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Lecture

Week 7 - Ground - Not Authorised by Enactment

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
GROUND OF JR – Decision was not authorised by the enactment State Grounds for Judicial Review: Here it is necessary to examine the following grounds: • [list grounds] Considering each… PROCEDURES REQUIRED BY LAW WERE NOT OBSERVED: The [s5(1)(d) AD(JR) Act (Cth) / s20(2)(d) JR Act (Qld)] provides that where the decision was not authorised by the enactment under which it was purposed to be made; it will create a ground of review. Here the enactment in question is _____________ namely sections ___________. Here [applicant] may argue [decision-maker] breached the rule against delegation as they acted outside the scope of their power by making an unauthorised delegation to [officer] who purported to make the [decision/part of the decision]. COMMON LAW PRESUMPTIONS: Whether authorised question of statutory construction: London County Council v AG. It is presumed that Parliament, in conferring powers, intends them to be exercised in accordance with fundamental tenets of the legal system: Bropho v WA. Unless expressly and unambiguously stated in the statute: Coco v The Queen. 1. Depriving citizens of property rights without compensation: Mixnam’s Properties v Chetsey 2. Levying taxation without authority of Parliament: AG v Wilts United Dairies 3. Depriving citizens of common law rights a. Freedom from trespass: Coco v The Queen b. Depriving citizens of recourse to the courts: Plaintiff s157/2002 v Cth EXAMPLE Coco v The Queen Police had raided a factory of Coco, and had planted a listening device under a Qld statute, gained under a judge. Evidence obtained against Coco, to be used in prosecution for tax evasion. He challenged the validity of warrant for the Supreme Court judge. HELD: Decision to enter private property was not authorised by the legislation - Qld statute didn’t provide for trespass, and courts wouldn’t interpret that way either. Because CL says personal property is sacrosanct, presumed that there wasn’t a right to enter onto property, unless stated expressly within statute. EXAMPLE Plaintiff S157/2002 v Cth In 2001, s474 of the Migration Act 1958 (Cth) states that a ‘privative clause decision’ shall not be reviewed or called into question . With parliament expecting that the Hickman test would be applied to it, thus allowing the decisions falling outside that area would be allowed. The parliament also enacted s486A, which limited appeals to the High Court to 35 days after the actual decision was made. The Plaintiff sought to appeal against a decision by the Refugee Review Tribunal, that he was not a refugee as defined in the Migration Act (and informed by the principles of the UN Convention). HELD: When constructing a privative clause, courts will generally consider: • International obligations – and interpret in accordance with those norms; • That parliament does not seek to curtail right unless it expressly does so; • That Australia is based on the rule of law Held the privative clause not to exclude actions to the courts in terms of appeals to the HCA. DELEGATION 1. What is the rule? The rule against delegation provides that where a statute confers a power on a particular person that power must only be exercised by that person: Peko-Wallsend. IF Legislative or Judicial Power Delegated: Courts will strictly enforce this rule when there is an attempted delegation of quasi-judicial or legislative power. • Legislative functions: will be allowed, when the delegated power is also vested in the same body as to exercise it: Hawke’s Bay Raw Milk Producers Co-Operative Co Ltd v New Zealand Milk Board • Judicial functions - Courts will insist that the essence of the power is exercised by those upon whom the power is conferred, with only mild powers to be delegated: Vine v National Dock Labour Board IF Administrative Power Delegated: Here, the nature of the powers confer on the minister are administrative, this is relevant to the extent of implied delegation permitted. In the present case there has clearly been a delegation of some functions under s ______ to [officer]. The issue for determination is whether this was authorised under [enactment]. 2. Express Delegation? Here the statute does/not expressly provide for delegation to [officer]. IF IS express delegation in Act: As there is an express authorisation to [officer] it is necessary to determine whether the scope of that power conferred on [officer] extended to [act done]. IF NO express delegation in Act: Carltona Principle: a Minister entrusted with administrative functions has an implied power to, in general act through a duly authorised officer; even in the absence of express delegation: Carltona v Commissioners of Works. This principle exists because the functions of a Minister are generally so multifarious that the business of government could not be carried on if he were required to exercise all powers personally: O’Reilly v State Bank of Vic Commissioners. (Go to 3.) 3. Implied Delegation? Whether the enactment has impliedly authorised delegation is a Question of Statutory Construction: O’Reilly v State Bank. Regard must be had to: Peko-Wallsend a) the language, scope and objects of the legislation; b) the subject matter; and c) the exact nature of the power being delegated, - Application - a) The language, scope and objects of [act] IF “where the [minister/decision-maker] is satisfied”: Here similarly to in Peko-Wallsend the words are “where the minister is satisfied”. Mason J there held that those words when read in the context of the legislation required the Minister to act personally. However, [decision-maker] in the present case may argue that the words in this context empower the Minister at his discretion to undertake any means within his power to fulfil the function. Therefore regard must be had to the other factors. IF personal references to the [minister/decision-maker]: Here similarly to in Peko-Wallsend there are specific references to the Minister. These references provide [applicant] with a strong argument based on Peko Wallsend that the parliament intended the power to be exercised by the repository personally – and was not to be delegated. IF above N/A: Based on the language, scope and objects of the [act], in particular, _________. It would appear that delegation was/wasn’t authorised. b)
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