Using judicial review Essentially negative remedies … can be used: to protect … ANZ v Konza; to destroy … WA Land Authority v Minister for Sustainability etc. Cannot be used to create a decision … a successful applicant is most often sent back to the decision-maker. Procedural complications in ADJR Act … largely overcome by Judiciary Act, s 39B(1A)(c).

ANZ v Konza [2012] FCA 196 [2012] FCAFC 127 Challenge to 2 notices issued under ITAA, s 264, requiring disclosure of information (stored in Australia) from customers’ accounts with ANZ Vanuatu

Judiciary Act 1903, s 39B(1) & (1A)(c) ADJR Act, s 5 ANZ sought prohibition against Konza (a delegate of the Commissioner), “an officer of the Commonwealth” … s 39B(1) ANZ claimed notices not authorised by s 264(1) – “a matter arising under a law made by the Parliament” … s 39B(1A)(c) ANZ claimed – notices not authorised by s 264(1), the decision to issue notices involved an error of law, the decision to issue notices was contrary to law, the decision to issue notices involved an improper exercise of power and the notices were uncertain. Raising s 5(1)(d), (e), (f) and (j) of the ADJR Act

The result Obligation of confidentiality cannot override s 264 … Lander J at [71]; FFC at [30] Disclosure would not breach Vanuatu law … Lander J at [128]; FFC at [23] In any event, s 264 is not subject to constraint by foreign law … Lander J at [81]-[84]; FFC at [31]-[34] Notices not issued for an improper purpose … Lander J at [133]; FFC at [39]-[42] Notice 1 not uncertain … Lander J at [186]; FFC at [50] Notice 2 uncertain … FFC at [63]

WA Land Authority (Landcorp) v Minister for Sustainability etc [2012] FCA 226 Challenge to delegate’s decision to confirm that development of land was “controlled action” under EPBC Act by reason of likely “significant impact” on protected listed species – Carnaby’s Black Cockatoo

Judiciary Act 1903, s 39B(1) & (1A)(c) ADJR Act, s 5 Under ADJR Act, Landcorp claimed: breach of natural justice – s 5(1)(a); decision involved an error of law – s 5(1)(f); irrelevant considerations taken into account – s 5(2)(a); relevant considerations not taken into account – s 5(2)(b). Judiciary Act claims not developed.

The result Irrelevant considerations not taken into account … at [55]-[56], [59]- [60] Relevant considerations taken into account … at [62]-[63], [71]-[72] Natural justice denied when Department failed to reveal: documents reflecting Department’s accumulated knowledge and approach to assessing proposed actions... at [86] information about other developments in the area … at [129] an assumed deficiency in an expert’s report … at [138]