Ashvin Ramgoolam

Page | Judicial review of Qs of Fact Courts generally cannot review Qs of fact. Why? Determinations of Q of fact are merit outcomes The Court will show considerable deference to an administrative determination of fact, and will challenge it only in extreme cases. Only 3 ways a Court can review/determine Qs of fact: Courts can directly review facts that are essential preconditions to the administrators power/jurisdiction (ie. jurisdictional facts). Why? Courts must review jurisdictional facts in order to determine the legal question of whether the administrator had power to act. Court can determine facts that relate to the process by which the original decision was made. Why? If a ground of review is argued, Courts often must determine additional facts that relate to the process by which the original decision was made. Courts can indirectly review substantive conclusions of fact that are unreasonable or based on no evidence. What constitutes Qs of fact & Qs of law? Questions of fact Questions of Primary Fact: who did what, where & when? Questions of Secondary Fact: what inferences may be drawn from primary facts? What is the meaning of ordinary words in a statute? Questions of law Do the facts (as found) fall within/outside the statutory limits? What is the meaning of legal words in a statute?

Facts/Law distinction The facts/law distinction is due to the separation of powers: Marbury v Madison: Constitutionally, only courts can ultimately determine Qs of law. Courts have no expertise in finding Qs of fact Executive determines Qs of fact. The facts/law distinction is important because it determines what Courts can review, and therefore what decisions the administrator must get correct. Merits review of Qs of fact & law In merits review of an admin decision, the tribunal stands in the shoes of the original decision-maker & re-decides both Qs of law & fact: The true meaning of the relevant statutory provision (Q of law); The relevant facts, including primary facts & secondary conclusions of facts (Q of fact); How the interpreted statute applies to those facts (can be Q of law/fact). Since a tribunal is an Executive body: Its determination of Qs of law is not final & conclusive. It will freely replace the original decision-makers judgement on Qs of fact. Judicial review of Qs of law In judicial review of an admin decision, the Court readily substitute their opinions on Qs of law. Examples of Qs of law: Was the correct statutory test applied? (statutory interpretation) Was the procedure fair? Was the decision-maker within its power? Did the decision-maker exercise its power reasonably?

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Page | Preconditions to Existence & Exercise of Power As a matter of statutory interpretation, statutes may contain certain preconditions to power: Factual preconditions (jurisdictional facts): The statute requires certain facts to exist in order for the power to exist. Ground of review = show the jurisdictional facts did not exist at the time. Procedural preconditions: The statute requires certain procedures to be carried out prior to the exercise of power. Ground of review = show the procedures have not been carried out. Subjective preconditions: The statute makes the existence of the power dependent on the administrators subjective opinion that certain facts exist. [Ground of review = unreasonableness only.] Distinguish preconditions to power from requirements during exercise of power. Jurisdictional facts To make a fact jurisdictional, the Act must do 2 things: 1) it must condition the power on the facts existence (objectivity); and 2) it must condition the validity of the decision-makers act upon that existence (essentiality). Factors on whether a particular question of fact is jurisdictional (& therefore reviewable by courts): Statutory language makes the fact a precondition, not a mere procedure jurisdictional. Project Blue Sky: Language used assumes that power already exists not jurisdictional. Enfield v DAC: Provision directly stipulates that the

Questions of Fact/Law in Statutory interpretation Overall statutory interpretation is a question of law (eg. whether the word is used in a technical legal sense, or an ordinary English language sense). Word is defined in the statute, or is given a specific legal meaning in a previous judicial decision technical. Overall statutory context indicate that a specific legal meaning is intended technical. If the word is used in a technical legal sense, its meaning [& application to the facts] is a question of law. If the word is used in an ordinary English language sense, its meaning [& application to the facts] is a question of fact. But if the administrator gave an ordinary word a meaning to that is unreasonable (ie. a meaning so unreasonable that no reasonable administrator could have supposed such a meaning to have been intended by Parliament) an error of law. So, courts will not interfere with an administrators reasonable interpretation of an ordinary word (even though they might not agree with the administrators particular interpretation). Reason why meaning & application of ordinary words are Qs of fact & therefore usually unreviewable? Practicality: If the meaning of every single statutory phrase is classified as a question of law, the potential for judicial intervention would be enormous. Intent of Parliament.

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Page | not reviewable by court not jurisdictional. Enfield: Whether a development is special/general industry (ie. how smelly it is) is assessable by expert witnesses jurisdictional. Distinguish from AHC because there, expert witnesses cant decide whether the place was aesthetic etc. Whether the facts exist has a strong impact on common law rights & liberties jurisdictional. Criticism of courts review of jurisdictional facts: If a fact is jurisdictional, its the courts (not admins) opinion of the facts existence that counts. But is the court any better at finding whether these facts exist? No! Effect of non-compliance with statutory requirements Project Blue Sky v ABA: Noncompliance with procedures will not necessarily lead to invalidity of a decision. Whether there is invalidity depends on statutory interpretation. If there is no invalidity, people who relied on the unlawful decision can get injunctions against the regulator. Factors indicating intent of invalidity: Statutory language makes the fact an essential preliminary? Subject matter is determinate & rule-like? Consequences of invalidity? CASES Project Blue Sky v Australian Broadcasting Authority Validity of legal error. *Broadcasting Services Act:

fact is a precondition jurisdictional. ABT v Bond: Statute required administrator to decide a fact (fitness) before the power to revoke flows jurisdictional. Project Blue Sky v ABA: Fact was a procedure not jurisdictional. Objective language v Subjective language: Objective language supports the conclusion that the fact is jurisdictional (Enfield v DAC). Acts factual requirements are drafted subjectively in some places, and objectively in others. AHC v MIM: A power of consideration was objective. The fact is pivotal /central to the design of the statutory scheme jurisdictional. Enfield v DAC: Whether special industry or general industry was a choice between 2 different regulatory schemes jurisdictional. Statute provides detailed public consultation & consideration procedures not jurisdictional (AHC v MIM). Inconvenience of making admin decisions conditional upon a courts view of the facts not jurisdictional. Project Blue Sky v ABA: Invalidity would seriously inconvenience people who relied not jurisdictional. Facts that incorporate strong value judgement not jurisdictional. AHC v MIM: Whether a place had aesthetic/historic/scientific/s ocial significance, or other special value was a political & value-laden question [better decided by admin]

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Page | rules). Also, the obligations here did not have a rule-like character (ie. could not be easily identified & applied). Rather, they were matters of policy. Consequences: Invalidity of acts done in breach of s 160 is likely to result in (1) much inconvenience to members of the public who have acted in reliance on the ABAs conduct; (2) Licensees having difficulty in ascertaining whether the ABA was acting consistently with obligations imposed by s 160; and (3) loss of investor confidence. But an act done in breach of s 160 is unlawful. So a person with sufficient interest can sue to obtain an injunction restraining action based on the ABAs unlawful action. [This means that all the people who acted in reliance on the Standard are safe. But the unlawful Standard cannot be relied on in future.] Evaluation This is a Green Light decision, because it considered the impact on the administrator. The remedy was sensitively handled. Even though the admins decision was unlawful, it was not invalid if Parliament did not intend it to be. Australian Heritage Commission v MIM Jurisdictional fact. *Australian Heritage Commission Act: s 23(1): Where the Commission considers that a place not in the Register should be recorded as part of the national estate, it shall enter that place in the Register [subject to ss 23 & 25]. s 23(2): AHC must not do so unless a public notice of its intention to do so was given, and due consideration was given

S 122: ABA must determine standards to be observed by broadcasting licensees. S 160(d): The ABA is to perform its functions consistently with Australias international obligations. *ABA determined (pursuant to s 122) a Standard which contained cl 9: Australian programs must comprise at least 50% of broadcasts. *Trade Protocol: Australia should give NZ programs access rights in its market no less favourable than Aust programs. *NZ companies argued that the making of the Standard was inconsistent with the Protocol. S 122, when read with s 160(d), is intended to have a legal meaning: it gives the ABA power to determine Standards only to the extent that they are consistent with s 160. Did the making of the Standard breach s 160? The Standard, by giving Australian programs at least 50% of broadcasting time, makes it harder for New Zealand programs to compete NZ programs have less favourable access rights than Aust programs cl 9 is inconsistent with the Protocol breach of s 160(d). Was the Standard invalid? Principle: Whether an act done in breach of a condition regulating the exercise of a statutory power is invalid, depends on legislative purpose. Factors why the Standard in breach was not intended to be invalid: Language: S 160 assumes that the ABA already has power it regulates the exercise of functions already conferred on the ABA, rather than imposes essential preliminaries to the exercise of its functions. Subject matter: Many international conventions & agreements are expressed in indeterminate language (eg. described as goals rather than

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Page | development was special industry s 33(3)(a) applied DAC exceeded its powers by acting without Councils consent. *But Full Court the Q of fact was non-jurisdictional. *Q of fact = Whether the development is special/general industry. Issue = is this a jurisdictional fact? Whether the development is special/general industry is a reviewable jurisdictional Q of fact, because: The fact is central/critical to the statutory scheme. How the consent power [s 35(3)] works will depend on this fact. It is the turning point that leads to 2 different statutory schemes: If general industry, not many procedures for consent DAC can consent. If special industry, totally different & more onerous procedures for consent Council can veto DACs consent, and need public notice. The fact is phrased in objective language. The fact is phrased as a precondition that prohibits s 35(3) consent without Council concurrence [[special industry] must not be granted]. If the court is in doubt upon a particular factual matter, it would be open to the court to resolve that doubt by giving weight to any determination upon it by the Commission.

to any objections that were received. s 4(1): The national estate consists of places that have aesthetic/historic/scientific/socia l significance, or other special value for future generations & present community. *AHC decided to enter an area of land in the Register, pursuant to s 23. *Q of fact = Whether the place is a national estate. Issue = is this a jurisdictional fact? Whether the place is a national estate is a non-jurisdictional Q of fact, because: The detailed public consultation & consideration mechanism suggests that Parliament did not intend the AHCs decision to record a place to be subject to judicial review provided the AHC conducts itself in accordance with the law. [Courts dont undertake the public consultation procedure not equipped to decide it.] [Also, the political value judgement in s 4 is best decided by the Commission nonjurisdictional fact] Corporation of the City of Enfield v Development Assessment Commission Jurisdictional fact. *ss 32 & 33 Development Act forbids development unless the DAC grants consent. *s 35(3)(a): A special industry development must not be granted consent, unless the Council concurred & DAC gave public notice. *DAC determined that the proposed development was general industry rather than special industry s 35(3)(a) did not apply DAC decided to give consent without public notice. *On appeal, Debelle decided on expert evidence that the

Hope v Council of City of Bathurst Question of law or fact?; Unreasonableness. *Hs land was used to regularly agist other peoples cattle, there were fences & troughs, and 90% of the land was pasture improved. H advertised for agistment. *s 118(1) defined rural land (in which lower rates applied) to mean

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Page | Transactions were entered into on a continuous & repetitive basis, for the purpose of making profit. The appellant sought customers by advertising. The land was put to its best potential use, the pastures were improved, and facilities including fences were provided for use.

land used for carrying on the business of grazing. *Land & Valuation Court decided that H had no business lower rates did not apply. [Note: this is not a jurisdictional fact, because power does not depend on it; it is merely a step along the way to deciding the rate.] *Issue = Is the meaning of business a question of fact/law? Principles 1) Whether the facts fall within the statutory provisions properly construed [ie. overall statutory interpretation], is a question of law. SO: Whether a word is used in a technical legal sense or an ordinary sense, is a question of law. 2) The meaning of an ordinary word is a question of fact. [The meaning of a legal word is a question of law.] 3) Whether the material before the court reasonably admits of different conclusions as to whether the facts fall within the ordinary meaning of the words as so determined, is a question of law. 4) If different conclusions are reasonably possible, the decision of which is the correct conclusion, is a question of fact [to be decided by the administrator]. [Courts cannot change it.] [5) Whether the facts fall inside the conclusion(s) reasonably possible, is a question of law] Application business in Act has an ordinary meaning. It denotes activities done for the purpose of profit on a continuous & repetitive basis. This is a question of fact. Hs activities would amount to a business under any reasonable ordinary meaning of business that the decision-maker uses It was unreasonable for the primary judge to conclude that there was no business, as all the essential characteristics required of a business were present:

Sharp Corp v Collector of Customs Question of fact or law? *Sharp imported toner kits, which had components classifiable under 2 different tariff headings. *r 3 of General Rules for Interpretation: When composite goods are classifiable under 2 or more headings: (b) Classify them as the component which gives them their essential character. (c) If no essential character, then classify mechanically. *AAT decided that no component gave the Kit an essential character, because the components serve different functions AAT applied r 3(c) mechanically AAT classified the Kit under the heading that had higher tariffs. *Collector appealed to the Federal Court under s 44(1) AAT. *Issue = Is meaning of essential character a Q of law? AATs classification of the toner & other components under different headings is a reasonable finding of fact. Principle When words are used in their ordinary English sense, then (1) the meaning of those words, and (2) whether the facts fall within the meaning (there being a different conclusion reasonably open), are ordinarily questions of fact for the administrative decision-maker. Decision

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known expression that has an ordinary meaning whether the Kit has an essential character, and what that essential character is, is a Q of fact [determined by the AAT]. The AATs conclusion of fact was reasonable.

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