Recent Developments in Administrative Law – Volume 80
RECENT DEVELOPMENTS IN ADMINISTRATIVE LAW
Katherine Cook
Data Retention Bill passed by Parliament – joint media release by the Attorney General and Minister for Communications
On 26 March 2015, the Commonwealth Parliament passed Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 (the Bill).
By passing this Bill, the Parliament has ensured that our security and law enforcement agencies will continue to have access to the information they
need to do their jobs. No responsible government can sit by while those who protect us lose access to vital information, particularly in the current
high threat environment.
At the same time, the Bill contains safeguards to protect our cherished rights and liberties, including through the establishment of additional oversight
mechanisms covering the security and law enforcement agencies.
Metadata is the basic building block in nearly every counter-terrorism, counter-espionage and organised crime investigation. It is also essential for
child abuse and child pornography offences that are frequently carried out online.
A victim’s right to justice, and agencies’ ability to solve crimes, shouldn’t depend on which service provider is used by the victims and perpetrators.
The Bill ensures that telecommunications providers will be required to retain a defined set of data for a period of two years. This will substantially
improve the availability of data should it be necessary for a particular investigation.
The Parliamentary Joint Committee on Intelligence and Security (PJCIS) examined the Bill at length and concluded that the Bill is “a necessary, effective
and proportionate response to the serious threat to national security and public safety caused by the inconsistent and degrading availability of
telecommunications data.”
We also recognise that the right to privacy and the principle of freedom of the press are fundamental to our democracy. For these reasons, the Bill
contains new and strengthened safeguards. These include the provision of new oversight powers to the Commonwealth Ombudsman; a reduction in the
number of agencies accessing metadata from over 80 to 21; and specific protections for journalists and their sources.
No comparable nations will have greater pre-authorisation approval and post-authorisation oversight requirements for journalists.
The Government acknowledges the important work of two PJCIS inquiries and in particular the efforts of the Chairman and Deputy Chairman of the Committee,
Mr Dan Tehan MP and the Hon Anthony Byrne MP. The Government would also like to acknowledge the telecommunications industry, media and other stakeholders
who have been part of the ongoing consultation undertaken to achieve this crucial outcome for national security and law enforcement.
This represents the fourth tranche of national security legislation the Abbott Government has successfully implemented since October 2014. Through
these laws, the Government has addressed pressing gaps and needs in Australia’s national security and law enforcement framework.
We will continue to do everything we can to ensure that our agencies have the resources and powers they need to keep our community safe.’
Continuation of the Office of the Independent Reviewer of Adverse Security Assessments
On 11 December 2014, the Attorney General announced that the Hon Margaret Stone will continue in the role of the Independent Reviewer of Adverse Security
Assessments for a further two-year term.
Ms Stone has served in this role since December 2012. She has performed a valuable function in conducting independent reviews of Australian Security
Intelligence Organisation (ASIO) adverse security assessments of people who have been found to be owed protection under international law but are
being held in immigration detention in Australia because of an adverse security assessment.
The Government thanks Ms Stone for her willingness to continue in this role, which provides a valuable advisory review mechanism. This is an important
safeguard in addition to internal reviews of these cases conducted by ASIO.
To date, the majority of reviews of the Independent Reviewer have confirmed ASIO’s initial assessment, highlighting the integrity of the assessment
and internal review process. This is a testament to the confidence that successive Governments have rightly placed in the professional judgment
of ASIO. In the small number of cases where the Independent Reviewer has recommended a different outcome to the initial assessment, mainly where
additional information had come to hand, ASIO agreed with the recommendation and, in several cases, had already reached the same conclusion on
the basis of its internal review.
The (then) Minister for Immigration and Border Protection, the Hon Scott Morrison MP, said ‘the reviewer has played a helpful and important role in
addressing these cases and I look forward to that continuing as the Government processes the legacy caseload of 30,000 people Labor left behind
as a result of their border failure and failure to act on processing.’
The Government looks forward to continuing to work with the Independent Reviewer.
Further information about the Independent Reviewer of Adverse Security Assessments, including terms of reference is available at:
https://aial.org.au/aial-forum-articles/recent-developments-in-administrative-law-volume-80/
Super tribunal marks successful first year
(Former) NSW Attorney General Brad Hazzard welcomed strong figures from the state’s super tribunal showing that more than 70 per cent of matters in
2014 were resolved at, or prior to, the first hearing.
‘It is good news for tens of thousands of consumers and small businesses that disputes in NSW are being resolved speedily and at low cost,’ Mr Hazzard
said.
‘The NSW Civil and Administrative Tribunal (NCAT), which was established on 1 January last year to consolidate the work of 22 former tribunals, has
conducted more than 92,000 hearings.
‘From neighbours at war over a dividing fence to not getting exactly what you ordered for your mates buck’s night, NCAT deals with a diverse range
of cases across the state,’ Mr Hazzard said.
Along with consumer complaints and tenancy disputes NCAT also assists with guardianship applications for people who are unable to make decisions because
of a disability.
Mr Hazzard said NCAT was making digital access easy with two thirds of all applications relating to commercial and consumer disputes being lodged online.
‘The NCAT website has been very popular with more than 2.2 million page views last year. I’m pleased to say the website has now been given a fresh
new look and feel and been incorporated into the Department of Justice suite of sites making it easier for customers to access services and information
in one central place.
‘NCAT is a one stop shop for specialist tribunal services in NSW with hearings being offered at 78 locations around the state.
‘The NSW Liberal & Nationals Government has a strong track record in delivering quality services to the community and the super tribunal is helping
resolve disputes quickly and in a cost effective way,’ Mr Hazzard said.
http://www.justice.nsw.gov.au/Pages/media-news/media-releases/2015/Super-Tribunal-.aspx
Review to strengthen Victoria’s Charter of Human Rights
The Andrews Labor Government will review Victoria’s Charter of Human Rights and Responsibilities to ensure it is robust and effective.
Attorney-General Martin Pakula has appointed Michael Brett Young – CEO of the Law Institute of Victoria (LIV) until 2014 and previously managing partner
at Maurice Blackburn – to lead the review.
Introduced by the former Labor Government in 2006, the Charter contains 20 fundamental human rights based on those set out in the International Covenant
on Civil and Political Rights.
These include freedom of expression, privacy, liberty, equality before the law, the right to vote and rights in criminal proceedings.
The Charter requires the Victorian Government, public servants, local councils, Victoria Police and other public authorities to act compatibly with
these human rights and to consider them when developing policies, drafting legislation and delivering services.
During the last term of government, the Coalition significantly reduced the emphasis placed on the Charter and made cuts to Charter education and training
for government departments.
This review is the first step in delivering the Labor Government’s election commitment to refresh the Charter and resume public education to embed
the values of freedom, respect, equality and dignity in society.
The report – which will include consultation with key stakeholders and submissions from the public – will be delivered to the Government by 1 September
2015, before being tabled in Parliament by 1 October 2015.
Further information on consultations and submissions will be made available shortly. For more information about the Charter, visit:
http://www.humanrightscommission.vic.gov.au/index.php/the-charter
http://www.premier.vic.gov.au/review-to-strengthen-victorias-charter-of-human-rights
SACAT now open
South Australia’s central body for dispute resolution opened its doors on 30 March 2015.
Attorney General John Rau said the South Australia Civil and Administrative Tribunal(SACAT) is a huge step forward for the justice system and the South
Australian community and is the result of years of work.
‘I want our justice system to be fair and accessible to everyone, SACAT will be a one stop shop for most administrative disputes and tribunals.
‘The first phase of legislation passed last year moved the Residential Tenancies Tribunal, Guardianship Board and Housing Appeal Panel into the SACAT.
‘SACAT will also hear land valuation matters that were previously dealt with by the Supreme Court. This will streamline the process and will offer
real benefits for the public and the justice system.’
Mr Rau said the Tribunal’s work is divided into three streams that reflect the broad categories of work: community matters, housing and civil matters,
and administrative and disciplinary matters.
An experienced Executive Senior Member has been appointed to lead each of these streams while expert members remain on hand to assist the Tribunal
with matters that require a specific area of expertise.
‘These are the first of many jurisdictions that will move to SACAT over the coming years,’ Mr Rau said.
‘SACAT will take on the functions administered by a range of bodies and authorities.
‘For example, disputes of the return of a bond to a tenant or a family dispute about the best way to make decisions for a parent with mental incapacity
will be heard by SACAT.
‘It is expected that around 120 Acts will move over to SACAT over time and the Tribunal will continue to adapt as its role expands.’
SACAT President, Justice Greg Parker, said the Tribunal will place great emphasis on accessibility and efficiency for the public.
‘SACAT has been provided with the tools to be as flexible as possible so as to handle matters in the most appropriate way, which will be determined
on a case-by-case basis,’ Justice Parker said.
‘Alternative dispute resolution can be used to assist parties to reach an agreement without the need for a hearing. Or, where necessary, SACAT has
the power to obtain evidence and manage proceedings.
‘A single online form replaces multiple paper applications and there will be a one off application fee of $69. These will replace the diversity of
application forms and fees that were previously in place.
‘Cases can also be heard in regional areas and via video conferencing or telephone and Tribunal members will continue to attend hospitals for hearings
where necessary.
‘There is also a public kiosk based at SACAT headquarters at 100 Pirie Street where online applications can be made with the advice and assistance
of trained community access officers.’
For more information about SACAT or to lodge an application visit www.sacat.sa.gov.au.
Privacy law reform report card
12 March 2015 marks the first anniversary of the most significant changes to Australian privacy laws in over 25 years. On 12 March 2014, changes to
the Privacy Act 1988 commenced.
The Office of the Australian Information Commissioner’s (OAIC) focus over the past year has been on developing guidance and working with organisations
and agencies to ensure compliance.
‘Over the last year we have focused on working with business, government agencies and the wider community to ensure that everyone has the tools and
information they need to understand and implement the changes,’ said the Australian Privacy Commissioner, Mr Timothy Pilgrim.
‘I’ve been particularly pleased with how organisations and agencies have responded positively to the challenge of implementation. This is recognition
that good privacy practices are good for business, particularly in building customer trust.’
The changes included the introduction of a new set of unified privacy principles, the Australian Privacy Principles (APPs), changes to the credit reporting
provisions and new enforcement powers for the Commissioner.
Over the past 12 months, the OAIC has:
- received 4,016 privacy complaints (a 43% increase on the previous 12 months);
- received 14,064 privacy enquiries;
- received 104 voluntary data breach notifications; and
- commenced 13 privacy assessments.
Since 12 March 2014, the OAIC has encouraged organisations and agencies to focus on being open and transparent with customers about how their personal
information is managed, a new requirement in the APPs. The Commissioner has commenced a targeted assessment program of a selection of online privacy
policies, with more assessments focusing on APP compliance to come in 2015.
‘For the next twelve months our focus will be on governance, assisting organisations and agencies to build a culture of privacy, and ensuring that
organisations and agencies are proactive in meeting their compliance requirements. My message for all organisations and agencies is: it is more
effective, and ultimately cheaper, to embed privacy in day-to-day processes than it is to respond to issues such as data breaches as they arise,’
said Mr Pilgrim.
The OAIC has been undertaking privacy law reform work during a period of significant change within its own structure, as foreshadowed by the Government
in the 2014 Budget.
The implementation of such significant privacy reforms could not have been achieved without the commitment of a dedicated and skilled group of staff
who worked tirelessly to ensure that businesses, agencies and the OAIC were prepared,’ said Mr Pilgrim.
Equal Opportunity Act review released
The Western Australian State Government has endorsed recommendations of the review into the structure of the Equal Opportunity Commission.
Attorney General Michael Mischin has also announced the appointment of Allanah Lucas as the Commissioner for Equal Opportunity for a three-year term.
Mr Mischin said the report, compiled by the Public Sector Commissioner, made four recommendations on how the objectives of the Equal Opportunity Act 1984 could best be achieved.
‘The commissioner has a range of important functions under the Act. The continuing promotion of equality and elimination of discrimination is vital
to achieving equal opportunities in Western Australia,’ he said.
‘Such a review seemed timely, given the approach of the 30th anniversary of the passage of the Act.
‘Almost 50 submissions were received in response to the review, demonstrating broad and strong support for the Office of the Commissioner as an independent
statutory body.
‘The review did identify opportunities to improve the Commission’s effectiveness, recommending the commissioner revise the internal structure of the
organisation and make greater use of technology in operational areas such as complaints handling.
‘It also found there was an opportunity for the Commission to be more proactive and strategic in its role to advise and assist individuals, businesses,
organisations and agencies, and recommended greater collaboration with relevant agencies, such as the Australian Human Rights Commission, the Western
Australian Ombudsman and Legal Aid Western Australia.’
The Attorney General said, in relation to the Director of Equal Opportunity in Public Employment (DEOPE), the review found there was an opportunity
for agencies’ reporting and compliance obligations to be streamlined and rationalised in light of their current obligations under the Public Sector Management Act 1994.
‘The review recommended the statutory role of the DEOPE be abolished and its statutory functions transferred to the Public Sector Commissioner,’ he
said.
‘This would preserve the important statutory functions of the DEOPE, but accommodate the office within the framework for administration of the public
sector under the Public Sector Management Act 1994.’
Recent Cases in Administrative Law
The ‘national interest’ and unauthorized maritime arrivals
Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor [2015] HCA 3 (11 February 2015)
The plaintiff, a Pakistani national, entered Australia by boat at Christmas Island in May 2012.He did not have a visa and was, therefore, an ‘unlawful
non-citizen’ within the meaning of the Migration Act 1958 (Cth) (the Act).By June 2013 amendments to the Act,
he subsequently became an ‘unauthorised maritime arrival’.
Because the plaintiff was an unlawful non-citizen and an offshore entry person (and later an unauthorized maritime arrival) he was barred from making
a valid visa application. In September 2012, the Minister lifted the bar and permitted the plaintiff to make an application for a permanent protection
visa (PPV).The plaintiff made an application, which was refused by a delegate of the Minister.The plaintiff sought review of that decision by the
Refugee Review Tribunal.The Tribunal remitted the plaintiff’s application to the Minister for reconsideration because the plaintiff was found to
be a refugee.The Minister did not decide the plaintiff’s application because of an instrument signed on 4 March 2014, which purported to create
a cap on the maximum number of protection visas that could be granted in the financial year ending 30 June 2014. That maximum number having been
reached, the grant of a protection visa to the plaintiff in that financial year would exceed that limit.
The plaintiff initiated proceedings in the High Court claiming that various regulatory and other steps, including the cap, which were thought to permit
the Minister not to decide the plaintiff’s application were invalid or ineffective.In June 2014, the High Court held in favour of the plaintiff
and ordered that the Minister consider and determine the plaintiff’s application for a PPV according to law (see Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor [2014] HCA 24).
In July 2014, the Minister decided to refuse to grant the plaintiff a protection visa.The only reason for the refusal was that the Minister was not
satisfied that the grant of a protection visa to the plaintiff ‘is in the national interest’ (cl.866.226 criterion) because he was an unauthorised
maritime arrival. The Minister’s decision record shows that he saw ‘the national interest’ as requiring refusal of a protection visa to any and
every unauthorized maritime arrival.
The plaintiff challenged the validity of the ‘national interest’ criterion on which the Minister relied and asked for orders directing the Minister
to grant the plaintiff a PPV.The plaintiff also contended that amendments made to the Act and Migration Regulations 1994 in late
2014 to convert PPV applications into temporary protection visa (TPV) applications, did not affect his right to a grant of the permanent protection
visa he had applied for.
The High Court unanimously found that the decision made by the Minister to refuse to grant the plaintiff a protection visa was not made according to
law. The Court found that the Act exhaustively states what visa consequences attach to being an unauthorised maritime arrival (that they
are barred from making an application for a visa unless the bar is lifted), and the Minister could not refuse an application for a visa only because
the plaintiff was an unauthorised maritime arrival, in circumstances where the bar was lifted.It was not necessary for the Court to address the
validity of the ‘national interest’ criterion upon which the Minister relied in refusing the plaintiff’s application.
The Court also held that the amendments to the Act and Regulations in late 2014 did not convert the plaintiff’s application for a PPV to a
TPV. The new reg 2.08F(3) (which purportedly converts undecided PPV applications into TPV applications) only applied to applications where ‘the
Minister had not made a decision’. The Court rejected the defendants’ submission that reg 2.08F applied because the Minister’s decision involved
jurisdictional error and ‘is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.’
The Court held that this phrase must be read in the context of the whole of reg 2.08F(3), including the reference to legally infirm decisions in reg
2.08F(3)(b)(iii). In this context it becomes evident that ‘if…the Minister had not made a decision’, does not include legally ineffective
decisions made by the Minister. Therefore, for the purposes of reg 2.08F, the Minister had made a decision before is commencement. As such the
plaintiff’s application for a PPV was not affected by these amendments.
Administrative law and the AFL
Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7 (30 January 2015) (Kenny, Besanko and White JJ)
This was an appeal from a judgment of a judge of the Federal Court, dismissing applications for judicial review by Mr James Hird, the Senior Coach
of the Essendon Football Club (Essendon) in respect of a decision by the Chief Executive Officer (CEO) of the Australian Sports Anti-Doping Authority (ASADA) to issue notices under cl 4.07A of the National Anti-Doping Scheme (NAD Scheme) to 34 current and former players for Essendon. Essendon did not appeal.
The notices were issued by the CEO as part of an investigation by ASADA, in cooperation with the Australian Football League (AFL), into a supplements
program employed by Essendon in 2011 and 2012. Under cl 4.07A, the notices were required to inform each of the 34 players of a ‘possible non-presence
anti-doping rule violation.’
Mr Hird challenged the Federal Court’s decision on a number of grounds. First, he contended that the ‘joint’ or cooperative investigation conducted
by ASADA with the AFL was not authorised by the Australian Sports Anti-Doping Authority Act 2006 (Cth) (ASADA Act). He also contended,
among other things, that the CEO acted unlawfully in: (1) disclosing certain personal (NAD Scheme personal information) to the AFL during the interviews
of Essendon players and personnel, and (2) facilitating the abrogation of the interviewees’ common law rights against self-incrimination and exposure
to civil penalties. Mr Hird also argued that the notices issued to the 34 players were invalid as the evidence or information from the investigation
on which the notices were based was unlawfully obtained.
Mr Hird did not contest the findings of fact made by the primary judge, although he disputed the primary judge’s characterisation of those findings.
The primary judge found that the AFL and ASADA each conducted separate investigations in which they cooperated closely with one another and subsequently
made separate decisions within their own areas of responsibility. ASADA was clearly conducting an investigation into possible anti-doping violations
while the AFL was undertaking its own enquiries, obtaining information for itself (for instance, through the interview process) for the purposes
of enforcing its own Player Rules.
The Full Court rejected Mr Hird’s contention that primary judge’s decision involved any element of mischaracterisation. It further rejected Mr Hird’s
challenge essentially because it held that the investigation conducted by ASADA, in cooperation with the AFL, was authorised by the ASADA Act,
the Australian Sports Anti-Doping Authority Regulations 2006 (Cth) and the NAD Scheme. This legislative scheme envisaged that there would
be close cooperation between ASADA and sporting administration bodies, like the AFL, in anti-doping investigations. The legislative scheme enabled
ASADA to benefit lawfully from the AFL’s use of its compulsory contractual powers, including by requiring Essendon players and personnel to attend
interviews at which both AFL and ASADA representatives were present and to answer questions.
The Full Court also affirmed that there was no unlawful disclosure of NAD Scheme personal information by ASADA to the AFL in the interviews of Mr Hird
and the 34 Players because each provided information at his interview directly and simultaneously to the AFL and ASADA, the representatives of
both being present when the information was given.
The Full Court also held that the CEO did not facilitate the abrogation of the interviewees’ common law rights to the privileges against self-incrimination
or exposure to penalty. There was no practical unfairness to the appellant or the 34 Players in the way the interviews were conducted and they
were not misled in the interview process. The Full Court rejected Mr Hird’s submissions about lack of ‘free consent’ and that there was no waiver
of privilege. The Full Court agreed with the primary judge, who found that, upon becoming a player or official, Mr Hird and the 34 Players voluntarily
accepted the obligations under the AFL’s Player Rules and Anti-Doping Code to attend interviews and answer questions fully and truthfully, or face
possible sanction by the AFL. Mr Hird and the 34 Players were all legally represented at their interviews. They and their lawyers were on notice
before and at the interviews that the AFL and ASADA proposed to conduct the interviews together and they could have been in no doubt about the
purposes of the interviews. They also knew that the AFL was invoking the compulsory powers conferred by its Player Rules and its Anti-Doping Code
when it required answers to the interview questions. The primary judge found, and Mr Hird did not dispute, that neither he nor any of the 34 Players
objected to the presence of either the AFL or ASADA at their interviews. No one objected to answering any question, whether on the ground that
its answer might incriminate him or expose him to a civil penalty, or otherwise.
Since Mr Hird failed to establish that the information on which the CEO based the decision to issue notices under cl 4.07A of the NAD Scheme was unlawfully
obtained, Mr Hird’s challenge to the notices failed and the appeal was dismissed.
The AFL’s Anti-doping Tribunal decision – the end?
On 31 March 2015, the AFL’s Anti-doping Tribunal handed down its decision with respect to the alleged violation by the Essendon 34 players of the AFL
Anti-Doping Code.
The Tribunal was comfortably satisfied that the substance Thymosin Beta-4 was at the relevant time a prohibited substance under the Anti-Doping Code.
However, the Tribunal was not comfortably satisfied that any player was administered Thymosin Beta-4. Therefore, it was not comfortably satisfied that
the 34 players violated cl.11.2 of the AFL Anti-Doping Code.
The Tribunal’s decision and reasons were provided to the parties in accordance with the function performed by the Tribunal. Any publication of the
Tribunal’s decision and reasons is a matter for the parties.
The AFL Players Association has said it will take time for a decision to be made on whether the Tribunal findings are to be made public. Each of the
34 players must separately decide whether he wa
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