A number of administrative law cases were handed down by the NSW Court of Appeal in 2016. These included Learmont v Commissioner of Police [2016] NSWCA 137 (denial of procedural fairness), Botany Bay City Council v Minister for Local Government [2016] NSWCA 74 (mandatory relevant considerations for the amalgamation of local councils), Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 (bias in decision making), and Agricultural Societies Council of NSW v Christie [2016] NSWCA 331 (jurisdiction of courts to interfere in decision making).
Commonwealth developments
A significant administrative law decision handed down by the High Court of Australia in 2016 was Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46. The case reaffirmed the appropriateness and the desirability of parties to civil penalty proceedings to make submissions to a court as to the appropriate pecuniary penalty amount to be imposed. In a welcome decision for regulators, the High Court overturned a decision of the Full Court of the Federal Court of Australia, which held that the High Court decision in Barbaro v The Queen (2014) 253 CLR 58 precluded a Court from receiving submissions as to an agreed civil penalty to be imposed under the Building and Construction Industry Improvement Act 2005 (Cth). The High Court's decision affirms that parties involved in civil penalty proceedings can agree on facts and quantum of civil penalties to be imposed. If the court considers the quantum of proposed penalty is not appropriate, it may give the parties an opportunity to withdraw their consent or otherwise be heard. Consistent with previous decisions of the Full Court in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 and Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993, the court will need to be persuaded that the penalty which the parties propose is appropriate on the facts of the case.
In Minister for Immigration & Border Protection v Eden [2016] FAFC 28, the Full Court of the Federal Court of Australia confirmed the principles that apply to the standard of legal unreasonableness as an avenue for judicial review of administrative decisions. The Full Court has confirmed the principles and the practical stringency required in the application of the standard of 'legal unreasonableness'. In deciding whether a decision is legally unreasonable, there must be an assessment of the 'decisional freedom' open to a decision maker. Each of their Honours in Eden also observed that the 'intensity of the standard' for legal unreasonableness is likely to be higher in a case involving the exercise of a substantive, rather than procedural, statutory power. Further, careful consideration must be given to the facts of the case and the terms, scope and objects of the legislation under which the power is exercised.
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