Admin Law Hypo Framework

Admin Law Hypo Framework

Overarching Questions/ Framework

1. Does this person/ body have locus standi?a. Public v Private Law Remediesb. “Sufficient interest” (Colin Chan v MITA) v “aggrieved person” (Lim Kit Siang)

2. Is there an arguable case?a. Brief perusal of case (Colin Chan v MITA)b. Must have exhausted existing remedies (Jagdis Singh), but there are exceptions

3. Is this a body subject to judicial review?a. Source of power test v nature of power test (PSC v Linda Lai; Datafin)b. Public body exercising public law function

i. YES (Linda Lai; Datafin)c. Private body exercising public law function

i. YES if regulates/ imposing sanctions on public sphere/ quasi-judicial (Datafin)ii. YES if it is a company that is fully owned by Government (Tang Kwor Ham)

iii. YES if it has public functions in statute BUT depends on act (Tang Kwor Ham)iv. YES if it impacts significant economic interests (Kay Swee Pin)v. YES if regulates an industry and impacts livelihood (Woon Kwok Cheng)

d. Public body exercising private poweri. NO, e.g., purely contractual in nature (Linda Lai)

e. Private body exercising private poweri. Generally NO, e.g., private owned companies (Ganda Oil)

ii. BUT disciplinary body always subject to NJ (Peck, Constance Emily)4. What kind of interests are at stake?

a. Rights and obligations v legitimate expectations (GCHQ)5. Subsidiary legislation v policies/ circulars

a. Legislative effect (s. 2 of IA) – altering existing rights and duties (Cheong Seok Leng)i. Publication; but requirement can be removed in legislation (s. 23(1) of IA)

ii. Outside of the purpose of Parent Act (Cheong Seok Leng)iii. Unconstitutional

b. Presumption that policy is legal (Lines International), unless:i. Wednesbury unreasonableness

ii. Making policy known to persons affectediii. Fettering of discretion (Komoco Motors)

6. Grounds of review per GCHQa. Illegality

i. Precedent fact (Re Fong Thin Choo)ii. Errors of law; jurisdictional v non-jurisdictional error (Anisminic; Page v Hull)

1. Applicability in Singapore (Stansfield International; Angst to Empathy)2. Acceptance in Malaysia (cf. SEA Firebricks)

iii. Improper Purpose1. Collateral purpose/ different purpose = void (Sydney Municipal Council v. Campbell)2. Incidental purpose = valid (Westminster Corporation v London and NW Railway)

iv. Irrelevant considerations (Estate and Trust Agencies v SIT)b. Irrationality

i. Wednesbury unreasonablenessii. proportionality (subsumed – Chng Suan Tze; rejected – Chee Siok Chin)

c. Procedural improprietyi. Statutory procedures (Chng Suan Tze)

7. Breach of NJ (continuation of (c. ))a. Applicability – impact on individual’s rights and interests (Ridge v Baldwin):

i. Master-Servant (Ridge v Baldwin)ii. Deprivation of Property Rights (Cooper v Wandsworth)

iii. Deprivation of membership (Peck, Constance Emily)iv. Disciplinary proceedings (Kay Swee Pin)

b. McInnes v Onslow-Fane: Forfeiture, application or expectation?c. Tests:

i. Nature of action/ factors (Durayappah v Fernando)ii. Duty to act judicially (inferred from nature of power) (R v Electricity Commissioners; Ridge v Baldwin)

iii. Duty to act fairly (GCHQ)iv. Legitimate expectations (GCHQ; AG of HK v Ng Yuen Shiu)

d. Ousted, e.g., i. Preliminary proceedings (Chan Chow Wang) unless with significant repercussions (In Re Pergamon Press)

ii. Necessity (for bias)– cannot destroy only tribunal with power to act (Chiam See Tong v SDP)UNLESS there is a replacement for affected individual (Anwar Siraj v Tan I Feng).

iii. High-policy (Siah Mooi Guat)iv. Waiver (Peck Constance Emily)v. Comprehensive statutory scheme = less willing to intervene (Wiseman v Borneman) but not conclusive

e. Fair Hearingi. Right to make representations

1. common law can supply legislative omission (Cooper v Wandsworth)2. Adjudicators must stay for entire proceedings (Tan Boon Chee v Medical Council of Singapore)

ii. Right to timely notice:1. able to prepare defence (Mohd bin Aziz v PKMS);2. notice of evidence before tribunal (SS Kanda)

iii. NO right to XX unless:1. reciprocal (Howe Yoon Chong) or2. request (Univ of Ceylon v Fernando); power to call witnesses?

iv. NO right to legal rep unless (Kok Seng Choon):1. Points of law2. Serious allegations3. Capacity to present own case4. Necessity to XX5. Speed and Fairness

v. NO duty to give reasons (Re Siah Mooi Guat) cf. trend towards “good admin” (Breen v Amalgamated Engin)f. Rule against Bias

i. Actual bias (R v Gough)ii. “Deemed” bias

1. Monetary/ proprietary Interest (R v Rand)2. Personal/ non-pecuniary interest (Lord Hoffman; Pinochet (No 2))

iii. Apparent bias, what test?1. Reasonable suspicion of bias (Re Shankar)2. Real likelihood (no diff? – Tang Kin Hwa)

iv. Exceptions/ further considerations (Minister’s statement on policy (Yong Vui Kong v AG); depends on context, e.g., chairman of disc comm. for Legal Profession Act is as high as that of a judge (Re Singh Kalpanath))

g. Effect:i. Void (Ridge v Baldwin)

ii. Curable only upon a de novo rehearing8. Limits of JR:

a. Legislative ousters

b. Judicial limits (non-justiciability (Review Publishing (HC); deference; restraint)

Locus Standi/ Private or Public remedy

Public remedy under o. 53 – “Sufficient interest”Colin Chan v MITA (HC)

o Threshold very low Prakash J: it is enough to show there was an abuse of power that

inconvenienced someone, or to show that you have an interest in the legality of an order

NB: For a writ habeas corpus, a next of kin has locus standi

Remedies Available o Certiorari (quashing order)o Mandamus (mandatory order)o Prohibition (prohibiting order)

Private remedy – “aggrieved person”o Private right i.e. legal or equitable right affected (Govt of Malaysia v Lim Kit Siang)

Controversially, dicta to suggest that ratepayer has a genuine interest to sue(Lim Cho Hock v Govt of Perak)

Where plaintiff has some genuine interest in having his position declared (Tan Sri Haji Othman)

However, regarded as the high-water mark of the law of locus standi(Govt of Malaysia v Lim Kit Siang)

o Interference with public right, causing private right to also be interfered with (Boyce v Paddington BC; applied by the HL in Gouriet v Union of PO Workers)

E.g. obstruction on highway such that owner’s private right to access his property affected

o Interference with public right, causing special damage peculiar to the plaintiff (Boyce v Paddington BC; applied by the HL in Gouriet v Union of PO Workers)

E.g. noxious smoke fumes emanating from public nuisance and blowing into plaintiff’s home

o Public right affected – relator action with the A-G’s consent (Gouriet v Union of PO Workers applied in Lim Kit Siang)

Remedies Availableo Declaration (O. 15, r. 16)o Injunction (O. 29)o Damageso Specific performance

NB: No bifurcation of public and private law remedies, i.e. you can only plead one or the other and not both (Woo JC; Re Application by Dow Jones (Asia) Inc [1988] )

Obtaining leave – Is there an arguable case?

Judicial review is discretionary Need to prove “arguable” case in an application for leave (O. 53, r. 1(1)) (Colin Chan v MITA) Must have exhausted alternative remedies, e.g., appeal (Government of Malaysia v Jagdis

Singh ) However, courts can allow for review on the following exceptions

o Breach of natural justice (Chiam See Tong v SDP : did not appeal to party conference)o Where JR is quicker/ more efficient/ more appropriate forum (Chiam See Tong v

SDP; MPPP v Syaraikat)o Application raises important issues of law of public importance (MPPP v Syaraikat ) o Grounds of review are based on distinct principles of public law (MPPP v Syaraikat )

Precluding JR by exercising alternative remedies

Judicial review not precluded unless the appeal constitutes express waiver [Ridge v Baldwin] Having appealed and failed does not forfeit the plaintiff’s right to redress in the courts

[Annamunthodo v Oilfield Workers’ TU]

Is body subject to judicial review?

Source of power test: whether the source is a public law power (PSC v Linda Lai)o Ultimate source of decision-making power is nearly always a statute or sub

legislation [CCSU v Minister for Civil Service (“ GCHQ ”) ]o Cf. Private law (contract – agreement between parties – PSC v Linda Lai)

Winslow believes that PSC was hiring people for the public-it is performing a public function because it is performing a collective function for the public and is acknowledged by the public as doing so. Also, the Guidelines used for hiring etc. were of general applicability and not limited to just Lai’s case.

o BUT source of power test limited: decides the clear cases, but there is a spectrum in between [Lloyd LJ in R v Takeover Panel, ex p. Datafin]

Nature of power test: if the body is exercising public law functions or if the exercise of its functions has public law consequences (PSC v Linda Lai; Datafin)

o [Fact-specific] Court looks at the substantive realities of the executive power, not just its formal source [Datafin]

Quasi-judicial, self-regulating body

o Decision of a domestic self-regulating body/tribunal with public law functions subject to supervisory jurisdiction Leading case: R v Takeovers Panel ex p. Datafin

Material factors: body that Oversees and regulates a very important part of the UK financial

market Exercised immense powers de facto Performed a public duty Operates wholly in the public domain

Indirect Government involvement with indirect sanctions Quasi-judicial functions

Companies

o Private incorporated company – no judicial reviewGanda Oil Industries v KLCE

Ministerial control of the respondent did not extend to day-to-day operations. Relationship contractual + exercise of power under regulation 11 clearly under contract

o Some companies may be subject to judicial review (hybrid/wholly-owned) Per Gopal Sri Ram JA in Tang Kwor Ham & Ors v Pengurusan Danaharta

Nasional Bhd & Ors [2005]

Three types of company Private – not subject to JR

o No public functions and no statutory powerso Government may own substantial/majority shareholding

[of itself not enough] Hybrid – whether there is judicial review depends on the nature and

character of act/omissiono Former public owned service providers that have been

privatisedo Have some public functions under particular statuteso Shares not solely owned by the Governmento E.g. Telecom Malaysia, Singtel (?)

Wholly owned by the Government – subject to judicial reviewo Funded entirely with public moneyo Have either statutory powers/duties conferred on themo In substance – an instrument of the Government

Note: an open question whether this is good law in Singapore May treat as a subset of the nature of powers act Factors that go towards showing a public law element

o Factors cumulative, non-conclusive

o Clear government interest – size of shareholdingo Public functions: statutory powers/duties

Dissenting judgement paid closer attention to the facts, and the mere fact that tasks conducted were pursuant to a statutory power does not mean that all acts thereto are the decisions of a public authority attracting the court’s power of judicial review.

Quare : Is Temasek (as was Danaharta in Tang Swor Ham) amenable to judicial review?

Public law function? Funded almost entirely with public money (less one share) Created by statute? Non-justiciability of the issue?: Parliament (in the debates) already

said that Temasek self-regulates itself (like a private company) hands-off approach?

Clubs/Associations

o Public law functions with public law consequences – judicial reviewWoon Kwok Cheng v HR Hochstadt

Malayan Racing Association By conducting and regulating the sport of horse racing – affects the lives of a

sizeable portion of the population Social fabric of the community is affected [horse-racing being of wager in

nature] NB: No right to livelihood in Singapore unless you take an expansive

meaning of art. 9 (but this rejected by the Wee Commission; cf. Lord Denning, cited in Woon Kwok Cheng, who argued that there was) but this can nevertheless constitute as a legitimate expectation PL consequence

o Where a club expels its members, it may only do so in accordance with rules of Natural Justice

Kay Swee Pin v SICC Public element not adequately explained – may well have been the

economic interest Club with very substantial assets Valuable membership which could be bought and sold

What kind of interests are at stake?

Test in GCHQ:o Administrative decision must have consequences that affect persons other than the

decision-maker By altering rights or obligations of that person which are enforceable by/against

him in private law By depriving him of some benefit or advantage which he had a legitimate

expectation to enjoy Clubs/Associations

o Nature of interest (right to livelihood) + non-availability of private law remedies (no contract) = circumstances which make the decision amenable to judicial review

Woon Kwok Cheng v HR Hochstadt

What kind of decisions are these? (ministerial v. judicial power; subsidiary legislation)

Review of Subsidiary Legislation

1. Whether it has ‘legislative effect’

A. Whether ‘subsidiary legislation’? Test: whether the instrument has “legislative effect” [Interpretation Act s. 2] Meaning of “legislative effect”:

Cheong Seok Leng v PP

Not always easy to tell, but general distinction between rules/bye-laws of a legislative and executive character

Legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty whereas;

Executive authority applies the law in particular cases Assignment of “civil defence duties” to the Vigilante corps found to be of

legislative effect Intended to charge the Vigilante Corp with additional functions and

duties In making the assignment the Minister was determining the content of

the Vigilante Corps Act

A. Judicial review – Subsidiary legislation

Procedural grounds 1. Subsidiary legislation requires publication in the Gazette [s. 23(1) Interpretation Act];

Mandatory requirement [Cheong Seok Leng v PP] Effect: Failure to publish – invalid act NB: Need for publishing can be omitted if expressly excluded by the Act

(below) 2. Others [may be minor]

Formal requirement: Signification of Orders by President [cite] Sufficient if Minister/Cabinet Secretary [s. 34(1)] or PS/any public officer

duly authorised in writing [s. 35(1)] signs Minister may not delegate its powers to issue/make subsidiary legislation

[Interpretation Act s. 36(3)] Substantive grounds

1. Outside the scope of the parent Act [Cheong Seok Leng v PP following McEldowney v Forde]

Court has a threefold task

1. Determine the meaning of the words in the parent Act 2. Determine the meaning of the subordinate legislation 3. Decide whether the subordinate legislation complies with the description in

the ActNote: difficult to prove

Rule/instrument need only be incidental to the purpose of the Act [MM Pillay v PP]

2. Unconstitutional [Cheong Seok Leng v PP]

Conclusion: whether procedurally/substantively ultra vires

Review of Informal Rules

Note: no need to be published/gazetted Policy/Guidelines need not be contained in duly promulgated subsidiary legislation

Lines International Holding v STPB

Rationale: Efficiency; necessary to have administrative discretion in setting guidelines and policies

An administrative act cannot be exactly defined and includes the adoption of a general policy

Different from a legislative act which is the creation/promulgation of a general rule of conduct

STPB and PSA, being charged with a discretionary power within a statutory framework, are entitled to adopt a general policy in the exercise of their statutory duties

Grounds of review Lines International v STPB

A. Policy unreasonable in the Wednesbury sense In considering unreasonableness – courts not entitled to substitute their views

of how the discretion should be exercised with that actually taken B. Policy not made known to persons so affected C. Fettering of discretion

Not willing to hear out individual cases and deal with exceptions Delegated decision making power to another authority – without applying mind

to the issue Fettering discretion by a self-imposed rule of policy or practice [cite: Komoco

Motors v Registrar of Vehicles] Note: there is a presumption that the policy was legal and the burden of proof is on the plaintiffs

[Colin Chan v PP foll’d]

3. Codes/rules “ deemed not to be subsidiary legislation”

Effect of the deeming words – no requirement of publication in the Gazette [s. 23(1) Interpretation Act]

Grounds of review May argue that the grounds in Lines apply

No requirement of publication: if the guidelines are exempt from judicial scrutiny, the makers will be accountable to none

Considerations of administrative efficiency must still be subject to the rule of law all power has legal limits [Chng Suan Tze]

Alternatively, may argue that substantive ultra vires grounds of review for subsidiary legislation apply

Rules derive their effect and validity from statute

Grounds of review – GCHQ

GCHQ grounds of judicial review adopted in Singapore [Jessie Tan v Minister for Finance, following Chng Suan Tze]

For reference, not citation

1. Illegality 2. Irrationality 3. Procedural Impropriety 4. Proportionality [controversial, rejected as a ground of review in Chng Suan Tze]

Contravention of any of the grounds will render a decision ultra vires

1. Illegality – [note: concerned with scope of powers under statute ]

As a ground of review: decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it [GCHQ]

Principle: Court ensures that a public body stays within its legislative mandate A. Errors of law excess of jurisdiction [Anisminic v FCC, followed in Re Yee Yut Ee]

Authorities: jurisdictional vs. non-jursidictional errors

The law is unclear as to whether errors of law within jurisdiction still exist after Anisminic

The P.C. maintained the distinction between jurisidictional and non-jurisdictional errors in SEA Fire Bricks, which was cited by the SGHC in Stansfield v Minister for Manpower

However the citation in Stanfield was only obiter dicta (case decided for a breach of natural justice), and the authority of SEA Fire Bricks was doubted by the Federal Court in the MPPP case

The SGCA should follow Page v Hull University Visitor and decide that all errors of law can go towards jurisdiction

As a general rule any error of law made by an administrative tribunal can be quashed for error of law

Anisminic rendered obsolete the distinction between jurisdictional and non-jurisdictional errors

Based on the constitutional principle that courts alone should decide the meaning of legislation [Lord Diplock in O’Reilly v Mackman]

NB: Chan CJ, speaking extra-judicially, suggested that this may be a non-question: Doubted UK authorities which said there was no longer a distinction between

jurisdictional and non-jurisdictional errors since Parliament is supreme in the UK Dichotomy is therefore important in England where statute has “by the

most clear and explicit words” ousted review on errors of law? Suggested that in Singapore, this may be a non-issue since art. 93 vests judicial

power in the Supreme Court: “the supervisory jurisdiction of the courts cannot be ousted, and therefore there is no need for our courts to draw the distinction between jurisdictional and non-jurisdictional errors of law”

Quare: Even if the Constitution is supreme in Singapore, what about cases where Parliament has ousted judicial review (see below) “by the most clear and explicit words”. Wouldn’t the distinction in Anisminic then come to the forefront?

Application

1. Misconstrued the scope of powers under statute – applied the wrong legal test [Anisminic]

2. Patent error of law [Re Yee Yut Ee]Exceptions – Anisminic + Page v Hull dist’d

Inferior court of law called to decide a question of mixed fact, law and degreeLord Diplock in Re Racal Communications

E.g. whether installation of central heating in house amounted to “structural alteration, extension or addition”

Rationale: Parliament intends for the inferior court to be the final arbiter

B. Precedent fact doctrine [Re Fong Thin Choo; Chng Suan Tze following Khawaja v Home Secretary] Can be considered a Preliminary OR as a form of illegality

Applies to an initial determination on preliminary questions: Whether the tribunal was properly constituted Whether the case was of a kind referred to by statute

Objective test: Jurisdictional/precedent facts must be objectively established Evidentiary advantage: Court can require the executive/administrative body to produce

evidence to its objective satisfaction C. Abuse of discretion

Courts will not recognise an “unfettered” discretionPadfield v MAFF , foll’d in Chng Suan Tze

Notion of a subjective and unfettered discretion is contrary to the rule of law All power has legal limits and the rule of law demands that Courts

should be able to examine the exercise of discretionary power Exceptions:

Emergency/war powers Preventive detention under the ISA Treatment of unfriendly/illegal aliens

D. Fettering of discretion – failure to apply mind Not willing to hear out individual cases and deal with exceptions [Lines International v

STPB] Abbrogated/delegated decision making power to another authority without applying

mind [Lines International v STPB] Fettering discretion by a self-imposed rule of policy or practice [Komoco Motors v

Registrar of Vehicles] E. Improper purpose –

Exercising a power that the Act does not provide forHowe Yoon Chong v Chief Assessor

S. 63 Property Tax Act did not give Minister the power to levy fees; If Parliament intended for fees to be collected, it would have provided for it

Exercise of power outside the purposes of the Act Parliament must have conferred the discretion with the intention it should be

used to promote the policy and objects of the Act [Lord Reid in Padfield v MAFF] Note : may be difficult to prove

In Singapore, a broad purpose test is adopted: incidental to the purpose of the Act [MM Pillay v PP]

Where statutory powers have been exercised for a collateral purpose different from that which they have been vested for, the exercise of power is invalid as it was pursuant to an improper purpose. (Sydney Municipal Council v. Campbell)

BUT if the collateral purpose was merely incidental to fulfilling the primary purpose, then the act is still valid (Westminster Corporation v London and NW Railway)

F. Irrelevant Considerations Where an authority takes into account irrelevant considerations or fails to take into

account relevant considerations in exercising its discretion, its decision will be void for exceeding its jurisdiction. (Estate and Trust Agencies v. SIT) can also be irrational

2. Irrationality – [note: Common Law grounds]

Seeks to ensure that the public body does not deviate from substantive common law principles which exist independently of principles in the statute

Where the decision is so perverse and irrational that no sensible man could have come to such a view, it will be quashed (Dr. Benjamin George, Chai Choon Hoon)

A. Wednesbury unreasonableness [threshold is very high – notoriously hard to prove]Lord Greene in APPH v Wednesbury Corporation

In a wider sense: Authority will be considered to be acting “unreasonably” if he does not consider

relevant matters, or excludes consideration of irrelevant matters Test : authority must abstain from reaching a conclusion so unreasonable that no

reasonable body could have come to it E.g. red haired teacher dismissed because she had red hair Requires something quite “overwhelming”

Alternatively, Lord Diplock in the GCHQ case

A decision so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it

Qualification: Courts are not entitled to substitute their view of how the discretion is to be exercised

[Lines International v STPB] Thio: the court is not looking for the correct legal answer, but to ascertain the

range of legally possible answers Bad faith, dishonesty or with disregard to public policy [APPH v Wednesbury Corporation

(1905)]

3. Proportionality

Principle: administrative authority to maintain proper balance between purposes pursued and adverse effects of decision on rights, liberties, interests of persons affected

Singapore position: Proportionality not part of the law in Singapore [Chee Siok Chin v MHA] Rejected as a separate ground of review, but may be subsumed under “irrationality”

[Chng Suan Tze, adopted in Dow Jones Publishing v A-G]

4. Procedural Impropriety

Non-compliance with statutory procedural requirements Common law principles of natural justice

Natural Justice

1. Applicability of the Rules of NJ [usually right to be heard]

Generally: HL in Ridge v Baldwin liberated the application of the rules of natural justice from classifications based on judicial/quasi-judicial function placing emphasis on the impact of administrative decisions on individual’s rights and interests [effectively widening categories of application]

Illustrations: categories where the rules have been applicable A. Master-servant relationship [Ridge v Baldwin]

Right to be heard applies where 1. There is no contractual relationship 2. Where there are statutory restrictions on the employment contract

[e.g. grounds for dismissal] B. Deprivation of property rights [Cooper v Wandsworth]

“No man is to be deprived of his property without his having an opportunity to be heard”

Extended to statutory property deprived of property [Durayappah v Fernando] Singapore: Foll’d in Chief Building Surveyor v Makhanlal

C. Deprivation of membership of professional/social/cultural/bodies/societies Expulsion based on misconduct readily subject to the rules of NJ [Peck,

Constance Emily v Calvary Charismatic Centre] Where a club expels a member, it may only do so in compliance with the rules of

NJ [Kay Swee Pin v SICC] D. Disciplinary proceedings

All disciplinary bodies have a duty to act fairly [Kay Swee Pin v SICC] Rationale: expulsion, suspension or other punishment may involve a

stigma E. Forfeiture of Existing Rights

Ex. parte Sim Koo Soon Tests used:

A. Factors approach – subject matter in question No rigid general rules as to the applicability, scope and extent of natural justice

principles could be laid in advance – depends on the subject matter in question [Durayappah v Fernando]

3 matters to be borne in mind (guidelines only)

1. Nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice

2. In what circumstances or upon what occasions is the person exercising the measure of control entitled to intervene

3. When a right to intervene is proved – what sanctions in fact is the latter entitled to impose upon the other

B. Duty to act judicially [More stringent test – but likely full range of rules of NJ available] Judicial element “inferred” from the “nature of the power”

Atkin LJ in R v Electricity Commissioners , clarified in Ridge v Baldwin :

Duty to act judicially arises whenever any body of persons having legal authority to determine questions affects the rights of subjects

C. Duty to act fairly [more elastic concept] Criterion by which procedural obligations are imposed Content of the duty to act fairly will vary greatly form case to case [GCHQ]

Lord Diplock in the GCHQ case: not to be misused by the Courts to determine whether a particular policy/decision was fair

Lower level procedural justice requirements – on a continuum from natural justice to fairness [McInnes v Onslow-Fane]

Criticised on the basis that it imports a great deal of uncertainty D. Legitimate Expectations

Arising from an express promise or existence of regular practice which the claimant can reasonably expect to continue [Lord Fraser in GCHQ]

Renewal of licence casesMcInnes v Onslow-Fane

Falls into the intermediate category of “expectation” cases; between “forfeiture” and “application” cases

Ex. parte Sim Soo Koon [1915] SSLR 2

Created by administrative assurance [deportation of immigrant cases]AG of HK v Ng Yuen Shiu

Administrative assurance led an illegal immigrant to believe that before deportation, he would be accorded an interview prior to a decision of his case on the merits

Legitimate expectation to the nature of the hearing, but not the outcome

2. Where rules of NJ do not apply

A. Preliminary proceedings: No right to be heard where sub-committee merely reports in regard to a complaint,

without condemning the plaintiff Law Society of Singapore v Chan Chow Wang

Inquiry committee investigating complaint under no duty to communicate with the plaintiff when submitting report to disciplinary committee

However, where the report has significant repercussions (may lead to judicial proceedings) there may be a duty to act fairly

In Re Pergamon Press

Inspectors appointed under the Companies Act to investigate and report on the affairs of a company

Before they condemn/criticise a man – they must give him a fair opportunity to correct/contradict what is said against him

An outline of the charge will suffice B. Necessity [especially for bias]

Rule: the disqualification of an adjudicator will not be permitted to destroy the only tribunal with power to act [Anwar Siraj v Tan I Fang]

Rationale: to prevent a failure of justice Rule applies where:

There is no other competent tribunal or a quorum cannot be formed without the biased adjudicator [Chiam See Tong v SDP]

Defence inapplicable where alternative arrangements can be made

There is an replacement procedure in place Anwar Siraj v Tang I Fang

JTC had statutory power to relieve the Chairman of his position and appoint a Deputy Chairman or any other member to take his place

C. High level policy matters – e.g. national security and aliens Rules of NJ do not apply to aliens [Siah Mooi Guat]

But note that Act there had a section allowing the Minister not to disclose his confidential sources

D. Legislation (law-making process) Where body/committee is exercising a legislative function (whether primary or

delegated) [Bates v Lord Halisham] Solicitors who were affected by possible law reform relating to the scaling of conveyance

fees did not have a right to be heard. [Bates v Lord Halisham] E. Waiver

Must be express Deliberately kept away from proceedings [Peck Constance Emily] Claimant was non-cooperative and did not attend hearings-expelled-implied

waiver to rights under rules of natural justice. [Peck Constance Emily] F. Comprehensive statutory code

The more comprehensive the statutory procedural safeguards are, the less willing courts are to intervene [Wiseman v Borneman]

Not conclusive [Cooper v Wandsworth Board of Works] G. Matters requiring professional expertise

E.g. doctor’s opinion H. Practical difficulties

E.g. referees and umpires need to make decisions on the spot – no requirement of fair hearing

3. The Rule against Bias

Issue: whether the decision-maker was biased For hypo – don’t need to consider whether rules of natural justice apply

A. Actual Bias Where actual bias is proved, the person concerned must be disqualified [R v Gough] Very difficult to prove the tribunal was biased in fact: [R v Gough]

Difficulties in exploring the actual state of mind of a justice or a juryman [evidentiary difficulties]

B. Pecuniary/Proprietary interest Any direct pecuniary interest, no matter how small, is sufficient to automatically

disqualify a person from adjudication – [Blackburn J in R v Rand] Special category in which the law assumes bias – the law raises a constructive

presumption of bias [Rex v Sunderland JJ] In such cases – irrelevant that there was in fact no bias Not necessary to investigate if there was any actual bias, or even any reasonable

suspicion, real danger of bias Classic example [Dimes v Grand Junction Canal]

C. Personal or other non-pecuniary interest Starting point: Law should be slow to create new categories in which bias is assumed

and there is automatic disqualification [Regina v Gough]

However, the HL in a prominent case has held that the principle of automatic disqualification applies where the judge is himself a party or is involved in promoting a common cause with one of the parties

R v Bow Street Metrop. Stipendiary Magistrate, Ex p. Pinochet

Lord Hoffman disqualified as unpaid director and chairperson of Amnesty International Charity

Amnesty International was given leave to intervene in the proceedings Although Hoffman not regarded as a party to the appeal – AIC an AI were both

parts of a movement working towards the same goals Irrelevant if he was in fact not biased.

D. Apparent Bias Applicable test in Singapore should be the “reasonable suspicion of bias” test [Re

Shankhar following JBJ v LKY] The SGCA has not made a choice between the “real likelihood” and “reasonable

suspicion” tests [Tang Liang Hong v LKY] Although in substance there is little difference from the “real likelihood” test

advocated by Phang J in Tang Kin Hwa v TCMPB Taking into account the fact that Porter v Magill was not cited to Menon

J in Re Shankhar CA in Yong Vui Kong v AG did not direct themselves as to which test was more

appropriate, but dealt directly with M Ravi’s submission that the Minister’s statements constituted “reasonable suspicion of bias by predetermination”. Side-stepped the debate by holding that the Minister’s statements did not constitute any bias (NB: CA did not mention that AG challenged the test).

“Reasonable suspicion” is the better semantic: Allows court to focus the inquiry from the point of view of the

reasonable person observing the proceedings Better emphasis of the fundamental principle that justice should not

only be done but manifestly be seen to be done [Lord Hewart CJ in R v Sussex]

Test : whether there are circumstances which would give rise to a reasonable suspicion in a fair-minded reasonable person with knowledge of the relevant facts that the tribunal was biased [Re Shankhar]

Further considerations Chan J in Re Singh Kalpanath

Prima facie different test to be applied for administrative decisions Rule against bias most demanding in judicial proceedings as judge is

expected to maintain the highest standard of conduct in the exercise of his functions

Application of the test to take due regard of the context in which it is to be applied

Stringency with which the principle is applied may also depend on the importance of the right at stake or the decision to be taken

E.g. the standard required of the chairman of the disciplinary committee under the Legal Profession Act is as high as that required of a judge

Chan CJ in Yong Vui Kong v. AG , with further emphasis later by Phang and Rajah JJA : Lower standard for ministerial statements on policy

Citing Jia Legeng (HCA decision): the rule against bias cannot be applied to ministerial statements on policy as the same standard as that of a

judicial officer or quasi-judicial officer. Otherwise, he will never be able to do so “lest his statement be construed as a predetermination”

Standard defers depending on the nature and context of the power: For clemency power, being a prerogative power, Cabinet cannot be held

to the same standard as that of the courts/ tribunals when advising the President on the exercise of such power.

All that is required under art. 22P is that they give its consideration fairly and objectively

For clemency powers, considering policy considerations cannot on its own amount to bias

4. Right to be heard

[Hypo] Breakdown of structure Starting point: consider if there are any statutory procedural rights

Where the right to be heard is specifically conferred by a statute – the statute may lay down several guidelines for a right to hearing [e.g. oral/written]

Absence of statutory procedural right not conclusive Right to be heard may be implied by the common law to “supply the omission of

the legislature” [Cooper v Wandsworth] Consider whether rules of natural justice applicable [section 1]

Right to be heard consists of a bundle of rights – The exact content of the bundle of rights is variable with the context [basic idea:

fairness] A. Content of the right to be heard

Core elements of the right to be heard [University of Ceylon v Fernando] Fair notice of the case to be met + fair opportunity to make representations in

answer to the charges 1. Requirements of fair notice

A. Timely notice – Plaintiff should be given sufficient time to effectively prepare his

defence [Mohd bin Aziz v PKMS] B. Notice of evidence that is before the tribunal [SS Kanda v Govt of Federation

of Malaysia] 2. Fair opportunity to make representations

No fair opportunity where some adjudicators walked in and out of hearings, did not stay the course of proceedings and did not hear all the evidence and submissions [Tan Boon Chee v Medical Council of Singapore]

3. Right to cross examination As a matter of reciprocity – if one side is allowed to cross-examine, the other

should be allowed to as well [Howe Yoon Chong v Chief Assessor] Available where plaintiff makes a request [University of Ceylon v Fernando] Consider other factors [seminar hypo]:

E.g. tribunal no power of sup poena (power to call witnesses) – less likely right to cross-ex will be implied

4. Right to legal representation Discretionary, no inherent legal right – depends on whether natural justice will

require it in the circumstancesKok Seng Choon v Bukit Turf Club

Factors to consider:

1. The seriousness of any allegations made to any potential penalty 2. Whether points of law are likely to arise 3. The capacity of the particular individual to present his or her own

case 4. Whether it will be necessary to cross-examine witnesses whose

evidence has not been disclosed in advance 5. The need for reasonable speed in making the adjudication 6. The need for fairness as between all persons who may appear before

the tribunal On the facts [my rule]:

Need to balance the need for speed + efficiency against the need for fairness, in view of the legal question to be decided and the level of legal expertise required

5. Duty to give reasons No general common law duty to give reasons [Re Siah Mooi Guat] However, there is a progressive trend in English law towards a duty to give

reasons, as one of the fundamentals of good administration [Breen v Amalgamated Engineering]

Duty to give reasons may be implied where there is some right/interest or legitimate expectation

In exceptional cases, reasons should be given as a matter of fairness [MPPP case]

5. Effect of denial of Natural Justice

A. Effect on decision: better view of the authorities is that the decision is void [Ridge v Baldwin] B. No need to show that the defect of NJ caused actual prejudice [Annamunthodo v Oilfield

Workers’ Trade Union] C. Whether a defect of NJ is “curable” on appeal

Only where an appeal is a rehearing de novoRidge v Baldwin

Later decision [appeal] will be valid if the whole matter is reconsidered afresh after affording the person affected a proper opportunity to present his case

Note: involves annulling the impugned decision before making a new decision Not cured simply by a fair hearing on appeal [Vasudevan Pillai v SCC]

Limits to Judicial Review?

1. Judicial Review only extends to examining the legality of a decision, not its merits [Wong Rayney v Law Society of Singapore]

2. Legislative limits on Judicial Review

Circumventing legislative exclusion of review: A. “Ouster” clauses – e.g. “not subject to challenge in any Court”

The ouster clause should be construed strictly and does not protect purported determinations/decisions which are nullities

Anisminic applied in Re Yee Yut Ee

Where there is excess of jurisdiction/irrationality/bad faith/abuse of discretion/breach of natural justice the purported decision is a nullity and will not be protected

NB: whether all errors of law go towards jurisdiction [above] Distinguishing

If Parliament’s intention is clearly for the decision-maker to be the final arbiter [e.g. ISA and National Security; Teo Soh Lung v Minister for Home Affairs]

B. Finality clauses – e.g. “an award shall be final and conclusive” Only final on the facts and not the law, clause not effective to protect decision

from review by certiorari where there is jurisdictional defect, etc. [R v Medical Appeal Tribunal ex p. Gilmore]

C. “No certiorari” clauses – e.g. “shall not be subject to certiorari” Court may still issue certiorari if jurisdictional defect can be established, etc.

[Yee Yut Ee] D. Subjectively worded clauses – e.g. “where X is satisfied that…”

Test is objective: requires evidence to show that the X could be reasonably satisfied [Tan Jessie v Minister for Finance, applying Chng Suan Tze v MHA]

3. Judicial limits

Doctrine of justiciabilityReview Publishing (HC) at paras. 91-98:

Reflection of the doctrine of separation of powers Intensity of judicial review will depend on the context Depends on the subject matter at hand Immune areas (at paras. 96-98):

Prima facie, high policy/ political questions e.g., wars, foreign affairs, national security (below)

Interpretation of international treaties operating solely on international plane Legislature made it clear that executive to decide on issue

Deference/ restraint?: “intricate balancing of various competing policy considerations” Potentially “embarrass some other branch of government” or “tie its hands in

the conduct of affairs traditionally within its purview” Remain cognisant that certain areas are democratically entrusted to Exec/ Legis

National security issues not justiciable Where the relevant decision in fact was based on national security considerations – not

justiciable [Chng Suan Tze affirming GCHQ]