Admin Law Tutorial Questions

Week 2: Admin Law

1 What is administrative law?
(a) Reflecting on core administrative law values, how can we define administrative law as an area of legal practice?

The powers of the executive branch enacted by delegates in regulating legislation derived from heads of power
Ensures executive action is within the bounds of the law
- Rule of law
  - Can make laws but subject to those laws
  - Judicial Review
- Executive agency
  - Continuation of Judicial Review
    - Attaches morality and policy concerns to policies that survive
      (b) Think of some examples in everyday life where administrative law has an impact.
Service NSW
Fines/Penalties
Healthcare
Shopping
(c) Why is statutory interpretation so crucial to the practice of administrative law?
Regulation is the primary method of interaction with citizens and reflects the most impact on daily life.
Executive boundary evaluation
- Questions to determine
  - What was the source of power
  - Did they exceed the source
  - How do you challenge it, pursue
    2 The foundations of federal administrative law
    The 1971 Kerr Committee Report gave rise to a number of the key features of administrative law and oversight at the Commonwealth level in Australia. What were some of the key reforms introduced following the report? (see your textbook for details - Section 1.4.1 in the 6th edition and 1.2.4E in the 7th edition)
Major Recommendations & Reforms:
- Judicial Review Reform
  - Led to the Administrative Decisions (Judicial Review) Act 1977 (Cth), which codified and simplified judicial review procedures.
- Creation of a General Merits Review Tribunal
  - Established the Administrative Appeals Tribunal (AAT) under the Administrative Appeals Tribunal Act 1975 (Cth) for independent merits review of government decisions.
- Introduction of the Ombudsman
  - Recommended a government oversight body (Ombudsman Act 1976 (Cth)) to investigate complaints about administrative decisions.
- Establishment of the Administrative Review Council (ARC)
  - Oversight body to monitor and improve administrative review mechanisms.
- Proposed Administrative Procedure Act (Not Implemented)
  - Aimed to standardize tribunal procedures across different areas of law.
    3 Tribunal decision-making: an example of an administrative decision
    Read this decision of the Administrative Appeals Tribunal:
    Craig and Secretary, Department of Foreign Affairs and Trade (Freedom of information) [2023] AATA 2785 (28 August 2023)
    (a) What are the facts and issues? What decision is being reviewed and what decision is being sought?
Facts:
- The DFAT Cable (dated 16 November 2007) was sent by Dr Justin Lee (Deputy Head of Mission in Jakarta) to DFAT headquarters in Canberra.
- It summarised discussions between Australian and Indonesian officials regarding the NSW Coronial Inquest into the 1975 deaths of the Balibo Five journalists in Indonesia.
- DFAT partially released the document but redacted portions under s 33(a)(iii) and s 33(b) of the FOI Act.
- The US diplomatic cable (dated 21 November 2007), published by WikiLeaks and reported in Australian media, allegedly contained similar information.
- Mr Craig argued that:
  - The DFAT Cable should be disclosed because similar information was already public via WikiLeaks.
  - The FOI Act should not be used to conceal crimes or override higher laws.
  - The Tribunal should examine the document to determine if it contained evidence of misconduct.
  - DFAT relied on the affidavit of Mr Ridwaan Jadwat, asserting that disclosure would harm Australia’s international relations with Indonesia.
Legal Issues:
- Is the DFAT Cable an “exempt document” under s 33(a)(iii) of the FOI Act?
- Would disclosure “reasonably be expected to cause damage to the international relations of the Commonwealth”?
- Does prior public disclosure (via WikiLeaks) remove the exemption under s 33(a)(iii)?
  (b) What distinguishes this tribunal decision from judicial decision-making and judgments, which you have mainly encountered to date?
Ratio Decidendi:
- Confidential diplomatic communications are protected under s 33(a)(iii) of the FOI Act.
- Even if similar information is leaked by a third party, official disclosure can still harm international relations.
- The Tribunal lacks discretion to override an exemption once it is satisfied that disclosure “could reasonably be expected” to cause harm.
- The tribunal is simply remaking the decision from the position of the original decision-maker.
  - The Tribunal President acts as the DFAT Minister in this case
  - Judicial Review
    - Primarily a procedural evaluation, not evaluating the merits of the decision
- Tribunal Assessment Standards
  - Correct decision
    - Not discretionary
  - Preferable decision
    - Discretionary
- Lawyers are discouraged from participating in tribunals

Week 3: Ombudsman

Tutorial questions

In our second tutorial in this subject we discuss accountability mechanisms.
1 Jurisdiction of the Ombudsman
Joseph heads up ‘Sydneysiders for Refugees’, a community interest group which advocates for improved treatment of asylum-seekers entering Australia. Recent news reports have detailed a concerning situation involving an immigration detention centre in Sydney.
The detention centre is managed by Justice Inc. pursuant to a contract with the Commonwealth Department of Immigration. Unidentified sources within the detention centre indicate that security officers are employing violent disciplinary methods, and that detainees are being denied access to basic services such as medical care.
The news articles reported that Justice Inc. are denying any allegations of violence and poor treatment of detainees. The spokesperson for the company also indicated that access to medical services has been managed strictly in accordance with Departmental policy, which requires independent assessment of requests for medical assistance by a Department of Immigration official before a detainee can be transferred to an off-site medical centre.
The articles further detailed a particularly concerning case in which a young child had suffered a broken bone after a fall at the detention centre, and had been held at the centre for 24 hours while waiting on approval to move the child to the local hospital for treatment.
(a) Who can initiate an investigation by the Ombudsman in this situation?

Ombudsman Act 1976 (Cth)
- s 7(1)
  - Subject to subsection (2), a complaint under this Act may be made to the Ombudsman orally or in writing.
- Investigate
  - Complaints from individuals (s 5(1)(a)), OR
  - Initiate an investigation on its own motion (s 5(1)(b)).
- (c) Discretion not to act
  - i) Conduct of the applicant
    - 12 month delay in raising complaint
      - frivolous, vexatious, or not made in good faith complainant does not have a sufficient interest
    - s 6(1)
  - (ii) Subject matter of the decision
    - relates to a commercial activity of a Department or prescribed authority
    - s 6(12)
  - (iii) Availability of other mechanisms internal review/ complaints tribunal review, legal proceedings
    - s 6(1A), (3), (4)
  - (iv) General catch-all
    - “An investigation, or further investigation, of the action is not warranted having regard to all the circumstances”
    - s 6(1) (b)(3)
Joseph can complain under s 5(1)(a) and the ombudsman under s 5(1)(b)
(b) Does the Ombudsman have jurisdiction to investigate the conduct of Justice Inc. and the Department of Immigration?
- Statutory authority s 5(1)(a)
- Whom?
  - Prescribed authorities (ie body established by legislation for a public purpose): s 5(1)
    - Department of Immigration → “Prescribed Authority
  - Contracted Service Providers (s 3BA) → The Ombudsman can also investigate private entities providing services to the public under a government contract
    - Justice Inc. (Private Contractor) → Commonwealth service providers: the contracting Department/authority is taken to have performed the action taken by the contractor
    - A commonwealth contract + goods are services not for that department
    - s 3BA defines commonwealth service provider applies to → s 3(4B) in defining agency for that department
    - Ombudsman cannot look into the policies but can look into the application of the policies in the immigration assessments (administrative (executive) actions, Glenister v Dillon or s 5(1)(a))
      (c) What investigative powers can the Ombudsman exercise in the course of an investigation?
Investigative powers
- Obtain information and documents
  - s 9(1)
  - s 8(2)(A)
- Require a person to attend and answer questions
  - s 9(2)
- Examine witnesses under oath
  - s 13
- Enter premises and inspect documents
  - s 14
    (d) What outcomes might the Ombudsman’s investigation produce?
- Ombudsman Act 1976 (Cth) s 15(1)
  - Contrary to law
  - Unreasonable, unjust, oppressive, improperly discriminatory
  - Applied a law or practice that is unreasonable, unjust, oppressive, improperly discriminatory
  - Based on mistake of law or fact
  - ‘Was otherwise, in all the circumstances, wrong’
  - Exercise of discretionary power:
    - based on an improper purpose or irrelevant grounds
    - took into account irrelevant considerations or failed to take into account relevant considerations
    - not accompanied by a required statement of reasons
(c) Outcomes
- (i) Make recommendations (s 15(2))
  - the matter should be reconsidered
  - ‘action… should be taken to rectify, mitigate or alter the effects of a decision…’
  - a decision should be canceled or varied
  - a rule or practice should be altered
  - reasons should have been given
  - ‘any other thing should be done’
  - MAKES A REPORT
    - Generally followed
- (ii) Track recommendations (s 15(4))
  - Did They Do What They Said They Would (2022)?
- (iii) Report “up the chain” (ss 16-17)
  - Prime Minister: s 16
  - Parliament: s 17
  - Disclose to the media: s 35A
    2 Royal Commissions and Indigenous Justice
    Read Elena Marchetti, ‘The Deep Colonizing Practices of the Australian Royal Commission into Aboriginal Deaths in Custody’ (2006) 33 Journal of Law and Society 451
    Download The Deep Colonizing Practices of the Australian Royal Commission into Aboriginal Deaths in Custody’ (2006) 33 Journal of Law and Society 451
    , and answer each of the following:
    (a) Why was a Royal Commission into Aboriginal Deaths in Custody (RCIADIC) established and what were its terms of reference? What recommendations were made?
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) was established in 1987 to investigate the deaths of 99 Indigenous people in custody between 1980–1989.
However, despite extensive findings and 339 recommendations, Indigenous incarceration and deaths in custody remain disproportionately high, and government responses have been inadequate.
Future inquiries should centre Indigenous knowledge, voices, and leadership rather than filtering them through Western legal structures.
Legal processes must acknowledge and integrate Indigenous cultural norms (e.g., protocols around discussing death and gendered perspectives).
Truth-telling mechanisms, rather than legal commissions, may be more appropriate for addressing historical injustices.
Structural reform is necessary beyond policy recommendations—there must be binding obligations for government implementation.
(b) According to Marchetti, what steps did the RCIADIC take to ‘include an Indigenous “presence” or voices and to make [its] practices more culturally appropriate’?
Despite the appointment of an Indigenous commissioner (Patrick Dodson) and the establishment of Aboriginal Issues Units (AIUs), Indigenous perspectives were often disregarded or reshaped to fit legalistic frameworks.
Failure to Incorporate Indigenous Knowledge and Cultural Sensitivities
Testimonies from Indigenous communities were undervalued if they did not meet Western evidentiary standards.
Gendered Indigenous experiences were silenced, particularly regarding women’s deaths, family violence, and systemic abuse.
Cultural protocols around discussing death were ignored, causing distress and alienation among Indigenous communities.
(c) Explain the concept of ‘deep colonizing’
reinforced colonial legal structures and marginalized Indigenous perspectives.
(d) Why does Marchetti conclude that the steps taken by RCAISIC ‘continued the colonization of Indigenous people’?
The inquiry’s methods, although appearing inclusive, failed to challenge existing institutional racism.
Despite the appointment of an Indigenous commissioner (Patrick Dodson) and the establishment of Aboriginal Issues Units (AIUs), Indigenous perspectives were often disregarded or reshaped to fit legalistic frameworks.
Legal professionals (mostly non-Indigenous) dominated the process, marginalizing Indigenous staff and community voices.
Failure to Incorporate Indigenous Knowledge and Cultural Sensitivities
Testimonies from Indigenous communities were undervalued if they did not meet Western evidentiary standards.
Gendered Indigenous experiences were silenced, particularly regarding women’s deaths, family violence, and systemic abuse.
Cultural protocols around discussing death were ignored, causing distress and alienation among Indigenous communities.
(e) What modifications (if any) could future Royal Commissions and other administrative accountability bodies make to their processes to avoid the ‘colonization’ Marchetti identifies and describes?
Future inquiries should centre Indigenous knowledge, voices, and leadership rather than filtering them through Western legal structures.
Legal processes must acknowledge and integrate Indigenous cultural norms (e.g., protocols around discussing death and gendered perspectives).
Truth-telling mechanisms, rather than legal commissions, may be more appropriate for addressing historical injustices.
Structural reform is necessary beyond policy recommendations—there must be binding obligations for government implementation.
3 Accountability for Robodebt
You will learn more about “Robodebt” in Week 11. This week’s lectures and readings have touched on the role played by a number of accountability bodies in relation to Robodebt: the Ombudsman, the Robodebt Royal Commission and the NACC. Based on what you’ve learned this week, answer the following questions:
(a) How effective was the Ombudsman in its accountability function? In your view, what other action or approach should the Ombudsman have taken based on its available powers?
“What is depressingly clear… is that the Ombudsman’s Office was not able to fulfill its role in exposing maladministration over the almost three years it investigated Robodebt complaints; it took litigation to do that. Individuals who were the victims of unfair debt raising could not look to the Ombudsman’s Office for relief.”
Should have raised it up the chain by the second appointment of the ombudsman
(b) Why did the NACC elect not to pursue action in relation to Robodebt? Do you think this was the right decision? Why/why not?
Accepted DHS claims regarding legality Removed draft text raising concerns regarding legality
Influenced (even “co-written? ”) by DHS
Rush job: concern to assist current complainants and complete during Acting Ombudsman’s term
Recent update
In October 2024, the Inspector of NACC reported on an investigation
Download reported on an investigation
finding that the Commissioner had engaged in misconduct in handling his conflict of interest and recommended that the Commissioner delegate the function under s 41(5) of the NACC Act to an appropriate person, in other words a delegate should reconsider whether or how to deal with the referrals from the Royal Commission into to the Robodebt Scheme. In a media release
Download media release
in February 2025, NACC announced that a delegate had reconsidered this issue and decided that it will conduct an investigation in relation to the referrals.

Week 4: FOI Requests and Merit Review

Tutorial questions

In this week’s tutorial we look at access to information in Australia’s freedom of information regimes.
1 FOI and Robodebt
FOI featured in the Robodebt saga, with a number of requests being made for access to government documents regarding the Robodebt scheme. The government frequently relied on exemptions to refuse access to various documents, including the ‘cabinet documents’ exemption: Freedom of Information Act 1980 (Cth) s 34. One applicant challenged an FOI refusal on that ground all the way to the Full Court of the Federal Court, which handed down a decision in July 2024 agreeing that this exemption had been improperly applied: Warren v CEO, Services Australia [2024] FCAFC 73
Read this news article as well as paragraphs [142] – [143] of the Warren judgment, and answer the following questions:
(a) What is the purpose of the ‘cabinet documents’ exemption in s 34 of the FOI Act? When should it apply? (Note: for additional help with this question, you may find it useful to briefly review the relevant passages in the FOI Guidelines paragraphs [5.63] – [5.94])

In Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719 (‘Patrick’), White J set out the factors his Honour considered in deciding whether Minutes and notes of the ‘National Cabinet’, established in March 2020, were exempt under s 34 of the FOI Act on the basis that National Cabinet was a ‘committee of the Cabinet’. The factors considered include the way National Cabinet was established, its composition, historical precedent, the discretion and control available to the Prime Minister with respect to National Cabinet, the way National Cabinet operated and its relationship with the Cabinet, as well as collective responsibility and solidarity within the National Cabinet. In Patrick, his Honour found that the National Cabinet, which consisted of the Prime Minister and State and Territory Premiers and Chief Ministers, did not constitute ‘a committee of the Cabinet’ for the purposes of s 34 of the FOI Act.
The ‘cabinet documents’ exemption under s 34 of the Freedom of Information Act 1982 (Cth) (FOI Act) is designed to protect the confidentiality of Cabinet deliberations and decision-making processes. The exemption ensures that:
- Cabinet confidentiality is preserved, maintaining the principle of collective ministerial responsibility.
- Ministers can freely debate and discuss policy without concern that internal discussions will be publicly disclosed.
- Sensitive government policy development remains protected, particularly where disclosure could undermine governmental decision-making.
This exemption is a class-based exemption, meaning that if a document falls within the defined category of ‘Cabinet documents’, it is automatically exempt from disclosure, regardless of its actual content.
According to s 34 of the FOI Act and the FOI Guidelines ([5.63] – [5.94]), the exemption applies when a document:
- Has been prepared for submission to Cabinet (including Cabinet committees) for consideration (§34(1)(a)).
- Is an official record of a Cabinet decision (§34(1)(b)).
- Was created for the dominant purpose of briefing a Minister for Cabinet deliberations (§34(1)(c)).
- Would reveal a Cabinet discussion or decision that has not been officially disclosed (§34(3)).
In Warren v CEO, Services Australia [2024] FCAFC 73, the Full Court of the Federal Court found that:
- The government improperly applied the Cabinet documents exemption under s 34.
- The refused documents did not genuinely relate to Cabinet deliberations in a way that justified exemption.
- The dominant purpose test was not met, meaning the documents should have been released.
  (b) What does the history of this case tell us about the potential limitations of FOI legislation in securing government transparency?

Overuse and Misuse of Exemptions to Avoid Disclosure

The Cabinet documents exemption (s 34 FOI Act) is intended to protect sensitive government deliberations.
However, Warren demonstrates how agencies can misuse this exemption to block access to politically sensitive documents—even when those documents do not genuinely fall within Cabinet deliberations.
The broad and discretionary nature of FOI exemptions allows government bodies to resist disclosure, undermining the Act’s purpose of transparency.

Delays in the FOI Process Undermine Timely Accountability

FOI requests are often delayed by bureaucratic processes, refusals, internal reviews, and legal challenges.
In Warren, the applicant had to escalate the challenge to the Full Court of the Federal Court, which required significant time, effort, and legal resources.
This means that even if a requester eventually wins access, the delay reduces the document’s political relevance, limiting its impact on government accountability.

Asymmetric Power Between Government and FOI Applicants

Government agencies have greater resources, legal teams, and expertise in handling FOI requests.
Individuals, journalists, and advocacy groups often lack the financial and legal resources to challenge refusals.
The FOI process places the burden on the applicant to prove why information should be disclosed, rather than requiring agencies to justify secrecy to a higher standard.
(c) Is FOI an effective tool to support litigation against government? Why/why not?
FOI can be a useful tool in litigation against the government, but it has significant limitations that reduce its reliability as a legal strategy. While successful FOI requests can uncover crucial evidence, government agencies have considerable discretion to withhold, delay, or limit access to requested documents, making FOI an uncertain method for obtaining information in legal disputes.
Why FOI Is an Unreliable Tool for Litigation Against the Government
- 🚨 Government Agencies Can Use Exemptions to Deny Access
- Agencies can refuse disclosure based on broad FOI Act exemptions, including:
  - Cabinet documents exemption (s 34 FOI Act) – blocks access to documents related to government decision-making.
  - Public interest immunity (s 47C FOI Act) – allows agencies to refuse disclosure if it could harm government functioning.
  - Legal professional privilege (s 42 FOI Act) – prevents access to government legal advice.
- Even if an FOI request should be granted, agencies may misapply exemptions, forcing applicants to engage in lengthy legal challenges.
- 📌 Example: In Warren v CEO, Services Australia, the government wrongly applied the Cabinet documents exemption, delaying access and forcing litigation.
  2 Environmental Defenders
  Environmental Defenders Inc is an incorporated association. It seeks access under the Freedom of Information Act 1982 (Cth) to certain ‘internal working documents’ of the Department of Environment and Energy. The documents include Ministerial Briefings prepared by senior public servants, communications between Ministers, communications with Ministers in State Environment portfolios, and communications from junior to senior officers containing comments and suggestions. Some of the documents originated from outside the Department.
  The Department has refused access to the request, indicating that for some of the documents: (1) release would not be in the public interest; (2) the applicant would misunderstand the information contained in the documents; and (3) the documents would cause embarrassment to the Government.
  (a) Advise Environmental Defenders Inc on whether the Department erred and they should be allowed access to these documents (consider what additional facts you might need to know about these documents to assess this).
Issue
- The issue is whether Environmental Defenders Inc (EDI) has a right to access the requested documents under the Freedom of Information Act 1982 (Cth) (FOI Act).
- The Department of Environment and Energy has refused access, citing:
  - Public interest concerns (s 11B).
  - Misinterpretation by the public (not a valid FOI exemption).
  - Embarrassment to the government (not a valid FOI exemption).
Jurisdiction
- CTH
Determine Whether the FOI Act Applies
- Department
  - The Department of Environment and Energy is a Commonwealth agency under s 4 FOI Act, so it is subject to FOI requests.
  - EDI, as an incorporated association, qualifies as a “person” under s 11(1) and can make an FOI request.
- Are the documents “of an agency”?
  - Ministerial briefings, intergovernmental communications, and internal documents are all potentially covered under s 4 FOI Act.
  - However, some documents originated externally—additional facts are needed to determine if they are still under the Department’s “constructive possession” (Beesley v Australian Federal Police (2001) 111 FCR 1).
FOI Exemptions
- Ministerial briefing docs
  - Conclusive Exemptions
    - s 34 - cabinet documents
      - Unknown if these refer to documents that fit this definition, nothing suggests this
  - Conditionally Exempt docs require a public interest test s 11A(5)
    - Deliberative process documents (s 47C)
    - Public Interest Test
      - Public interest factors in favour of disclosure (s 11B(3)):
        
        Promotes transparency and accountability (s 3(a)).
        
        (b) inform debate on a matter of public importance;
        
        Enhances scrutiny of government expenditure.
      - Against disclosure (s 11B(4)):
        
        ❌ Government embarrassment is explicitly irrelevant (s 11B(4)(a)).
        
        ❌ Misinterpretation concerns are explicitly irrelevant (s 11B(4)(b)).
        
        If some documents originated externally, the question is whether the Department has possession or control.
        
        Possession includes constructive possession (Beesley v AFP – agency must have a right to deal with the document).
        
        ❌ The seniority of the ministers is irrelevant - 11B(4)(c)
- Communications between ministers
  - Conclusive Exemptions
    - s 34 - cabinet documents
      - Unknown if these ministers are cabinet members that fit this definition, nothing suggests this
- communications with Ministers in State Environment portfolios
  - Conclusive Exemptions
    - s 34 - cabinet documents
      - Not a cabinet
  - Conditionally exempt docs
    - 47B Commonwealth‑State relations etc.
- communications from junior to senior officers containing comments and suggestions.
  - Conditionally exempt docs
    - 47C deliberative processes
Consider Partial Access (Redaction & Practical Refusals)
- If only parts of documents are exempt, the agency must provide a redacted version under s 22 FOI Act.
- If requests are too broad or burdensome, agencies can refuse on practical refusal grounds (s 24 FOI Act), but must first consult the applicant.
Conclusion – Possible Outcomes
- EDI is likely entitled to access some or all of the documents.
- Public interest concerns raised by the Department are invalid.
- Ministerial briefings may be subject to the deliberative process exemption, but must still pass the public interest test.
- Cabinet documents, if any, are conclusively exempt.
- Redacted access should be considered under s 22.
  (b) What avenues of review may be available?
EDI can challenge the refusal through the following mechanisms:
- 1. Internal Review (s 54 FOI Act)
  - Request review by the Department itself within 30 days.
- 1. Information Commissioner Review (s 54L FOI Act)
  - Independent review of the Department’s decision.
  - The IC can affirm, vary, or set aside the decision (s 55K FOI Act).
- 1. AAT Review (s 57A FOI Act)
  - If dissatisfied with the IC’s decision, appeal to the Administrative Appeals Tribunal.
- 1. Judicial Review (Administrative Decisions (Judicial Review) Act 1977 (Cth))
  - If the Department misinterpreted the FOI Act or breached procedural fairness, EDI can seek review in the Federal Court.
  - Recent example: Warren v Services Australia [2024] FCAFC 73 – the Federal Court ruled procedural unfairness where the agency changed its legal position mid-hearing.
    3 The Australian liquor industry
    In December last year, the Australian Liquor Corporation, a government corporation for liquor marketing and research, decided to prepare a three year “Export Marketing Strategy” aimed at doubling exports of Australian liquor, with particular emphasis on the export of gin to North America. The Minister, Henry Button, has indicated that he is “fully behind the Corporation in its endeavour to increase exports worldwide”.
    In March, the Corporation sent a team of five Directors on a three month trip overseas to get “firsthand knowledge” of American and Canadian markets. They also commissioned market research company Markets R Us Pty Ltd to undertake surveys of the existing markets in both countries and target opportunities for expansion.
    The team of Directors returned from their trip somewhat ‘dispirited’ by the state of the markets in both countries. They prepared a detailed report, which concludes:
    competition in America and Canada is so strong that there would not be sufficient return on the investment to justify the huge advertising campaigns being considered in those countries. There would be little likelihood of major market gains in the short term.
    The Minister is not very happy with these conclusions because he has already given several media conferences publicising the “expected huge increase in gin sales, particularly to North America”. Consequently, he wants the report “kept under wraps until Australian liquor companies get some big orders elsewhere and the announcement will be less damaging”. The Corporation issues a media release stating that it has been advised of the team’s findings and will modify future marketing strategies accordingly.
    The market research by Markets R Us Pty Ltd is even less hopeful, predicting no real prospect of Australian exports finding a foothold in either the United States or Canada. Amy Higgins (one of the directors of Markets R Us Pty Ltd) is friends with Peter Juniper, owner of a boutique gin distillery in the Hunter Valley. Worried about the findings, Amy mentions to Peter that the research “was a bit of a fizzer”.
    On reading the research report, the Corporation is somewhat embarrassed when they realise that they have spent $550,000 on research which duplicates the findings of an earlier study by the French Government conducted two years earlier. The Corporation advises Amy that the report is confidential and to refer any inquiries about it to the Corporation’s public relations officer. Unfortunately, Peter Juniper has already told several others in the industry of the conversation with Amy.
    The Corporation begins to receive FOI applications from Australian distilleries and the media. It also receives requests from representatives of the New Zealand industry, who want to confirm the results of the survey before developing their own marketing strategies. The Corporation has been asked for the market research report and “all documents relating to the overseas fact-finding mission by the Directors of the Corporation including any reports of their findings or conclusions”.
    The Corporation is keen to protect its internal reputation and the Minister wants to avoid embarrassment for his government.
    Are there any exemptions that the Corporation might rely upon to justify withholding the documents?
Step 1
- Jurisdiction
  - Cth
- Who may access
  - s 11(1)(a) - anyone may access a document of an agency that is not exempt
  - Is the Australian liquor Corporation an agency or prescribed entity
    - Department means a Department of the Australian Public Service that corresponds to a Department of State of the Commonwealth.
    - An agency includes prescribed authorities
      - Body established for a public purpose by legislation / order: s 4 def., (a)
      - Person holding office established by legislation / order: s 4 def., (c)
      - Bodies/persons specified in regulations: s 4 def., (b)-(d)
    - Prescribed entity s 4
      - any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being:
      - (i) a body established by the Governor‑General or by a Minister; or
      - (ii) an incorporated company or association over which the Commonwealth is in a position to exercise control;
- Step 2: What is Being Requested?
  - Documents Requested:
    - Market research report by Markets R Us Pty Ltd.
    - Documents relating to the fact-finding mission, including:
      - Reports.
      - Findings.
      - Conclusions.
  - Are these “Documents of an Agency” (s 4 FOI Act)?
    - Beesley v AFP (2001) 111 FCR 1: A document is “of an agency” if:
      - It is in the possession of the agency; or
      - The agency has a right to access and use the document, even if it is held externally (constructive possession).
  - Fact-finding report (Directors)
    - Possession- held by Corporation.
    - FOI Applies.
  - Markets R Us report (Consultants)
    - Possession- paid for by Corporation.
    - Conditional Exemptions
      - Trade secret/commercially valuable information - marketing tactics - NZ
        
        Duplicate the findings of 2 years earlier - value of the data is minimized
      - Disclosure would fund a cause of action in someone other than a government minister or agency - breach of confidence (s 45)
  - Verbal conversation (Amy Higgins → Peter Juniper)
    - No Possession —not recorded.
    - FOI Does not apply, verbal statements are not “documents” (s 4 FOI Act).

Week 5: Tribunals

1 Responding to Robodebt
We touched on aspects of Robodebt in Tutorial 2, and you will cover it in more detail in Week 11. The AAT had a role to play in Robodebt, hearing a significant number of merits review challenges by recipients of unlawful debt notices. In one of your readings this week, AAT President Justice Kyrou discusses the ways in which the ART reforms respond to Robodebt.

(a) What are some of the key ART reforms identified by Justice Kyrou that respond to Robodebt?

Justice Kyrou identifies several key Administrative Review Tribunal (ART) reforms responding to Robodebt, including
- mandatory publication of significant decisions (s 113(2)),
- the power to compel agency participation in hearings,
- the requirement for ART leaders to identify and report systemic issues (s 193(i)),
- the re-establishment of the Administrative Review Council (ARC) to monitor government decision-making,
- and the creation of the Guidance and Appeals Panel (GAP) to ensure consistent and authoritative rulings on important administrative issues.
  (b) Which of those reforms do you consider to be most significant in reducing the chance of a Robodebt-type problem in the future?
the Guidance and Appeals Panel (GAP), along with the ART President’s power to publish significant decisions and compel agency participation, is the most significant reform in reducing the risk of a Robodebt-type issue. These mechanisms ensure that systemic issues are identified, publicly acknowledged, and addressed in a timely manner, preventing agencies from disregarding adverse rulings.

2 The Drake litigation
Re Drake and Minister for Immigration and Multicultural and Ethnic Affairs (No 2) (1979) 2 ALD 634 is a very important case in merits review for many reasons. There are in fact three Drake decisions, namely Drake and Minister for Immigration and Ethnic Affairs [1978] AATA 71; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; and Re Drake and Minister for Immigration and Ethnic Affairs [No 2] (1979) 2 ALD 634 (often referred to as Drake No 2):

Read the extract of Re Drake and Minister for Immigration and Ethnic Affairs [No 2] (1979) 2 ALD 634. in your textbook and answer the following questions.

(a) What are the facts and the procedural history of this matter?

Drake (born in USA) became a permanent Australian resident
He had a son living with him, and planned to marry an Australian
He was convicted of drug offences
Government policy statements on deportation referred to deterrence as an important factor weighing in favour of deportation, and indicated serious offences including drug trafficking were less likely to attract leniency
The Minister issued a deportation order Drake on the basis of his drug conviction
Drake applied for AAT merits review of the deportation decision
At first instance, Davies J applied the government policy in affirming the Minister’s decision

(b) What is the reasoning and outcome in Brennan J’s decision?
Reasoning:

Ministerial Policy as a Guideline, Not a Rule:
- Brennan J acknowledged that while ministerial policy is not legally binding, it plays a legitimate role in ensuring consistency in decision-making.
- The AAT should ordinarily apply policy unless there are cogent reasons to depart from it, such as unlawfulness or injustice in the particular case.
Tribunal’s Independent Review Function:
- The AAT must not simply determine if the decision complies with ministerial policy; rather, it must decide independently whether the Minister’s decision was the correct or preferable one.
- This means assessing the facts afresh, considering whether the policy is appropriate, and applying its own judgment rather than deferring to ministerial discretion.
Policy Should Be Transparent and Scrutinised:
- Published and publicly scrutinised policies should generally be followed to ensure accountability and predictability in decision-making.
- However, if new circumstances arise that make the policy obsolete or unfair, the AAT has the power to deviate from it.
  Outcome:
Brennan J affirmed the Minister’s decision to deport Drake, finding that the Minister’s policy on deportation for criminal offences was lawful and appropriate to apply in this case.
The AAT applied the policy but did so after independently assessing its propriety, rather than automatically deferring to it.
This decision clarified the balance between following policy and exercising independent judgment, reinforcing the AAT’s role as a true merits review body.

‘Correct and/or preferable’
- Correct
  - Illegal x
  - Legal ✔
- Preferable
  - AX BX C✔ DX

(d) Outline Brennan J’s view (expressed in Drake No 2) of the approach that the AAT should take to policy.

See reasoning

3 Fresh evidence
Having reviewed the extract from Shi v Migration Agents Registration Authority (2008) 235 CLR 286 in your textbook, answer the following questions.

(a) What are the facts, issues, outcome and reasoning in this case?

2003: Authority cancelled Shi’s migration agent registration for misconduct
Shi applied to the AAT, who stayed the decision pending AAT review
2005: The AAT reviewed the cancellation decision and substituted the cancellation with a caution, taking into account Shi’s performance during the period of the stay
Issue
- Was the AAT able to take into account evidence post-dating the original decision?
  - Yes
Decision
- [T]he language in s 303 of the Migration Act clearly contemplates the possibility that circumstances may change between an initial decision of the authority and a subsequent decision of the tribunal (at [48])
- When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available… When, therefore, the tribunal elects to make [a substitute decision] it would be surprising in the extreme if the substituted decision did not have to conform to such a standard (at [41])
  (b) Does this case indicate that the AAT should always consider the facts as they exist at the time it makes its decision?
When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available… When, therefore, the tribunal elects to make [a substitute decision] it would be surprising in the extreme if the substituted decision did not have to conform to such a standard (at [41])
4 Network Xtra Ltd
Abby is CEO of Network Xtra Ltd, a media company that operates a number of well-known radio stations across Australia. Given its success with these ventures, Abby has decided that it is time to branch out into new territory and launch a television channel. Over the past year, Abby’s team has completed market research and developed ‘Channel Xtra’, which will offer viewers a new and fresh lineup of news, current affairs and entertainment programming.

Television broadcasting in Australia is regulated pursuant to the Television Broadcasting (Licencing) Act 2000 (Cth). Relevant provisions from that legislation are as follows:

Television Broadcasting (Licencing) Act 2000 (Cth)
1 Short title
This Act may be cited as the Television Broadcasting (Licencing) Act 2000 (Cth).
2 Objects
The objects of this Act include:
a) regulating the grant of licensing for television broadcasting in Australia; and
b) supporting quality and diversity in Australian broadcasting.
…
25 Grant of licences
a) The Minister may grant a television broadcasting licence to an applicant who submits an application in the prescribed form.
b) In determining whether to grant a licence pursuant to this section, the Minister may take into account such matters as the Minister thinks fit.
…
50 Right of appeal
An application may be made to the Administrative Appeals Tribunal for review of a decision made under s 25.

Network Extra Ltd submits an application using the prescribed form. The Minister reviews the application, but declines to grant a television broadcasting licence. The letter Abby receives from the Minister’s office records that:

It is the policy of the Minister to limit the grant of television broadcasting licences to applicants who are able to demonstrate a significant track record in the visual media industry, in order to ensure the continued high quality of Australian television broadcasting. The Minister does not consider that your radio experience satisfies this criteria.

Three weeks later, Abby is still reeling from this setback and approaches you for advice:

(a) Can the AAT review the decision (consider jurisdiction, standing and time limits)?
No, ART

Step 1: Identify the Tribunal and Its Function
- Determine the relevant tribunal
  - ART - commonwealth
- Confirm whether it has jurisdiction under the applicable statute:
  - Administrative Review Tribunal Act 2024
  - s 4
    - Decision definition
      - (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
  - s 12(1)
    - Reviewable decision - if an Act or a legislative instrument provides for an application to be made to the Tribunal
  - Administrative Appeals Tribunal Act 1975 (Cth) s 3(3), s 25(1)
    - s 25(1) - power to review decisions
    - This is a decision under refusing a license s 3(3)
Step 2: Establish Standing
- Identify the applicant’s interest: Does the person’s interests meet the standing test? (AAT Act s 27)
  - ART s 17
    - (1) A person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision.
    - Network Extra may seek as a person affected by the reviewable extra
  - Extension of time
    - S 18(1)
    - Rule 5 - ART rules 2024
      - Not less than 28 days after decision date, three weeks is less than 28 days, we’re good
  - The object of the act is in granting the license that was denied; Television Broadcasting (Licencing) Act 2000 (Cth) s 2 )

(b) What approach can the AAT take in relation to the Minister’s policy?

Step 3: Determine the Tribunal’s Review Approach
- Is the review a merits review (de novo hearing)?
  - AAT Act s 43(1) – Tribunal has power to remake the decision.
  - Drake v Minister for Immigration (1979) 2 ALD 60 – Tribunal determines the “correct or preferable” decision.
- What evidence is considered?
  - Tribunal is not bound by rules of evidence (AAT Act s 33(1)(c)).
  - Tribunal can receive new evidence (Shi v Migration Agents Registration Authority (2008) 235 CLR 286).
Step 4: Consider the Role of Government Policy
- Is the tribunal required to apply policy?
  - Tribunals should follow lawful policy unless there are cogent reasons to depart (Re Drake (No 2) (1979) 2 ALD 634).
- Policy cannot be inflexibly applied if it leads to injustice

(c) What legal options are available if Abby is unhappy with the AAT’s decision?
Merits review ART (s 172) → FCA (Question of law) → ART

Step 4: Consider the Role of Government Policy
- Is the tribunal required to apply policy?
  - Tribunals should follow lawful policy unless there are cogent reasons to depart (Re Drake (No 2) (1979) 2 ALD 634).
- Policy cannot be inflexibly applied if it leads to injustice.
Step 5: Determine the Tribunal’s Decision-Making Power
- What remedial power does the tribunal have? (AAT Act s 43(1)):
  - Affirm the decision.
  - Vary the decision.
  - Set aside and substitute a new decision.
  - Set aside and remit for reconsideration.
- Apply the relevant case law on tribunal discretion:
  - Re Greenham & Minister for Capital Territory (1979) 2 ALD 137 – Tribunal is not limited to material before the original decision-maker.
Step 6: Consider Access to Reasons for Decision
- Does the applicant have a right to reasons?
  - No general common law right to reasons (Public Service Board of NSW v Osmond (1986) 159 CLR 656).
  - Statutory rights to reasons:
    - AAT Act s 28(1) – Right to request reasons before seeking review.
    - AAT Act s 37(1) – Reasons must be lodged with the Tribunal during review.
    - ADJR Act s 13 – Right to request reasons under judicial review.
Step 7: Determine Appeal Options
- Can the decision be appealed?
  - Only questions of law can be appealed (AAT Act s 44).
  - Appeal process:
    - Federal Court → High Court (special leave required) (Neal v Secretary, Department of Transport (1980) 3 ALD 97).
- Does the ART change this process?
  - ART will introduce a Guidance and Appeals Panel (ART Bill cl 122, 128).

Week 6: Judicial Review

Tutorial questions
In this week’s tutorial we look at the elements of judicial review jurisdiction pursuant to the Constitution and ADJR Act.
1 ADJR Jurisdiction
‘[D]ecisions to which this Act applies’ are reviewable under the ADJR Act. For the purposes of the ADJR Act:
(a) How is the term ‘decision to which this Act applies’ defined?

3 “decision to which this Act applies” means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):
- (a) under an enactment referred to in paragraph (a), (b), (c), (d) or (e) of the definition of enactment …
- Exclusions:
  - decisions by the Governor-General (s 3(c))
  - decisions included in the Schedule (eg Fair Work Act 2009 (Cth); Intelligence Services Act 2001 (Cth))
Decision: Must be final, operative, substantive →
- Australian Broadcasting Tribunal v Bond
  (b) What is a ‘decision’ and how does it differ from ‘conduct’?
Decisions
- s 5
  - Final and operative determinations
- Findings or conclusions in a reasoning process
Conduct
- s 6
  - Procedure – the way the proceedings are conducted
    (c) What does it mean to be ‘of an administrative character’?
‘Administrative character’
Griffith University v Tang (2005) 221 CLR 99, 123
- The second element of the definition to which attention is given by the case law is the expression ‘‘of an administrative character’’. The evident purpose here is the exclusion of decisions of a ‘‘legislative’’ or ‘‘judicial’’ character.”
- Legislative ✖
- Administrative ✔
- Judicial ✖
  (d) What is understood by ‘under an enactment’?
Enactment
- Administrative Decisions (Judicial Review) Act 1977 (Cth)
- 3 “enactment” means:
  - (a) an Act [some exclusions]
  - (c) an instrument (including rules, regulations or by-laws) made under such an Act [some exclusions]
  - (ca) an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3; or
  - (cb) an instrument (including rules, regulations or by-laws) made under an Act or part of an Act covered by paragraph (ca); or
  - …
  - and … includes a part of an enactment.
- Limits of ‘instrument’
  - Captured
    - Regulations
    - By-laws
    - Rules
  - Query
    - Policies
    - Manuals
    - Guidelines
    - Terms and conditions
- Chittick v Ackland (1984) 1 FCR 254, 264
  - “As at present advised we accept that to qualify as an instrument for the purposes of the Judicial Review Act the document must be of such a kind that it has the capacity to affect legal rights and obligations.”
Under an Enactment: Must derive from a statute →
- Griffith University v Tang, ANU v Burns
  2 Judicial review of private bodies
  After reading the case extracts in your textbook from NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 and R v Panel on Take-Overs and Mergers, ex parte Datafin [1987] QB 815, answer the following questions:
  (a) How did each court characterise the nature of the power exercised by the relevant bodies?
  In NEAT v AWB, the High Court majority characterised the power exercised by AWBI as private and commercial, not administrative or conferred under statute, while in Datafin, the English Court of Appeal held that the Panel’s power, though non-statutory, was public in nature due to its regulatory function and governmental support.
  (b) Which approach do you prefer? Why?

3 Fossicking permits
In June 2019, bushwalkers in the Broadside National Forest discover a number of small deposits of gold on the edge of a creek bed running alongside an infrequently used walking track. When the media reports the find, Forestry Australia, the government authority responsible for the area, is inundated with requests for ‘fossicking permits’, which permit individuals to pan for gold in the creek.
With so many requests coming in, Forestry Australia is unable to keep up with the demand. The government is keen to capitalise on the tourism opportunity presented by this new ‘gold rush’, and decides to implement a new permit approval regime. To make the application process as efficient as possible, it is decided that applications should initially be considered by MineCon Pty Ltd, a private consulting company that assesses the viability of mines in the private sector.
The new legislation provides:
National Forests (Fossicking Permits) Act 2019 (Cth)
3 Definitions
…
‘Nominated Company’ means MineCon Pty Ltd, a company listed on the Australian Stock Exchange.
‘Fossicking Permit’ means a permit granted pursuant to s 28 of this Act.
‘Minister’ means the Minister for National Forests.
…
27 Prohibition
A person must not engage in fossicking in National Forests unless in possession of a Fossicking Permit.
28 Grant of Fossicking Permits
(1) The Minister may grant a Fossicking Permit to an applicant who submits an application in the prescribed form.
(2) Before granting a Fossicking Permit, the Minister must consult with the Nominated Company.
(3) The Minister must not grant a Fossicking Permit without the prior written approval of the Nominated Company.
(4) The Minister may take into account such further matters as the Minister thinks fit in determining whether to grant a permit in accordance with this section.
Jed and Elly-May are gold panning enthusiasts from the United States. Having heard about the latest finds at the Broadside National Park, they decide to try their luck there during their next holiday break. They submit an application for a permit in the prescribed form.
As required by the Act, the Minister consults with MineCon Pty Ltd in relation to the application. MineCon has adopted a policy which prioritises local applicants over international applicants, and accordingly declines its consent. Again, in accordance with the Act, the Minister rejects Jed and Elly-May’s application for a permit.
(a) Can Jed and Elly-May establish jurisdiction under the Constitution?

Who made the decision?
- Federal decision-maker: ACT IS CTH
1. There must be a decision (or conduct) to be challenged
  → s 75(v) applies to decisions that are administrative in nature and made under Commonwealth law.
- Here: The Minister’s refusal to grant a Fossicking Permit under s 28 of the National Forests (Fossicking Permits) Act 2019 (Cth) is clearly a Commonwealth administrative decision.
1. The decision must be made “by an officer of the Commonwealth”
  → This means a person holding federal executive office or exercising Commonwealth statutory power.
- Here: The Minister for National Forests is a Commonwealth officer.
- Thus, s 75(v) jurisdiction is clearly enlivened against the Minister.
1. The relief sought must be one of the constitutional writs:
- Mandamus (to compel the decision-maker to perform their legal duty)
- Prohibition (to prevent unlawful action)
- Injunction (to restrain unlawful conduct)
- Here: Jed and Elly-May could potentially seek:
  - Prohibition or mandamus – arguing the Minister acted unlawfully by relying solely on MineCon’s policy, and failed to independently exercise discretion under s 28(4).
  - This would challenge the legality of the Minister’s decision-making process.
1. There must be a legal error or jurisdictional error
  → s 75(v) protects individuals from unlawful exercises of power, especially jurisdictional errors (i.e. failure to exercise the statutory discretion properly).
- NEAT
  - MineCon is making a commercial decision not bound to public interest or merit and thus not subject to the issues that bind the minister
  - Minsiter’s decision cannot be made without MineCon
    (b) Can Jed and Elly-May establish jurisdiction under the ADJR Act?
1. A “Decision” Must Be Challenged
- Legal Source: ADJR Act, s 3(1) – defines “decision to which this Act applies”
  - A decision includes the final determination of an issue, such as a refusal of a permit.
  - Application:
    - – The Minister refused to grant a Fossicking Permit → this is a “decision” under s 28(1) of the National Forests (Fossicking Permits) Act 2019 (Cth).
    - → ✓ Satisfied
1. Made “Under an Enactment”
- Legal Source: ADJR Act, s 3(1);
  - → See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
  - The decision must be expressly or impliedly required or authorised by statute.
- Application:
  - – The refusal was made under s 28(1) of the National Forests (Fossicking Permits) Act 2019 (Cth) → this is clearly under an enactment.
  - → ✓ Satisfied
1. Of an “Administrative Character”
- Legal Source: Griffith University v Tang (2005) 221 CLR 99
  - Decision must not be legislative or judicial in character.
  - Consider nature of power, source, and effect on legal rights.
- ✅ Application:
  - – The decision is not legislative or judicial; it is administrative (grant or refusal of a permit).
  - → ✓ Satisfied
1. Made by a Commonwealth Officer or Authority
- Legal Source: ADJR Act, s 3
  - Must be a Commonwealth decision-maker.
- Application:
  - – The Minister for National Forests is a federal minister and thus a Commonwealth officer.
  - → ✓ Satisfied
1. No Excluded Category Applies
- Legal Source: ADJR Act, Schedule 1
  - Ensure it is not an excluded decision (e.g., Cabinet decisions, national security).
- Application:
  - – The Minister’s decision is not excluded under Schedule 1.
  - → ✓ Satisfied
1. Applicant Must Be a “Person Aggrieved”
- Legal Source: ADJR Act, s 5; see also Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247
  - A person is aggrieved if they are directly affected by the decision.
- Application:
  - – Jed and Elly-May applied for the permit and were denied – they are directly affected.
  - → ✓ Satisfied

Week 7: Remedies & Standing

Tutorial questions
In this week’s tutorial we look at remedies and standing in judicial review proceedings.
1 Identifying appropriate remedies
- What remedies are most appropriate in the following situations and what would be their effect? What needs to be established for the remedy to lie?
  - (a) You suspect and have some evidence suggesting that the Departmental officer who has made the decision refusing to renew your driver’s licence does not have the authority to make such decisions.
    - Certiorari
      - A legally effective decision has been made (e.g. formal refusal).
      - The decision was affected by jurisdictional error — made by someone without power to do so.
      - If relying on error on the face of the record in NSW → the record includes reasons (SCA s 69(4)).
  - (b) You are seeking to send your child to a public school out of your catchment area and need government approval. You have filed the application, but have not received an answer for over 7 months and the school term is approaching. You are told the Department will not be making a decision in your case, arguing it has a discretion not to determine the issue.
    - Mandamus:
      - Compels a public legal duty.
      - Must be unperformed or constructively unperformed (invalid due to JE).
      - Minister v Bhardwaj (2002): Invalid decision = no decision.
      - Cannot compel how discretion is exercised (Randall v Northcote (1910)).
  - (c) Your favourite tree in your neighbourhood happens to be a native Scribbly Gum in your neighbour’s backyard. You are given a notice that council has given approval for the tree to be removed, ahead of major renovations. You think the decision is wrong.
    - Injunction (ADJR Act): s 16
      - Available for JE or non-JE (Futuris (2008)).
      - May restrain tribunals, enforce rights or prevent unlawful conduct.
      - Broader and more flexible than prerogative writs.
      - Injunction/Declaration → Special interest (ACF (1980))
2 Standing
Read Onus v Alcoa (1981) 149 CLR 27, 30-39, 64-68, and Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth) (Report No 126, April 2015) 211-20, and answer the following questions. (Do not rely on the extracts found in Creyke et al, Control of Government Action (LexisNexis Butterworths, 6th ed, 2022).
(a) What are the facts and procedural history of this case?
- Facts
  - Alcoa proposed to build a smelting plant near Aboriginal relics
  - Two Aboriginal plaintiffs brought proceedings against Alcoa seeking an injunction to prevent Alcoa from breaching legislation designed to preserve Aboriginal relics
- Procedural History:
  - The appellants sought an interlocutory injunction in the Supreme Court of Victoria to restrain Alcoa from damaging Aboriginal relics under s 21 of the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic).
  - Brooking J dismissed the action for lack of standing; the Full Court of the Supreme Court (Starke, Kaye, and Jenkinson JJ) refused leave to appeal.
  - The High Court granted special leave and allowed the appeal.
- Original Dispute:
  - Could two Aboriginal women bring proceedings to prevent Alcoa from damaging Aboriginal relics on land at Portland, Victoria — relics they claimed cultural and spiritual custodianship over — in the absence of a private legal right or specific statutory entitlement?
- Reason for Trial:
  - To determine whether the appellants had standing to bring proceedings to restrain a breach of public law — namely s 21 of the Relics Act — despite not having a proprietary or statutory right.
(b) What two submissions did Lorraine Sandra Onus and Christina Isabel Frankland make in support of their argument that they had standing?
- They argued that the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) was enacted for the benefit or protection of Aboriginal people as a class, and that as members of that protected class, they had a sufficient legal interest to bring proceedings under the Act.
- They alternatively claimed to have a “special interest” in the subject matter, which gave them standing under the general law of public interest standing:
  - As members of the Gournditch-jmara people, they claimed custodianship over the relics under traditional law and custom.
  - The relics were of cultural and spiritual significance to them and were used to teach their children about their heritage.
  - Their connection to the land and relics was distinct from the general public, and therefore not a mere intellectual or emotional concern (contrast: ACF v Commonwealth (1980) 146 CLR 493).
  - This submission was accepted by the High Court as establishing standing.
(c) Was Gibbs CJ convinced by Onus and Frankland’s arguments? Why? Why not?
- Gibbs CJ (leading judgment):
  - Distinguished from ACF by noting the appellants’ connection was personal, cultural, and custodial, not merely ideological.
  - Relics had spiritual and educational significance for the Gournditch-jmara.
  - The appellants would suffer a unique disadvantage if relics were destroyed (at 38–39).
  - The law does not require exclusivity — a special interest can be shared by a class, as long as it is not general to the public.
- The position of a small community of aboriginal people of a particular group living in a particular area which that group has traditionally occupied, and which claims an interest in relics of their ancestors found in that area, is very different indeed from that of a diverse group of white Australians associated by some common opinion on a matter of social policy which might equally concern any other Australian (Gibbs CJ at 37)
(d) What policy considerations underpin the test of standing they apply?
- The test of standing reflects a balance between ensuring access to justice for those with a genuine stake in public law issues and preventing the courts from being misused by busybodies or those with only intellectual or ideological concerns.
(e) What relevance (if any) might the Australian Law Reform Commission’s observations about ‘proof and evidence’ in the context of Native Title Act 1993 (Cth) have for standing case law?
- The Australian Law Reform Commission’s observations on proof and evidence under the Native Title Act 1993 (Cth) highlight the difficulty Indigenous claimants often face in evidencing cultural and spiritual connections using Western legal standards, which is directly relevant to standing case law — particularly in cases like Onus v Alcoa — because it underscores the need for courts to adopt more culturally sensitive and flexible approaches when assessing whether Aboriginal claimants have a “special interest” sufficient to establish standing.
3 Sugar-Free Television
In 2018, the Commonwealth Government introduces the Sugar-Free Television Act 2018 (Cth), the effect of which is to ban television advertising of a range of products deemed to contain excessive amounts of sugar. Proscribed products include soft drinks and lollies.
The Act affords the Minister for Health discretion to approve an advertisement that ‘adequately warns of the health risks’ associated with consumption of products governed by the Act. The relevant Act does nothing to exclude the application of the ADJR Act.
Billy Wonka Inc is a confectionary manufacturer. They want to show a television advertisement which suggests science has not yet established a link between excessive sugar consumption and adverse health impacts. In May 2018, the Minister grants the permit.
A number of parties are upset by the Minister’s decision: Aches and Pains Ltd (a major health fund), Tara Bilson (author of a book called ‘Give Up Sugar’), and Mums Against Lollies (a group dedicated to eliminating sugary treats for children).
(a) Advise all three parties if they will have standing to seek judicial review of the Minister’s decision.
(b) If a party does not have standing, what other options are available for him/her/it to participate in judicial review proceedings?

Identify the Remedy Sought and its Legal Source
1.1. What is the remedy being sought?
The applicants will likely seek remedies available under s 16 of the ADJR Act 1977 (Cth), such as:

An order quashing the Minister’s approval (s 16(1)(a));
A declaration that the approval is unlawful (s 16(1)(c));
An injunction preventing the advertisement from being shown (s 16(1)(d)).
1.2. What is the legal source of the remedy?
The ADJR Act 1977 (Cth) applies. There is no privative clause or express exclusion in the Sugar-Free Television Act 2018 (Cth). The Minister’s decision is an administrative decision made under enactment and therefore reviewable under the ADJR Act.

Determine Whether the Error Justifies the Remedy
2.1. Is a jurisdictional error required?
No. ADJR Act remedies are available for jurisdictional and non-jurisdictional errors unless excluded:
– Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528, 537.
2.2. Is the decision final or legally effective?
Yes. The Minister’s grant of a permit has direct legal consequences — it authorises the airing of the advertisement. This is sufficient to found standing under the ADJR Act and attract judicial review (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580).
Standing to Seek Review under the ADJR Act
3.1. Standing Test under the ADJR Act
Under s 5(1) and s 3(4) of the ADJR Act, a person must be “a person aggrieved” — that is, someone whose interests are adversely affected by the decision.
This is equivalent to the “special interest” test used for declarations and injunctions at common law:
– North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492, 507.
– Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493.
3.2. Apply to Each Party
A. Aches and Pains Ltd (a major health fund)

Aches and Pains Ltd may argue that their commercial and public health interests are adversely affected by the advertisement.
However, courts are typically reluctant to grant standing to commercial competitors unless there is more than a general grievance. In Argos Pty Ltd v Corbell (2014) 254 CLR 394, standing was granted because loss was not merely from competition, but from unfair competitive harm.
Application:
Unless Aches and Pains Ltd can show a direct economic impact or operational harm caused by the decision (e.g. increased public health claims, undermining of education efforts), they will likely not meet the standing threshold under the ADJR Act.
B. Tara Bilson (author of ‘Give Up Sugar’)
Like the ACF in ACF v Commonwealth, Tara appears to be motivated by ideological concern, not a direct personal or legal interest.
In ACF v Commonwealth (1980), the High Court held that intellectual or emotional concern, even if strongly held, is insufficient to confer standing.
Application:
Tara Bilson likely does not have standing — she has no peculiar interest other than an advocacy role or general concern for public health.
C. Mums Against Lollies (community group)
As a public interest group, Mums Against Lollies would need to show:
- A recognised role in the relevant issue;
- Engagement with the decision-making process;
- A history of advocacy and consultation (North Coast, 512–513).
  Application:
  If they can demonstrate sustained involvement in public health education or formal consultation on children’s dietary health, they may be found to have standing. Otherwise, like ACF, they will be regarded as concerned citizens and denied standing.

What If a Party Does Not Have Standing?
4.1. Attorney-General Fiat

A party without standing can apply for the Attorney-General’s fiat to bring proceedings in the public interest.
Once granted, the person may sue on behalf of the Attorney-General – Little v Victoria [1999] VSCA 113, [18].
4.2. Join or support another proceeding
Non-standing parties may assist a proceeding (e.g. intervenor status or amicus curiae) if a party with standing commences litigation.
4.3. Lobbying or Parliamentary Review
Parties may make submissions to parliamentary committees or lobby the Minister for reconsideration or amendment of guidelines under the Act.

Conclusion

Mums Against Lollies may have standing if they have a recognised role and track record in advocacy.
Tara Bilson likely lacks standing due to an ideological interest only.
Aches and Pains Ltd may not have standing unless they can show concrete adverse operational impact.
Parties without standing should seek the Attorney-General’s fiat or participate through aligned parties or public channels.

Week 8: Jurisdiction

Tutorial questions

In this week’s tutorial we look at the concept of jurisdictional error and consider how to identify whether an error is jurisdictional.
1 Jurisdictional error v non-jurisdictional error
Explain the following using relevant case law:
(a) Jurisdictional error;

Jurisdiction: power to decide facts, apply law, make orders (incl. judgment in courts)
- May be limited by:
  - Geographic, monetary, or subject-matter restrictions
  - Procedural requirements, e.g. notice, hearings, consultation
  - Statutory conditions precedent to valid exercise of power
1. How to Identify Jurisdictional Error
- a. Statutory Interpretation
  - Ask: Did Parliament intend breach to result in invalidity?
    - Project Blue Sky (1998) 194 CLR 355 — replace “mandatory/directory” with purpose of legislation
  - Use:
    - Text (e.g. “must” vs “may”)
    - Context (location of provision in the Act)
    - Purpose (object clauses, explanatory memorandum)
    - Principle of legality — Ex parte Simms [2000] 2 AC 115
- b. Materiality
  - An error is jurisdictional only if material — Hossain, MZAPC v Minister (2021)
    - Material = could have made a difference
    - Not needed for:
      - Actual bias
      - Apprehended bias
      - Unreasonableness — MZAPC at [33]
      - Procedural fairness — Nathanson v Minister [2022]
- c. Burden of Proof
  - On applicant — MZAPC at [60]
  - Standard: possibility of a different outcome (not probability) — MZAPC at [39], Nathanson at [33]
    (b) Non-jurisdictional error
A non-jurisdictional error, often referred to as an “error of fact,” is a mistake made by a decision-maker that doesn’t affect their power or authority to make a decision, meaning they were still within their jurisdiction, but made a mistake in applying the law or facts.
Project Blue sky
If something is not a JE, = NJE
(c) Why do different categories of “error of law” exist and why might one wish to categorise an “error” as a “jurisdictional error” rather than a “non-jurisdictional error”?
Different categories of error of law exist because only some legal errors affect the validity of a decision. A jurisdictional error arises where a decision-maker acts outside the scope of their lawful authority, rendering the decision invalid or void, whereas a non-jurisdictional error occurs within power and does not affect legal validity.
Categorising an error as jurisdictional is important because it unlocks access to constitutional remedies (prohibition, mandamus, certiorari) under s 75(v) of the Constitution, avoids the effect of privative clauses (Plaintiff S157/2002), and affirms the supervisory role of courts in upholding the rule of law (Kirk v Industrial Court (NSW)).
2 Jurisdictional error
Solomon and Samia own a small inner-city pub. Trade has been good, but since they made a decision not to house poker machines they know they are missing out on revenue. They decide they’d like to turn the pub into a live music venue and make an application under Entertainment and Liquor Licensing Act 2009 (Cth). Adding a live music permission to a license is addressed in the Act as follows:
Entertainment and Liquor Licensing Act 2009 (Cth)
Section 14 Live Music
In determining whether or not a license should be granted the Licencing Authority must:
a) Display a Public Notice for a minimum of 14 days at the relevant venue and in the Licencing Authority’s online gazette.
b) Conduct independent noise testing at the venue and ensure compliance with maximum noise levels as set out in Schedule 1.
c) Where applications apply to venues within 1 kilometre of a residential zone, all noise testing results must be included in the notice and gazette referred to 14(a).
d) All responses to the notices set out in this section must be considered before awarding a license.
After receiving the application, the authority arranges independent noise testing but doesn’t include the noise testing results in the Public Notice posted as required for 14 days. Solomon and Samia’s license application is successful after many locals responded with enthusiasm for bringing some culture back to the area. They convert their venue for live music shows and have gained a great local following.
Clara and Millie, who live nearby and like to go to bed by 8pm, hear about this too late, so to speak, when the pub’s music starts keeping them up at night. They want to challenge the license and have it invalidated.
(a) Has the authority failed to comply with the requirements of s 14?
Yes, s 14(d) requires all conditions to be met, s 14(c) was not met)
(b) If so, is the error jurisdictional?
Yes. The Licensing Authority’s failure to comply with s 14(c) is a jurisdictional error, because:
- It involved a breach of a mandatory procedural condition.
- The breach was material, as it deprived residents of the possibility of objecting.
- Therefore, the decision to grant the licence was invalid and open to judicial review.
  (c) If there has been a failure to comply, what are the implications if the error is not jurisdictional?
If the error is not jurisdictional, the decision remains valid, constitutional remedies are unavailable, and any redress depends on discretionary or statutory review avenues — making it much harder for affected parties to challenge the outcome.
- 1. Identify the source of power
  - Is it conferred by:
    - Entertainment and Liquor Licensing Act 2009 (Cth).
- 1. Identify the alleged error
  - Type of error:
    - Breach of a statutory condition (e.g. procedural requirement, time limit)
- 1. Ask: Is it a jurisdictional error?
  - a. Apply the Project Blue Sky test
    - Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
      - Did Parliament intend that breach of the condition should result in invalidity?
      - Yes
  - b. Assess materiality of the error
    - Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
      - Would compliance with the provision have made a difference?
      - “Could have resulted in a different decision” = jurisdictional error
    - MZAPC v Minister for Immigration (2021) 390 ALR 590 at [33]
      - Bias, unreasonableness, and procedural fairness are inherently material
    - Yes, it’s entirely possible that the decision could have changed regarding the testimony of nearby residents
- 1. Determine available remedies
  - Constitutional writs (available only for jurisdictional error):
    - Prohibition, Mandamus, Certiorari – Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
  - Equitable remedies (may not require JE):
    - Injunction / Declaration – FCT v Futuris Corporation Ltd (2008) 237 CLR 146
      - Broader availability: includes fraud, bad faith, improper purpose

3 Privative clauses
(a) What was decided in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 in relation to privative clauses at the Commonwealth level?

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
- Facts
  - Plaintiff wished to institute proceedings against the Minister for Immigration and Refugee Review Tribunal under s 75(v)
  - The basis of the challenge was a denial of procedural fairness
  - s 474 of the Migration Act 1958 (Cth) was a privative clause, providing that ‘privative clause decisions’ could not be reviewed by any court
- Issues
  - Was s 474 invalid by reason of inconsistency with s 75(v)?
  - Did s 474 apply to preclude the plaintiff’s judicial review claim?
    - No
- Decision
  - ‘[D]ecision[s]..made under this Act’’ must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.
  - Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all” (at [76])
    (b) Why might litigants sometimes seek to frame errors of law (eg procedural error, impermissible delegation etc) as jurisdictional errors of law where a privative clause applies?
Litigants may seek to categorise errors of law — such as procedural breaches or impermissible delegations — as jurisdictional errors in order to avoid the effect of privative clauses and to access constitutional remedies under s 75(v) of the Constitution.
privative clauses are constitutionally ineffective in shielding decisions affected by jurisdictional error.

Week 9: Procedural Fairness

Tutorial questions

In this week’s tutorial we consider the grounds of review which are concerned with errors in the mechanics of the decision-making procedure.

1 Pastures Protection Act 1934 (Cth)
Annabel purchased a 150 hectare property in Palmdale Valley three years ago. When she purchased the land, approximately 100 hectares was natural bush and the remainder was cleared. The cleared area had been used for grazing for many years.
Annabel’s dream when she purchased the land was to re-vegetate the cleared land to take it back to its natural state, and to set up a small guesthouse on the property. She has worked hard since she purchased the land clearing the lantana and blackberries by hand since she is opposed to the use of herbicides. Annabel is one of a handful of people who have settled in Palmdale Valley recently who wish to retain their land in as close to its natural state as possible and who do not intend to use their land for stock grazing.
The Pastures Protection Act 1934 (Cth) establishes Pastures Protection Boards in rural districts across Australia to take control of travelling stock reserves, camping reserves and public watering places. The Act gives the Boards power to ensure that landholders comply with their duty to destroy noxious pests. Each Board has six directors who are elected annually by enrolled voters, the qualification for voting being ownership or occupation of rateable land under the Act. Each Board levies an annual rate on landholders within the relevant district, based on the carrying capacity of each holding, without regard to the actual use being made of the land.
The Palmdale Valley Pastures Protection Board (the Board) has levied Annabel the minimum rate of $150.40 per quarter, since she purchased the land. This rate was issued despite Annabel’s protests that she has no stock on her land, has no intention of acquiring any, and therefore should not have to pay for the services provided by the Board, which she does not use.
Annabel decides to see if she can get an exemption from the annual levy. The exemption process is set out in s 40A of the Act:
Pastures Protection Act 1934 (Cth)
40A Approval of exemption
(1) A board may, with the approval of the Minister, and shall, at the direction of the Minister, but not otherwise:
(a) waive payment of any rate or part of a rate; or
(b) refund to an occupier or owner any rate or part of any rate, or both.
(2) The Minister may, at the Minister’s discretion, direct a board:
(a) to waive payment of any rate or part of any rate; or
(b) to refund to an occupier or owner any rate or part of any rate, or both.
(3) A board shall write off any amount of rates waives or refunded under subsection (1) or (2).
Annabel writes to the Minister, indicating that she believes she should not be subject to the levy because she does not use her land for grazing. The Minister responds stating the matter is being considered by the Board, and that Annabel will have the opportunity to make further representations if necessary.
The Board appoints a committee of two directors (consisting of the local stock and station agent and the local representative of the National Farmers Federation) to investigate and report to it (the Committee). The Committee meets and considers Annabel’s position as outlined in her letter to the Minister. The Committee reports to the Board that if Annabel is granted an exemption from the levy, scores of other landholders would also apply, which would have serious effects on the revenue of the Board. The Board reports to the Minister in similar terms, and recommends against granting the exemption. The Minister accepts this recommendation and informs Annabel accordingly.
Annabel is upset by the Minister’s response:
(a) What arguments would Annabel raise to make out the ground of procedural fairness in relation to breach of the hearing rule?

Jurisdiction
- Cth act - Federal Jurisdiction
Court
- Federal
  - 75(v) Constitution
    - Officer of the commonwealth - minister
    - Seeking a named writ
- ADJR
  - Final and operative decision
  - Not legislative or judicial
  - Decision must be authorised/imposed by statute and affect legal rights
  - “Person aggrieved” under ADJR s 5(1); “special interest” for common law
Standing
- Interest
1. Identify Whether Procedural Fairness (PF) Applies
- 1.1 Source of the duty
  - PF arises at common law, unless clearly excluded.
    - Kioa v West (1985) 159 CLR 550 at 609 (Brennan J)
    - Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 490
    - Annetts v McCann (1990) 170 CLR 596 at 598
  - NO ISSUES HERE
- 1.2 Statutory construction principle
  - Statutes are construed with a presumption of fairness unless expressly or impliedly excluded.
  - Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [75]
- 1.3 ADJR Act equivalent
  - s 5(1)(a) – breach of the rules of natural justice in connection with the making of the decision (ADJR Act 1977 (Cth))
1. Determine Whether PF Has Been Excluded or Modified
- 2.2 Implied exclusion – factors to consider
  - Statutory review framework (e.g. appeal rights)
    - None
  - Nature of power (e.g. urgency, national security)
    - None
  - Contextual impracticality (e.g. mass visa cancellation)
    - Kioa v West at 584; WZARH (2015) 256 CLR 326 at 335
    - Marine Hull v Hurford (1985) 10 FCR 234
    - Here’s where it gets tricky…
1. Establish Whether PF Is Owed in the Circumstances
- 3.1 Sufficient interest must be affected
  - PF applies if the decision affects a person’s rights, interests or status:
    - Kioa v West at 373, 584
    - Plaintiff S10/2011 at [66]
    - Liberty, livelihood, or financial interest
- 3.2 Not a member of general public
  - Interest must be personal and not held as a member of the public or a class
    - Kioa v West at 632 (Deane J)
    - Might be difficult to make out, but specifically captured by this policy
- 3.3 Link to standing
  - If interest supports standing, it often supports entitlement to fairness.
    - Plaintiff S10/2011 at [68]
    - Griffith University v Tang (2005) 221 CLR 99 at [45]
1. Assess Content of the Hearing Rule
- 4.1 Contextual test – what is required to ensure fairness?
  - Depends on nature of the decision, process, and statutory context.
    - Minister for Immigration v WZARH (2015) 256 CLR 326 at 335
    - NCSC v News Corp (1984) 156 CLR 296 at 326
- 4.2 Factors affecting content
  - Statutory scheme
    - No alternative process
  - Subject matter
    - low urgency, low complexity (e.g. Marine Hull)
  - minister has passed onto board committe passed onto two directors (Jia)
  - Scope of discretion
    - ministerial discretion is the only restriction to negative outcome (Barratt; Jarratt)
  - Nature of inquiry
    - inquisitorial = lower standard
1. Was the Hearing Rule Breached?
- 5.1 Notice of adverse material
  - Must give notice of any material adverse to the person’s interests that is relied on
    - Kioa v West at 628
    - Edwardes v Kyle (1995) 15 WAR 302
    - Ansell v Wells (1982) 43 ALR 41 at 62
  - NONE THAT WE KNOW OF
- 5.2 Opportunity to respond
  - Must be real and meaningful (not necessarily oral)
  - NONE THAT WE KNOW OF
- 5.3 Disclosure of adverse material – 3-part test
  - Was the material:
    - Credible: from appointed Board directors;
    - Relevant: it directly informed the recommendation against Annabel;
    - Significant: it was the core reasoning adopted by the Minister.
    - Kioa at 629; Applicant VEAL (2005) 225 CLR 88 at 95; AB v IBAC [2024] HCA 10
  - OPINION OF TWO BOARD MEMBERS AS TO HYPOTHETICAL IMPACT OF DECISION
- 5.4 No obligation to disclose
  - Decision-maker’s mental processes (Alphaone (1994) 49 FCR 576 at 592)
    - Might be relevant protection for board
      Thus, following Kioa and VEAL, the failure to provide her an opportunity to respond constituted a breach of the hearing rule.”

(b) What arguments would Annabel raise to make out the ground of procedural fairness in relation to bias?

6. Was the Rule Against Bias Breached?
- 6.1 Actual bias (subjective)
  - Must show pre-existing state of mind that affected impartial evaluation
    - Jia v MIMA at 531
    - Sun Zhan Qui (1997) 81 FCR 71
    - Wannakuwattell’a (unreported, FCA, 24 June 1996)
  - Unknown on the facts, although local stock and station agent and the local representative of the National Farmers Federation have plenty to loose.
- 6.2 Apprehended bias (objective)
  - Ebner v Official Trustee (2000) 205 CLR 337 at 350 – two-limb test:
    - 1. Identify what might cause the decision-maker to deviate from merits
      - Association – e.g. ties to advocacy group (Pinochet; (Webb v The Queen (1994) 181 CLR 41 at 74))
    - 1. Articulate the logical connection between that matter and feared deviation
      - Observer: fair-minded lay observer (Johnson v Johnson (2000) 201 CLR 488)
      - local stock and station agent and the local representative of the National Farmers Federation would potentially lose valuable community proceeds, participation, community members, etc.
1. Is the Breach a Jurisdictional Error?
- 7.1 PF is a jurisdictional requirement
  - Breach renders the decision invalid and void
    - Plaintiff S157 (2003) 211 CLR 476 at 492
- 7.2 Remedy (common law or constitutional)
  - Declaration, certiorari, prohibition, mandamus
1. Review Under the ADJR Act (If Applicable)
- 8.1 Relevant provisions – ADJR Act 1977 (Cth):
  - s 5(1)(a) – breach of natural justice
  - s 5(1)(h) – no evidence
  - s 5(3) – explains the “no evidence” ground
  - s 5(1)(c), (d) – ultra vires / lack of jurisdiction

2 Jurisdictional facts
Identify the jurisdictional facts in the following legislative extracts. Objective fact (fact)/subjective fact
Road Traffic Act 1987 (NSW)
26D Recovery of cost of installing certain traffic control devices
(1) If -
(a) a person carries on a business or other activity beside or near a road; and
(b) the Minister is of the opinion that the installation, maintenance, alteration or operation of the traffic control device is required in view of the nature and extent of the business or activity and the volume of traffic generated by the conduct of that business or activity,
the Minister may … require the person by whom the business or other activity is conducted to pay [an amount] towards defraying the cost of installing, maintaining, altering or operating the traffic control device.

Anti-Migration Act 1986 (Cth)
567 Deportation of certain non-citizens
The Minister may order the deportation of a non-citizen to whom this Division applies.

Boxing Act 2017 (NSW)
67 Contest Permits
The Commission may refuse to issue a permit for a boxing contest if the Commission is satisfied that it is necessary to do so in the interests of the health and safety of any person who would participate in the boxing contest if the permit were issued.

3 Fact-finding problem
Employment Act 2018 (Cth)
106B Variation of Awards
(1) An employer, employee or an organisation bound by an award may apply to the Commissioner for an order varying the award on the ground that the variation is essential to the maintenance of minimum safety net entitlements.
(2) The Commissioner may make an order under 106B(1) varying the award only if the Commissioner is satisfied that:
(a) The variation is essential to the maintenance of minimum safety net entitlements; and
(b) The making of the variation would not operate as a disincentive to agreement-making at the workplace level.
In February this year, the Household Cleaners Union (HCU), an organisation bound by the Cleaning Industry Employment Award (the Award), applies, pursuant to Section 106B of the Employment Act 2018 (Cth), to the Unfair Work Commissioner (Commissioner) to vary the Award. HCU wants the existing overtime provision that stipulates an employee cannot refuse to work reasonable overtime omitted and replaced with the following clause:
5 Overtime
5.1 Subject to clause 5.2, an employer may require any employee (whether employed part-time or full-time) to work reasonable overtime at overtime rates.
5.2 An employee may refuse to work hours in excess of ordinary hours on a particular day for reasons which may include the employee’s family responsibilities or personal commitments.
In its letter requesting the variation, HCU asserts only that the variation is essential to the maintenance of minimum safety net entitlements because household cleaners work long hours and the hours they must work continue to rise.
On 29 June of this year, the Commissioner accepts HCU’s assertion and issues an order varying the Award.
Angered by the Commissioner’s decision, Fantastic Domestics Pty Ltd, a small cleaning company which offers cleaning services to elderly residents who continue to live in their own homes, seeks to judicially review the Commissioner’s decision.
Advise Fantastic Domestics if the Commissioner has made any fact-finding errors.
For the purposes of your advice, you may assume Fantastic Domestics is bound by the Award, and there is no definition of minimum safety net entitlements in the Employment Act 2018 (Cth).

1. Identify the Decision and Source of Power
- 1.1. The decision under review is the Commissioner’s decision to vary the Cleaning Industry Employment Award under s 106B of the Employment Act 2018 (Cth).
- 1.2. This is an exercise of statutory power that may be judicially reviewed on grounds of:
  - Jurisdictional error (common law);
  - s 5 of the ADJR Act 1977 (Cth) (assumed applicable).
    - Named writ (certiorari)
    - Officer of the cth
    - Administrative character decision
    - Final decision - no appeal
- Standing
  - Fantastic domestics is Bound by award
  - Fact issue indicates jurisdictional issue
1. What Is a Fact-Finding Error?
- Fact-finding errors can arise where:
  - A jurisdictional fact is not satisfied (objective fact precedent to the exercise of power);
  - There is no evidence to support a factual finding (ADJR s 5(3));
  - The finding of fact is illogical, irrational or unreasonable (Minister for Immigration v SZMDS (2010) 240 CLR 611).
1. Statutory Construction – Identify Jurisdictional Facts
- 3.1 Jurisdictional Facts in s 106B
- The following must objectively exist before the Commissioner has jurisdiction to vary the award:
  Provision
  Jurisdictional Fact
  Nature
  s 106B(1)
  The applicant must be an employer, employee or organisation bound by the award
  Objective
  s 106B(1)
  The variation must be essential to the maintenance of minimum safety net entitlements
  Objective
  s 106B(2)(a)
  Commissioner must be satisfied that the variation is essential to the maintenance of minimum safety net entitlements
  Objective fact + subjective satisfaction
  s 106B(2)(b)
  Commissioner must be satisfied that variation would not act as a disincentive to agreement-making at workplace level
  Objective fact + subjective satisfaction
Note: “Essential to maintenance of minimum safety net entitlements” is a jurisdictional fact even though the Commissioner must be “satisfied” of it: Plaintiff M70/2011 v Minister for Immigration (2011) 244 CLR 144.
1. Application to the Facts
- 4.1 HCU Standing (s 106B(1))
  - Satisfied: HCU is an organisation bound by the award.
- 4.2 Failure to Establish Jurisdictional Fact (s 106B(1), (2)(a))
  - Claim: “The variation is essential to the maintenance of minimum safety net entitlements.”
  - The phrase “essential to the maintenance of minimum safety net entitlements” sets an objective threshold – i.e., there must be evidence that the existing award fails to protect the minimum floor of employment standards, and that the proposed clause is necessary to preserve it.
  - HCU’s assertion: cleaners work long hours, and those hours are increasing.
  - Issue: There is no evidence that:
    - The current clause fails to protect the minimum safety net; or
    - The proposed change is essential to preserve it (i.e. necessity not shown).
  - The Commissioner accepted HCU’s bare assertion without conducting any inquiry or testing of evidence.
  - Error: Commissioner acted without establishing the jurisdictional fact → renders decision ultra vires.
    - Compare: Plaintiff M70 – if a statutory condition must exist in fact, decision-maker cannot conclusively determine it by subjective satisfaction alone.
- 4.3 Failure to Consider s 106B(2)(b)
  - The Commissioner must also be satisfied that the variation would not act as a disincentive to workplace-level agreement-making.
  - No mention in the facts of this ground being considered at all.
  - This is a mandatory precondition to exercising the power under s 106B(2).
  - Error: Failure to turn mind to a mandatory consideration or jurisdictional fact.
1. Characterisation of Error and Remedies
- 5.1 Jurisdictional Error
  - Commissioner exercised power in absence of jurisdictional facts under s 106B(1), (2).
  - Decision is invalid and void: Plaintiff S157 v Commonwealth (2003) 211 CLR 476.
- 5.2 ADJR Grounds
  - s 5(1)(a): breach of natural justice (if no hearing or unfair process – not relevant here)
  - s 5(1)(h) & s 5(3): decision not supported by evidence (re: jurisdictional facts)
  - s 5(1)(e): improper exercise of power – failure to consider relevant considerations (s 106B(2)(b))
  - s 5(1)(d): exercise in bad faith, or for an improper purpose (not clearly applicable)
- 5.3 Remedy
  - Certiorari to quash decision;
  - Declaration that decision is invalid;
  - Injunction to prevent enforcement of variation.
1. Conclusion
- The Commissioner has likely committed a jurisdictional error by:
  - Failing to ensure that the variation was essential to the maintenance of minimum safety net entitlements; and
  - Failing to consider whether the variation would operate as a disincentive to agreement-making.
  - These are fact-finding errors regarding jurisdictional facts, and the decision may be quashed on judicial review.

Week 10: Errors in the exercise of discretion

In this week’s tutorial we consider the remaining grounds of judicial review.
1 National Board of Galleries
The National Board of Galleries is a statutory body attached to the Ministry of Arts. The purpose of its governing legislation is to ‘regulate and enable the establishment of new galleries’ and it provides:
National Galleries (Administration) Act 2010 (Cth)
…
41 It is an offence to establish a gallery anywhere in Australia without authority from the Board.
42 A person may apply to the Board for authority to establish a gallery using the appropriate form.
43 The Board may grant authority to an applicant under s 42 in its absolute discretion.
…
89 The Board may compulsorily purchase property to establish new galleries using public funds.
Consider each of the following circumstances (assume that a hearing was given in each case):

Callie is refused consent for the establishment of a new gallery on the ground that she is a member of the Home Grown political party.
- Is the decision reviewable? (under ADJR Act or constitutional writs — it is for all)
- Does the applicant have standing? (they are all directly affected → standing easy)
- Is the decision justiciable? (yes — administrative decisions under a statute)
- Identify the relevant ground of judicial review:
  - Callie: Irrelevant consideration
- 4.2. Taking into Account an Irrelevant Consideration – s 5(2)(a)
  - 4.2.1. Legal Test
    - Irrelevant = prohibited by the statute’s scope, subject matter, or purpose (Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86, 89)
    - Not every mention is fatal: must materially influence the decision (ACF v Forestry Commission (1988) 19 FCR 127)
  - 4.2.2. Examples
    - Irrelevant: religion, political views, personal preferences
Kim wishes to establish a new gallery in Gorokan, but is refused permission to do so by the Board on the ground that it is its general policy not to accede to such applications where there is already an existing gallery within a ten-kilometre radius.
- Is the decision reviewable? (under ADJR Act or constitutional writs — it is for all)
- Does the applicant have standing? (they are all directly affected → standing easy)
- Is the decision justiciable? (yes — administrative decisions under a statute)
- Identify the relevant ground of judicial review:
  - Kim: Fettering of discretion
- 4.4. Fettering of Discretion – s 5(2)(f)
  - 4.4.1. Legal Test
    - It is unlawful to bind future discretion by:
      - Inflexibly applying a policy
      - Automatically following government directions (ex parte Venables [1998] AC 407, 496)
  - 4.4.2. Lawful Use of Policy
    - Policy may guide decision-making if:
      - Consistent with statute
      - Flexibly applied (opportunity for exceptions) (Green v Daniels (1977) 13 ALR 1)
    - Key: Must genuinely consider individual merits (Rendell v Release on Licence Board (1987) 10 NSWLR 499)
  - 4.4.3. Examples
    - Green v Daniels: rigid school holiday rule inconsistent with Act
    - Rendell: parole board bound itself to 10-year rule = error
  - ABSOLUTE DISCRETION TO GRANT s 43 (Murphyores)
Harry is refused permission to build a gallery at Pine Ridge, a remote town in NSW. The Board says it is not prepared to agree without the consent of the Minister for Arts because it is Government policy to not provide galleries in remote places. The Minister refuses her consent.
- Is the decision reviewable? (under ADJR Act or constitutional writs — it is for all)
- Does the applicant have standing? (they are all directly affected → standing easy)
- Is the decision justiciable? (yes — administrative decisions under a statute)
- Identify the relevant ground of judicial review:
  - Harry: Dictation
- 4.5. Dictation – s 5(2)(e)
  - 4.5.1. Legal Test
    - Power must be exercised independently; cannot be dictated by another person (Bread Manufacturers v Evans (1981) 180 CLR 404)
  - 4.5.2. Permissible Consultation
    - May consider Minister’s views if still exercising own judgment
    - Exception: Military/command structure decisions may lawfully follow orders (CPCF v Minister (2015) 255 CLR 514)
  - ABSOLUTE DISCRETION TO GRANT s 43 (Murphyores)
The Board compulsorily purchases Shelley’s land. The Board has no firm or immediate plans to build a gallery there, but thought it worthwhile acquiring the land because it anticipated that it would appreciate considerably in value.
- Is the decision reviewable? (under ADJR Act or constitutional writs — it is for all)
- Does the applicant have standing? (they are all directly affected → standing easy)
- Is the decision justiciable? (yes — administrative decisions under a statute)
- Identify the relevant ground of judicial review:
  - Shelley: Improper purpose
- 4.3. Improper Purpose – s 5(2)(c)
  - 4.3.1. Legal Test
    - Decision-maker must use power only for the statutory purpose (Plaintiff S4/2014 v Minister for Immigration (2014) 312 ALR 537)
    - Purpose assessed via:
      - Text, context, purpose of statute
      - Express purpose clauses (e.g., Migration Act s 140X)
  - 4.3.2. Application
    - Did the decision-maker act for an ulterior or unauthorised purpose?
    - Examples:
      - Schlieske: deportation used to assist foreign prosecution = improper
      - Plaintiff S4: granting safe haven visa to block access to protection visa = improper
  - 4.3.3. Dominant Purpose Test
    - Ask: Would the decision obviously have been no different absent the improper purpose? (East Melbourne Group (2008) 23 VR 605)
  - S 89: to establish new galleries using public funds. No other purpose to that power
    2 National Board of Galleries (continued)
    (a) Which court or courts have jurisdiction to hear the matters raised in Question 1, and if so, what is the basis for jurisdiction?

Federal Court of Australia

Basis:
• Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) s 5
• Federal Court of Australia Act 1976 (Cth) s 39B(1A)(c): confers original jurisdiction to review “a decision made under an enactment” for jurisdictional error.
Reasoning:
The Board’s decisions are:
- Made under a Commonwealth enactment (satisfying the Tang test: Griffith University v Tang (2005) 221 CLR 99);
- Administrative in nature;
- Not excluded from ADJR Act coverage on the facts.

Not excluded from ADJR Act coverage on the facts.
2. High Court of Australia

Basis:
• Section 75(v) of the Constitution:
Grants original jurisdiction for judicial review of Commonwealth officers’ decisions (via constitutional writs: prohibition, mandamus, certiorari).
Reasoning:
The Board is a Commonwealth statutory authority.
Even if a statute tries to exclude review, the High Court’s jurisdiction under s 75(v) cannot be ousted (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

(b) How would your answer to (a) differ if the National Galleries (Administration) Act 2010 (Cth) was amended to incorporate the following provision?
High Court Jurisdiction under Constitution Cannot Be Ousted

Constitution s 75(v) guarantees access to judicial review of Commonwealth officers’ actions for jurisdictional error.
A privative clause cannot remove the High Court’s jurisdiction (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 491–492 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ)).
Even with s 92A, judicial review for jurisdictional error remains available.

Interpretation of Privative Clauses — Reading Down

Following Plaintiff S157, courts will construe s 92A narrowly.
s 92A would be read as not excluding review where jurisdictional error is alleged.
Only minor or non-jurisdictional errors might be shielded (if any).

Federal Court Access:

Under ADJR Act and s 39B, similar approach:
- Courts will presume that Parliament did not intend to exclude judicial review for jurisdictional error unless stated “with irresistible clearness” (which s 92A lacks).
- Thus, review no available.

National Galleries (Administration) Act 2010 (Cth)
…
92A A decision made by the Board pursuant to sections 43 or 89 of this Act are final and conclusive, and cannot be challenged, reviewed or called into question in any court of law.
3 Manning Valley
Manning Valley is a popular resort town within the Jervis Bay Territory (a Commonwealth Territory). Manning Valley has won the right to host the 2018 National Derby. The proposed race track, Bellinger Drive, is a public roadway that forms a loop around the Manning Valley headland. Adjacent to the headland is an area known as The Strip, with numerous restaurants, cafes and the Manning Valley fish markets.
Race organisers wish to take over The Strip so that they have a pleasant place from which to administer the race. The local council, which has given permission for the event, would prefer that the organisers use the open space on the headland for the race headquarters. However they agree to the organiser’s demands because they are afraid of losing the race and its accompanying publicity and tourist dollars.
The Strip has its own access road that is separate from Bellinger Drive, but organisers have pressured the council into agreeing to close this road too. The organisers are concerned that normal traffic on the access road would hinder the free movement of their vehicles, and would also encourage onlookers to gather and watch the race for free, rather than paying the entry fees to watch from the Bellinger Drive area.
The council has power under the Local Councils Act 2010 (Cth) to close a public road ‘where the council deems it to be necessary in the public interest’. The Council issues a notice in the local paper, “The Leader”, as it is required to do, indicating that Bellinger Drive and The Strip access road will be closed to the public for the duration of the race (the entire Christmas Eve/Christmas/Boxing Day holiday weekend).
When questioned by the local media, a spokesperson for the council states that the reason for the road closures is to ensure public safety. Many people suspect that the council’s real reasons for agreeing to the road closures are financial, however this could only really be proven if the contract to hold the race was made public.
With the access road being closed, it is a long way to the closest available car parking facilities, and public transport to The Strip is non-existent. Alison (who owns the fish market) and Jin (a cafe owner) are very concerned that their customers will not be able to access businesses on The Strip. Alison is particularly concerned as the period of road closures includes Christmas Eve, one of the busiest business days of the year.
Ingrid and Michael are also concerned about the road closures. They are elderly and cannot walk far. They had planned to buy fresh prawns and fish at the markets for their Christmas Day lunch but think they will now have to make alternate arrangements.
Assuming Alison, Jin, Ingrid and Michael can establish jurisdiction and have standing, on what grounds could they challenge the Council’s decision?

Bad faith exercise of a discretion → argue dictation instead easier version due to being directed
- Likely a discretion
- Purpose: if it is in the public interest
- Public safety is the given reasoning
- Fettering discretion
  - Dictation
    - Requirement of materiality
  - Improper purpose
- Subjective jurisdictional fact
Proper purposes
- Likely a discretion
- Purpose: if it is in the public interest
- Public safety is the given reasoning
  - Pecuniary interest in the tickets of the race rather than viewing for free
    - Dominant purpose test
      - Probably fails

Week 11: Delegated Legislation

1 Building Appearance Regulations
Following concern by the NSW Government regarding inappropriate design and inferior quality of recently erected buildings in the Sydney CBD, parliament enacts legislation to require the construction of new buildings in styles and with materials appropriate to their surroundings.
Buildings (Maintenance of Appearances Quality) Act 2019 (NSW)
…
27 Regulations
1 The Governor may make regulations not inconsistent with this Act prescribing all matters which are necessary or convenient for carrying out or giving effect to this Act.
2 Without limiting the generality of subsection (1) the Governor may make regulations:
(a) Prescribing the materials to be used in the construction of the facades of buildings in the City of Sydney;
(b) Specifying the maximum height of such buildings; and
(c) Providing for the architectural styles that may be used in the construction of such buildings.
(3) Before making a regulation pursuant to this provision, the Governor must consult with the City of Sydney Council.
The Governor makes the following regulations:
Buildings (Maintenance of Appearances Quality) Regulations 2019 (NSW)
…
8 All buildings constructed in the City of Sydney shall be designed in such a way as to blend as harmoniously as possible with other buildings in the vicinity.
9 The facades of all such buildings shall be constructed with materials of the highest quality and of the most environmentally compatible kind.
10 No outer wall of any such building shall be constructed of concrete except with the approval of the Minister.
11 The maximum height of all buildings constructed in the City of Sydney shall be approved from time to time by the Minister.
Arturo, a licensed builder, has been called upon by the Minister to show cause why his licence should not be cancelled for breach of all four regulations. Advise Arturo on whether each regulation is valid.
Step 1: Identify the Legal Nature of the Instrument
1.1 Delegated Legislation:
The Buildings (Maintenance of Appearances Quality) Regulations 2019 (NSW) are delegated legislation made under s 27 of the Buildings (Maintenance of Appearances Quality) Act 2019 (NSW). The regulations:

Are made by the Governor under s 27(2)
Are legislative in nature — they apply generally, impose duties, and regulate conduct
✅ Subject to judicial review

Step 2: Determine Procedural Compliance
2.1 Consultation Requirement – s 27(3):
Before making any regulation under s 27, the Governor must consult with the City of Sydney Council.
➡ Arturo should obtain evidence whether consultation occurred.
➡ If not, failure may amount to procedural invalidity if consultation is mandatory (see Concore Pty Ltd v Mulgrave SC [1988] 2 Qd R 395).
Conclusion: If consultation did not occur, each regulation may be invalid on procedural grounds.
2.2 Publication & Registration:
Assume publication occurred – no facts suggesting failure.
✅ Likely valid on publication requirements.

Step 3: Ground 1 – Ultra Vires (Outside Power)
Reg 8 – “Designed to blend harmoniously with other buildings”

s 27(2)(c) allows regulations “providing for architectural styles”
But “blend harmoniously” is vague and may not amount to a specific style
In Shanahan v Scott (1957) 96 CLR 245, delegated legislation must stay within the statutory purpose and be sufficiently precise
Conclusion: Possibly invalid for uncertainty or vagueness, but may be saved if “architectural styles” is interpreted broadly.
Reg 9 – “Facades to be of highest quality and most environmentally compatible materials”
Arguably within s 27(2)(a): prescribing facade materials
However, phrases like “highest quality” and “most environmentally compatible” are uncertain and standardless
In South Australia v Tanner (1989) 166 CLR 161, vague or indeterminate standards risk invalidity
Conclusion: Likely ultra vires for vagueness and lack of objective standard.
Reg 10 – “No outer wall may be concrete unless Minister approves”
Concrete is a common building material
s 27(2)(a) allows prescribing facade materials, but Reg 10 effectively bans a material unless Minister consents
This gives broad discretionary power to the Minister, who is not the regulation-maker
Invalid subdelegation unless Act expressly allows it (Hawke’s Bay Raw Milk Producers [1961] NZLR 218)
Conclusion: Likely invalid as improper subdelegation to Minister – power was given to Governor, not Minister.
Reg 11 – “Minister determines maximum height from time to time”
s 27(2)(b) allows prescribing the maximum height
But Reg 11 gives the Minister ongoing authority to determine heights without any legislative process
Hawke’s Bay Raw Milk – delegated legislation cannot delegate legislative power again
Conclusion: Clearly invalid for subdelegating legislative power without express statutory authorisation.

Step 4: Ground 2 – Inconsistency or Improper Purpose

No evidence regulations contradict the Act’s purpose
Purpose of the Act is controlling aesthetic and quality — so Reg 8 and 9 may align in intent, though execution is vague
No constitutional inconsistency or conflict with other legislation noted

Step 5: Ground 3 – Improper Purpose

No direct evidence that the regulations were enacted for a collateral or improper purpose
Unless Arturo can prove a hidden political or financial motive, this challenge likely fails

Step 6: Procedural Invalidity (Revisited)

If consultation with Council was not undertaken, all four regulations may be invalid
Must determine whether s 27(3) is mandatory: language “must” implies it is.
In Concore, failure to meet a mandatory consultation requirement led to invalidity
Conclusion: If consultation did not occur, each regulation may be procedurally invalid.

Step 7: Unreasonableness / Proportionality

Reg 9: may be unreasonably burdensome (e.g. “highest quality” standard is vague and may be impractical)
Reg 10: prohibition on concrete walls without approval may be oppressive, failing Wednesbury test (City of Brunswick v Stewart (1941) 65 CLR 88)
No clear case of disproportionality unless Arturo can show regulations are irrational or discriminatory

Step 8: Invalid Subdelegation

Reg 10 and Reg 11 delegate discretionary authority to the Minister, but:
- s 27 empowers Governor, not Minister
- No express authorisation to subdelegate legislative functions
- Hawke’s Bay Raw Milk → subdelegation invalid without clear authorisation
  Conclusion: Reg 10 and 11 are invalid for subdelegation

Step 9: Remedies

Arturo may seek a declaration of invalidity under the Supreme Court Act 1970 (NSW) s 69
Can also raise collateral challenge if licence cancellation proceeding arises
Standing is satisfied – Arturo is directly affected

2 Telecommunication Regulations
Section 51 of the Mobile Content Communications Act 2000 (Cth) (“the Act”) states:
The Communications Authority may make regulations not inconsistent with this Act prescribing all matters in relation to the supply of:
(a) specified carriage services;
(b) specified content services.
Pursuant to section 51 of the Act, the Communications Authority made the Mobile Service Provider Regulations 2020 on 4 May 2020 (“the Regulation”). Regulation 6 states:
6(1) A content service provider or mobile carriage service provider must not supply a mobile premium service that enables an end-user to access prohibited content.
6(2) For the purposes of 6(1), “prohibited content” means material:

that has been classified X 18+ or Refused Classification (RC) by the Classification Board; or
that has not been classified by the Classification Board but, if it were to be, would likely be classified X 18+ or RC.
The Communications Authority did not consult the general public about the Regulation before it was made. However, it did send a copy of the Regulation in draft to all members of the communications industry and gave them 15 working days to comment on the draft Regulation.
The Communications Authority sent a copy of the Regulation to the First Parliamentary Counsel on 4 May 2020; however, it did not have time to prepare and send an explanatory statement until 10 days later. The Regulation was registered in the Federal Register of Legislative Instruments but due to an administrative error the Office of Parliamentary Counsel did not table the Regulation in each House of Parliament until 31 July 2020.
On 12 August 2020, the Communications Authority finds that For Adults Only, a content service provider, has been providing content classified as X18+ to adults in contravention of 6.1 of the Regulation.
For Adults Only wants to challenge the validity of the Regulation.

Identify the Instrument
1.1. Is it delegated legislation?

Regulation made by Communications Authority under s 51 of the Mobile Content Communications Act 2000 (Cth) ✅
Registered on the Federal Register ✅
It is a legislative instrument under the Legislation Act 2003 (Cth), s 8(4)

Available Avenues for Judicial Review
2.1. ADJR Act 1977 (Cth)
❌ Not available:

ADJR review applies to administrative decisions (ADJR Act s 3)
Regulation-making is legislative in nature, not of “administrative character” (see Griffith University v Tang (2005) 221 CLR 99, 130 [89] per Gummow, Hayne, Callinan JJ)
2.2. Judiciary Act 1903 (Cth) s 39B(1)
✅ Available:
Judicial review in the original jurisdiction of the Federal Court for unlawful actions by Commonwealth officers (incl. regulation-making)
2.3. Constitution s 75(v)
✅ Possible fallback:
Direct High Court challenge for constitutional invalidity or jurisdictional error
If constitutional issues arise (e.g. inconsistency, proportionality), may proceed under this route

Grounds of Challenge

Ground 1: Ultra Vires – Beyond Power
3.1. Did the regulation go beyond s 51 of the Act?

Section 51 authorises regs “not inconsistent with this Act” and relating to specified content services
Reg 6(1) and (2) prohibit supply of X18+ or RC content by content service providers
Potential issue: The Act may not itself prohibit content, only empower regulation of supply → must assess whether the regulation supplements or impermissibly extends the Act
🟩 Shanahan v Scott (1957) 96 CLR 245 at 250: Delegated legislation must complement, not add to or contradict, the Act
🟩Swan Hill Corporation v Bradbury (1937) 56 CLR 746, 762: Delegated legislation cannot prohibit what the Act does not prohibit
→ If the Act does not prohibit X18+ content, but merely regulates supply, the regulation may exceed the statutory purpose

Ground 2: Procedural Invalidity
2.1. Explanatory Statement delay (10 days)

Legislation Act 2003 (Cth) s 26(1): Explanatory statement must be prepared before registration ✅
But s 26(2): Failure to lodge explanatory statement does not affect validity
2.2. Consultation
Legislation Act s 17(1): Consultation must occur where appropriate
Industry consultation only (15 working days)
Not fatal, but may support an argument that process was flawed — court unlikely to strike down solely for this (s 19: failure to consult ≠ invalid)
2.3. Tabled late in Parliament (31 July 2020)
Legislation Act s 38: Must be tabled within 6 sitting days
s 38(3): Failure to table → regulation is repealed automatically after 6 sitting days
🟩 This is For Adults Only’s strongest argument:
Regulation made: 4 May 2020
Not tabled until 31 July 2020
Check when Parliament next sat after 4 May 2020 — if more than 6 sitting days passed, the regulation was automatically repealed and is of no effect (s 38(3))

Ground 3: Unreasonableness
🟩 City of Brunswick v Stewart (1941) 65 CLR 88, 98

Must be so oppressive or capricious that no reasonable authority could make it
→ Unlikely to succeed here: Prohibiting X18+ content, even to adults, has legitimate moral/policy rationale

Ground 4: Inconsistency with Enabling Act

s 51 may not authorise banning X18+ content entirely — if Act contemplates regulation (not prohibition), regulation may contradict statutory intent
→ Swan Hill Corporation v Bradbury (1937) 56 CLR 746: Delegated legislation invalid if it prohibits what statute permits

Ground 5: Inconsistency with Other Laws / Constitution

None really
Under Brownells Ltd v Ironmongers’ Wages Board (1950) 81 CLR 108, a regulation is invalid if:
It was made for a collateral or ulterior purpose, rather than to give effect to the purpose of the Act.
📌 Application to privacy:
If the regulation restricts the supply of content not to further the objectives of the Mobile Content Communications Act 2000 (Cth), but instead to impose a moral agenda or censor lawful adult access to content beyond what the Act contemplates, it may be characterised as pursuing an improper or unauthorised purpose.
Courts also recognise that regulations must be reasonably appropriate and adapted to the purpose of the enabling statute (see SA v Tanner (1989) 166 CLR 161, 167).
📌 Application to privacy:
If the regulation imposes a blanket ban on adult access to content, even when such access is private, consensual, and legal under the Classification Act, it may be argued to be disproportionate. The regulation’s burden on personal privacy and autonomy could be seen as exceeding what is necessary to achieve the Act’s purpose.
Courts interpret delegated legislation in light of common law rights — including privacy, freedom of expression, and liberty — unless Parliament clearly authorises their abrogation:
“Fundamental rights cannot be overridden by general or ambiguous words.”
— Coco v The Queen (1994) 179 CLR 427, 437

Remedy

Declaration of invalidity of Regulation 6 (or all of Regulation)
If automatic repeal under s 38(3) applies → For Adults Only can argue that no breach of reg 6(1) occurred, because regulation no longer had legal effect

Conclusion

✅ For Adults Only can challenge the Regulation by judicial review under s 39B(1) of the Judiciary Act in the Federal Court
🟩 Strongest ground: Failure to table the regulation within 6 sitting days (s 38 Legislation Act 2003) → regulation automatically repealed → no valid offence under reg 6(1)
🟨 Possible further argument: Ultra vires – prohibition exceeds s 51 statutory purpose

Week 12: AI

Exam revision and practice problem
The Children’s Learning Advocacy Group (“CLAG”) was established in 2009 by parents of children with learning difficulties. It was formed to champion the interests of such children but after five years of failing to convince state governments to extend services for these children, its executive decided to focus its work on seeking funding from the Commonwealth Department of Social Services (“CDSS”) for research into the problems associated with learning difficulties. It received research grants from the Department in 2014 and 2015.
In August 2016, CLAG sought to extend its research program by applying for a grant under s 12 of the Disability Services Act 1986 (Cth) to research the following:

what services exist to provide adequate support for children with learning difficulties;
what further services are needed to improve that support; and
the best way to provide these services within the state school system.
Initially, the Minister’s delegate informed CLAG (in writing) that its application, like the previous ones, was likely to be approved. On this understanding, CLAG employed a research officer. However, in September 2016, the Minister announced to the House of Representatives new funding guidelines. The guidelines, which were not tabled in the Senate, stated:
“Given the limited level of resources available for funding research in the disability field, such funding will in future be directed to improving existing services, rather than to initiating new services not already in existence.”
The Minister’s delegate responded to CLAG’s application in October 2016 stating:
“After negotiations with the NSW Department of Education and Communities, and based on its concerns about the policies of CLAG, I have decided to fund your proposal on the following conditions:
In accordance with the Minister’s guidelines of 1 September 2016, the project will examine ways in which classroom teachers’ duties may be modified to facilitate the integration of children with disabilities.
Representatives of the NSW Department of Education and Communities and CDSS will be members of the joint state/federal committee to be appointed to oversee and direct the project.
Funding may not be used to employ staff, as this is regarded as a new service.”
CLAG objects to these conditions, which entirely negate the purpose of its application. The Minister and her delegate refused a request by CLAG for an opportunity to present their objections in person. The delegate advised CLAG’s president, Ms Betty Green, that such a meeting would be pointless because the Prime Minister considered CLAG’s activities to be a threat to the Labor Party’s electoral prospects.
The Minister seeks your advice on whether and how she can best defend the decision in the event of an application by Ms Green for judicial review of the decision. Include advice about the following matters:
Jurisdiction and Justiciability
Standing
The validity of the guidelines
The possible grounds and outcome of judicial review
Cite relevant legislation and leading cases on each issue.

Disability Services Act 1986 (Cth)
Objects
3 (1) The objects of this Act are:
(a) to replace the provisions of the Handicapped Persons Assistance Act 1974 (Cth) with provisions that are more flexible and more responsive to the needs and aspirations of the persons with disabilities;
(b) to assist persons with disabilities to receive services necessary to enable them to work toward full participation as members of the community;
(c) to encourage innovation in the provision of services for persons with disabilities.
Principles, objectives and guidelines
5 (1) The Minister must formulate principles and guidelines to be complied with in the administration of this Act.
(2) A copy of the guidelines must be laid before each House of the Parliament within 15 sitting days of that House after the guidelines are formulated, and may be disallowed by a vote of either House.
Financial assistance for research
12 (1) Subject to subsection (2), the Minister may approve a grant of financial assistance for research, on whatever terms and conditions the Minister thinks fit.
(2) The Minister shall not approve a grant under subsection (1) unless the Minister is satisfied that the making of the grant would:
(a) further the objects of this Act set out in section 3 and the principles and objectives formulated under section 5; and
(b) comply with the guidelines formulated under section 5 that are applicable to the making of grants under subsection (1) of this section.
(3) Any decision made under this section shall be final and conclusive and any person affected shall not have any right to have any matter heard and determined by way of appeal or otherwise by a court or tribunal.
Delegation by the Minister
33 (1) The Minister may, either generally or as otherwise provided in the instrument of delegation, by writing signed by the Minister, delegate to an officer all or any of the powers of the Minister under this Act, other than:
(a) the power to formulate principles, objectives and guidelines under section 5; and
(b) this power of delegation.
Regulations
36 (1) The Governor-General may make regulations, not inconsistent with this Act prescribing all matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Identify court/jurisdiction (ADJR Act, Judiciary Act, Constitution, NSW SC Act).
Is it a “decision” under an enactment (Bond; Tang)?
Does applicant have standing (ACF; North Coast)?
Are there statutory compliance issues (Project Blue Sky)?
Grounds of review:

Procedural fairness (Kioa; Ebner);
Relevant/irrelevant considerations (Peko-Wallsend);
Improper purpose (Padfield);
Fettered discretion (Re Drake);
Unreasonableness (Li).
Remedies sought (ADJR Act s 16; constitutional writs).
Any discretionary bars to relief?

Law School Notes Repository

Explorer

Admin Law Tutorial Questions

Week 2: Admin Law

Week 3: Ombudsman

Tutorial questions

Week 4: FOI Requests and Merit Review

Tutorial questions

Week 5: Tribunals

Week 6: Judicial Review

Week 7: Remedies & Standing

Week 8: Jurisdiction

Tutorial questions

Week 9: Procedural Fairness

Tutorial questions

In this week’s tutorial we consider the grounds of review which are concerned with errors in the mechanics of the decision-making procedure.

Week 10: Errors in the exercise of discretion

Week 11: Delegated Legislation

Conclusion

Week 12: AI

Graph View

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