Australia: Administrative law developments

NSW Government Bulletin Summer 2014 Edition – year in review
Last Updated: 15 January 2015
Article by Greg Wrobel

Most Read Contributor in Australia, September 2016

New South Wales developments

On 1 January 2014, a major overhaul of the NSW tribunal system saw the consolidation of 23 tribunals (including the Consumer, Trader and Tenancy Tribunal (CTTT) and the Administrative Decisions Tribunal (ADT)) to form NSW's first 'super tribunal', the NSW Civil and Administrative Tribunal (NCAT). The work of the Administrative and Equal Opportunity Division within NCAT includes the review of administrative decisions made by NSW Government agencies and the resolution of discrimination matters. This Division takes up some of the work of the former ADT.

Another important development was the publication, in June 2014, of a report by the Information Commissioner on the operation of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The report covered the period 2010 to 2013 and, broadly speaking, found that NSW Government agencies appear to be 'adopting the (GIPA) Act's operation and strategic intent'. The NSW Attorney General is currently conducting a review of the GIPA Act, the purpose of which is to consider whether its policy objectives remain valid and whether its terms are appropriate for securing those objectives. The review is also considering the relationship between the GIPA Act and the Privacy and Personal Information Protection Act 1998 (NSW).

A number of administrative law cases were decided by the NSW Court of Appeal in 2014. Many of the cases dealt with alleged failure to afford procedural fairness, including Reznitsky v DPP (NSW) [2014] NSWCA 79 (fundamental breach of the hearing rule); Frost v Kourouche (2014) 86 NSWLR 214 and Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 307 ALR 262. A repeated theme in the case law was that procedural fairness is intended to avoid 'practical injustice'. Another decision of note was Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112, in which the NSW Court of Appeal considered the duty to give reasons.

Commonwealth developments

In May 2014, the Commonwealth Government announced its intention to streamline and simplify Australia's external merits review system. The reforms are intended to remove unnecessary layers of bureaucracy and deliver an improved and simplified merits review system. From 1 July 2015, key Commonwealth external merits review agencies will be amalgamated—namely, the Administrative Appeals Tribunal (AAT), Migration Review Tribunal and Refugee Review Tribunal, Social Security Appeals Tribunal and the Classification Review Board. Merits review of Freedom of Information (FOI) matters, currently undertaken by the Office of the Australian Information Commission (OAIC), will also be transferred to the AAT from 1 January 2015. Under the new arrangements, the Office of the Privacy Commissioner will be established as a separate statutory office and will continue to be responsible for the exercise of statutory functions under the Privacy Act 1988 and related legislation.

Following the High Court of Australia's 2013 decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, several cases have further considered the concept of legal unreasonableness in decisions as a basis for judicial review. Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280, like Li, concerned the legal unreasonableness of a decision of the Migration Review Tribunal to adjourn a review application to allow an applicant to attend to matters the might satisfy the criteria for the grant of a visa). Subsequent cases have extended legal unreasonableness in other contexts: see Fiorentino v Companies Auditors and Liquidators Disciplinary Board [2014] FCA 641 (adjournment applications); CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 (taking witness evidence); Jones v Office of the Australian Information Commissioner [2014] FCA 285 (merits of a decision).

An important High Court of Australia case to follow is Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (S225 of 2014), an appeal from a decision of the Full Court of the Federal Court of Australia (Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority (2014) 307 ALR 1). Broadly speaking, the case relates to a determination by the ACMA in an investigation report that Today FM, a commercial radio broadcasting licensee, breached the Surveillance Devices Act 2007 (NSW) and thereby also a standard condition of its commercial radio broadcasting licence under the Broadcasting Services Act 1992 (Cth) (BSA). The relevant licence condition provides that 'the licensee will not use the broadcasting service in the commission of an offence against another Act or a law of a State or Territory'. The Full Court decided that the determination of whether or not person had committed criminal offence was vested in courts exercising criminal jurisdiction, and not persons or bodies exercising executive power. Although the case involves the scope of the ACMA's investigative powers under the BSA, it is likely to have broader implications for Commonwealth and State Government agencies. The appeal was heard by the High Court of Australia in November 2014 and a decision is pending.

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.

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