[Music] g'day everyone and welcome to the second video in week 8 of our admin law course this week we're looking at remedies so we're assuming that we have reviewed an administrative decision we've shown an error and now we're asking what the court can do about it in the first video we reviewed the remedies available at general law we talked about mandamus and prohibition and we talked about injunction and declaration we also talked along the way about certurari habeas corpus and quo werento but remember that those three are really about ways to bring a matter before the court they're not actually remedies in themselves in this second video we turn to the adjr act we already know that the adjr sets out a heap of grounds of review it makes sense for the adjr act to also set out some remedies if those grounds for review are satisfied and we find those remedies primarily in section 16 of the act we're mostly going to focus on the first subsection so what are the remedies first up subsection 1a says the court can quash or set aside a decision or part of a decision with effect from the date of the decision or any later date quash is kind of a fun word it sounds like squash and that's pretty much what it does when a decision is quashed it's like the decision had never been made the decision is just set aside the interesting thing though is that this can have two completely different effects depending on the type of decision if someone applies for something and the decision maker says no then quashing that decision just means we remove or vacate the decision that said no that's not the same as substituting a decision that says yes so if i apply for a passport and the decision maker says no and i get that decision quashed well there still hasn't been a decision to say yes has there so what i'd need to do is either apply again or request that the decision maker reconsider my original application on the other hand if the decision imposes some sort of burden then as soon as the decision is quashed the burden disappears this is what happened in the key case that i want you to look at on this point what master and button mr button who was the trade minister imposed an import duty on ceiling fans what master was an importer of ceiling fans what master challenged the decision to impose the duty and the decision was quashed and what master's obligation to pay the duty instantly disappeared so you can see that if you've made an application and the outcome wasn't what you wanted quashing just gets you the chance to have your application reconsidered however if a decision has been made that imposes a burden on you quashing instantly removes that burden next subsection 1b gives the court the power to refer a decision back to the original decision maker subject to whatever directions the court considers fit this can be quite useful if some process has not been followed i mean let's just say the decision maker had failed to consider a relevant piece of evidence well the court can just say we're referring this decision back to the decision maker and they must take into account the extra bit of evidence this is also often called remitting the decision that's pretty much what happened in the minister for immigration and conningham that case dealt with the issue of visas to a singing group which intended to come to australia and perform there was a really famous group in the 1950s and 60s called the platters it was one of those old school bands where the lineup evolved heaps over time eventually there were competing groups of people calling themselves the platters and each of them claimed to be the true successors of the original group local artists were objecting to this particular group coming to australia the dispute ended up before the court which decided the decision hadn't been made properly and should be sent back for the decision maker to try again third and this will sound familiar the court can declare the rights of the parties in respect of any matter to which the decision relates this is exactly the same as the equitable remedy of declaration which we discussed in the first video this power was used in a case called park o ho against the minister for immigration in that case some korean people were caught up as the innocent victims in an immigration scam they were detained because they had no right to be in australia ordinarily they would have been deported they would have been sent back to korea but in this case immigration held them in the detention camp because they wanted them to be available as witnesses against the actual wrongdoers the high court declared this to be unlawful guess why it was an improper purpose the government can hold people in immigration detention in order to deport them but it can't hold them in order to use them as witnesses if they weren't going to be deported they should have been released into the community until the trial finally the court can order a party to do or refrain from doing anything the court considers necessary this is pretty much identical to mandamus or prohibition or injunction an example can be found in a case called cenron and lan in that case the applicants were trying to get premises approved by the government for the operation of a pharmacy the sticking point was whether the applicant had made certain financial commitments before the 9th of august 1990. there were no disputes between the parties about the facts the dispute was whether the commitment to lease the premises was the right sort of financial commitment the department said it wasn't the court on review said it was in that case there was no point remitting the decision back to the original decision maker it made far more sense for the court to simply direct that the license be issued this wasn't merit's review because both sides agreed on the facts they just disagreed about the legal consequences once the court had resolved the legal consequences it could simply make a direction now in addition to these remedies if the decision being reviewed is actually the failure to make a decision then the court has one additional specific power which pretty obviously is the power to order the decision to be made this is found in section 16 subsection 3 paragraph c of the adjr okay we're nearly done but we're not quite there yet the last type of remedy that i want to talk about is called a stay a stay is like an interim remedy where the court puts everything on hold in relation to a decision being reviewed the power is found in section 15 of the adjr act which says that a judge can suspend the operation of a decision you see even when a decision is under challenge the decision continues to operate so let's say that for some reason the government suspended my driver's license and i sought a review of that decision well until the review is determined i still don't have a driver's license even if the decision later turns out to be completely wrong if i drive my car during that review process on breaking the law now while the courts have the power to stay a decision there's nothing automatic about it it can actually be quite difficult to obtain a stay the first thing the court will consider is whether the review application raises a real issue of substance which can be tried before the court the test is whether justice in the circumstances requires the court to consider issuing a stay that will involve at least some preliminary consideration of the prospects of the application so this means people can't just make hopeless review applications in order to try and stay the decision for a little while the lower the prospects of the claim the less likely it is that a stay will be ordered second the court will consider the potential damage to each side if it grants a stay sometimes the individual's interests will clearly prevail so for instance if someone is about to be deported that might be a good reason to stay the deportation until its basis is challenged sometimes the public interest will prevail if a person has just received a decision allowing them to destroy some sensitive habitat to build a housing estate well that might be a good reason for a stay in the public interest the court will balance all of this to decide whether justice requires a stay the example i'll turn to from the authorities is the hells angel case i love this case because who would ever have imagined the hell's angels going to court against the tax office in respect of allegations of unpaid taxes in this case the tax office had obtained a court order allowing them to collect the outstanding tax the hells angels then challenged the tax officer's tax assessment the court agreed to stay the collection of the tax until after the challenge was heard so this brings us to the end of week eight two thirds of the way through the course this week we've been looking at remedies we've learned about the old school general law remedies of mandamus prohibition injunction and declaration and we've learned about the adjr remedies where the court can quash a decision where it can remit the decision with directions from the court it can declare the rights of the parties it can order people to do things and it can order people to refrain from doing things it can order a decision to be made and finally in the right circumstances the court can order a stay to hold everything until the final decision can be made so now overall we know what administrative decisions are we know what all the grounds of review are and we know what remedies can be granted all this time though we've only been talking about legal review we've only been talking about what can be done if the decision maker didn't make the decision properly next week we're going to look at the other side of the coin what if our real problem is with the merits of the decision what can we do then i'll see you next week