Commonwealth decisions: the Constitution; the ADJR Act; and the Judiciary Act;
⚖️ Overview: Commonwealth Administrative Law Framework
🧾 I. Key Legal Instruments
1. The Constitution of Australia
Establishes separation of powers
Allows for judicial review of administrative action under section 75(v)
Guarantees access to constitutional writs (e.g., mandamus, prohibition, certiorari)
2. ADJR Act 1977 (Cth)
Provides simplified, statutory judicial review of administrative decisions
Grounds for review are codified, including:
Error of law
Improper purpose
No evidence
Unreasonableness (Wednesbury)
Natural justice
Only applies to decisions under an enactment of the Commonwealth
3. Judiciary Act 1903 (Cth)
Section 39B gives the Federal Court jurisdiction to review Commonwealth officers' decisions
Allows use of constitutional writs even outside the ADJR Act
Often used when ADJR Act does not apply (e.g., decisions not made “under an enactment”)
📚 II. Key Case Law (4–5 Cases with Detailed Explanation)
✅ 1. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
📌 Facts:
Plaintiff challenged a decision of the Immigration Department under the Migration Act.
A privative clause tried to prevent judicial review of migration decisions.
Plaintiff invoked section 75(v) of the Constitution.
🧑⚖️ Judgment:
The High Court held that section 75(v) of the Constitution is a guarantee of judicial review.
A privative clause cannot exclude the High Court’s constitutional jurisdiction to review jurisdictional errors.
The Migration Act’s attempt to block review was invalid to that extent.
🔑 Principle:
Jurisdictional error is reviewable under the Constitution.
Privative clauses cannot oust s 75(v) judicial review.
✅ 2. Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
📌 Facts:
Miah, a Bangladeshi asylum seeker, was denied a protection visa.
The Minister failed to follow procedural fairness, assuming the Migration Act excluded natural justice.
🧑⚖️ Judgment:
The Court held that procedural fairness is presumed unless clearly excluded by legislation.
Silence is not enough to displace the obligation to act fairly.
🔑 Principle:
Natural justice is a common law right.
It applies unless clearly and expressly excluded by statute.
✅ 3. Kioa v West (1985) 159 CLR 550
📌 Facts:
Mr and Mrs Kioa, Tongan nationals, overstayed their visas.
A deportation decision was made without giving them a chance to respond to adverse material.
🧑⚖️ Judgment:
The High Court ruled that procedural fairness was denied.
A person affected by a decision must be given an opportunity to be heard, especially when adverse information is relied upon.
🔑 Principle:
Natural justice (right to be heard) is part of administrative decision-making.
It applies to decisions under the ADJR Act and at common law.
✅ 4. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
📌 Facts:
The Minister made a decision regarding Aboriginal land without properly considering relevant information submitted by Peko-Wallsend.
Peko-Wallsend argued that the Minister failed to consider relevant considerations.
🧑⚖️ Judgment:
The High Court found that the Minister had failed to consider relevant factors, which amounted to jurisdictional error.
🔑 Principle:
A decision-maker must consider all relevant matters and ignore irrelevant ones.
Failing to do so is a reviewable error under the ADJR Act and Judiciary Act.
✅ 5. Craig v South Australia (1995) 184 CLR 163
📌 Facts:
A District Court judge made a decision in a way that may have involved a jurisdictional error.
Issue: What is the difference between an error of law and a jurisdictional error?
🧑⚖️ Judgment:
The High Court distinguished between:
Jurisdictional errors: Decision-maker exceeds legal power
Non-jurisdictional errors: Errors within legal power, but may still be wrong
Only jurisdictional errors are subject to constitutional writs under s 75(v).
🔑 Principle:
Jurisdictional error = reviewable under the Constitution
Error of law within jurisdiction = not reviewable under s 75(v), but may be under ADJR
📘 III. Summary Table of Case Principles
| Case | Key Issue | Principle |
|---|---|---|
| Plaintiff S157 (2003) | Privative clause vs. judicial review | Privative clauses cannot exclude s 75(v); jurisdictional error always reviewable |
| Re Miah (2001) | Exclusion of natural justice | Procedural fairness presumed unless clearly excluded |
| Kioa v West (1985) | Right to be heard in visa cancellation | Adverse material must be disclosed; natural justice applies |
| Peko-Wallsend (1986) | Relevant/irrelevant considerations | Ignoring relevant or considering irrelevant matters is a jurisdictional error |
| Craig v SA (1995) | Distinguishing jurisdictional error | Only jurisdictional errors attract constitutional writs |
📌 IV. Application of the Three Legal Instruments
| Legal Instrument | Function in Admin Law |
|---|---|
| Australian Constitution | Guarantees judicial review of jurisdictional error under s 75(v) |
| ADJR Act 1977 | Provides codified grounds for review; accessible, flexible judicial remedy |
| Judiciary Act 1903 | Grants Federal Court jurisdiction (s 39B) for review of Commonwealth officers' actions |
🧠 V. Conclusion
Australian administrative law, particularly at the Commonwealth level, reflects a constitutional commitment to rule of law and accountability, especially in:
Ensuring decisions are made fairly and legally
Preventing jurisdictional overreach
Allowing access to courts for redress and review
While the ADJR Act simplifies review, the Constitution (s 75(v)) and the Judiciary Act (s 39B) ensure that constitutional judicial review is always available, especially where fundamental legal limits are breached.
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