Final Exam Theory Notes

Description

Weeks 6 - 10 (all cases and readings included) Topics: TOPIC 6: Legality review and Human Rights 6 OVERVIEW 6 THE GROUNDS OF LEGALITY REVIEW 7 UNREASONABLENESS 8 NO EVIDENCE GROUND OF REVIEW 11 COMMON LAW VS STATUTE 11 CHAIN OF REASONING METAPHOR 12 JURISDICTIONAL FACT GROUND OF REVIEW 13 ERRORS OF LAW 14 DISTINCTION BETWEEN ERRORS OF LAW AND ERRORS OF FACT 14 COMMON LAW GROUND VS STATUTORY GROUND 15 OVERLAP WITH OTHER GROUNDS 15 FRAUD AND BAD FAITH 15 FRAUD 15 BAD FAITH 16 JURISDICTIONAL ERROR AND OUSTER (PRIVATIVE) CLAUSES 16 OUSTER/PRIVITIVE CLAUSES 18 UNAUTHORISED PURPOSE 18 RELEVANT CONSIDERATIONS 20 HUMAN RIGHTS 23 HUMAN RIGHTS AND GOVERNMENT ACCOUNTABILITY 26 LIMITATIONS ON HUMAN RIGHTS 28 PUBLIC ENTITY OBLIGATIONS 29 HUMAN RIGHTS COURT: ‘PIGGYBACK’ ACTION 31 STATEMENTS OF COMPAITABILITY 32 OVERRIDE DECLARATIONS 33 STATUTORY INTERPRETATION 34 QLD HUMAN RIGHTS COMMISSION – COMPLAINTS PROCEDURE 34 Topic 7: Access to Justice Part 1 – Jurisdiction to Review 36 OVERVIEW 36 THE ADJR ACT - OVERVIEW 37 RELATIONSHIP WITH OTHER MODES OF VIEW 37 RIGHT TO REASONS 38 QLD JUDICIAL REVIEW ACT 38 AD(JR) ACT / JR ACT PARTS 3 AND 4 39 OPERATION OF THE JR ACT 39 “A DECISION TO WHICH THE ACT APPLIES” 40 “Decision” (and “Conduct”) 40 ‘Administrative Character’ 43 The tests for Identifying Legislative, Judicial, and Administrative Acts: 44 Rules of Thumb for Distinguishing Legislative, Administrative, and Judicial Decisions 44 “Under an enactment” 47 ‘Under an enactment’ as a limitation on ADJR Act Review 48 Government Contracting and ADJR Act/JR Act Part 3 Review 51 Section 4(b) JR Act – Under a non-statutory scheme or program 56 Non-justiciability and the ADJR Act and Part 3 of the JR Act 58 Decisions of the Governor and State Governor 58 Section 21 JR Act – Review of Conduct 59 Section 22 JR Act – Review of failures to decide 59 Topic 8: Access to Justice Part 2 – Standing Requirements 60 OVERVIEW 60 THE TESTS FOR STANDING FOR DECLARATIONS AND INJUNCTIONS 61 Role of the Attorney General 61 Standing under the ADJR Act and JR Act 63 A liberalising trend 64 Types of interests that may constitute a special interest 65 Factors that courts will consider when determining standing 67 STANDING UNDER THE ADMINISTRATIVE REVIEW TRIBUNAL 69 OTHER STANDING RELATED ISSUES 69 Standing for the prerogative writs 69 Joinder 69 Amicus curiae 70 Intervention by the Attorney General 70 STANDING AS A PUBLIC POLICY ISSUE 70 TOPIC 9: The Right to Reasons, Time Limits, Exclusion from Review 72 OVERVIEW 72 Right to Reasons 72 Judicial Review Time Limits 72 Exclusions from Review 72 Privative clauses and Jurisdictional Error 73 Court Powers in Judicial review 73 Costs and Procedural Advantages 73 THE RIGHT TO REASONS 73 Administrative decisions – no common law right to reasons 73 Right to Reasons – ADJR Act and JR Act 73 Part 4 JR Act / ADJR Act 74 A Decision to which Part 4 Applies – Section 31 JRA 74 JRA Part 4 and being entitled to make a JR s20 Application 76 Statement containing reasons 76 Other ways of finding out about decisions 76 Comparison with other Mechanisms 76 Features of a Statutory Statement of reasons 77 Applications for Further Statements 78 Evidentiary Points 78 Right to reasons – procedural points 78 Duty of decision-makers to give reasons 79 To whom should an application for reasons be made? 79 Time Limits to Request Reasons (JRA s33) 79 If application for reasons is made within time 79 Exceptions to Right to Reasons (JRA s35 – 37) 79 Right to reasons and interlocutory orders 80 Costs under Part 4 (JRA s50 & 57) 80 TIME LIMITS FOR JUDICIAL REVIEW APPLICATIONS UNDER PART 3 JR ACT / ADJR ACT 80 If written notice of decision is given 80 Extensions of time to apply 81 If no written notice of decision – s26(3) and 26(4) JRA 81 EXCLUSIONS FROM JUDICIAL REVIEW UNDER THE ADJR ACT / JR ACT 81 No Exclusions of Review by Regulations Under the QLD JRA 82 Ouster / Privative Clauses 82 Privative Clauses and Jurisdictional Error 82 Scope of Jurisdictional Error 83 Inter-relation of Jurisdictional Error with Privative Clauses 85 POWERS OF THE SUPERIOR COURTS HEARING APPLCIATIONS UNDER THE ADJR ACT / JR ACT 87 Interlocutory orders 88 Stays of administrative decision being reviewed under the ADJR Act / Part 3 JR Act 88 Stays: the test 88 Relevance of other remedies 89 Summary dismissal of JR Applications – Section 48 JRA 90 Costs orders under s49 JRA 91 TOPIC 10: Remedies 92 ROVERVIEW 92 ORDERS THAT CAN BE MADE FOLLOWING SUCCESSFUL REVIEW UNDER PART 3 JR ACT / ADJR ACT 93 Power to make orders under JR Act s30 (discretionary) 94 Powers to declare and direct 94 No right to damages (as yet) 94 Appeals from review decisions under JRA Part 3 / ADJR Act 95 The writs and declarations and injunctions as judicial review remedies 95 THE PREROGATIVE WRITS 95 Prohibition and Certiorari 97 Grounds for the writs 97 Bodies subject to writs 97 Legal authority 98 Duty to act Judicially 100 Affecting the rights of subjects 100 Decisions not subject to the prohibition and certiorari 101 Standing 102 Common law standing – certiorari and prohibition 102 Standing under Part 5 JRA 103 Stays 104 Issues specific to prohibition 104 Issues specific to certiorari 104 Non-jurisdictional error of law on the fact of the record 105 Law not fact 105 The record 105 Mandamus 106 Standing 107 Standing for mandamus at common law 107 Standing under Part 5 JRA 108 Matters common to all prerogative writs 108 EQUITABLE REMEDIES – DECLARATIONS / INJUNCTIONS 109 Declarations as remedies in administrative law 109 Availability of declarations 111 Limits on the availability of declarations 113 Declarations and Hypothetical questions 113 Declarations and non-jurisdictional error 114 Standing under the JR Act 114 Standing and declarations sought under the inherent jurisdiction of superior courts 115 Time Limits: 115 Stays (pending final relief) 115 Discretionary nature of declarations 115 Declarations vs Statutory Remedies 115 Injunctions as remedies in administrative law 116 Source of power to issue: QLD & Federally 116 Injunctions are a ‘private law’ remedy 116 Availability of injunctions in admin law 116 Classification of injunctions 117 Interim Injunctions 117 Interlocutory injunctions 118 Undertaking as to Damages 120 Interlocutory injunctions in Queensland 120 Permanent Injunctions 121 Mandatory v Prohibitory Injunctions 121 Injunctions – Standing 121 Time Limits 122 Injunctions to enforce the law 122 Equitable nature of injunctions 122