Attorney-General (NSW) v Quin

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Attorney-General (NSW) v Quin
Coat of Arms of Australia.svg
Court High Court of Australia
Decided 7 June 1990
Citation(s) [1990] HCA 21, (1990) 170  CLR  1
Case history
Prior action(s)
  • Macrae v Attorney General (NSW) (1987) 9 NSWLR 268
  • Quin v Attorney General (NSW) (1988) 28 IR 244
Appealed from NSW Court of Appeal
Case opinions
Majority Mason CJ, Brennan, & Dawson JJ
Dissent Deane & Toohey JJ

Attorney General (NSW) v Quin, [1] is a landmark Australian judgment of the High Court. The matter related to Australian administrative law and to an extent the separation of powers. [2]

In law, a judgment is a decision of a court regarding the rights and liabilities of parties in a legal action or proceeding. Judgments also generally provide the court's explanation of why it has chosen to make a particular court order.

High Court of Australia supreme court

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.

Australian administrative law defines the extent of the powers and responsibilities held by administrative agencies of Australian governments. It is basically a common law system, with an increasing statutory overlay that has shifted its focus toward codified judicial review and to tribunals with extensive jurisdiction.

Contents

Background

The NSW Courts of Petty Sessions were abolished and replaced by Local Courts. [3] 95 of the former magistrates were appointed to the new Local Courts, however six were not due to concerns about their fitness to be magistrates. [5] Five of the magistrates, [6] commenced proceedings in the Supreme Court of NSW seeking an order that they be appointed magistrates. They were unsuccessful at first, [7] however the NSW Court of Appeal held that the decision of the Attorney-General not to recommend their appointment as Magistrates was void because it was made in such a way as to deny the applicants' legitimate expectations of procedural fairness. [4] The Attorney-General's application for special leave to appeal was refused. [8]

New South Wales State of Australia

New South Wales is a state on the east coast of Australia. It borders Queensland to the north, Victoria to the south, and South Australia to the west. Its coast borders the Tasman Sea to the east. The Australian Capital Territory is an enclave within the state. New South Wales' state capital is Sydney, which is also Australia's most populous city. In March 2018, the population of New South Wales was over 7.9 million, making it Australia's most populous state. Just under two-thirds of the state's population, 5.1 million, live in the Greater Sydney area. Inhabitants of New South Wales are referred to as New South Welshmen.

Local Court of New South Wales

The Local Court of New South Wales is the lowest court in the judicial hierarchy of the Australian state of New South Wales. Formerly known as the Court of Petty Sessions and the Magistrates Court, there are more than 160 branches across New South Wales where the Local Court has jurisdiction to deal with the majority of minor civil and criminal matters.

Attorney General of New South Wales

The Attorney General of New South Wales, in formal contexts also Attorney-General or Attorney General for New South Wales and usually known simply as the Attorney General, is a minister in the Government of New South Wales who has responsibility for the administration of justice in New South Wales, Australia. In addition, the Attorney General is one of the Law Officers of the Crown. Along with the subordinate Solicitor General, Crown Advocate, and Crown Solicitor, the Attorney General serves as the chief legal and constitutional adviser of the Crown and Government of New South Wales.

In 1988 there was a change of government and the new Attorney-General, John Dowd QC changed the selection policy to one where magistrates were to be selected entirely on merit and that required an assessment of competing applicants. None of the five were appointed. Mr Quin, Mr Nash and Mrs Sleeman commenced fresh proceedings, however Mr Nash & Mrs Sleeman subsequently decided to retire. Quin's challenge was on the basis that he had a real expectation to be reappointed which was founded in natural justice. An issue in the case was whether the doctrine of estoppel could prevent a government from changing that policy. The Court of Appeal made a declaration that Mr Quin was entitled to have his application considered without reference to other applicants. [8] The Attorney-General obtained special leave to appeal to the High Court.

John Robert Arthur Dowd AO QC, is a former leader of the Liberal Party of Australia in New South Wales. He was the Chancellor of Southern Cross University between 2002 and 2014, and the President of ActionAid Australia, an international aid organisation.

Queens Counsel jurist appointed by letters patent

A Queen's Counsel, or King's Counsel during the reign of a king, is an eminent lawyer who is appointed by the monarch to be one of "Her Majesty's Counsel learned in the law." The term is recognised as an honorific. The position exists in some Commonwealth jurisdictions around the world, but other Commonwealth countries have either abolished the position, or re-named it to eliminate monarchical connotations, such as "Senior Counsel" or "Senior Advocate". Queen's Counsel is an office, conferred by the Crown, that is recognised by courts. Members have the privilege of sitting within the bar of court.

Legitimate expectation Legal doctrine regarding provided rights and services

The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a person. It is based on the principles of natural justice and fairness, and seeks to prevent authorities from abusing power.

Finding

The High Court of Australia found in favour of the Attorney-General, ruling that Courts were not able to overrule government policy as the appointment of magistrates is a role of the executive. Brennan J held that "Judicial review provides no remedies to protect interests, falling short of enforceable rights, which are apt to be affected by the lawful exercise of executive or administrative power" and that "Judicial review has undoubtedly been invoked ... to set aside administrative acts and decisions which are unjust or otherwise inappropriate, but only to the extent the purported exercise of power is excessive and or otherwise unlawful." [1] :p 35

Sir Francis Gerard Brennan,, is an Australian lawyer and jurist who served as the 10th Chief Justice of Australia. Prime Minister Malcolm Fraser appointed Brennan to the Court in 1981.

Principle

The Executive cannot by representation or promise disable itself from performing a statutory duty; this includes the adoption of, or acting in accordance with, a new policy.

The executive is the organ exercising authority in and holding responsibility for the governance of a state. The executive executes and enforces law.

See also

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References

  1. 1 2 Attorney General (NSW) v Quin [1990] HCA 21 , (1990) 170 CLR 1
  2. ↑ Kelly, M. Administrative Law, Pearson Law Briefs. p. 107.
  3. ↑ Local Courts Act 1982 (NSW).
  4. 1 2 3 Macrae v Attorney General (NSW) (1987) 9 NSWLR 268.
  5. ↑ The magistrates were Mr G J Macrae, Mrs M M Sleeman, Mr T M Weir, Mr L J Nash, Mr E A Quin and Mr Jones. [4]
  6. ↑ Mr Jones was seriously ill and did not press for his appointment. [4]
  7. ↑ Macrae v Attorney-General (NSW) (1985) 7 ALD 97.
  8. 1 2 Quin v Attorney General (NSW) (1988) 28 IR 244.
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