Principles of Administrative Law

400 Pages·2018·5.816 MB·English

by  Peter Cane, Leighton McDonald, Kristen Rundle

Principles of
Administrative Law
Third Edition
Peter Cane
Leighton McDonald
Kristen Rundle
PRINCIPLES OF
ADMINISTRATIVE
LAW
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Cane, Peter, et al. Principles of Administrative Law, OUPANZ, 2018. ProQuest Ebook Central,
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PRINCIPLES OF
ADMINISTRATIVE
LAW
THIRD EDITION
Peter Cane, Leighton McDonald and
Kristen Rundle
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Cane, Peter, et al. Principles of Administrative Law, OUPANZ, 2018. ProQuest Ebook Central,
http://ebookcentral.proquest.com/lib/usyd/detail.action?docID=5407331.
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1
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research,scholarship, and education by
publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and
in certain other countries.
Published in Australia by
Oxford University Press
253 Normanby Road, South Melbourne, Victoria 3205, Australia
© Peter Cane, Leighton McDonald and Kristen Rundle 2018
The moral rights of the authors have been asserted.
First published 2009
Second edition published 2013
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
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Cane, Peter, et al. Principles of Administrative Law, OUPANZ, 2018. ProQuest Ebook Central,
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PREFACE
Law books come in various shapes and sizes. The traditional textbook is very long and sets
out to deal comprehensively with an area of law. A book with ‘introduction’ in its title may be
a sort of short textbook that aims to provide the student with rudimentary rather than detailed
coverage of the subject. A monograph typically has a narrower focus than either a short or
a long text, dealing in depth with one topic or a small set of related topics within an area of
law. Unlike the typical textbook, a monograph will often contain an overarching ‘thesis’ or
‘argument’ that the author wants to explore or defend.
This book does not fall neatly into any of these categories. It is shorter than the typical
textbook but longer than the typical introduction. While we provide no single or unitary
explanation of or argument about administrative law, throughout the book we develop a
number of themes to help the reader find in administrative law a whole that is more than
the sum of its various and often confusing parts. By introducing insights from legal history,
comparative experience, legal theory and empirical legal research, our aim has been to offer
a set of ideas, and to suggest ways of thinking about administrative law that will provide a
path through a dense and confusing mass of detail. In short, we have tried not just to provide
a statement of the law but also to interpret and make some sense of it. This objective has
necessarily required us to leave out a lot of the detail to be found in longer books. However,
we have tried to avoid the trap, into which short books sometimes fall, of making the law
seem more straightforward and clear than it actually is. Not everyone will approve of
our presentation and interpretations of the law or agree with all our arguments; but that
is inevitable and, indeed, desirable. More important by far than simply learning the law is
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er s We hope this book will be of interest to readers who already have some knowledge of
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ir llA .Z coming to the subject for the first time. To assist with the book’s primary purpose, however, it
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A is supplemented by a companion volume of cases. Such volumes were originally introduced
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02 of teaching, but more often now they merely provide a sort of portable library of relevant
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th (and, often, much abridged) readings. Some cases and materials volumes include significant
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a volume can be thought of as a sort of ‘illustrated textbook’. Once again, our volume of
cases does not fit this mould. It contains fewer extracts than is typical and those extracts
are generally much longer than is usual. You can read more about how best to use the cases
volume in its preface.
Cane, Peter, et al. Principles of Administrative Law, OUPANZ, 2018. ProQuest Ebook Central,
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VIII PREFACE
In the context of the delivery of university- level administrative law courses, we are
hopeful that the use of this book will free up more class time than might otherwise be
available for intellectually rewarding explorations of the complexities and uncertainties
of the law. By setting out the key principles and essential technical details of the subject,
the book is intended to enable teachers and students to use class time to engage with our
interpretations and arguments, to consider practical applications of the principles we discuss,
and to allow space for critical analysis based on particular cases and other readings that will
also be prescribed. The sort of engagement with administrative law we envisage will enable
students to understand better the limits and promise of administrative law in regulating the
relationship between the ‘governors’ and the ‘governed’ in our society and, thus, the extent
to which administrative law contributes to securing the legitimate exercise of power in an
‘administrative state’.
There have been various significant changes in the law since we wrote the second
edition of this book, and all the chapters have been thoroughly revised. In some instances,
important new developments (such as the High Court’s decision in Minister for Immigration
and Citizenship v Li) have required entire sections of the book to be re- written. More generally,
numerous important cases have been woven into the discussion (including Graham v Minister
for Immigration and Border Protection [2017] HCA 33, which was published just prior to the
completion of the manuscript).
We have also taken the opportunity to make some changes to the structure and content
of the book. Rather than including a standalone chapter devoted to the ‘historical and
constitutional contexts’ of Australian administrative law, in this edition we have preferred
to include historical context in the substantive chapters of the book where it is of particular
assistance in understanding the law’s trajectory. And, as we explain in Chapter 1, this edition
places even greater emphasis than we have previously on the varied manifestations of what
may be described as the ‘constitutionalisation’ of administrative law in Australia.
Another omission from this edition is a chapter on private law in a public context.
We continue to believe that private law plays a significant role in the legal control of the
performance of government functions (and therefore is important to a well- rounded
understanding of administrative law). However, feedback indicated this chapter of the book
.de was not routinely used in the teaching of administrative law for reasons related to how
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.81 modes of administrative- law accountability. Some treatment of the subject in a book such as
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iry This edition also includes an entirely re- written introductory chapter that reframes
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itself, noting here only that this exercise has resulted not only in a new Chapter 1, but also
in a thoroughly revised and relocated treatment of jurisdictional error (in the discussion of
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PREFACE IX
remedies in Chapter 3), and significant modifications to Chapter 4 on the grounds of review,
which (we argue) establish what we refer to as ‘administrative law norms’.
Writing this third edition has been a collaborative effort. Kristen and Leighton took the
lead in co- authoring the new Chapter 1; Kristen had primary responsibility for Chapter 5,
the treatment of procedural fairness in Chapter 4, and the section on contract as a tool of
governance (2.7); Peter had responsibility for the revision of Chapters 7– 10; and Leighton
had primary responsibility for the remainder. We gratefully thank all the members of the
production team at Oxford University Press for their efficiency and support.
Peter and Leighton are delighted to welcome Kristen to the authorship team. She has
brought invaluable new ideas and fresh perspectives to the writing and editing table (as it
were). Peter thanks the Master and Fellows of Christ’s College, Cambridge, where he now
lives and works. The research facilities and environment of the College are second to none.
Leighton thanks the ANU law school and his colleagues for providing a stimulating
environment for teaching and writing about public law. More particularly, he thanks Will
Bateman, Christos Mantziaris, Dennis Pearce, James Stellios, Daniel Stewart, and Greg Weeks
for continuing to share their deep knowledge of and insights into Australian administrative law.
Some of the ideas in this edition about administrative law norms were originally developed
collaboratively with Will. Marilú Costa also provided important intellectual impetus for re-
thinking Chapter 4. Above all, he thanks Marilú for her constant support and for making even
chilly Canberra days sparkle.
Kristen sincerely thanks her colleagues at Melbourne Law School, in particular Adrienne
Stone, Cheryl Saunders and the larger community of the Centre for Comparative Constitutional
Studies, for making her return to thinking about Australian public law so stimulating and
rewarding. No small credit also goes to her teaching colleagues over the course of 2015– 17,
as well as to her superb students. Thanks are also due to Matthew Harper and Stephen
O’Connell, both research assistants with the Centre for Comparative Constitutional Studies,
for their able research assistance. Above all, Kristen would like to thank Leighton and Peter
for inviting her to join such a worthwhile project, and for their consistently collegial and
supportive collaboration.
Peter Cane, Leighton McDonald and Kristen Rundle, October 2017
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Cane, Peter, et al. Principles of Administrative Law, OUPANZ, 2018. ProQuest Ebook Central,
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TABLE OF CASES
A v Independent Commission Against Corruption Antipova v Minister for Immigration and
[2014] NSWCA 414 [6.2.4.1] Multicultural and Indigenous Affairs (2006)
Aala’s case see Refugee Review Tribunal; Ex 151 FCR 480 [4.2.2.2]
parte Aala Applicant VEAL of 2002 v Minister for
AB v Western Australia (2011) 281 ALR 694 [4.6] Immigration and Multicultural and Indigenous
Affairs (2005) 225 CLR 88 [4.2.2.3]
Abebe v Commonwealth (1999) 197 CLR
Applied Medical Australia Pty Ltd v Minister for
510 [1.3]
Health (2016) 246 FCR 555 [2.5.1.3]
Aboriginal Legal Service Ltd v Minister for
Argos Pty Ltd v Corbell (2014) 254 CLR 394 [5.2]
Aboriginal and Torres Strait Islander Affairs
(1996) 69 FCR 565 [4.3.4] Arnold (on behalf of Australians for Animals)
v State of Queensland (1987) 13 ALD
Acquista Investments Pty Ltd v Urban Renewal
195 [7.5.2]
Authority (2015) 123 SASR 147 [2.7]
Arthur Yates & Company Pty Ltd v Vegetable
Adams and Tax Agents Board, Re (1976) 1 ALD
Seeds Committee (1945) 72 CLR 37, 81 [1.3]
251 [7.5.1.1]
Associated Provincial Picture Houses Ltd v
Aerolineas Argentinas (1997) 76 FCR 582 [2.5.1.3]
Wednesbury Corporation [1948] 1 KB
Aga Khan case see R v Disciplinary Committee of
223 [4.5]
the Jockey Club, ex parte Aga Khan
Aston and Department of Primary Industries, Re
Agar v Hyde (2000) 201 CLR 552 (1985) 8 ALD 366 [7.6.3]
Agricultural Societies Council of NSW v Aston Cantlow Parochial Church Council v
Christie (2016) 340 ALR 560; [2016] NSWCA Wallbank [2004] 1 AC 546 [2.6.1]
331 [2.5.1.4.1], [2.6.1]
Attorney- General (Cth) v Breckler (1999) 197 CLR
Ainsworth v Criminal Justice Commission (1992) 83 [3.7.2]
175 CLR 564 [3.5.1.1], [3.5.1.2], [3.5.1.5],
Attorney- General (NSW) v 2UE Sydney Pty Ltd
[4.2.2.1], [4.2.2.3]
(2006) 236 ALR 385 [7.2.1], [7.7]
Aktiebolaget Hassle v Alphapharm Pty Ltd (2002)
Attorney- General (NSW) v Quin (1990) 170 CLR
212 CLR 411 [4.4.3]
1 [2.2.2], [4.3.3], [4.5], [4.6]
.dev Al- Mehdawi v Secretary of State for the Home Attorney- General of Hong Kong v Ng Yue Shiu
re Department [1990] 1 AC 876 [4.2.2.3]
se [1983] 2 AC 629 [4.2.2.1]
r sth Alphapharm Pty Ltd v SmithKline Beecham Attorney- General v De Keyser’s Royal Hotel [1920]
gir llA .Z Anim(Aaul sLtirbaeliraa)t iPotny LLttdd v(1 D99e4p)a 4rt9m FeCn tR o 2f 50 [4.4.3] AustAraCla 5s0ia8n C[2o.l6le.2g.e2 o.]f Cosmetic Surgery Ltd v
N Environment and Conservation [2007]
A Australian Medical Council Ltd [2015] FCA
PU NSWSC 221 [5.2] 468 [2.5.2]
O
.81 Animals’ Angels e. V. v Secretary, Department of Australian Broadcasting Tribunal v Bond (1990)
0 Agriculture (2014) 228 FCR 35 [5.2]
2 170 CLR 321 [2.5.1], [4.2.4], [4.4.1], [4.4.2],
©
th Anisminic Ltd v Foreign Compensation [4.4.2.2], [4.4.3], [7.5.1.1]
giry Commission [1969] 2 AC 147 [3.4], [3.7.3], Australian Capital Territory Health Authority v
poC [6.2.2] Berkeley Cleaning Group Pty Ltd (1985) 7 FCR
Annetts v McCann (1990) 170 CLR 596 [4.2.2.2] 575 [2.5.1.4.1]
Ansett Transport Industries (Operations) Pty Ltd v Australian Capital Territory Revenue v Alphaone
Commonwealth (1977) 139 CLR 54 [4.3.4] Pty Ltd (1994) 49 FCR 576 [4.2.2.3]
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TABLE OF CASES XI
Australian Communications and Media Authority Bare v Independent Broad- Based Anti- Corruption
v Today FM (Sydney) Pty Ltd (2015) 255 CLR Commission [2015] VSCA 197 [4.6]
352 [4.6] Barreto v McMullan [2014] WASCA
Australian Communist Party v Commonwealth 152 [4.4.2.1.1]
(1951) 83 CLR 1 [2.2.2] Barton v Commonwealth (1974) 131 CLR
Australian Conservation Foundation Incorporated 477 [2.6.2.2]
v Commonwealth (1980) 146 CLR Bass v Permanent Trustees Co Ltd (1999) 198 CLR
493 [5.1], [5.2] 334 [3.5.1.5]
Australian Conservation Foundation Incorporated Bat Advocacy NSW Inc v Minister for
v Forestry Commission of Tasmania (1988) 19 Environment Protection, Heritage and the
FCR 127 [4.3.1] Arts (No 2) (2011) 280 ALR 91 [5.4]
Australian Education Union v General Manager
Bateman v Health Insurance Commission (1998)
of Fair Work Australia (2012) 246 CLR
54 ALD 408 [7.6.3]
117 [2.4.1.1]
Bateman’s Bay Local Aboriginal Land Council v
Australian Fisheries Management Authority v PW
Aboriginal Community Benefit Fund Pty Ltd
Adams Pty Ltd (1995) 39 ALD 481 [7.6.3]
(1998) 194 CLR 247 [3.5.1.4], [5.1], [5.2], [5.4]
Australian Heritage Commission v Mount Isa
Batterham v QSR Ltd (2006) 225 CLR 237 [6.2.2]
Mines Ltd (1997) 187 CLR 297 [4.4.2.1.1]
Becker and Minister for Immigration and Ethnic
Australian Metal Holdings Pty Ltd and Australian
Affairs, Re (1977) 1 ALD 158 [7.6.3]
Securities Commission and Others, Re (1995)
Bhardwaj see Minister for Immigration and
37 ALD 131 [7.6.3]
Multicultural Affairs v Bhardwaj
Australian National University v Burns (1985) 43
Bilborough v Deputy Commissioner of Taxation
ALR 25 [2.5.1.4.1]
(2007) 162 FCR 160 [2.5.1.4.1]
Australian National University v Lewins (1996) 68
Blewett (1988) 84 ALR 615 [2.5.1.3]
FCR 87 [2.5.1.3]
Bodruddaza v Minister for Immigration and
Australian Postal Corporation v D’Rozario (2014)
Multicultural Affairs (2007) 228 CLR
222 FCR 303 [4.4.2.2]
651 [2.4.1.1], [3.5.3], [5.1], [6.2.3], [6.2.4.3],
Australian Retailers Association v Reserve Bank of
[6.2.4.4]
Australia (2005) 148 FCR 446 [4.4.2.2]
Boilermakers’ case see R v Kirby; Ex parte
Australian Securities and Investments Commission
Boilermakers’ Society of Australia
v Administrative Appeals Tribunal (2011) 195
FCR 485 [4.4.3] Bond’s case see Australian Broadcasting Tribunal
v Bond
Australian Securities and Investments Commission
v Edensor Nominees Pty Ltd (2001) 204 CLR Bondelmonte v Bondelmonte (2017) 341 ALR
559 [2.4.2] 179 [4.3.1]
Automotive, Food Metals, Engineering, Printing Botany Bay City Council v Minister of State and
and Kindred Industries Union v ALS Transport and Regional Development (1996)
Industrial Australia Pty Ltd (2015) 235 FCR 66 FCR 537 [5.4]
305 [3.5.1.1] Boyce v Paddington Borough Council [1903] 1 Ch
.d Avon Downs Pty Ltd v Federal Commissioner of 109 [5.1]
ev Taxation (1949) 78 CLR 353 [4.3], [4.5] Brandy v Human Rights and Equal Opportunity
re
se Aye v Minister for Immigration and Citizenship Commission (1995) 183 CLR 245 [7.7]
r sth (2010) 187 FCR 449; (2010) 269 ALR Bread Manufacturers of New South Wales v Evans
g
ir llA 298 [2.5.1.4], [2.6.2.2], [2.6.2.3] (1981) 180 CLR 404 [4.3.4]
.Z AZAFQ v Minister for Immigration and Border Brennan v New South Wales Land and
N
A Protection (2016) 243 FCR 451 [4.3.1] Housing Corporation [2011] NSWCA
P
UO Azzopardi v Tasman UEB Industries Ltd (1985) 4 298 [4.4.2.2]
.81 NSWLR 139 [4.4.3] Brian Lawlor Automotive Pty Ltd and Collector
0
2 of Customs (NSW), Re (1978) 1 ALD
©
th Baba v Parole Board (NSW) (1986) 5 NSWLR 167 [7.5.1.1], [7.6.1], [7.6.4.2], [7.6.5]
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iry 338 [4.2.2.2] Brian Lawlor Automotive Pty Ltd and Collector
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oC Bank of New South Wales v Commonwealth (1948) of Customs, Re (NSW) (1978) 1 ALD
76 CLR 1 [2.4.1.2], [5.1], [6.2.4.1] 167 [7.5.1.1], [7.6.1], [7.6.4.1], [7.6.5]
Baran and Department of Primary Industries and British Broadcasting Corporation v Johns [1965] 1
Energy, Re (1988) 18 ALD 379 [7.6.4.1] Ch 32 [2.6.2.2]
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XII TABLE OF CASES
British Imperial Oil Co Ltd v Federal Coal and Allied Operations Pty Ltd v Australian
Commissioner of Taxation (1925) 35 CLR Industrial Relations Commission (2000) 203
422 [7.1] CLR 194 [4.4.2.1.2]
British Oxygen Co Ltd v Minister of Technology Coco v The Queen (1994) 179 CLR 427 [4.1.1],
[1971] AC 610 [4.3.3] [4.3], [4.6]
Broadbent v Medical Board of Queensland [2011] Coffey v Secretary, Department of Social Security
FCA 980 [2.4.1.2] (1999) 56 ALD 338 [7.5.1.1]
Bruce v Cole (1998) 45 NSWLR 163 [4.4.2.2], [4.6] Collector of Customs (NSW) v Brian Lawlor
Buck v Bavone (1976) 135 CLR 110 [4.4.2.1.2] Automotive Pty Ltd (1979) 24 ALR 307, (1979)
2 ALD 1 [3.7], [7.5.1.1]
Burns v Australian National University (1982) 40
ALR 707 [2.5.1.3] Collector of Customs v Agfa- Gevaert Ltd (1996)
186 CLR 389 [4.4.1], [4.4.3]
Byrne v Marles [2008] VR 612 [3.5.1.1]
Collector of Customs v Pozzolanic Enterprises Pty
Cains v Jenkins (1979) 28 ALR 219 [4.2.2.3] Ltd (1993) 43 FC R 280 [4.4.3]
Calvin v Carr [1980] AC 574 [4.2.5.1] Colonial Bank of Australiasia v Willan (1874) LR 5
PC 417 [6.1]
Campbelltown City Council v Vegan (2006) 67
NSWLR 672 [4.2.4] Comcare v Eames (2008) 101 ALD 90 [3.3]
Carey, Re; Ex parte Exclude Holdings Pty Ltd Comcare v Etheridge (2006) 149 FC R 522 [4.4.1]
(2006) 32 WAR 501 [3.4] Commissioner for Australian Capital Territory
Carltona Ltd v Commissioner of Works [1943] 2 All Revenue v Alphaone Pty Ltd (1994) 49 FCR
ER 560 [4.3.5] 576 [4.2.2.3]
CCSU v Minister for the Civil Service see Council Commissioner of Police v Tanos (1958) 98 CLR
of Civil Service Unions v Minister for the Civil 383 [4.2.2.2]
Service Commissioner of State Revenue (Vic) v Royal
Century Metals and Mining NL v Yeomans (1989) Insurance Australia Ltd (1994) 182 CLR
100 ALR 383 [4.2.3] 51 [3.5.1.3]
Century Yuasa Batteries Pty Ltd v Federal Commissioner of Taxation v Futuris Corp Ltd
Commissioner of Taxation (1997) 73 FCR (2008) 237 CLR 146 [3.5.3], [6.2.4.1]
528 [2.5.1.2] Commissioner of Taxation v Primary Health Care
Chapmans v Australian Stock Exchange Ltd (1966) Ltd [2017] 131 [4.3.1]
67 FCR 402 [2.5.1.3] Committee of Direction of Fruit Marketing v
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Delegate of Australian Postal Commission
Ltd (2010) 78 NSWLR 393 [2.4.3], [2.6.1], (1979) 2 ALD 561 [7.6.4.2]
[3.3], [3.4], [3.5.1.1] Commonwealth v Mewett (1997) 191 CLR
Chen Zhen Zi v Minister for Immigration and 471 [2.4.3], [2.5.2]
Ethnic Affairs (1994) 48 FCR 591 [4.2.2.3] Compensation Appeal Tribunal; Ex parte Shaw
Chevron USA, Inc v Natural Resources Defence [1952] 1 KB 338 [3.5.1.1]
Council, Inc, 467 US 837 (1984) [4.4], Construction Forestry Mining and Energy Union
[4.4.2.1.1] v Director of the Fair Work Building Industry
.d
ev Chief Constable of North Wales Police v Evans Inspectorate [2016] HCA 41 [2.4.1.1]
rese [1982] 3 All ER 141 [2.2.1], [2.2.2] Control Investment Pty Ltd and Australian
r sth Chittick v Ackland (1984) 1 FCR 254 [2.5.1.4] Broadcasting Tribunal (No 1), Re (1980) 3 ALD
gir llA .Z Chu GKohveenrgn Lmimen tv aMndin Eistthenr ifco rA Iffmamirsi g(1ra9t9io2n) ,1 7L6o cal Conw74a y v[7 R.5i.1m.2m],e [r7 .[51.926]8] AC 910 [9.7.5]
NA CLR 1 [4.6] Cooper v Wandsworth Board of Works (1863) 143
P
UO Church of Scientology v Woodward (1982) 154 ER 414 [4.6]
.81 CLR 25 [2.6.2.2], [6.2.4.4] Corporation of City of Enfield v Development
0
2 City of Enfield v Development Assessment Assessment Commission (2000) 199
©
th Commission (2000) 199 CLR 135 [2.2.2], CLR 135 [2.2.2], [2.6.2], [3.5.1], [4.4],
giry [3.5.1], [4.4], [4.4.2.1.1], [5.4] [4.4.2.1.1], [5.4]
p
oC City of Port Adelaide Enfield v Bingham (2014) 119 Cotterill v Minister for Immigration and Border
SASR 1 [3.5.1.1] Protection [2016] FCAFC 61 [4.5]
Civil Aviation Safety Authority v Central Aviation Council of Civil Service Unions v Minister for
Pty Ltd (2009) 253 ALR 263, (2009) 179 FCR the Civil Service [1985] AC 374 [2.6.2.2],
554 [4.2.5.2] [2.6.2.3], [4.2.2.1]
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