In 1975, Edward McHugh came to Australia from the Cook Islands, aged seven, with his soon-to-be adoptive parents. He was raised, educated and employed here. In 1987 he became entitled to vote. He has a bank account. Before turning 43, he didn’t even know he was adopted. In 2017 he received an Australian passport, something only given to citizens. Mr McHugh had no reason to doubt he lacked Australian citizenship. But in 2018, he learned he had never been a citizen and now faces deportation.
Mr McHugh was informed he’d been living in Australia under a statutory ‘absorbed persons visa’. These visas allow some long-term resident migrants to remain within, but not re-enter, the country. These visas are not formally notified and do not need renewal. According to Mr McHugh, his non-citizen status should have been notified when applying for his passport. The application required proof of citizenship, but this was overlooked.
In 2018, and following a crime, conviction and incarceration, Mr McHugh’s non-citizen status was examined. The government authority, through the relevant Minister, considered the appropriateness of Mr McHugh’s visa continuing given the criminal conviction. This was discretionary. The Minister decided to cancel the visa on character grounds, with Mr McHugh being detained and awaiting deportation from these shores.
Litigation commenced, travelling through several courts. Mr McHugh contended the government, having let him effectively live a fully entitled Australian citizen, cannot in fairness throw him out. Mr McHugh claimed his reliance upon the government’s conduct entitled him to now be treated as a citizen. For example, had the government used opportunities to inform McHugh of his status, like during the passport application, Mr McHugh could have applied for citizenship. However, given his criminal record and the Minister’s visa decision, he no longer can.
Mr McHugh’s court actions failed. A public authority, including a Minister, has certain powers granted by lawfully made legislation. The public authority can, and often must, use those powers in carrying out its functions. This can be a statutory duty or a statutory discretion, and often in combination, such as a police officer deciding on issuing a ticket.
Courts will not compel a public authority to do something beyond the authority’s legislative power. Considering Mr McHugh, a court cannot order the Minister to determine that Mr McHugh is a citizen. As a fact, Mr McHugh is not a citizen by failing to meet the relevant legislative criteria. The Minister has no power to decide otherwise – like asking me to fly. Indeed, the Minister would be acting unlawfully.
But what about the public authorities with discretions allowing a determination one way or another, where either outcome is lawful? Again taking Mr McHugh, if the Minister could have determined that his visa continues or ends and lawfully decided to revoke the visa, could a court order the Minister to exercise his discretion differently? Could a court say the Minister is not permitted to given, or put legally is ‘estopped’ from giving, the same weight to a factor within the discretion, such as giving less weight to Mr McHugh’s character than last time?
As before, the answer is no. Doing this prevents the public authority from exercising the power a parliament has given the authority to enjoy in its own lawful discretion.
Seen this way, Mr McHugh’s appeals to unfairness, including him potentially losing a chance to apply for citizenship, will not help him. It does not matter if the government applied, or failed to apply, the same law to the same person differently in the past.
Not only does unfairness not factor into the decision, but the above approach can actually prevent unfairness through equal treatment and uniformity. Of course, it does not mean there will never be media-attracting stories like Mr McHugh’s – his circumstances were, and likely consequences are, extraordinary and hopefully rare.
A more productive approach involves considering most laws as having a sensible rationale – even NSW’s Inclosed Lands Act give occupiers of inclosed land the right to “destroy any goat trespassing thereon” (I’ve never had cause to exercise this law and like goats anyway). Considering Mr McHugh’s case, a Minister’s discretion about cancelling visas in particular circumstances is not abhorrent. It is also subject to judicial review, as Mr McHugh’s case shows.
Merely because the Minister may have come to another lawful decision, which could fall in Mr McHugh’s favour, does not undermine the decision actually made.
In showing how allowing interference with discretions can operate adversely, consider a more straightforward example. David and Angela earn the same income and, things being equal, should pay the same income tax. But while David’s assessment correctly says he owes $20,000, Angela’s notice is mistakenly for $200. Some years pass and Angela’s tax error is uncovered with the correct amount being charged. The amount is not made up, it’s a statutory calculation. Even if Angela honestly believed her tax assessment was correct, and even if she has since spent the money so paying it now causes her hardship, Angela’s legal recourse, if based on her saying “but it’s unfair if you apply that law to me”, will fail.
The tax is owed, and the public authority will exercise its powers based upon a proper understanding of what the law requires. The decision-maker cannot be bound by an earlier mistake. Doing so would, in a sense, be unlawful – David, having paid his full allotment, probably thinks so. The legislation requires payment.
In contrast, and momentarily shifting to private law, the situation differs. For example, a contract involving regular payments may express what is payable. But if one party undercharges, and this continues for a time with the debtor-party reasonably believing the lesser payment was correct, the debtor-party may be afforded defences. These often turn on a ‘change of position’, where the debtor-party reasonably arranged their affairs in the belief that full payment has been made, and it is unfair or unjust to now compel payment.
The unfairness caused by a public authority’s mistake can be real. A person may suffer genuine detriment and hardship if belatedly a correct decision is made. Righting this will not involve arguing that a court should control the authority’s discretion since Mr McHugh’s fate awaits. Instead, recourse is often by way other laws or by examining the public authority’s role.
Public authorities, at least in money matters, can often exercise hardship provisions if criteria are met. This allows a decision maker to waive a charge in particular circumstances. Tax legislation often does this, and the application to debts is straightforward. However, a remedy for a citizenship bungle is harder.
Another example would be retrospective development consent modifications under planning law, permitting work that would, without the modification, be unlawful. It can also pay to examine legislation given other provisions may assist, such as ‘savings and transitional’ provisions identifying when and how particular provisions apply.
A further circumstances arises from the public authority’s role. Is it acting in its public capacity for a public purpose, or as a private actor who coincidently is also a public authority? To illustrate, the Minister for the Department of Education may licence land to a business – using the school on a weekend. Here private laws will mostly apply to the public authority. In this capacity the authority is, subject to usual laws, so for example if the authority makes representations and the other party reasonably relies upon those, the other party could access the usual legal remedies.
One policy argument supporting the approach taken in Mr McHugh’s case toward public law estoppels was the desirability of equal treatment and uniformity. This argument adopts a specific perspective on what equality and uniformity mean. From another viewpoint, it is just as uniform and equal to allow a person who innocently relied upon a public authority’s representation to continue doing so.
Does this mean room exists to prevent unfairness where a person innocently relies upon a government’s mistaken representation? While doing so may satisfy an individual’s sense of justice, the approach has legal difficulty. For example, being an Australian citizen involves meeting known criteria. To prevent individual unfairness, a non-citizen who for years was incorrectly treated as a citizen, would need to become a legal citizen because of the mistake. But factually the person will not be a citizen. A court or the Minister cannot decree it otherwise. Unless the citizenship laws change to satisfy the individual’s circumstances – which makes the Minister’s decision or a court application redundant – the court or the Minister are powerless.
There may be more scope where a discretion capable of legitimate exercise in a number of ways is involved, and the unfairly treated person wants the discretion exercised in their favour. But this also has difficulties. For instance, it may create legal precedents with unwanted or unknown consequences. It may make legislating hard.
This piece only scrapes the surface, and hopefully demonstrates, how complex (and interesting) public law estoppels can be.
Authors: Bede Haines & Jeremy Cassrels
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Department of Infrastructure, Transport, Regional Development and Communications: Draft Online Safety (Basic Online Safety Expectations) Determination 2021 consultation
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Law Council submissions
28 October 2021 – Law Council. Phase three of Australia’s digital identity legislation.
COAG Legislation Amendment Bill 2021
29 October 2021 – the Law Council made a submission to the Senate Finance and Public Administration Legislation Committee inquiry into the COAG Legislation Amendment Bill 2021, presently before the House of Representatives. Click here for more information.
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Law Council update
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The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions. Issue No. 22/2021, 1 November 2021.
Australian Human Rights Commission consultation
Have your say in a National Anti-Racism Framework
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Legal and Constitutional Affairs Legislation Committee
The performance and integrity of Australia’s administrative review system
The deadline for submissions to this inquiry is 24 November 2021. Further detail about the scope of the inquiry is provided in the terms of reference.
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Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019
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JUDCOM Handbook for Judicial Officers
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Local Court memo 24 on COVID-19
01 November 2021 – COVID Court procedure to 24 January 2022. This memorandum replaces all other previous COVID-19 memorandum. Read more here.
NSW Court of Appeal publications
The NSW Court of Appeal has published its latest NSWCA decisions before the High Court as at 14 October 2021. The NSW Court of Appeal has published its latest Decisions of Interest Bulletin on the Court of Appeal website.
Investigation into the procurement of an acting executive director at the former NSW Department of Planning and Environment
NSW Ombudsman: 26 October 2021.
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NSW special report by the NSW Ombudsman on the Public Interest Disclosures (PID) Bill 2021
Ombudsman: 26 October 2021.
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Commonwealth Ombudsman: 05 November 2021.
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ANAO paper: 25 October 2021.
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Annual report 2020/21
Information and Privacy Commission NSW: 26 October 2021.
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Breaches of COVID-19 public health orders in NSW
Sara Rahman; BOSCAR Bureau Brief No. BB157: 27 October 2021.
Public order offences – COVID-19, fines, public health orders.
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Davison v Commissioner of Police, NSW Police Force  FCA 1324
REPRESENTATIVE PROCEEDINGS – closed class representative proceeding brought on behalf of Indigenous Australians under s 46PO of Australian Human Rights Commission Act 1986 (Cth) – settlement approval application pursuant to s 33V of Federal Court of Australia Act 1976 (Cth) – whether proposed settlement sum and distribution scheme fair and reasonable and in interests of all group members – settlement approved.
PRACTICE AND PROCEDURE – application for non-publication orders over various documents including settlement deed – whether non-disclosure necessary to prevent prejudice to proper administration of justice – orders made.
Australian Human Rights Commission Act 1986 (Cth) ss 46P, 46PH(1B)(b), 46PO; Federal Court of Australia 1976 (Cth) ss 33V, 33ZB, 33ZF, 37AE, 37AF, 37AG; Racial Discrimination Act 1975 (Cth) ss 9, 11, 13, 18A, 18C, 18E.
Burns v Gaynor  NSWCATAD 324
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CIVIL PROCEDURE – discontinuance of proceedings – terms on which proceedings discontinued.
CIVIL PROCEDURE – jurisdiction – exercise of federal jurisdiction.
COSTS – exceptions to general rule that costs follow the event – Administrative Tribunals.
FlyBlue Management Pty Ltd v NSW Crown Lands Department  NSWCATAD 322
ADMINISTRATIVE LAW – freedom of information – government information public access – public interest considerations – Government Information (Public Access) Act 2009 (NSW).
FBY v Secretary, NSW Ministry of Health  NSWCATAD 319
HUMAN RIGHTS – discrimination – whether power to dismiss complaint summarily under s 102 of the Anti-Discrimination Act 1977 should be exercised.
HUMAN RIGHTS – discrimination by qualifying body under s 49J of the Anti-Discrimination Act 1977.
Zhu v Wang  NSWCA 265
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DVT v Commissioner of Police  NSWCATAP 337
ADMINISTRATIVE LAW – appeal against dismissal of application for adequate statement of reasons – whether tribunal has power to order an adequate statement of reasons from the administrator.
Anglican Church Property Trust Diocese of Sydney v Camden Council  NSWLEC 118
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ADMINISTRATIVE LAW – application for administrative review – jurisdiction of tribunal – summary dismissal.
Electoral Legislation Amendment (Voter Integrity) Bill 2021
HR 28/10/2021 – this Bill makes amendments to the Electoral Act and Referendum Act to require voters to present acceptable identification documentation prior to receiving a ballot paper at polling places, pre-poll locations, and mobile polling locations, as recommended by the JSCEM’s reports into the conduct of the 2013, 2016 and 2019 elections.
Electoral Legislation Amendment (Contingency Measures) Bill 2021
HR 28/10/2021 – the Bill amends the Electoral Act to provide the Electoral Commissioner with the power to modify limited provisions in the Electoral Act, an emergency declaration has been issued under a Commonwealth law.
Electoral Legislation Amendment (Assurance of Senate Counting) Bill 2021
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National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021
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National Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort and Other Measures) Bill 2021
HR 27/10/2021 – the Bill proposes to modify various aspects of the National Redress Scheme for Institutional Child Sexual Abuse (the Scheme) to increase access to the Scheme for survivors of institutional child sexual abuse and to support effective administration.
Unsolicited Political Communications Legislation Amendment Bill 2021
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Australian Federal Integrity Commission Bill 2021
HR 25/10/2021 – this bill establishes the Australian Federal Integrity Commission or ‘AFIC’ – which will have appropriate powers of assessment, investigation, and referral to enable clear, proportionate, and practical responses to allegations of serious and/or systemic corruption issues at the federal level in the public interest, with comprehensive procedural fairness and whistleblower safeguards.
Coal Prohibition (Quit Coal) Bill 2021
HR – 25/10/2021 – this Bill will prohibit the mining, burning and the export and importation of thermal coal in Australia by: Phasing out the export of thermal coal by 2030; prohibiting the mining or burning of coal after 1 January 2030.
Commonwealth Electoral Amendment (Disclosure of Political Donations) Bill 2021
HR – 25/10/2021 – the Bill amends the Commonwealth Electoral Act 1918 to require registered political parties, state branch of political parties, an individual political candidate, a group of political candidates, or associated entities to: Disclose all (cumulative) donations received.
Commonwealth Electoral Amendment (Stop the Lies) Bill 2021
HR – 25/10/2021 – this Bill amends the Commonwealth Electoral Act to prohibit misleading and deceptive political advertising during federal elections. The Bill prohibits advertising that contains a statement of fact which is misleading or deceptive to a material extent or is likely to mislead or deceive to a material extent.
Privacy (COVID Check-in Data) Bill 2021
25/10/2021 – this Bill will introduce a ban on using COVID-19 check-in data for enforcement related activity purposes by preventing Commonwealth, State or Territory authorities from using or providing COVID-19 check in data for law enforcement purposes.
Social Media (Basic Expectations and Defamation) Bill 2021
25/10/2021 – the intent of the Bill is to enable the Minister to set basic expectations of a social media service provider regarding the hosting of defamatory material on social media platforms, and secondly to ensure that service providers are liable for defamatory material hosted on their platforms that is not removed in a reasonable timeframe.
Protecting Pensioners from the Cashless Debit Card Bill 2021
25/10/2021 – the Bill will amend the Social Security (Administration) Act 1999 to repeal law that allows the government to compel social security recipients to use the cashless debit card. This will end the government’s cashless debit card program from 31 January 2022.
Aged Care Amendment (Making Aged Care Fees Fairer) Bill 2021
25/10/2021 – the Bill newly provides an inclusive definition of costs for which approved providers may charge as ‘administration and management’ fees.
Judges' Pensions Act 1968
26/10/2021 – Act No. 151 of 1968 as amended.
Royal Commissions Act 1902
26/10/2021 – Act No. 12 of 1902 as amended.
Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017
25/10/2021 – Act No. 113 of 2017 as amended.
Privacy Act 1988
25/10/2021 – Act No. 119 of 1988 as amended.
Bills assented to
Better Regulation Legislation Amendment (Miscellaneous) Act 2021 No 23 – assented to 01 November 2021
Local Government Amendment (COVID-19–Elections Special Provisions) Act 2021 No 24 – assented to 01 November 2021
Electric Vehicles (Revenue Arrangements) Act 2021 No 25 – assented to 01 November 2021
Water Industry Competition Amendment Act 2021 No 26 – assented to 01 November 2021
Coastal Management Amendment Act 2021 No 27 – assented to 01 November 2021
Regulations and other miscellaneous instruments
Administrative Arrangements (Administration of Acts–Amendment No 3) Order 2021 (2021–646) – published LW 5 November 2021
Administrative Arrangements (Administrative Changes–Ministers and Public Service Agencies) Order (No 4) 2021 (2021–647) – published LW 5 November 2021
Firearms Amendment (Exemptions and Compliance Requirements) Regulation 2021 (2021–648) – published LW 5 November 2021
Ageing and Disability Commissioner Amendment Regulation 2021 (2021–627) – published LW 29 October 2021
Environmental Planning and Assessment Amendment (Short-term Rental Accommodation) Amendment Regulation (No 2) 2021 (2021–629) – published LW 29 October 2021
Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Amendment (Displaced Persons) Regulation 2021 (2021–631) – published LW 29 October 2021
Public Holidays Amendment (Grafton City) Order 2021 (2021–626) – published LW 27 October 2021
Environmental Planning Instruments
State Environmental Planning Policy (Affordable Rental Housing) Amendment (Short-term Rental Accommodation) Amendment (No 2) 2021 (2021–642) – published LW 29 October 2021
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.