Australian Public Law Notes

Constitution

Cth Constitution – Rigids 128 A proposed law to alter the Constitution must be

Passed by an absolute majority of both Houses of theFederal Parliament, or by one House twice, and

At a referendum, passed byo A majority of the people as a whole (including

electors in the Territories) ando By a majority of the people in a majority of

the States

State Constitutions – Flexible – Parliament is legislatively sovereign and free to amend the Constitution Act by legislating inconsistently with it. Astate constitution is not to be understood as a fundamental law that limits the powers of the Parliament.

Taylor v AG (Qld) Qld Parliament has full power over the

‘constitution, powers and procedure’ of its legislature, including its ‘composition, form and nature’, derived from the CLVA.

Qld Parliament can legislate a procedure for bypassing the Legislative Council notwithstanding that it amended the Constitution by implication.

However, s 5 of the CLVA cannot be used to abolish the representative character of the Parliament. The reference to the ‘legislature in s 5 does not include the Crown, which is a ‘fundamental conception’ basic to the very nature of the Constitution

McCawley v the King S 6(6) of Industrial Arbitration Act 1961 (Qld) –

President of Court of Industrial Arbitration could be appointed to the Supreme Court of Qld – only for 7 years even though Supreme Court is a life-time.

The State constitution is not a ‘controlled’ constitution. CLVA s 5 gives the State full power with respect to its judicial system. State

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Parliament has the power to amend the State constitution by ordinary legislation including, through implied repeal, by legislation that was merely inconsistent with the State constitution.

Qld Parliament can validly enact legislation authorizing an appointment to the Supreme Court for a limited 7-year-period and thereby amend the State’s Constitution by implication.

Manner and Form Entrenchment does not require any particular

procedure Entrenching provisions are restricted to manner and

formo A procedure or a mode of amendment

Entrenching provisionso Cannot prescribe the contents of future

legislationo Cannot abdicate legislative power

Australia Act s 6 A law made after the commencement of this Act by the

Parliament of a State respecting the constitution, powers or procedure of the Parliament of the State shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament, whether made before or after the commencement of this Act.

Double Entrenchment

AG (NSW) v Trethowan S 7A Constitution Act: Council cannot be abolished

except by referendum; s 7A (6): s 7A cannot be repealed except by referendum.

S 7A entrenched the constitutional status of the Council; s 7A(6) double entrenched it.

Steps for M&Fo Is the amending law a law respecting the

Constitution, power and procedure of the legislature? If so, subject to m&f restrictions

o Whether there is double entrenchment?

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Yes m&f is effective the law will only be effective if the amending law is passed according to the m&f requirements

No single entrenchment state can repeal the law with the m&f requirements and easily pass the law.

o If m&f is not abided by, the law shall have no force or effect. The parliament can pass the law but it has no effect.

NSW Parliament has the power to prescribe to their successors a particular mode by which and by which alone constitutional changes may be effected. Although the Parliament cannot limit its own sovereignty, it can confer power on a subordinate legislature to do so.

SE Drainage Board (SA) v Savings Bank of SA Real Property Act “a future inconsistent Act must

expressly enact that it applies notwithstanding the provisions of the Real Property Act.

Held:o Entrenching provisions cannot prescribe the

contents of future legislation.o Parliament cannot be commanded by a prior

legislature to express its intention in a particular way.

West Lakes Ltd v SA West Lake Ltd made a contract with SA government

Consent of West Lakes was required to any variation of the agreement.

Bill was introduced into the Parliament to vary the agreement without company’s consent.

Held:o The executive cannot fetter Parliament by

entering into contractual obligations. A contractual obligation entered into by the executive gvt could not inhibit the power of Parliament to enact legislation or the right ofMinister of the Crown to propose such legislation.

o Prior consent of an extra-parliamentary body

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cannot control the legislature.o A requirement of written consent by a company

was not a m&f requirement within the meaning ofs 5 of CLVA. It is not a law relating to the powers or procedures of the Parliament.

AG (WA) v Marquet S 13 Electoral Distribution Act (WA) prevented the

repeal of the 1947 Act by the Electoral DistributionRepeal Bill which was not passed with absolute majority.

Held:o A Bill to repeal should be treated as a Bill to

amend.o Legislation establishing a scheme for electoral

distribution is a law respecting the Constitution, Powers or Procedure of the Parliament. Constitution extends to features which give Parliament a representative character.

Human Rights Protection

Human Rights in Constitutiono Cth can only compulsorily acquire property on

just terms: s 51 (xxxi)o Right to trial by jury (limited to Cth offences

where the Cth Parliament has provided for trialon indictment: s 80

o Freedom of religion (only to the Cth and limited interpretation): s 116

Can we entrench a Bill of Rights?o Australia Act s 6 – only confines manner and

form to amending laws that deal with the “constitution, powers and procedure of the Parliament” – any purported entrenchment outside the scope of s 6 is ineffective

Can the Cth Parliament legislate to require m&f for any future amendment inconsistent with a Human

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Rights Act?o Australia Act s 6 refers only to the Stateso Manner would be inconsistent with the

Constitutiono Form might be possible – future legislation

must expressly indicate that it operates notwithstanding the Human Rights Act.

Coco v The Queen The conviction of Coco for attempted bribery of Cth

police was secured by evidence of private conversation, obtained through a listening device. Authority: Invasion of Privacy Act (Qld). This authority was negated by s 12 of the Australian Federal Police Act (Cth)

Held:o Statutory Interpretation in the absence of

constitutional protection of rights Parliament is presumed not to have

intended to limit fundamental rights, unless it indicates the intention in clearterms. Courts do not impute to the legislature on intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguouslanguage.

There is no unambiguous intention to authorise entry on to premises to install the device. Therefore the evidence was unlawfully obtained.

No unmistakable statutory authority to authorise conduct which would otherwise be tortious and interfere with a fundamental common law right.

The UK Model The Supreme Court if satisfied that the law is not

consistent with a human right, may makeo A declaration of incompatibility (ACT)o A declaration of inconsistent interpretation

(Vic)

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The declaration does not affect the validity, operation or enforcement of the law, or the rights or obligations of anyone.

The AG must present a written report to Parliament Parliament may expressly declare in an Act that the

Act or a provision has effect despite being incompatible with human rights. An override declaration will only be made in exceptional circumstances.

o Consequence: court not required to interpret legislation consistently with human rights and cannot make a declaration of inconsistent interpretation.

Human Rights Act (ACT) and Victorian Charter of Rights and Responsibilities Act (Vic) expressly state that breach of human rights is an independent ground of judicial review (of administrative action).

o It is unlawful for a public authority to act ina way that is incompatible with a human right.

o In making a decision administrators must give proper consideration to a relevant human right.

o Any qualification/limit on a human right must be reasonable and demonstrably justified in a free and democratic society – whether the decision-maker struck the right balance

Federal Human Rights Acto All bills and legislative instruments to be

accompanied by a statement of compatibility with the list of rights.

o Applied only to the Cth and those public authorities exercising functions under Cth law

Cth Human Rights Acto Definition of human rights

The rights and freedoms recognized or declared by the ICCPR and the ICESCR plus five other key international human rights conventions

o Requirements: MPs who introduce a Bill to cause a

statement of compatibility with human rights to be presented to Parliament.

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The statement of compatibility does not affect the validity, operation orenforcement of the Act or any other law.

Momcilovic v The Queen Drug trafficking – s 5 of Drugs Act – imposing a

legal onus of proof on the defendant - is incapable of being interpreted consistently with the presumption of innocence guaranteed by s 25(1) of the Charter.

Questioning the validity of Victorian Human Rights Charter

Re the provision of interpretation o s 32 (1) – do consistently with their purpose

in a way that is compatible with the various human rights guaranteed by the Charter

o Valid at State + Federal It requires the interpretation to be

consistent with legislative purpose. It requires statutes to be construed

against the background of human rights setout in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights

Re the provision empowering the court to make a declaration of inconsistent interpretation

o S 36 (2) if a statutory provision cannot be interpreted consistently with a human right, the consequence is an obligation under the Charter to lay before both Houses a written response.

o Valid at State levelo Invalid at Federal level

It is a non-judicial function. It did not involve the exercise of a

judicial function and was not incidental to judicial power, it did not surpass the constitutional limitations on the Court’s role; it merely provides a mechanism by which the Court directs the legislature to

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a disconformity between State law and Human Right in the Charter, and it remainsparliament’s ultimate responsibility to determine the laws it enacts.

Representative Democracy

Chapter 1 ‘The Parliament’o S 1: vests legislative power in Parliament

consisting of The Queen Senate House of Representative

o S 7: The Senate Composed of senators for each State

‘directly chosen by the people’ of the State

Equal number of senators for each State The Parliament may make laws increasing or

diminishing the number of senators for each State, but must maintain equal representation of the original States at no less than six

o S 24: House of Representatives The House of Representatives shall be

composed of members ‘directly chosen by the people’ of the Cth.

The number of members chosen in the Statesshall be in proportion to the respective numbers of their people.

o S 53: Senate has equal legislative power with the House of Representatives, except

Proposed laws appropriating revenue or moneys, or imposing taxation, cannot originate in the Senate and the Senate cannot amend such laws.

Langer v Cth Cth Electoral Act

o S 240: House of representative election a

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person shall mark his or her vote by numbering 1,2,3,4

o S 329A: offence to publish any matter or thing with the intention of encouraging persons to fill in a ballot paper otherwise than in accordance with s 240

Langer:o S 240 invalid – inconsistent with s 24

Constitution ‘directly chosen by the people’ – the people if choosing freely must be free not to choose by not numbering every square

o S 329A invalid because it infringes the impliedconstitutional freedom of political communication

Held: Both valido Compulsory voting is not inconsistent with s 24

– compulsory preferential voting = give the voter a free choice – it is not to the point that if a ballot paper were filled in otherwisethan in accordance with s 240, the vote would better express the voter’s political opinion. The prescribed method of voting permits a free choice among candidates for election, thereforeit is within the legislative power of the Parliament.

o S 329A offence was appropriate and adapted to alegitimate legislative purpose. The restrictionon freedom of speech is to protect the s 240 method of voting, not to repress freedom of political discussion. It is to further the democratic process because it operated to prevent conduct intended to encourage voters tovote in such a way that their votes would not be effective or as effective as the votes of other voters. If the impairment of the implied freedom of political communication is reasonably capable of being regarded as appropriate and adapted to the achieving of thelegitimate legislative purpose and the impairment is merely incidental to the achievement of the purpose, the law is within power.

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“One vote one value” is not a constitutional requirement between electorates within States.

But the Constitution expressly requires quantitativeequality between States

Judges of the High Court have kept open the possibility that electoral laws may be invalidated on account of

o Extreme quantitative voting inequality and / oro Disproportionate or arbitrary qualitative

criteria

AG(Cth); Ex rel McKinlay v Cth Does the Constitution – s 24 “directly chosen by the

people” – require strict quantitative voting equality?

Held:o S 24 does not require equality in the size of

the electorates, whether measured by voters or by population.

o It was entirely appropriate to temper quantitative voting equality with qualitative considerations – such as ensuring that the preferences of rural voters were not overwhelmed by the urban voters. “Chosen by thepeople” embraces the notion of equality of numbers. But it is a matter of degree and the Constitution does not require absolute or as nearly as practicable absolute equality of numbers.

o At some extreme point quantitative voting inequality would breach the constitutional requirement of a choice by the people.

McGinty v WA Population of electoral districts were different

between rural & metropolitan areas in WA Does the WA Constitution guarantee strict

quantitative voting equality at WA elections?o No

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Does the Cth Constitution guarantee equality of voting rights at State elections?

o No – The conduct of State elections will not undermine Cth elections, unlike burdens on freedom of political communication.

Neither at Cth or State levels of Government do the number of voters need be as near as practicably equal in each electorate. Parliament can vary the electoral sizes.

Obiter with respect to Cth elections:o No constitutional requirement of voting

equality.o There may be some point at which electoral

distribution might be so quantitatively disproportionate as to violate the Cth Constitution.

o Voting equality is an underlying general requirement of the Constitution.

There is no express guarantee in the Cth Constitution of the right to vote.

But in Roach and Rowe caseso High Court accepts universal adult franchise o Any restriction must satisfy the

proportionality test What is the scope of the freedom? Does the law burden it? Is it a justifiable burden?

Is it designed to achieve an end compatible with the maintenance of representative government?

Is the means adopted reasonably appropriate and adapted to achieving that end?

Roach v Electoral Commissioner 2004 Act Electoral Act (Cth) disqualified prisoners

serving sentences of three or more years 2006 amendment disqualified all prisoners serving a

sentence of imprisonment for an offence against the law of the Cth or of a State or Territory from voting at any Senate or House of Representatives

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election. Held:

o 2006 Amendments were inconsistent with the system of representative democracy established by the Constitution. Voting in elections lies at the heart of representative government and disenfranchisement of a group of adult citizenswithout a substantial reason would not be consistent with it.

o The disqualification is for a substantial reason if it is reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government; for example: those who committed serious criminal conduct; represents a civil irresponsibility; anti-social; physical + symbolic separation in the form of loss of political rights.

o Reasonably appropriate and adapted does not mean essential or unavoidable.

o In this context there is little difference between what is conveyed by that phrase and thenotion of proportionality. The 2006 amendment is beyond what is reasonably appropriate and adapted to the maintenance of representative government. The net of disqualification is casttoo wide. It does not reflect any assessment ofany degree of culpability other than that whichcan be attributed to prisoners in general.

o The 2006 amendment, by abandoning any attempt to identify prisoners who have committed serious crimes by reference to either the term of imprisonment imposed or the maximum penalty for the offence broke the rational connection necessary to reconcile the disenfranchisement with the constitutional imperative of choice bythe people.

Rowe v Electoral Commissioner Electoral and Referendum Amendment Act 2006 removed

the grace period between the date of the issue of

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the writs and the closure of the rolls. Rowe attempted to enroll but was not able to. Issue:

o Does Cth have the ability to prevent certain people from voting?

Held:o Cth has the capacity, but needs to be

proportionate. It is only justified if it serves the purpose of the constitutional mandate.

o If the detriment is disproportionate to the benefit, then the law will be invalid as inconsistent with the mandate.

o It is disproportionate here, there is no reasonto move the mandate. 2006 amendments are incompatible with the requirements of ss 7 and 24 of the Constitution that the House of Parliament comprise members directly chosen by the people.

o The provisions operated to achieve a disqualification from the entitlement to vote and that the disqualification was not reasonably appropriate and adapted to serve an end compatible with the maintenance of the system of government prescribed by the Constitution.

WA v Cth Issue

o Whether the Cth Parliament had the legislative power to provide for the representation of Territories in the Senate?

Held:o Priority: democracy over federalismo Ss 7 and 24 must be read as interim provisions

until Parliament decided to allow representation to a Territory under s 122. It is very likely that the territories have their representation in the future anyway

o It is contrary to the democratic theme of the Constitution to prevent Parliament from allowing representation to Territories in

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either House.

Australian Constitution s 44: Disqualifications for election

Allegiance to, or subject or citizen of, a foreign power

o Sykes v Cleary The other two candidates has not gone

through the formalities of discharging their citizenship of Greece and Switzerland respectively.

The disqualification should not disbar andAustralian citizen who has taken all reasonable steps to divest him or herself of conflicting allegiance.

What is reasonable will turn on the situation of the individual, the requirements of the foreign law and the extent of the connection between the individual and the foreign State.

Treason Convicted of a Cth or state offence punishable by

imprisonment for one or more years Undischarged bankrupt or insolvent Holding any office of profit under the Crown

o Sykes v Cleary Cleary was a secondary school teacher

employed by the Vic gvt who had taken leave without pay for 2 years prior to theelection but only resigned when his election was assured.

Held: Cleary was disqualified for policy

reasons:o It is against separation of

powers - Impairment of his ability to perform respective functions: public servant vs. house of Representation

o Risk that a public servant wouldshare the political opinions of the Minister of his or her

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department Holding any pension payable during the pleasure of

the Crown from Cth revenue Having any direct or indirect pecuniary interest in

any agreement with the Cth Public Service otherwise than as a member of an incorporated company consisting of more than 25 person

The Judiciary

Cth Constitution Ch III “The Judiciary” S 71: vests the judicial power of the Cth in the

High Court, such other federal Courts as Parliament creates and such other Courts as it invests with federal jurisdiction

o Other courts = state courts S 72: Judicial appointment, tenure & remuneration

o Appointed by the GG in Councilo Shall not be removed except on an address from

both Houses in the same session on the ground of proved misbehavior or incapacity (similar inCth and NSW)

o Remuneration shall not be diminished during office

o Retirement age of 70 years

Separation of Cth judicial power Two principles

o Only Ch III courts can exercise the judicial power of the Cth

NSW v Cth (the Wheat case) S 101 – Interstate commission –

powers of adjudication and administration as the Parliament deems necessary. It came into being after the Inter-State Commission Act.

Held:o Act is invalid.o Judicial power can only be

conferred on the classes of

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courts expressly listed in Ch III. There cannot be a third class of courts nor State courtsinvested with federal jurisdiction. Commission is not a Ch III Court and thus cannot exercise judicial power.

o The adjudication contemplated isnot that of a court. It is rather discretion or judgment insense of the well-considered statesmanlike opinion, and is not measurable by any legal standard.

Waterside Workers’ Federation of Australiav JW Alexander

Cth Court of Conciliation and Arbitration invested with

o Arbitral function (making of industrial awards)

o Judicial function (enforcement of awards)

President appointed by the GG from among the Justices of the High Court

o Renewable 7-year termo removal provisions the same as

Constitution s 72 Held: not a Ch III Court

o The President did not have life tenure but s 72 impliedly requires life tenure for federaljudges.

o The arbitral functions were validly conferred. The function of the arbitral power is to ascertain and declare, but not enforce.

o The judicial powers of enforcingawards were invalidly conferred.

o Arbitral: legislative function which provides the factum upon which the law operates to create

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the right of dutyo Judicial: ascertains whether the

alleged rights or duty exists inlaw, and if it binds it proceedswhether it is necessary to enforce the law

o Cth courts cannot exercise non-judicial power R v Kirby; Ex p Boilermakers’ Society of

Australia Cth Court of Conciliation and

Arbitration constituted by Judges holding office for life

Employers’ Association sought to enforce a no-strike clause in an award. Arbitration Court ordered the union to comply with the award but Union disobeyed. The Court made another order finding Union to contempt.

Held: The Court of Conciliation and Arbitration was essentially an arbitral tribunal and its judicial powers were invalidly conferred.

The Constitution does not allow the use of courts established under Ch III for the discharge of functions which are not in themselves part of the judicial power (except for those ancillary powers that are strictly incidental to its functioning as a court.

When an exercise of legislative poweris directed to the judicial power of the Cth it must operate through or inconformity with Ch III. It is beyond the competence of the Parliament to invest with any part of the judicial power anybody or person except a Court created pursuant to s 71 and constituted in accordance with s 72 or a court brought into existence by a State.

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The grants of power in s 51 cannot support the creation of courts, outside Ch II, with jurisdiction appropriate to the subject matter of the power (e.g. bankruptcy, defence)

Definition of Judicial Power Huddart, Parker & Co v Moorehead

o Judicial power as used in s 71 of the Constitution means the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. Theexercise of this power does not begin until some tribunal which has power to give a bindingand authoritative decision (whether subject to appeal or not) is called upon to take action

Enforceabilityo Brandy v HREOC

HREOC determines complaints of racial discrimination.

Act amended to authorise enforcement of HREOC determinations on registration with the Federal Court to make the determinations binding on the parties and enforceable as an order of the Federal Court

The Act is invalid as it purported to vestjudicial power in HREOC

The determinations made by the Commission were made by reference to the application of pre-existing principles & standards. However, the determination would not be held enforceable until it was registered in the Federal Court at which time it would take effect as if it was an order ofthe Federal Court.

This case limited the capacity of the federal Parliament to establish non-judicial tribunals with effective powers

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of dispute resolution. It stopped the proliferation of non-judicial bodies.

Binding and conclusive decision – Tribunals can settle disputes and make findings of fact and law and still be non-judicial if there is an appeal to acourt or judicial review; the findings can be challenged collaterally

o Momcilovic v The Queen The making of a ‘declaration of

inconsistent interpretation’ by the Vic Supreme Court under Vic Human Rights Act, which does not affect the validity or enforcement of the law, or the rights or obligations of anyone.

Held: It is not a judicial function

therefore invalid at Federal level,o But not invalid at State level

The declaration does not decide or affect rights or liabilities. It doesnot have any effect on the operation of the statutory provision. It sets down no guidance for the disposition of future cases involving similar principles of law.

Regarding existing rights and duties – the creation of new rights and duties is a characteristic of non-judicial decision

o R v Trade Practices Tribunal; Ex p Tasmanian Breweries

Pt 4 Trade Practices Act empowers the tribunal to hear proceedings instituted bythe Commissioner of Trade Practices and tomake determinations and orders in those proceedings, rendering the agreement unenforceable.

Held: This does not involve judicial power. Sometimes judicial and administrative

functions overlap. Tribunals whose functions might be

considered judicial have still been

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valid if the particular grant of power can be matched with a legislative purpose.

A judicial power involves a decision setting for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference towhich that question is in future to be decided as between those persons or classes of persons.

o AG (Cth) v Alinta Ltd Takeovers Panel had the power to determine

whether actions taken during a bid are ‘unacceptable’ and make orders based on legal, commercial and policy criteria.

Non-compliance with Panel orders a strict liability offence

Held: valid. A panel declaration is based on

considerations and interests which the judicial process is ill-adapted to deal with.

Panel decisions create new rights andobligations

Panel decisions are enforceable independently by a court

Application of established legal standardso The broader the policy discretion, the less

likely the function is judicial.o Judicial power vested in a non-judicial body is

valid due to the breadth of the discretiono Thomas v Mowbray

Thomas admitted to training with terroristorganisations. He was issued a control order imposing restrictions on him, under the new-anti-terrorism laws. He challengedthe validity of the laws

Issue: Whether the essential nature of

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control orders is such that the powerto make them cannot be conferred uponthe judicial branch of government forthe reason that such orders are distinctively legislative or executive?

Held: Court today are inevitably involved

in the consideration of policy The control order regime was

supported by s 51 (vi) of the Constitution the defence power

The nature of judicial power is not always so clear cut. The current controversy arises from the fact thatcontrol orders are largely preventative in character. The order is not based on what the person has done, but rather what a person could probably do. If control orders are concerned with preventing future behaviour, it is conceivable that what is actually occurring is not theexercise of judicial power at all butrather the creation of future rights and obligations, which is more akin to the legislative or executive, rather than the judicial power of theCommonwealth. Therefore, Mr Thomas argued that control orders breached the separation of powers doctrine andshould be struck down as unconstitutional.

The majority rejected this argument. The majority held that the nature of control orders was not exceptional. Courts are often called upon to make orders for the prevention of apprehended violence and to exercise other coercive powers. The majority expressed a preference for judicial oversight in the issuing of control

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orders, thereby taking an active interest and role in the exercise of coercive powers to fight the threat of terrorism. This is a pragmatic view of judicial power that demonstrates a willingness on the part of the High Court to provide oversight and sometimes exercise coercive powers that are not typically exercised by courts, despite concerns expressed regarding the separation of powers.

Need for a controversyo There must be a “matter” between the parties.

There is no matter when An abstract question of law not

involving the right or duty of any person

The making of a declaration of law divorced or dissociated from any attempt to administer it.

Historical considerationso Has the function traditionally been exercised

by the court? The borderland principle of innominate functions

o The uncertainties that are met will arise from the fact that there is a borderland in which judicial and administrative functions overlap so that for reasons depending upon general reasoning, analogy or history, some powers which may appropriately be treated as administrative when conferred on an administrative functionary may just as appropriately be seen in a judicial aspect and validly conferred upon a federal court.

Anomalous exceptions to Boilermakers Principle Lane v Morrison

o Cth established the Australian Military Court independent from the chain of command in matters of military discipline and expressed not to be a Ch III Court

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o Held: The act was invalid by conferring judicial

power on a body not created in accordance with Ch III.

Military justice has a separate head of power under s 51(vi) of the Constitution. However, this Court exceeded that head of power, due to its existence outside of thecommand structure. S 51(vi) relied upon that structure. While an element of justice was crucial to military proceedings, military tribunals do not form part of the judicial system administering the law of the land.

It is the independence of the AMC from thechain of command which is the chief feature distinguishing it from earlier forms of service tribunal which have been held not to exercise the judicial power ofthe Cth. Whereas the decisions of a court-martial to convict and sentence a member of the forces were subject to automatic review and confirmation by reviewing and confirming officers designated by a chief of staff, the decisions of the AMC were not to be subject to any review or confirmation within the chain of command. No longer were there to be proceedings in the nature of an inquest, to inform the conscience of the commanding officer. The new court was to be able to condemn and punish without review or confirmation by acommanding officer.

The Court was established to make binding and authoritative decisions of guilt or innocence independently of the chain of command of the defence forces.

Harris v Caladineo To determine the validity of rules made under

the Family Law Act (Cth) that had delegated to Registrars of the Family Court of Australia thepower to make certain orders.

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o Issue: Whether the judicial power of Cth could be

exercised by Court Registrars masters or other senior administrative officers of the court?

o Valid if two conditions are satisfied: The delegation must not be to an extent

where it can no longer properly be said that the judges constitute the court. Judges must continue to bear the major responsibility especially in relation to the more important aspects of contested matters

The delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction powers and functions must be subject to review or appeal by a judge of the court.

The Persona Designata Rule – lawful assign non-judicial functions to federal judges as personae designatae – thisassignment is addressed to the individual in his / her personal capacity

Drake v MIEA:o It is a personal appointment not conferring

non-judicial functions on the court of which she / he is a member

Hilton v Wells:o The Act authorized the issue of telephone tap

warrants by a Judge of the Federal Courto Not unconstitutional to assign non-judicial

functions to Federal judges as personae designatae

o The Act designates the judges as individuals particularly well qualified to fulfill the sensitive role that the section envisages and confers on them a function which is not incompatible with their status and independenceor inconsistent with the exercise of their judicial powers.

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o If the nature or extent of the functions cast upon judges were such as to prejudice their independence or to conflict with the proper performance of their judicial functions, the principle underlying the Boilermakers’Case would doubtless render the legislation invalid.

Grollo v Palmero S 20 of the Act authorized eligible Judges to

issue warrants to police phone tappingo Two conditions of the persona designate

exception: The consent from the Judge It must not be incompatible with judge’s

performance of judicial functions and proper discharge by the judiciary of its responsibilities as an institution exercising judicial power.

Incompatibility consists ofo A strong commitment to perform

non-judicial functions that it is not possible for him to exercise judicial function

o Nature of non-judicial functionscompromise the ability of the judge to exercise judicial functions with integrity

o Nature of non-judicial functionsdiminish public confidence in the ability of the judge to exercise judicial functions withintegrity.

o The professional experience and cast of mind ofa judge is a desirable guarantee that the appropriate balance will be kept between law enforcement and protection of privacy and property

Wilson v Minister for ATSI Affairso Appointment of a Federal Court Judge to conduct

an inquiry and report to the Ministero Test:

If the function is not closely connected with the Executive or Legislature, no

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constitutional incompatibility arises If it is, it must be asked

Whether the function is required to be performed independently of any instruction, advice or wish of the legislature or the executive?

o If not independent, the separation of powers has been breached and the conferral is invalid.

Even if the function is to be performed independently, is there anydiscretion to be exercised on political grounds? – ie not confined by factors expressly or impliedly prescribed by law?

Whether the function must be performed judicially without bias andby a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests.

o Here the formation of opinions and the giving of advice involved in the making of the report were incompatible with the constitutional independence of the judiciary from the executive government.

o In a case where a federal statute specifically authorized the appointment of a judge to undertake functions incompatible with judicial office, the statutory provision authorizing such an appointment would be invalid. The invalidity of any purported appointment would be merely consequential on the invalidity of the empowering statute.

o If the minister has no policy instruction or intimation to give to the reporter the reporterhimself must make political decisions. The giving to the executive of advisory opinions onquestion of law is quite alien to the exercise of the judicial power of the Cth. The

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separation of the Ch III judge acting as reporter from the Minister has been breached. The function of reporting is incompatible with the holding of office as a Ch III judge.

o Constitution does not concern with the conduct of a judge who exercises his discretion to maintain independence from the legislative or executive government, but with the limits on legislative or executive powers that might be exercised to confer a function bridging the separation of the Jurisdiction from the legislative or executive government.

Cth Detentions Punitive Detention

o Chu Kheng Lim v MILGEA Lim challenges the government’s policy of

automatically detaining illegal immigrantson the basis that it is a judicial power that is conferred upon a non-judicial body(the Department of Immigration)

In general, detention is essentially judicial. However, there are some exceptions. Judicial detention is punitivein nature in that it occurs with court authorization and usually against the wishes of the detainee. Nun-punitive detention does not necessarily involve theexercise of judicial power.

Exceptions: Protection of the detainee from

harming themselves or others (psychological)

Preventing of the spread of a contagious disease

Ensuring the efficient conduct of a trial or proceeding

Pending deportation – aliens may be detained in custody for the purpose of deportation or visa processing

During wartime

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Detention is only valid if it is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or visa processing.

The executive cannot normally detain for punitive reasons. So too, Parliament cannot authorise by legislation the executive to so detain. Australian citizens have constitutional immunity frompeacetime detainment except by court order. The legislation prevents the High Court from ordering release in certain circumstances and usurps its role as arbiter of detention. Such intrusion into the judicial function is impermissible because the Parliament cannot withdraw inherent jurisdiction conferred by the Constitution. Therefore, a law which seeksto detain without a court order is unconstitutional.

Protective detentiono Kruger v Cth (Stolen generation)

Non-judicial detention was for a legitimate non-punitive purpose – namely welfare and protection

Immigration detentiono Al-Kateb v Godwin

Does the Migration Act (an officer must remove from Australia as soon as reasonably practicable an unlawful non-citizen who asks to be removed or is refused a visa) authorise the indefinite detention of an unlawful non-citizen (in this case, a stateless person)?

Yes – the words of the Act are clear to read them as being subject to a purposive limitation or an intention not to affect fundamental rights.

The legislature has authorized detention until the first point at which removal is reasonably practicable.

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It is not possible to transform ‘as soon as reasonably practicable’ to ‘soon’ or ‘for so long as it appears likely to be possible of proximate performance’

The time limit in the Act cannot be transformed by resort to presumptionsof legislative intent relating to human rights: the words are intractable

If the Act authorizes indefinite detention, is it constitutionally valid?

Valid - The Act does not infringe Ch III of the Constitution as detention is not punitive and the courts are not prevented from determining the conditions precedent authorizing detention

o The mere length of detention does not transform its characterfrom non-punitive to punitive

The power to detain is not incidentalto the power to admit, exclude and deport aliens; it is a power with respect to the subject matter of the aliens power which extends to allowing the segregation of aliens from the community

o Behrooz v Secretary DIMIA Inhumane conditions do not affect the

legality of immigration detentiono Re Woolley; Ex p Applicants

Children of Afghani nationality parents brought them to Australia; application forvisa refused.

The Act applies to unlawful non-citizen children. This is constitutionally valid under the aliens power and is not incompatible with any freedom from involuntary detention derived from Ch III.

To offend Ch III the law must be found to have the primary purpose to punish. It is

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the purpose (not effect) of the law that authorizes detention that is the yardstickfor determining whether the law is punitive in nature

This does not involve considerations of proportionality – the test is not whether the law is reasonably necessary for the achievement of a non-punitive purpose.

o Plaintiff S4-2014 v Minister for immigration and Border Protection

Minister decided to consider whether to lift the bar for the applicant for asylum arrived by boat on applying for a permanent protection visa.

After 2 plus years in detention the Minister granted a temporary visa to prevent the applicant applying for a protection visa.

The minister’s decision was invalid. Laws for the detention of aliens must be

limited to what is reasonably capable of being seen as necessary for the purposes of deportation or to enable visa processing. These purposes must be pursuedand carried into effect as soon as reasonably practicable. The duration of detention must be fixed by reference to what is both necessary and incidental to the execution of those purposes.

Control orderso Thomas v Mowbray

Ex parte procedure on the application of the Australian Federal Police

The court must be satisfied that making the order would substantially assist in preventing a terrorist act, or the person has provided training to or received training from a listed terrorist organization and that the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist

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Act. The control order scheme does not

impermissibly confer non-judicial power ona federal court, nor is the power otherwise incompatible with Ch III.

Apprehended violence orders, bail proceedings, post-sentence detention orders of sex offenders can equally be seen to create new rights and obligations which may restrict a person’s liberty.

Control orders are different from custody and likened the power to apprehended violence orders or binding over orders to keep the peace.

Judges have judicial familiarity with concepts of reasonableness and appropriateand adapted.

The procedure for issuing control orders is not incompatible with the exercise of judicial power. The initial ex parte hearing is followed by a confirmation hearing, generally in open court, applyingthe rules of evidence, with the burden of proof on the applicant, the provision of documents and an opportunity to respond and cross-examine, within an impartial court focusing on the particular circumstances of the individual.

State judicial power No constitutional doctrine of the separation of

judicial powers has been applied to State courts. The Cth Constitution does not expressly mention the

judicial power of the States nor State courts; except as recipients of federal jurisdiction ss 71, 77 (iii) and appeals to the High Court (s 73(ii)).

However, principles restricting State legislative orexecutive interference with State courts

o The incompatibility Principle Kable v DPP

NSW Parliament passed the Act to detain a person for up to 6 months

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after his prison sentence if the Court was satisfied that they were more likely than not to commit a serious act of violence, and that it is for the protection of community todetain them NSW Parliament exercising judicial power which breached the separation of powers doctrine incompatible with Ch III?

There is no finding of separation of powers doctrine applying in the States in a direct way. The focus is on the institutional integrity of thecourts as Australia has an integratedlegal system with High Court at apex,most notably the State Supreme Courts entrenched under Ch III of the Cth Constitution

Since the constitution established anintegrated Australian court system, and contemplates the exercise of Federal jurisdiction by State courts,State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which istherefore incompatible with its role as a repository of federal jurisdiction, is invalid.

Test of compatibility of function: inrelation to the maintenance of publicconfidence in the integrity & independence of those Courts vested with federal jurisdiction

Community Protection Act failed the test:

o Imprisonment of Kable without a finding of guilt – deprivation of liberty not on the basis of abreach of the law but on the formation of an opinion that theperson may do so.

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o Federal judicial power was not exercised in accordance with thejudicial process – no dispute about rights or duties under law

o Constitution s 73 (ii) requires that there be abody fitting the description ‘the Supreme Courtof a state’, thus no legislation of a State Parliament can alter the character of a SupremeCourt so that it ceases to meet the constitutional description

Kirk v Industrial Relations Commission Privative clause in Occupational and

Safety Act purporting to prevent judicial review.

Held: if it did prevent judicial review for jurisdictional error it would be constitutionally invalid.

Ch III of the Cth Constitution requires that there be a body fittingthe description ‘the Supreme Court ofa State’. The corollary of that is that it is beyond the legislative power of a State so to alter the character of its Supreme Court that it ceases to meet the Constitutional description.

To deprive the Supreme Courts of thatsupervisory jurisdiction would createislands of power immune from supervision and restraint, ultimatelyby the High Court, and undermine the single common law of Australia.

Preventive detentiono Fardon v AG (Qld)

Qld Act designed to keep a prisoner detained after the expiry of his /her sentence for a serious sexual offence.

The power were not incompatible with the role of a court that exercises federal jurisdiction

It was not directed at a particular person

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Hearings are conducted in public and in accordance with the ordinary judicial process

The onus of proof is on the AG The rules of evidence apply The discretion is structured There is a right of appeal There was nothing to suggest that the

Court is to act as a mere instrument of government policy

This making by the Supreme Court of a continuing detention order under s 13 is conditioned upon a finding not that the person has engaged in conduct which is forbidden by law, but that there is an unacceptable risk that the person will commit a serious sexual offence.

It was a combination of features includingconstrict the NSWSC to procure the imprisonment of the appellant by a processwhich departed in serious respects from the usual judicial process.

Not everything by way of decision-making denied to a Federal court is denied to a State court. So long as the State court, in applying legislation, is not called upon to act and decide, effectively as thealter ego of the legislature or the executive, so long as it is to undertake agenuine adjudicative process and so long as its integrity and independence as a court are not compromised, then the legislation in question will not infringe Ch III.

Independenceo Forge v ASIC

Appointment of acting judges to NSW State supreme Court

Valid but affirmed that it is beyond the legislative power of a State so to alter the character of its Sup Ct that it ceasesto meet the constitutional description.

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There is not an unlimited power to appointacting judges.

A state Supreme Court must remain principally constituted by permanent judges with tenure.

It is not a question of numbers but of substance.

Regard must be had to who has been appointed, for how long, to do what, and why necessary.

o K-Generation v Liquor Licensing Court SA legislation appeared to direct the SA

court to accept claims of confidentiality from the Police Commissioner. Liquor Commissioner must refuse a licence application if satisfied that to grant it would be contrary to the public interest. Review of refusal by the Licensing Court of SA and Supreme Court.

S 28A No information provided by the Police

Commissioner to the Liquor Commissioner may be disclosed to any person (the court excepted) if the information is classified by the Police Commissioner as criminal intelligence.

the Court must take steps to maintainthe confidentiality of the criminal intelligence including ex parte proceedings.

Held: not incompatible with the institutional integrity of courts of the State.

The decision of the Police Commissioner toclassify material as criminal intelligenceis reviewable. The court is not directed as to which particular steps may to taken to maintain confidentiality.

It is for the Court to decide whether to accept or reject the material and what if any weight to give it.

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The Licensing court is a court of record; comprised of judges but without guaranteedtenure; exercises broad policy discretion in licensing and disciplinary functions; not bound by the rules of evidence; appealto Supreme Court. Long-standing acceptanceof the capacity of courts of summary jurisdiction to receive federal jurisdiction. Linking of members of the Court to tenure as a District Court judge was significant.

o Assistant Commissioner Condon v Pompano The Act allows AC to obtain ex parte in a

closed hearing a declaration from the Supreme court that information was properly classified as ‘criminal intelligence’. AC applied for a declaration that Pompano was a criminal organization. The Act required criminal intelligence to be kept secret from the respondents.

Held the Act was valid. The Act permits the Supreme Court, in making the criminal intelligence declaration, to weigh the competing interests. The procedure denies the respondent knowledge of how the Commissioner seeks to prove an allegation,but not what the allegation is. It is for the court to decide the weight to be givento the evidence.

The procedure does not impair the Supreme Court’s defining characteristics. The Court retains its decisional independence;the power to mitigate the extent of the unfairness and the responsibility to determine what weight to give to criminal intelligence. The Court would have the power to refuse to act upon criminal intelligence where to do so would give rise to a degree of unfairness in the circumstances of the particular case whichwould not have been contemplated at the

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time that the criminal intelligence declaration was made.

o International Finance Trust Co Ltd v NSW Crime Commission

NSW legislation providing for Supreme Court restraining orders in respect of theproperty of a person suspected of having committed a serious offence.

NSW Crime Commission may apply to theSup Ct for a restraining order without notice to the person affected.

If the Court considers that there arereasonable grounds for the Commission’s suspicion that the person has engaged in serious crime related activities, the Court must make a restraining order.

Held: invalid It engages the SC in activity which

is repugnant in a fundamental degree to the judicial process as understoodand conducted throughout Australia.

To require a court not only to receive an ex parte application, but also to hear and determine it ex parte, if the Executive so desires, is to direct the court as to the manner in which it exercises its jurisdiction and in so doing to deprive the court of an important characteristic of judicial power; ie.To ensure as far as practicable procedural fairness.

The repugnance arises because there is no facility for the person affected to apply for speedy dissolution of the ex parte restraining order once the person hasreceived notice. The SC is conscripted for a process which requires in substance the mandatory

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ex parte sequestration of property onsuspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications.

o SA v Tonani Serious and Organised Crime Control Act

(SA) allows the AG to make a declaration that an organization is involved in serious criminal activity and is a risk topublic safety based on the activities of members.

S 14 – the Court must make a control orderif satisfied that the person is a member without any judicial determination. The control order must inter alia prohibit thedefendant from associating with other members of declared organisations.

Held: s 14 is constitutionally invalid. Itauthorized the executive to enlist the Magistrates Court in implementing decisions of the executive in a manner that was incompatible with te Magistrates Court’s institutional integrity.

The section impairs the decisional independence of the Magistrates Court fromthe executive in substance and in appearance in areas going to personal liberty and the liability to criminal sanctions which lie at the heart of the judicial function.

What s 14 does is permit the Executive to enlist the Magistrate’s Court to create new norms of behavior for those particularmembers who are identified by the Executive as meriting application for a control order. They are to be subjected tospecial restraint not for what they have done or may do, and not for what any identified person which whom they would associate has done or may do, but because

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the Executive has chosen them. That function is repugnant to the institutionalintegrity of the Court.

o Kuczborski v Qld Challenge to Qld’s bikie legislation

brought by a member of the Hells Angels based on Totani.

Kuczborski: some sections of the Criminal Code (Qld), which makes it an offence for a participant in a criminal organization to attend public meetings or prescribed venues or events, or recruit or attempt torecruit a new member; and sections in Liquor Act (Qld), which prohibits a licensee from knowingly allowing a person wearing insignia or carrying items associated with motorcycle clubs to enter onto licensed premises, makes it an offence to wear or carry those items on a licensed premise or to refuse to leave after be asked by the licensee.

Held: The plaintiff had no standing to challenge the validity of these Acts. He had no sufficient interest in having his legal rights clarified by a declaration. The laws did not criminalise his relationship with other members of the motorcycle club, he has not been charged with any offences under them, and does notintend to contravene them. Any general objection to their aim of discouraging membership of motorcycle clubs or a sense of grievance at the injustice of them is not sufficient for standing: ‘His liberty and other rights, duties, liabilities and obligations remain unaffected by the enactment of these provisions; and his legal position would not be materially advantaged if his challenge were to succeed

The joint judgment noted that the plaintiff’s submissions on the novelty and

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breadth of the Criminal Code provisions did not connect with the requirements of the Kable principle. The joint judgment rejectedthe plaintiff’s argument, relying on South Australian v Totani, that the laws ‘enlisted’ judicial power to give effect to Parliament’s intention to outlaw or disestablish the organisations: unlike in Totani, these provisions did not require a court to lay down any new norm of conduct or give effect to an executive or legislative decision, but, rather, simply require ordinary exercises of judicial power. Nor did the laws ‘cloak the work ofthe legislature or executive in the neutral colours of judicial action’: it was clear that responsibility for possibleharshness lay with the parliament, and that the only judicial activity involved is the ordinary process of a criminal trial. Finally, the joint judgment rejected the argument that members of motorcycle clubs are branded ‘criminal organisations’ without due process of law:the executive power to declare an association a ‘criminal organisation’ doesnot decide or punish the criminal guilt ofany person — that remains a matter for later criminal proceedings, where the declaration of association forms only one part of the overall offence, and in which each element must be proven in the ordinary way. As to the provisions of the Liquor Act, the joint judgment held that theywere laws of general application, are not novel, and do not intrude on judicial power.

The mere fact that a court is applying legislation that reflects the policy of the executive does not mean the executive is dictating to the Court. The Court was left a substantial adjudicative task.

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Unlike Totani, the legislation does not require a court to lay down new norms of conduct. It requires the court to find facts and impose punishment as a result ofthe contravention of norms of conduct laiddown by the legislature. The power to declare an organization to be a criminal organization does not usurp judicial power. It does not involve an adjudicationof criminal guilt.

o Wainohu v NSW Bikie legislation provides that the

Commissioner of Police may apply for a declaration that a particular organizationis a declared organization to an eligible judge of the Supreme Court.

S 13(2) the judge had no obligations to provide reasons for making or refusing declaration.

The Commissioner may object to the presence of a person when criminal intelligence is disclosed. The eligible judge must take steps to maintain the confidentiality of information the judge considers to beproperly classified as criminal intelligence

Held: Act is invalid. The incompatibility principle applied

in Wilson v MATSIA applies at State level because of the integrated courtsystem. Without reasons, a contested application makes more difficult any collateral attack or judicial review.The absence of an obligation to give reasons for the declaration after what may have been a contested application was repugnant to, or incompatible with the institutional integrity of the Supreme Court.

The effect to utilize confidence in

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the impartial, reasoned and public decision-making of judges to support inscrutable decision-making.

The executive Ch II ‘The Executive Government”

o S 61: executive power The executive power of the Cth is vested

in the Queen and is exercisable by the GG as the Queen’s representative, and extendsto the execution and maintenance of its Constitution, and of the laws of the Cth.

o S 62: There shall be a Federal Executive Council

to advice the GG and the members shall be chosen by the GG and shall hold office during his pleasure

o S 63: GG in Council means GG acting with the

advice of the Executive Councilo S 64:

The GG may appoint officers to administer such departments of State as the GG in Council may establish. Such officers hold office during the pleasure of the GG. Theyshall be members of the Federal Executive Council and shall be the Queen’s Ministersof State for the Cth.

Ministers must sit in either House in Parliament

Ch I ‘The Parliament’o A GG appointed by the Queen shall be Her

Majesty’s representative in the Cth, and o Shall have and may exercise in the Cth during

the Queen’s pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.

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Governor General Appointment and dismissal of GG

o Constitution is silento Rests on convention – advice of Prime Minister

Appointment of governmento In a hung Parliament

By convention, incumbent PM has the right to remain in office and test his / her support on the floor of the House.

Even if the opposition party has reached an agreement with independents / small parties

GG has no discretion to dismiss a Prime Minister before the House has met and expressed no confidence.

Once the PM has resigned By convention there must be a

government at all times, thus the PM and government remain formally in office on a caretaker basis. GG acts on the advice of the caretaker Prime Minister. GG should only act contrarily to that advice when rules have not been followed. If so GG could dismiss the Prime Minister and commission a new government.

When a new government cannot be commissioned, GG needs to call for another election. It is not for the GG to make judgments about which party / coalition will deliver stablegovernment – that is a matter for thelower house. Another general electionshould not be called unless the Housecannot operate.

When a person (government) is no longer deemed fit to hold that position to the head of state, the elected parliament no longer has confidence in the appointed government.

Vote of no confidence in the government by the lower house

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o The government must resigno Minister shall resign and advice

GG to form a ministry from the political group that now controls the lower house.

o If the PM does not observe theseconventions, the GG may have a reserve power.

Dismissal of governmento The gvt has the confidence of the lower house

but the gvt is persisting in illegal, unconstitutional conduct

the governor may have a discretion to dismiss the government if

the government is breaching a fundamental constitutional principle / provision, and

Governor has asked government to desist but government has refused, and

The contravention is not justiciableo PM cannot obtain supply

Lower house blocking supply The Senate rejects supply bills or defers

their passage. Crisis in 1975

o Government may continue to govern for as long as it has thesupport of the lower house

o A government that no longer has access to supply must either resign or be dismissed

o GG dismissed Whitlam’s Government based on

S 61: the GG’s responsibility to maintain the Constitution

S 64: the GG’s power to appoint and dismiss ministers

S 53: the power of the Senate to reject

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appropriation legislation

Source of Executive power - The principle of legality / the rule of law

A v Haydeno Government, even in pursuit of national

security objectives, has no power to authorise a breach of the law.

The executive must have legal authority for its decisions and actions derived from

o Statuteo Prerogative power – subject to control by

Parliament S 61 power (The Cth executive power

extends to the execution and maintenance of this Constitution, and of the laws of the Cth) is supported by s 51 (xxxix) (TheCth Parliament has power to make laws withrespect to matters incidental to the execution of any power vested in the Government of the Cth)

Including Executive prerogatives passed to the

Cth and States according to the division of legislative powers

Immunities and preferences Proprietary prerogatives

Judicial review of the exercise of prerogative power

Does the power exist? Has it been abrogated etc by

legislation? Was it exercised within the four

corners of the power? Cadia Holdings v NSW

Copper & gold mine Prerogatives specifically conferred

by the Constitution may be regulated but not extinguished by Parliament

The prerogative can be abrogated, modified or regulated by legislation.

The prerogative of the Crown is not

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displaced except by express words or by necessary implication. The Crown could not be stripped of any part of its ancient prerogative by a statute which did not specifically name it.

Ruddock v Vadarlis (Tampa Case) Rescuees; Tampa boat; first wooden

fish boat sinking The executive power extends to a

power to prevent the entry of non-citizens and to do such things as arenecessary to effect such exclusion.

The actions of the Cth were properly incidental to preventing the rescues from landing in Australia.

The power to determine who may come into Australia is so central to its sovereignty that it is not to be supposed that the government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australian community, from entering.

R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2)

Indigenous inhabitants had been resettled to make way for the military base

Prerogative powers are exercised by Ministers on behalf of the Crown.

Held the exercise of prerogative is an executive act and subject to review on grounds of legality. The formal source of authority – statute or prerogative – is not determinativeof justiciability. Provided the subject matter is appropriate for adjudication, any abuse of power is justiciable.

The Crown has plenary legislative authority over a colony, including to

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remove the right of abode. The prerogative to legislate for a colonyis not limited by the requirement that the legislation should be for the peace, order and good government of its inhabitants.

It is reasonable to give weight to the interests of the UK, including its security interests and the importance to those interests of its relationship with the US.

o The nationhood power Constitution s 61: the executive power of

the Cth extends to the execution and maintenance of this Constitution, enables the executive to engage in enterprises andactivities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit ofthe nation.

The s 61 power is supported by s 51(xxxix)– the Commonwealth Parliament has power tomake laws with respect to matters incidental to the execution of any power vested in the Government of the Commonwealth.

Davis v Cth Facultative measures: Bicentenary

authority; national antuem; Cth of the bicentenary

Sources of the nationhood powero S 61 confers prerogative

executive power upon the government

o S 51 (xxxix) operates upon s 61 to create legislative power within respect to powers vested in the government of the Cth

o The nationhood power encompassesboth executive and legislative powers

Scope of nationhood power

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o Deduced from the establishment and nature of the Cth as a polity – where no real competition between the State legislative and executive competence.

Validity of the Act (legislation) – test of disapproportionate:

o Is there a rational connection between the means employed and the overall objective?

o If yes, is the effect of those means excessive or disproportionate in light of thebenefit they secure?

o Held invalid as it is grossly disproportionate to the aim of commemorating the bicentenary.

Regulatory provisions that are reasonably incidental, or proportionate, to the Cth’s legitimate national purpose, including criminal sanctions, may be valid.

Tasmanian Dam Case (Cth v Tasmaina) The nationhood power does not support

legislation restricting property rights without consent, even for the conservation of World Heritage property.

Pape v Commissioner of Taxation Challenge to the validity of the Tax

Bonus for Working Australians Act as a response to the Global Financial Crisis

Held valid. The source of the power to make the bonus payments can be found in s 61 of the Constitution. Onthat basis, the enactment of legislation to identify the recipients and amounts of the payments was within the express

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incidental power (s 51 (xxxix)), as incidental to the exercise of executive power under s 61.

The executive power extends to short-term fiscal measures to meet adverse economic conditions affecting the nation as a whole where such measuresare peculiarly within the capacity and resources of the Cth government.

It is a state of emergency or naturaldisaster.

The executive government is capable of and empowered to respond to a crisis be it war, natural disaster ora financial crisis on the scale here.

Nationhood power cannot be invoked toset aside the federal distribution ofpowers or the separation of powers, nor to abrogate constitutional prohibitions.

Parliamentary appropriation (ss81 & 83) cannot in itself validate national expenditures. It is a necessary condition but is not itselfa substantive source of power to expend public money. The expenditure and the activities must be supported by some other source of power.

o Capacities power It has long been assumed that the

executive has an inherent capacity to function as a legal person provided the exercise of power

Is not inconsistent with statute or Constitution

Is not in breach of the criminal or civil law

Is not coercive or punitive Is subject to appropriation by

Parliament of funds Williams v Cth

PM Howard announced the introduction

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of a scheme for the provision of chaplaincy services in schools

The executive does not have the powerto contract and spend money on the basis that the capacities of the executive are analogous to those of other juristic persons

The scheme cannot be implemented solely through the executive power ofthe Cth without valid supporting legislation. A valid Act of the Cth Parliament is required.

The States have the legal and practical capacity to provide a chaplaincy scheme and there is no national disaster or national emergency to engage the nationhood power.

In general Parliamentary appropriation is a necessary but not

sufficient condition on the executive power to spendo Contracting and expenditure must be supported

by some other source of power. Sources of power

o Cth legislative powers – must be legislationo Executive Power s 61 – but that does not extend

to any matters reasonably capable of being seenas a matter of national benefit or concern

o For the purposes of conducting ‘the ordinary business of government departments’ (s 64)

Delegated legislation S 51 Legislative powers of the Parliament

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(i) trade and commerce with other countries, and among the States;

(ii) taxation; but so as not to discriminate between States or parts of States;

(iii) bounties on the production or

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export of goods, but so that such bounties shall be uniform throughout the Commonwealth; (iv) borrowing money on the public credit of the Commonwealth; (v) postal, telegraphic, telephonic, and other like services; (vi) the naval and military defenceof the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws ofthe Commonwealth; (vii) lighthouses, lightships, beacons and buoys; (viii) astronomical and meteorological observations; (ix) quarantine; (x) fisheries in Australian waters beyond territorial limits; (xi) census and statistics; (xii) currency, coinage, and legal tender; (xiii) banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money; (xiv) insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned; (xv) weights and measures; (xvi) bills of exchange and promissory notes; (xvii) bankruptcy and insolvency; (xviii) copyrights, patents of inventions and designs, and trade marks; (xix) naturalization and aliens; (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth; (xxi) marriage; (xxii) divorce and matrimonial causes;and in relation thereto, parental rights, and the custodyand guardianship of infants; (xxiii) invalid and old-age pensions;

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(xxiiiA) the provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances; (xxiv) the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States; (xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States; (xxvi) the people of any race , other than the aboriginal race in any State, for whom it is deemed necessary to make special laws; (xxvii) immigration and emigration; (xxviii) the influx of criminals; (xxix) external affairs; (xxx) the relations of the Commonwealth with the islands of the Pacific; (xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; (xxxii) the control of railways with respect to transport for the naval and military purposes of the Commonwealth; (xxxiii) the acquisition, with the consent of a State, of any railways of the State on termsarranged between the Commonwealth and the State; (xxxiv) railway construction and extension in any State with the consent of that State; (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State; (xxxvi) matters in respect of which this Constitution makes provision until the Parliament otherwise provides; (xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law;

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(xxxviii) the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia;

(xxxix) matters incidental to the execution of anypower vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

Victorian stevedoring & General Contracting Co Pty Ltd v Dignan S 3 Transport Workers Act delegated broad

legislative power to the executive to control the employment of waterside workers.

The grant of power is valid. The power is legislative in nature and parliament

can delegate power. With strict separation of legislative and

executive powers, effective government would be impossible. To have effective government there is a need to confer law-making power upon the executive.

The sovereign parliament can make any law, delegating power is a law, therefore the sovereignParliament can delegate power.

But the parliament cannot confer any power to the executive because of Constitutional constraint. Law conferring regulation power must be with respect to a head of power in s 51.

o The grant must be characterized as falling within the scope of a power. An overly broad delegation may be incapable of being characterized as ‘a law with respect to’ a Cth head of power.

o Parliament retains power of control and capacity to take the matter back

Here, although grant of power was broad, it was still with respect to s 51 (i) (interstate trade &commerce)

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Accountability of formal binding lawso Legislative Instrument (Cth)

An instrument described in the enabling Act as a ‘regulation’ or

An instrument in writing That is of a legislative character That is made in the exercise of a power

delegated by Parliament An instrument is taken to be of a legislative

character If it determines the law or alters the

content of the law, rather than applyingthe law in a particular case, and

If it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.

o Statutory rule (NSW) A regulation, by law, rule or ordinance

Made by the Governor Made by a person or body other than the

Governor, but is required by law to be approved or confirmed by the Governor

o Public participation – prior notice & consultationon the basis of a regulatory impact statement

Notification and access under FOI legislationo Publication of laws before they become law

NSW Interpretation Act and Cth Legislative Instruments Act

Electronic Registrationo Cth Act: an instrument that is not

registered is not enforceableo NSW Act: neither the whole nor any

part of a statutory rule is invalidbecause of late electronic publication, but the rule only commences on the date of publication.

Courts have required strict compliance with publication. If not, rule is ‘inoperative’.

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o Parliamentary scrutiny and disallowance Scrutiny by some appellate tribunals e.g.

(AAT may depart from government policy – Re Drake and MIEA)

Cth, Regulations and Ordinances Committee Four principles relating to personal

rights and parliamentary proprietyo Is delegated legislation in

accordance with the statute?o Does delegated legislation trespass

unduly on personal rights and liberty?

o Does delegated legislation make rights unduly dependent on administrative decisions which are not subject to independent review of their merits?

o Does the delegated legislation contain matters more appropriate for parliamentary enactment?

Tabling before each house of the Parliament Either house may disallow the rule

o Disallowance effects a repeal of the rule (NSW & Cth)

o If disallowed, no rule the same in substance may be published within 4/6 months, unless disallowance resolution repealed by House (NSW &Cth)

Failure to table:o NSW: does not affect validity of

ruleo Cth: if not tabled within 6 sitting

days after registration, instrumentceases to have effect after the last day.

Automatic repeal of formal rules NSW Subordinate Legislation Act

o After 5 years Cth Legislative Instruments Act

o After 10 yearso Judicial review of legality (Evans v NSW)

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To ensure within power and flexibly applied Non compliance with the procedures required

by the Act does not affect the validity of a statutory rule.

Evans v NSW World Youth Day Regulation provided

o An authorized person may direct a person within a WYD declared area to cease engaging in conduct that

Is a risk to the safety of theperson or others

Cause annoyance or inconvenience to participants

Obstructs a WYD event In addition to a purposive construction

of the Act, there is an independent principle governing the Court’s constructional choices. It is an important principle that Acts be construed, where constructional choices are open, so as not to encroach upon common law rights and freedom.

Regulation of conduct which involves disruption of, or interference with, freedom of religious belief is valid.

‘Inconvenience’ can be construed as limited to matters susceptible of objective judgment – not differences of opinion

Regulation interfering with freedom of expression in circumstances which do notinvolve interference with freedom of religious belief is invalid. In this case, regulating conduct that causes annoyance to participants. There is no objective criterion to assist the judgment of an authorized person. There is no intelligible boundary within which‘causes annoyance’ can be read down to save the regulation from invalidity.

o Ombudsman may criticize as unreasonable, unjust, oppressive or improperly discriminatory.

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Soft law or policies General principles

o The policy must be consistent with the enablingAct

o Discretion must not be fettered Policies must not be inflexibly applied Discretion must be independently exercised Administrators are not bound by their

policies

Ministerial Responsibility a cabinet minister bears the ultimate responsibility

for the actions of their department of ministry Individual Ministerial Responsibility

o Ministers are individually responsible for the work of their departments and are answerable toParliament for all their departments activities.

o They are expected to accept responsibility for any failure in administration, any injustice toan individual or any aspect of policy which maybe criticised in parliament, whether personallyor not.

Collective responsibility o one of the corner stones of cabinet government

in the UK. The convention states that any member of the government (so this extends to junior ministers as well as those within cabinet) must publically support and promote government policy. There may be disagreement inprivate, but everybody must “sing from the samehymn sheet” in public. If a minister is unable to do this, they must resign from the government.

Ministerial responsibility means that ministers must be answerable to Parliament for the way in which the powers assigned through statute are being used. This applies to all forms of government organization. Note the deliberateuse of the word "answerable" rather than "accountable."

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Equally succinctly, the requirement of parliamentary accountability means that Parliament must have the means to hold to account those on whom it has conferred the powers of the state, be they ministers or non-elected officials. If these two requirements can be met, one may be satisfied that the power of the state is being exercised constitutionally.

Production of state PapersEgan v Wills

A distinctive feature of the NSW Constitution is that the Upper house lacks the power to block supply, with the result that the Council’s legislative functions are subject to certain well-defined limitations

Egan = the leader of the Gvt in the Council and treasurer

House resolution: Egan to table certain papers in the Council or deliver them to the Clerk.

Egan did not comply with the order earlier agreed upon by the Cabinet

House resolution: o Egan is guilty of a contempt of the House (Para

2)o Egan is suspended from the service of the House

for the remainder of the day’s sitting (para 3(a))

o Egan to attend in his place at the Table of theHouse on the next sitting day to explain his reasons for not complying (para 3(b))

Egan refused to leave the House The president of the Council escort Egan from the

chamber and the parliamentary precincts – on the footpath of Macquarie St

Egan sought judicial review of:o The validity of para 2 and 3 of the resolution

–both held valido Removal into Macquarie St = trespass – trespass

held committed Issue:

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o Whether there was any justification for the trespass constituted by Egan’s removal from thechamber to the limit of the parliamentary precinct?

The powers of the Legislative Council withrespect to para 2 and 3(a)

Gaudron, Gummow and Hayne JJo The Council has power to order State paperso The Legislative Council as a popularly elected

House of Parliament and part of the legislatureof the State may on occasions need to see certain documents in order to carry out its legislative and other roles effectively on any view the Council must be armed with a power to do what is reasonably necessary for the proper exercise of its functions.

o The test for implying the powers of the Councilis that they be reasonably necessary for the exercise of its functions:

The primary legislative function in s 5 ofthe NSW Constitution Act – the Council enjoying the same status as the Assembly except Money Bills

The power of scrutinising the Executive generally

o The upper house has inherent power to suspend for a limited time a minister who refuses to produce a document that is not subject to privilege

o At common law the upper house has such powers as are reasonably necessary to fulfil its legislative function and function of scrutinising the executive.

o Role of the upper House Each house has a role in scrutinising the

Executive The fact that the government does not have

to maintain the confidence of the upper house does not mean that it is not accountable to that House

o Production of State Papers

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Each house has the Power to call for the production of state papers, even if privileged

Exception for documents that reveal the deliberations of cabinet.

Egan v Chadwick Egan was called upon again to produce documents and

he refused, claiming the documents were protected bythe legal professional privilege and public interestimmunity

Legislative Council resolutions o Contempto Suspensiono Forcefully removed into the street

Egan sued removal = assault Held by the Court of Appeal:

o The power of the Legislative Council to compel the executive to produce State papers did extend to documents for which a claim of legal professional privilege; commercial confidentiality or public interest immunity hadbeen made

o But the legislative Council does not have the power to require the production of Cabinet documents because the production of Cabinet documents that directly or indirectly reveal the deliberations of Cabinet would undermine the collective responsibility of Ministers, which is an essential aspect of responsible government.

o It is reasonably necessary for the performance of the Legislative Council’s function to have access to state papers even if subject to privilege, including client legal privilege, commercial confidentiality and public interest immunity.

o Claims of privilege are better dealt with by each House, rather than by the courts. If the public interest is harmed, the sanctions are political not legal.

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NSW Legislative Council SO 52o Government gives reasons for the claim of

privilegeo Privileged documents are deposited with the

Clerk and made available only to memberso A member may dispute the validity of the claim

of privilegeo Referred to an independent legal arbiter

(senior Counsel or retired judge) for evaluation and report within 7 days

o Report tabled in Parliamento If the arbiter upholds the claim, documents are

restricted to members only and not made public,subject to the House deciding otherwise.

Cth Senateo Power to order the production of documents is

derived from s 49 of the Constitution / Parliamentary Privileges Act s 5

o No systematic procedure for testing government claims of privilege

Public interest immunity The court may direct that information or a document

relating to matters of state is not to be adduced asevidence if the public interest in the administration of justice is outweighed by the public interest in preserving secrecy or confidentiality

Murrumbidgee Groundwater Preservation Association v Minister for Natural Resources

o Murrumbidgee made an application for judicial review of Natural Resources groundwater sharingplan

o This Minister’s plan restricted the irrigators rights to trade water.

o The Association sought to subpoena briefing documents from the Department of Natural Resources to Cabinet, as well as Cabinet minutes and decisions they believed that the documents would show that the Minister had not exercised an independent discretion when he

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made the plan, but had ‘acted under the dictation’ of the NSW Cabinet

o Cabinet Argument: Cabinet Minutes are the most significant

class of documents used by Cabinet when itis informing itself and making decisions on high public policy and administration

The public disclosure of any Cabinet Minute would be contrary to the public interest. It is vital to the development of public policy and to the good administration of the affairs of the Statethat the Cabinet be able to receive confidential advice and information on thematters that come before it for consideration. In order to achieve this itis necessary that the Cabinet and its Ministers be able to be confident that advice and information which ministers putbefore Cabinet will remain confidential. The disclosure of Cabinet Minutes would directly undermine such confidence in a significant way.

The operations of the Cabinet are governedby the principle of collective responsibility for any decisions which maybe made. Ministers are expected to accept and express support for decisions made by Cabinet.

If the records of Cabinet decisions were liable to being disclosed pursuant to the subpoena process it would tend to inhibit the phrasing and recording of Cabinet decisions. In some cases decisions would be phrased and recorded in a manner calculated to be suitable for disclosure to the public. It would be against the public interest for Cabinet decisions not to be recorded or to be recorded imprecisely or verbosely. Therefore, it would be against the public interest to expose any record of a Cabinet decision.

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o Held: The statutory expression of the applicable

rule in s 130(1) of the Evidence Act 1905 If the public interest in admitting

into evidence information or a document that relates to matters of state is outweighed by he public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

Principles: There is no absolute immunity from

production and inspection of cabinet documents (including Cabinet minutes;papers prepared as submissions to Cabinet; any documents related to theframing of government policy at a high level) (Sankey v Whitlam)

A court will not order the productionof a document although relevant and otherwise admissible if it would be injurious to the public interest to disclose it

Two aspects of public interest: the protection of government from the harm which may be caused by disclosure and the interest in ensuring that justice can be effectively administered (Sankey)

The Court must weigh the competing elements of the public interest

A claim for immunity for a class of documents as opposed to a claim in relation to individual documents willbe upheld only if it is really necessary in the public interest or the proper functioning of the public service.

The Court has power to inspect the documents in order to determine any

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claim. However, if the documents clearly fall into a class which attracts immunity they should not be inspected.

Documents relating to a topic which is current or controversial will attract a high level of confidentiality.

Documents and communications passing between a Minister and the head of his department relating to cabinet proceedings and material prepared forCabinet are likely to be protected (Sankey)

Reports relating to important mattersof policy between public servants andMinisters or between senior public servants warrant a high level of protection (Sankey)

In this case, both Cabinet minutes and decisions will relate to the formulation of gvt policy, the latter are likely to reflect it. When the document relates to amatter which is one of contemporary political controversy it should only be disclosed in extraordinary circumstances.

There is no evidence currently before the court that could found an inference that the Minister inappropriately relinquished his discretion. In the absence of such evidence there is no basis for requiring disclosure of the documents.

It is plain that prima facie all of the documents identified in the subpoenae attract public interest immunity. If not actual Cabinet documents they are communications designed to assist the Minister in carrying out his functions. However, whether the court should inspect the documents, and then, whether the applicant should be allowed to inspect them are not matters which can presently

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be determined. They must await the development of the applicant’s case and the Minister’s defence at the trial.

Freedom of Information Legislation 4 sets of rights

o rights to know about government functions and operations, government contracts, and internal rules and policies which affect members of the public

Cth FOI Act Pt 2 NSW Gvt Info Public Access Act Pt 3

o Every person has a legally enforceable right toobtain access to a document of an agency or an official document of a Minister, unless the document is an exempt document

Cth FOI Act s 11 NSW GIPA Act s 9

o Right of access to personal records and right to bring about amendment of personal records ifincomplete, incorrect, out-of-date or misleading

NSW Privacy and Personal Information protection Act

Cth FOI Act – including private matters inFOI under review

o Rights to merit review of decisions denying access

Every person has the right to access government-helddocuments

o Without having to demonstrate a need to knowo Subject to exemptions for agencies and

documentso Document includes any information which is

capable of being reduced to written or visual form

Reverse FOIo Duty to consult third persons affected by

disclosure Personal information of a third person

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Business, commercial or financial information

Information from State / Cth governments Research

o Only consultation, not a veto, but third personhas a right of appeal.

If a decision on access is not made within the prescribed time, there is a deemed refusal and the applicant can seek external review.

If access is grantedo Cth and NSW law reforms require the information

to be made publicly available except the applicant’s personal and business information.

Reasons for refusal of access includingo Work involved is a substantial and unreasonable

diversion of resourceso Agency can refuse to confirm or deny that

information is held because there is an overriding public interest against disclosure of that fact

o Exempt agencies Wholly exempt Exempt in respect of certain documents

Exempt documentso Documents are divided into

Those which the legislation conclusively presumes to be contrary to the public interest to disclose

Those subject to a single public interest test

Access is required to be given unlessit would be contrary to the public interest

Prescribed factors to be taken into account / not taken into account in applying the test

o Cabinet Ducuments – no public interest test – conclusive presumption against disclosure

Cth s 34 NSW Sch 1 cl 2

o Internal working Docs – subject to a public interest test

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Cth Public interest conditional exemption Consider whether the document falls

within s 47C – deliberative processes Consider where the public interest

lies: s 11Bo Public interest factors that

must not be taken into accounto Public interest factors

favouring disclosure NSW

S 12: presumption in favour of disclosure

S 13: overriding public interest against disclosure

S 14: closed list of considerations against disclosure

S 15: general principles that apply to the determination

Complaints (NSW & Cth)o Information Commissioner on the meritso Ombudsman – cannot investigate decisions of

ministerso On complaint by individuals or own motion

Right to reviewo Cth

Internal review is a prerequisite, unless the decision was made by the Minister or principal officer

Merits review, either by Information Commissioner

o May make a decision in substitution for the primary decision

o Appeal on a question of law to the Federal Court, or

AAT Judicial review

o NSW – Choice of review is optional Internal review Review by the Information Commissioner

Recommendations only

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Merits review by the NSW Civil and Administrative Tribunal

Judicial Reviewo On merits review

normally there is no burden of proof in tribunal proceedings

in FOI appeals, the onus is on the agency or Minister to justify its decision

Reasons for decision makingPublic Service Board of NSW v Osmond

Osmond applied for appointment to a vacant position of Chairman under the Public Service Act 1979 (NSW);Galvin was recommended to be appointed by DepartmentHead.

Osmond appealed to the Public Service Board of NSW but the Board had dismissed his appeal.

Osman requested the Board to give reasons for its decision but the Board refused to do so all the way to the High Court

Gibbs CJo Issue: whether, notwithstanding that there is

no general obligation to give reasons for an administrative decision, the circumstances makehis a special case in which natural justice required reasons to be given.

o The rules of natural justice are designed to ensure fairness in the making of a decision andit is difficult to see how the fairness of an administrative decision can be affected by whatis done after the decision has been made.

o In this case, the issue before the board were which of the two officers had the greater efficiency, and if neither of them had greater efficiency than the other, which was the senior?

o The respondent had the means of knowing what issues were canvassed on the appeal, and could readily infer whether the Board’s conclusion rested on the Act. Neither the provisions of the Act nor the circumstances of the case justified the conclusion that the rules of

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natural justice required the Board to communicate the reasons for its decision.

o There was no rule of common law, and no principle of natural justice, requiring the Board to give reasons for its decision, howeverdesirable it might be thought that it should have done so.

General statutory duties of rule makingo Cth

Administrative Decisions (Judicial Review Act) s 13

Judicial reviewo Duty to give reasons on requesto In respect of a decision to

which the Act applies, reviewable under s 5

o Requester must have standing to apply for review

o Requester does not have to firstlodge an application for review

The reasons statement may be tenderedin evidence

o But it is the decision, not the reasoning, that are under review

Statement must – whenever Cth legislation requires reasons to be given the statement must do those three things: Acts interpretation Acts 25D

o Set out the findings on materialquestions of fact

o Refer to the evidence or other material on which those findingswere based

o Give the reasons for the decision

Decisions to which s 13 does no apply – where these two sections applies the statement must be given omitting the confidential information or does not have

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to be given if the statement would be false or misleading

S 14 public interest immunityo If the AG certifies disclosure

of any matter would be contrary to the public interest by reasons that it would

Prejudice Australia’s security, defence or international relations

Involve the disclosure of deliberations of Cabinet orCabinet committees

For any other reason that could form the basis for a claim in a judicial proceeding that the information should not be disclosed

S 13A personal or business Affairs ofa third person

o If the information relates to the personal affairs or businessaffairs of a person, other than the requester, and the information

Was supplied in confidence or

Was supplied under a statutory duty or

Would reveal a trade secretor

Would contravene a statutory secrecy clause

AAT Act (Cth) s 28 – merits review The duty to give reasons on request

is similar to ADJR Act s 13, ieo Requester must have standing to

apply for reviewo AAT must have jurisdictiono Requester does not have to first

lodge an application for review

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o The statement must do those ‘3 things’

Limitationso If AG certifies disclosure of

any matter would be contrary to the public interest in that it would

Prejudice the security, defence or international relations of Australia

Involve the disclosure of deliberations of the Cabinet or Cabinet Committee

For any other reason that could form the basis for a claim of Public Interest Immunity in judicial proceedings

o But the AG’s certificate does not prevent the AAT from obtaining a full statement

The parties and public are excluded from access

o NSW Administrative Decisions Review Act s 49

merits reviewo Duty to give reasons on requesto In respect of a decision

reviewable by NCATo Requester must be entitled to

apply for reviewo Requester does not have to first

lodge an application for review Statement must set out

o The findings on material questions of fact, referring to the evidence or other material on which those findings were based

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o The administrator’s understanding of the applicable law

o The reasoning processes that ledthe administrator to the conclusions the administrator made

Exemptions – Civil and AdministrativeTribunal Act s 66

o If there is an overriding publicinterest against disclosure under GIPA

o This does not prevent disclosureto the Tribunal

Tribunal can be denied access to Cabinet documents

o DG of the Cabinet Office may conclusively certify that a document is an exempt document because it is a cabinet document

o Any person who would otherwise be required to disclose the document to the Tribunal is authorised to refuse to do so

Judicial reviewGrounds of Judicial Review

The principle of legality – must have legal authority

Statutory interpretation – presumptions of legislative intent may influence the interpretation of legislation where there is ambiguity

Remedies – none of the remedies permits the Court to remake the decision by exercising the administrator’s discretion.

Prerogative remedieso Certiorari, prohibition, mandamus & habeas

corpus Equitable remedies

o Injunction and declaration

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Statutory remedieso ADJR Acto Statutory reforms in Supreme Court Act

Constitution s 75(v) Constitutional writsJusticiability

Matterso Cth Constitution ss 75, 76, 77o If a claim is not a relevant “matter”, it

cannot be brought before the Court (In re Judiciary). This matter is an “immediate right,duty or liability” (Mellifont v AG). But “matter” is broad enough to encompass circumstances where a party is in violation of a law, thinks it’s invalid but wants to know whether he can continue to so violate (Croome vTasmania).

o In re Judiciary and Navigation Acts (1921) HCA S 75 – High Court shall have original

jurisdiction “in all matters” S 76 empowers the Parliament to invest the

Court with original jurisdiction “in any matter” of the kinds there specified

S 88 of the Judiciary Act (Cth) - “whenever the GG refers to the High Court for hearing and determination any questionof law as to the validity of any Act or enactment of the Parliament the High Courtshall have jurisdiction to hear and determine the matter” - purported by Federal Parliament – enabled the Full Court of the High Court to give advisory opinions

The Validity of the Navigation Act 1912(Cth) was questioned – can s 76 of theConstitution support the legislation, or does an abstract question of law go beyondthe ‘any matter’ there referred to?

Held: Parliament desired to obtain from the Court not merely an opinion but an authoritative declaration of the law this is a judicial function exercised bythe judicial power of the Commonwealth

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not within our province to inquire whetherParliament can impose on this Court or on its members any duties other than judicialduties

The question here therefore is: is authority to be found under s 76 of the Constitution for the enactment of s 88 of the Judiciary Act?

A matter is more than merely a legal proceeding – it means ‘the subject matter for determination in a legal proceeding – no matter will arise unless there is some immediate right, duty or liability to be established by the determination of the Court.

A matter must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law.

This may occur either inter partes or ex parte but not to determine abstract questions of law without the right or dutyof any body or person being involved.

S 76 does not authorise an advisory opinion because it is not a “matter”. It does not support legislation purporting toenable determination of such an abstract question.

Two aspects here: An abstract question of law not

involving the right or duty of any person

The making of a declaration of law divorced or dissociated from any attempt to administer it

o Mellifont v AG (Qld) when question of law arises in the course

of a criminal trial referring it to an appellate court for determination

when the accused has been acquitted(无无无无), either

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o the result of the reference doesnot affect the acquittal – s 669A (5) the Criminal Code (Qld); or

o fresh indictment trial judge the accused on a point of

law (the accused was discharged) The Court of Criminal Appeal - the issue

was referred under s 669A the prosecution the accused is warned of a fresh indictment

High Court the accused appealed Issue:

Whether the formulation in s 73 Constitution “all judgments, decrees,orders and sentences” of State and federal courts” included a ruling on a reference under s 669A

Held: Yes Ruling in In re Judiciary and Navigation

Acts: The legislature cannot authorise the Court

to (1) make a declaration of the law divorced from any attempt to administer that law. We can find nothing in Ch III ofthe Constitution to lend colour to the view that Parliament can confer powers or jurisdiction upon the High Court o determine (2) abstract questions of law without the right or duty of any body or person being involved.

In this case, the exercise of the power torefer and the exercise of jurisdiction by the Court pursuant to the reference both proceed on the footing that no further proceedings on the indictment in respect of the relevant charge will be taken theruling on the point of law pursuant to thereference will not play any part in the subsequent determination of the charge on the indictment. In the case of acquittal, the ruling on the reference has no impact

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on the acquittal The indictment itself is not a vehicle for further determinationof the charge

But the reference and the decision on the reference arise out of the proceedings on the indictment and are a statutory extension of those proceedings the decision on the reference wa made with respect to a “matter” which was the subject-matter of the legal proceedings atfirst instance and was not divorced from the ordinary administration of the law the decision is not the abstract declaration sought by the Executive Gvt inIn re Judiciary and Navigation Acts.

However, in criminal law, s 669A(2) enables the Court of Criminal Appeal to correct an error of law at the trial this characteristic of the proceedings stamps them as an exercise of judicial power and the decision as a judgment or order within the meaning of s 73.

An answer given on a question of law reserved on acquittal was appellable to the High Court. The answer could not affect the acquittal; nor did the answer turn on the existence of an information because a nolle prosequi had been entered.The reference was a statutory extension of, and arose out of, those proceedings the reference was made with respect to a matter which was the subject of legal proceedings at first instance and was not divorced from the ordinary administration of the law. The proceeding facilitated thecorrection of an error in a matter. It could be distinguished from a mere advisory opinion on a question of law where the questions stated were not restricted to the facts of the case.

o Thorpe v Cth

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The applicant was asking the Court to direct the Cth as to how it should conductinternational relations

The plea is a political one which should be directed to the political branches of government

o Croome v Tasmania Criminal Code 1924 (Tas) – carnal

knowledge of any person against the order of nature and indecent practice between male persons were offences

In 1994, the Human Rights (Sexual Conduct)Act 1994 (Cth) was enacted into conformitywith international law stating ‘these provisions were an arbitrary interference with privacy’

The plaintiffs have not been prosecuted under the Criminal Code for being homosexual; however, they still seek to establish inconsistency between the Code and the legislation

Tasmania arguing: no ‘matter’ – the plaintiffs’ action does not seek to establish any immediate right, duty or liability nor is the Court called upon to administer the relevant law.

Held: a matter is not a proceeding but thesubject of the controversy which is amenable to judicial determination in the proceeding.

The question of law that the plaintiffs seek to raise is whether those provisions operate and have operated in Tasmania.

A matter may consist of a controversy between a person who has a sufficient interest in the subject and who asserts that a purported law is invalid and the polity whose law it purports to be.

It is a misconception of the principle in In re Judiciary and Navigation Acts to suggest that, in proceedings for a declaration of invalidity of an impugned

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law, no law is administered unless the executive government has acted to enforce the impugned law.

In re Judiciary does not establish that noright, duty or liability will arise until a criminal provision is enforced against acitizen.

There is a relevant matter here. The threat of possible criminal prosecution issufficient to give rise to an immediate right, duty or liability.

Is the dispute appropriate for judicial resolution? – Common law

o Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd – appropriateness test

Federal Cabinet: Kadadu National Park in the World Heritage List – exercising the prerogative power – the subject area wouldbecome “identified property” within the meaning of s 3(2) of the World Heritage Properties Conservation Act (Cth) – miningoperations are unlawful

Peko-Wallsend has mining interests in Kakadu – existing interests were preservedunder ss 8B and 10 of the National parks &Wildlife Conservation Act (Cth)

Issue: justiciability of Cabinet decisionsand natural justice – whether the decisionby Cabinet is subject to Judicial Review

Held: Yes – it is provided it raised a

justiciable issue. Peko had a legitimate expectation that their licence would be renued, thus, are effected by the decision. Thus, the decision is said to be justiciable and so reviewable, because of the detriment suffered by Peko.

But the decision was not appropriate for judicial review. It is a matter for the political not judicial process

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the decision involved complex policy questions relating to the environment, the rights of aborigines, mining and its impact on Australia’s economy, private interests – these complex policy issues combined with the fact that the decision related to internationalrelations, put it beyond judicial review.

Justiciability does not turn on whether the exercise of power is statutory or prerogative in origin, but on the nature of the power being exercised or the decision being made.

Considerations: Yes – the decision directly affect

the rights, interests or legitimate expectations of an individual

Consider functional limitations of adversary adjudication

Consider whether the issue is capableof resolution by legal criteria or ascertainable objective standards

Separation of powers; international affairs

o Habib v Cth Habib alleged that Cth officials aided,

abetted and counseled his torture by foreign officials while he was detained inAfghanistan and at Guantanamo Bay

Issue: whether the Court should dismiss the claims of misfeasance in a public office and intentional but indirect infliction of harm for the reason that, sinc their resolution would require a determination of the unlawfulness of acts of agents of foreign states within the territories of foreign states, those claims are not justiciable and give rise to no’matter’ within the jurisdiction of the Court under s 39B of the Judiciary Act

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(Cth) and s 77(i) of the Constitution, or give rise to no cause of action at common law?

Held: The development of Anglo-American jurisprudence indicates that the act of state doctrine does not exclude judicial determination of Habib’s claim as it involves alleged acts of torture constituting grave breaches of human rights, serious violations of international law and conduct made illegalby Australian laws having extra-territorial effect.

Exclusion of the jurisdiction of Australian courts by reference to a doctrine which is a rule of the common lawcannot be reconciled with Ch III of the Constitution or the content of the laws ofthe Parliament that proscribe torture and war crimes committed by any person any where.

Courts have constitutional role to review the legality of administrative action. Theact of state doctrine – whatever it might be – has no application where it is alleged that Cth officials have acted beyond the bounds of their authority underCth law.

No law of the Parliament may bar the rightto proceed against the Cth in respect of the scope of its constitutional power. Thedoctrine of the Crown’s immunity from suitcan have no operation in federal jurisdiction for if it did it would mean that the operation of the Constitution itself was crippled by doctrines devised in other circumstances nad for a differentsystem of government.

The effect of this principle is to ensure that whenever a question as to the limits of Cth power arises it is justiciable Habib’s suit is in federal jurisdiction

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for it both arises under the Constitution and under the Australian Federal Police Act and the Australian Security and Intelligence Organisation Act. Thus the judicial power of the Cth is engaged.

If what the Cth’s submissions are accepted, they would mean that the High Court would be unable to entertain Habib’ssuit to enforce the limits of s 61 of the Constitution and to ensure that officers acted within the law.

Habib alleges before a Court exercising federal jurisdiction that Cth officers acted outside the law. The justiciability of such allegations is axiomatic and couldnot be removed by Parliament still less the common law. Comity between the nationsis a fine and proper thing but it providesno basis whatsoever for this court declining to exercise the jurisdiction conferred on it by Parliament.

o Stewart v Ronalds A staff member alleged that the plaintiff

Stewart had berated her (misconduct), and subsequently complained to the Department of the Premier and Cabinet.

Mr Stewart denied the allegations of improper conduct

The Premier decided to have an inquiry conducted into the allegations. Ronalds (first defendant) was appointed to conductthe inquiry. What she was retained to do was not founded in statute. It was a private task.

Ronalds interviewed Stewart and accepted the allegations to be true and reported tothe Premier that the incident had occurred.

The conversation was raised in a social context. Stewart was removed from his Ministerial position.

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Issues: Whether the decisions of first defendant, Premier and Lieutenant-Governorcould be subject to judicial review? –NO with Premier and LG

If so, was the plaintiff owed a duty of natural justice by the first defendant, premier or Lieutenant-Governor? – NO with Premier and LG

Did the first defendant owe the plaintiff a duty of care at common law? – NO

Do the claims impermissibly seek to call into question the contents of the report of the first defendant in a manner inconsistent with parliamentary privilege and Article 9of the Bill of Rights 1688?

Held: The decisions of the Premier and theLG were not amenable to judicial review. The Premier and the LG did not owe a duty of natural justice to Stewart. The proceedings against Ronalds were remitted to the Administrative Law list for hearing.

Whether the Premier and the LG owed an obligation of procedural fairness before removing Stewart as a Minister depends upon whether the decision was judicially reviewable – found: the exercise of a power under statute by a representative ofthe Crown may in some circumstances be reviewable.

The removal of Stewart from office was pursuant to statute: the Constitution Act 1902, ss 35C and 35E – Source of power identified

The indicia that made the exercise of a power under statute reviewable – it was necessary to ascertain whether the legitimacy of the decision depended on legal standards, or whether the decision was made by reference to political

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considerations – identifying the controversy and the character and the limits of the controversy.

The matter here was political – the complaint made by Stewart was directed to how the Premier came to the personal view that he had lost confidence in Stewart to continue as a Minister in the Gvt. It was not for the courts to scrutinize the substance of the Premier’s advice to the LG in respect of the composition of the Ministry. That was a function of Parliament and through it the people of NSW.

As the decision was not reviewable, there was no obligation to afford procedural fairness.

Regarding Ronalds, the obligation to afford a party natural justice depends upon a statutory exercise of power or uponthe rules of the organization exercising apower affecting rights. The common law does not impose any general obligation of natural justice before publishing materialwhich is defamatory – they are the province of the law of defamation.

However, where a person has been given a power, an obligation to give natural justice will arise, where the exercise of the relevant power may prejudice ‘a person’s rights, interests or legitimate expectations’ – a person’s reputation is aright for this purpose.

Where a person does not owe a duty of care, but the outcome of the task undertaken is likely to have an adverse effect on the person concerned, the personmay have a public law remedy. Such a duty may be owed notwithstanding that the person is not acting pursuant to a statutory authority or any rules that

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could be interpreted as requiring natural justice to be afforded.

Responsible government in NSW means that the Governor acts on the advice of the government. The advice re termination is inherently political. The phrase “governor’s pleasure” (in s 35C Constitution NSW) reflects the width of the political considerations attendant on and capable of informing the advice of thePremier. Judicial review is inappropriate as the advice depends on political, not legal, standards. As Ministers may be dismissed for no reason, there is no rightto procedural fairness.

Merits Review Tribunal my stay the implementation or operation of

the decision being reviewed (Shi v MARA) Tribunal has a very limited discretion to refuse to

review (e.g. if the application is frivolous orvexatious; if agreement reached between the parties)This is different from the discretion of a Court or

Ombudsman Tribunal’s rulings on questions of law are not final

and binding. There is no legal onus of proof unless legislation

like FOI Act so provided)

Cth Administrative Appeals Tribunal Merits review

o Cth AAT: s 43 (1) The tribunal must make a decision

Affirming the decision under review, or

Varying the decision under review; or Setting aside the decision under

reviewo And making a decision in

substitution

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o Or remitting the matter for reconsideration in accordance with any directions or recommendations

o AAT must ask: what is the correct or preferabledecision in the circumstances and on the material before it at the time of review? (Drake v MIEA)

o AAT is not bound by the findings or the reasonsof the original decision maker (Drake v MIEA)

o AAT’s decision is deemed to be that of the primary decision maker

o AAT has no powers greater than the original decision-maker and must act intra vires

Shi v MARAo Migration Agents Registration Authority

cancelled Shi’s registration as a migration agent in 2003 because he breached Code of Conduct.

o Evidence of Shi: Shi’s changed conduct between 2003-2005

o MARA appealed contending that AAT should have asked whether Shi was fit and proper person in 2003, not 2005.

o Issue: what is the jurisdiction of the Tribunalin reviewing MARA decision

o Held: in favour of Shi.o The AAT was not restricted to considering

evidence of the facts and circumstances as theyexisted at the time of MARA’s decision. The AATwas empowered under the AAT Act to exercise allthe powers and discretions conferred on MARA bythe Migration Act.

o The AAT was entitled to impose the conditions it did when cautioning Shi and to lift the caution. The Migration Act provides for MARA tocaution an agent and to set conditions for the lifting of a caution and the majority held thatthe AAT could also exercise these powers.

o As a general rule, AAT must have regard to the best and most current information available; and must have regard to both general provision

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of AAT Act (affords power of review) and specific provisions of Migration Act (defines the decision being reviewed)

o Tribunals have power to make decision on the merits. The function of the tribunal extends beyond a review of legal error and the reasons for decision. It must make most correct and preferable decision. It must determine if decision is acceptable, when tested against therequirements of good government. Thus it was for tribunal to reach its own decision based onmaterial including new, additional or differentmaterial, supported by purpose of s 43 of AAT. The tribunal stands in the shoes of the primarydecision-maker. And it is a feature of good public administration to have regard to most current information available.

o But the particular nature of a decision in question may sometimes, exceptionally confine the tribunal’s attention to the evidence of a particular time – often these are decisions that contain a temporal element.

o But it is not so in this case – according to language and purpose of Migration Act.

o MARA’s power concerns the protection, not the punishment of agents. This object is best achieved by Tribunal making its decision on most current information.

Drake v Minister for Immigration and Ethnic Affairso Drake = immigrant to Australia was convicted of

possessing cannabis and received a prison sentence

o The Minister made an order to deport Drake under s 12 of the Migration Act. The decision was governed by policy conclusively outlining relevant considerations: gravity of the offence, likelihood of recidivism.

o The tribunal failed to properly perform its function by reason that it applies the minister’s criminal deportation policy without making an independent assessment of its

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propriety. The AAT had affirmed the minister’s decision

o Issue: should a tribunal decide upon the facts before it or the facts before the primary decision maker?

o Held: the question for the tribunal is whether the decision is the correct or preferable decision on the material before the tribunal. The tribunal is to satisfy itself whether the decision under review was objectively the rightone to be made not whether it was a decision which an administrator acting reasonably might have made.

o There is no universal rule for government policy. The Tribunal must weigh policy in context. Policy is a matter for the Tribunal itself to determine in the context of the particular case and in light of the need for compromise.

o A tribunal cannot uncritically or blindly applygovernment policy. The tribunal must make it clear that it has considered the policy, approves it and is therefore applying it. Otherwise, the tribunal would simply be abdicating its function to the government.

o AAT may depart from government policy if that does not produce the correct or preferable decision.

o AAT must ask itself What is the correct or preferable decision

in the circumstances and on the material before it at the time of review?

o AAT is not bound by the findings or the reasonsof the original decision-maker.

o AAT’s role is not supervisory. The AAT in this case had merely sought to ascertain whether theMinister had acted reasonably in accordance with his policy.

Re Drake (No.2)o Held: An unreflective application of executive

policy by a tribunal is an abdication of its function reach a correct or preferable decision

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on the merits of the case. The propriety of applying policy should be assessed in each case.

o Brennan J: Be cautious in departing from government

policy, especially ministerial policy. Decision-makers charged with the

responsibility of undertaking merits review should generally apply ministerial policy unless the policy was unlawful or there are cogent reasons to the contrary

Ordinarily, a tribunal has the responsibility to apply a general policy that was lawfully adopted by a minister, and to depart from the policy only cautiously and sparingly when there is a “cogent” reason for so doing

Collector of Customs (NSW) v Brian Lawlor AutomotivePty Ltd

o A company sought review of the decision to revoke a warehouse licence, contending that theCustoms Act did not expressly or impliedly confer power on the Collector of Customs to revoke a licence

o Issue: Whether the Tribunal had jurisdiction toreview the purported revocation of a licence incircumstances where, as the Court held, there was no statutory power to revoke the licence?

o Held: the AAT had the power to review whether adecision was lawfully made as well as examiningissues of fact and policy.

o Decision in s 25 of the AAT Act referred to ‘a decision in fact made, regardless of whether ornot it is a legally effective decision’.

o The Tribunal’s power to determine questions of law extends not only to those questions relevant to the proper exercise of a statutory power, but also to questions touching upon the very existence of the power which the administrator has purported to exercise.

o It was competent for the Tribunal to determine that it was beyond the statutory power of the

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Collector of Customs (NSW) under the Customs Act (Cth) to cancel the applicant’s warehouse licence. Notwithstanding that the ‘decision’ under review was therefore unauthorized by law,it was nevertheless held to be a ‘decision’ within the meaning of the Administrative Appeals Tribunal Act 1975 which the Tribunal was authorized to review.”

o Tribunal can determine all questions of law which arise in proceedings before it and to provide, within the areas of review entrusted to it, as comprehensive relief as the circumstances of the case require.

o A federal tribunal could decide issues of law as well as issues of fact

Types of policies o Basic policy made at the political level

(relatively binding) and policies implementing basic policy ( more flexible)

o Policies regulating on entire industry and allocating a scarce resource (relatively binding) and policies which apply to particularindividuals where the public interest is more diffuse (more flexible): eg Criminal Deportation Policy

AAT standing o S 27(1) the application may be made by or on

behalf of any persons whose interests are affected by the decision

o S 27 (2) an organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association.

o S 30 (1A) the tribunal may, in its discretion, make any other person whose interests are affected by the decision a party to the proceedings – on application by the person

AAT’s access to informationo S 37: lodging of Documents with Tribunal (T

documents)

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Statement setting out findings on materialquestions of fact, referring to the evidence or other material on which those findings were based and giving the reasonsfor the decision

Tribunal may order further and betterparticulars (s 38)

Reasons and documents must be lodged notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents, or AG’s public interest certificate.

Limitations on access by persons o S 36: disclosure to other persons restricted –

AG’s Public interest certificate on grounds of Security, defence or international

relations Disclosure of deliberations of cabinet For any other reason that could form the

basis for a claim of public interest immunity in judicial proceedings

AAT can override certificate on the basis of parties’ need to know, but paying due regard to AG’s reasons.

o S 36B: State AG can certify that disclosure would be contrary to the public interest

Tribunal hearingso S 33: tribunal is not bound by the rules of

evidence and may inform itself on any matter insuch manner as it thinks appropriate

o S 35: the general principle is that the proceedings should be held in public unless it is desirable to do so by reason of the confidential nature of any matter or for any other reason

Appeals:o S 44: Right to appeal to the Federal court on a

question of law

NSW Civil and Administrative Tribunal (NCAT) ADR Act s 63

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o Tribunal is to decide what the correct and preferable decision is having regard to the material before it

o Tribunal may exercise all of the functions conferred on the primary decision maker

o Tribunal may affirm, vary or set aside the decision, and make a decision in substitution, or remit the matter for reconsideration in accordance with any directions or recommendations.

ADR Act (NSW) s 64o Tribunal must give effect to a valid policy

that has been certified by a minister as government policy, unless the policy produces an unjust decision in the circumstances of the case

Standing is governed by the legislation conferring jurisdiction

Ombudsman Review The investigation is informal and private They can only make recommendations but can report

maladministration to Parliament – power of embarrassment

o Recommendations: Give reasons Reconsider decision Action to ractify, mitigate or alter

effects of decision Cancel or vary decision Amend law or practice Other appropriate action, including ex

gratia payment To investigate maladministration

o The action was contrary to lawo There was an abuse of discretiono The action was based either wholly or partly on

a mistake of law or of facto The action was unreasonable, unjust, oppressive

or improperly discriminatory

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o The action was in accordance with a rule of law, a provision of an enactment or a practice but the rule, provision or practice may be unreasonable, unjust, oppressive or improperly discriminatory

o Reasons should have been given but were noto The action was wrong (delay; neglect; rudeness;

bias; incompetence; broken promises; misleadingadvice)

Jurisdictiono The taking of action, which includes

The making of a decision or recommendation The formulation of a proposal Failure or refusal to take any action,

make a decision or recommendation, or formulate a proposal

o That relates to a matter of administration Not defined

o By a department or prescribed authority Defined Legislation may extend jurisdiction to

private sectoro Exclusions:

Action taken by a minister Action taken by a judge Action that constitutes proceedings in

parliament Action taken in relation to employment in

the public service or a prescribed authority

o Exemptions from disclosure Cth: AG can issue certificate that

disclosure would prejudice scrutiny, defence, international relations, Cth/State relations, Cabinet & Executive Council proceedings – rarely issued

NSW: Information related to a Cabinet

document Legal professional privilege unless

the investigation concerns a document

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claimed to be an exempt document under FOI Act on that ground.

o Reports: If the ombudsman decides not to

investigate To the complainant with reasons

If the ombudsman decided to investigate The complainant must be furnished

with particulars of the results The complainant has no right to the

Ombudsman’s report to the Department or prescribed authority

But if adequate and appropriate remedial action is not taken, the Ombudsman may provide the complainantwith his /her recommendations and further comments

o If remedial action recommended To department or prescribed authority, and

to responsible Ministero If adequate, appropriate and timely action is

not taken To the Prime Minister and ultimately

Parliament

NSW ICAC Established to minimize corruption in the public

sector Function:

o Investigation of corrupt conduct S 13 Independent Commission Against

Corruption Act To investigate any allegation or

complaint that, or amy circumstances which in ICAC’s opinion, imply

o Corrupt conduct, oro Conduct liable to apllow,

encourage or cause the occurrence of corrupt conduct, or

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o Conduct connected with corrupt conduct that may have occurred, is occurring or is about to occur

Matters referred by both Houses of Parliament

o Not prosecutorial or determinative Duty to notify ICAC of possible corruption

o Ombudsmano Commissioner of policeo Principal officer of a public authority or an

officer who constitutes a public authorityo Minister of the Crown

Corruptiono S 7

For the purposes of this Act, corrupt conduct is any conduct which falls within the description of corrupt conduct in s 8,but which is not excluded by s 9

o S 8 Any conduct of any person (whether or not

a public official) that could adversely affect, either directly or indirectly, thehonest or impartial exercise of official functions by any public official, group ofpublic officials or any public authority

Any conduct of a public official that constitutes or involves the dishonest or partial exercise of any of his or her official functions

Any conduct of a public official or formerpublic official that constitutes or involves a breach of public trust

Any conduct of a public official or formerpublic official that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for hisor her benefit or for the benefit of any other person

Conduct of any person (whether or not a public official) that could adversely

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affect, either directly or indirectly, theexercise of official functions by any public official, group of public officialsor public authority and which could involve any of the following matters

Official misconduct Bribery Obtaining or offering secret

commissions Perverting the course of justice Election funding offences

o S 9 Despite s 8, conduct does not amount to

corrupt conduct unless it could constituteor involve

A criminal offence, or A disciplinary offence, or Reasonable grounds for dismissing,

dispensing with the services of or otherwise terminating the services ofa public official

Greiner v ICACo Ministers can only be found corrupt where a

criminal offence is involved

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