Using Judicial Review

Text version

Peter Hanks QC, Victorian Bar

Slide 1

  • Essentially negative remedies … can be used:
    • to protect … ANZ v Konza;
    • to destroy … WA Land Authority v Minister for Sustainability etc.
  • Cannot be used to create a decision … a successful applicant is most often sent back to the decision-maker.
  • Procedural complications in ADJR Act … largely overcome by Judiciary Act, s 39B(1A)(c).

Slide 2

ANZ v Konza

[2012] FCA 196
[2012] FCAFC 127

  • Challenge to 2 notices issued under ITAA, s 264, requiring disclosure of information (stored in Australia) from customers’ accounts with ANZ Vanuatu

Slide 3

Judiciary Act 1903, s 39B(1) & (1A)(c)
ADJR Act, s 5

  • ANZ sought prohibition against Konza (a delegate of the Commissioner), “an officer of the Commonwealth” … s 39B(1)
  • ANZ claimed notices not authorised by s 264(1) – “a matter arising under a law made by the Parliament” … s 39B(1A)(c)
  • ANZ claimed –
  • notices not authorised by s 264(1), the decision to issue notices involved an error of law,
  • the decision to issue notices was contrary to law,
  • the decision to issue notices involved an improper exercise of power and
  • the notices were uncertain.

Raising s 5(1)(d), (e), (f) and (j) of the ADJR Act

Slide 4

The result

  • Obligation of confidentiality cannot override s 264 … Lander J at [71]; FFC at [30]
  • Disclosure would not breach Vanuatu law … Lander J at [128]; FFC at [23]
  • In any event, s 264 is not subject to constraint by foreign law … Lander J at [81]-[84]; FFC at [31]-[34]
  • Notices not issued for an improper purpose … Lander J at [133]; FFC at [39]-[42]
  • Notice 1 not uncertain … Lander J at [186]; FFC at [50]
  • Notice 2 uncertain … FFC at [63]

Slide 5

WA Land Authority (Landcorp) v Minister for Sustainability etc

[2012] FCA 226

  • Challenge to delegate’s decision to confirm that development of land was “controlled action” under EPBC Act by reason of likely “significant impact” on protected listed species – Carnaby’s Black Cockatoo

Slide 6

Judiciary Act 1903, s 39B(1) & (1A)(c)
ADJR Act, s 5

  • Under ADJR Act, Landcorp claimed:
  • breach of natural justice – s 5(1)(a);
  • decision involved an error of law – s 5(1)(f);
  • irrelevant considerations taken into account – s 5(2)(a);
  • relevant considerations not taken into account – s 5(2)(b).
  • Judiciary Act claims not developed.

Slide 7

The result

  • Irrelevant considerations not taken into account … at [55]-[56], [59]-[60]
  • Relevant considerations taken into account … at [62]-[63], [71]-[72]
  • Natural justice denied when Department failed to reveal:
  • documents reflecting Department’s accumulated knowledge and approach to assessing proposed actions... at [86]
  • information about other developments in the area … at [129]
  • an assumed deficiency in an expert’s report … at [138]