Category Archives: Administrative Law

Plaintiff S297-2013 v Minister for Immigration and Border Protection [2015] HCA 3

ON 11 FEBRUARY 2015, the High Court of Australia delivered Plaintiff S297-2013 v Minister for Immigration and Border Protection [2015] HCA 3 (11 February 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/3.html

On 22 June 2014, the High Court of Australia delivered Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24 (20 June 2014), ordering that the Minister determine the plaintiff’s application for a permanent protection visa according to law.

In July 2014, the Minister refused to grant the plaintiff a permanent protection visa on that grounds that he was not satisfied that the grant of such a visa was “in the national interest” because the plaintiff was an unauthorised maritime arrival.

On 11 February 2015, in the most recent case, the High Court held that the Minister’s decision in July 2014 to not grant the visa was not according to law because under the Migration Act 1958 (Cth) the Minister could not refuse such an application just because the plaintiff was an unauthorised maritime arrival.

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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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CPCF v Minister for Immigration and Border Protection [2015] HCA 1

ON 28 JANUARY 2015, the High Court of Australia delivered CPCF v Minister for Immigration and Border Protection [2015] HCA 1.

http://www.austlii.edu.au/au/cases/cth/HCA/2015/1.html

The plaintiff and 156 other passengers were on an unseaworthy Indian flagged vessel which was intercepted by an Australian border protection vessel in Australia’s contiguous zone in the Indian Ocean. The plaintiff claimed to be a refugee fleeing persecution in Sri Lanka for being a Tamil. The plaintiff and the other passengers were detained by the Australian maritime officers and first taken to India and then to the Australian Territory of the Cocos (Keeling) Islands where they were placed into immigration detention.

The plaintiff claimed damages for wrongful imprisonment, alleging that the detention was unlawful under the Maritime Powers Act because he was not afforded procedural fairness in that he was not asked whether or not he was a person in respect of whom Australia owed non-refoulement obligations.

The High Court dismissed the claim, holding that the detention was not unlawful under the Maritime Powers Act 2013 (Cth). The court held that:

 

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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