; Gouriet v Union Post Office Workers
[1978] AC 435.
19 Law Commission, Report on Remedies in Administrative Law (Cmnd 6407, 1976) quoted
in D Feldman (ed), English Public Law (2004) at [18.03].
20 Administration of Justice (Miscellaneous Provisions) Act 1933 (UK).
21 RSC Ord 53; confirmed by the Supreme Court Act 1981 (UK).
22 [1983] 2 AC 237.
23 ibid, 285.
24 ibid.
25 R v Inland Revenue Commissioners; ex parte National Federation of Self-Employed and
Small Businesses Ltd [1982] AC 617.
26 M v Home Office [1994] 1 AC 377.
27 RSC Ord 54; now Civil Procedure Rule 8.
28 D Feldman (ed), English Public Law (2004) at [18.14]“[18.23].
29 HWR Wade and CF Forsyth, Administrative Law (9th edn, 2004) at 661“78.
30 Davey v Spelthorne Borough Council [1984] AC 262 at 278.
31 D Feldman (ed), English Public Law (2004) at [1.08].
32 R v Secretary of State for Education and Employment; Ex parte Begbie [2000] 1 WLR 1115
at 1129.
33 R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213 at 247.
34 Section 69(1) and (2).
35 Section 69(3) and (4).
36 Section 65.
37 Section 75.
38 Dickinson v Perrignon [1973] 1 NSWLR 72 at 82“4.
39 Based on the report by R Ellicott (et al), Prerogative Writ Procedures: Report of Committee
of Review (Par Pap No 56, 1973).
40 An equivalent provision exists in Judicial Review Act 1991 (Qld) s30; Administrative
Decisions (Judicial Review) Act 1989 (ACT) s17; Judicial Review Act 2000 (Tas) s27.
41 (1989) 167 CLR 637 at 644.
42 Johns v Australian Securities Commission (1993) 178 CLR 408 at 434.
43 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
44 Section 39B(1).
463
NOTES


45 Section 39B(1A).
46 Section 31.
47 Section 33(1)(c).
48 For example, Salemi v Mackellar (No 2) (1977) 137 CLR 396; Reg v Collins; Ex parte
ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471.
49 Migration Act 1958 (Cth), s474. The section was inserted by the Migration Legislation
Amendment (Judicial Review) Act 2001 (Cth).
50 (2003) 211 CLR 476.
51 (1945) 70 CLR 598 at 616.
52 (1914) 18 CLR 17 at 59.
53 For example, The Queen v Federal Court of Australia; Ex parte WA National Football
League (1979) 143 CLR 190.
54 Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q)
(1995) 184 CLR 620 at 653 (in the case of a judicial officer); Re Refugee Review Tribunal;
Ex parte Aala (2000) 204 CLR 82 at 100“1, 134, 140“1 (in the case of an executive or
administrative officer).
55 (1995) 184 CLR 163 at 179“90.
56 Re Jarman; Ex parte Cook (1997) 188 CLR 595 at 604; Ex parte Durairajasingham
(2000) 168 ALR 407 at 415.
57 Craig v South Australia (1995) 184 CLR 163 at 180“2.
58 Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA)
(1995) 183 CLR 552 at 558.
59 See, for example, Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
60 Batemans™s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund
Pty Ltd (1998) 194 CLR 247 at 261.
61 Commonwealth v Mewett (1997) 191 CLR 471.
62 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR
135 at 144“5.
63 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam
(2003) 214 CLR 1 at 24“5.
Index


Administrative Appeals Tribunal (AAT), 12, judicial remedies and,
13, 21, 80, 83, 121, 124, 259 see judicial remedies
review of FOI decisions judicial review and,
documents subject to conclusive see judicial review
certificates, 132 justiciability and,
general, 131“132 see justiciability
standing rules, 170 New, 2, 12“14, 100, 105, 115, 116, 175,
184, 361
administrative decisions, reasons for
common law attitude to giving, procedural fairness and,
177“179 see procedural fairness
decisions outside statutes and, 176 public/private distinction in, 34“49
disadvantages of furnishing, 175 rationality and, 16, 23, 29“31
effect of not giving, 180 reasonableness and,
modern approach to giving, 182, see reasonableness
249 relevant evidence, assembling of, 235
guiding principles, 183 response to Teoh and, 304“305
proposed framework, 183“184 rule of law and,
post-Osmond™s case, 179“180 see rule of law
reasonableness and, 215, 217 standing and,
right to reasons and duty to give see standing
statutory interpretation and, 24“28
administrative law statutes and,
175“176 themes and values of, 23“24
subject specific legislation and, 176 underlying simplicities of, 15“17
administrative review, 21“23, 83, 167,
role of reasons
private benefits, 173 209, 345
public benefits, 174 advantages of tribunal over court in, 77
administrative tribunals, 9, 22
United Kindom, developments in,
180“182 appealing decisions from, 95“96
administrative justice, right to, 51, 52, burden of standards of proof and, 94“95
58“60 definition of, 78“79
evidence in, 90“91
administrative law
constitutional framework of, 20“21 fair, just, economical and quick, 94
definition of, 1, 17 generalist and multi-purpose, 80
government policy and, 96“98
discretion or duties, failure to exercise,
impact of decisions, 98“99
see failure to exercise discretion or duties
estoppel and, 260 in Australian jurisdictions, 82“83
fact/law dimension in, 234 investigative nature of, 91“94
good faith and, 16, 23, 28“29 jurisdiction of, 86“88
human rights and, 51“53 merit review and, 83“85
international law and, 315 procedure of, 89
decision in Teoh and, 301“304 public/private dispute, 81
impact of international treaties and, 98, single/two tiered, 80
307 specialist, 79


465
466 INDEX


as backdrop to administrative law, 4“14
automatic disqualification, demise of rule of,
318“322, 329 framework for administrative law,
20“21
bad faith, 283, 286, 333, 336 improper purpose and, 211, 260
external affairs power and, 210 judicial remedies and, 376“378
improper purpose and, 209“211 reasonableness and, 214
balance of probability test, 224 responsible government and, 254
bias, 24, 31, 333 theory of state and, 47
actual and apprehended, 316 courts
adversarial system and, 145, 146
behaviour giving rise to complaint of,
324“326 constitutional suitability of reveiwing
certain types of decisions, 147
real likelihood, real danger or reasonable
liklihood of, 322“324 delegated legislation and, 141
reasonable apprehension of, 220 judicial review and,
rule against, 265, 274, 316 see judicial review
context sensitive, 322, 356 law relating to standing and,
exceptions to, 326“328 164“165
Crown immunity doctrine, 200
statutory abrogation or modification
and, 327
values underpinning, 317“318 de novo review, 85, 271
Bill of Rights, absence of, 5, 50, 72, 73, 75 jurisdiction, scope of, 89
Bland Committee, 82, 97, 102, 103 delegated legislation
but-for test, 36“39, 208 arguments against use of, 136“137
common law, 2, 3, 11, 13, 23 courts and, 141
alter ego principle and, 261 definition, 134
justification for, 135“136
attitude to giving reasons for
administrative decisions, 177“179, Legislative Instruments Act 2003 (Cth) and
180 Federal Register of Legislative
constitutional rights and, 27 Instruments and, 138
importance of disallowance and, 139
finding of fact based on no evidence rule
and, 219 s5, significance of, 139“141
human rights and, 26 parliamentary committees and, 142
improper purpose and, 198 reasonable, 230“231
individual rights and liberties and, 61, 62 discretion, reasonable exercises of
international law and, 302 disproportionate impact and,
judicial impartiality and, 318 228“229
judicial interpretation and, 64 inconsistency and unequal treatment and,
227“228
judicial review and,
see judicial review proportionality, human rights and degrees
no evidence rule and, 239“241, of scrutiny, 229“230
242“243, 244 reasonable delegated legislation and,
230“231
presumption against delegation of power
and, 260 discretionary power, 10, 11, 18, 50, 71,
178, 243
procedural fairness and,
statutory, 204, 253, 263
see procedural fairness
rationality and, 30
reasonableness and, 213 error of law, 22, 24, 30, 31, 83, 91, 95,
review jurisdiction, 34 173, 175, 180, 219, 222, 235, 243,
rules of interpretation and, 25 244“245, 336
executive power, 4, 16, 18, 19, 21, 148,
writs,
152, 155, 274, 300
see writs
Crown and, 20, 47
treaties and, 65, 302
constitution, Australia
abstract concept of Crown and, 47 express power of delegation, 261, 262
467
INDEX


legislative scrutiny of bills and, 67“69
failure to exercise discretion or exercise
Ombudsman and, 70“75
duties
acting under dictation and, 254“258 public/private power distinction and,
agency/alter ego principle and, 261“262 55“58
applicable grounds of judicial review and, reasonable exercises of discretion and,
254 229“230
appraisal of, 263“264 right to administrative justice and, 58“60
definition of discretion and, 253
failure to perform a duty and, 263 improper purpose, 286, 339
admixture of purposes and, 206“207
fettering of discretion by undertakings
and, 260 bad faith and, 209“211
improper delegation and, 260“262 decisions of multi-member body and,
207“209
inflexible applicaiton of policy and,
258“259 determining the purpose of the power,
political context and, 254 201“203
fraud, 28, 33, 209, 339 evidentiary burden and, 203“206
freedom of information, 1, 13, 57, 182, Toohey case and, 199“201
202 integrity principle, 341
international law, 55, 62, 63, 64
Freedom of Information Act 1982 (Cth)
adverse decisions, review of, 130“132 customary, 66
application for access to documents under, interaction with administrative law,
119“122 301“305
definition of agency and, 118 non-justiciability and, 144
definition of document and, 118
judicial activism, 54, 61
documents, personal, applications for
amendment of, 129“130 judicial bias,
exemption provisions, 124“129 see bias
objectives and interpretation of, 117 judicial interpretation
scope of, 117 ambiguous statutes and, 63“64
fundamental rights principle, 61 beneficial construction and, 66“67
non-interference with fundamental rights
good faith, 16, 23, 24, 268 and, 61“63
definition of, 23, 28 judicial power, 2, 6, 18, 20, 186, 274, 351
Governor-General, 4, 20, 134, 144, 148, definition of, 7
152 limits on, 155
non-justiciability and, 145
separation of powers doctrine and, 10“11
High Court of Australia
challenges to exercise of official power judicial remedies
and, 18 historical legacy of, 368“371
refocus on the Constitution and, 376“378
constitutional writ jurisdiction of,
334“335 statutory reform in Australia and,
373“376
constitutionally entrenched position of,
11“12 statutory reform in the United Kingdom
judicial powers vested in, 20 and, 371“373
law relating to standing and, 160“164 judicial review, 1, 2, 3, 5, 6, 52, 71
abuse of power and, 281, 282, 342
relationship between administrative and
international law and, 303, 306, 307 attempts to limit or exclude, 12
test for bias and, 320, 322 Australian tests, 39
but-for test, 36
Human Rights and Equal Opportunity
Commission, 9, 59, 73, 79 considerations
human rights law irrelevant, taking into account,
administrative law and, 50“53 195“197, 211
concept of proportionality and, 54“55 relevant, failure to take into account,
interpretive principles and, 60“67 187“195
468 INDEX


doctrine, criticism of, 156“157
judicial review (cont.)
subject approach to, 154
decisions made ˜under an enactment™ and,
35, 43, 57
Kerr Committee, 12, 96, 102
delegated legislation and, 141
Report, 82, 83, 101, 114
discretion and duties, failure to exercise
and,
legislation
see failure to exercise discretion or
delegated,
exercise duties

<<

. 18
( 19)



>>