No evidence

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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, [12.2.1-14]; [12.2.17C].

Introduction

[1] When a decision is made without evidence it usually leads to an error of law (and sometimes, jurisdictional error). This concept applies both under the common law and under the ADJR, and there is a difference in scope between the two sources of law:

  • Common law: refers to ‘evidence’ in its broadest sense, as in any fact or information upon which a decision is based, and not merely evidence that would be admissible according to the rules of evidence applying in proceedings.
  • ADJR Act: s 5 (1) (h) provides that the legal principles in this area should be understood in the narrower sense of evidence that would be admissible according to the rules of evidence applying in proceedings.

Common law

[2] There is a common law principle that a decision made under a statute will be invalid if there is a lack of evidence to satisfy an essential statutory element of the decision. 'No evidence' is thus a ground of judicial review (it is both an error of law and a jurisdictional error).

  • No evidence applies to decisions made on literally no evidence.
  • If there is some evidence to support the statutory element, even though it is questionable whether that evidence is adequate or sufficient to provide support, it will not constitute no evidence.

This was discussed in Melbourne Stevedoring:[3]

  • Facts: Under the the Stevedoring Board commenced an inquiry under a statute regarding a stevedoring company who had four employees who were allegedly absent without permission. The facts indicated that at least three had satisfactory explanations and that the ships to which they had been allocated had departed on schedule.
  • Held: the test for no evidence is whether there was an “absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends.”
    • “The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the interference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters.”
    • Here, there was no possible basis for concluding that the employer was unfit to be registered. There was no basis on which the board could conclude either that the company was unfit to be registered or that it had interfered with the proper performance of stevedoring operations (which were the grounds of cancellation/suspension of a registration under the Act).
    • A writ of prohibition to prevent the inquiry from continuing.

The principle in Melbourne Stevedoring was put another way by Mason CJ in Australian Broadcasting Tribunal v Bond:[4]

  • “there is no error of law simply in making a wrong finding of fact”
  • “...want of logic is not synonymous with error of law. So long as a there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”
  • There is a traditional common law principle that “an absence of evidence to sustain a finding or inference of fact gives rise to an error of law.”

Greenwood J in SZDT v Minister for Immigration and Citizenship[5] summarised the view as:

  • “A description of the reasoning of the Tribunal as irrational, illogical or unreasonable may simply be an emphatic way of expressing disagreement with the reasoning, conclusions, findings made and a determination by the Tribunal...”
  • “...what is required is some precision in identifying the legal consequence of irrational or illogical reasoning and the legal principle to be invoked that attracts [judicial review].”

In SDZMDS,[6] the court accepted that serious irrationality or illogicality may give rise to jurisdictional error but, only if “no rational or logical decision-maker could arrive [at the decision] on the same evidence.”

  • There is a close parallel between this ground and Wednesbury unreasonableness; both focus on the process of the decision-maker and not on the reasoning itself or the decision reached.
  • The question of whether the treatment of evidence or finding of fact is irrational may be largely one of degree.

Sinclair v Mining Warden at Maryborough[7]

  • Facts: The mining warden had recommended the grant of a mining licence for an area of 1100 acres on Fraser Island, though the evidence before the warden referred to mineralisation in only 60 acres of that area and other evidence pointed to the possible adverse impact of mining on the ecology of the island.
  • Issue: Decision being declared invalid for “no evidence”.
  • Held: The High Court held that the warden had misconceived his duty. “It was essential that there be material before him... which would warrant an affirmative conclusion on the substance of the application.”

Tisdall v Webber[8]

  • Facts: The Professional Services Review Committee found that Dr Tisdall had engaged in “inappropriate practice” by over-servicing contrary to provisions in the health insurance legislation. The committee rejected his claim that exceptional circumstances applied, arising from a chronic shortage of doctors in his area of practice, and that other doctors refused to see his patients.
  • Issue: Decision being declared invalid for “no evidence”.
  • Held: The Full Federal Court set aside the committee’s decision, concluding that the committee’s rejection of Dr Tisdall’s claim was unsupported by actual evidence and was simply based on inferences drawn from statistics “which do not reveal facts about the reasons for statistical rates of attendance.”

The ADJR Act

[9] The ADJR Act s 5 (1) (h) provides that an order of review can be sought on the ground that there was no evidence or other material to justify the making of the decision. Other relevant provisions include:

5 (3) No evidence is made out only when:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

Four issues have been prominent in the case law dealing with the ADJR Act test of no evidence:

  1. The interrelationship between 5 (1) (h) and other ADJR ACT grounds of review
  2. The scope of 5 (3) (a)
  3. The scope of 5 (3) (b)
  4. The interrelationship between s 5 (1) (h) and 5 (3) (a) and (b)

The interrelationship between 5 (1) (h) and other ADJR ACT grounds of review

In Bond, Mason CJ noted that ss 5 (1) was a special statutory ground of review which in his view was narrower than the no evidence principle at common law. The common law principle of no evidence could be raised under s 5 (1) (f), which provides that than an order of review can be sought on the ground that ‘the decision involved an error of law.’

The scope of 5 (3) (a)

The ‘no evidence to support an essential statutory requirement’ ground is comparable to the common law ground but with two special features which have not been properly addressed in case law:

  1. The ground applies where a decision-maker ‘was required by law to reach a decision only if a particular matter was established.’ The effect of these requirements being that it is necessary that there be a precondition in the law to the making of the decision or at least a clear legislative intent that the making of the decision depends upon the establishment of a particular matter.
  2. The question of whether there is ‘no evidence’ from which a decision-maker ‘could reasonably be satisfied’ of the particular matter required by law to be established. This is probably best resolved by focusing on the underlying theme of the sections; that a decision is invalid if there is lack of evidence to support an essential element of the decision.

The scope of 5 (3) (b)

The ‘reliance by the decision-maker on a non-existent fact’ ground comprehends any finding of fact made by a decision-maker, not just findings on the statutory elements of the decision. However, it only applies where a decision was based on a particular fact and the fact did not exist.

  • “Observations or comments about the evidence are not ‘particular facts’... findings assumptions or predictions reflect ‘particular facts’” (Director of Animal and Plant Quarantine v Australian Pork).[10]
  • The finding of fact must be critical to the decision (Curragh).[11]
  • A person relying on this ground must go further than pointing to a lack of evidence to support the decision-maker’s finding of fact: the person must establish affirmatively that the fact relied upon by the decision-maker ‘did not exist’.
    • In considering this issue the court is not limited to the evidence before the decision-maker (Curragh).[12]

The interrelationship between s 5 (1) (h) and 5 (3) (a) and (b)

The view was taken by Gleeson CJ in Rajamanikkam[13] that s 5 (1) (h) and s 5 (3) (a) and (b) are two limbs of a single test. That is, a person relying on this ground must first establish a breach of 5 (3) (a) or (b) and then establish that there was ‘no evidence or other material to justify the making of the decision’. This approach focuses attention on whether, viewed overall, there was evidence to support the decision.

Gaudron and McHugh JJ did not take this view in Rajamanikkam,[14] but treated s 5 (3) (a) and (b) as self-contained grounds for review, which also seems to have been the approach of the Full Federal Court in Curragh.[15]

Rajamanikkam[16]

  • Facts: The Refugee Review Tribunal rejected Dr Rajamanikkam’s claim that he feared persecution by Sri Lankan authorities, stating eight factors that caused the Tribunal to doubt his credibility. Two of these facts ‘did not exist’. The Full Federal Court held that the tribunal’s decision was in breach of the now repealed ‘no evidence’ ground of review in the Migration Act which mirrored s 5 (1) (h) and (3) (b) of the ADJR Act. The High Court allowed the appeal, holding by majority that the tribunal was not in breach of those sections.
Issue: scope of sections in ADJR Act.
Held: “The duty to base a decision on evidence, which is part of a legal requirement of procedural fairness, does not mean that any administrative decision may be quashed on judicial review of the reviewing court can be persuaded to a different view of the facts.”
  • The tribunal’s finding was not based on only the two of the eight reasons. The two reasons cannot be said to be ‘critical’ as there was other evidence relied upon to decide the matter.
  • “ ‘Based on a particular fact’... is to be understood as referring to a finding of fact without which the decision in question either could not or would not have been reached... a ‘fact critical to the decision’.”

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. Textbook, p 742.
  2. Textbook, pp 742-6.
  3. The Queen v Australian Stevedoring Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100.
  4. (1990) 170 CLR 321.
  5. [2007] FCA 1824.
  6. Minister for Immigration and Citizenship v SZDMS (2010) 240 CLR 611.
  7. (1975) 132 CLR 473.
  8. (2011) 193 FCR 260.
  9. Textbook, pp 746-8.
  10. (2005) 146 FCR 368.
  11. Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212.
  12. Ibid.
  13. Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222.
  14. Ibid.
  15. Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212.
  16. Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222.
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