Judicial review's remedies

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This article is a topic within the subject Administrative Law.

Contents

Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [16.1.1-12]; [16.2.1-6]; [16.2.10C-18]; [16.3.1-4]; [16.4.1-6]; [16.4.11-13]; [16.6.1-5]; [16.6.7C-9]; [16.7.1-4C]; [16.7.7C-9]; [16.8.1-9].

Study Guide, pp 51-3: Extract from Edwards v Santos Ltd (2011) 85 ALJR 464.

s 16 of the ADJR Act(available on Blackboard);

And note the following book chapter extracted in the Study Guide pp 54-62: Stephen Gageler, 'Administrative Law Judicial Remedies' in Groves and Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 368.

The prerogative/constitutional writs

The three types of remedies used in judicial review of administrative action are:

- The prerogative writs of certiorari, prohibition , mandamus and habeas corpus (constitutional remedies under s 75(v)).
- The equitable remedies of injunction and declaration
- The statutory remedies available under the ADJR Act

The term ‘prerogative writ’ has fallen out of favour and the preferred term held in Aala,[1] is now ‘constitutional writ.’

  • Following the fusion of equity and common law jurisdiction, a court can choose to grant an equitable remedy in addition or instead of a prerogative writ.
  • Declaration is the most commonly used writ because of its flexibility and the general preparedness of government agencies to abide by a declaration.
  • Equitable remedies have some technical advantages:
  • They can be used without differentiation in public and private law matters.
  • The time limits for applying them are less strict.
  • The time limit for applying certiorari is six months, the time limit for mandamus is two months and there is no time limit for prohibition because of the time limited nature of the writ.
  • In other situations it is necessary or desirable to use prerogative writs rather than equitable ones:
  • When it is necessary to formally quash a decision by certiorari, such as a decision revoking a licence, imposing a sanction or granting a contested interest to another person.
  • The standing requirements are in some respects more liberal.

Aala[2]

Facts: Mr Aala contended that he had been denied natural justice by the Refugee Review Tribunal. He commenced proceedings in the High Court (at that time the Federal Court could not grant relief on for breach of natural justice under the Migration Act). The High Court upheld the claim and granted prohibition to restrain the minister from acting on the tribunal’s decision, certiorari to quash the tribunal’s decision and mandamus to require the tribunal to reconsider the case.
Issue: preference for term ‘constitutional writs’.
Held: The term ‘prerogative writ’ is inapt because it does not describe the special significance of the writs by reason of their constitutional use and context, which is not constrained by the same principles applying to a prerogative writ in the English sense.

Certiorari

[3]Certiorari enables a superior court to quash a decision on the ground of jurisdictional error, breach of natural justice or error on the face of the record.

  • The writ was originally directed at an inferior court or tribunal, requiring it to certify its official record so that it could scrutinised for legal error.
  • It has been suggested that the requirement that the decision-maker has a duty to act judicially is no longer necessary to issue the writ, instead the critical issue is whether the relevant decision-maker is exercising public power, relevantly, a statutory power.
  • Certiorari does not issue against a Supreme Court but the High Court can grant it against the Federal Court or Family Court because those judges are ‘officers of the Commonwealth’ for the purposes of s 75(v) of the Constitution.
  • It does not issue against a governor, a magistrate exercising powers in a committal proceeding, or an industrial tribunal making an arbitral award but does against ministers and other executive officers.
  • The remedy is not listed under s 75(v) and can therefore be ousted by a privative clause.
  • The court issues certiorari as an ancillary remedy and therefore will only grant it if entitlement to another constitutional remedy has been established.
  • Certiorari can only quash a decision that has a “discernible or apparent legal effect upon rights” (that is, something that can be quashed) (Hot Holdings)[4]
  • The remedy may be refused in relation to a report or preliminary decision/step if there is a more convenient and satisfactory alternative remedy or process.
  • In Ainsworth[5] the commission had submitted a report to a parliamentary committee, advising that the Ainsworth group of companies not be permitted to participate in the gaming machine industry in Queensland. The High Court held that the commission, in issuing a report that damaged the business reputation of the companies, had failed to observe the requirements of natural justice. Certiorari was refused on the basis that the report had no legal effect, instead the court made a declaration that there had been a breach of natural justice.

Craig [6]

Facts: Mr Craig was charged in the District Court of SA with three offences involving a motor vehicle. Applying Dietrich v R, the trial judge ordered that the trial be stayed until legal representation was made available to him. The State applied to the Supreme Court for an order of certiorari to quash the order of the District Court. The High Court held that an error (if any) by the District Court could not be quashed by certiorari, because any such error was neither a jurisdictional error nor an error on the face of the record.
Issue: The “record.”
Held: The record should be construed narrowly, and should not necessarily include the reasons for the decision given by an inferior court.

Hot Holdings [7]

Facts: The Minister had a statutory discretion to grant or refuse an application for an exploration licence or a mining lease. Before making a decision, the minister was to receive a report from the mining warden, containing a recommendation. An issue to be addressed in the warden’s report was, in the event that there were multiple applications, which application had ‘priority’ by reason of being the first to lodge an application. If the warden was satisfied that two or more application were made ‘at the same time’, a ballot was to be held by the warden to decide who had priority. Eight applications were lodged within 51 seconds of each other and the warden decided to hold a ballot. Before the ballot was held and the report prepared, one of the applicants commenced proceedings seeking certiorari to quash the decision of the warden to hold a ballot.
Issue: Certiorari to quash a preliminary step or report.
Held: The High Court held that certiorari could issue to quash such a decision. “For certiorari to issue it must be possible to identify a decision which has a discernible or apparent legal effect upon rights.”
  • Ainsworth held that the preliminary report or recommendation must operate in this situation as a “precondition or bar to a course of action” or “as a step in a process capable of altering rights, interests or liabilities”.
  • In this case, the legislature had provided no other means for the minister to be informed of matters specific to the individual applicants, other than through the report. Therefore, the report had a discernible legal effect.

Kirk [8]

Facts: Mr Kirk and his company sought orders in the nature of certiorari to quash their conviction for breaching occupational health and safety legislation. The High Court considered whether the errors that were allegedly made by the Industrial Court appeared ‘on the face of the record’ or, in any event, were jurisdictional errors.
Issue: What constitutes the record? Is the error jurisdictional anyway?
Held: There is a well-established rule that reasons do not form part of the record. At least in some cases, the failure to give reasons may constitute a failure to exercise jurisdiction. In this case, the error fell under both categories.

Prohibition

[9] Prohibition is granted by a superior court to restrain a body from exceeding its powers or usurping a jurisdiction that it does not have. The grounds on which the writ commonly issues are want or excess of jurisdiction, breach of natural justice and fraud.

  • The law surrounding the remedy has mostly developed in tandem with the law relating to certiorari, since they are directed to the same bodies, for much the same reasons, but usually at different stages of a matter.
  • There is sometimes an area of overlap, where either remedy would be appropriate. The continuing operation of a decision can provide a reason for prohibition to issue.
  • The issue will be whether there is a jurisdictional error, and if so, whether relief should be granted to the applicant.
  • Prohibition is not restricted by the requirement that a decision have an apparent or discernible legal effect.

Mandamus

[10]Mandamus is granted by a superior court to command the fulfilment of a duty of a public nature that remains unperformed and for which no other specific legal remedy is available.

  • It is sometimes sought in conjunction with another remedy, especially certiorari to quash a decision and mandamus to order a decision to be made afresh.
  • Mandamus may be granted alone if a decision-maker has wrongly declined to perform a duty or an earlier decision is a nullity.
  • The central issue is whether there is a public duty that remains unperformed, which can arise when:
  • The legislation imposes a non-discretionary duty that is to be performed once certain facts are established.
  • A decision involving a discretionary element has been erroneously made.
  • To compel a court to either to exercise a jurisdiction that the court has declined to exercise, or to compel a court to exercise the jurisdiction differently (for example, to observe natural justice or construe a legal provision differently).
  • The existence of a public duty is in dispute. Mandamus will not enforce a duty of a private nature such as a contractual obligation.
  • Mandamus will not issue where a decision-maker who has acted erroneously in exercising a statutory power is under no duty to exercise that power.

Sinclair v Mining Warden at Maryborough[11]

Facts: A mining warden conducting an inquiry into whether to approve an application on Fraser Island, declined to hear an objection lodged by the Fraser Island Defence Organisation (FIDO), taking the view that it represented a sectional interest and accordingly did not come within a provision stating that a mining application was to be rejected if in the warden’s view the public interest would be prejudicially affected.
Issue: Public versus private obligations.
Held: The matters raised by FIDO were of general public interest and High Court held that there was a constructive failure of jurisdiction by the warden and issued mandamus to require the warden to rehear the application.

Injunction

[12]An injunction is an order or decree made by a court, in its equitable jurisdiction, requiring a party to either do a particular thing (a mandatory injunction) or to refrain from doing a particular thing (a prohibitory injunction). The injunction is both a private and public law remedy.

  • It can be granted either in an interlocutory (interim) or perpetual form.
  • As an interlocutory order, it can be sought urgently, ex parte and in chambers, to maintain the status quo pending a final determination of the substantive issues in dispute.
  • A condition commonly attached to the grant of an interlocutory order is that the applicant give an undertaking as to damages for foreseeable loss caused by the grant of the injunction.
  • An injunction is a coercive remedy. A person in breach can be gaoled for contempt of court.
  • This is an influential restraint on the discretion to issue the remedy. Generally it will not issue if there is an alternative remedy.
  • It is a flexible remedy that can be moulded to fit the exigencies of the particular case.
  • Interlocutory injunctions are frequently sought, but frequently refused, to restrain the broadcast or publication of material that is potentially defamatory.
  • In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[13] the High Court refused an injunction to restrain the broadcast of a television program alleging animal cruelty, for the reason that the only legal right to which the applicants could point was the right to institute defamation proceedings after the broadcast.
  • In Australian Broadcasting Corporation v O’Neill,[14] an interlocutory injunction was refused to prevent the broadcast of a film suggesting that the applicant may have murdered the three Beaumont children. The view of the court favoured free speech.

Bateman’s Bay Local Aboriginal Land Council v the Aboriginal Community Benefit Fund Pty Ltd [15]

Facts: The Aboriginal Land Council established a funeral benefit fund in competition to a similar fund operated by the ACBF, which was a private company. At trial, the Supreme Court held that the Land Council lacked the authority to establish such a fund. On appeal, the High Court held that the potential economic detriment to ACBF gave it standing to seek equitable relief to restrain unlawful action by the Land Council.
Issue: Standing to seek equitable relief.
Held: “The public interest may be vindicated by a party with sufficient material interest in the subject-matter... this criterion is to be construed as an enabling, not restrictive, procedural stipulation.”

Declaration

[16]A declaration is a conclusive statement by a court of the pre-existing rights of the parties.

  • The remedy is not coercive but a matter determined by declaration becomes res judicata, that is, it is not able to be relitigated between the same parties.
  • In public law proceedings, it can be expected that a government officer or agency will abide by the declaration of a court.
  • A person applying for declaration must have standing to seek equitable relief ant there must be actual and not a hypothetical issue to be resolved.
  • A legal controversy must emerge. Warning letters to a person subject to a supervisory order that were written in a disagreeable tone did not attract declaratory relief as no sanction was yet involved.
  • A court must heed the legality/merits distinction and not usurp the authority of the decision-maker.
  • A declaration can be useful when there is a legal right to be vindicated but justice is not obtainable.
  • In Ainsworth[17] the court granted a declaration that the Criminal Justice Commission had failed to observe natural justice in preparing a report that, because it was advisory in nature, could not be quashed by certiorari.

Dyson v Attorney-General

Facts: Mr Dyson sought a declaration that it was unlawful for a government agency to impose an obligation upon him and eight million other taxpayers to complete a form, failure to submit it was a criminal offence.
Issue: Equitable standing.
Held: The plaintiff has an obvious interest because he is required to complete burdensome and expensive inquiries and is threatened with fines for non-compliance. The court dismissed an argument that this precedent would open the floodgates to litigation on the basis that declaratory orders are discretionary and the court can dismiss vexatious litigation.

Remedies under the ADJR Act

[18] ADJR Act s 16 matches the powers exercisable by a court exercising common law or equitable jurisdiction; it conferred a general power on the Federal Court to provide appropriate relief.

  • The courts have a power to make an order in respect of reviewable conduct (s 16(2)) and failure to make a decision (ss 7, 16(3)).
  • Under ss 15 and 15A, the courts have power to suspend the operation of a decision that is being challenged.
  • The courts have generally stressed that s 16 is to be construed liberally, and is not to be confined by limitation inherent in the prerogative writs.
  • General law principles on the scope of judicial review provide the starting point in applying s 16.
  • The court can set aside the decision from the date it sees fit (s 16(1)(a)).

Conyngham [19]

Facts: The minister had declined to approve an application by Mr Conyngham. On appeal, the Full Federal Court held that the trial judge had erred in concluding that the minister was obliged by non-statutory guidelines to grant the application and in making an order under s 16 compelling the minister to approve the application.
Issue: Liberal construction.
Held: S 16 gives the courts powers which are at least as extensive as common law powers. The discretion to decide still remained with the minister and was not removed by s 16.

Park Oh Ho [20]

Facts: The applicants were detained as prohibited non-citizens and deportation orders were made against them but they were not deported and were instead detained in custody as potential witnesses in a forthcoming prosecution. The Federal Court held that the deportation orders were unlawful, having been made for the unlawful purpose of detaining the applicants in custody as potential witnesses, and not for deporting them. They were entitled to a declaration under s 16 that there detention was unlawful.
Held: The detention was not authorised by any applicable statutory provision as it was contrary to the legislative purpose of the Migration Act. The effect of the declaratory order was to resolve finally the question of whether the detention was unlawful.

Discretionary factors

[21]Even when a breach of a ground of review has been established, courts have a discretion to refuse a remedy. Standard discretionary grounds for refusal are:

  • Inexcusably delay by the applicant in commencing proceedings
  • The ineffectiveness or futility of granting a remedy
  • The existence of a more convenient and satisfactory alternative remedy
  • Failure of the applicant to utilise a statutory appeal procedure before commencing judicial review proceedings
  • Acquiescence by an applicant in or a waiver of a breach
  • Unwarranted prejudice to the interests of a party relying on the administrative decision
  • A competing public interest

It is usually easier for an applicant to satisfy the court’s discretion to issue habeas corpus than to obtain the other writs. There is also a higher discretionary barrier for injunction since breach will constitute contempt of court.

End

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References

Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.
  2. Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.
  3. Textbook, pp 916-29.
  4. Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149.
  5. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
  6. Craig v South Australia (1995) 184 CLR 163.
  7. Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149.
  8. Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531.
  9. Textbook, pp 930-1.
  10. Textbook, pp 931-7.
  11. (1975) 132 CLR 473.
  12. Textbook, pp 944-8.
  13. (2001) 208 CLR 199.
  14. (2006) 229 ALR 457.
  15. (1998) 194 CLR 247.
  16. Textbook, pp 948-54.
  17. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
  18. Textbook, pp 954-9.
  19. Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528.
  20. Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637.
  21. Textbook, pp 959-60.
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