E. Inflexible application of policy
Common law
While not listed as an example in Craig v SA, Kirk confirmed this was not a rigid taxonomy of JEs ADJR
S5(1)(c): that the person who purported to make the decision did not have jurisdiction to make the decision
S5(1)(e): The making of the decision was an improper exercise of power conferred by
enactment... S5(2)(e): an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case
S5(2)(f) exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case
1. Is policy lawful
i. Is the policy consistent with enabling legislation? (Green v Daniels)
ii. Note guidelines are viewed as in the benefit of good consistent administration (Gageler J - Green)
iii. Cannot add an additional criterion beyond legislation (Green) 2. If policy is consistent, has it been applied like a hard and fast rule?
i. Does policy superimpose a requirement that is inflexibly applied? Green s5(2)(f) ii. Has someone fettered discretion Rendell s5(2)(e)
iii. Policy must not preclude the person on whom the power is conferred from departing from the policy or from taking into account relevant circumstances (Gleeson CJ in NEAT)
iv. Not unlawful as long as merits are considered in each case 3. Does the statute force consideration of an irrelevant matter?
i. Applying an unlawful policy inherently includes considering an irrelevant consideration, as policy itself is extraneous to the statute.
G. Acting under dictation
Indicators
Conversations between higher/lower officials Acting under dictation
Veto power over independent bodies Apply Breach Manufacturers of NSW v Evans
Common law
While not listed as an example in Craig v SA, Kirk confirmed this was not a rigid taxonomy of JEs ADJR
S5(1)(e): The making of the decision was an improper exercise of power conferred by enactment...
S5(2)(e): exercise of a personal discretionary [power at the discretion or behest of another
• Test: Was the exercise of power overwhelmed by the views of someone who is not authorised to exercise that power?
• Conflicting approaches in HC
o Rule: Whether a direction can confine or fetter discretion is a matter of statutory interpretation, considering “the particular statutory function, the nature of the question to be decided, the character of the decision maker and the general drift of the statutory provisions” related to the decision maker and the responsible
minister.” Bread Manufacturers of New South Wales vs Evans
§ The more independent from political control a decision maker is given, the more rule against dictation is enforced
• Statute gives minister power to issue directions
o General instructions: Some cases have determined this only gives the Minister power to give general policy guidelines which will leave DM free to depart from guidance if necessary
o Specific instructions: Can give specific instructions if permitted by statute
1. Directions (Ministers à Departments) a. Clear split in HCA:
• Primacy should be given to ministerial responsibility – DMs discretion does not give power to ignore or depart from government policy
• DM may have regard to government policy, but cannot abdicate their responsibility to make the decision
2. Statutory Directions (Ministers à DMS)
a. Legislation may provide directions to DM re the exercise of discretion b. Whether a direction can confine or fetter discretion is a matter of statutory
interpretation (Bread Manufacturers)
• Must be general guidance that will leave FM free to depart from guidance if necessary
• Cannot exhaustively limit the classes of case where the power can be exercised
3. Directions to Independent Bodies
a. Was the exercise of power overwhelmed by the views of someone who is not authorised to exercise that power?
b. But not expected to operate in a vacuum – must gather information from a wide variety of sources
c. But also cannot be so influenced by policy that it fails to perform its own functions
