1.4.5 JR Grounds--Improper Purpose Grounds

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JR Grounds—Improper Exercise of Power Decision: s5(1)(e) ADJR | s20(2)(e) JR Conduct: s6(1)(e) ADJR | s21(2)(e) 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: (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; & (2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: [considerations] (a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power; [purpose] (c) an exercise of a power for a purpose other than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad faith; [discretion] (e) an exercise of a personal discretionary power at the direction or behest of another person; (f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; [others] (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; (h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and (j) any other exercise of a power in a way that constitutes abuse of the power. Andrew Trotter LWB335 Administrative Law R ELEVANT & IRRELEVANT C ONSIDERATIONS • Considerations can be, according to statutory construction— o Irrelevant → must not be considered o Relevant but discretionary → can but need not be considered o Relevant and mandatory → must be considered Improper Exercise of Power Decision: s5(1)(e) ADJR | s20(2)(e) JR Conduct: s6(1)(e) ADJR | s21(2)(e) JR Failure to take relevant consideration into account: s5(2)(b), s6(2)(b) ADJR | s23(b) JR failing to take a relevant consideration into account in the exercise of a power; [→Broad JE: Animisic] [→Irrelevant Considerations] ← Mandatory relevant considerations must be considered • Minister may delegate some functions to a fact finding inquiry o BUT must give proper, genuine & realistic consideration to merits: Tickner v Chapman (1995) (hindmarsh bridge—staff read report but not Minister) Peko-Wallsend (letter held by department) • Weight—up to decision-maker—court can only say whether should consider at all: Peko- Wallsend per Mason J • Ex parte communications—mandatory if relevant, credible and not insignificant & adequate reason given for not disclosing earlier: Peko-Wallsend per Brennan J (inclusion of Kakadu on protected list—mining companies contesting—letter from mining company with relevant information  should have been considered) o Minister must ensure he has up-to-date knowledge to make a decision: Peko-Wallsend per Brennan J (letter from mining company providing relevant information  must be considered)  in two-stage decision making process → final decision-maker must update information  No positive obligation to unearth relevant material, but must consider all relevant information available • Constructive knowledge—if communications in possession of ministerial department: Peko- Wallsend (minister didn’t know of letter—but held by department  mandatory relevant consideration) o Brennan J conjectured that providing the letter privately to the Minister after full opportunity to give it in public hearings might create an estoppel against the mining coy to stop them from using it) o ALSO NJ—if had used, should have exposed to other side to comply with natural justice requirements • Not specified in legislation → may not be mandatory: Foster v Minister for Customs and Justice (2000) (extradition to UK for fraud—regulation says not to extradite where ‘trivial offence or other sufficient cause’—submission that failure to consider that already spent time in prison, unlikely to be further sentenced  not mandatory—not in legislation) Andrew Trotter LWB335 Administrative Law Improper Exercise of Power Decision: s5(1)(e) ADJR | s20(2)(e) JR Conduct: s6(1)(e) ADJR | s21(2)(e) JR Considering irrelevant considerations: ss 5(2)(a), s6(2)(a) ADJR | s23(a) JR taking an irrelevant consideration into account in the exercise of a power [→ also Broad JE: Animisic] [→Relevant Considerations] Relevant ↔ Irrelevant To determine whether relevant— 1. determine if any mandatory considerations listed in section that gives the power + determine if list inclusive or exhaustive 2. determine any mandatory or discretionary considerations that arise by implication from the subject matter, scope and purpose of the Act • Can use extrinsic materials (second reading speech etc) to determine: AIA ← Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) per Mason J, Gibbs CJ and Dawson J agreeing; Brennan J (inclusion of Kakadu on protected list—mining companies contesting—letter from mining company that included area for mining → minister & government changed—not considered  should have been considered || BUT cabinet decision not justiciable [→intro notes]) • If wide discretion with little guidance for the decision-maker → only considerations which lack bona fides are irrelevant: Murphyores Incorporated Pty Ltd v The Commonwealth of Australia (1976) (denied licence for export sand miners due to environmental impact—Customs Act said considerations depend on nature of export/import  wide discretion → relevant) • Ministerial decisions → wider discretion due to public policy considerations: Botany Bay City Council v Minister for Transport and Regional Development (election promises  relevant); Murphyores o But not unlimited: Padfield (own political concern about election  irrelevant) • Can’t make decisions for pure political gain: Padfield v Minister for Agriculture, Fisheries and Food [1968] (fixing milk prices under marketing scheme—complaint—decision not to put complaint to board—concern about raising milk prices before election  irrelevant—had discretion but must exercise it within confines of the law) • Consistent with scheme of the act → probably relevant: McCasker v Queensland Corrective Services Commission (1998) (decision to grant remission of sentence—consideration of risk to community  relevant) • General social considerations—an old decision: Roberts v Hopgood (1925) (decision to pay women same as men—based on ‘eccentric principles of socialist philanthropy’  ‘feminist ambitions to secure the equality of sexes in the workplace’ irrelevant consideration → invalid decision || obviously would be decided differently now) Effect Irrelevant consideration → only a decision made for an improper purpose if the consideration was significant in the reasoning: Peko-Wallsend • not a merits review: Mason CJ in Peko-Wallsend • courts not to decide issues of weight—only whether something was taken into account or not: Bruce v Cole Andrew Trotter LWB335 Administrative Law IMPROPER PURPOSE Improper Exercise of Power Decision: s5(1)(e) ADJR | s20(2)(e) JR Conduct: s6(1)(e) ADJR | s21(2)(e) JR Purpose other than that intended: ADJR s5(2)(c), s6(2)(c), JR s23(c) an exercise of a power for a purpose other than a purpose for which the power is conferred; (Higher standard & more difficult to establish than relevant/irrelevant considerations) Test: Municipal Council of Sydney v Campbell (1925) (council with power to resume land to widen road etc—actual purpose to sell at profit  not express purpose → improper)  Purpose stated in Act → power must be exercised for that purpose or purpose implied from the subject matter, scope or purpose of the Act  No purpose stated → permissible purposes are those that are implied from the subject matter, scope or purpose of the Act • Suggestion that purposes only improper if— o inconsistent with scope and purpose of the Act o whimsical or personal: R v Toohey; ex parte Northern Land Council (1980); Padfield v Minister of Agriculture, Fisheries and Food [1968] • Examples— o Not within concern of the Act: Mixnam Properties Case (1965) (caravan licensing— power to impose conditions—rent conditions imposed  invalid || not implied as purpose of act not concerned with social/economic circumstances in caravan parks) o Not within spirit of the Act: Arthur Yates v Vegetable Seeds Committee (power to regulate seeds in war effort—body grew own seeds  invalid—power to organise, not to compete & eliminate competition) o Inconsistent with role of body: Kwiksnax v Logan City Council [1994] (market stall licensing—wide discretion to make by-laws—decision to exclude non-local traders  invalid ← basically just trying to get rid of mobile food vans ↔ local government should encouraging free trade) o Inconsistent with objective of the power: Schlieske v MIEA (deportation = back-door for extradition  invalid—different purposes—remove from Australia ↔ return to other country) o Back-door way of using a certain power conferred: Schlieske v MIEA (deportation for extradition) Multiple purposes for decision • Substantial purpose test—decision invalid if improper purpose is a ‘substantial’ purpose: Thompson v Randwick Corporation (1950) (decision to acquire land—purpose = improvement of local environment | also making profit—bought too much, sold off at profit  invalid) o Need not be sole purpose o Purpose is substantial purpose if decision wouldn’t have been made without it • Clarified—Substantial purpose if ‘true or dominant’ purpose—but for test: Samrein v Metropolitan Water Sewerage & Drainage Board (1982) (boards acquiring land—purpose = for own purposes | but also to rent out to improve financial position—bought land in excess of own needs to rent  valid ← rent of excess improper purpose but not dominant purpose—not economic or desirable to build a smaller office building on the block—would have acquired all land even if not going for rent) Decision made by multiple people Andrew Trotter LWB335 Administrative Law Decision made in committee → invalid only if illegitimate purpose in the minds/voices of some had a real causative effect or was critical to the outcome: IW v City of Perth (eg majority of the majority had an improper purpose || evidentiary problems in minutes at board meetings) Andrew Trotter LWB335 Administrative Law Improper Exercise of Power Decision: s5(1)(e) ADJR | s20(2)(e) JR Conduct: s6(1)(e) ADJR | s21(2)(e) JR Bad faith: ADJR s5(2)(d), s6(2)(d), JR s23(d) an exercise of a discretionary power in bad faith [→fraud | irrelevant consideration] [→ also Broad JE: Animisic] Must show dishonesty, corruption or fraud: SSBS v MIMA (2002) (anti-taliban Afgani applying for protection visa—refused by minister & RRT ← Taliban no longer in power  not bad faith) • No comprehensive definition (many ways in which bad faith can occur) • Usually not a stand alone ground, tacked onto other issues • Rarely made out— (SSBS v MIMA; Westminster Corp v London & Northwestern Railway (1905)) o Not to be made lightly—must be clearly alleged and proven o Only in rare and extreme cases o The more serious the consequences of an adverse decision, the worse the decision maker’s behaviour must be and the more evidence needed: SSBS v MIMA Protection Visa Cases (necessary because migration act removed other grounds) Not Bad Faith: SSBS v MIMA (2002) (anti-Taliban Afghani applying for protection visa—refused by minister & RRT ← Taliban no longer in power  not bad faith) Bad Faith: • Ignoring information & closed mind: SBAU v MIMA (Iranians applying for protection visas— religious minority—incident showed imminent harm—rejected  ignored information—d-m had closed mind—merely denying claims of family → bad faith) • Reckless disregard—not bona fide attempt to exercise jurisdiction: SCAZ v MIMA (statute required 7 days notice of hearing date—given 5 days—sought adjournment—told day before that would go ahead—rejected protests  bad faith) Indicia (= 9 points on powerpoint) • May be shown through— (SSBS v MIMA) o an extreme improper purpose or o an extreme denial of natural justice • Relevant considerations— (SSBS v MIMA) o Presence or absence of honesty (crucial) o Often involves personal fault on the part of the decision marker. o Recklessness sufficient—need not demonstrate the decision maker knew the decision was wrong • Not sufficient— (SSBS v MIMA) o mere error or irrationality o errors of fact or law and illogicality • Demonstrating by inference— (SSBS v MIMA) o from acts or failures to act of tribunal | extent to which reasons show approach to the decision Andrew Trotter LWB335 Administrative Law M ISUSE OF DISCRETION Improper Exercise of Power Decision: s5(1)(e) ADJR | s20(2)(e) JR Conduct: s6(1)(e) ADJR | s21(2)(e) JR Personal Discretion at behest of another: ADJR s5(2)(e), s6(2)(e), JR s23(e) an exercise of a personal discretionary power at the direction or behest of another person Public authority with a discretionary power must exercise the discretion itself, and not at the behest of another: Robcarelli v Duplessis (1959) (Canada); Stepney Corporation (1902) UK (council allowed Treasury to determine compensation payable  abdicated power) Overborne by Minister [→Rule or Policy] Decision-makers can take government policy | ministerial direction into account: ← Ansett v Cth (decision to allow another company to import aircraft—by Secretary of department  may make decisions in line with government policy—likely to be a determinative factor) ← R v Anderson; ex parte Ipec-Air Pty Ltd (1965) (denying licence to import aircraft—DG of Civil Aviation spoke to minister—said two-airline policy—rejected application for licence on that basis  legitimate to refer to gov policy || may have been decided differently if 2 airline policy not such a big issue) o could take policy into account: Taylor & Owen JJ  Gov policy may be relevant—but here overborne: Kitto & Menzies JJ (power conferred on DG in order to keep politics out of the decision) o Only option to comply with policy: Windeyer J • Determined by degree of involvement of minister in decision-making under statute: R v Anderson; ex parte Ipec-Air • Statute involves Minister in decision-making process → allowed to get information from minister as well as other sources: Bread Manufacturers of NSW v Evans (1981) HCA (Setting max price for bread—Minister had power direct enquiry | prohibit publication | to veto decision  had not abdicated) o Provided did not act in capricious manner • Minister given power to veto → appropriate to consult with minister: Bread Manufacturers of NSW v Evans (1981) per Gibbs CJ (NSW Prices Commission fixing max price of bread— allegation that abdicated decision to minister—minister had power to veto any decision  sensible to consult minister rather than make a decision he’d veto anyway || rest of majority: Commission not independent body, but had not abdicated on facts) • Minister given power of absolute direction → decision maker will have to follow directions given: Nemer v Holloway (2003) (power of direction in AG ↔ DPP Act providing that DPP independent of government  AG overrode DPPA) Overborne by someone other than the Minister ← Less liberal Test— whether the decision maker truly exercised an independent discretion: Telstra Corp v Kendall (Phone lines disconnected under Telecommunications Act to stop offences  does not show that discretion completely overborne → valid) • Inference can be drawn from d-m exchanges with minister & others: Nashua Australia Pty Ltd v Channon (said in conversation that ‘instructed’ to make a particular decision—wrote consistent file note  overborne) Andrew Trotter LWB335 Administrative Law Improper Exercise of Power Decision: s5(1)(e) ADJR | s20(2)(e) JR Conduct: s6(1)(e) ADJR | s21(2)(e) JR Under rule or policy without regard to merits: ADJR s5(2)(f), s6(2)(f), JR s23(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case Can develop a general policy ↔ can’t blindly apply it without considering the merits of the case: British Oxygen Co Ltd v Minister for Technology [1971] HL (power to assist with purchase of equipment— policy not to assist unless equipment
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