Decisions in detail

1. Materiality is here to stay

In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, a seven member bench of the High Court confirmed that materiality is ordinarily required for breach of an express or implied statutory condition to result in jurisdictional error.

A slim majority of the Court (Kiefel CJ, Gageler, Keane and Gleeson JJ) held that the applicant for judicial review bears the onus of proving a "realistic possibility" that the error could have made a difference to the decision under challenge.

There were two dissenting judgments. Gordon and Steward JJ held that the decision-maker bears the onus of demonstrating that an error was in fact immaterial after the applicant demonstrates that the error could have resulted in a different decision. Edelman J emphasised that the question of which party bears the onus depends on the terms of the statute, but observed that the onus is generally on the decision-maker to prove the immateriality of a breach.

2. Re-making decisions is not always possible

In MZAPC, the majority made some observations about when an administrative decision-maker can re-make a decision which they suspect is affected by jurisdictional error. Referring to Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, the majority stated that a decision affected by jurisdictional error lacks statutory force and "is invalid without need for any court to have determined that the decision is invalid".

In Victoria, the effect of sections 40 and 41A of the Interpretation of Legislation Act 1984 (Vic) is that, subject to any contrary intention in the statute, decision-makers have the power to re-make their decisions and to revoke or amend 'instruments' (such as written orders and notices).

The recent decision of Justice Incerti in AA v Secretary to the Department of Health and Human Services [2020] VSC 400 underscores the importance of focusing on the terms of the statute in determining whether there is the power to re-make a decision.

In that case, Justice Incerti found that a decision made by the Secretary pursuant to the Children, Youth and Families Act 2005 (Vic), concerning responsibility for the care of children, must have some legal effect before it is actually set aside by a court. Her Honour reached this conclusion because, among other things:

• legal consequences arose on the basis that a purported decision was made;
• there is an importance to finality in administrative decision-making, particularly when it involves responsibility for children;
• there is a separate procedure under the statute for the Secretary to apply to the Children's Court for a revocation of the decision; and
• it would be a ‘slippery slope’ to allow a public servant to make their own determination of whether a decision is invalid and recall the decision if it is convenient.

3. Evidence is limited in judicial review proceedings

The nature of a judicial review proceeding means there are strict limitations on what evidence is admissible. Judicial review is not an opportunity to reventilate contested questions of fact which were determined at first instance.

In Mackenzie v Head, Transport for Victoria [2021] VSCA 100 the Court of Appeal explained that admissible evidence is generally limited to "material that was before the decision-maker when he or she made the impugned decision".

The exceptions to this general rule include:

• evidence constituting an admission by the decision-maker;
• evidence showing the decision-maker failed to make an obvious inquiry about a critical fact;
• evidence reflecting an error as to a jurisdictional fact or that the decision-maker constructively failed to exercise jurisdiction; and
• expert evidence showing there was no intelligible foundation for the decision.

4. Delay can affect the validity of decisions

In Von Schoeler v Boral Timber [2020] FCAFC 13, the Full Federal Court heard an appeal from a decision of the Federal Circuit Court, which was delivered six years after the trial and closing submissions.

The Full Federal Court made the following observations on delay in the delivery of the judgment and reasons:

• a delay will defeat assumptions that favour the approach of the trial judge. For example, that the trial judge has taken into account the demeanour of witnesses, even in the absence of substantial reasons;
• the length of the delay creates a risk that the trial judge would be "under pressure to gravitate to the conclusion that was easiest to make and express";
• a lack of clarity in the reasons may (depending on the circumstances) suggest that delay has affected the decision; and
• a delay can create additional requirements for the reasons that may not ordinarily apply. These include to inform the parties why the evidence of a particular witness has been accepted, rejected, or preferred over another witness. The requirements also include to explain how, despite the delay, the trial judge was able to evaluate oral testimony (including the demeanour) of witnesses, in circumstances where credit and reliability were an issue.

5. A common law duty of care may be owed to those affected by administrative decisions

In Sharma v Minister for Environment [2021] FCA 560, Justice Bromberg held that the Minister for Environment owes a duty of care to the children of Australia to avoid physical injury, in making her decision to approve an extension to a coal mine under the Environment Protection and Biodiversity Act 1999 (Cth).

The novel duty of care was recognised applying the salient features approach:

• Reasonable foreseeability: The risk of personal injury to the children, caused by the direct impact of bushfires and heatwaves, was reasonably foreseeable. The Court assessed, and largely accepted, a considerable amount of expert evidence to this effect.
• Control: The Minister has direct control over the foreseeable risk. It is her exercise of power under the Act upon which the creation of that risk depends. Specifically, from her power to approve the extension and, more generally, her responsibility to ensure a healthy environment for future generations.
• Knowledge: The Minster has knowledge about the risk of the harm to the children, which was supported by the evidence received by the Court.
• Vulnerability: The children are vulnerable to the harm, given they are essentially powerless to influence the Minister's decision-making, and had no choice but to live in the environment "bequeathed to them".
• Reliance: The children relied on the Minister for two clear reasons: because she had the power to approve the project; and because she had the broader responsibility to ensure the health of the environment. The Court also observed there is a relationship between the government and the children of the nation "founded upon the capacity of the government to protect and upon the special vulnerability of children".
• Coherence: The physical safety of the children was a mandatory consideration for the Minister in exercising her power under the Act. For this reason, a duty of care requiring the Minister to take reasonable care to not cause children living in Australia personal injury was coherent with her power under the Act to approve the project. However, the Court found a duty requiring the Minister to take reasonable care to avoid causing loss of property or economic loss to the children would be incoherent with her statutory discretion. This statutory discretion is to consider a range of factors in deciding whether to approve the project. For this reason, the Court limited the scope of the common law duty to take reasonable care to "avoid physical injury" to children.
• Indeterminate liability: The liability of the Minister was not indeterminate and the persons to whom she owed the duty were clearly ascertained. Evidence about the reasonably foreseeability of harm, the personal injury claims pursued by potential claimants, and the types of harm to which they may be susceptible was clear. There are also ways for liability to be apportioned fairly between concurrent wrongdoers (due to the immense liability at issue not being exclusively attributable to the Minister).
• Policy: That the duty could encroach on political issues (such as the government's strategy for pursing a reduction to greenhouse gas emissions) should not deprive the children of access to justice. All the duty required was for the Minister to take reasonable care to avoid personal injury to children when exercising her power under the Act.

Bromberg J did not consider it appropriate to grant an injunction restraining the Minister from approving the extension to the coal mine. This was on the basis that, by pre-empting the Minister's decision, an injunction could deny rather than induce the reasonable response that a duty of care requires. However, his Honour in no uncertain terms implored the Minister to acknowledge the existence of the duty, along with the evidence received by the Court, in making her decision under the Act.

Bromberg J also acknowledged that other legal avenues may be available to the plaintiffs, such as future administrative law challenges to any decisions made by the Minister which conflict with the existence of the duty.