PART A - lpab.justice.nsw.gov.au

EXAMINERS COMMENTS – ADMINISTRATIVE LAW MARCH 2015

PART A

Question 1

Millicent Militant is a member of the Vintage Fashion club (VFC). She has a
business, Everything Old, a vintage fashion online store, as well as a blog
‘Old-ster style today’ commenting on street trends of vintage fashion. Her
blog is regularly ‘followed’ by fashionistas around the world and earns
Millicent significant revenue. Millicent is a committed fashion artist and
spends a significant portion of her income on distinctive fashion items
which she proudly sports during her attendances at the club. Her vintage
clothing collection is supplemented by modern reproductions of vintage
items, quirky re-makes and ‘homages’ to vintage. She has many club
awards, as well has having been recognised for bravery by the Premier of
NSW for saving a Japanese tourist drowning at her local beach. Millicent
receives a letter from the club secretary telling her that her standard of
dress and behaviour is unacceptable. The secretary is married to one of
Millicent’s main rivals for the club award of Most Authentic Stylista.

Millicent provides submissions to the secretary about her fashion
collection including certificates and documents of provenance. She
includes testimony from a fashion expert describing the vintage movement
and providing academic articles and case law on the variety of authentic
vintage fashion styles arising from a movement of freedom of expression
in the 1950s.

One month after Millicent’s submission, Millicent receives a letter
cancelling her membership. Millicent seeks your help in challenging this
decision and refers you to the following club rules. Note: these are agreed
by majority vote of club members; they are NOT legislation:

Member Policy 1

Club executive has the right to determine acceptable standards of
behaviour and dress appropriate for members on club premises. The
executive, in setting standards, will apply the following principles:

• Genuine vintage fashion only.
• Vulgarity of any kind is not permitted.

Member Policy 2

Members must display decorum and etiquette in all dealings with other
members and the club executive.

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Club dress standard

Authentic vintage fashion, repaired, cleaned or otherwise rehabilitated for
modern wear, must be worn. Fashion ‘referencing’, mixing of styles,
modern reproductions of authentic vintage, torn, dirty, broken items, or any
other non-authentic ‘eclecticism’ is deemed unwearable in the club. Failure
to comply with this standard may result in cancellation of membership at
the discretion of the executive.

Advise Millicent. In your answer refer to avenues and grounds of review to
challenge the club’s decision.

The first thing to note is that this is not a question about the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act), nor has Administrative
Appeals Tribunal been vested with jurisdiction in the terms of the question. The
question clearly states that the club’s policies are NOT legislation; therefore there
has been no decision ‘under an enactment’ and therefore no there is no
‘decision’ as defined in the ADJR Act. The university cases of Australian National
University v Lewins (1996) 68 FCR 87, Australian National University v Burns
(1982) 43 ALR 25 and Luck v University of Southern Queensland [2014] FCAFC
135 refer. Nor has any decision been made by an officer of the Commonwealth
nor is this a matter in which the Commonwealth is a party. Therefore no
jurisdiction arises under section 75 of the Constitution, or consequently, section
39B of the Judiciary Act 1903. It is important to state this upfront in responding to
this question. The question was clearly worded and most students correctly
identified this issue. Students who did not pick it up and framed answers in the
context of ADJR Act and AAT review were therefore penalised.

This is not to say that case law discussing the ADJR Act grounds of review will
not be relevant to Millicent’s case. This is because the ADJR Act grounds of
review are in effect an embodiment of the grounds previously established under
the common law. Subsequent case law on ADJR Act grounds of review can
therefore be seen as an extension of the common law relating to those grounds.
This is discussed further below.

Having determined that no statutory review rights are applicable, this is then a
case of common law implication of procedural fairness, and potentially other
grounds of judicial review. The ‘club’ cases including Forbes v NSW Trotting Club
(1979) 143 CLR 242, Stollery v Greyhound Racing Control Board (1972) 128
CLR, then become relevant. Issues such as whether this is a mere voluntary
association or a matter affecting Millicent’s livelihood and reputation are therefore
relevant to whether she has a right or legitimate expectation that she will be
treated fairly by the club in matters affecting her.

In Millicent’s favour in this regard include the fact that her livelihood appears to
be connected to her club membership. In the modern era of online identities and
reputations, it appears that Millicent’s authority as a vintage fashion expert would
be lessened if her club membership is ended. The Vintage Fashion Club is in a
sense a club of experts. Millicent is part of this community through her
membership and her exclusion from it would affect her status as expert and her

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reputation. Should this occur, Millicent’s livelihood through her blog and fashion
store would be under threat.

Of further relevance to implication of an expectation that she will be treated fairly,
is the fact that Millicent is a long standing member of the club, she is not applying
for the first time. It is also relevant that she is an ‘inner’ member of the club as
noted from the fact she has received many club awards.

These factors lead to a fairly safe conclusion that Millicent can rely on an
implication of the right or expectation that she will be treated fairly in any matters
concerning her membership. Of note also in this regard are the many decisions
of the High Court including Kioa v West (1985) 159 CLR 550 and Saeed (see
below) referring to the fundamental nature of the right to procedural fairness and
the necessity for a clear statement that it is to be excluded. The view that as a
mere voluntary association on a leisure activity Millicent has no right to
procedural fairness could therefore be countered.

Having established a right to procedural fairness, the content of the rule as
applicable to Millicent’s case is therefore to be considered. Also relevant is
whether Millicent will be able to avail herself of other grounds of judicial review in
addition to procedural fairness.

Turning first to the content of the rule of procedural fairness in Millicent’s case,
the basic requirements are the right to a hearing free from bias. Other sub-
components include the right to have notice of the hearing and the right to have
adverse material drawn to her attention.

Applying these principles to Millicent’s case, an argument could be put on her
behalf that she was not provided adequate notice of the club’s intention to review
her membership, nor was she given adequate information of the matters the club
was considering against her. The content of the letter from the club secretary
concerning her dress and behaviour could be viewed as inadequate to put
Millicent on notice that her entitlement to membership is being formally reviewed,
nor is there sufficient detail for her to put her case that her membership should
not be revoked. In what respect is her standard of dress unacceptable? Millicent
is unable to put her case (for example) that she wears only fully vintage items on
club premises. What aspects of her behaviour are lacking? Millicent is unable to
put her case that this allegation is at odds with evidence concerning her long
standing membership, her reputation within and outside the club in the vintage
fashion milieu, as well as her many club awards and her standing in the
community generally.

Of further obvious relevance is whether the rule against bias has been infringed
by reason of the relationship between the club secretary and one of Millicent’s
rivals. In this regard Millicent must establish the role of the club secretary. Is
he/she a decision maker or an adviser? As secretary it would seem that he/she is
part of the executive and therefore is a decision maker under the Member
Policies, either solely (as delegate of the executive) or as part of a decision
making body of the executive. Alternatively, the club secretary is in the position of
adviser to the decision maker(s). In any of these scenarios – sole decision

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maker, one of a joint decision making body, or adviser, the secretary’s
relationship to Millicent’s rival is clearly relevant and could be argued as an
infringement of the rule against bias. The case is stronger if the secretary is a
decision maker as having a direct personal familial relationship with a person
whose rights are in opposition to Millicent’s. If the secretary is adviser only, an
argument could arise as to whether the executive was influenced or swayed by
the adviser’s relationship with the favoured person (see Hot Holdings v Creasy
(1996) 185 CLR 149). Whether the test is actual bias (if this can be established
from evidence) or apprehended bias, Millicent should argue this matter in any
review.

Turning next to other grounds of judicial review, it is necessary to consider if
Millicent can rely on these under the common law. This is by no means certain
but in light of a generally liberalising tendency of reviewing bodies to afford rights
of review, it can be assumed for the purposes of discussion that Millicent will be
permitted to argue additional grounds. These would include failure to consider
relevant considerations, taking into account irrelevant considerations, and
unreasonableness. Relevant considerations include Millicent’s record of
membership and standing in the community, and whether club policies have
been correctly applied. Irrelevant considerations include the secretary’s
relationship with Millicent’s rival. Other issues to raise here include whether the
secretary was acting ultra vires, without authority of the executive, and whether
the executive was acting under dictation of the secretary. In relation to club rules
there is no evidence of Millicent’s failure to follow standards of dress and
behaviour, and therefore no evidence that the executive acted correctly in
cancelling her membership without warning, in preference to taking some lesser
measure including a formal warning or condition on her membership.

In relation to unreasonableness the lack of notice and abruptness of the club’s
decision bring to mind the decision of Minister for Immigration and Citizenship v
Li [2013] HCA 18. Unreasonableness could also be founded on the other matters
referred to above to do with the secretary’s relationship and general lack of
regard for the relevant issues in the matter.

Concerning remedies, as this is a private body there is some doubt about
whether common law remedies such as certiorari are available. Certioriari, or the
quashing of the decision to cancel Millicent’s membership, is the most desirable
remedy. If available, nothing further is required to restore Millicent to her previous
position of full membership. If not available, then a declaration of the club’s error
and an injunction restraining the club from bringing its decision into effect, would
have the desired result.

Students who quoted long slabs of judicial pronouncements on procedural
fairness, without applying these to the facts of the case, did less well.

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PART B

Question 2
The High Court of Australia under Chief Justice French has shown a
propensity to determine Parliamentary intention from the text of legislative
enactments, and has moved away from reliance on extrinsic material. With
reference to recent cases give examples and your view on this
development and compare it to previous prevalent trends of statutory
interpretation.
Question 2 required students to analyse recent cases on statutory interpretation
where the High Court has evinced a preference for analysis of statutory text
rather than to be bound by statements of intention. This question was well
answered by the students who attempted it.
These include cases such as Saeed v Minister for Immigration and Citizenship
(2010) 241 CLR 252. In Saeed, the Court considered whether section 51A of the
Migration Act 1958, ‘an exhaustive statement of the requirements of the natural
justice hearing rule in relation to the matters it deals with’ was effective to
exclude Ms Saeed’s application for judicial review. When section 51A was
inserted into the Migration Act, the Minister stated in Parliament (in the second
reading speech) that the purpose of this legislative amendment was to overturn
the High Court’s decision of Re Minister for Immigration and Multicultural Affairs;
Ex parte Miah (2001) 206 CLR 57. This intention was repeated in other extrinsic
material, for example, the Explanatory Memorandum to the Bill. The High Court
nevertheless considered the general law provided such a strong foundation for
the implication of procedural fairness that it could not lightly be inferred that
Parliament sought to exclude it. The High Court found that the ‘matters’ to which
section 51A referred were onshore applicants and therefore did not exclude
procedural fairness rights of offshore applicants such as Ms Saeed. Therefore,
the purpose as stated in the extrinsic material was not achieved.
Other relevant cases include Plaintiff S10 v Minister for Immigration and
Citizenship [2012] HCA 31, where the High Court found that the words of the
statute achieved the relevant purpose, and cases on privative clauses where the
High Court has not upheld what appears to be the obvious purpose of the law as
stated by lawmakers in formal explanatory material.
Students were asked to give a view on this development. Relevant arguments
here mirror those relevant to policy considerations concerning the courts’
approach to privative clauses. For example, the doctrine of Parliamentary
supremacy, when weighed against the courts’ role in upholding the rule of law.

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Question 3
The Ombudsman is a vital bulwark of modern democracy, the last backstop
for the desperate applicant. Alternatively, the Ombudsman is a toothless
tiger easily out-resourced, and later ignored, by Departments. Discuss,
with reference to evidence, which view is correct.
Question 3 requires students to discuss the effectiveness of review by the
Ombudsman, and to analyse the components of such review. Students could
refer to industry and private sector ombudsman as well as to the traditional
governmental ombudsman. Some reference to numbers of matters referred to
and resolved by the Ombudsman is desirable, as well as a reference to known
instances where intervention of the Ombudsman has led to systemic change.
Such matters include the Cornelia Rau and Vivian Alvarez matters and reform of
procedures within the Department of Immigration.
Some comparison of the Ombudsman with courts and tribunals is also
desirable. For example, summarising the main differences including that
review by the Ombudsman involves no need for standing, no need for written
request, decisions are recommendatory only, Ombudsman controls
proceedings, hearings are usually private etc.
The question also called for evaluation of the advantages and disadvantages
of the Ombudsman’s procedures. Evaluation can be included in the
elaboration of the aspects of the Ombudsman’s procedures.
The question called for students to give a view. In support of any view other
opinions could be referred to, including the well-known view that if
Ombudsman’s decisions were binding (not recommendatory) this would
substantially alter its approach and functions including its persuasive ability
with Ministers and Departments. An alternative view is the well-known view
that the Ombudsman, because its decisions are non-binding, is a ‘toothless
tiger’.

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