McMillan, John --- "Judicial Restraint and Activism in Administrative Law" [2002] FedLawRw 12; (2002) 30(2) Federal Law Review 335
[*] Alumni Professor of Administrative Law, Australian National University; Consultant, Government Services Group, Clayton Utz. This is a revised version of a paper to the Judicial Conference of Australia, Launceston Colloquium, 27 April 2002, in a session on the role of judges in a human rights context, entitled 'The Courts v The People: Have the Judges Gone too Far?'.
[1] Generally, see Enid Campbell and H P Lee, The Australian Judiciary (2001) ch 1.
[2] Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491; for discussion see the papers in (2002) 13 Public Law Review 87–142.
[3] For example, Michael Kirby, 'Implications of the Internationalisation of Human Rights Law' in Philip Alston (ed), Towards an Australian Bill of Rights (1994) 267; Hilary Charlesworth, 'Dangerous Liaisons: Globalisation and Australian Public Law' [1998] AdelLawRw 6; (1998) 20 Adelaide Law Review 57; and the essays in B R Opeskin and D R Rothwell (eds), International Law and Australian Federalism (1997).
[4] Sir Gerard Brennan, 'Courts, Democracy and the Law' (1991) 65 Australian Law Journal 32, 40.
[5] Sir Anthony Mason, 'Future Directions in Australian Law' [1987] MonashULawRw 6; (1987) 13 Monash University Law Review 149, 163.
[6] W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 [16] (Lee, Carr and Finkelstein JJ). See also Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719, 730 (Wilcox and French JJ, referring to 'the primacy that the liberty of the individual should have in our legal system'); and Buksh v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 647, 656.
[7] For example, Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.
[8] The figures in the text are taken jointly from Australian Law Reform Commission, Review of the Federal Civil Justice System, Discussion Paper 62 (1999) 271; Department of Immigration and Multicultural Affairs, Fact Sheet No 9, 'Litigation Involving Migration Decisions'; Justice Kevin Lindgren, 'Commentary' (2001) 29 Federal Law Review 391; and from estimates from decisions reported in May 2002 at <www.austlii.edu.au>.
[9] Migration Reform Act 1992 (Cth), inserting a new Part 8 into the Migration Act 1958 (Cth).
[10] See s 474 of the Migration Act 1958 (Cth), inserted by Migration Legislation Amendment Act (No 2) 2001 (Cth). For a broader discussion of legislative amendments designed to restrict judicial discretion, see John McMillan, 'Controlling Immigration Litigation—A Legislative Challenge' (2002) 10 People and Place 16.
[11] For example, Administrative Review Council, Review of Migration Decisions, Report No 25 (1985); Committee to Advise on Australia's Immigration Policies, Immigration—A Commitment to Australia (1998); Committee for the Review of the System for Review of Migration Decisions, Non-Adversarial Review of Immigration Decisions: the Way Forward (1992); Human Rights Commission, Human Rights and the Migration Act 1958, Report No 13 (1985); Senate Legal and Constitutional Legislation Committee, Parliament of Australia; Consideration of Legislation Referred to the Committee: Migration Legislation Amendment (Judicial Review) Bill 1998 (1999); Joint Standing Committee on Migration, Parliament of Australia; Review of Migration Legislation Amendment Bill (No 2) 2000; Senate Legal and Constitutional References Committee, Parliament of Australia; A Sanctuary under Review: An Examination of Australia's Refugee and Humanitarian Determination Processes (2000).
[12] Philip Ruddock, 'Immigration Reform: The Unfinished Agenda' (Speech to National Press Club), reported in 'Ruddock Slams Courts for Ignoring Will of Parliament', Australian Current Law News, 19 March 1998.
[13] Respectively, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 132 [134] (Kirby J) ('Aala'); Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407, 411 [13] (McHugh J). See also Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 522 [21], 534 [50] (Gleeson CJ and McHugh J).
[14] See 'Butt Out, Ruddock Tells Judges', The Australian (Sydney), 4 June 2002; and 'Court Calls Ruddock to Account', The Financial Review, 4 June 2002.
[15] Paul Kelly, 'Defiant Court Provokes Political Wrath', The Australian (Sydney), 5 September 2001, 13.
[16] Generally, see Mary Crock, Immigration and Refugee Law in Australia (1998) ch 2.
[17] [1888] VicLawRp 81; (1888) 14 VLR 349; Musgrove v Toy [1891] AC 272.
[18] For example, Chia Gee v Martin [1905] HCA 70; (1905) 3 CLR 649; Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395; Attorney-General (Cth) v Ah Sheung [1906] HCA 44; (1906) 4 CLR 949; Ah Yin v Christie [1907] HCA 25; (1907) 4 CLR 1428; Donohoe v Wong Sau [1925] HCA 6; (1925) 36 CLR 404.
[19] [1908] HCA 63; (1908) 7 CLR 277 (holding that a person born in Australia was not an 'immigrant' required to pass the dictation test).
[20] [1934] HCA 63; (1934) 52 CLR 234 (holding that Scottish Gaelic was not a 'European language' in which an immigration applicant could be required to demonstrate proficiency).
[21] For example, Ah Yin v Christie [1907] HCA 25; (1907) 4 CLR 1428; Donohoe v Wong Sau [1925] HCA 6; (1925) 36 CLR 404; Znaty v Minister for Immigration [1972] HCA 14; (1972) 126 CLR 1; R v Mackellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461.
[22] Crock, above n 16, 15.
[23] [1977] HCA 35; (1977) 137 CLR 461; see also Salemi v Mackellar (No 2) [1977] HCA 26; (1977) 137 CLR 396.
[24] [1985] HCA 81; (1985) 159 CLR 550 ('Kioa').
[25] The alternative theories in Kioa as to when natural justice applies—by common law presumption, as a statutory implication, or as a universal implication—are discussed in Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) ch 8; and John McMillan, 'Developments under the ADJR Act: the Grounds of Review' [1991] FedLawRw 2; (1991) 20 Federal Law Review 50, 64-6.
[26] Respectively[1985] HCA 81; , (1985) 159 CLR 550, 587 (Mason J), 602 (Wilson J), 629 (Brennan J). Deane J (634) expressed a more general view that the Kioas were entitled to have 'the opportunity of dealing with any matters raised against them'.
[27] Ibid 568.
[28] Cf, the traditional standard from Russell v Duke of Norfolk [1949] 1 All ER 109, 118 (Tucker LJ) that 'the person concerned should have a reasonable opportunity of presenting his case'.
[29] The adverse internal remark seized on by the High Court in Kioa was not reiterated by the decision-maker in the statement of reasons. This aspect of the case has been followed in other cases (eg, see Conyngham, below n 35), even to the point that an express disavowal by the decision-maker of any reliance on a prejudicial remark will not eliminate the natural justice obligation to disclose that remark: see NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40.
[30] [1985] HCA 81; (1985) 159 CLR 550, 588.
[31] Ibid 633.
[32] Ibid 629.
[33] For example, Minister for Immigration and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77; Singthong v Minister for Immigration and Ethnic Affairs (1989) 18 FCR 486; and Conyngham, below n 35.
[34] (1989) 86 ALR 435, 447; aff'd [1990] FCA 169; (1990) 23 FCR 162.
[35] (1986) 68 ALR 423; rev'd but not on this point [1986] FCA 289; (1986) 11 FCR 528.
[36] Ibid 432.
[37] For example, in Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 the Full Court held by majority that a comment that a person had entered Australia by 'subterfuge' was a 'view or evaluation of the material' the applicant put forward, and did not have to be disclosed (ibid 506); cf Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 102 ALR 339, 348.
[38] [1990] HCA 22; (1990) 169 CLR 648 ('Haoucher').
[39] Haoucher contrasts interestingly with the decision three years earlier in South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, in which the Court ruled 4:1 that the Governor was not required to provide a hearing to O'Shea before rejecting a parole recommendation for his prison release.
[40] Migration Reform Act 1992 (Cth). The new scheme commenced operation on 1 September 1994. There was a further elaboration of the code applying to tribunals, especially concerning the information and hearing rights of applicants (ss 359–359C, 424–424C), by the Migration Legislation Amendment Act (No 1) 1998 (Cth), that commenced operating in 1999.
[41] The IRT had been established earlier in 1989 and became the MRT in 1999; the RRT was established in 1993.
[42] Migration Act 1958 (Cth) ss 52-64 (the Department), Parts 5 and 7 (tribunals).
[43] Section 69(1) further provided that a breach of the code would not cause the decision to be invalid, but liable only to be set aside on review by a tribunal.
[44] Explanatory Memorandum, Migration Reform Bill (Cth) 1992 [25]; see also [51], stating that the Bill aims to 'replace the uncodified principles of natural justice with clear and fixed procedures which are drawn from those principles'.
[45] [2000] HCA 57; (2000) 204 CLR 82.
[46] Ibid 119 [92], 146 [187].
[47] See [2000] HCA 57; (2000) 204 CLR 82, 88–9 [4] (Gleeson CJ); 116–17 [80] (Gaudron and Gummow JJ), 154–5 [211] (Callinan J).
[48] South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378, 389 (Mason CJ); see also Calvin v Carr (1979) 22 ALR 417.
[49] Mr Aala's application was rejected by the Tribunal for a third time, but that finding was reversed by the Full Court: Aala v Minister for Immigration and Multicultural Affairs [2002] FCAFC 204.
[50] Section 425 was noted at [2000] HCA 57; (2000) 204 CLR 82, 110 [61] (Gaudron and Gummow JJ) and 156 [217] (Callinan J). Subsequent amendment of the Migration Act 1958 (Cth) changed the wording of s 424 (a person shall be given an opportunity 'to give evidence and present arguments relating to the issues arising in relation to the decision under review'), and added other requirements to the hearing code—see s 424 ('Tribunal may seek additional information'), s 424A ('Applicant must be given certain information'), and s 424B ('Invitation to give additional information or comments').
[51] The issue of delay as such was addressed: [2000] HCA 57; (2000) 204 CLR 82, 117 [82] (Gaudron and Gummow JJ); 156 [217] (Callinan J).
[52] (2001) 179 ALR 238 ('Miah').
[53] Gaudron, McHugh and Kirby JJ; Gleeson CJ and Hayne JJ dissenting.
[54] For example, see the description of the material to be disclosed—by Gaudron J (2001) 179 ALR 238, 260 [99] 'to meet the case that is put against him or her'; 269 [140] (McHugh J) 'relevant matters adverse to his or her interests that the repository of the power proposes to take into account'; and 285 [191] (Kirby J) 'adverse information that is credible, relevant and significant to the decision to be made'.
[55] Discussed at (2001) 179 ALR 238, 260 [96] (Gaudron J, who regarded this point as 'irrelevant'), 273 [146] (McHugh J), 281–4 [178]–[188] (Kirby J).
[56] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419.
[57] Cf earlier cases in which more significance was attributed to the existence of such a right of appeal—eg, Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106; and Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234.
[58] For example, removal of complexity, cost and delay were among the reasons for ending in 1999 the two-stage process for review of migration decisions, by the abolition of the Migration Internal Review Office and its merger with the IRT to form the MRT.
[59] Above n 43.
[60] (2001) 179 ALR 238, 262 [103]–[104] (Gaudron J), 270 [144] (McHugh J), 289–90 [203]–[209] (Kirby J).
[61] See Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), introducing ss 51A, 97A, 118A, 127A, 357A, 422B.
[62] For example, see Crock, above n 16; and the articles in a special issue, 'The Refugee Issue' [2000] UNSWLawJl 51; (2000) 23 University of NSW Law Journal 1–318.
[63] This includes cases in which the Minister withdraws as well as those (consistently less than 10%) in which the Court has declared the decision under review to be invalid: see references above n 8.
[64] Lindgren, above n 8, 399–401; and Justice R D Nicholson, 'Administrative Issues in Refugee Law' (2001) 28 AIAL Forum 40.
[65] See Migration Act 1958 (Cth) s 36, incorporating the 1951 Convention Relating to the Status of Refugees.
[66] John McMillan, 'Federal Court v Minister for Immigration' [1999] AIAdminLawF 8; (1999) 22 AIAL Forum 1.
[67] For example, Justice Ronald Sackville, 'Judicial Review of Migration Decisions: An Institution in Peril?' [2000] UNSWLawJl 59; (2000) 23 University of NSW Law Journal 190; Justice J R F Lehane, 'Aspects of Judicial Review' (1999) 11 Law and Policy Papers; Justice R S French, 'Judicial Review Rights' (2001) 28 AIAL Forum 30.
[68] Indeed, on one view the High Court in Kioa was realigning its own jurisprudence to conform to a trend that had by then developed in the jurisprudence of courts and tribunals.
[69] See, eg, the view in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 421 (Bowen CJ and Deane J) that government policy was simply 'a relevant factor' and that a tribunal should make 'an independent assessment' of 'the propriety of the particular policy'. Generally, see Lindsay Curtis, 'Crossing the Frontier Between Law and Administration' (1989) 58 Canberra Bulletin of Public Administration 55; Jennifer M Sharpe, The Administrative Appeals Tribunal and Policy Review (1986); and John McMillan, 'Review of Government Policy by Administrative Tribunals' (1998) 9 Law and Policy Papers 30-41.
[70] Generally, see Robin Creyke and Patrick Keyzer (eds), The Brennan Legacy: Blowing the Winds of Legal Orthodoxy (2002).
[71] For example, Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33, aff'd (1980) 4 ALD 139; Vincenzo Barbaro v Minister for Immigration and Ethnic Affairs (1982) 6 ALD 24; and see Roderick Campbell, 'Crime as a Family Business', The Canberra Times (Canberra), 16 December 1995.
[72] [1983] FCA 160; (1983) 67 FLR 164.
[73] [1989] FCA 518; (1989) 91 ALR 39
[74] See Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 230.
[75] [1993] FCA 503; (1993) 45 FCR 515.
[76] See Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39 (1995) Appendix B, 'Review Tribunals—Background'; and Philip Ruddock, 'Refugee Claims and Australian Migration Law: A Ministerial Perspective' [2000] UNSWLawJl 51; (2000) 23 University of New South Wales Law Journal 1; Crock, above n 16, chs 3, 7.
[77] Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71; Eshetu v Minister for Immigration and Ethnic Affairs [1997] FCA 19; (1997) 46 ALD 203. Generally, see the cases discussed in McMillan, above n 66, notes 84–96; John McMillan, 'Commentary: Recent Developments in Refugee Law' (2000) 26 AIAL Forum 26.
[78] For example, Surinakova v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 596; (1991) 33 FCR 87; Evan Arthur, 'The Impact of Administrative Law on Humanitarian Decision-Making' (1991) 66 Canberra Bulletin of Public Administration 90; and Crock, above n 16, 132–4.
[79] For example, the grounds of review remaining in the Migration Act s 476 included breach of statutory procedures, unauthorised decision, error of law, and unauthorised purpose. The excluded grounds were breach of natural justice (except actual bias) and Wednesbury unreasonableness. Other grounds (relevant and irrelevant considerations, improper exercise of power, and abuse of power) were removed as free-standing grounds but could, for example, be raised as an aspect of unauthorised decision or error of law.
[80] An informal survey I undertook of all decisions reported in December 2000 revealed that the central claim in just on 50% of cases was that the RRT had not properly complied with the obligation under s 430 of the Act to prepare a statement of reasons. Admittedly, an error of that kind can reveal misapprehension of the statutory test to be applied—eg, Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 160 ALR 24.
[81] (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[82] [1997] HCA 22; (1997) 191 CLR 559.
[83] [1999] HCA 21; (1999) 197 CLR 611.
[85] [2001] HCA 30; (2001) 180 ALR 1; see Stephen Rebikoff, 'Minister for Immigration and Multicultural Affairs v Yusuf: One Door Closed, Another Opened' (2001) 29 Federal Law Review 453.
[86] [2002] HCA 32. For a discussion of the conflicting Federal Court cases on no evidence, see John Basten, 'Judicial Review: Recent Trends' (2001) 29 Federal Law Review 365, 384-9.
[87] [2002] HCA 32, [42].
[88] For example, Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, Minister for Immigration and Multicultural Affairs v Bethkoshabeh [1999] FCA 980, Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234, Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946; (1999) 92 FCR 315, Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411; Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832; see also the cases cited below n 160.
[89] Migration Legislation Amendment (Judicial Review) Bill (No 5) 1997, which was the subject of two reports by the Senate Legal and Constitutional Legislation Committee in 1997 and 1998.
[90] Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).
[91] For example, Aronson and Dyer, above n 25, 691 ff.
[92] [1945] HCA 53; (1945) 70 CLR 598.
[93] [1945] HCA 53; (1945) 70 CLR 598, 615. See also R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208, 248 (Dixon J), noting that a privative clause will fail to protect a transgression of 'imperative duties or inviolable limitations or restraints' imposed by legislation.
[94] NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 539 [7] (Gyles J).
[95] Awan v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 594; see also Wang v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 167.
[96] SBBK v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 565; Boakye-Danquah v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 438; Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498.
[97] SBAN v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 591, and SAAG v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 547.
[98] Cf Walton v Ruddock [2001] FCA 1839, NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263, and Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311.
[99] Editor's note: see now NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.
[100] (1989) 169 CLR 379 discussed in Crock, above n 16, 134-8.
[101] Other recent examples of landmark decisions on controversial aspects of immigration law are Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293, and Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14.
[102] For example, see the Migration Legislation Amendment Act (No 6) 2001 (Cth), amending the criteria for a protection visa in s 36 of the Act by inserting ss 91R-91U.
[103] [2002] FCA 263, [56].
[104] See Robin Creyke and John McMillan (eds), The Kerr Vision of Australian Administrative Law – At the Twenty-Five Year Mark (1998).
[105] Robin Creyke and John McMillan, 'Executive Perceptions of Administrative Law—An Empirical Study' (2002) Australian Journal of Administrative Law.
[106] The Migration Reform Act 1992 (Cth) was enacted under a Labor Government, and the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) under a Coalition Government. The similar criticisms of judicial review by Labor and Coalition Ministers for Immigration are reported in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Report on the Migration Legislation Amendment (Judicial Review) Bill 1998 (1999) ch 1.
[107] Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Consideration of Legislation Referred to the Committee: Migration Legislation Amendment Bill (Nos 4 and 5) 1997 (1997) [2.12]; see also the report of the Committee the following year on the Migration Amendment Legislation (Judicial Review) Bill 1998 [2.2]–[2.5]. The wider consequences where there is executive antipathy to administrative law developments is discussed in Robin Creyke, 'Sunset for the Administrative Law Industry?' in John McMillan (ed), Administrative Law Under a Coalition Government (1998) 20, and Michael Sassella, 'Commentary' in John McMillan (ed), Administrative Law Under a Coalition Government (1998) 65.
[108] For example, Re Minister for Immigration and Ethnic Affairs; Ex parte Miah (2001) 179 ALR 238 [146], [186]; W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 [16]; Mary Crock, 'A Sanctuary under Review: Where to from here for Australia's Refugee and Humanitarian Program' [2000] UNSWLawJl 62; (2000) 23 University of New South Wales Law Journal 246, 286.
[109] Generally, see Adrienne Millbank, 'The Problem with the 1951 Refugee Convention' (Research Paper 5 2000-2001, Commonwealth Parliamentary Library, 2000); and Ruddock, above n 76.
[110] Administrative Appeals Tribunal Act 1975 (Cth) s 44.
[111] (2001) 179 ALR 238, 274 [146].
[112] Migration Act 1958 (Cth) ss 72–76; as to detention, see ss 176–178, 189–191.
[113] (2001) 179 ALR 238, 284 [185].
[114] For example, customs anti-dumping bears an evidentiary similarity to refugee determination in the sense that a decision whether to impose an anti-dumping duty on a foreign-manufactured good can through practical necessity be based an assortment of facts or assumptions that may be incomplete, one-sided or debatable. Yet the case law on judicial review of customs anti-dumping decisions seems less to be a 'rigorous examination' or 'hard look' approach to judicial review: eg, Re Hayes; Ex parte J Wattie Canneries Ltd (1986) 70 ALR 65; Enichem Anic Srl v Anti-Dumping Authority [1992] FCA 579; (1992) 111 ALR 178; Hyster Australia Pty Ltd v Anti-Dumping Authority (1993) 112 ALR 582.
[115] For example, while a more deferential approach is taken generally in judicial review of commercial regulation (eg, Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469, 498–9), in some instances judicial review standards have been applied as rigorously as in immigration decision-making (eg, NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40). See also Health Insurance Commission v Grey [2002] FCAFC 130, which contains a summary of the competing strands in the case law on judicial review of decisions made about medical over-servicing or inappropriate practice.
[116] The expression used in s 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
[117] For example, it was common in academic texts not to give separate consideration to this ground but to have a combined discussion of relevant/irrelevant considerations: eg, S D Hotop, Principles of Australian Administrative Law (6th ed, 1985) 225; Mark Aronson and Nicola Franklin, Review of Administrative Action (1987) 31. The older cases stressed that failure of a tribunal to refer to a matter did not of itself constitute a failure to consider it: Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, 679-80; Harrison v Manfield [1953] VicLawRp 60; (1953) VLR 399, 404.
[118] This observation is based on (unpublished) empirical research undertaken with two colleagues (Professors Creyke and Pearce) that analysed all successful ADJR applications between 1984–94. Error of law was raised in 142 cases and upheld in 60; failure to consider relevant matters was raised in 139 and upheld in 49; breach of natural justice was raised in 111 and upheld in 38. The figures were much lower for other grounds.
[119] See Sir Anthony Mason, 'The Scope of Judicial Review' [2001] AIAdminLawF 17; (2002) 31 AIAL Forum 21.
[120] Examples of inexact principles that are potentially relevant to government decision-making include: the 1951 Convention Relating to the Status of Refugees opened for signature 28 July 1951 189 UNTS 137 (entered into force 22 April 1954): 'A refugee shall have free access to the courts of law' (art 16); the International Covenant on Civil and Political Rights opened for signature 19 December 1966 999 UnTS 171 (entered into force 23 March 1976): 'All persons shall be equal before the courts and tribunals' (art 14), and 'Everyone shall have the right to recognition everywhere as a person before the law' (art 16); and the Convention on the Rights of the Child opened for signature 20 November 1989 1577 UnTS 3 (entered into force 2 September 1990): 'In all actions concerning children ... the best interests of the child shall be a primary consideration' (art 3).
[121] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J).
[122] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355 (Mason CJ).
[123] Eg, Randall v Northcote Corporation (1910) 11 CLR 100; Green v Daniels [1977] HCA 18; (1977) 13 ALR 1; Johnson v Federal Commissioner of Taxation (1986) 11 FCR 351, 354 (Toohey J).
[124] See John McMillan, 'Recent Themes in Judicial Review of Federal Executive Action' (1996) 24 Federal Law Review 347, 377–85.
[125] [1947] EWCA Civ 1; [1948] 1 KB 223, 228.
[126] [1986] HCA 40; (1986) 162 CLR 24, 39 ('Peko-Wallsend'). See also Shrimpton v Commonwealth [1945] HCA 4; (1945) 69 CLR 613, 620.
[127] [1981] FCA 191; (1981) 38 ALR 363, 375 ('Sean Investments').
[128] [1986] HCA 40; (1986) 162 CLR 24, 65.
[129] Ibid 66 (Deane J agreeing).
[130] Ibid 31.
[131] Ibid 46 (Dawson J agreeing).
[132] Ibid 37-8.
[133] For example, FAI Insurances Ltd v Winneke (1982) 151 CLR 342.
[134] [1995] FCAFC 1726; (1995) 57 FCR 451.
[135] [1996] FCA 1509; (1996) 67 FCR 40.
[136] [1996] FCA 1150; (1996) 71 FCR 265.
[137] [1986] HCA 40; (1986) 162 CLR 24, 44-5 (Mason J). See also X v Minister for Immigration and Multicultural Affairs [2002] FCA 56 [17]-[19].
[139] The decision was also set aside by a majority of the Court on a constitutional ground, namely that Mr Taylor as a British citizen who had been in Australia for over thirty years was not an 'alien' under Constitution s 51(19) liable to deportation.
[140] (2001) 182 ALR 657, 675–6 [77]–[84] (Gaudron J); and 242–4 [330]–[338] (Kirby J). Kirby J in fact went further and held that the definition of 'national interest' proffered to the Minister was erroneous.
[141] Ibid 676 [1] (Gleeson CJ); 676 [83] (Gaudron J); 677 [87] (McHugh J);704–5 [193]–[196] (Gummow and Hayne JJ). See also Johnson v Williams [2000] FCA 3; (2000) 58 ALD 1, holding that a decision by the Attorney-General to request the extradition of an offender from Britain was invalid by reason that one paragraph in the briefing paper misstated the possible legal action that could ensue in Australia.
[142] (2001) 182 ALR 657, 704 [191]. The key issue in the legislation was whether a hearing should be given to Mr Taylor either before or after the decision. Under the statutory path chosen by the Minister, no such hearing had to be given after the decision. Because of the course of the litigation, Mr Taylor was effectively given an opportunity before the decision as well to make his views known (743 [333]).
[143] The 'error in the briefing paper' cases are not always classified as a failure to consider relevant matters, but can interchangeably be considered as an irrelevant consideration, a failure to apply the correct test, or jurisdictional error. Either way, the issue is essentially the same.
[144] [1988] FCA 400; (1988) 20 FCR 65.
[146] For example, see Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514; (2001) 65 ALD 667; Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648; (2001) 184 ALR 401; Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897; (2001) 113 FCR 268. Contra, see Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822; Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854. See also the suggestion by Kirby J in Re Patterson; Ex parte Taylor [2001] HCA 51 [347] that it was close to a 'borderline' error for a Departmental briefing paper to inform the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs of the Minister's preferred outcome.
[147] [1998] FCA 1549; (1998) 89 FCR 478.
[148] [1963] HCA 54; (1963) 109 CLR 467, 473 (McTiernan and Windeyer JJ concurring).
[149] Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505 (Dixon J); and Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 (Mason J).
[150] Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419, 429 (Beaumont and Gummow JJ).
[151] Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291, 292 (Gummow J); see also Brelin v Minister for Immigration and Ethnic Affairs [1987] FCA (Unreported, Wilcox J) 14 May 1987) [13] 'proper and adequate consideration'.
[152] Minister for Immigration and Ethnic Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426, 442; see also Bruce v Cole (1998) 45 NSWLR 163, 185.
[154] (1988) 20 FCR 1, 15. See also Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, 262 [105]: 'the words "have regard to", in their ordinary meaning, require something more than the mere noting of the information in question'.
[155] Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77, 80 (Davies, Burchett and Lee JJ). See also Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284; Chumbairux v Minister for Immigration and Ethnic Affairs (1987) 74 ALR 480; Singh v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 596; (1991) 33 FCR 87; Sacharowitz v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 2; (1992) 33 FCR 480; Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (1993) 34 ALD 169.
[156] Lek v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 493; (1993) 45 FCR 418, 435 (Wilcox J).
[157] Migration Act 1958 (Cth) s 68 (Migration Review Tribunal), s 430 (Refugee Review Tribunal).
[158] For example, Logenthiran v Minister for Immigration and Multicultural Affairs (1998) 56 ALD 639; Thevandram v Minister for Immigration and Multicultural Affairs [1999] FCA 182.
[159] [2001] HCA 30; (2001) 180 ALR 1. See also the decision of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469.
[160] For example, a reviewable error is not established merely by showing the reasons contained—illogical reasoning or reached findings unsupported by probative evidence (Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411); a non-sequitur or a lack of rational process (Minister for Immigration and Multicultural Affairs v Perera [2001] FCA 1212; (2001) 183 ALR 204); an illogical finding of fact or reasoning (Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426); a conclusion of fact that is demonstrably unsound or reached by a faulty process (Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744; (2001) 65 ALD 141); or an unreasonable finding of fact (Brakni v Minister for Immigration and Multicultural Affairs [2001] FCA 48).
[161] For example, Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368; Tedella v Minister for Immigration and Multicultural Affairs [2000] FCA 1643.
[162] Minister for Immigration and Ethnic Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426.
[163] W321/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 210 [30] (Lee J). See also Abedi v Minister for Immigration and Multicultural Affairs [2001] FCA 1430 (a tribunal cannot exclude probative material from consideration without explaining why it is doing so); and W68/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 148; W195/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 396; W250/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 400.
[164] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.
[165] Perez v Minister for Immigration and Multicultural Affairs [2002] FCA 450 [118] (Allsop J).
[166] (1987) 17 FCR 19. For other examples, see Baker v Australian Telecommunications Commission (1987) 75 ALR 504; Alexandra Private Geriatric Hospital Pty Ltd v Blewett [1985] FCA 242; (1985) 7 FCR 341; C v T (1995) 58 FCR 1; Tasmanian Conservation Trust Inc v Minister for Resources [1995] FCA 1035; (1995) 55 FCR 516.
[167] [2000] NSWCA 88; (2000) 111 LGERA 181. See also Parramatta City Council v Hale (1982) 47 LGRA 319; King v Great Lakes Shire Council (1986) 58 LGRA 336; Currey v Sutherland Shire Council (1998) 100 LGERA 365.
[168] [2000] NSWCA 88; (2000) 111 LGERA 181, 201.
[169] Ibid 186.
[170] Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106.
[171] Tobacco Institute of Australia Ltd v National Health and Medical Research Council [1996] FCA 1150; (1996) 71 FCR 265 discussed above.
[172] M Gleeson, 'Courts and the Rule of Law' (Paper presented to the Rule of Law Series, Melbourne University, 7 November 2001).
[173] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, discussed above.
[174] Re Minister for Immigration and Ethnic Affairs; Ex parte Miah (2001) 179 ALR 238, discussed above.
[176] FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Public Service Board of NSW v Osmond (1986) 159 CLR 656; Conyngham v Minister for Immigration and Ethnic Affairs [1986] FCA 289; (1986) 68 ALR 441; South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378; Peko-Wallsend (1987) 15 FCR 274; Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Attorney-General (NSW) v Quin (1989) 170 CLR 1; Haoucher [1990] HCA 22; (1990) 169 CLR 648; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596; Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421.
[177] Justice McHugh, 'Tensions between the Executive and the Judiciary' (Address to the Australian Bar Association Conference, Paris, 10 July 2002).
[178] For example, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 169 ALR 400; and Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (Gummow J). Admittedly this trend of reviving traditional standards has been exacerbated by the legislative enactment of a privative clause to regulate litigation under the Migration Act.
[179] [2001] FCA 1835 (Allsop J).
[180] The administrative process is regarded usually as a continuum (eg, Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329, 333), in which decision-making powers can be exercised from time to time as circumstances require, and decisions can be made, reviewed and—unless a decision has the quality of finality—be remade. Consequently, a decision-maker cannot generally be estopped from acting inconsistently with an earlier finding of fact, representation or undertaking (Attorney-General (NSW) v Quin (1990) 170 CLR 1). Furthermore, administrators are not bound by the rules of evidence, and are generally free to consider any information or evidence of probative force. Further, as discussed in n 29 above, natural justice doctrine can require the disclosure of any information known to a decision-maker on the assumption that it is capable of affecting the decision.
[181] For example, how does the rule proposed in White v Overland apply in the context of a decision being reviewed by an Ombudsman or a merit review tribunal, or in a multi-party contest before a court in which a third party to the privileged communication seeks to emphasise its relevance to the decision under challenge?
[182] Cf Murray Gleeson, 'Global Influences on the Australian Judiciary' (Address to the Australian Bar Association Conference, Paris, 8 July 2002); J J Spigelman, 'Access to Justice and Human Rights Treaties' (Address to the National Conference of the Plaintiff Lawyers Association, 22 October 1999); Justice Michael Kirby, 'Global Moves to Legal Protection of Human Rights' (Address to ICJ/CIJL and CAJ Seminar, Belfast, 8-9 June 1999).
[183] This issue is developed at greater length in John McMillan, 'Parliament and Administrative Law' in G Lindell and R Bennett (eds), Parliament: The Vision in Hindsight (2001) 340-50.
[184] For example, David Dyzenhaus, 'Reuniting the Brain: The Democratic Basis of Judicial Review' (1998) 9 Public Law Review 98; Michael Kirby, 'The Role of International Standards in Australian Courts' in Philip Alston and Madelaine Chiam (eds), Treaty-Making in Australia: Globalisation versus Sovereignty (1995) 89. See also Sir Anthony Mason, 'Future Directions in Australian Law' [1987] MonashULawRw 6; (1987) 13 Monash University Law Review 149; Sir Gerard Brennan, 'Courts, Democracy and the Law' (1991) 65 Australian Law Journal 40; J J Spigelman, 'Rule of Law—Human Rights Protection' (1999) 18 Australian Bar Review 29. Cf, J J Doyle, 'Common Law Rights and Democratic Rights' in P D Finn (ed), Essays on Law and Government: Principles and Values (1995) 144.