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APPLYING PROJECT BLUE SKY – WHEN DOES BREACH
OF A STATUTORY REQUIREMENT AFFECT THE VALIDITY
OF AN ADMINISTRATIVE DECISION?
_Graeme Hill_* The High Court’s decision in Project Blue Sky v Australian Broadcasting Authority^1 sets out the approach to determine whether a failure to comply with a statutory requirement affects the validity of an administrative decision.^2 A joint judgment of four members of the Court (McHugh, Gummow, Kirby and Hayne JJ) stated:^3 An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. The joint judgment rejected the previous distinction between ‘mandatory’ and ‘directory’ statutory requirements, stating that this distinction merely recorded a result that has been reached on other grounds. Instead, their Honours stated that a better test for determining the issue of validity is to ask whether it was ‘the purpose of the legislation that an act done in breach of the provision should be invalid’.^4 This paper attempts to give some content to this rather general test. I will use two cases as illustrations:
- the first is the decision of the Full Court of the Federal Court in Kutlu v Director of Professional Services Review.^5 This case held that a failure by the Minister to consult the Australian Medical Association (AMA) before appointing members of various Professional Services Committees meant that the decisions of those committees were invalid; and
- the second is the decision of the Victorian Court of Appeal in Director of Public Prosecutions v Marijancevic.^6 That case considered whether a failure to swear an affidavit filed in support of an application for a search warrant meant that any evidence obtained under that warrant was inadmissible. I should acknowledge that the joint judgment in Project Blue Sky itself doubted whether it would be possible to lay down a more specific test. Their Honours stated:^7 Unfortunately, a finding of purpose or no purpose [to invalidate a decision] in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue. Moreover, the usual difficulties in ascertaining legislative ‘intention’^8 are magnified in this context – very often the courts are imputing a legislative intention to a Parliament that has
- Graeme Hill is Barrister, Owen Dixon Chambers West, Melbourne Vic.
not addressed this issue.^9 For that reason, it could well be said that the Project Blue Sky test is no less conclusory than the ‘mandatory/directory’ test that it rejected.^10 However, while it is not possible to lay down any ‘decisive rule’, it is possible to draw some themes that emerge from the cases that have applied Project Blue Sky. This discussion assumes that the relevant statute does not make any express provision for the consequences of breaching a statutory requirement and it only considers the position of administrative decision-makers, not courts. The High Court has made it clear that the Project Blue Sky approach is not relevant when considering the effect of non-compliance with statutory requirements on the jurisdiction of courts. 11 Project Blue Sky and case illustrations The starting point is the factors used in Project Blue Sky itself to determine whether the breach of a statutory requirement in that case should lead to the invalidity of the decision under consideration. Project Blue Sky The question in Project Blue Sky was the legal effectiveness of an Australian content standard made by the Australian Broadcasting Authority,^12 purportedly under s 122(2)(b) of the Broadcasting Services Act 1992 (Cth) (the Broadcasting Services Act ). Under cl 9 of that standard, Australian programs had to comprise 55% of all broadcasts between 6am and midnight. Section 160(d) of the Broadcasting Services Act required the Australian Broadcasting Authority to perform its functions in a manner consistent with Australia’s international obligations. One of those international obligations was a trade agreement between Australia and New Zealand, which provided that Australia and New Zealand would offer equal access and treatment to persons and services of the other country. The Australian content standard (or at least cl 9) clearly did not provide equal treatment for Australian and New Zealand programs. The High Court held that cl 9 of the Australian content standard was contrary to s 160(d) of the Broadcasting Services Act.^13 The question then was, what was the effect of non-compliance with s 160(d) of the Broadcasting Services Act on the Australian content standard. Section 160 provided that the Australian Broadcasting Authority ‘is to perform’ its functions in a manner consistent with the four listed matters (including Australia’s international obligations). The joint judgment does not appear to have given much weight to this apparently mandatory (or obligatory) language. However, in a related context, the High Court has stated that the fact that a statutory requirement is expressed by the use of ‘must’ is not conclusive.^14 In Project Blue Sky , the joint judgment relied on three other factors to conclude that a breach of s 160(d) of the Broadcasting Services Act did not render a decision invalid as such. Regulation of existing function The first factor was whether the statutory requirement regulated the exercise of functions already conferred, or was an ‘essential preliminary’ to the exercise of a function. The joint judgment held that s 160 of the Broadcasting Services Act merely regulated an existing function, which ‘strongly indicate[d]’ that a breach of s 160 should not invalidate a decision.^15
Obligation to consult AMA before appointment (ss 84(3) and 85(3)) Part VAA of the Health Insurance Act establishes the Professional Services Review Scheme. In general terms, this scheme reviews and investigates the provision of services by a person to determine whether the person has engaged in ‘inappropriate practice’. This investigation is undertaken first by the Director of Professional Services Review (Div 3A), who may refer a matter to a Professional Services Review Committee (Div 4). Committee members are drawn from a Professional Services Review Panel appointed under s 84. Some panel members are also appointed as Deputy Directors under s 85. Both ss 84 and 85 require the Minister to consult with the AMA before appointing a medical practitioner as a panel member, or as a Deputy Director. Section 84(3) provided: (3) Before appointing a medical practitioner to be a Panel member, the Minister must consult the AMA. The Minister must make an arrangement with the AMA under which the AMA consults other specified organisations and associations before advising the Minister on the appointment. Section 85(3) imposed the same requirement on appointing a medical practitioner to be a Deputy Director. Committees and their decisions invalid The Full Court of the Federal Court held that the failure to consult, as required by ss 84 (3) and 85(3) of the Health Insurance Act , meant both that the appointment of those Committees was invalid, and that the decisions taken by those Committees were invalid.^24 Rares and Katzmann JJ reasoned as follows.
- although the Minister was not bound to accept the AMA’s advice, the consultation and advice required by ss 84(3) and 85(3) ‘can expose significant matters for the Minister to consider about a prospective appointee as part of the deliberative process’.^25 The advice of the AMA is a relevant, though not decisive, consideration for the Minister in deciding who to appoint;^26
- Part VAA provides for a system of peer review. The appointment process under ss 84 and 85 is intended not only to ensure public confidence in the decisions of Committees, but also to ensure the confidence of the relevant professions and of the person who is being reviewed. This indicated that prior consultation by the Minister was an ‘essential pre-requisite’ to the validity of the appointment of persons under those sections;^27
- the fact that s 96A made only limited provision for a Panel to continue without consent when a member is unavailable was an indication that Parliament regarded the valid and proper constitution of a Committee as an essential and indispensible condition of any Committee’s exercise of functions under the Health Insurance Act;^28 and
- the fact that the invalidity of the appointments would cause public inconvenience was, on its own, suggestive of a legislative intention that failure to consult would not lead to invalidity.^29 However, these considerations did not displace the express words of ss 84(3) and 85(3).^30 The requirements of ss 84(3) and 85(3) had a rule-like quality that could be easily identified and applied.^31 The scale of the Ministers’ failures to obey ‘simple legislative commands’ to consult the AMA was not likely to have been something that the Parliament had anticipated. If the appointments were treated as valid, the unlawfulness of the Minister’s conduct would attract no remedy.^32
Flick J reasoned to similar effect that:
- although the fact that ss 84(3) and 85(3) stated that the Minister ‘must’ consult was only the beginning of the inquiry,^33 the use of mandatory language was still a ‘valuable guide’;^34
- an adverse finding from a Professional Services Review Committee would prejudicially affect the reputation and standing of the practitioner concerned.^35 An ‘essential aspect’ of the scheme provided for in Pt VAA was that a practitioner’s conduct would be reviewed by practitioners who have been appointed after consultation by the Minister.^36 That is, non-compliance with the requirement to consult the AMA is not a mere technicality or mere formality, because the AMA played a ‘pivotal role’ in the scheme of Pt VAA;^37
- the medical practitioner whose conduct is being reviewed would be unable to determine whether the necessary consultation had occurred. This was not a case where a practitioner could be expected to conduct his or her own independent investigation as to whether these requirements had been complied with;^38 and
- arguments about ‘public inconvenience’ had the potential to be ‘self-justifying and circular’. Where there was uncertainty as to the presumed legislative intention in circumstances where there has been non-compliance with a statutory provision, it is permissible to take account of the consequences of one interpretation as opposed to another, including a consequence of ‘public inconvenience’.^39 In this case, however, the requirements of ss 84(3) and 85(3) were clear, and there was no room to rely on ‘public inconvenience’ as an aid to statutory construction.^40 Any ‘public inconvenience’ is something for which the Minister alone must remain accountable. 41 Committees and decisions validated by legislation The High Court granted special leave to appeal from the Full Court’s decision in February 2012, 42 but those proceedings were discontinued in May 2012. 43 In June 2012, the Commonwealth Parliament enacted legislation to address the problem identified in Kutlu. Schedule 1 of the Health Insurance Amendment (Professional Services Review) Act 2012 (Cth) applies to a thing purportedly done under Pt VAA, VB or VII of the Health Insurance Act to the extent that the thing would be invalid because a person was not appointed or validly appointed as a Panel Member or Deputy Director under Pt VAA of that Act (item 1(1)):
- the thing purportedly done ‘is as valid and effective, and is taken always to have been as valid and effective, as it would have been had the person been validly appointed as a Panel member or Deputy Director under that Part’ (item 1(2)); and
- ‘[a]ll persons are, by force of this subitem, declared to be, and always to have been, entitled to act on the basis that the thing purportedly done is valid and effective’ (item 1(3)). Marijancevic – failure to swear affidavits The other illustrative case is Marijancevic. Unlike Kutlu , this was not a case where a person was seeking to invalidate a particular administrative act. Rather, the issue in Marijancevic was the admissibility of evidence obtained pursuant to a search warrant, where the statutory requirements for obtaining the warrant had not been complied with. The specific issue was whether that evidence should be admitted under s 138 of the Evidence Act 2008 (Vic) (the Evidence Act ).
The Court of Appeal agreed with the trial judge that failing to swear affidavits (as distinct from merely signing them) was a very serious error. The Court stated that the importance of making an affidavit in support of a search warrant ‘can hardly be gainsaid’.^48 A search warrant authorises what would otherwise be a trespass.^49 To proffer to a magistrate material which is not sworn or affirmed in order to obtain a search warrant ‘has a tendency to subvert a fundamental principle of our law’.^50 In assessing s 138(3)(d), the Court made observations on the degree of seriousness of gravity that are potentially of broader application:^51
- at the least serious end of the spectrum of improper conduct is that ‘which did not involve any knowledge or realisation that the conduct was illegal and where no advantage or benefit was gained as a consequence of that impropriety’;
- in the middle of the range is conduct ‘which was known to be improper but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal’; and
- at the most serious end is conduct ‘which was known to be illegal and which was pursued for the purpose of obtaining a benefit or advantage that could not be obtained by lawful conduct.’ The conduct in Marijancevic was only in the middle range, because it was not undertaken for the purpose of obtaining an advantage that could not by proper conduct be obtained. The Court held that the trial judge’s reference to impropriety of the ‘highest order’ only meant that the conduct was of such a high order as to justify the exclusion of the evidence.^52 This analysis looks at the extent of and reasons for non-compliance. This analysis raises two factors: (1) the decision-maker’s knowledge of the non-compliance; and (2) whether any advantage was obtained from the non-compliance. As discussed below, more recent cases suggest that there may be room to consider the extent and consequences of non- compliance in applying Project Blue Sky (at least in some contexts). In the result, the Court of Appeal refused to interfere with the trial judge’s exercise of discretion. However, the Court stated that ‘[i]t should not be assumed that we would have made like findings or that we would have exercised the discretion in the same way had a finding of inadvertent or careless conduct been made.’^53 Affidavits validated by legislation The evidence given in Marijancevic indicated that there was a widespread practice within Victoria Police of merely signing, rather than swearing, affidavits. The Victorian Parliament enacted legislation to address this issue. The Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 (Vic) (the 2012 Affidavits Act ) inserted a new s 165 into the Evidence (Miscellaneous Provisions) Act 1958 (Vic). In general terms, the new s 165 provides that:
- if an affidavit signed before 12 November 2011 by a person and by a person duly authorised to administer oaths contains words indicating that the first person states that the affidavit is made on oath or affirmation, then the words indicating that the first person states that the affidavit was made on oath or affirmation are and are taken always to have been effective by way of oath or affirmation even if specified acts (such as making the oath orally) were not done or did not occur (s 165(1));
- a warrant, order, summons or other process issued or made in reliance on such an affidavit ‘is not invalid only by reason of the fact that, but for [s 165(1)], the affidavit would not have been duly sworn or affirmed’ (s 165(2); and
- for the purposes of the prosecution of an alleged offence, the fact that, but for s 165(1), an affidavit would not have been duly sworn or affirmed ‘is to be disregarded in determining whether evidence obtained in reliance, directly or indirectly, on that affidavit ought to be admitted’ (s 165(3)). In Rich v The Queen ,^54 the Victorian Court of Appeal rejected an argument that the 2012 Affidavits Act was contrary to the principle in Kable v Director of Public Prosecutions (NSW).^55 Kutlu and Marijancevic are striking decisions because, first, significant disruption would follow from invalidating the relevant administrative actions and secondly, the breaches did not seem to be ones that would undermine the quality of the final decisions made (that is, the decisions by the Professional Services Committee, or the contents of the affidavits made in support of the applications for search warrants). Analysis of relevant factors As with any question of statutory construction, it is necessary to start with the text.^56 However, the fact that a provision is expressed in mandatory language is relevant, but not conclusive (as Flick J observed in Kutlu ).^57 Several cases have held that non-compliance with a statutory requirement does not lead to invalidity, despite apparently mandatory language, because of other factors such as public inconvenience that would follow from holding decisions to be invalid.^58 The different judgments in the Full Court in Lansen^59 illustrate how different weight may be given to textual and other factors. The issue in that case was the effect of non-compliance with s 134(4)(a) of the Environment Protection and Biodiversity Act 1999 (Cth) (the EPBC Act ), which provides that, before attaching conditions to an approval decision under that Act, the Commonwealth Minister ‘must consider’ any relevant conditions that have been imposed under State or Territory law.^60 The majority justices (Moore and Lander JJ) held that non- compliance with s 134(4)(a) rendered the Minister’s approval invalid. Their Honours relied particularly on textual matters, such as the mandatory language of s 134(4)(a),^61 and the fact that other provisions of the EPBC Act expressly dealt with the consequences of non- compliance but not s 134(4)(a).^62 The dissenting judgment of Tamberlin J gave more weight to the inconvenience to the proponent of invalidity,^63 which caused his Honour to give less weight to those other textual matters.^64 I would suggest that a more significant factor than apparently mandatory language is the role that the particular provision plays in the statutory scheme, which is considered below. ‘Essential preliminary’ to regulation of existing function The first factor from Project Blue Sky is whether the statutory requirement regulates the exercise of functions already conferred, or is an essential preliminary to the exercise of a function. This factor was referred to in Fernando v Minister for Immigration and Multicultural Affairs.^65 The question in that case was whether the Refugee Review Tribunal (the RRT) could determine a review application that was lodged more than 28 days after the person was notified of the decision. Heerey J (with Dowsett J agreeing) stated that making an application within the time limit was an ‘essential preliminary’ to the exercise of the RRT’s function.^66 Accordingly, the RRT could not consider an application that was lodged after 28 days.
Conversely, in Kutlu , the major factor was that the consultation requirements in ss 84(3) and 85(3) of the Health Insurance Act were central to the system of peer review established by Pt VAA of that Act. The fact that these requirements were ‘easily identified and applied’^76 bolstered the conclusion that non-compliance with those provisions should lead to invalidity.^77 Another relevant factor is the place of the statutory requirement in the legislative scheme. As already noted, a particular statutory requirement might be central to a statutory scheme. For example, Kutlu held that the consultation requirement considered in Kutlu was central to the system of peer review established by Pt VAA of the Health Insurance Act. Non- compliance with a central provision of this sort is likely to lead to invalidity. Procedural safeguard or effect on private rights Even if a provision is not central, non-compliance is likely to lead to invalidity if the statutory provision contains a procedural safeguard for persons affected by the scheme, or is a provision that affects private rights.^78 An example of a procedural safeguard is a statutory provision that mirrors or gives effect to an important administrative law obligation, such as procedural fairness. Non-compliance with a provision of this sort is very likely to lead to the invalidity of the decision. This point is illustrated by SAAP v Minister for Immigration and Multicultural and Indigenous Affairs.^79 A majority of the High Court held that non-compliance with a requirement to provide details of adverse information to an applicant in writing^80 invalidated a decision, even if that information had been provided orally. The requirement to provide that information in writing was directed towards complying with the administrative law obligation to provide procedural fairness. Accordingly, the majority justices derived a legislative intention that any breach of this requirement should invalidate the decision.^81 Another example is Oke.^82 In that case, the police officer executing a search warrant failed to make available a copy of the warrant to the occupier of premises, as required by s 3H of the Crimes Act 1914 (Cth). The Full Court of the Federal Court held that this failure invalidated the warrant. One relevant factor was that, unless the occupier has a copy of the warrant, it would be extremely difficult for the occupier to monitor the conduct of those executing the warrant to ensure that nothing is seized in purported reliance on the warrant that is not authorised. 83 It was also relevant that the courts interpret statutory provisions authorising the issue and execution of search warrants strictly, because they authorise the invasion of property rights.^84 A third example is Smith v Wyong Shire Council.^85 In that case, a council had failed to publicly exhibit a Ministerial direction, as required by s 66 of the Environmental Planning and Assessment Act 1979 (NSW). The NSW Court of Appeal referred to the importance of public consultation in the scheme of the Act in holding that this non-compliance meant that the relevant direction was invalid.^86 Public inconvenience if decision invalid The third factor referred to in Project Blue Sky is the public inconvenience that would result if non-compliance meant that a decision was invalid.
‘Inconvenience’ The first issue is the meaning of ‘inconvenience’ in this context.^87 The reference to public inconvenience seems to exclude any potential inconvenience to the decision-maker that would result from holding the decision to be legally ineffective.^88 (The converse issue is whether the breach of a statutory requirement has caused any inconvenience or prejudice to the person challenging the validity of the decision.) The courts are particularly concerned with inconvenience to persons who do not have control over whether the error is made. That point appears clearly from the following statement of principle in Montreal Street Railway Co v Normandin :^89 When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious inconvenience, or injustice to persons who have no control over those entrusted with the duty , and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only. In Project Blue Sky , the joint judgment was concerned that members of the public should be able to order their affairs on the basis of apparently valid decisions.^90 This is so particularly for people who spend a great deal of money on the purchase of a broadcasting licence, and spend more money in utilising that licence. According to the joint judgment, to hold that a licence could be ineffective as a result of non-compliance by the Australian Broadcasting Authority (when that non-compliance might be difficult to detect) would lead to expense, inconvenience and loss of investor confidence.^91 Conversely, the courts will be less concerned about inconvenience if compliance with the requirement is within the control of the person affected. For example, in Fernando , both Heerey J and Finkelstein J noted that compliance with a 28 day time limit for lodging an application for review would usually be within the control of the applicant. Accordingly, their Honours gave little weight to possible inconvenience to the applicant of finding that the RRT had no jurisdiction to review the application, because in that case the failure to comply with the 28 day limit was the applicant’s fault.^92 (Admittedly, Heerey J noted that there might be situations where non-compliance was not the fault of the applicant, and the strict time limit would cause hardship.^93 ) Sometimes the potential for inconvenience to the public generally will need to be weighed against the potential for prejudice to the individual. In Project Blue Sky , the joint judgment was concerned to avoid the public inconvenience that would follow from a finding that non- compliance with s 160 of the Broadcasting Services Act invalidated a decision of the Australian Broadcasting Authority. Imagine, however, that a licensee is prosecuted due to a failure to comply with an additional condition on a licence imposed under s 43 of the Broadcasting Services Act.^94 In that situation, the individual licensee may well wish to argue that a failure to comply with s 160 of the Act in imposing that condition would invalidate the decision. 95 Kutlu provides an example of this point. One of the main purposes of reviews under Pt VAA was to protect the public. Flick J accepted that the invalidity of the appointment of Committee members might mean that practitioners have engaged in ‘inappropriate practice’ but would escape any sanction because of what some may perceive to be a technicality.^96 However, this inconvenience was one for which the Minister alone must be accountable.^97
In Bond , Gray J held that the applicant had not demonstrated that (the amended) s 3(8) of the WRC Act had not been complied with,^108 but held further that non-compliance with s 3(8) would not result in invalidity in any event. Gray J referred to the following factors:
- the amended form of s 3(8) (‘may only’) arguably uses permissive language;^109
- the requirement for consultation under the amended s 3(8) is less onerous than the previous requirement of agreement and greatly reduced the chance of non- compliance; 110
- section 3(8) regulates a power to make regulations that is already conferred, rather than imposing essential preliminaries.^111 (Arguably s 3(8) defines the power to make regulations, rather than merely regulating it.);
- to hold a regulation invalid would cause public inconvenience.^112 The relevant regulations had stood unchallenged for many years;^113 and
- if consultation had taken place, there would have been power to make the regulation, even if the Committee had opposed it.^114 (This point gets close to saying that consultation is a mere formality, and the same decision would have been made even if consultation had occurred.^115 ) It might be noted that Gray J does not address the points made in the second to fourth factors from Epstein, above.^116 Two additional factors Apart from the three factors mentioned in Project Blue Sky , the cases suggest two additional factors that are relevant. Other means of giving effect to provision The first of those additional factors is whether there are any other means of giving effect to a requirement, other than by invalidating a decision that does not comply with that requirement. 117 A simple example is where a statutory requirement (such as a requirement to provide reasons) can be enforced by mandamus – in that situation, it is not necessary to hold that non-compliance with the requirement invalidates the decision in order to give that requirement some work to do.^118 A well-known case that relied on this factor is the High Court’s decision in Australian Broadcasting Corporation v Redmore.^119 The question in that case was the effect of a statutory requirement that the Australian Broadcasting Corporation (the ABC) obtain the approval of the Minister before entering into contracts worth more than $500,000.^120 The High Court held (by majority) that non-compliance with s 70(1) did not invalidate the contract. Relevantly for present purposes, the majority justices pointed out that there were other methods of enforcing the requirement in s 70(1). Specifically, non-compliance might constitute misconduct for the purpose of disciplinary proceedings, and would also lead to an unfavourable report by the Auditor-General.^121 Thus s 70(1) was not reduced to a ‘pious admonition’.^122 Redmore also illustrates the point made earlier about inconvenience – to hold that non- compliance invalidated the contract would prejudice the other party to the contract, who had no way of knowing whether the requirement had been complied with.^123
Redmore was relied on by the Commonwealth in Kutlu. Rares and Katzmann JJ distinguished it on the following bases:
- first, Redmore was said to be a case concerned with the private law consequences of a failure by a statutory corporation to comply with a statute.^124 Redmore was concerned not to invalidate a contract with an innocent third party. That consideration did not apply to a public law requirement to appoint a person as a Commonwealth officer in accordance with statutory preconditions;^125 and
- secondly, there was no remedy other than invalidity that could apply to the Minister’s conduct. In particular, it was not now possible to obtain an injunction to restrain the Committee members from exercising powers.^126 This reasoning in Kutlu is similar to the approach taken by the NSW Court of Appeal in Correa v Whittingham.^127 In that case, a person had purported to act as a voluntary administrator of a registered club without being appointed in accordance with s 41 of the Registered Clubs Act 1976 (NSW). Gleeson JA (with Barrett JA and Tobias AJA agreeing) stated that ‘[p]rima facie, a statutory requirement that a party not act in a particular capacity unless given approval to so act by a specified body, must be construed as having some legal effect.’^128 The fact that contravention of s 41 was not an offence, and otherwise attracted no remedy, indicated that non-compliance meant that the appointment of a person as administrator of a registered club was invalid.^129 Another example of this additional factor is the decision of Finkelstein J in Hall v Minister for Immigration and Multicultural Affairs.^130 The question in Hall was whether a failure to provide documents within the time limit specified in s 500(6C) of the Migration Act prevented the Administrative Appeals Tribunal (the AAT) from determining an application to review a decision. Finkelstein J relied heavily on the fact that there were other means of obtaining the information in question,^131 and that other provisions ensured that the applicant could not prolong the appeals process.^132 Given that there were other means to give effect to the purposes of s 500(6C), it was not necessary to hold that non-compliance with s 500(6C) prevented the AAT from considering the application for review.^133 Finally, this factor was also considered in Kirkham v Industrial Relations Commission (SA) ,^134 which held that a failure to notify the SA Industrial Commission of the proposed grounds of termination of employment of a State public servant^135 did not invalidate that termination. Kourakis CJ held that:
- it was neutral that this statutory requirement could be descried as an ‘internal quality control mechanism’.^136
- it was not correct to say that breach of the notification provision ‘would attract no consequence’ unless the termination was invalidated. Failure to comply would be a breach of the public service legislation (which could be a subject of report to the Minister). Also the breach could make it more likely, as a practical matter, that the termination was harsh, unjust or unreasonable;^137 and
- although it could be said that the objects of s 54(3) would be better served by a finding of invalidity, that observation could be made about every statutory requirement imposed on the exercise of a power.^138 Extent and consequences of non-compliance A second additional factor is the extent and consequences of non-compliance. The relevance of this factor is a matter of some continuing debate.^139
The reference to extent and consequences of non-compliance seems to raise issues very similar to asking whether there has been ‘substantial compliance’ with a statutory requirement. It might be noted that the joint judgment in Project Blue Sky appeared to reject the relevance of ‘substantial compliance’ as a useful tool in this context.^152 An interesting issue is whether the factors mentioned in Marijancevic in the context of s 138 of the Evidence Act (knowledge that there had been non-compliance; whether any advantage obtained from non-compliance)^153 may be relevant to the ‘extent and consequences’ of non- compliance.^154 Lack of prejudice to the applicant? This issue can be posed another way. As noted, it is relevant if holding the decision to be invalid would inconvenience the public, including a person directly affected by the decision. Can the decision-maker argue, conversely, that a decision should not be held to be invalid if there is no prejudice to the applicant? Again, the answer appears to be that much turns on the nature of the statutory requirement that has been breached, and the court’s assessment of the importance of that requirement. This type of issue often arises in the criminal law, particularly when it comes to the formalities of an instituting document. In R v Janceski ,^155 Mr Janceski was convicted of maliciously inflicting grievous bodily harm, after two trials. He argued that his conviction was invalid, because the barrister who signed the indictment for his second trial did not have authority to do so. The barrister had not been authorised by the NSW Director of Public Prosecutions (the DPP), as required by s 126(1)(b)(iii) of the Criminal Procedure Act 1986 (NSW) (the NSW Criminal Procedure Act ).^156 Spigelman CJ acknowledged that the defendant had received a fair trial, and that the non- compliance with s 126(1) was of no practical significance in this case. Accordingly, to invalidate the conviction on the basis of this technical error might adversely affect public confidence in the criminal justice system, by creating the impression that the system is ‘just a forensic game’.^157 Even so, his Honour held that the error, technical as it was, invalidated the conviction. Two crucial factors in this conclusion were, first, that the indictment founds the jurisdiction of the court to hear the trial and, secondly, courts have insisted on punctilious compliance with legal formalities in criminal trials, because these trials can result in the state imposing the stigma of a criminal conviction on a person.^158 In Ayles v The Queen ,^159 the High Court was divided on whether any information could be amended by the judge, without application from the parties, to correct the statutory provision referred to. The majority held that the information could be amended in this fashion, pursuant to a statutory power of amendment. Gummow and Kirby JJ stated in dissent:^160 In Kotsis v Kotsis [(1970) 122 CLR 69 at 90] Windeyer J emphasised that, with respect to alleged merely formal defects in the court record: The observance of forms and the due recording of proceedings are one of the safeguards of justice according to law. When considering the statutory formalities which under English law attend the preferring of indictments, Lord Bingham of Cornhill recently remarked, in R v Clarke [[2008] UKHL 8 at [17]]:
Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place. We agree. … It is an approach that expresses the law of Australia, as long understood. It is the foregoing precept stated by Lord Bingham respecting the manner of exercise of the coercive power of the state which we seek to apply in what follows. A similar debate occurs in England.^161 In Soneji ,^162 the issue was whether non-compliance with the requirements for postponing a confiscation proceedings invalidated the confiscation order ultimately made by the court.^163 The House of Lords held that the confiscation order was not invalidated. Lord Steyn referred with approval to the approach in Project Blue Sky ,^164 and held that the emphasis should be on, first, the consequences of non-compliance with the relevant requirement and, secondly, whether Parliament can fairly be taken to have intended total invalidity. 165 Relevantly for present purposes, his Lordship held that the prejudice to the accused in this case was not significant, and that any prejudice was ‘decisively outweighed by the countervailing public interest in not allowing a convicted offender to escape confiscation for what were no more than bona fide errors in the judicial process’.^166 Some English intermediate courts considered that Soneji represented a ‘significant departure’ from the way that these issues were previously decided.^167 However, in R v Clarke ,^168 the House of Lords stated that decisions including Soneji ‘are valuable and salutary, but the effect of the sea-change which they wrought has been exaggerated and they do not warrant a wholesale jettisoning of all rules affecting procedure irrespective of their legal effect’. In Clarke , the House of Lords held that a failure to sign an indictment meant that a conviction must be quashed. Conclusion This review suggests that some broad conclusions can be drawn about the manner in which the courts apply the Project Blue Sky approach to determining whether non-compliance with a requirement impinges on the effect of a decision. The most important factor is the court’s assessment of the significance of the statutory requirement. Non-compliance is likely to impinge on the effectiveness of a decision if:
- a requirement is an essential element of a statutory scheme; or
- the requirement contains a procedural safeguard for persons affected by the statutory scheme (such as a provision that gives effect to the requirements of procedural fairness), or affects private property rights. The next important factor is the extent of public inconvenience that would follow from concluding that non-compliance means that a decision is invalid. The potential for public inconvenience will not be determinative, if the requirement that has been breached is central to the statutory scheme. On the other hand, public inconvenience will carry particular weight when the person or people affected by the decision cannot readily identify whether or not the requirement has been complied with. Another important factor is whether there are other means of giving effect to the purpose of a requirement, other than holding that non-compliance makes the decision invalid. It may be
6 (2011) 33 VR 440 ( Marijancevic ). 7 Project Blue Sky (1998) 194 CLR 355 at [91]. See also Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) at [6.280]. 8 See Zheng v Cai (2009) 239 CLR 446 at [28] (the Court). 9 R v Soneji [2006] 1 AC 340 ( Soneji ) at [15] (Lord Steyn). 10 Mark Aronson, ‘Nullity’ (2003) 40 AIAL Forum 19 at 23; Sumukan Limited v Commonwealth Secretariat [2007] EWHC 188 (Comm) ( Sumukan ) at [44]. 11 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 ( Berowra Holdings ) at [28] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ). Of particular concern in Berowra Holdings was that the relevant statutory provision applied to proceedings in a superior court, as well as proceedings in an inferior court: at [11]-[12]. For a difficult example of the effect of non-compliance with a statutory requirement on the jurisdiction of courts, see Director of Public Prosecutions v Edwards [2012] VSCA 293. 12 Now the Australian Communications and Media Authority. 13 Project Blue Sky (1998) 194 CLR 355 at [42] (Brennan CJ), [80], [84]-[85] (McHugh, Gummow, Kirby and Hayne JJ). 14 See Adams v Lambert (2006) 228 CLR 409 at [14], [29] (the Court), considering s 306 of the Bankruptcy Act 1966 (Cth) ( Bankruptcy Act ). See also Lansen v Minister for Environment (2008) 174 FCR 14 ( Lansen ) at [34] (Moore and Lander JJ): ‘the intention of the legislature is not ascertained merely because the legislature has couched the doing of the condition precedent in imperative language.’ 15 Project Blue Sky (1998) 194 CLR 355 at [94]. 16 Project Blue Sky (1998) 194 CLR 355 at [95]. 17 The other paragraphs of s 160 provided that the Australian Broadcasting Authority was to perform its functions in a manner consistent with ‘the objects of [the Broadcasting Services] Act and the regulatory policy described in section 4’ (s 160(a)), ‘any general policies of the Government notified by the Minister under section 161’ (s 160(b)), and ‘any directions given by the Minister in accordance with this Act’ (s 160(c)). 18 Project Blue Sky (1998) 194 CLR 355 at [95]. 19 Project Blue Sky (1998) 194 CLR 355 at [96]. 20 Project Blue Sky (1998) 194 CLR 355 at [97]-[98]. 21 Project Blue Sky (1998) 194 CLR 355 at [100]. 22 Aronson and Groves contend that there was a ‘complete convergence’ in result between the High Court’s decision and the decision of Davies J at first instance, who made orders that the Australian content standard was ineffective, but only from 5 months after his Honour’s decision: Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) at [10.230]. 23 See Kutlu (2011) 197 FCR 177 at [5]-[6]. 24 Kutlu (2011) 197 FCR 177 at [49] (answers to questions 1-3). 25 Kutlu (2011) 197 FCR 177 at [18]. 26 Kutlu (2011) 197 FCR 177 at [19]. Accordingly, a separate reason for invalidity was that the Minister had failed to have regard to a mandatory relevant consideration: at [36]. In Lee v Napier (2013) 216 FCR 562, Katzmann J held that the requirement to ‘consult’ meant that the Minister could not make an appointment without waiting for a response from the AMA. 27 Kutlu (2011) 197 FCR 177 at [20]. 28 Kutlu (2011) 197 FCR 177 at [21]-[23]. 29 Kutlu (2011) 197 FCR 177 at [25]. 30 Kutlu (2011) 197 FCR 177 at [27]. 31 Kutlu (2011) 197 FCR 177 at [28]. 32 Kutlu (2011) 197 FCR 177 at [32]. 33 Kutlu (2011) 197 FCR 177 at [74]. 34 Kutlu (2011) 197 FCR 177 at [77]. 35 Kutlu (2011) 197 FCR 177 at [79]. Moreover, proceedings under Pt VAA have some of the characteristics of a disciplinary hearing: at [85]-[86]. 36 Kutlu (2011) 197 FCR 177 at [80]. 37 Kutlu (2011) 197 FCR 177 at [81]. 38 Kutlu (2011) 197 FCR 177 at [83]. 39 Kutlu (2011) 197 FCR 177 at [94]. 40 Kutlu (2011) 197 FCR 177 at [97]. 41 Kutlu (2011) 197 FCR 177 at [98]. 42 Commonwealth v Kutlu [2012] HCA Trans 35. 43 http://www.hcourt.gov.au/cases/case-s50/2012. 44 Section 81(1) of the Drugs Act refers to a magistrate issuing a warrant if satisfied of certain matters ‘by evidence on oath or by affidavit’. 45 Marijancevic (2011) 33 VR 440 at [60]. 46 Marijancevic (2011) 33 VR 440 at [61]. 47 Marijancevic (2011) 33 VR 440 at [62]. The Court of Appeal did not find it necessary to consider the trial judge’s reasons concerning s 138(3)(h): at [64]. 48 Marijancevic (2011) 33 VR 440 at [54].
49 Marijancevic (2011) 33 VR 440 at [57]. 50 Marijancevic (2011) 33 VR 440 at [58]. 51 Marijancevic (2011) 33 VR 440 at [67]. 52 Marijancevic (2011) 33 VR 440 at [68]. 53 Marijancevic (2011) 33 VR 440 at [92]. By way of comparison, in G A v The Queen [2012] VSCA 44, the Victorian Court of Appeal held that the omission of the words ‘by Almighty God’ from the oath did not affect the validity of an affidavit: at [36]-[37] (the Court). 54 (2014) 312 ALR 429. 55 (1996) 189 CLR 51. 56 See eg Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). 57 Kutlu (2011) 197 FCR 177 at [74]. See also Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 ( Chase Oyster Bar ) at [40] (Spigelman CJ): ‘The first textual indicator that is always of significance is the mode of expression of the element directly in issue. Substantial, indeed often, but not always, determinative, weight must be given to language which is in mandatory form.’ 58 See for example Waratah Coal Inc v Minister for the Environment (2008) 173 FCR 557 at [41] (Collier J): ‘Such language as ‘may only’ in legislation is indicative of a need to comply with a set time limit, although not conclusive’; see also Bond v WorkCover Corporation of South Australia (2005) 93 SASR 315 ( Bond ), discussed below. 59 (2008) 174 FCR 14. 60 At first instance, Mansfield J held that non-compliance with s 134(4)(a) of the EPBC Act did not render the approval decision invalid: Lansen v Minister for Environment (2008) 102 ALD 558 at [179]. 61 Lansen (2008) 174 FCR 14 at [25], [71]-[72]. 62 Lansen (2008) 174 FCR 14 at [65]-[67]. 63 Lansen (2008) 174 FCR 14 at [291]. 64 Lansen (2008) 174 FCR 14 at [298]. 65 (2000) 97 FCR 407 ( Fernando ). 66 Fernando (2000) 97 FCR 407 at [31]. In addition, the Court referred to the general policy that administrative review should be conducted expeditiously (at [22] (Heerey J), [48] (Finkelstein J)), and noted that the time of lodging an application was within the applicant’s control (at [28], [31] (Heerey J), [46] (Finkelstein J)). 67 By way of comparison, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 ( Palme ) at [44], Gleeson CJ, Gummow and Heydon JJ held that the question of whether a requirement to give reasons for a decision was a condition precedent for the exercise of power (noting that reasons are given after the decision) depended on the construction of the relevant Act, to determine whether it was a purpose of the Act that a failure to give reasons should render the decision invalid. 68 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [47]-[48] (Spigelman CJ); Chase Oyster Bar (2010) 78 NSWLR 393 at [44] (Spigelman CJ). Woolworths was a case about jurisdictional fact: see [30] ff. 69 See, by analogy, Adams v Lambert (2006) 228 CLR 409 at [29] (the Court), contrasting an essential requirement and a formal defect or irregularity). 70 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [37]-[38] (Spigelman CJ); Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 at [80] (Gageler J). Professor Aronson points out that the characterisation of facts as ‘jurisdictional facts’ sometimes seems to depend on a court’s assessment of how important these facts are in the statutory scheme: see Mark Aronson, ‘The Resurgence of Jurisdictional Facts’ (2001) 12 Public Law Review 1 7 at
- Moreover, he points out that even genuinely preliminary matters may only be procedural in nature, and therefore not ‘jurisdictional’ in the sense that a failure to comply invalidates the decision: at 34. 71 For example, the requirement that a police officer provide a copy of a search warrant to the occupier of land: see the discussion of Commissioner, Australian Federal Police v Oke (2007) 159 FCR 441 ( Oke ) below. 72 Kutlu (2011) 197 FCR 177 at [35] (Rares and Katzmann JJ). The Court rejected an argument that the Committee members were ‘de facto officers’: at [47]-[48] (Rares and Katzmann JJ), [121]-[122] (Flick J). Some Acts provide expressly that certain types of non-compliance with the requirements of appointment do not invalidate the decisions of the bodies: see eg Competition and Consumer Act 2010 (Cth), s 38; Australian Securities and Investments Commission Act 2001 (Cth), s 245. 73 [2013] VSC 129. 74 Bare v Small [2013] VSC 129 at [117]. 75 Bare v Small [2013] VSC 129 at [118]. 76 Kutlu (2011) 197 FCR 177 at [28]. 77 See also Oke (2007) 159 FCR 441 at [34] (Branson and Lindgren JJ, with Besanko J agreeing on this point): ‘the obligation imposed by s 3H(1) [of the Crimes Act 1914 (Cth)] is relatively easily complied with and … it serves an important purpose.’ 78 Sumukan [2007] EWHC 188 (Comm) at [44]. 79 (2005) 228 CLR 294 ( SAAP ). 80 Section 424A(1) of the Migration Act 1958 (Cth) ( Migration Act ) provided that the RRT must ‘give’ the applicant clear particulars of any adverse information. The effect of s 424A(2)(b) and reg 5.02 of the
