¹ For example, Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441.

² Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

³ (1995) 127 ALR 580.

⁴ (1995) 133 ALR 74; upheld on appeal, Norvill v Chapman (1995) 133 ALR 226. See C Kenny,Women's Business (1996).

⁵ Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220.

⁶ (1995) 183 CLR 275.

⁷ See Administrative Decisions (Effect of International Instruments) Bill 1995, introduce into the Commonwealth Parliament on 28 June 1995; Senate Legal and Constitution Legislation Committee, Report on the Administrative Decisions (Effect of Internation Instruments) Bill 1995; and references inn 42, below.

⁸ (1994) 127 ALR 223; discussed below, in text accompanying n 92.

⁹ (1994) 127 ALR 383 per Sackville J; (1995) 130 ALR 48 (Full Court of the Federal Court).

¹⁰ (1995) 131 ALR 559.

¹¹ (1995) 183 CLR 245.

¹² (1995) 184 CLR 19. Legislation to overturn the decision was subsequently enacted: Crim Amendment (Controlled Operations) Act 1996 (Cth).

¹³ For example, Kioa v West (1985) 159 CLR 550 (natural justice); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (relevant considerations); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (scope of judicial review under ADJR Act); and Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 (ADJR Act, s 16). Generally, see M Aronson and B Dyer, Judicial Review of Administrative Action (1996).

¹⁴ Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106. See also Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (implications arising from the separation of judicial power); and Leeth v Commonwealth (1992) 174 CLR 445 (per Toohey and Deane JJ, articulating an implied principle of legal equality). See also G Williams, “Civil Liberties and the Constitution - A Question of Interpretation” (1994) 5 PLR 82; L Zines, “A Judicially Created Bill of Rights?” (1994) 16 Syd LR 166.

¹⁵ (1992) 175 CLR 1 (defining the common law recognition of Aboriginal native title).

¹⁶ (1992) 177 CLR 292 (defining the common law presumption of adequate legal representation for an accused person).

¹⁷ Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 at 730 per Wilcox and French JJ. See also Buksh v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 647 at 656 per Einfeld J.

¹⁸ (1994) 179 CLR 427 at 438 per Mason CJ, Brennan, Gaudron and McHugh JJ.

¹⁹ Ibid at 436. See also Bropho v Western Australia (1990) 171 CLR 1 at 18; and Minister for Immigration and Ethic Affairs v Teoh (1995) 183 CLR 273 at 304 per Gaudron J, proposing tha there are rights flowing from citizenship.

²⁰ Justice P Finn, “The Courts and the Vulnerable” in Law and Policy Papers (Paper No 5, 1996.at 7. See also Sir Anthony Mason, “The Importance of Judicial Review of Administrativ( Action as a Safeguard of Individual Rights” (1994) 1 Aust J of Human Rights 3.

²¹ Buck v Comcare (1996) 41 ALD 281 at 286 per Finn J.

²² (1994) 121 ALR 315. See also Skidmore v Minister for Immigration, Local Government and Ethnic Affairs (1992) 34 FCR 59 at 68 per Einfeld J, contending that the purpose o immigration control legislation is to permit, not prevent immigration, and should b applied fairly with that spirit in mind.

²³ (1993) 117 ALR 418 at 430 per Burchett J;applied in Chen v Minister for Immigration an Ethnic Affairs (1994) 123 ALR 126 and Moskal v Minister for Immigration, Local Governme and Ethnic Affairs (1994) 125 ALR 307; contra, Minister for Immigration and Ethnic Affairs v T (1995) 57 FCR 194 at 206 (Full Court).

²⁴ Brennan v Comcare (1994) 122 ALR 615 at 621.

²⁵ Byrnes v Repatriation Commission (1993) 177 CLR 64.

²⁶ Re Vitalone and Secretary, Department of Social Security (1995) 38 ALD 169.

²⁷ Tickner v Bropho (1993) 114 ALR 409 at 435.

²⁸ Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 41 ALD 293.

²⁹ (1994) 179 CLR 427. See also Anthony Lagoon Station Pty Ltd v Maurice (1987) 74 ALR(power conferred upon Aboriginal Land Commissioner to do “all things necessary convenient” for the performance of the function did not authorise entry ontoprivate land)

³⁰ (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ.

³¹ (1995) 55 FCR 221.

³² (1995) 131 ALR 319.

³³ Khan v Minister v Immigration and Ethnic Affairs (1987) 14 ALD 291. See also Hindi v Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586 at 597; and Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405 at 420.

³⁴ Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 at 563; and Lek v Minister for Immigration, Local Government and Ethnic Affair s (1993) 117 ALR 455.

³⁵ Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121 at 132. See also Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation (1990) 96 ALR 153 at 167-168 (referring to “discrimination without justification”); and Aboriginal Land Council (NSW) v Aboriginal and Torres Strait Island Commission (1995) 131 ALR 559 at 576-577.

³⁶ Attorney-General (Hong Kong) v Ng Yuen Shiu (1983) 2 AC 629; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 1.

³⁷ See discussion at text accompanying nn 48-59.

³⁸ See Buksh v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 647 at 656 (enunciating this principle as a ground of review, though the judgment was reversed on appeal: (1992) 26 ALD 399); and Re Vitalone and Secretary, Department of Social Security (1995) 38 ALD 169 (as an aspect of merit review, it is incumbent on a department to provide appropriate assistance to a client with poor English).

³⁹ For example, Buksh v Minister for Immigration, Local Government and Ethnic Affairs (1991) 107 ALR 647 at 656, reversed (1992) 26 ALD 399. See also Skidmore v Minister for Immigration, Local Government and Ethnic Affairs (1992) 34 FCR 59 at 70; Premelal v Minister Jo;, Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 117 at 136-142; Phillips i Department of Immigration and Ethnic Affairs (1994) 48 FCR 57 (discussed in tex accompanying n 96); and Ozmanian v Minister for Immigration, Local Government and Ethni, Affairs (1996) 41 ALD 293 at 324.

⁴⁰ For example, SirAnthony Mason, , “A Bill of Rights for Australia?” (1990) 5 Aust Bar Rev 7' at 81Google Scholar; Justice Kirby, M, Address to “Public Seminar: A Bill of Rights for the ACT” (Record o Proceedings, 1994) at 9Google Scholar; Justice Toohey, J, “A Government of Laws, and Not of Men?” (1993 4 PLR 158 at 173Google Scholar; Justice Wilcox, M, An Australian Charter of Rights? (1993)Google Scholar. See also Si Gerard Brennan, , “Courts, Democracy and Law” (1991) 65 ALJ 32 at 35Google Scholar, writing of “the ris1 to democratic freedom” posed by executive influence; and the recent publication of a dra Australian Charter of Rights and Freedoms by a Working Group of the Law Council Australia, Australian Lawyer (May 1995). Cf Sir Gibbs, Harry, “The Constitutional Protectio of Human Rights” (1982) 9 MULR 1Google Scholar; and SirHarry Gibbs, , “A Constitutional Bill of Rights”. (1986) 45 AJPA 171Google Scholar.

⁴¹ For example, Justice Finn, , “Controlling the Exercise of Power” (1996) 7 PLR 86 at 9Google Scholar concluding that the value system and moral vision of the common law is “most starkly evidence when it confronts the phenomenon of power”.

⁴² (1995) 183 CLR 273 at 291. See SirMason, A, “Influence of International and Transnational Law on Australian Domestic Law” (1996) 7 PLR 20Google Scholar; Walker, K, “Treaties and the Internationalisation of Australian Law” in Saunders, C (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996)Google Scholar; Allars, M, “One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government” (1995) 17 Syd L R 204Google Scholar; and Twomey, A, “Minister for Immigration and Ethnic Affairs v Teoh” (1995) 23 FL Rev 348Google Scholar.

⁴³ Cf Kioa v West (1985) 159 CLR 550. See also M Taggart, “Legitimate Expectation and Treaties in the High Court of Australia” (1996) 112 LQR 50; P Bayne, “Administrative law, human rights and international humanitarian law” (1990) 64 AL/ 203; and R v Secretary of State for the Home Department; exp Brind (1991] 1 AC 696.

⁴⁴ (1993) 41 FCR 117.

⁴⁵ See notes 15 and 16. See also Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 499 per Mason CJ and Toohey J (“international law … provides an important influence on the development of Australian common law, particularly in relation to human rights”).

⁴⁶ For example, the dissenting judgment of McHugh J, in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273Google Scholar; Senate Legal and Constitutional Legislation Committee, Report on the Administrative Decisions (Effect of International Instruments) Bill 1995; Burmester, H, “The Teoh Decision -A Perspective from the Government Service” (1995) 5 AIAL Forum 6Google Scholar; McMillan, J, “Teoh, and Invalidity in Administrative Law” (1995) 5 AIAJ Forum 10Google Scholar; Evans, G, “The Impact of Internationalisation on Australian Law: A Commentary” in Saunders, C (ed), Courts of Final Jurisdiction: The Mason Court in Australi, (1996)Google Scholar.

⁴⁷ For recent examples of conventions being used in this way, see Chen v Minister Jo Immigration and Ethnic Affairs (1994) 123 ALR 126; Young v Registrar, Court of Appeal (No 3 (1992) 32 NSWLR 262; Director of Public Prosecutions v Serratore (1995) 132 ALR 461; R Zulman and Collector of Customs (1995) 38 ALD 427. See also Gerhardy v Brown (1985) 15 CLR70.

⁴⁸ (1993) 116 ALR 54 at 64-65. See also the analysis by Kirby Pin, New South Wales v Macquar Bank Ltd (1992) 30 NSWLR 307Google Scholar.

⁴⁹ Burmester, H Bezzi, M, “Proportionality: A Fashionable and Dangerous Doctrine, or a Essential Safeguard Against Abuse of Power?” (paper delivered to AIAL National Foru Sydney, April 1996)Google Scholar.

⁵⁰ Veen v The Queen [No 2] (1988) 164 CLR 465.

⁵¹ Carter Corporation v Medway (unreported, NSW Court of Appeal, 12 July 1995).

⁵² Davis v The Commonwealth (1988) 166 CLR 79 at 100.

⁵³ (1989) 166 CLR 161.

⁵⁴ Ibid at 165 per Wilson, Dawson, Toohey and Gaudron JJ.

⁵⁵ Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54 at 74 per Gumrnow J. See also Cooper J in Dover Fisheries, ibid; Mahoney J in New South Wales v Macquarie Bank Limited (1992) 30 NSWLR 307; Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 112 ALR 211 at 214; Bienke v Minister for Primary Industries and Energy (1996) 135ALR 128.

⁵⁶ For example, Edelsten v Wilcox (1988) 83 ALR 99 (an order to a taxpayer to pay, in effect,100% of his income in settlement of a tax liability was declared to be unreasonable); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J (suggesting that procedural fairness “requires a minimum degree of 'proportionality' “); M Allars, Introduction to Australian Administrative Law (1990) at para 5.57; Jowell, J Oliver, D, “Proportionality: Neither Novel Nor Dangerous” in Jowell, Oliver, (eds), New Directions in Judicial Review (1988) 51Google Scholar.

⁵⁷ Administrative Decisions CTudicial Review) Act 1977 (Cth), s 5(2)(g), capturing the standard stated by Lord Greene in Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230.

⁵⁸ For example, criticisms made by Lord Lowry in R v Secretary of State for the Home Department; Ex parte Brind [1991] 1 WLR 588; and S Boyron, “Proportionality in English Administrative Law: A Faulty Translation?” (1992) 12 OJLS 237.

⁵⁹ Aronson, M Dyer, B, Judicial Review of Administrative Action (1996) at 378-379Google Scholar.

⁶⁰ Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 193 per Dixon J. See also Bottomley, S, Gunningham, N, Parker, S, Law in Context (rev ed 1994), Ch 2Google Scholar.

⁶¹ See also Justice Toohey, J, “A Government of Laws, and not of Men?” (1993) 4 PLR 158 at 174Google Scholar, extolling “the efficacy of the rule of law as a means both of protection against the misuse of legislative and executive power and of promotion of fundamental rights and principles”; and North Ganalanja Aboriginal Corporation v Queensland (1996) 40 ALO 129 at 176 per Kirby J.

⁶² (1995) 184 CLR 19.

⁶² Ibid at 57-58. Cf the dissenting judgment of McHugh J, arguing that the illegal operatior was conceived and doggedly pursued by Ridgeway, and that police condonation was o reduced significance.

⁶⁴ (1995) 39 ALD 303 at 326 per Finn J.

⁶⁵ Ibid.

⁶⁶ (1994) 126 ALR 731.

⁶⁷ Recent interesting cases include: Chen Zhen Zi v Minister for Immigration and Ethnic Affair. (1994) 121 ALR 83 (an oral hearing is not required as a general rule in refuge1 determination, but may be required in exceptional situations); O'Neill v Mann (1994) 12! ALR 524 (a substantial oral hearing of an adversarial nature would be required t terminate the appointment of a magistrate); Chu Sing Wun v Minister for Immigration, Loe Government and Ethnic Affairs (1993) 118 ALR 345 (in the case of confidential material, it is sufficient that a person is told of the essential features); Gamester Pty Ltd v Lockhart (1993) 112 ALR 623 (where a party fails to use the opportunity available to present evidence an submissions in support of a contention, the judge is not obliged to search for evidence support the contention); Powerlift (Nissan) Pty Ltd v Minister for Small Business, Constructi and Customs (1993) 113 ALR 339 (the right to be informed of the issues in dispute does n include a right to know of the tentative views of the decision-maker); In the Marriage o and KA Zantiotis (1993) 113 ALR 441 (where a decision is based in part on the judg observation of the demeanour of a family member, the parties should have had the opportunity to address the court on that issue); Marelic v Comcare (1993) 121 ALR 114 (the AAT should as a general principle follow the rule in Browne v Dunn, that it should inform counsel of the AAT's intention to rely upon its own observations of a witness); Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 1) (1993) 47 FCR 1, on appeal (1994) 127 ALR 223 (a refugee claimant should have been informed that the decision-maker was relying upon a Departmental report on conditions in Cambodia); Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 127 ALR 699 (the decision-maker was not obliged to disclose his or her provisional views or mental processes, but was required to disclose adverse material gained from other sources, critical issues that were not apparent from the statute, and adverse conclusions that were not obviously open on the known material); Hodginkson v Companies Auditors and Liquidators Disciplinary Board (1994) 127 ALR 741 (consistently with natural justice, it was sufficient that the Board's enquiry had been outlined broadly, not that there was a particularised statement of the facts relied upon); Easton v Griffiths (1995) 130 ALR 306 (natural justice did not require payment of a party's legal expenses, to facilitate representation); Bunnag v Minister for Immigration and Ethnic Affairs (1993) 124 ALR 383 (natural justice does not require that a person be cautioned about the possible adverse consequences that could stem from an interview); Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 119 ALR 342 (the obligation of disclosure extends to all the adverse allegations in the possession of a department, not just those which it perceives as relevant to the decision which it has to make); Melbourne Pathology Pty Ltd v Minister for Human Services and Health (1996) 40 ALD 565 (no obligation to observe natural justice in making delegated legislation, but an obligation to observe it did exist in applying the legislation in a particular case); Botany Bay Council v Minister for Transport (1996) 41 ALD 84 (decision to re-open Sydney's East-West runway not subject to natural justice obligation, because the decision affected the public generally); Stephenson v Human Rights and Equal Opportunity Commission (1995) 41 ALD 229 (not necessarily a breach of natural justice for a court to rely on cases not raised by the parties during the hearing).

⁶⁸ For example, Mclnnes v Onslow-Fane [1978] 3 All ER 211.

⁶⁹ Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 (see particularly discussion by McHughJ).

⁷⁰ Kioa v West (1985) 159 CLR 550.

⁷¹ Deane Jin, Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR at 65Google Scholar: has described this approach as “conceptually more satisfying”. See also Century Metals am Mining NL v Yeomans (1989) 100 ALR 383 at 409 (Full Court) - “procedural fairness ha, been developed by the judges, in an attempt to shield from unfairness those potentiall affected by the exercise of certain legal, including statutory, powers”.

⁷² For criticism of the “universal implication” approach, see J McMillan, “Development:under the ADJR Act: the Grounds of Review” (1991) 20 FL Rev 50 at 70-74.

⁷³ (1994) 127 ALR 699.

⁷⁴ (1995) 183 CLR 273.

⁷⁵ See Administrative Decisions (Effect of International Instruments) Bill 1995 (Cth).

⁷⁶ Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorne General, Michael Lavarch (10 May 1995). See, however, Department of Immigration an Ethnic Affairs v Ram (1996) 41 ALO 517, suggesting that the “executive indication to tha contrary” acknowledged by the Court in Teoh, referred to a statement made at the time of ratifying a treaty, and not an announcement like the Joint Statement made some time after.

⁷⁷ (1995) 129 ALR 443.

⁷⁸ A similar ruling was made by the High Court (Toohey J dissenting) in Johns v Australian Securities Commission (1993) 178 CLR 408. It was held that the ASC was obliged by natural justice to give a hearing to Johns before releasing to a public session of a royal commission the transcripts of a private examination of Johns conducted by the ASC. See also Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 41 ALD 293 (department obliged to obseve natural justice in deciding whether to refer a case to a Minister, even though the statute provided that the Minister had no obligation to make a decision). Compare Minosea Pty Ltd v Australian Securities Commission (1994) 35 ALD 493, in which Lindgren J held that the ASC was not obliged by natural justice to provide a hearing to a bank before issuing a notice that required the bank to produce documents for an investigation, contrary to the obligation of confidentiality the bank would otherwise owe to the customer the subject of the investigation. Further, contrast Av Marsh (1995) 38 ALD 566 (Veterans Review Board not required as a general rule to provide a hearing to a veteran before exercising the power to request further information from the Department) and A v Veterans Review Board (1995) 38 ALD 315 (obligation imposed as an exception to the general rule).

⁷⁹ See Kioa v West (1985) 159 CLR 550 at 585 per Mason J, “[T]he expression 'procedural

fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”.

⁸⁰ For example, Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 690 per Deane J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J;, Mahon v Air New Zealand Ltd [1984] AC 808 at 821. Note, however, that the High Court has not confirmed this principle - see text accompanying n 171.

⁸¹ Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 at 563.

⁸² Text accompanying notes 177-181.

⁸³ For example, Videto v Minister for Immigration and Ethnic Affairs (1985) 69 ALR 342 and Elbourne v Minister for Immigration, Local Government and Ethnic Affairs (1991) 22 ALO 211 at 212. Other illustrations of the duty being imposed include Luu v Renevier (1989) 91 ALR 39;, Tickner v Bropho (1993) 114 ALR 409; and Lek v Minister for Immigration, Local Government! and Ethnic Affairs (1993) 117 ALR 455. Cf Enichem v Anti-Dumping Authority (1992) 111 ALR: 178 (an agency is not obliged to deal with every avenue of inquiry suggested by a party);; Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health1 (1995) 128 ALR 238 (no obligation to investigate whether approval of drug would be, contrary to State criminal law); and Minister for Immigration and Ethnic Affairs v Teoh (1995)183 CLR 273 at 289-290 (per Mason CJ and Deane J, doubting if the duty of inquiry was am aspect of natural justice), at 302-303 (per Toohey J, imposing such a duty).

⁸⁴ For example, Luu v Renevier (1989) 91 ALR 39, and Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 121 ALR 436 (Full Ct, Fed Ct).

⁸⁵ (1994) 127 ALR 223 at 249-250.

⁸⁶ (1993) 117 ALR 418.

⁸⁷ (1995) 58 FCR 1.

⁸⁸ Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367.

⁸⁹ Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 121 ALR 436 at 452 per Lee J.

⁹⁰ (1993) 48 FCR 20; on appeal (1994) 53 FCR 349.

⁹¹ In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291, Mason CJ and Deane J criticised the Federal Court judgments of Lee and Carr JJ, for transforming natural justice from a duty of procedural fairness into a doctrine of substantive fairness, by requiring that a decision-maker was obliged to decide consistently with the Convention.

⁹² (1994) 127 ALR 223.

⁹³ Ibid at 245-246.

⁹⁴ For example, ADJR Act 1977, s 5(2)(e) - “an exercise of a personal discretionary power atl the direction or behest of another person”.

⁹⁵ Vakuata v Kelly (1989) 167 CLR 568; Re Finance Sector Union of Australia; Ex parte Illaton1 (1992) 107 ALR 581; and R v Commonwealth Conciliation and Arbitration Commission; Ex partt. Angliss Group (1969) 122 CLR 546.

⁹⁶ (1994) 34 ALD 758.

⁹⁷ Ibid at 769.

⁹⁸ For example, Balog v Independent Commission Against Corruption (1990) 169 CLR 625; Independent Commission Against Corruption v Chaffey (1992) 30 NSWLR 21; and Johns v Australian Securities Commission (1993) 178 CLR 408. Only in exceptional circumstances will a court undertake judicial review of the commencement of criminal proceedings: Smiles v Federal Commissioner of Taxation (1992) 109 ALR 449; Elliott v Seymour (1993) 119 ALR 1 (HC), 119 ALR 10 (Fed Ct).

⁹⁹ Independent Commission Against Corruption v Cornwall (1993) 116 ALR 97.

¹⁰⁰ See M Allars, above at 235.

¹⁰¹ F H Faulding and Co Ltd v Federal Commissioner of Taxation (1994) 126 ALR 561 (a notice issued by the Commissioner, requiring production of documents needed for assessment of a taxpayer, was invalid because it requested production of documents that would not be relevant to the assessment); Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue (1994) 123 ACTR 17 (a notice requiring a person to attend for examination concerning an enquiry into “the liability of a person under a tax law” was defective for not specifying the person whose liability was under enquiry); and Carbone v National Crime Authority (1994) 126 ALR 79 (a search warrant should be construed strictly, and it is no answer for a government agency to claim that the defect in the notice arose from inadvertence or a typing error).

¹⁰² Sremcevic v Gurry (1994) 123 ALR 255 (a search warrant need not be drafted with the precision of an indictment); Deputy Commissioner of Taxation v De Vonk (1995) 133 ALR 303 (a court should display caution in undertaking judicial review of a notice to require that a person attend for examination; judicial review is more appropriate of the conduct of the examination).

¹⁰³ For example, Australian Securities Commission v Lucas (1992) 108 ALR 521; Allen, Allen and Hemsley v Australian Securities Commission (1992) 27 ALD 296; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 112 ALR 463; Whelan v Australian Securities Commission (1993) 119 ALR 323; MacDonald v Australian Securities Commission (1994) 120 ALR 515; Deloitte Touche Tohmatsu v Australian Securities Commission (1995) 128 ALR 318; Neate v Australian Securities Commission (1995) 132 ALR 413; Deloitte Touche Tohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Ross Tohmatsu) v Australian Securities Commission (1996) 136 ALR 453.

¹⁰⁴ (1990) 170 CLR 321. For examples of this decision being applied, see text following n 113.

¹⁰⁵ (1993) 178 CLR 408. See also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (procedural fairness required disclosure by the CJC of an adverse report received during. investigation of an enquiry into possible criminal behaviour).

¹⁰⁶ Other recent examples of a strict approach include: MacDonald v Australian Securities Commission (1994) 120 ALR 515 (notice to produce declared invalid for being expressed too, broadly); R v Elliott (Supreme Court of Victoria, 6 May 1995, unreported ¯an excess of power for National Crimes Authority to collect evidence on offences related to but not themselves the subject of an authorised investigation).

¹⁰⁷ (1995) 134 ALR 238.

¹⁰⁸ (1995) 39 ALD 303.

¹⁰⁹ The practical result of the Court's finding is that the legal basis for the MPRA's report was eroded, the report languished, and the allegations of workplace harassment were unresolved. In a similar vein is Chapman v Minister for Aboriginal and Torres Strait Islande Affairs (1995) 133 ALR 74, quashing a report to the Minister by Professor Saunders on th Hindmarsh Bridge development proposal, by reason of a natural justice defect in the notic commencing the inquiry, resulting subsequently in a fresh inquiry and report to th Minister by Mathews J.

¹¹⁰ A further finding, which may independently have provided a sufficient basis for a finding of invalidity, was that the MPRA had declined to adopt the definition of workplace harassment published by the Public Service Board, and had opted instead for a far broader definition borrowed from another enquiry.

¹¹¹ (1995) 129 ALR 455.

¹¹² For example, Finn J, , “Controlling the Exercise of Power” (1996) 7 PLR 86Google Scholar.

¹¹³ (1990) 170 CLR 321.

¹¹⁴ For example, ADJR Act, Schedule 1, defining “Classes of decisions that are not decisions t< which this Act applies” ands 10(2), conferring a discretion on the Federal Court to refus, an application for judicial review where there is a suitable alternative method of review Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409 per Lore Diplock, defining the attributes that must be present for a decision to qualify as a subjec for judicial review (eg, a decision empowered by public law that has consequences whic affect a person); and Minister for the Arts, Heritage and Environment v Peko-Wallsend Lt (1987) 75 ALR 218, discussing the justiciability of Cabinet decisions and decisions made i the exercise of prerogative powers.

¹¹⁵ Section 5 of the ADJR Act provides that a person may make an application to the Federal Court to review “a decision to which this Act applies”, which is defined in tum in s 3 to mean “a decision of an administrative character made ... under an enactment”. Section 6 of the ADJR Act provides that a person may seek review of “conduct” engaged in for the purpose of making a decision to which this Act applies.

¹¹⁶ (1990) 170 CLR 321 at 337 and 342.

¹¹⁷ The few successful cases include: Pegasus Leasing Ltd v Federal Commissioner of Taxation (1991) 32 FCR 158 (advisory letter from Tax Office); Neate v Australian Securities Commission (1995) 132 ALR 413 (a notice requiring a person to “show cause” why a final notice should not be issued); Hutchins v Federal Commissioner of Taxation (1996) 136 ALR 153 (a voting decision by the Commonwealth as a creditor in a bankruptcy).

¹¹⁸ For example, Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339; and Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 367.

¹¹⁹ For example, Mount Isa Mines Ltd v Marks (1992) 106 ALR 702; Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580; Kelson v Forward (1995) 39 ALD 303; Chapman v Minister for Aboriginal and Torres Strait Islander Affairs (1995) 133 ALR 74.

¹²⁰ (1990) 170 CLR 321 at 336-337.

¹²¹ See in particular the description of the role of ADJR litigation in converting a projected 15- day inquiry by the Australian Broadcasting Tribunal in Perth into a 117-day inquiry, involving at least 12 ADJR challenges to procedural rulings by the Tribunal: Grey, L, “The: Impact of Administrative Law in Communications Regulation” in McMillan, J (ed),, Administrative Law: Does the Public Benefit? (1992) 232 at 236-240Google Scholar.

¹²² (1990) 170 CLR 321 at 374 per Toohey and Gaudron JJ.

¹²³ Ibid at 378.

¹²⁴ Section 39B confers jurisdiction on the Federal Court to issue certain remedies against “ar officer or officers of the Commonwealth”. This supplementary jurisdiction is mostly, invoked in respect of activity that does not arise “under an enactment” (ADJR Act, s 3(1) definition of “decision to which this Act applies”), but it has been invoked in respect o activity that is not a “decision” or “conduct” ¯eg, El Sayed v Minister for Immigration, Local Government and Ethnic Affairs (1991) 22 ALD 767 (a refugee determination); Harris v Bryce (1993) 113 ALR 726 (proposal by Sex Discrimination Commissioner to investigate a complaint).

¹²⁵ (1995) 131 ALR 559. See also Seventh Mingcourt Pty Ltd v Lawrence (1996) 40 ALD 603 (though the Minister had not in fact made a decision, she was to be treated as having done so, because she had purported to do so and had claimed to have done so).

¹²⁶ (1983) 49 ALR 533 at 557 per Bowen CJ, Sheppard and Fitzgerald JJ (emphasis supplied).M Aronson and B Dyer, Judicial Review of Administrative Action (1996) at 54-55 conclude that there were relatively few problems arising from the Federal Court's liberal definition of “decision” in Lamb v Moss, and that there was little point thereafter in taking an objection that the subject of a challenge was not a decision. There is the further option of amending the ADJR Act to extend the powers of the Federal Court to prevent premature litigation, as recommended by the Administrative Review Council in 1989. The Council proposed an amendment to s 10 of the ADJR Act to confer power upon the Court to refuse to grant an application for review that was instituted during the course of proceedings, in order to avoid interference with the due and orderly conduct of the proceedings or because the balance of convenience so requires: Review of the Administrative Decisions (Judicial Review) Act: the Ambit of the Act (Report No 32, 1989) at paras 359-363.

¹²⁷ (1990) 170 CLR 321 at 340-341.

¹²⁸ SirAnthony Mason, , “Administrative Law ¯ Form Versus Substance” in Cole, K (ed), Administrative Law and Public Administration: Form vs Substance (1996) 1 at 2 and 7Google Scholar.

¹²⁹ For example, see the cases concluding that a resolution of the Australian Securities Commission that litigation should be commenced was not a decision, whereas the action to implement that resolution and commence the litigation was a decision: Deloitte Touche Tohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Ross Tohmatsu) v Australian Securities Commission (1995) 54 FCR 562, (1995) 13 ACLC 783, and (1996) 136 ALR 453.

¹³⁰ For example, cf Smiles v Director of Public Prosecutions (1992) 107 ALR 439, and Gillis v Director of Public Prosecutions (1993) 119 ALR 510, concerning whether a decision to prosecute is a decision.

¹³¹ (1996) 185 CLR 259.

¹³² Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389,407 and 429.

¹³³ (1996) 185 CLR 259 at 281 per Brennan CJ, Toohey, McHugh and Gummow JJ. Other comments of the High Court were equally terse, referring to “what appears to be a false line of authority” (ibid at 263); the Federal Court was said to have “insufficiently appreciated” a legislative change (at 264); it read meaning into “innocuous” language (at 281); “[t]here is nothing here to suggest” (at 278); “we find it difficult to understand” (at 280); and “too long a leap is required"(at 280).

¹³⁴ Ibid at 295.

¹³⁵ Ibid at 272. Query whether, in light of Wu, the comment of the decision-maker in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 281, “that Ms Teoh and family are facing a very bleak and difficult future” were Mr Teoh deported, should have been accepted as a sufficient indication that the best interests of the children had been considered as a matter of substance? Cf the conclusion to that effect of McHugh J, dissenting, ibid at 320.

¹³⁶ Ibid at 291.

¹³⁷ Ibid at 282 per Brennan CJ, Toohey, McHugh and Gummow JJ; at 293 per Kirby J.

¹³⁸ For example, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 at 8-lQI per Neaves, French and Cooper JJ; Australian Broadcasting Commission Staff Association i Bonner (1984) 54 ALR 653 at 668-669 per Kirby J; Blackwood Hodge (Aust) Pty Ltd v Collector, of Customs (1980) 47 FLR 131; McAuliffe v Secretary, Department of Social Security (1992) 2E ALD 609 at 616 per Spender, Forster and O'Loughlin JJ; Peverill v Backstrom (1994) 38 ALC 14.

¹³⁹ See Bayne, P, “The Court, The Parliament and the Government ¯ Reflections on the Scop1 of Judicial Review” (1991) 20 FL Rev 1Google Scholar.

¹⁴⁰ The High Court drew attention to two other cases in which the Full Court had adopted th1 same reasoning as in Wu: Minister for Immigration, Local Government and Ethnic Affairs v Moi Gek Bouy (1994) 127 ALR 223 (Black CJ, Lockhart and Sheppard JJ); and Chen Ru Mei Minister for Immigration and Ethnic Affairs (1995) 130 ALR 405 (Northrop, Spender and Lei JJ).

¹⁴¹ Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (quoted in Wu (1996) 185 CLR 259 at 272).

¹⁴² Cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341 per Mason CJ, explaining that an added reason for confining the jurisdiction of the Federal Court under the ADJR Act to review findings of fact is that this fell within the function of the Administrative Appeals Tribunal. Though query whether the reference should in fact have been to the Commonwealth Ombudsman, since the Court was speaking of reviewing findings of fact that occurred during preliminary administrative processes, which the AAT could likewise not review unless the findings were related somehow to a reviewable “decision”.

¹⁴³ Buck v Bavone (1976) 135 CLR 110 at 119 per Gibbs CJ, quoted in Wu (1996) 185 CLR 259 at 275-276.

¹⁴⁴ (1995) 131 ALR 595.

¹⁴⁵ (1985) 157 CLR 351.

¹⁴⁶ [1969] 2 AC 147.

¹⁴⁷ Cf the decision of the High Court in R v District Court of Queensland Northern District; Ex parte Thompson (1968) 118 CLR 488 with the decisions of the NSW Court of Appeal in G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503, and Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368.

¹⁴⁸ (1992) 177 CLR 292.

¹⁴⁹ See cases cited inn 147.

¹⁵⁰ (1995) 131 ALR 595 at 604 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

¹⁵¹ Ibid at 608.

¹⁵² This catalogue of errors is similar to the list of jurisdictional errors given by Lord Reid in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171. The High Court pointed out that Lord Reid's judgment could not be accepted in Australia as an authoritative statement of what constitutes jurisdictional error by an inferior court ((1995) 131 ALR 595 at 602).

¹⁵³ Ibid at 600.

¹⁵⁴ Administrative Appeals Tribunal Act 1975 (Cth), s 44; Director-General of Social Services v 'Chaney (1980) 31 ALR 571.

¹⁵⁵ Cf also the view of T Ison, “The Sovereignty of the Judiciary” (1985) 10 Adel L Rev l at 11: “The assertion that only courts can determine 'law' is a notion born of wizardry and power politics. … It reflects an attempted ideological rationalisation for judicial review that is oriented in private law, not in public law.”

¹⁵⁶ Note, too, the high number of leading administrative law cases in which there was a reversal by a superior court of the decision or principle of a lower court: a list was given in J McMillan, “The Conflicting Values in Administrative Law and Public Administration: A Marriage Strained”, in S Argument (ed), Administrative Law and Public Administration: Happily Married or Living Apart under the Same Roof? (1994) 31.

¹⁵⁷ The term “tribunal” is imprecise and has been applied by parliament to bodies that proceed by adversarial and adjudicative method (such as the Administrative Appeals Tribunal) as well as to bodies that perform a more orthodox executive function (such as the Social Security Appeals Tribunal, and perhaps the former Australian Broadcasting Tribunal). The term “adjudicative” tribunal has been preferred in this paper, for the reason that the concept of “error within jurisdiction” ¯ the subject of discussion ¯ can suitably apply only to tribunals that proceed by adjudication in a manner comparable to that of courts.

¹⁵⁸ Johnson v Federal Commissioner of Taxation (1986) 72 ALR 625 and 628 per Toohey J.

¹⁵⁹ Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J.

¹⁶⁰ (1986) 68 ALR 441.

¹⁶¹ See the definition of merit review in Drake v Minister for Immigration and Ethnic Affain (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J, as a selection of the “correct or preferable” decision.

¹⁶² (1994) 121 ALR 315.

¹⁶³ Ibid at 318 per Wilcox, Burchett and Foster JJ. Other cases noted in Chaudhary have declared a similar philosophy - for example, the proposition that decisions be taken “by reference to a liberal and even compassionate outlook appropriate to a free and confident nation and conscious of its reputation as such”: Ates v Minister of State for Immigration and Ethnic Affairs (1983) 67 FLR 449 at 455-456 per Smithers J. See also cases discussed in nn 22 and 23. In the same vein as Chaudhary is Park v Minister for Immigration and Ethnic Affairs (1996) 41 ALD 487, declaring invalid as unreasonable a decision to refuse resident status to an applicant who would be a drain on the Australian medical system.

¹⁶⁴ (1995) 183 CLR 273.

¹⁶⁵ For example, Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 17 ALD 529. See also Brennan Jin Waterford v Commonwealth (1987) 163 CLR 54 at 77: “There is no error of law simply in making a wrong finding of fact”.

¹⁶⁶ For example, GTE (Australia) Pty Ltd v Brown (1986) 14 FCR 309 (Court declared invalid a decision imposing anti-dumping duty, which had been reached on the basis of a misreading of a foreign price list).

¹⁶⁷ Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J.

¹⁶⁸ For example, Hindi v Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586 at 597 per Sheppard J; and Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 455 at 472 per Wilcox J. See also discussion in Deloitte Touche Tohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Ross Tohmatsu) v Australian Securities Commission (1996) 136 ALR 453 at 468 per Lindgren J.

¹⁶⁹ Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 266.

¹⁷⁰ For example, Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 690 per Deane J; and GTE (Australia) Pty Ltd v Brown (1986) 14 FCR 309.

¹⁷¹ See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357 per Mason CJ that:“The approach adopted in these cases has not so far been accepted by this Court.” See also an extra-curial comment by Sir Anthony Mason, that, “[T]hese initiatives taken by the Federal Court … would possibly lead to wider-ranging judicial review, with the result that the Court would be dealing more with the substance of the administrative decision. … Whether that development would meet with executive and political approval is a real question.”: Sir Anthony Mason, “Administrative Law ¯ Form Versus Substance” in K Cole (ed), Administrative Law and Public Administration: Form vs Substance (1996) 1 at 8-9.

¹⁷² Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77 at 80 per Davies, Burchett and Lee JJ.

¹⁷³ Akers v Minister for Immigration, Local Government and Ethnic Affairs (1988) 16 ALD 688 at 694 per Lee J.

¹⁷⁴ Laremont v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13 per Lockhart J.

¹⁷⁵ Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45 per Mason J.

¹⁷⁶ Text accompanying nn 48-59.

¹⁷⁷ Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 at 563 per Wilcox J(ascribing this error to the ground of “unreasonableness”).

¹⁷⁸ Videto v Minister for Immigration and Ethnic Affairs (1985) 69 ALR 342 at 353 per Toohey J.For other illustrations, see cases cited in n 83.

¹⁷⁹ (1992) 110 ALR 627.

¹⁸⁰ Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 302-303; cf Mason CJ and Deane J at 289-290. Breach of the duty of inquiry was also a ground of invalidity relied upon by the Full Court of the Federal Court in Teoh: (1994) 121 ALR 436.

¹⁸¹ For example, Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223 at 249-250, and Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 455.

¹⁸² There is, however, a presumption against the legislature making the jurisdiction of a court contingent upon the actual existence of a state of facts, because of the inconvenient result it produces: Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, especially at 391 per DixonJ.

¹⁸³ Craig v State of South Australia (1995) 131 ALR 595; and R v Gray; Ex parte Marsh (1985) 157 CLR351.

¹⁸⁴ Constitution, s 51(20), conferring power on the Commonwealth Parliament to legislate with respect to “trading corporations”: as to constitutional limits being jurisdictional facts, see R v Federal Court; Ex parte Western Australian National Football League (Inc) (1979) 143 CLR 190.

¹⁸⁵ (1983) 88 ALR 589.

¹⁸⁶ Ibid at 601 per Lockhart J. See also ibid at 597 per Franki J; and, applying Naumovska, Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 110 ALR 367; and Wong v Minister for Immigration and Ethnic Affairs (1994) 37 ALD 51.

¹⁸⁷ (1995) 133 ALR 353.

¹⁸⁸ Australian Heritage Commission Act 1975 (Cth), s 4.

¹⁸⁹ The issue arose before the Court as an answer to a case stated at a preliminary stage of thE proceedings, so that the question of whether the Commission had reached the wrone decision did not arise at this stage of the proceedings.

¹⁹⁰ (1996) 41 ALD 281 per Finn J.

¹⁹¹ Safety, Rehabilitation and Compensation Act 1988 (Cth), s 57(2).

¹⁹² For criticism of “The myth of the self-executing statute” see M Aronson and B Dyer, Judicial Review of Administrative Action (1996) at 68-71.

¹⁹³ See also Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580, in which Sackville J gave serious consideration to, but ultimately did not accept, an argument that the determination of whether an action is one “affecting the environment to a significant extent” (Environment Protection Act (Impact of Proposals) Act 1974 (Cth), s 5) was a jurisdictional fact; and Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, in which the Full Court described a decision to be made by the Minister on migrant entry as a special species of jurisdictional fact in that it was expressed in subjective terms.

¹⁹⁴ (1994) 37 ALD 420.

¹⁹⁵ (1996) 135 ALR 421. Contra: Guo Wei Zhi v Minister for Immigration and Ethnic Affairs (1996) 41 ALD 524.

¹⁹⁶ (1989) 90 ALR 611.

¹⁹⁷ (1988) 16 ALD 318.

¹⁹⁸ (1996) 185 CLR 259.

¹⁹⁹ Text accompanying n 143.