Post on 24-Sep-2019
TOPIC 4A: GROUNDS – ULTRA VIRES
ULTRA VIRES: The basic idea underpinning the ultra vires doctrine (‘UV’) is that government decisions, actions and powers must not be made in excess of its
lawful powers. There are 2 categories of UV:
1) Narrow/simple UV – where decisions are not authorised by the law at all; there is no legal power to do what has been done;
2) Broad/extended UV – where decisions have not been made in accordance with the legal requirements governing how they should be made. There is legal power to act,
but only if the requirements governing the decision making process are satisfied.
Narrow/Simple UV: Parliament and other democratically elected bodies pass statutes giving important powers to decision makers (eg. To issue control orders). It is expected that those
decision makers will act within the remit of that statute. But sometimes, they can act outside the remit of the statute, in 3 ways: 1) if they exercise their power in an unauthorised fashion
(London County Council v AG (1902), or act beyond the scope of the statute; 2) if they disregard or fail to comply with an express procedural requirement; or 3) if they exercise improper
delegation of authority i.e. the person who exercises the power is not the person to whom the power was conferred. These 3 ways are termed narrow ultra vires or narrow jurisdictional
error. They are named as such because the common law has recognised them as the more extreme sorts of errors, leading to invalidity of the decisions:
NARROW UV – GROUND 1: SUBSTANTIVE/SIMPLE UV
Theory: Governments and their officers cannot perform acts or make
decisions which they are not authorised by law to do; that is, go beyond
what is permitted by statute, or which goes beyond the scope of the
primary Act.
Codification: ADJR Act, ss. 5(1)(d); 6(1)(d) – “that a decision was not
authorised by the enactment in pursuance of which it was purported to
be made”.
Note – only ‘decisions of an administrative character made under an
enactment’ can be reviewed under the ADJR Act. When challenging a
decision made under an Act or Regulation, the decision or the regulation
can only be challenged under the common law; a regulation is a
legislative instrument, and therefore not of administrative character.
Principles: Acts which extend regulation beyond the scope and purpose
ascribed by the primary Act will be deemed substantively UV. Where
Parliament has generally worded Acts by use of terms such as ‘necessary or
expedient’ or ‘as the [power broker] sees fit’, they may be intending broad
discretion. However, the Act or Regulation must still be read in accordance
with the objects and purposes of the primary Act (Shanahan v Scott
(1957)).
A regulation or by-law will not automatically be invalided simply because it
goes further than is necessary to regulate the primary Act. Broadly worded
regulations and by-law are not ordinarily allowed. However, the societal
problem the by-law is aimed at, as well as factors such as human rights
violations and lack of constitutional protection, may make such ordinances
valid. If power is given for the purpose of prohibiting something, the power
will, in the absence of contrary indication, enable the making of a law which
prohibits absolutely or subject to conditions. Statutory interpretation is essential
here (Foley v Padley (1984)).
NARROW UV – GROUND 2: PROCEDURAL UV
Theory: Procedural UV, otherwise known as disregard of express procedural requirements, occurs when an administrative
body fails to comply with or disregards an essential pre-condition for the exercise of their power.
Codification: ADJR Act, ss. 5(1)(b); 6(1)(b) – “that procedures that were required by law to be observed in connection with the
making of the decision were not observed”
Note – for a long time, Courts distinguished between mandatory (‘must’) and directory (‘may’) rules. Breach of the former
would lead to UV, while breach of the latter was open to interpretation. The HC eventually held this distinction was
inappropriate, and a different approach is now used, looking at other factors like the subject matter of the case and consequences
to the parties.
Principles:
In determining whether a body has breached procedural UV, the Court must look towards Parliament’s intention, determining
whether it intended to invalidate any Act which failed to comply with the procedural condition. In answering this question, the Court
must ascertain the Act’s purpose, taking into account factors such as:
a) The language of the Statute (so „must‟ or „may‟ is still relevant);
b) The subject matter and objects of the Statute; and
c) The consequences to the parties of a finding that actions done in breach of the condition are void (if excessive inconvenience would be
cause by invalidating the Act, particularly if it is a minor procedural requirement, the rationale is that Parliament would not have intended that to occur).
Parliament is unlikely to have intended to invalidate an Act which fails to comply with a procedural condition when:
a) The statute simply regulates administration, as opposed to mandates procedure;
b) The conditions are not rule-like, and cannot be easily identified or applied. The more policy like a rule is, the less likely it will be
construed as a procedural requirement;
c) The likely consequences of the Act would cause much inconvenience to the parties or public who acted in reliance of the Act.
Parliament is unlikely to have intended inconvenient consequences. Just because a decision maker fails to consider an international
treaty, the decision will not necessarily be invalid. The subject matter, scope of the Act and any inconvenience to the
applicants/public has to be considered before invalidation is made (Project Blue Sky v ABA (1998)).
RE: Refugee Cases – the word ‘must’ in the statute was strictly construed, leading to invalidity of the decision (re: written
notice to applicant but provided orally) (SAAP v Minister for Immigration (2005). ‘Must’ was construed leniently and the
decision stood (letter was sent to parents, not fluent daughter; also, entire family appeared at hearing, so written notice was not essential).
NARROW UV – GROUND 3: IMPROPER DELEGATION
Theory: There is a common law presumption against delegation: in conferring a
power upon a particular officer, Parliament is presumed to have intended that it
should be exercised by that officer, and not handed over to someone else. However,
the presumption can be varied by statute. Almost all statutes expressly permit senior
officials to delegate many of their powers. Most problems arise when a delegation is
not made, or not made correctly.
Codification: ADJR Act, ss. 5(1)(d); 6(1)(d) – “Delegation not authorised by statute”
Principles: Delegation in the administrative context occurs when the decision maker,
usually the Secretary of a Department, passes authority to decide to another person,
usually to someone junior. There are different categories of delegation: 1) an express
power to delegate; 2) an implied delegation; and 3) the agency/alter ego principle: the
principal (Minister) has influence over the agent (delegated person). When an agent
signs a decision, they don’t sign it in their name, but in the name of the Minister.
Implied Delegation - If there is no express power to delegate, the Court may still imply
delegation after considering i) the subject matter, ii) the purposes and objects of the
statute, iii) the character of the power which is conferred, iv) the exigencies of the
occasions which may arise with respect to its exercise, and v) other relevant
considerations. Large bodies making a number of different decisions may require
expansive powers of delegation. The more mundane a decision, the more likely it is that
courts will imply a power of delegation. The more severe a decision, the less likely it is
that courts will imply a power of delegation (Foster v University of Sydney (1963).
Agency/Alter Ego Principle – the common law recognises that in certain cases, agents
can act in the name of a principal. To validly establish agency, it must (a) be shown
that it is warranted, and (b) be ensured that when acting as an agent, the agent signs in
the name of the superior. By contrast, under delegation, the delegate acts and signs in
their own name.
Because Ministers have a special position of constitutional responsibility, as well as the
ability to carry out multifarious and complex tasks, administrative necessity means they
have the power to carry out decisions and act via agents (Carltona v Commissioner of
Works (1943) – UK Case). When a Minister is entrusted with administrative functions
he may, in general, act through a duly authorised officer of his Department. A power
whose exercise will likely adversely affect the rights of individuals points towards the
notion of the Minister acting personally. Despite an express power of delegation, agency
can still be applied because of the notion of practical administrative necessity. Practical
administrative necessity allows for a Ministerial delegate to act via agency. As agency is a
separate principle to delegation, it will not be an impermissible sub-delegation, even
where sub-delegation is impermissible (O’Reilly v State Bank of Victoria (1983) –
AUS Case). If a person acts as a delegate, they have to sign as a delegate. If a person
acts as an agent, they have to sign as an agent. If a delegate does not sign as a delegate
but as an agent, their decision will be invalid for UV because they will have denied the
proper source of their power. If an agent signs as a delegate, this will too be invalid for
UV. An agent derives their power from the principal, and has to act under the principal’s
name and authority in making their decision. A principal has more influence and control
over an agent. An applicant needs to know who made the decision in their application. If
an applicant thinks that someone senior made the decision, they are less likely to seek
review, as they may incorrectly think they cannot appeal to a higher official. Conversely if
they are junior, an applicant may be more likely to challenge the decision (Re
Ombudsman (1979)).
Broad/Extended UV: Broad UV occurs when a decision maker acts within scope, but makes some
legal mistake within the scope of that power. In these circumstances, the decision maker will be
considered as having abused or exceeded their power.
BROAD UV – GROUND 1:
IMPROPER PURPOSE/BAD
FAITH
Theory: Improper purpose is argued
where the decision maker has exercised
the power for reasons other than for which
the power was conferred. Bad faith is
argued where the decision maker was
motivated by corruption, dishonesty,
malice etc. Neither ground is commonly
argued.
Codification – Improper Purpose: ADJR
Act, ss. 5(1)(e); (2)(c) & 6(1)(e); 2(c) – “An
exercise of power for a purpose other
than for a purpose for which the power
was conferred”.
Codification – Bad Faith: ADJR Act, ss.
5(1)(e)(g); (2)(d) & 6(1)(e)(g); 2(d) – “An
exercise of a discretionary power in bad
faith”.
Principles: A statutory power can only be
exercised for the purpose(s) for which it was
conferred. If a statutory power is exercised
for an ulterior purpose, it will be considered
as being exercised for an
improper/unauthorised purpose and
thereby invalid (R v Toohey; Ex parte
Northern Land Council (1981)). The
Court distinguishes between dominant and
ancillary purposes. When the dominant
purpose is proper, the exercise of power will
be valid, even if influenced by subsidiary
improper purposes, such as
profit/economic considerations (Samrein v
Metropolitan Sewerage (1982)). In cases
of mixed purposes (proper and improper), it
determine whether the improper purpose is
substantial. An improper purpose is
substantial when no attempt would have
been made to exercise the power if the
ulterior purpose was not present (‘but for the
ulterior purpose, would the decision have been
made?‟) (Thomson v Randwick (1950)).
BROAD UV – GROUND 2:
RELEVANT/IRRELEVANT CONSIDERATIONS
Theory: When decision makers take account of matters in the
exercise of a power, they must consider all the matters which are
relevant, ignoring any matters which are irrelevant. Determining
what is relevant and what is irrelevant depends on an examination
of the scope and purpose of the statute.
Relevant considerations – test: the applicant must show the
consideration was a mandatory consideration, not discretionary.
Irrelevant considerations – test: Determining based on the
wording of the statute.
Codification: ss. 5(1)(a)(b) & (2)(a)(b); 6(1)(a)(b) & (2)(a)(b).
Principles: Where an Act gives wide discretion to a person of body to take
into account a range of considerations, Courts will usually be reluctant to
intervene. Parliament affords wide discretion to allow the decision maker to
determine what is relevant and irrelevant. However, where a person or body
is charged with the administration of contributions by its members, that body
owes a duty to its members to conduct that administration in a businesslike
manner, with reasonable care, skill, caution and with due regard to the
interests of those members and contributors. In these circumstances, the
body stands in the position of trustee for its members and contributors.
Abstract or philosophical views may constitute irrelevant considerations
(Roberts v Hopwood (1925)). RE: Relevant considerations:
Considerations limited to those the decision maker is bound to take into
account. This is based on statutory interpretation and analysis of the subject
matter, purpose and object of the statute. What did Parliament intend in giving the
power? RE: Expressly stated factors: When factors are expressly stated in a
statute, consider whether they represent an exhaustive or inclusive list. If
exhaustive, only those factors must be taken into account. If inclusive, there
may be other factors the decision maker can take into consideration. This will
depend on how the statute is worded. If the discretion set out is unconfined,
the relevant considerations are also unconfined. RE: Insignificant
Considerations: If an insignificant consideration is taken into account, this
may not necessarily lead to invalidity. The test is whether the consideration
materially affected the outcome of the decision. RE: Weight of factors: If
there is no statutory indication of how much weight to place on a
consideration, it is for the decision maker, not the court, to determine the
appropriate weight to be given to that consideration. But if a decision maker
gives insufficient weight to an important factor, or excessive weight to an
insignificant factor, an error of law may still be argued under the ground of
unreasonableness. RE: Policy considerations: ‘Due allowance’ may be made
to account for the fact a Minister may take into account broader policy
considerations. The subject matter, scope and purpose of almost every statute
indicate the decision maker is intended to decide on the most current material
available to him/her. Failure to take into account the most recent available
information constitutes an error of law under failure to take into account a relevant
consideration (Peko Wallsend (1986)). A decision maker must give ‘genuine
and proper consideration’ to relevant factors (Hindi v Minister (1988)).
BROAD UV – GROUND
3:
UNREASONABLENESS
Theory: Decision makers
cannot make decisions which
are so unreasonable that a
decision maker would not
have so decided. The test for
unreasonableness is quite
strict and of a high threshold,
particularly where it is applied
in a literal sense. However, it
is still commonly invoked as a
catch all ground when the
grounds of natural justice and
failure to take into account a
relevant consideration fail.
However, it has been criticised
for straying too far into merits
review.
Codification: ADJR Act, ss.
5(1)(e) & (2)(g); 6(1)(e) &
(2)(g) – “An exercise of power
so unreasonable that no
reasonable person could have
so exercised the power”
Principles: Unreasonableness
has a high threshold. Only those
decisions ‘so absurd that no
reasonable authority could ever
have come to it’ will satisfy the
ground of unreasonableness.
Courts are reluctant to adjudicate
on unreasonableness as it often
strays into merits review. The
courts are not supposed to look at a
matter afresh, substituting their
decision for that of the decision
maker (Wednesbury Case (1948)
– UK Case). Issues of irrationality
may be argued as an adjunct to
unreasonable; i.e. irrational and
unintelligible decisions are akin to
unreasonable decisions, and
therefore UV (Minister for
Immigration v Li (2013)). “A
decision which is „unreasonable‟ is a
decision so outrageous that no sensible
person could have arrived at it” (Lord
Diplock, CCSU).
BROAD UV – GROUND 4: NO EVIDENCE
Theory: No evidence is one ground of judicial review where
there is a clear difference between the common law and ADJR
Act –
Common Law:
Theory: Under the common law, a decision made under statute
will be invalid if there if there is a lack or absence of evidence to
satisfy an essential element of the decision. A decision will not
be invalid under no evidence if there is some evidence to
support the statutory element, even if the evidence is
questionable in its adequacy or sufficiency.
Principles: Even if there is minor but insufficient evidence for a
finding of fact, the Court will not intervene. Only when there is
absolutely no evidence to justify a particular conclusion is judicial
intervention justified (R v Australian Stevedoring (1953).
Evidence can still be challenged under the common law if it is not
logically probative. The Court must still look at the soundness of
the evidence. Findings of fact cannot be based on mere suspicions
or speculations (Pochi (1970)).
ADJR Act:
Theory: Under the ADJR Act, the test includes a
reasonableness component (s. 5(3)(a)), or a test of negativing a
fact by presenting positive evidence to negative it (s. 5(3)(b)) –
1. ‘Reasonableness’ – where there was a particular requisite
matter which the decision maker was not reasonably satisfied as
having been established.
2. ‘Negativing a Fact’ – evidence must negative the finding of
fact by the decision maker.
Codification: S. 5(1)(h); s. 5(3) (*read legislation*)
Principles: The test for common law no evidence is total absence of
evidence. Rationally probative evidence, or faulty logic, will not amount to
an error of law and will not constitute ‘no evidence’ under common law.
While s. 5(1)(h) extends or expands the common law, ascribing a lesser
burden than the common law in proving the ‘no evidence’ test, the effect
of s. 5(3) is to severely limit the area of operation of the ground of review
in s. 5(1)(h) (ABT v Bond (1990)). The word ‘based’ in s. 5(3)(b) requires
the decision maker’s error about the particular fact to have been critical to
the decision; that is, the decision would not have been reached without the
particular factual finding. When the same finding would have been reached,
regardless of the facts (i.e. where the decision was not ‘based’ on those
particular facts), the original decision will not be invalid (Minister for
Immigration v Rajamanikkam (2002)).
RE: s. 5(3)(a): S. 5(3)(a) will only be made out where the establishment of
a particular fact is a pre-condition in law to the decision. When the decision
maker has to take into account a number of factors, and is not limited to
those pre-conditional facts, the establishment of the fact will not amount
to a necessary pre-condition and s. 5(3)(a) will not be established.
RE: s. 5(3)(b): More than a mere lack of evidence must be shown to make
out s. 5(3)(b). An applicant under s. 5(3)(b) has to negative the finding of
fact with positive evidence (TV Capricornia v ABT (1986)).
BROAD UV - GROUND 5:
INFLEXIBLE
APPLICATION OF POLICY
Theory: Administrative officials
are often guided by government in
exercising their powers. However,
these same officials may become
unduly reliant on policies,
exercising little or no independent
judgment when making decisions.
Inflexible application of policy
occurs when the decision maker
applies policy in a rigid,
mechanical way, eliminating all
discretion in application.
Codification: ADJR Act, ss. 5(1)(e)
& (2)(f); 6(1)(e) & (2)(f) – “An
exercise of discretionary power in
accordance with a rule or policy
without regard to the merits of the
particular case”
Principles: A decision maker
exercising statutory discretion is allowed
to adopt a rule or policy to guide his/her
assessment of applications, but has to
keep an open mind to any applicant
seeking to argue their case is a valid
exception to that policy. However, when
a statute confers broad power and does
not set out policy, the decision maker is
allowed to adopt stringent policy to guide
their decision making (British Oxygen
(1971) - UK). Sometimes, Parliament will
intend for a decision maker to exercise
discretion, despite the Act or
circumstances suggesting otherwise. If
that decision maker fails to exercise
discretion, but rather strictly decides in
accordance with external or government
policy, they will have come to a UV
decision. The Court is going to be heavily
influenced by factors such as the power
being exercised, the particular statute, the
nature of the applicants likely to be
adversely affected, and the effect of the
power’s exercise. Sometimes they will
take a more relaxed approach, other
times not. Each case must be considered
in its context (Rendell v Release (1987)
– AUS).
BROAD UV – GROUND 6: ACTING UNDER
DICTATION
Theory: As a general rule, the body upon which discretion
is conferred must exercise that discretion, and not act in
accordance with the orders of another person. Acting under
dictation applies when a decision maker does what
someone else tells them to do, usually a superior, instead of
exercising the discretion themselves. However, the Court
accepts that in reality, decision makers take into account
government policy, particularly from heads of departments
and ministers.
Codification: ADJR Act, ss. 5(1)(e) & (2)(e); 6(1)(e) & (2)(e)
– “An exercise of personal discretionary power at the
direction or behest of another”
Principles: Where discretion is conferred on a public servant,
government policy will not always be an extraneous consideration to
the exercise of discretionary power. A decision maker can take into
account some matter of general government policy, so long as they
arrive at a decision of their own. Senior public servants are permitted
to take into account government policy without infringing the ground
of acting under dictation. A senior public servant, such as the
permanent head of a government department, is bound to obey the
directions of their Minister and take into account departmental policy
(Windeyer J) (R v Anderson; Ex parte Ipec Air Pty Ltd (1965)). A
decision made by a public servant at the direction of his/her Minister
does not constitute acting under dictation. In fact, a public servant is
bound to carry out government policy, especially in areas of vital
importance to the wellbeing of Australia. It would not be wrong for a
senior public servant to give conclusive weight to government policy.
Dissent: While a decision maker may have regard to government
policy, they still have to decide for themselves whether the policy is
decisive to the application. The decision maker is not entitled to
abdicate their responsibility for making a decision by merely acting
on the direction of the Minister (Mason J) (Ansett v Cth (1977)). It is
permissible for an authority to take into account Ministerial policy
and the views of the Minister in coming to their decision. However,
this will depend on the nature of the decision and the agency in
question vis-a-vis its statutory function, its independence under the
statute, and the nature of the relationship between decision maker
and Minister (Bread Manufacturers v Evans (1981)). The meaning
of ‘dictation’ is to act at the behest of another person. ‘Behest’ is akin
to command, rather than request. A decision maker has to show
he/she exercised a real exercise of discretion, not an acceptance by
the decision maker of the discretion of another person (Telstra
Corp v Kendall (1995)). Maritime officers, and other officers
operating under a chain of command, exercise their powers in the
context of that chain, governed by orders and instructions from
superiors. They are bound to follow such orders. Implementing them
will never amount to acting under dictation. The more personal a
decision, the less likely it will be amenable to a higher direction. That
is to say, the more personal the decision, the more discretion must be
exercised (CPCF v Minister for Immigration (2015)).