10 May Understanding Judicial Review in Australia
Section 474 of the Act creates a statutory scheme providing for the finality of a privative clause decision. In essence, s.474(1) of the Act provides that a privative clause decision is final and conclusive and that it cannot be challenged or appealed against, nor can it be reviewed, quashed or called into question in any court. Further, under s.474, a privative clause decision is not subject to administrative law remedies of prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
Under s.474(2) of the Act, a “privative clause decision” is a decision of an administrative character made, proposed to be made or required to be made under the Act.
Privative clauses are strictly construed, as was held by the majority (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) in the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”).
An administrative decision will not be a valid privative clause decision if the relevant decision is infected with jurisdictional error. That is for the simple reason that an administrative decision which involves jurisdictional error is regarded as in law as being no decision at all. So much was held by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj.
The majority in Plaintiff S157/2002 made holdings to like effect. Accordingly, an administrative decision made under the Act may be amenable to judicial review if the applicant seeking judicial review can establish that the administrative decision is tainted by jurisdictional error.
The circumstances exhibiting jurisdictional error have been described in a variety of ways. In Craig v State of South Australia (“Craig”) the majority of the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) held that jurisdictional error is at its most obvious when the inferior tribunal purports to act wholly or partly outside of 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. In the same case, it was held that an inferior tribunal can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something it lacks authority to do.
Similarly, jurisdictional error will occur where an inferior tribunal disregards or takes into account some matter in circumstances where the statute establishing the Tribunal and conferring its power requires that a particular matter be taken into account or ignored as a precondition of the exercise of any authority to make an order or decision in the circumstances of the particular case.
Further, an administrative tribunal will exceed its authority and fall into jurisdictional error if it misconstrues the statute pursuant to which it was created and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of a particular case.
An administrative tribunal falls into error of law amounting to jurisdictional error with the effect of invalidating any order or decision of the tribunal if the tribunal –
identifies a wrong issue;
asks itself a wrong question;
ignores relevant material;
relies on irrelevant material; or
in some instances, makes an erroneous finding or reaches a mistaken conclusion.
The majority (McHugh Gummow and Hayne JJ) applied that test in the later decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf.
These are illustrations only of the ambit of jurisdictional error. As the High Court in Kirk v Industrial Relations Commission (NSW) held, it was neither necessary nor possible to attempt to mark the metes and bounds of jurisdictional error as the reasoning in Craig does not provide a rigid taxonomy of jurisdictional error.
So far as the onus of proving jurisdictional error is concerned, an applicant seeking judicial review must show that the approach adopted below involved a legally erroneous view as to what it was about which the Tribunal below needed to be satisfied. The High Court made that observation in Minister for Immigration and Multicultural Affairs v Eshetu (“Eshetu”).
It has been held that judicial review is concerned with whether the relevant decision was one authorised to be made rather than providing an appellate procedure enabling either a general review of the relevant decision or a substitution of the decision the court thinks should have been made. As recently as December 2015, the High Court so held in Plaintiff M64/2015 v Minister for Immigration and Border Protection (“Plaintiff M64/2015”). In that case, the High Court approved earlier statements to similar effect in Minister for Aboriginal affairs v Peko-Wallsend Ltd (“Peko-Wallsend”) and Attorney-General (NSW) v Quin (“Quin”).
In the context of administrative decision making, the High Court instructs that courts are not astute to discerning error where an administrative officer makes a statement in the form of a broad administrative evaluation that was not, and was not intended to be,
a statement of reasons in the nature of a judicial decision. Authority for that proposition is Minister for Immigration and Ethnic Affairs v Wu Shan Liang as well as Plaintiff M64/2015.
The Full Court of the Federal Court of Australia held in Collector of Customs v Pozzolanic Enterprises Pty Ltd that the reasons of the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
Jurisdictional error is sometimes claimed on the basis that the decision appealed against was so unreasonable that no reasonable tribunal, acting within jurisdiction and according to law, would have come to such conclusion. Unreasonableness on that basis has its origins in the UK decision of Associated Provincial Picture Houses Ltd v Wednesbury Corp.
In Kruger v Commonwealth of Australia (“Kruger”), Brennan J held that when a discretionary power is statutorily conferred, the power must be exercised reasonably because the legislature is taken to have intended that the discretion was to have been so exercised. In Eshetu, Gummow J referred to the observations of Brennan J in Kruger, adding that Professor De Smith in his seminal text Judicial Review of Administrative Action said that an authority failing to comply with the obligation to act reasonably acted unlawfully or ultra vires. Of course, the observations in Kruger and Eshetu were not the earliest statements of the principle. In Buck v Bavone, the High Court held that a board, established under the Potato Marketing Act 1948 and having power to take certain action if certain specified matters were satisfied, was required to act in good faith and that the board was not permitted to act “merely arbitrarily or capriciously” and that “the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it”.
This ground of judicial review, on the ground of what is commonly described as ‘Wednesbury unreasonableness’, is supported by authority at the highest level in an array of decisions of the High Court of Australia. They include Peko-Wallsend, Norbis v Norbis, Chan Yee Kin v Minister for Immigration and Ethnic Affairs, Quin, Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd. That list is not exhaustive.
Time and again the courts have held that judicial review on the ground of jurisdictional error does not mean undertaking a merits review and that a court, when undertaking judicial review for the demonstration of jurisdictional error is not permitted simply to substitute a different conclusion because the court regards that decision as preferable on the facts.
More recently, in Minister for Immigration and Citizenship v SZMDS (“SZMDS”), the High Court of Australia affirmed the observations of Brennan J in Quin when it held that the merits of administrative action, as distinct from the legality of administrative action, are matters for the holder of the relevant power and for that holder alone.
In SZMDS, their Honours Crennan and Bell JJ addressed the question of the circumstances when a court might properly determine that a decision is illogical or irrational in circumstances where reasonable minds might differ on the point. Their Honours held that the test of illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made upon which the evidence is based.
Their Honours further held that if probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of conclusions to be drawn from the evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Their Honours further held in SZMDS that a decision might be said to be illogical or irrational if only one conclusion is open on the evidence and the decision-maker does not come to that conclusion. Their Honours also held that a decision might be said to be illogical or irrational if the decision to which the decision-maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
Most recently, Nettle J of the High Court of Australia said in Wei v Minister for Immigration and Border Protection that error of fact made in the exercise of jurisdiction is not ultra vires, citing Australian Broadcasting Tribunal v Bond. On the facts of that case, Nettle J held that the basis of the cancellation of the relevant visa was the Minister’s delegate’s satisfaction of the applicant’s failure to comply with a condition of the visa, that being a question of fact.
Having canvassed some of the more important legal principles applicable to this case, it is now necessary to turn to the parties’ submissions.