Australia: Administrative law
Government Bulletin summer edition – year in review

Developments in administrative law

On 1 January 2015, the NSW Civil and Administrative Tribunal (NCAT) marked 12 months as the State's first 'super tribunal' and, in March 2015, released its first strategic plan: NCAT Strategic Plan 2014-2018. The strategic plan identifies priority areas which are intended to provide the framework for NCAT's development over the next five years.

On 15 January 2015, the Information and Privacy Commission NSW (IPC) released a report on the operation of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for 2013 – 2014. The Report provided a general examination of all four information release pathways (i.e. mandatory release, authorised release, informal release and access applications), and collected data across five government sectors (i.e. NSW Government agencies, State-owned corporations and Ministers, Universities and local Councils). The Report provided a statistical analysis on how the GIPA Act is being implemented and complied with in those sectors. In a further development involving the GIPA Act, on 1 July 2015, the IPC launched the much anticipated 'IPC GIPA Tool', which is a free cloud based and fully supported internet application. The IPC GIPA Tool is intended to assist all NSW Government agencies and organisations which are regulated by the GIPA Act to comply with the legislation when processing and reporting on government information access applications.

A number of administrative law cases were decided by the NSW Court of Appeal. These include Bahramy v Medical Council of New South Wales [2015] NSWCA 384 (whether the tribunal had jurisdiction to make orders), Hunter Development Corporation v Save Our Rail NSW Incorporated [2015] NSWCA 346 (acquisition of land), Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 (whether the Review Panel failed to undertake a new assessment of matters concerned and whether respondent was not given opportunity to address Review Panel on conflicting evidence) and La La Land Byron Bay Pty Limited v The Independent Liquor and Gaming Authority [2015] NSWCA 254 (whether the correct test of public interest was applied by the Independent Liquor and Gaming Authority). Many NSW Court of Appeal cases concerned whether a decision-maker failed to take relevant considerations into account. For example, in Rodger v De Gelder [2015] NSWCA 211, the NSW Court of Appeal held that when a decision-maker has failed to respond to a substantial argument, it has been said that there has been a failure to accord natural justice (that is, procedural fairness). A failure to accord procedural fairness is a recognised form of jurisdictional error.

Commonwealth developments

On 1 July 2015, the Migration Review Tribunal, Refugee Review Tribunal and Social Security Appeal Tribunal merged with the Administrative Appeals Tribunal (AAT) into a single external merits review tribunal under the Tribunals Amalgamation Act 2015 (Cth). The amalgamated AAT is expected to review over 40,000 applications every year in areas including tax matters, visa applications, social security benefits, workers compensation, disability support, freedom of information requests and veterans' entitlements. The amalgamation simplifies the Commonwealth merits review system. The amalgamated tribunal is intended as a single point of contact for persons seeking review of administrative decisions.

A significant administrative law decision handed down by the High Court of Australia was Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 317 ALR 279 ¹, where it was unanimously held that the Australian Communications and Media Authority (ACMA) has the power to make an administrative finding that a person has committed a criminal offence, in breach of its licence condition not to use its broadcasting services in the commission of an offence against a Commonwealth Act or a law of another State or Territory, for the purpose of regulating the licensing system under the Broadcasting Services Act 1992 (Cth) (BSA). The High Court also held that the existence of this power does not offend the separation of executive and judicial power established by Ch III of the Constitution (it is not an exercise of judicial power but rather an exercise of statutory power conferred under the BSA).

Although the case involved the scope of the ACMA's investigative and regulatory powers under the BSA, and the High Court's decision has implications for the entire broadcasting industry, it also has broader implications for Commonwealth and State Government agencies, and other disciplinary bodies (e.g. there is a range of regulatory legislation which requires individuals and organisations to comply with laws and not to commit offences). This High Court's decision confirms that there is no general principle that decision-makers cannot draw a conclusion about whether conduct constitutes the commission of a criminal offence. Whether a decision-maker is empowered to do so will depend on the terms of the particular statutory scheme.

Another significant High Court of Australia decision was Construction, Forestry, Mining and Energy Union & Anor v Director, Fair Work Building Industry Inspectorate [2015] HCA 46. The High Court unanimously held that regulators and parties can make submissions to the Court regarding an agreed value of a penalty reached as part of a settlement agreement, in the context of civil penalty proceedings. With this decision, the long and established practice of negotiating 'settlements' with regulators and making joint submissions on an agreed penalty has been reinstated. In addition to accepting that these penalty submissions can be made, the High Court also confirmed that it is the Court's task to determine in all the circumstances whether an agreed or proposed penalty is an appropriate penalty. The decision is consistent with historical practice, and overturned the decision of the Full Court of the Federal Court of Australia earlier this year, which drastically changed the landscape of civil penalty proceedings by holding that submissions as to agreed or proposed penalties were not permissible. The High Court's decision will facilitate the resolution of regulatory proceedings by providing greater certainty that penalties agreed between the parties will likely come to be reflected in the court's orders.

An important decision of the Full Court of the Federal Court of Australia was Haritos v Commissioner of Taxation (No 2) (2015) 322 ALR 254, which specifically concerned the determination of what constitutes a 'question of law' in the context of an appeal from the AAT to the Federal Court of Australia. The Full Court held that consideration of whether such a question exists ought to be addressed as a matter of substance rather than form. The consequence is that a more flexible, liberal approach to determining a question of law will be taken by the Federal Court in future. A further consequence of the more liberal approach to a question of law is that it is more likely that some mixed questions of fact and law may be considered by the Federal Court on appeal from an administrative tribunal in the forthcoming years. This liberal interpretation of a question of law indicates that Federal Court judges are more likely to deal with appeals from tribunal decisions on a final, rather than interlocutory basis (as confirmed in Kennedy v Secretary, Department of Industry [2015] FCA 714).

Footnote

¹ Holding Redlich acted for Today FM in the case.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.