Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 (2003) 211 CLR 411
Outcome: discussed
The Authority accepted that '... this Court has jurisdiction under s 39B(1A)(c) of the Judiciary Act to determine whether the [Authority] was under a duty to consider the applicants' request to vary [AusCoast's] licence condition', but asserted that '[n]onetheless, if this Court accepts that the [Authority] was not under such a duty (and remains free from such a duty), the Court would be unable to make an order in the nature of mandamus'. Absent such an order, so the Authority further submitted, there was no proper basis for any of the relief sought by the applicants', thereby citing Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 (2003) 211 CLR 411 at [44]-[48] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ) and at [98]-[100] (Gaudron and Kirby JJ), in each such instance containing observations relating to the operation of s 417(1) of the Migration Act , whereby the Minister is empowered to substitute for the RRT's decision a decision more favourable to an applicant for relief, if ' ... the Minister thinks it is in the public interest to do so '. Once again I have difficulty in identifying any sufficiency of assistance of authority from a context involving quite different legislation; indeed s 417(7) of the Migration Act at least then explicitly stipulated that ' [t]he Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.' In any event, as the applicants rightly pointed out, whether or not mandamus might be available against the Authority in relation to the operation of s 111 of the Act, relief pursuant to s 39B(1A) of the Judiciary Act for declaratory relief was sought by the applicants' amended application which Jacobson J accepted for filing in Court on 25 August 2005. I have of course earlier referred to the applicants' case for relief being framed on that basis by way of additional or alternative relief to that afforded by the ADJR Act. 53 As to what the Authority referred to as its 'related alternative motion', the Authority contended that since AusCoast is currently broadcasting from premises which are not the premises specified on the conditions of its licence, such conduct was unlawful and improper. Accordingly, in case the Court was otherwise minded to entertain a grant of relief following a substantive hearing, it was submitted that relief should be refused as a matter of discretion; since the applicants here seek to protect and validate unlawful and improper conduct, and thereby attract the operation of the maxim of equity 'he who comes into equity must come with clean hands', discussed in R Meagher, D Heydon and M Leeming, Meagher, Gummow and Lehane's Equity Doctrines &amp; Remedies , (4 th ed) at [3-110]. The relief presently sought by the applicants is however in the nature of administrative and not equitable relief, the applicants having not purportedly founded any case on equitable estoppel. In any event I am of course presently concerned with the Authority's notice of objection to competency. The relevance of any such matters so raised by the Authority is limited to the Court's determination of final relief, should the Authority's objection to competency fail wholly or in part. 54 I should add for completeness that in a short supplementary submission, the Authority repeated the essence of its earlier submissions, and submitted further in the alternative as follows ( inter alia ): 'If the court accepts that there is no duty [for the Authority to consider a request made for a variation of an apparatus licence under s 111] but considers that, nonetheless, the Authority made a decision under s 111, the matter would need to go to a substantive hearing. There would then be an argument about whether a reviewable error was made in that legislative context. There would also be a discretionary issue too.' It is sufficient for me to respond to that supplementary submission at the present stage of the proceedings by referring to the interlocutory decision upon which I have arrived below in the light of the respective submissions of the parties, which have been addressed on the basis of the Authority's objection to competency.