Former Fair Work Vice President Michael Lawler's Federal Court case against Michaelia Cash
Thursday, 22 September 2016
Just before New Year' Eve 2015 the Senator Michaelia Cash Trade Union Sky Rocket went off.
George Brandis and Malcolm Turnbull were there with the milk bottle and box of matches but it was Michaelia's day.
When everyone was looking she lit the blue touch paper and off she went - whooosh, kapow, lots of smoke and a splash of colour.
Then..........nothing.
The Michaelia Cash Trade Union Royal Commission fireworks show ended that day with a dead stick that fell to the ground.
Every day since then the minister for industrial relations had made a heap of bad decisions. She's decided to run dead on trade union corruption.
Next week she's in the Federal Court having a decision or two reviewed.
But of all the hopeless choices Senator Cash has made the only one that's brought her before the Court is her decision(s) affecting the well heeled sick leave and conversation recording professional Michael Lawler.
Cash's decision to commission the Heerey Inquiry into Lawler's conduct would be the least controversial choice she's ever made. We don't know whether Lawler went out with a pension - but if she denied him that well good on her. Another potential correct choice.
We should all familiarise ourselves with the provisions of the Judiciary Act under which dumb decisions by dumb ministers can be reviewed.
Here's a summary from a Bar Council paper.
Section 39B(1) of the Judiciary Act, introduced in 1983, gives the Federal Court jurisdiction similar to the High Court’s jurisdiction under s 75(v) of the Australian Constitution. Essentially s 39B(1) the Judiciary Act allows people affected by decision-making by an “officer of the Commonwealth” to have those decisions reviewed through two of the common law writs or an Injunction.
The two common law writs (also known as prerogative writs or constitutional writs) available under s 39B(1) are Mandamus and Prohibition. A third remedy provided under s 39B(1) is Injunction. Certiorari and Declaration may also be available as ancillary remedies.
In 1997, s 39(1A) was added to the Judiciary Act and paragraph (c) gives the Federal Court jurisdiction “in any matter... arising under any laws made by the Parliament”, substantially broadening and liberalising the availability of s 39B and no longer tying it to particular forms of relief or a particular kind of respondent (an officer of the Commonwealth).
To succeed in an application under s 39B(1) or s 39B(1A)(c), an applicant must show that some error of law in the decision-making process that infects the decision itself such that it cannot be regarded to have been made according to law. This is known as jurisdictional error.
For example, imagine you had a client who sought a licence from a Commonwealth agency. Prior to putting in the application, your client ensured that every detail of their application and all criteria for the grant of licence had been addressed. The application was lodged and rejected. Your client asked for reasons (perhaps under s 13 of the ADJR Act) and discovered that the agency applied the wrong test, or acted upon a mistaken assumption or opinion as to the existence of a certain fact when the Act makes the validity of the decision contingent on the actual existence of that fact.
This kind of error goes to jurisdiction and, if the Federal Court is satisfied that the error was made, the Court is empowered by s 39B(1) to issue Mandamus, Prohibition or an Injunction to remedy the error. The Court might also grant Certiorari or a Declaration as a form of ancillary relief. The Federal Court can issue any of those remedies if its jurisdiction under s 39B(1A)(c) is invoked.
To access a remedy, your client would have to make an originating application, stating grounds for the application – namely, a jurisdictional error by the decision maker (the scope of jurisdictional error has been significantly broadened in recent years). The central argument before the judge will be about whether or not a jurisdictional error does exist.
In the ordinary course of a successful application, a court will not remake the decision for the Commonwealth agency, but most likely will quash (set aside) the decision and remit the decision to be made “according to law”, that is in accordance with the Court’s judgment. The relevant remedies in that type of case would be Certiorari to quash the decision and Mandamus to require the decision to be made again according to law. Declaration and Prohibition are relevant in different circumstances.
The law about the common law writs is ever developing and very technical. Because of its technical nature there have been many reforms since the mid-20th century designed to make review of administrative decisions more straight forward. The introduction of the ADJR Act is one such reform.
ENDS
This will be a case worth watching.
Nothing like a bit of gardening leave to fix up all that ails you.