Reviewing Decisions in a Court - Article Example

 Reviewing Decisions in a Court 1. The Australian Administrative Tribunal was set up under the AAT Act 1975 (Cth) and this enabled the function of review to be centralized in a single federal body, for the purpose of reviewing decisions independently, thus providing for a uniform standard to be applicable in all jurisdictions. This enables aggrieved individuals to challenge Government decisions. Commonwealth tribunals are not strictly courts, they are more like executive bodies, therefore the AAT is not liable to be given the power to make final, irrevocable decisions1. In the case of Brandy, it was held that federal tribunals cannot be given judicial powers by the Commonwealth. Administrative Review Tribunals do not have the power to review every administrative decision2. Where a tribunal is asked to review a decision on merits, it can intervene only in instances where specifically provided for by statute.3 Moreover the Tribunal must also have the necessary jurisdiction conferred on it4. But there is much wider scope provided for a merits review, as compared to a judicial review, since the former involves a reconsideration of the entire decision making process and the decision itself to examine whether it is the correct decision, so that a new decision may be the result of a merits review. The Tribunal has the power for a wide range of administrative actions, including suspending or revoking certificates, issuing or refusing licenses, imposing conditions, making declarations or refusing to do so5, and this also encompasses “doing or refusing to do any act or thing.”6 While the decisions of tribunals are not enforceable, they do have the persuasive force of the original decision maker and do not infringe upon the doctrine of separation of powers7. The nature of a tribunal’s decision is final and operative,8 however they cannot make original decisions, only substitute or review on decisions actually made by a decision maker.9 The Tribunal has the power to review whether a decision was the “correct and preferable one on the material before it.”10 Therefore while the Tribunal does not have the power to make new decisions on matters not already decided by an administrative decision maker, it is not obliged to make decisions in accordance with the administrative policy. It is allowed some leeway in reviewing the decision, even departing from Government policy, unless some specific statutory provision requires adherence to administrative policy or curtails the discretionary power of the tribunal in making decisions.11 However, from the above, it appears that the AAT’s comment about the power of the tribunals12 is largely a correct interpretation, since the scope of powers is limited to decisions already taken by the DM and the extent of discretion is curtailed and limited by statute. Ans 2: In making a determination as to whether or not a party has the standing to bring action for review, a distinction is made between whether public rights or private rights are involved. In protecting public rights, AGs are the ones appropriately authorized and “an ordinary member of the public….has no standing to sue to prevent the violation of a public right or the performance of a public duty.”13 However, the standing of private parties to initiate proceedings to protect the public interest was legitimized when doubts were expressed about whether AGs could adequately represent public interest.14 The Courts have recognized that there may be occasions when the public interest can be represented by people other than the AG.15 However, in order for standing to be valid for private parties, a “special interest” must be established.16 Justification has been provided for such doctrine of standing as being geared towards protecting the efficiency of courts and preventing them from being flooded with cases, to protect the public from unauthorized persons approaching courts on their behalf17. In the case of ACF v Cth18 the majority view of the Court was that the ACF did not have the standing to sue since it lacked the special interest in the subject matter of the action. In another case19, it was held that a mere emotional or intellectual concern would not constitute a special interest. However, in the case of Onus v Alcoa of Australia Ltd20, the Court held that the aboriginals did have a special interest in the land where Alcoa was carrying out works, since it would interfere with the aboriginal relics. In the North Coast21 case, the organization was deemed to have special interest because it was a recipient of Government funding, which is generally valid for purposes of establishing special interest since it demonstrates a vested financial interest.22 Criticism has been levied on the doctrine of special interest and the need for individuals/corporations to establish the eligibility for Government largesse in order to be eligible for such special status. In the Right to life23 case, the plaintiff was not the recipient of such Government funding. However, while it may be argued that while the criteria to establish special interest are somewhat inappropriate where private individuals are concerned – individuals who may have equally valid causes of action – the issue does not arise in the Right to Life case. The justification for denial of the special interest standing had nothing to do with the lack of or receipt of Government funding. The reason behind the denial of standing due to special interest was because the objectives of the association were not aligned with those of the TGA. The factor motivating the decision on standing was not the question of whether unlawful clinical trials would result in the use of a dangerous drug, rather the Federal Court was motivated in its decision by the fact that the drug could achieve its purpose. Ans 3: I prefer the reasoning of the majority- Gibbs CJ, Murphy and Wilson JJ, who were of the opinion that the nature of the tasks that had to be performed by the Deputy Commissioner were such that they could indeed be delegated to agents. They did not share Mason J’s viewpoint that the Deputy Commissioner’s functions were of such a nature that they required the exercise of an important discretion and were therefore not subject to delegation. They were also of the view that legislation was such that decentralization of the administration was the goal sought to be achieved, with the Deputy Commissioners heading up certain geographical areas and therefore exercising powers in that particular region. Therefore, it would be contrary to the spirit of the legislation to imply that the deputy Commissioner had not been endowed under the law with the powers to delegate24. The decision in the case of O’Reilly therefore demonstrates the view of the Court that where powers have been provided under the law, there is also the implied power that is provided side by side, to delegate such powers or to authorize others in the performance of those powers, especially where the nature of the duties are such that they can be performed by others. This was later also corroborated in cases such as Peko.25 There could have been problems involved in implementing Mason J’s position, since his interpretation of the legislation was that it precluded officers from delegating their powers to others. If his views had prevailed, the Commonwealth would have had to take necessary steps to reform and revise the statutes. The underlying implication when endowing powers to delegate is that there is no need to additionally include within the legislation, the power of those delegates to delegate their powers further. This indicates that the question of whether there is an implied power to appoint agents is rarely one that will be a cause of contention, especially if the nature of the duties are such that they can safely be delegated to subordinates. If Mason J’s views had prevailed, the Commonwealth would have had to revise the provisions of the power to delegate. Alternatively, they could have contested the decision on the basis that the Courts should clarify that powers to delegate should be dependent upon the nature of the duties26. Since it would be cumbersome and inefficient from an administrative point of view to require all delegation of duties to be pre-approved by the Commissioner himself, the Commonwealth would have had to contest the decision and ask for revision based upon the difficulties in execution. Making the distinction between work that can be performed by a subordinate as opposed to work that requires discretion and therefore cannot be delegated is in itself a difficult distinction to make and clarify within the law, and would have created further difficulties in execution. Ans 4: In the case of Peko26 Mason J laid out five principles to be considered while examining whether a Decision Maker has failed to take into account a relevant consideration27 and these were from a largely non interventionist perspective. The general principle that underlies consideration is that administrators must take into account legally relevant matters and there is some discretion allowed to Ministers in the exercise of their decisions. However while the principle is straightforward,28 applying them is difficult. In the case of Peko, the Minister was held to have not given enough consideration to the detriment that Peko was likely to suffer from the grant of land, since the Commissioner’s comments were to be a guide to the Minister. In the case of Roberts29 it was held that several relevant considerations had been ignored, such as declining cost of living and the different duties performed by different employees. Therefore a more interventionist approach was used in this case. However, applying the principles laid out by Mason J would have resulted in the Roberts case being viewed from a different approach and would created difficulty. Assessing the purpose for which a power has been given and making a determination on whether or not they have been exercised improperly in giving adequate consideration, is not an easy exercise. Documentary evidence has been used in some cases to establish improper purpose, thereby vitiating the decision,30 however, problems can arise when improper use may co-exist with proper purposes. In the case of Thompson, it was held that the decision would be vitiated if it would not have been made but for the improper purpose and this test has been used in subsequent cases. However the limitations of this test have been pointed out in the case of Warringah31 wherein Kirby has pointed out the problems associated with the test32 while according to Mahoney JA, a matter could constitute improper purpose and might yet constitute a consideration that is to be taken into account33. The question of improper use of power vis a vis a proper purpose also arises in the case of Roberts, however Mahoney JA’s view would indicate that it would still constitute a consideration. The case of Peko also attributed detriment to be a consideration that must be taken into account, in the case of Roberts, the detriment to taxpayers cannot be ignored and does constitute a relevant consideration. Therefore, despite the difficulties in application, it is possible that the ultimate decision in the Roberts may not have been much different. Ans 5: The need to provide sound reasons for decisions was articulated in the case of Commonwealth v Pharmacy Guild of America wherein it was stated that a decision giving a bare conclusion without reasons suggests that the Decision Maker “has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration.” Discipline is imposed on Decision makers when they are made to reveal the real reasons for their decisions, to ensure compliance with their statutory functions.34 Moreover, when the reason for the decision is disclosed, the tribunal in question will be able to make an accurate assessment of the matters which were taken into consideration by the Decision Maker35 and also whether the decision was made in accordance with the law.36 In the case of Australian Broadcasting Tribunal v Bond, the High Court established that only some decisions would be reviewable and such decisions would be only those that could be said to comprise final or operative decisions. Interim decisions which were taken as steps in the reaching of a final decisions were not subject to review by the courts and no formal declarations could be made in the context of their validity. Moreover the decision also sets out the requirement that the decision be of an administrative character and excludes legislative decisions.37 This further complicates the examination of decision making because it is difficult to draw a clear distinction between administrative and legislative decisions. For instance, as pointed out by Gummow J, both kinds of decisions involve the making of general rules.38 Therefore, setting out the need to establish reasons is a sound one, because only certain decisions are reviewable, and it is necessary to ensure that the decisions that are taken are made in accordance with the law, which are also of benefit to the parties.39 Disclosure of reasons also helps to ensure that procedural fairness has been adhered to40. Tom Thawley’s statement also highlights the importance of providing reasons in order to ensure that procedural fairness and the cause of justice are served, since administrative and legislative decisions will be subject to judicial scrutiny, to determine whether they were made in adherence to the law. Ans 6: In the case of Kamminga41, the agency refused access to the referee reports under sections 36, 40 and 45 of the provisions of the freedom of information legislation enacted in all jurisdictions under the FOI Act of 1982 (Cth).42 However the AAT found that only section 45 could support the contention that the material was to be withheld from public disclosure, on the grounds of breach of confidence, since the reports were given and received in confidence. But it did not find that disclosure was exempted under the other sections. Therefore the agency could have also taken the decision not to grant access under sections of the Act which could have been more helpful in establishing its case. For example, it could have denied access for specified periods under Section 21 of the Act, especially since the provisions for exercising this section are that the denial of access should be in the public interest and for the benefit of the public.43 In this case, such provision would have been valid, since there is the case for breach of confidence, hence the Agency could have denied access. Another procedure that the agency could have followed would have been to exempt confidential portions and then provide access to the public without the inclusion of those portions that are to be withheld from disclosure44. The agency could have also refused access, which is allowed under section 24 of the Act. Another way the agency could have functioned is to adopt a neutral posture and neither confirm nor deny the existence of the document to which access is sought. There are some sections in the Act that allow for such a provision, such as sections 33, 33A, 37 and section 25 of the FOI Act. The Agency could have therefore claimed that the decision of the AAT was wrong and could have drawn attention to other sections in the Act that would have been more effective in seeking the outcome that was desired. The FOI Act does provide for limitations to the access of information, where it is necessary for the protection of public interest. The AAT asked for concrete evidence from the agency to support its argument on disclosure being against public interest.45 One important aspect which the Agency could have highlighted to provide such evidence was to rely on the factor suggested by Davies J46, wherein disclosure of decisions inhibiting future pre-decisional communications would inhibit public interest and this could have been shown to be the case. Demonstrating that there was “the potential for public misunderstanding”47 could have also been helpful to the agency. The Agency could have sought a class exemption on disclosure of the documents, in which case it would have qualified for maintenance of confidentiality regardless of public interest.48 Therefore, rather than filing under Sections 36, 40 and 45 of the FOI Act, the Agency could have opted to avail of this class exemption under Sections 34, 35 and 33 (1) (b), which would have rendered non disclosure justified despite the need to provide information in public interest under the FOI. Read More