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Lecture

Week 9 - Ground - Improper Exercise - At Behest of Another

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
GROUND OF JR – IMPROPER EXERCISE – At the direction or behest of another 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 ON BEHEST OF ANOTHER, [name party] [Applicant] may seek to establish statutory ground of review of acting under dictation pursuant to [5(2)(e) and 6(2)(e) AD(JR) Act (Cth) OR 23(e) JR Act (Qld)] , because [decision-maker] has given effect to the direction of the [other party]. 2. Direction / Behest: Behest requires something more than a request and is more likely to be in a nature of a command or direction: Telstra Corp. Here, _________. IF MINISTERIAL CONTEXT In the ministerial context, authority in favour of decision makers being able to take account of government policy or ministerial direction, and in some circumstances bound to follow it: Ansett; R v Anderson. Although will depend on the statutory context (i.e. statutory involvement of minister in decision-making process): R v Anderson. IF Minister given power of ABSOLUTE DIRECTIONS: Where minister is given power of absolute directions, decision maker will have to follow directions given: Nemer v Holloway. In Nemer the power of direction in AG overrode more general provisions in DPP Act stating that DPP was to be independent of the government. Here, ______. Otherwise: In Bread Manufactures Mason and Wilson JJ emphasised that there was no universal formula for deciding the extent which governmental views can be taken into account. However four factors identified: 1. Nature of the statutory framework: Here the statutory frame work [provides a broad discretionary power/provides a discretionary power but also provides a role for the Minister]. IF Minister provided for in the legislation (Esp. if veto power): A similar role was given to the Minister in Bread Manufacturers. There commission had the power to fix the price of certain goods; but the Minister had power to veto decisions and to dispence with commission. HC held no dictation because framework facilitated the gathering of information from various sources including the Ministers views. Similarly here, [the Minister has a veto power which will be a pivotal consideration and is a strong indication that there is no dictation] ________. However contrary argument to this would be that existence of the right of veto means that commission might make and could make an order contrary to the Minister’s preferred position; thus existence of the veto doesn’t completely remove the possibility that the Commission still exercised its own independent judgment. IF no reference to Minister: Similarly in Ansett and Anderson there is no reference to the Minister in the legislation; however it was held that the lack of a reference to Minister still did not prevent govt. policy from being a valid consideration. Therefore here strong argument that power given here was intended to be kept free from political considerations however the result in this case will be decided with regard to the other factors from Bread Manufactures. 2. Nature of the Question being decided IF question LOW LEVEL POLICY not important: Here the decision concerns an area that could not be regarded as a ‘high level policy’ area. On this basis [applicant] may have an argument based ion the reasoning of Mason J in Ansett where his honour held that regard could be had to policy but the decision in the end must be independent. IF question HIGH LEVEL POLICY and important: Here the issues are politically sensitive and therefore there is a strong argument based on the reasoning of the majorities in Anderson and Ansett that the consideration of the ministerial direction was permissible. 3. Character of the decision-maker/Scope of Power: In Bread Manufactures Mason and Wilson gave consideration to nature of the body making the decision. In Bread Manufacturers it was relevant that the commission was given broad investigation powers and this indicated an intention that a broad range of considerations were allowed to be taken into account in the public interest. Similarly here, ______. 4. Relationship between the Minister and [Decision-maker]. Court will examine general nature of the legislation to establish the connexion between the minister and [decision-maker]. Here there [is/n’t] a close connection and inv
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