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Lecture

Week 9 - Ground - Improper Exercise - Accordance with Rule or Policy

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
GROUND OF JR – IMPROPER EXERCISE – Accordance with Rule or Policy State Grounds for Judicial Review: Here it is necessary to examine the following grounds: • [list grounds] • Considering each… (In particular consider – Irrelevant & 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] EXERCISE THE POWER ACCORDING TO A RULE OR POLICY? [Applicant] may seek to establish statutory ground of review under [5(2)(f) and 6(2)(f) AD(JR) Act (Cth) OR 23(f) JR Act (Qld)] , because decision was made according to a rule or policy. [Applicant] would argue that [decision-maker] has gone beyond seeking guidance from governmental policy, and has blindly applied it without considering the merits of the case: British Oxygen. [Applicant] needs to show [decision-maker] considered an extra-legal rule or policy that was outside the scope and purpose of the [legislation] and or the rule or policy was inflexibly applied: Green v Daniels (Stephen J). 2. WAS THE RULE/POLICY LEGAL? The rule will offend the law if it is inconsistent with the scope or purpose of the act or omits certain considerations; changing the way the legislation works: Green v Daniels. In Green v Daniels the court questioned whether the policy was either: • A permissible guideline for establishing a delegate’s “satisfaction” under sub(c); (is it a lawful policy, in which case you can rely on the policy) OR • an impermissible substitution of departmental criteria inconsistent with statutory provisions? (if yes, you could not rely on that policy) Here, ____. IF inconsistent: In the present case there is a strong argument that the rule applied is inconsistent with the scope and purpose of [act] as ___________. IF consistent: Here the policy is consistent with the act as ____________. 3. WAS THE RULE APPLIED INFLEXIBLY? The fact that the policy is legally permissible does not relieve the [decision maker] of a duty to consider the circumstances of the case: Neat (Kirby J). Inflexible application depends on specific legislation and facts, the decision-maker must give genuine and realistic consideration to the merits of the case and keep an open mind for the exceptional case, and arguments as to why the policy should not apply: Neat (Kirby). IF DETAILED STATUTORY REQUIREMENTS: Here there is a strong argument based on Green v Daniels that the specific details in the legislation shows that the application of the policy is inflexible. Here _________. IF HIGH-LEVE GOVT. POLICY DECISION: The political realities of high level policy consideration does sometimes mean that the policy will have to be complied with: Neat Domestic Trading Pty Ltd v AWB (Gleeson CJ). Recent cases such as Ansett v Cth and R v Anderson have made it clear that it will be acceptable to make a decision inline with government policy in some situations. In particular Justice Windeyer in R v Anderson expressed the extreme view that taking account of governmental policy was the only thing the DG in that case could do. Therefore here possibly, ______. IF BROAD DISCRETIONARY POWER: Here the broad discretionary power may support [decision-maker] however applicant may still be able to establish that the policy was applied inflexibly. The facts here can be compared with [case]… IF scheme created under statute / fees paid for consideration of circumstances: Neat Domestic. That case concerned a ‘single-desk’ wheat export policy to not approve individual bulk export permits on the basis that they would come at the expense of pool growers. Because the case concerned whether judicial review was available; and only Gleeson and Kirby felt it was only they examined the issue of inflexibility. Gleeson CJ reasoned that because a commercial monopoly was created by statute individual facts needed to be considered; although he found that they were considered. Kirby J however reasoned that the fact applicants were paying fees for consideration of the permits and that there was no expression by the parliament of a rule the application was inflexible. Applying this reasoning here, ________. IF blanket policy: Yang. In that case the court held that a blanket policy of a maximum of 18 months regression for immigrants applying for student visas. The court held more regard should have been had to the circumstances of the applicant and use of a rigid arithmetic application without inquiry was inflexible. Here, ________. IF no regard for individual circumstances: Tagle. That case concerned the deportation of a person who after overstaying her temporary visa became a prohibited immigrant. Although representations were made as to why she should not be deported (family ties/marriage in Australia), the delegate simply stated that it would not change her status as a prohibited immigrant; and the Full FC held that this indicated that the delegate had failed to consider the merits of the matter. Similarly here, _____. 4. CONCLUSION With consideration of the above factors, on the balance it is likely this ground would/not be made out. CASES: EXAMPLE British Oxygen Board of Trade – power to make grants; assist with purchase of plant & equipment. However: policy – not to assist where equipment less than specified value. HELD: House of Lords - acceptabl
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