[Music] g'day everyone and welcome to the second video in week 7 of our admin law course this week we're looking at the grounds for review which occur when the decision maker has the power to make the decision but they make an error when they're doing so in the first video we looked at an error of law where the decision maker misunderstands the actual law that they're meant to be applying in this second video we're going to look at evidence before we look at the rules though there are a couple of important things to understand first up even though we use the word evidence the rules of evidence do not apply in administrative decision making this was confirmed in a case called irving against the minister for immigration now some of you may not yet have completed your evidence subject but those of you who have an administrative decision maker is not required to consider admissibility rules at all they can consider hearsay they can consider opinion often the vast majority of their evidence will be documentary and none of the rules about the admissibility of documents will apply so when thinking about administrative decisions put aside the rules of evidence second remember that the hearing rule of natural justice will apply to all of these decisions so subject to the restrictions we discussed back in week five all of the evidence which was relied on by the decision maker should be shown to the person affected by the decision okay so what are the evidential grounds on which a decision can be challenged first up section 5 2a of the adjr act says that a decision maker must not take any relevant consideration into account and then section 52b says that a decision maker must take into account all of the relevant evidence those two requirements dovetail together quite nicely the decision maker must ignore any irrelevant evidence and must take into account any relevant evidence which means they can't just conveniently ignore evidence which goes against the decision that they intend to make naturally the next question is what do we mean by relevant now i've just said that the rules of evidence don't apply to administrative decision making and that's true but there's still some useful stuff in evidence law which can help us and one of those things is the definition of relevant in evidence law evidence is relevant if it is logically capable of affecting the likelihood that a facting issue is more or less true so to be relevant something doesn't have to be a golden bullet all it needs is to be logically capable of moving the decision maker's mind in one direction or another so let's imagine that our decision maker is inspecting the logbook of a young person now the rules say that at least 10 hours must be completed while driving at night the decision maker notices that a lot of the claimed night driving hours are between 5 pm and 6 pm so the decision maker pulls up the bureau of meteorology pages to check the sunrise and sunset times on those days can you see how this is relevant information it affects the likelihood of the decision maker deciding that the minimum number of night driving hours has been completed on the other hand let's imagine that our decision maker held the view that fathers were not great driving supervisors that might well be true but let's say the decision maker decides to ignore any driving hours where the father was the supervisor can you see how this would be taking into account an irrelevant consideration most of the forms of discrimination gender age sexuality race are irrelevant considerations for most decisions relevant and irrelevant considerations also vary from decision to decision the disability status of a person would be irrelevant to their application for registration as a teacher but absolutely relevant to their application for funding under the national disability insurance scheme the race of a person would be irrelevant to their entitlement to a driver's license but very relevant to their entitlement to participate in an indigenous employment scheme if a decision maker refuses to consider relevant evidence or if they take into account irrelevant evidence then their decision is invalid the thing is though all they have to do is take some account of relevant material two cases one called our town fm against the australian broadcasting tribunal and another one called the minister for aboriginal affairs against pico wallsend both made it clear that the bar is low we are entitled to expect decision makers to take some account of relevant evidence but if they attach less weight to that evidence than we would like well there's no error in the decision-making process in the outtown case the holders of a radio licence were objecting to the granting of a new radio licence for an additional competitor station they claimed that the tribunal had not considered the evidence of the concentration of ownership of media in the area if a pre-existing operation added an additional license now the court found that these criticisms were very valid there was clearly a lot of sympathy in the court for the position being held by our town but the tribunal had given some consideration to the issue of concentration of ownership and that was enough so the decision was not invalid the second big rule relating to evidence is found in section 51h of the adjr act a decision can be reviewed if there was no evidence or other material to justify the making of the decision now this rule completely bamboozles many students for good reasons i'll try to make some sense of it it helps to think of this as the rule which operates if there's been a big mistake about the meaning of the evidence if i say to the decision maker i have a driver's license but they misunderstand me and they believe i was saying i have a motorcycle license then their conclusion that i was entitled to ride a motorcycle would be invalid because there would be no evidence to support it they just simply thoroughly misunderstood the evidence let's look at a real life example in the minister for immigration against al-miyahi the refugee review tribunal refused to accept that mr al-miyahi was from iraq their reasoning was that he had claimed in an interview to be from the city of alamara but he was unable to tell them much about the city some of his other statements seemed to conflict with the idea of him being from alamara in fact though it turned out that he had never claimed to be from alamara he had actually claimed to be from a much smaller place called ali ashaki now you can see that if the tribunal had refused his visa because they didn't believe his claim of living in alamara the decision would have been invalid you can't make a decision against someone's interests on the basis that they made a statement that they never actually made in this particular case even though this fact was wrong there were other reasons not to grant the visa and so the court found against mr al-miyahi can you see the way the rule works though if a certain fact is crucial to the decision and it turns out that fact is wrong well there's no basis for the decision generally speaking in a no evidence situation there's not going to be any need to take action in a court or tribunal when it's pointed out that the decision maker has fundamentally misunderstood the evidence they'll often just back away from the decision and change it here's the bamboo's bamboozling bit back before the adjr act was introduced there was a common law rule which was also called the no evidence rule but it was quite different remember how last week we talked about the fact that sometimes the existence of certain facts is a precondition for the decision being made well the old school common law no evidence rule said that if there was no evidence of those preconditions being met the decision could not proceed completely different to the modern rule so if you read really old cases and they mentioned the no evidence rule you're actually reading about a completely different rule you'll tie yourself into knots okay so that's the end of the second video we now know the decision is reviewable if it's affected by an error of law we know that decision makers must take into account all of the relevant material and none of the irrelevant material and we know that a decision is invalid if there's no evidence of a key fact which the decision maker has relied on in the next video we're going over to the dark side we're going to look at those decisions that are invalid because of improper behavior by the decision maker three to go you