Daley, Simon; Gouliaditis, Nick --- "The Hardiman Principle" [2010] AdminRw 11; (2010) 59 Admin Review 60

• The Hardiman principle

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The Hardiman principle

Simon Daley^[1] and Nick Gouliaditis^[2]

The Hardiman principle concerns the degree to which certain administrative decision makers can act as contradictors in proceedings challenging their decisions. In Hardiman itself the High Court had unanimously taken issue with the role played by the Australian Broadcasting Tribunal in proceedings in which prerogative writs were being sought against the tribunal. The court said:

In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this court is not one which we wish to encourage. If a tribunal becomes a protagonist in this court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this court by a tribunal should be regarded as exceptional and, where it occurs, should in general, be limited to submissions going to the powers and procedures of the tribunal.^[3]

There are, however, a number of uncertainties attaching to the scope and application of Hardiman, and it might be worthwhile for the Administrative Review Council to consider them.

First, although Hardiman concerned the operation of a ‘tribunal’ exercising adjudicatory functions inter partes—that is, tribunals in the nature of court substitutes—it has been observed that the basis of the principle (a concern to maintain the appearance of impartiality) extends to other administrators to whom a matter might be remitted following judicial review.^[4] There are cases that suggest Hardiman should be applied in all cases in which the following apply:

• The decision maker is required to accord procedural fairness.

• The application for relief raises the prospect of remitter to the decision maker.

• Either there is present a contradictor prepared to advance arguments in opposition to the applicant’s claim for relief or, when there is no contradictor, there is a public interest that would justify the intervention of the Attorney-General (or other law officer or public official).^[5] Only if there is no natural contradictor, and there is no intervention, is an active role justified, and even then it should be limited to what is necessary to assist the court.^[6]

Second, there is now conflicting intermediate appellate authority about whether Hardiman should be applied in merits review proceedings. The Full Court of the Federal Court has held that Hardiman applies to proceedings before the Administrative Appeals Tribunal.^[7] The Victorian Court of Appeal has, however, encouraged decision makers to take an active role in helping the Victorian Civil and Administrative Tribunal come to the ‘correct or preferable’ decision by defending the decision under review.^[8] The Court of Appeal noted that the original decision maker, as repository of the powers and responsibilities conferred on it by the legislative scheme under which it made the relevant decision, has the experience and knowledge to make a unique contribution and that the presence of other contradictors was ‘no guarantee that all relevant matters will be canvassed’. Given that the Victorian Civil and Administrative Tribunal rarely remitted matters, it was unlikely that the impartiality of the original decision maker would be jeopardised by active participation, so long as it did not ‘engage in curial tactics’.

Third, in an apparent further extension of Hardiman, the rule was recently applied to the Australian Securities and Investments Commission in judicial review proceedings in which it sought to defend not its own decision but a decision made by the Administrative Appeals Tribunal (on review from the Australian Securities and Investments Commission). The Full Court of the Federal Court noted that, had the appeal been successful, there would be the possibility of the matter being referred back to the AAT. Further, they reasoned that, pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth):

… it is open to the [AAT], in reviewing a decision, to remit the matter to the original decision-maker for further consideration. Thus it was at least theoretically possible that the [AAT] would remit this matter to [ASIC] for further consideration … We consider that the view of the High Court as expressed in Hardiman should have informed [ASIC] in deciding upon the role which it would play in these proceedings, both in the [AAT] and on appeal to this Court.^[9]

Practitioners of administrative law would recognise that there is currently a major disconnect between these significant extensions of the Hardiman principle and the actual role decision makers play in many areas of administrative law litigation. The field of migration law is an example. If the cases just discussed are accepted as the proper scope of the rule, there is a real question about the role taken by the Minister for Immigration and Citizenship in defending decisions of the Migration Review Tribunal and the Refugee Review Tribunal. There is also a real question about the minister’s role in defending his own decisions.

A more fundamental question is whether the Hardiman principle is appropriate in any case. Arguably, decision makers are often best placed to make submissions on their jurisdiction and procedure.^[10] It might also be incongruous that in cases raising questions of public law the only parties that should be allowed to take an active role are those more concerned with their narrow commercial interests than the broader public interest.^[11]

Even if there is a role for such a principle there is a question as to whether applying Hardiman in the broad manner suggested by some cases fails to differentiate sufficiently between court-like tribunals, which must maintain an impartial and dignified stance, and ‘administrative tribunals charged with the development and implementation of policies under a very broad statutory framework’.^[12]

No doubt that is why in cases where the private parties will not adequately ‘expose all aspects of the case’ the authorities say it is desirable for the Attorney-General to intervene as an adversary.^[13] Whether it would be a satisfactory solution to identify a surrogate contradictor such as the Attorney-General or the Commonwealth to intervene in every case in which a primary decision maker is constrained might also be worthy of further consideration.

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^[1] National Practice Leader Litigation and Dispute Management, Australian Government Solicitor, Sydney.

^[2] Senior Lawyer, Australian Government Solicitor, Sydney. The discussion that follows is derived (with the authors’ permission) from a paper presented by Nick Gouliaditis at the Australian Institute of Administrative Law’s Administrative Law Forum, held in Melbourne on 7 August 2008.

^[3] R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.at 35‑6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).

^[4] M Allars 1996, ‘Reputation, power and fairness: a review of the impact of judicial review upon investigative tribunals’, Federal Law Review, no. 24, 235 at 245.

^[5] TXU Electricity Ltd v Office of the Regulator-General (2001) 3 VR 93 at [19], [42], [45] (Ashley J); Community Television Sydney Ltd v Australian Broadcasting Authority (No 2) [2004] FCA 614; (2004) 136 FCR 338 at [14] (Sackville J).

^[6] See, for example, Bankstown City Radio Co-operative Ltd v Australian Communications and Media Authority [2008] FCA 89.

^[7] Geographical Indications Committee v O’Connor [2000] FCA 1877; 64 ALD 325 at [14] and [35] (von Doussa, O’Loughlin and Mansfield JJ); compare Re New Broadcasting Ltd and Australian Broadcasting Tribunal [1987] AATA 151; (1987) 12 ALD 1 at 10–11 (Davies J).

^[8] Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45 at [29]- [33] (Warren CJ, Maxwell P and Osborn AJA).

^[9] Capricornia Credit Union Ltd v Australian Securities and Investments Commission (No 2) [2007] FCAFC 112 at [13] (Dowsett, Edmonds & Besanko JJ) (emphasis added); compare BTR PLC v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246.

^[10] DJ Mullan 1977, ‘Recent developments in Nova Scotian administrative law’, Dalhousie Law Journal, no. 4, 467 at 494.

^[11] E Campbell 1982, ‘Appearances of courts and tribunals as respondents to applications for judicial review’, Australian Law Journal, no. 56, 293 at 298.

^[12] DJ Mullan 1977, ‘Recent developments in Nova Scotian administrative law’, Dalhousie Law Journal, no. 4, 467 at 495–6.

^[13] Re City of Dartmouth (1976) 17 NSR (2d) 425 at 440 (MacKeigan CJ).