1.4.4 JR Grounds--Not Authorised by Enactment

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Queensland University of Technology

Not Authorised by Enactment Decision: s5(1)(d) ADJR | s20(2)(d) JR Conduct: s6(1)(d) ADJR | s21(2)(d) JR A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds: (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made; Process of statutory construction to determine whether decision is outside scope of the power given by the legislation: London County Council v Attorney-General [1902] (Ultra vires for a local council empowered to run trams to acquire a coy which ran both buses and trams) Guidelines to construing legislation • Statute is to be construed in accordance with the purpose of the statute: Acts Interpretation Act 1954 (Qld), s14A (interpretation that will best achieve the purpose of the Act will be preferred); AIA 1901, s15AA (provision which says that a construction which promotes the purpose or object should be preferred) Implied Limits CL presumption—unless statute expressly & unambiguously says otherwise, legislation does not intend to— • Deprive citizens of property rights without compensation: Mixnam’s Properties Ltd v Chertsey UDC [1965] • Levy taxation without authority of parliament: Attorney-General v Wilts Untied Dairies Ltd (1921) • Interfere with common law rights: Coco v The Queen (1994) HCA (police raid of factory— planted listening devices to obtain evidence to prosecute for tax evasion—Act allowed planting of listening devices  entrance onto private property not authorised by legislation—would not construe to allow trespass) • Deprive citizens of recourse to the courts: Plaintiff S157/2002 v Commonwealth (2003) (privative clause does not exclude appeals to HCA (particularly Gleeson CJ) Rule against delegating power General Rule = public authority not able to delegate decision-making power to another, without lawful authorisation • Q of Statutory Construction as to whether parliament intended power to be delegable— considering: o Language, scope and objects of the legislation; - Some delegation allowed → can delegate if within intention of parliament even if not expressly stipulated: O’Reilly v Commissioner of State, Bank of Victoria (1983) (statute allowed delegation to deputy commissioner—further delegated  practical necessity—within intention of legislature) - If express that Minister should exercise himself → no delegation: Tickner v Chapman (1995) (Hindmarsh Bridge & secret women’s business case—could delegate duties to create report | organise things etc—but had to do final consideration himself) Andrew Trotter LWB335 Administrative Law - If allowed to delegate only tasks incapable of doing (eg specialised jobs) → cannot delegate all duties: Ah Toy v Registrar of Companies (NT) (1986) (Registrar of Companies liquidating corporation—Act allowed delegation registrar incapable of doing—delegated power wholesale  circumvention) o Subject-matter of the decision-making process and the exact nature of the power being delegated - Important subject matter—less likely to be delegable: Minister for Aboriginal Affairs v Peko-Wallsend (1986) (Aboriginal land rights—minister had final power of recommendation  no delegation); Tickner v Chapman (1995) (Hindmarsh Bridge on Aboriginal land—secret women’s business) • Statutory framework provided by s27A AIA (Qld) (If an Act authorises a person or body to delegate a function or power, the person or body may, in accordance with the Act and any other applicable law, delegate the function or power to person or body by name or title of office) Exception—Carltona Principle Impractical for Minister to personally exercise every power down to minute details—would cause administrative nightmare: Carltona Ltd v Commissioner of Works [1943] • Two requirements: o Person exercising the power is someone who is the ‘alter ego’ of the Minister o Depends on whether a power would have to direct their own mind to determining it Delegation of Quasi-judicial | legislative power • Delegation of quasi-judicial or legislative power → rule strictly enforced o Legislative functions—allowed when the delegated p
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