GROUNDS FOR JUDICIAL REVIEW
ss 5(1) & 6(1) of the ADJR Act, for decisions and conduct related to decisions respectively, the ‘grounds’ upon which judicial review can be applied for are listed:
a. That a breach of the rules of natural justice occurred in connection with the making of the decision;
b. That procedures that were required by law to be observed in connection with the making of the decision were not observed;
c. That the person who purported to make the decision did not have jurisdiction to make the decision;
d. That the decision was not authorized by the enactment in pursuance of which it was purported to be made;
e. That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
f. That the decision involved an error of law, whether or not the error appears on the record of the decision;
g. That the decision was induced or affected by fraud;
h. That there was no evidence or other material to justify the making of the decision;
i. That the decision was otherwise contrary to law.
ADJR grounds no longer reflect, as accurately as they might, the actual practice of Australian administrative law. This is because they were codified in 1970 upon the understanding at that time. Subsequent reform means there are differences between these grounds and those developed at common law or under the Constitution. The ADJR grounds have evolved through judicial interpretation. The grounds have been criticised for stunting the development of judicial review at common law (Aronson article – Kirby J).
ACTING WITHOUT LEGAL AUTHORITY
Where a decision maker does not have authority, express or implied, to make a decision, there will be grounds for judicial review under common law as well as the ADJR Act (ss5(1)(b), 5(1)(d)). This includes where the decision maker fails to comply with essential procedural requirements that are required by the enacting legislation (deemed to be acting without authority. It also includes where delegated legislation is beyond the scope of the authorising statute (Evans v NSW).
The principle of legality requires public officials to support their actions with legal authority. In order to determine whether the decision-maker has acted without legal power, the court examines the scope of the decision-maker's legal powers (statutory or otherwise), and whether the decision under challenge was made within them. This involves a careful exercise of statutory construction and interpretation where the decision-maker is acting under statutory authority.
- Often, a statute which confers powers on a statutory body will also expressly confer incidental power – e.g. the power to do all such things as are necessary or reasonably incidental to the performance of the body's functions or specific powers.
o Even in the absence of express conferral of incidental power, the courts acknowledge that where a statutory power is expressly conferred, there must also be implied power to do things that are incidental or consequential to what is expressly authorised.
▪ Powers which infringe on rights are less likely to be considered
incidental/consequential to an express conferral of power without express provision or strong necessary implication (i.e. the statutory provision/power would be
inoperative or meaningless otherwise): Coco v R [1994] HCA 15. Such a principle is consistent with the principle of legality.
ABC Developmental Learning Centres Pty Ltd v Secretary, The Department of Human Services (2007) 15 VR 489, 489-96, SM 180
- Act empowered authorised officer of DHS to enter premises where licensed childcare was operating.
- Officer was further empowered to do things on premises, also authority to ask questions which had to be answered (subsection did not refer premises).
- DHS requested information from ABC by letter, no response.
- Issue of whether power to ask question required officer to be on premises.
o All other powers under subsection related to those exercised only on premises – power to question likely the same.
▪ Need to read statute as whole in determining scope of authority (surrounding sections, titles of section and others).
o Subjective intentions of Parliament as to purpose of statute irrelevant in determinations of acting without authority.
o Practical approach – without confining to premises, power would be too broad and impact too heavily on rights of others → usually powers so burdensome require clear and express intention.
o Powers also not incidental to express powers.
IMPROPER PURPOSE
An administrative decision maker can only exercise any conferred authority for the purpose for which it is conferred (s5(1)(e); s5(2)(c) provides that the reference to improper exercise of power under s5(1)(e) includes
‘an exercise of power for purpose other than a purpose for which the power is conferred’).
Statute will usually define purpose the purpose to which a power can be exercised. Hence, interpretation of statute is required, followed by a comparison of the ascertained proper purpose with the purpose the power was actually exercised for.
Multiple purposes – some authorised, others not, question is whether unauthorised purposes amount to
‘substantial purpose’ (but for test).
Robin Creyke, John McMillan and Mark Smyth, Control of Government Action: Text, Cases & Commentary (4thed., 2015), 566-573 SM 188
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R v Toohey (Aboriginal Land Commissioner); Ex p. Northern LandCouncil (1981) 151 CLR 170 o Act enabled Aboriginal peoples to lodge application for traditional land claims over
unalienated land.
o s3 provided definition of such land was, amongst other things, to not include towns.
o Northern Land Council notified government that it intended to make claim, did so in following year.
o After notice, Administrator made regulation drawing out boundaries of Darwin much further.
o Land Commissioner refused discovery of documents on application, finding inquiry could not be made into Administrator’s motives.
o Council applied under S75(v) for certiorari, mandamus and prohibition to quash Commissioner’s ruling and to compel him to hear land claim.
o HELD (HCA):
▪ Where statute does not allow for power to depend on subjective belief/opinion of exerciser, power can only be exercised in accordance with purposes for which power is conferred.
▪ Even though Administrator was not relevant Minister, Act will still statute enacted for purpose – susceptible to judicial review.
▪ Administrator’s power was for town planning only – on objective analysis of facts, power was exercised for improper purpose of denying claim, not town planning.
• Only Administrator was involved in decision, not other members of Land Council (unlikely to be town planning).
- Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 o Board authorised by statue to undertake compulsory resumption of land for any
purpose of Act.
o Board resumed land owned by Samrein.
o Samrein claimed improper purpose, land was obtained to finance joint venture with Commonwealth Government Insurance Office to redevelop land.
o HELD (HCA):
▪ Dominant purpose of resumption was for office space, despite some excess acquisition (joint venture was means to this end).
Schlieske v Minister for Immigration and Ethic Affairs (1988) 84 ALR 719, CMR&R, 283-286
- Act empowered Minister to deport prohibited non-citizens.
- Minister signed deportation order for S, subject to two previous unsuccessful extradition attempts.
- Minister’s department also arranged for West German temporary travel permit to be issued, booked seat on West German airline, and directed airline to receive him on board its flight.
- Issue of improper purpose (deportation for purposes of extradition).
- HELD (FFCA):
o Objective analysis showed power was exercised for purpose of extradition, not deportation.
o Despite being invalid for improper purpose, Court did not grant injunction as claimed – Court ordered Minister to not take steps beyond what was necessary for deportation (which would amount to extradition).
o Court noted that Act granted powers ancillary to purpose of deportation (including ones which were taken in preparing S’s deportation) – still did not validate, must still be undertaken for purpose of Act.
RELEVANT/IRRELEVANT CONSIDERATIONS
There are grounds for judicial review where decision-maker has taken into account irrelevant considerations in coming to their decision, or fails to take into account relevant considerations.
s5(2)(a) of ADJR Act provides that improper exercise of power referred to under s5(1)(e) includes the taking into account of an irrelevant consideration, whilst s5(2)(b) provides includes failure to take into account relevant considerations.
Involves determination of what statute conferring decision making power envisaged as being relevant for exercise of that power, on an objective basis. Analysis can include factual matters, policies, submissions etc.
Ground is limited in that it does not involve consideration of whether a matter was given adequate consideration or appropriate weight.
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 (Mason J), CM&R 253-266 - Act allowed Indigenous peoples to lodge land rights claims, with Minister deciding each claim
(Minister was repository).
- For particular claim, Land Rights Commissioner recommended to Minsiter that claim be granted, acknowledged area of land affected included part of area known as Ranger 68.
- Peko (mining company) had understated worth of Ranger 68 to Commissioner.
- Commissioner was required, in deciding claim for land rights, to include details of detriment.
- Peko submitted to Commissioner to draw attention to error of understatement, also wrote letter to Minister at time.
- Minister acknowledged letter, inform Peko that full interest would be accounted for in decision.
- Minster was replaced, replacement ultimately granted land claim (given summary of detriment which did not include any reference to any of Peko’s subsequent submissions).
- Peko claimed failure to take into account relevant consideration.
- HELD (HCA): relevant consideration.
- Mason J – can only be failure if decision maker is bound to take into account factor:
o Question of statutory construction, whether factors enumerated are inclusive or exhaustive, if no express factors must be determined by implication from subject matter, scope and/or purpose.
o Not every failure invalidates decision (may be so insignificant that there is no material effect on decision).
o Ignorance of facts is no defence – but lack of mention in statement of reasons does not necessarily mean factor was not taken into account.
o Unreasonable to expect decision maker to personally consider all relevant information personally:
▪ If summary relied upon, decision maker’s responsibility to ensure that summary contains all relevant considerations.
o Statutory requirement was for detriment to be detailed in report, but did not require
o Not role of court to consider weight given to considerations unless statute indicates otherwise.
Tickner v Chapman (1995) 57 FCR 451, CM&R 266-274
- Minister had power to declare area as ‘significant Aboriginal area’ under Act.
- For particular declaration, representations from affected parties were submitted with report pursuant to Act, with notation that they should not be read by men because they contained secret folklore of Ngarrindjeri women.
- Minister did not read, was briefed be female staff member.
- HELD (FFCA): failure to consider.
o S10 provided Minister was required to consider report, essentially provided relevant considerations for decision.
▪ ‘Considered’ – active intellectual process directed at representation or submission, precluded delegation.
o Where statute sets out relevant considerations, close analysis of text and context (substantial effect on rights and interests here) of statute in order to determine what is required of decision maker.
o No requirement to read personally, but must have considered himself:
▪ Diary showed he was not at place document was received before making decision.
o Minister could receive aid in considering, but limited to summarising report (administrative, deliberation by Minister only).
o Minister could have appointed female Minister, member of society must also comply with terms of law if they wish to use its powers/protection.
Irrelevant considerations
Unclear. Where decision maker acknowledges irrelevant consideration but ultimately ignores it in making the decision, the decision remains valid (pick up red herring, turn over and examine, then put it down, so long as he does not allow it to affect his decision. If an insignificant irrelevant factor does not vitiate, one that plays no part at all need not do so.
DELEGATION AND AGENCY
Statute typically confers power on person/office – the repository. Prima facie, it is unlawful for anybody except repository to exercise the relevant power. However, such a principle can cause difficulties (Peko; Tickner) or inefficiencies, where the power is conferred upon a single person but the process is complex and difficult without assistance.
There is only a presumption that the repository must exercise power personally. It can be rebutted by express/implied contrary intent to allow delegation or agency.
s5(1)(c) ADJR Act is most relevant ground of review provision with regard to challenging delegation ‘a person who purported to make the decision did not have jurisdiction to make the decision’.
The Carltona principle operates to the effect that Ministers are too busy to exercise the many and varied statutory powers and duties placed on them personally and that, of necessity, they must either delegate or act through an agent. Since the Minister is responsible for the whole Department, he does not lose any relevant connection to the decision.
Acts Interpretation Act 1901 (Cth)
- s34AAA – if an Act confers a power or function on a person holding or occupying an office, that power or function must be performed by the person holding or occupying the office or position.
- s34AAB(1) a Minister who administers an Act or a provision of an Act may authorise as agent: (a) a Minister who does not administer that Act or provision or (b) a member of the Executive Council who is not a Minister.
- s34AA – where an Act confers the power to delegate a function, duty or power, that power of delegation is to be deemed as including a power to delegate the relevant function, duty or power. It is not to be construed as being limited to delegation of the relevant function, duty or power.
- s34A – where a person’s exercise of power, or performance of a function/duty, is dependent on that person’s opinion, belief or state of mind in relation to the matter and that power has been delegated, the person so delegated may exercise that power upon their own opinion, belief or state of mind.
Delegation
Delegate acts in his own legal capacity, not as agent.
Certain powers are not delegated – when there is express exception to delegation power, or Parliament intended power to be exercised personally.
S34AB AIA sets out effects of delegation:
Delegation Agency
(1)(a) the delegation may be made generally or as otherwise provided by the instrument of delegation
An agent’s powers/authority must be clearly defined, and through authorisation rather than delegation
(1)(b) the power to delegate cannot be itself delegated
Sub-agents can be appointed
(1)(c) delegate’s exercise of power deemed to be performed/exercised by the delegator
Same for agents (but NB the delegate is still exercising in his/her own legal capacity, c.f. an agent, who acts in the name of the repository)
(1)(d) delegation does not prevent the delegator from exercising the delegated powers/functions/duties
Same for agents
(2) if an authority delegates powers/functions/duty that are derived from an enactment, and the Act is amended to include additional powers/functions/duties, then the delegate is deemed to have also been delegated those additional functions/powers/duties
N/A
(3) if an Act is amended so as to alter the scope of a power/function/duties that is delegated, then the delegated power is also altered as such
N/A
*For ss (2) & (3) to apply, the delegation must have taken effect before the amendment
Agency
Agent does not act under own legal capacity, rather in name of repository who has authorised agency. Where the relevant function is routine and non-discretionary, the implied authority to act through agent will be more readily implied. Where the exercise of power might affect rights of individuals, less likely (delegation would be required).
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 (Mason J), CM&R 253-266 - See 19.
- Minister’s deferral to Commissioner’s Report and briefing from department officers in making land rights claim decision.
- Minister argued that he had implied authority to split decision making, and that this authorised staff to decide what facts or matter would be taken into account before briefing him on matter for decision making.
- HELD (HCA):
o Carltona principles applies – implied authority for any administrative decision maker to act through duly authorised officer of his department under Act.
▪ Question of whether agents are required as matter of ‘practical administrative necessity’.
o Express power to delegate under Act by signed delegation – no evidence Minster made such delegation.
o Presence or absence of express power of delegation does not mean power to authorise agency cannot be implied.
▪ Nothing that evinced practical administrative necessity to enliven Carltona principle on facts.
▪ Profound effect on rights of others actually meant that Minister could not authorise agent.
Ron Pattenden v Commissioner of Taxation [2008] FCA 1590, 1- 56, SM 196
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Commissioner had power under Act to issue Departure Prohibition Order in respect to person who is subject to tax liability where Commissioner believes on reasonable grounds that it is desirable to do for purpose of ensuring person does not leave Australia without paying liability.-
Commissioner delegated, pursuant to Act, to Deputy Commissioner.-
Deputy Commissioner delegated, in absence of express statutory authorisation, to holder of certain office title (Mr Benson), to exercise in her name as making DPO.-
DPO was issued with DC’s signature.-
Mr Benson did not prepare the DPO, it was prepared by Mr S who, having received Mr B’s approval, signed for DC.-
One month elapsed between DPO approval and issue.-
Mr S altered tax liability payable under DPO to reflect interim.-
P challenged exercise of power by Mr S, arguing that it was unlawful to consign ‘substantive’ aspects of decision making to subordinates.-
HELD (FCA):o Possible for agent to appoint agent, test is same for whether Minister could appoint an agent/delegate (practical administrative necessity).
o No authority for subordinate to exercise statutory powers in name of Minister on basis of departmental practice.
o Instrument of authority in this case deliberately excluded people below certain level.
▪
Changes were not merely clerical, procedural or ministerial (serious intrusion on person’s freedom).o Distinction between agent and assistant – who is person exercising discretion and power?
POLICY
Courts have recognised that it is valid for government to develop and apply policy regarding the myriad of issues with which it must deal (Plaintiff M64/2015) – such policy may be: written/unwritten, formal/informal, high-level/political or administrative/bureaucratic.
The manner or extent to which a decision maker can rely on policy in making a decision may be subject to review (particularly Ministers or senior officials). The application of policy to decision making is subject to various principles:
- Decision maker cannot apply policy that is unlawful;
o Not inconsistent with law that is applicable to decision, must accord with scope of relevant law/statute.
- Decision maker must not follow governmental policy inflexibly or slavishly, even where the policy is lawful.
o Consider merits and make decision on relevant facts and law.
S5(2)(f) ADJR Act provides that an improper exercise of power under s5(1)(e) includes ‘an exercise of discr4etionary power in accordance with a rule or policy without regard to the merits of the particular case’.
Green v Daniels (1977) 13 ALR 1, CM&R, 286-293 - See 4.
- HELD (FCA): policy had been applied inflexibly without regard to personal circumstances (merits).
o Policy denying benefits without consideration of merits of each case amounted to slavish and inflexible application.
o Policy cannot be applied so as to confine/fetter discretion to such extent that merits of individual case will not be taken into account – its purpose should be only to provide guidance.
o General rule was not irrelevant consideration.
o Policy denying all school leavers unlawful, inconsistent with statute which granted entitlement on merits – policy would have denied even those legitimately entitled.
M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 CM&R 293-304
- Family of unaccompanied Afghan minor were denied humanitarian visas by a valid delegate of Minister.
- Refused on basis that not satisfied that there were compelling reasons for giving special consideration to granting visa (as required by statute), noted only small number of applicants could be successful and
‘processing priorities’ of policies associated with particular program.
- Policy prioritised certain applicants over others, where P was in lowest category.
- P claimed that in applying policy, Minster’s delegate misconstrued statute, ‘regard to capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia’, by referring to Australia’s capacity to resettle all applicants rather than persons such as the particular applicant.
- HELD (HCA):
o
