(4.3) JR OF LAW MAKING - REASONING PROCESS GROUNDS OF REVIEW - (Representations & Estoppel)

Question 1

General rule

Answer 1

there is no doctrine of public law administrative estoppel in Australia as this would fetter or constrain public functions and impinge on governmental freedom (Lam; Kurtovic)

Question 2

Whilst representations might give rise to a procedural entitlement aka a hearing this is not

Answer 2

a substantive right (aka a result of a decision) – estoppel does not usually apply

Question 3

Eg, Kurtovic: non-citizen convicted for murder and minister decided to deport – decision appealed and revoked, but letter sent saying that ‘you are warned, if you commit another crime, you will be deported’ – few years later the minister issued a decision to deport –-> why couldn’t he rely on estoppel?

Answer 3

could not be held to letter because estoppel doesn’t apply (but here estoppel wouldn’t even be made out)

Minister is vested with a power that cannot be constrained + what was said in the warning letter wasn’t a clear and unambiguous representation of circs in which minister may reconsider the deportation

Question 4

Facts in AG v Quin (1990)

Answer 4

• After courts of petty sessions abolished and replaced by Local Courts, the AG appointed all but 5 of the stipendiary magistrates to the new courts, applying a policy to appoint unless the person is unsuited for judicial office.
• The 5 former magistrates who weren’t appointed obtained judicial review of the AG’s decision on grounds of denial of procedural fairness.

Question 5

Outcome in AG v Quin (1990) Is the AG held in fairness to the original policy?

Answer 5

AG exercising a statutory power to appoint judicial officers, cannot be precluded from adopting a lawful policy that he considers best serves interests of administration of justice in NSW