Grounds of judicial review o Ultra vires grounds
o Absence of power
▪ Actions not permitted by statute
▪ Disregard of procedural requirements
▪ Improper delegation o Abuse of discretion
▪ Relevant/irrelevant considerations
▪ Bad faith and improper purpose
▪ Unreasonableness o Fact finding errors
▪ No evidence
▪ Non-satisfaction of jurisdictional fact o Failure of exercise discretion (or fettering discretion)
▪ Inflexible policy
▪ Acting under dictation o Procedural fairness
o Fair hearing rule o Bias rule
Grounds of judicial review
o Fundamental principle that underlies judicial review at common law is that government powers must not be exercised in excess of power or jurisdiction
Example introduction: [applicant] will be seeking judicial review under either the common law jurisdiction or Administrative Decisions (judicial review) Act (ADJR) jurisdiction to review [decision] by [DM]. To be successful with her judicial review she will need to identify and prove a ground(s) of review, which may result in her receiving appropriate relief for the incorrect/invalid use of executive power.
Ultra vires grounds – acting beyond power o Ultra vires – government must not act beyond what the statute affords them
o CCSU v Minister for the Civil Service (Lord Roskill) – power of the executive to benefit or adversely impact the community must be founded in some form of statute or cases and it may be derived from the prerogative
Cases
o Entick - government action that intrudes on individual’s existing rights will be unlawful unless there is legal authority to support the action
o London City Council v AG – statute allowed power to run tramways will not empower executive to run busses o A v Hayden – lays down the principle that governments, even with national security concerns, do not inherently
possess power to authorise their officials to act in defiance of the criminal law
o Church of Scientology v Woodward – HC decided that rules that the judiciary can examine whether
administrative action undertaken by a National Security Agency is supported by the legislation establishing the agency
o ICAC v Cunneen – HC narrowly construed the statutory remit of an anti-corruption agency with coercive investigative powers, to avoid impacting rights and freedoms of those being investigated
o Smethurst – applying Entick, in the context of search warrants Statutory Interpretation
o The words of the statutory provision are a starting point, and ordinarily should be given their clear and unambiguous meaning (Wollongong v FCT)
o The words of the statutory provision are to be read in their context, and with regard to the purpose of the provision (Project Blue Sky, S 15AA AIA)
o The nature of the subject matter of a provision may bear on its proper interpretation
o Acts are to be construed (where the constructional choice is open) so as not to infringe common law rights or freedoms (Coco v The Queen)
o Acts that confer a benefit or right on an individual or on the community are generally construed expansively (Roncevich)
o The nature of the power conferred may bear on the power’s/provision’s proper construction o Extrinsic materials may be used to resolve ambiguity (S 15AB AIA)
o Statute agencies have implied incidental power to do ‘whatever may fairly be regarded as incidental to, or consequential upon, those which the legislature has authorised (AG v Great Easter Railway)
Absence of power
Actions not permitted under statute
ADJR – 5(1)(d) or 6(1)(d) CL – Entick, Shanahan Step 1: Identify the statute and action by the executive OTF Step 2: Then determine that it is not allowed under statute
o Rule: Governments and their officers cannot act beyond the scope of the power authorised by statute (Entick)
o A decision-maker will act ultra vires if they act beyond the purpose of the act, and added to, extended or varied the legislative intention (Shanahan) o Regulations
o Regulations must stay within the scope that was intended by parliament and cannot extend power beyond what the statute allows (Shanahan) o Power to ‘regulate’ an activity
o Problems may arise where the regulation of an activity seeks to prohibit all or part of an activity (Foley)
o Does regulate = prohibit
o Subjective non-compliance – decision maker has discretion
o If decision-maker must be satisfied on certain conditions, his satisfaction must be reasonable. If not it is beyond their power so they have breached (Foley) (goes to jurisdictional fact)
Entick Principle: if there is no written law then the silence is authority against the decision maker and the plaintiff is allowed judgment.
o Police conducted a search without a warrant.
o HELD – not permitted under an act
Shanahan Principle: the regulation must compliment and not supplement the enabling act
o Governor had the power to create regs around egg production that was necessary and expedient
o Created regulations that eggs cannot be placed in cold storage o HELD – regs not consistent with the enabling act
Hird Principle: ‘Necessary or convenient’ power is broad power to make regulations
o CEO was given wide discretion to determine how to fulfil their functions
Foley Principle: If the decision-maker is reasonably satisfied that the
conditions to make regulations are met then they are permitted to create regulations, if conditions are not met then breach.
o Rundle street mall act allows the council to regulate, control or prohibit ‘any activity’
o Council mandated that no person shall give out or distribute anything in the mall…to any bystander or passer by without the permission of the council
o Held – valid because the power permitting the creation of regulations was so broad
Disregard of
procedural requirement s
S 5(1)(b), S6(1)(b)
Step 1: identify the procedure that should have been followed
o Legislation may specify steps or requirements to be observed or fulfilled by an administrative decision-maker before or after making the final decision
o However, a breach of procedural rules would not necessarily render the decision invalid
Step 2: determine if the procedure is significantly important that it invalidates the action or could be permitted
o If the language of the statute/section uses mandatory language then sufficiently serious and who transaction may be invalidated (Project Blue Sky)
o Modern approach uses a purposive approach (S 15AA AIA, Project Blue Sky) o Previously analysed if the procedure was discretionary or mandatory o Consider if there was notice of not following procedure or if there was injustice in
not following procedure (SZIZO) o The court’s approach
o There is a procedural requirement, you are concerned it won’t be met, so you seek an order requiring the decisionmaker to fulfil the requirement o There is a procedural requirement, and the decision-maker makes the
decision without satisfying the requirement Project
Blue Sky
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the procedure should be invalid
SAAP v Minister
non-compliance with a requirement to provide details of adverse information to an applicant in writing invalidated a decision, even if
that information had been provided orally, HELD – decision was held invalid
Minister for immigratio n v SZIZO
regard to the ‘extent and consequences of the departure’ must be had, where the manner of providing notice of a hearing under the statute was not correctly followed but the parties had actual notice, no substantive injustice arose, HELD – decision was held valid
Improper delegation
S 5(1)(c), s 6(1)(c)
o Common law presumption against delegation but can be varied by statute
o Courts have accepted that a power includes an implied power to act through an agent o Terminology
o Principal: person nominated in the legislation as the authorised decision- maker, retains the authority to make decisions, even when that power has been delegated (s 34AB(1)(d) AIA)
o Delegate: scope of authority will be set out in the instrument of delegation (s34AA AIA), is expected that a delegate signs a decision in their own name and not in the name of the principal (Re Reference)
o Agent: makes decisions on behalf of a principal or delegate where there is a practical necessity (O’Reilly; Re Reference)
o Assistant: conducts research, interviews someone, prepares briefings Step 1: identify if delegation is permitted under the statute - OTF
S 77 of the Paintball Act
Step 2: Has the delegation been completed formally?
o Delegation must be done formally and in writing
o S 34AA – power to delegate provides for delegation to a named person or to an officer or position
o S 34AB(1)(b) – power to delegate does not include a power to delegate that power of delegation
o S 34A – if an exercise of power depends on forming an opinion and that power is delegated, the power is delegated, the power is exercised on the basis of the delegate’s opinion
Step 3: consider is there an agency relationship?
o There must be practical administrative necessity
o For an agency relationship to be found there must be a practical
administrative necessity (Caltona, O’Reilly, Gibbs CJ affirming Brennan J in Re Reference )
o Carltona – TEST is administrative necessity and the minister can give the work to someone of appropriate seniority
o Have signature rules been followed? (Re Reference) o Agent signs in the delegate’s name
o Delegate signs in their own name
o Carltona – Minister’s powers and decisions can be made by a responsible officials of the department
O’Reilly Principle: an agency relationship can occur where there is a practical administrative necessity but depends on the nature of power and circumstances
Re Reference Principle: an agency relationship will occur if the agent signs in the principal/delegates name and it will be a delegate if they sign in their own name
• Brennan J – where the power is not delegable, but the authority could not have been expected by the parliament to have exercised it personally in the multitude of instances when its exercise would be required, it has been held that some classes of acts done by others for and on behalf of the [principal] should be treated as though they were acts of the [principal]
o Power depends on the nature of the power to be exercised
• Delegate made a decision to refuse employment benefits and signede as a delegate even though not delegate, not an agent
• HELD – invalid decision
Carltona Principal: the actions of government department officials are
synonymous with the actions of minister in charge of that department
• Allows agency Abuse of
discretio n
• There is power which has been exercised, but which has in some way been abused or exceeded
• Decision maker gives ‘meaningful’ “proper, genuine and realistic” consideration to the relevant facts and applicable law and attempting to reach the best (correct and preferable) decision (Carrascolao affirmed by Chetcuti)
Relevant and irrelevant consideratio ns
ADJR s5(1)(e) with s5(2)(a) and (b); s5(1)(e) with s6(2)(a) and (b) CL – Peko-Wallsend In exercising administrative power, a decision maker must consider the relevant
considerations and must not consider irrelevant considerations (Peko or S5(1)(e) with s5(2)(a) and(b)) additionally in the use of their discretion they must give meaningful, proper, genuine and realistic consideration to the relevant facts to reach the best (correct and preferable) decision (Carrascolao affirmed by Chetcuti)
Exam technique
• Did the DM consider an irrelevant consideration? OR o Identify the irrelevant consideration
o Explain that this is relevant as a matter of statutory construction (if parliament had wanted this considered they would have said so, language used)
o Identify that it was considered
o Did it materially impact the decision-making process?
• Did the DM fail to consider a relevant consideration?
o Identify in the Act and the facts the relevant consideration
o Explain that this is relevant as a matter of statutory construction (if parliament had wanted this considered they would have said so, language used)
o Consider – active intellectual process
o Did not considering the decision materially affect the decision?
Consider - relevant or irrelevant consideration
• Relevant consideration: must be taken into account
• Irrelevant consideration: cannot be taken into account
• Discretionary considerations: do not have to be taken into account
• What are relevant and irrelevant considerations?
o Basten J – Lo v Chief Commissioner – relevant consideration refers to a matter which the decision-maker is bound to take into account.
▪ Obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose.
▪ Mandatory consideration
o Basten J – Lo – irrelevant consideration is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious.
o Relevant and irrelevant considerations are determined by the subject matter, scope and purpose of the relevant statute (Mason J Peko-Wallsend)
▪ Ground is only made out if they fail to consider factors which they are bound to take into account
▪ In every statute, it is implied that the decision is to be made on the basis of the most recent and accurate information to the decision- maker
▪ A decision-maker is not entitled to ignore material of which he has actual or constructive knowledge and decide on the basis of incorrect material
RELEVANT CONSIDERATION
Consider - Did they fail to consider a relevant matter?
• Mason J Peko-Wallsend – the failure of a DM to take into account a relevant
consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a part with sufficient standing to see judicial review of ultra vires administrative action
• Relevant and irrelevant considerations are determined by the subject matter, scope and purpose of the relevant statute (Mason J Peko-Wallsend)
o Ground is only made out if they fail to consider factors which they are bound to take into account
o In every statute, it is implied that the decision is to be made on the basis of the most recent and accurate information to the decision-maker
o A decision-maker is not entitled to ignore material of which he has actual or constructive knowledge and decide on the basis of incorrect material Consider - What is active intellectual process?
• Griffiths, White and Bromwich JJ – Carrascalao – A finding by the court that the minister has not engaged in an active intellectual process will not be made lightly
• Middleton, Moshinsky and Anderson JJ – Navoto v Minister for Home Affairs – whether the decision maker has given active intellectual consideration will be a matter of inference to be drawn in particular from the manner in which the representation was advanced and the structure, tone and content of the decision-maker’s reasons
o What is required by a court upon judicial review is a qualitative assessment as to whether the decision maker has, as a matter of substance, had regard to the representations made
• Chetcuti – was it plausible to conclude that the minister had given an ‘actual intellectual process’ during that 11 minute period?
o Murphy and Rangiah JJ – there is the erroneous statement in the Minister’s decision record which indicates that the Minister paid too little attention to the material to realise his error
o O’Callaghan J (dissent) – the failure to delete the formulaic words from the Minister’s reasons does not bear one way or the other upon the issue of how much time the minister spent considering all of the relevant information
• Hindi - a DM will have ‘considered’ a relevant matter so long as they have give
‘proper, genuine and realistic’ consideration to the matter
o Just made statements around ‘has been read’, ‘is aware of’ – compared to
‘carefully read and considered’
Consider - Did not considering the information materially affect the decision?
• Factor may be so insignificant that failure to consider it doesn’t materially affect the decision
• Mason J Peko-Wallsend – a factor might be so insignificant that the failure to take it into account could not have materially affected the decision
o The lack of consideration must have materially affected the final decision for the decision to be invalid under this ground (Peko, Gibbs CJ)
IRRELEVANT CONSIDERATION Did they consider an irrelevant matter?
• A decision will be invalid if an irrelevant matter is taken into account and the consideration of that matter materially affects the decision (Peko-Wallsend, ADJR s5(2)(a))
o What matters were taken into account by a decision-maker? – Q of fact o Were any of the matters that were taken into account an irrelevant
consideration? – Q of law
• In some situations the statute gives little guidance because the discretions that it confers are unconfined or open-textured, or embody expansive notions such as ‘public interest’ or ‘national interest’
o HC unanimously said in Plaintiff s156/2013 v Minister for immigration and border protection [40] – what is within national interest is largely a political question … the only matter to which the minister is obliged to consider for national interest is whether or not the country to be designated has given Aus any assurances
o HC – Keifel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ – Graham v Minister for immigration and Border protection [57] – the concept of national interest is broad and evaluative, is not unbounded. Statutory discretion must in each case be exercised by the minister according to rules of reason and justice, not according to private opinion
Did the irrelevant consideration materially affect the DM’s decision?
• May be instances where they considered the irrelevant consideration but has negligible effects on final decision so decision must not be invalid
• The consideration must have materially affected the final decision for the decision to be invalid under this ground (Peko, Gibbs CJ)
• Mason J Peko-Wallsend – a factor might be so insignificant that the failure to take it into account could not have materially affected the decision
Peko- Wallsend
Principle: failure of a DM to consider a relevant consideration when making an administrative decision is an abuse of discretion
• P made submissions to a liberal minister in respect of their statutory power to give land to IP in the NT
• Act stated that the commissioner to comment in their report on the detriment to any persons or communities that might result if a particular land claim were to succeed
• The day of an election the new labor minister agreed with Liberal minister without considering P’s initial submissions
• HELD – the labour minister had failed to take into account relevant considerations, and decision was ultra vires
Hindi Principle: a DM will have ‘considered’ a relevant matter so long as they have give ‘proper, genuine and realistic’ consideration to the matter
• H applied for a visa and gave reasons about family and Liberia being in crisis
• Obligation to give proper, genuine and realistic consideration requires the decision-maker to engage in an ‘active intellectual process’ in assessing the merits of the case
• HELD – did not give proper consideration to the factors and wrote perfunctory statements on the application
Minister for families and children v certain children
Principle: government decision may be required to consider alternatives to their actions
• Children’s detention unit was established in an adult prison
• Warren CJ, Maxwell P and Weinberg JA – the informing philosophy of the Act and its stated purposes treat the rights and interests of children as governing consideration
o A decision under the act is a decision about the setting in which detainees will experience the deprivation of their liberty, imposed on them for their breaches, or alleged breaches, of the criminal law
• HELD – government decision was invalid because it did not consider the potential alternatives to opening a youth justice centre in an adult prison as well they acted with an improper purpose to save money
Bad faith and improper purposes
Administrative decision makers are required to carry out their decision making process without bad faith, fraud or improper purposes, breaching this may result in the decision being invalidated.
People granted public powers must exercise in good faith and for a proper purpose Bad faith (and fraud)
S5(1)(g) and s5(1)(e) with s5(2)(d), s6(1)(g) and s5(1)(e) with s6(2)(d) – an exercise of discretionary power in bad faith
S5(1)(g) – fraud S5(2)(d) – bad faith
S5(1)(e) – improper purpose Fraud
The decision maker acting with fraud in their decision-making is a serious default and may attract disciplinary and criminal penalties.
• SZFDE – a decision can be vitiated by bad faith, where matters that were unknown to, and perhaps undiscoverable by, a decision-maker or an applicant have rendered the decision seriously defective in some way
▪ Not vitiated for fraud where the misrepresentation by an agent to the client known to the tribunal (SZEEU)
• Because fraud is serious and likely to attract criminal penalties, a higher standard of proof applied in making a claim of fraud
▪ Briginshaw at 361 Dixon J – wrote that where an allegation in civil proceedings is serious the allegation cannot be made out to the reasonable satisfaction of the court by inexact proofs, indefinite testimony or indirect inferences
▪ SZXT – fraud can come in various guises and is infinite in variety, but its essential characteristic is dishonesty
Bad faith
A decision by an administrative decision-maker may be invalidated where a bad faith is found to be present in the decision making process (s5(1)(e) with s5(2)(d), SBBS)
• A DM acted in bad faith where discretionary power has been exercised with malice, faud or by corruption (S5(1)(e) with s5(2)(d))
▪ A DM acted with an improper purpose if they have act with bad faith
• There was an unprecedented resurgence of interest in this ground in Aus between 1994 – 2002
• Bad faith was frequently a ground of challenge in migration litigation
• Bad faith involves ‘capriciousness’ and may manifest itself in the form of bias. It is the decision that must have been made in bad faith.
• SBBS v Minister for Immigration and multicultural and Indigenous Affairs (Tamberlin, Mansfield and Jacobson JJ) – 9 points of bad faith
1. An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker
2. Not to be lightly made and must be clearly alleged and proved
3. There are many ways in which bad faith can occur and it is not possible to give a comprehensive definition
4. The presence or absence will often be crucial
5. The circumstances in which the court will find an administrative decision- maker had not acted in good faith are rare and extreme – especially where the applicant relies solely on the written reasons for the decision under review 6. Mere error or irrationality does not of itself demonstrate lack of good faith bad
faith is not found simply due poor decision-making.
▪ it is a large step to jump from a decision involving errors of fact and law to finding that the decision maker did not undertake its task in a way which involves personal criticism
7. errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness (unpredictability) 8. the court must make a decision as to whether or not bad faith is shown by
inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task
9. It is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power
▪ Bad faith can be demonstrated by recklessness was qualified in Minister for Immigration and Multicultural Affairs v SBAN (Heerey
& Kiefel JJ) [8]: where wrongful intent is in issue, reckless
indifference may be equivalent of intent. But the test is not objective.
The inquiry is directed to the actual state of mind of the DM. there is no such thing as deemed or constructive bad faith. It is the ultimate decision which must be shown to have been taken in bad faith. Bad faith may manifest itself in the form of actual bias and in this context is a state of mind so committed to a conclusion already formed as to be incapable of alteration.
• SBAU – AAT was found to have made its decision in bad faith, in light of these factors:
▪ The tribunal understated or ignored factual claims of which it must have been aware
▪ The tribunal attributed an inherent unlikelihood to events that were inherently likely
▪ The tribunal gave an incorrect analysis of the legal system in another country
▪ There factors showed that ‘the tribunal embarked upon its review with a mind fixed upon rejecting the claims, indicating a degree of
capriciousness in addressing the review which points firmly towards failing in good faith to review the delegate’s decision
Improper purpose
S5(1)(e) with s5(2)(c), s6(1)(e) with s5(2)(c). CL Brownells v Ironmongers
A DM with discretion to make administrative decisions may only do so for the proper purpose that the power was conferred (Tooheys), an exercise of power with a different purpose may result in the decision being invalidated.
Exam strategy
• Step 1: Identify the purpose for which the DM made their decision
• Step 2: look to the legislation to determine the purpose for which the decision is supposed to be made
• Step 3: examine whether the purposes coincide
• Step 4: consider mixed purpose – was the non-statutory purpose a dominant or substantial reason for the decision? (if not then decision may escape review) Intro
• This ground of review can arise where a decision maker acted for the purpose not authorised by the statute
• Commonly a statute will define a purpose for which a power can be exercised – absent of an express purpose, it will usually be possible to imply a purpose through statutory interpretation
o Paintball Act’s purpose is to establish a system of permits for the regulation of paintball markers and of paintball venues, and for related purposes (s2) Public interest
• Where the statutory power is to be exercised ‘in the public interest’. The leeway to be afforded to the minister’s discretion in such a case was considered by the HC
o Plaintiff M79/2012 – majority accepted that a broad purpose was inherent in a power to grant a visa ‘in the public interest’, including because the minister is accountable to parliament in a system of responsible government
o Plaintiff S4/2014 – the same statutory power could not be exercised in a way that would defeat the operation or purpose of other statutory provisions that enabled continuing detention pending a decision on a visa application o Where the statutory power is exercised at a high level by a minister with a
view to achieving a political objective or by GG on matters such as appointment to or termination of an office held at pleasure.
Mixed proper and improper purpose
• The DM was aware that multiple purposes would be achieved by the exercise of the statutory power, one or more of which, viewed separately, would be an unauthorised purpose
• Samrein illustrates that the exercise of the power will not necessarily be invalid in those circumstances; the improper purpose must substantially inform the decision
• Must be ulterior from the statutory power AND substantial in that it significantly impacts the outcome of the decision – the decision would not have been made without the ulterior motive
R v Toohey
Principle: a statutory power may be exercised only for the purpose for which it is conferred
• NT Land Council claimed an interest in an area of land outside of Darwin
• Dispute over “town”
• The administrator used this power to promulgate a regulation that extended the limits of Darwin to encompass the area that the NT council was claiming
• HELD – improper purpose
• Gibbs CJ – the principle, which is clearly settled… is that a statutory power may be exercised only for the purposes for which it is
conferred
• Gibbs CJ – the nature and extent of administrative power must be inferred from a construction of the act as a whole
o Onus of proving that the decision-maker did act for
unauthorised purpose lies on those who make that assertion o For a statute conferring regulation-making power, if it can be
seen from the words of the regulation themselves that the regulations go beyond the statutory purposes, they will be invalid
• Mason J – the difficulty comes in deducing from the individual motives of the persons on the regulation-making body what the collective purpose is
Samrein Pty Ltd
Principle: multiple purposes - the decision will only be invalidated if the improper purpose played a substantial role in making the decision- the decision would not have been made had it not been for the improper purpose that was pursued.
• A statutory board exercised a power under the metropolitan water, sewerage and drainage act to take ownership of S’s land
• S challenged that decision on the basis that it was made for the improper purpose of obtaining finance to fund development of the land in partnership with a commonwealth agency
• HELD- if an activity is done for the purpose that is not precisely the statutory purpose for which the discretion was conferred, the activity will have been done for a proper purpose if the activity facilitates the achievement of the statutory purpose
• HELD – where a decision is made for multiple purposes, and one is improper, then the decision will only be invalidated if the improper purpose played a substantial role in making the decision- the decision would not have been made had it not been for the improper purpose that was pursued.
• Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ – Where a decision-maker adopts more than one purposes for exercising an administrative power, it will be an abuse of that power if one of those purposes is an ulterior and substantial purpose
Plaintiff M79/2012
• Granting a visa on Christmas island
• Plaintiff M79/2012 – majority accepted that a broad purpose was inherent in a power to grant a visa ‘in the public interest’, including because the minister is accountable to parliament in a system of responsible government
• Dissent Hayne J – cautioned that accepting a statutory purpose was granted for an unconstrained purpose had grave consequences for the rule of law and that ever a broad ‘public interest’ power is not wholly unfettered
• French CJ, Crennan and Bell JJ – the purpose for which a visa may be granted under the Act are to be found in the statutory criterion of the public interest ie it is a matter which, within the general scope and purpose of the Act, is left for the minister to decide
o The only qualification was the purpose for which the minister acted had to be consistent with the overall purposes of the Act
