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Lecture

Week 8 - Ground - Improper Exercise - Irrelevant Considerations

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
GROUND OF JR – IMPROPER EXERCISE – Relevant Considerations State Grounds for Judicial Review: Here it is necessary to examine the following grounds: • [list grounds] • Considering each… (In particular consider – Relevant Considerations) IMPROPER EXERCISE OF POWER (Copied in other sections – only mention once) [5(e) and 6(e) AD(JR) Act (Cth) OR 20(e) and 21(e) JR Act (Qld)] provide an umbrella term for a number of self- contained grounds in [5(2) & 6(2) AD(JR) Act (Cth) OR 23 JR Act (Qld) in which an exercise of power can be reviewed on the grounds of improper exercise of power. 1. HAS [DECISION-MAKER] TAKE INTO ACCOUNT IRRELEVANT CONSIDERATIONS? [5(2)(a) and 6(2)(a) AD(JR) Act (Cth) OR 23(a) JR Act (Qld)] provides that an application for judicial review may be brought where the decision maker took into account irrelevant considerations. These provisions mirror the CL. Issue whether the [decision-maker’s] consideration of _________ was an irrelevant consideration. (N.B. This is the same as 2. In Relevant Considerations) 2. IS THE CONSIDERATION RELEVANT? Two step process of statutory construction to determine what factors [decision-maker] is bound to consider in making the decision is determined by construction of the statute conferring the discretion: Peko-Wallsend. Step 1) Determine if any mandatory considerations listed in section that gives the power & if list inclusive or exhaustive: IF statute SILENT on considerations to be taken into account: Here, the [statute] does not refer to the factors which the [decision-maker] is bound to consider and therefore he will only be bound to consider matters by implication from the subject-matter, scope and purpose of the Act: Peko-Wallsend (Mason J). IF statute clearly DISCRETIONARY i.e. “where the Minister so directs/where the Minster is satisfied”: The words in s ____ “___” are plainly words of discretion and not of a duty: Roberts v Hopwood. In Peko- Wallsend and in Padfield it was noted that where a statute confers a discretionary power regard is had to the subject-matter, scope and purpose of the statute to determine if the consideration was valid. IF statute EXPRESSLY states the mandatory considerations to be taken into account i.e. “must consider”: Here, the statute expressly states the mandatory considerations to be taken into account. It is therefore necessary to decide whether the enumerated factors of [list considerations] are exhaustive or merely inclusive: Peko- Wallsend (Mason J). IF merely inclusive: Here the language used namely “[all circumstances, unjust or oppressive etc”] indicate that the list of considerations are not exhaustive and therefore the Minster may be entitled to take into account considerations provided they are not limited implication from the subject-matter, scope and purpose of the Act: Peko-Wallsend (Mason J). IF exhaustive i.e. “must x, y, z and nothing else OR only x,y,z”: Here the statute states that this list is exhaustive and [decision-maker] has not failed to take these into consideration, therefore, ________. Step 2) Determine any mandatory or discretionary considerations that arise by implication from the subject matter, scope and purpose of the Act: STATE: Here, the subject matter _______, scope ___________, and purpose of the Act ___________; all lean towards the idea that there [were/n’t several] mandatory/discretionary considerations, including ______________. THEN: IF WIDE DISCRETION: Where wide discretion given with little guidance for the decision-maker, only considerations which lack bona fides will be irrelevant: Murphyores Incorporated Pty Ltd v Cth. In Murphyores, the Customs Act allowed different considerations would be relevant depending on what was attempting to be imported/exported given wide range of circumstances, what would be relevant in each situation would be very large range of material – very wide discretion given to minister. Thus environmental concerns were sufficient for sand mining; because of the wide discretion allowed by the Act. IF consideration of COMMUNITY SAFETY: In McCasker v Qld CSC, the risk to community was relevant consideration when considering whether to grant remission of sentence; because it was consistent with the scheme of act (imprisonment for commission of offences, remission for good behaviour). Similarly here, ________. IF consideration of SOCIAL IDEOLOGY / ECCENTRIC PRINCIPLES: [Here the [decision-maker] has had regard to _________ or [Decision-maker’s] decision may be seen as giving effect to his/her ideologies that ___________]. In Roberts v Hopwood, the House of Lords (particularly Atkinson LJ), made it clear that it is illegal to be guided in preference by some eccentric principles of socialistic philanthropy (in that case feminism). IF clearly irrelevant: Here it may be argued that the consideration of _____ is just that and therefore an irrelevant consideration. IF arguably relevant: Here it may be argue that when regard is had to the [purpose, scope language] of the statute that the [Minister] was entitled to consider ________. This is supported by the used of the words in the act “____”. IF MINISTER had regard to GOVT. POLICY consideration: Here the Minister has had regard to a govt policy consideration. In Roberts v Hopwood, it was held that a matter can never turn purely on a political consideration; however in Botany Bay City Council v Min for Transport, Lehane J, held that it was not wrong for a Minister to take into account promises made prior to an election, although in the context of improper purpose. IF policy = SOLE consideration: Here there seems to be no other reason other than the policy consideration in coming to the decision. By analogy with Roberts v Hopwood, here there is a strong argument that the [minister] had reasons where wrong at law and therefore are reviewable. IF policy = contributing/NOT SOLE consideration: Here policy was not the sole consideration but rather one that was taken into account. By analogy with Botany Bay CC here it is arguable that this consideration was not irrelevant for the purposes of JR. IF took into account EIS but not environmental issue: The consideration of the environmental impact statement here may be argued by [applicant] as an irrelevant consideration. However impact reports can be taken into account: Murphyores. However here the issue and subject matter of the legislation is difference from that case in that it does not concern the environment. Further, the purpose of the legislation _______. IF minister took into account INCORRECT FACT: Here the Minster has taken into account an incorrect fact. This will not be considered an irrelevant consideration. In Cairns CC v Comm of SD it was held that it could not be said that, within the meaning of s23(a), a decision-maker took an irrelevant consideration into account merely because he relied on an incorrect fact. N.B. Scope/Subject Matter/Purpose important because: Padfield v Minister of Agri. Even where a power is conferred in wide terms unfettered where there are no apparent limitations based on the decision making process, the discretion still has to be exercised in such a way as to meet the general standards of decision making – the courts will place a fetter on discretion even where this doesn’t appear in its original statutory context. 4. CONCLUSION: Therefore, [alleged
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