Blind justice: the pitfalls for



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Prof Cheeran: I don’t think so because, the elephant is chained, a cow elephant is chained, hardly they would get a chance because the female genitalia is situated in such a way that it’s at the very bottom of the area, so the cow has to cooperate so much, so that – the penis goes up like a cobra72 …. locate the extremity genitalia, so the elephant, cow elephant just stand like erect. A practical person cannot take this elephant, unlike in cow or other quadrupeds go forward like that.
Dr Griffiths: I don’t think I want to take that topic any further. Perhaps I could change the subject.”


  1. Given the often complex and evolving nature of the law in this area, one may be tempted to characterize administrative decision making as a veritable mine-field of reviewable errors for decision-makers. But it is better that in making decisions one acts honestly and fairly, with as much attention to all relevant requirements as possible, so that, as the vast majority of decision-makers diligently do, one does one’s duty according to law.



1*A paper presented to the Council of Australasian Tribunals NSW Chapter Inc on 26 May 2006

** A judge of the Federal Court of Australia. The author was assisted by his associate, Ms Anna Brown. Any errors are his alone.


The principles were expressed in Latin as first, nemo iudex in sua causa; and secondly, audi alteram partem.


2 (1852) 3 HL Cas 759 [10 ER 301]

3 (1863) 14 CBNS 180

4 14 CBNS at 185

5 The King v The Chancellor & c of Cambridge (1723) 1 Str 557; 8 Mod 148 at 164; 2 Ld Raym 1334

6 8 Mod at 164

7 The reason why such bodies and persons are described as “inferior” is because their source of power is taken by law to confine them strictly to do that, and only that, which the statute or delegated legislation creating or governing their powers allows. In contrast, Superior Courts of record are presumed, in the absence of express statutory limitations, to have jurisdiction to hear and determine all matters and to possess the full range of judicial powers to enable them to exercise that jurisdiction both in the particular case and as a continuing process (John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 per McHugh JA). Even so, such courts are not a power unto themselves, although their judicial acts will be presumed to be valid and binding unless set aside.


8 Re McJannet; Ex parte Minister for Employment Training and Industrial Relations (Q) (1995) 184 CLR 620 at 652-653 per Toohey, McHugh and Gummow JJ


9 Aronson & Dyer, Judicial Review of Administrative Action,(3rd ed) Lawbook Co, North Ryde,2004 , at p 2


10 Prohibitions del Roy (1608) 12 Co Rep 63

11 (2003) 211 CLR 476 at 513-514 [103]-[104]: see too: Administrative Law Council Report No. 47 The Scope of Judicial Review (2006) p 16


12 (1951) 83 CLR 1 at 193; cf Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 381 [89], per Gummow and Hayne JJ


13 Australian Communist Party (1951) 83 CLR 1 at 193

14 see e.g. s 474 of the Migration Act 1958 (Cth)

15 Fish v Solution 6 Holdings Limited [2006] HCA 22 at [33]

16 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 505 [72] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ


17 see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J


18 (1998) 194 CLR 355


19 by enacting the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth); these amendments came into effect on 4 July 2002


20 (2001) 206 CLR 57 see Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [64]


21 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [69]

22 [2006] FCAFC 61 at [70]

23 (2005) 215 ALR 162

24 215 ALR at 183-184 [79]-[80] per McHugh J, 203 [174] per Kirby J, 212 [211] per Hayne J

25 (1990) 170 CLR 596 at 599-600


26 See too Carroll v Sydney City Council (1989) 15 NSWLR 541 at 549A-G per McHugh JA, Kirby P agreeing at 543E; Twist v Randwick Municipal Council (1976) 136 CLR 106 at 115-116 per Mason J


27 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 at 416 [16]


28 (1985) 159 CLR 550 at 628

29 222 ALR at 416-417 [17]

30 222 ALR at 417 [20]-[21]

31 222 ALR at 418-420 [23]-[29]


32 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 84; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 222 [25]


33 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 223 ALR 171


34 223 ALR 171 per Gleeson CJ at 172 [5]; per Gummow J at 181 [43] and 184 [55]; Kirby J at 196 [102] (that prima facie excessive delay presumptively flaws an administrative decision with jurisdictional error); per Callinan and Heydon JJ at 213 [163] (phrased in the negative, that “failure to make a quick decision would not of itself constitute jurisdictional error”)


35 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 223 ALR 171

36 223 ALR 171 per Gleeson CJ at 174 [10] and per Kirby J at 197 [106]

37 (2002) 209 CLR 597

38 Dranichnikov v Minister for Immigration (2003) 197 ALR 389

39 197 ALR at 407 [87]

40 (1997) 91 CLR 602 at 609


41 Sun v Minister for Immigration (1997) 81 FCR 71 at 134 per Burchett J and per North J (Wilcox J left this issue open at 124)


42 R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pincohet Ugarte (No 2) [2000] 1 AC 119; see e.g. at 135E-F per Lord Browne-Wilkinson


43 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 453 [44], 455-456 [50]-[52]

44 Wentworth v New South Wales Bar Association (1992) 176 CLR 242 at 252

45 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J

46 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J

47 Minister for Immigration v Yusuf (2001) 206 CLR 323, 350-352 at [80]-[83]


48 see: s 13 of the Administrative Decisions (Judicial Review) Act 1977 and s 28 of the Administrative Appeals Tribunal Act 1975: see too s 25D of the Acts Interpretation Act 1901 and Dalton v Federal Commissioner of Taxation (1986) 160 CLR 246


49 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40-41 per Mason J

50 (1996) 185 CLR 186 at 272

51 Military Rehabilitation and Compensation Commission v SRGGG (2005) 215 ALR 459. Comcare v Forbutt [2000] FCA 837 These decisions have since been cited with approval in the Full Federal Court decision of McGuire v Military Rehabilitation and Compensation Commission [2005] FCAFC 52 at [33]

52 215 ALR 459 at 480 [96]. See also Commonwealth v Angela (1992) 34 FCR 313

53 (2001) 206 CLR 323 at 346 [68] per McHugh, Gummow and Hayne JJ

54 (2001) 206 CLR 323 at 346 [68] per McHugh, Gummow and Hayne JJ

55 (2001) 206 CLR 323 at 346 [69] per McHugh, Gummow and Hayne JJ

56 (1986) 159 CLR 656

57 [1999] 1 WLR 1293 at 1300F-G

58 [1999] 1 WLR at 1303G-1304A

59 (1949) 78 CLR 353 at 360

60 Administrative Review Council, “The Scope of Judicial Review”, Report No. 47, 2006.

61 Administrative Review Council, “The Scope of Judicial Review”, Report No. 47, 2006, at p 43

62 Administrative Review Council, “The Scope of Judicial Review”, Report No. 47, 2006, at p 43


63 Re Minister for Immigration and Multicultulral and Indigenous Affairs; Ex parte Palme 216 CLR 212 at 223 [39] at 223 [39] applying R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120


64 Corporation of City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 150 [34]; see too per Iacobucci J in Canada (Direction of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at 776-777 [56] referred to by Gummow J in Minister for Immigration v Eshetu (1999) 197 CLR 611 at 657 [145] and Lee J in M164/2002 v Minister for Immigration and Multicultulral and Indigenous Affairs [2006] FCAFC 16 at [81]


65 Applicant M164/2002 v Minister for Immigration and Multicultulral and Indigenous Affairs [2006] FCAFC 16 at [80], [86]-[92] per Lee J


66 Applicant M164/2002 v Minister for Immigration and Multicultulral and Indigenous Affairs [2006] FCAFC 16 at [117] per Tamberlin J


67 Applicant M164/2002 v Minister for Immigration and Multicultulral and Indigenous Affairs [2006] FCAFC 16 at [118] per Tamberlin J


68 [2006] FCAFC 16 at [90]

69 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 per Lord Greene MR

70 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40

71 Bar News: Summer 2005/2006

72 The author recollects the description as “a black hooded cobra”.



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