By Stephen Thompson -
Snapshot
- The application of the ‘rule’ in Briginshaw v Briginshaw is a question ‘of fundamental importance to administrative decision-making and decision-making by administrative tribunals’.
- Two decisions have removed the uncertainty in relation to the Briginshaw ‘rule’ in the context of administrative decision-making, which is a boon to delegates making administrative decisions.
- Sullivan v Civil Aviation Safety Authority and Bronze Wing International Pty Ltd v SafeWork NSW decided the rule does not strictly apply to decision-making by the AAT and NCAT. i.e. administrative decision-makers may apply the Briginshaw rule when appropriate, but are not bound as a matter of law to apply the rule.
Every week day, important administrative decisions are made by delegates under more than 400 Commonwealth Acts and legislative instruments that are subject to an application for external review by the Administrative Appeals Tribunal (‘AAT’).
Also relevant are :
- many other black letter federal laws for which the AAT does not have jurisdiction; and
- State and Territory legislation which might be subject to an application for external review by an AAT-equivalent tribunal, such as the NSW Civil and Administrative Tribunal (‘NCAT’).
Two relatively recent decisions by the Full Court of the Federal Court and the NSW Supreme Court of Appeal have clarified the standard of ‘reasonable satisfaction’ to which those delegates must adhere when making decisions. The two decisions are Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (‘Sullivan’) and Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 (‘Bronze Wing’).
