Category Archives: Administrative Law

Abebe v Commonwealth [1999] HCA 14 | 14 April 1999

ON THIS DAY in 1999, the High Court of Australia delivered Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; 162 ALR 1; 73 ALJR 584 (14 April 1999)

http://www.austlii.edu.au/au/cases/cth/HCA/1999/14.html

In 1994, the Commonwealth Parliament enacted provisions in Part 8 of the Migration Act 1958 (Cth) limiting the ability of the Federal Court to review the legality of an administrative decision of the Refugee Review Tribunal.

In 1997, Ms Abebe, an Ethiopian woman who unsuccessfully sought refugee status in Australia, brought proceedings in the Federal Court against the Immigration Minister seeking relief on the grounds that she had been denied natural justice and that the Refugee Review Tribunal’s decision declining her application for permanent residence was unreasonable. The Federal Court dismissed the application.

Ms Abebe then made an application to the High Court, challenging Part 8 of the Act and seeking orders for prerogative relief.

The High Court dismissed Ms Abebe’s application, determining that the provisions of Part 8 were not outside of the legislative powers or the Commonwealth.

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Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 | 3 FEBRUARY 2010

ON THIS DAY IN 2010, the High Court of Australia delivered Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010).

http://www.austlii.edu.au/au/cases/cth/HCA/2010/1.html

Kirk was charged for offences under the Occupational Health and Safety Act 1983 (NSW). The statement of offence did not identify the acts or omissions that constituted the alleged offences.

The charges were heard by the NSW Industrial Court. During the hearing the prosecution called Kirk as a witness for the prosecution.

Kirk was convicted and sentenced.

Kirk appealed to the NSW Court of Appeal seeking an order in the nature of certiorari on the grounds that there was a jurisdictional error. Kirk argued that the Industrial Court exceeded its jurisdiction in two ways: (1) the statement of offence did not identify the acts of omissions that constituted the alleged offences, nor the measures available to address the risks, so the defendant was denied an opportunity to properly defend the charges and (2) that under s17(2) of the Evidence Act 1995 (NSW), a defendant is not competent to give evidence for the prosecution and the trial was therefore conducted otherwise than in accordance with the laws of evidence. The NSW Court of Appeal refused to quash the convictions and sentences on the grounds that s179 of the Industrial Relations Act 1996 (NSW) prohibits an appeal against a review, quashing or calling into question a decision of the Industrial Court.

The High Court allowed the appeal, set aside the Court of Appeal’s decision and quashed the convictions and sentences. In overturning the Court of Appeal, High Court held that (1) the a “decision” does not include a decision made by the Industrial Court outside of their jurisdiction and (2) it was beyond the power of the State legislature to limit the power of a State Supreme Court to grant relief to correct jurisdictional errors made by courts and tribunals of limited jurisdiction.

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R v Toohey; Ex parte Northern Land Council [1981] HCA 74 | 24 December 1981

ON 24 DECEMBER 1981, the High Court of Australia delivered R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 (24 December 1981).

Delegated legislation of the Governor in Council is invalid if made for an improper purpose, namely, a purpose which is not within the scope of the empowering legislation, even if it appears valid on its face. The Crown and its agents are not immune from challenge when acting not in good faith or for ulterior purpose.

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Sydney, Australia

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Kioa v West [1985] HCA 81 | 18 December 1985

ON 18 DECEMBER 1985, the High Court of Australia delivered Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (18 December 1985).

http://www.austlii.edu.au/au/cases/cth/HCA/1985/81.html

The High Court recognized that an administrative decision maker has duty of acting fairly or according procedural fairness under the rules of natural justice.

A decision was made to deport Mr Kioa and his family back to Tonga on the grounds of him changing his address without notifying the department and engaging with Tongan illegal immigrants. Mr Kioa was given an opportunity to make submissions but was not informed of the adverse allegations.

The High Court held that a failure to disclose to Mr Kioa the adverse allegations and allow him the opportunity to respond was a failure to afford procedural fairness.

As a fundamental principle of natural justice, an opportunity must be given to deal with adverse information that is credible, relevant and significant to the decision to be made.


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Sydney, Australia

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Appointments to the Administrative Appeals Tribunal

ON 10 DECEMBER 2014, Federal Attorney-General Senator George Brandis QC announced the following appointments to the Administrative Appeals Tribunal:

  • Deputy President: Mr Gary Humphries.
  • Senior Member: Dr James Popple.

Senator Brandis also announced the reappointments of Senior Members McDermott, Ettinger and O’Loughlin and Members Hughes and Alexander.

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Sydney, Australia

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Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50

ON 10 DECEMBER 2014, the High Court of Australia delivered Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50 (10 December 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/50.html

The appellants had sought a review of a decision of the Minister for the Environment and Sustainable Development to approve a development application for a commercial development.  The site of the development was near the appellants’ premises. Two of the three appellants, who were supermarkets, were held to have standing to seek review as they were “persons aggrieved” by the Minister’s decision as it affected their economic interests. The third appellant, a landlord of one of the supermarkets, was held to not be a person aggrieved as it had not established that its interests were adversely affected.

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Sydney, Australia

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Cunneen v Independent Commission Against Corruption [2014] NSWCA 421

ON 5 DECEMBER 2014, the NSW Court of Appeal delivered Cunneen v Independent Commission Against Corruption [2014] NSWCA 421.

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=176019

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Sydney, Australia

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Cunneen and Ors v Independent Commission Against Corruption [2014] NSWSC 1571

ON 10 NOVEMBER 2014, the Supreme Court of NSW delivered Cunneen and Ors v Independent Commission Against Corruption [2014] NSWSC 1571.

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=175376

A summons seeking declarations and injunctions against the Independent Commission Against Corruption for holding an investigation into certain allegations involving Margaret Cunneen SC, Stephen Wyllie and Sophia Tilley was dismissed by Hoeben CJ at CL.

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Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 | 10 November 1947

ON 10 NOVEMBER 1947, the England and Wales Court of Appeal delivered Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 (10 November 1947).

http://www.bailii.org/ew/cases/EWCA/Civ/1947/1.html

A court will interfere with an administrative decision if (1) the decision maker took irrelevant matters into consideration (2) the decision maker failed to take into consideration matters which it ought to have considered and (3) the decision was so unreasonable that no reasonable decision maker would have made it.

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Craig v South Australia [1995] HCA 58 | 24 October 1995

ON 24 OCTOBER 1995, the High Court of Australia delivered Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (24 October 1995) 

At 179:

“If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

At 180:

“a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error”.

At 177:

A court falls into jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”.

At 177:

Jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers”.

At 177-8

Examples of a court acting beyond its jurisdiction by entertaining a matter outside the limits of the court’s functions include:

  • the absence of a jurisdictional fact
  • disregard of a matter that a relevant statute requires to be taken into account or ignored as a condition of jurisdiction.
  • misconstruction of the relevant statute thereby misconceiving the nature of the court’s function or extent of its powers with respect to the particular issue, though the line between jurisdictional error and mere error of exercise of jurisdiction may be difficult to identify.

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