70617 Study Guide - Final Guide: Ian Callinan, Temporary Protection Visa, Refugee Review Tribunal
GROUNDS
INFLEXIBLE POLICIES:
Inflexible Policies – ties in with relevant considerations, and ultra vires, bias
• Policy can only be used as guidance they are not a directive. Do not have the same status as legislation.
• Sometimes ADM use policies to try and confine the law or to go beyond the law
• Can’t apply the rule inflexibly without regard to the merits of the particular case
• Common law: when someone is exercising a discretionary power under a statute, there must be no
fetters/restraint placed on the factors they can properly consider.
• ADJR: s 5(2)(e) and (f) – an exercise of discretionary power under policy without regard to merits of
case
o Requirements
▪ The decision maker exercises discretionary power
▪ The decision maker acts in accordance with rule or policy
▪ In so acting in accordance with the rule of policy, the decision maker failed to give due
accord to the merits of the circumstances of that case or the legal criteria (they
inflexibly applied policy); or
▪ The rule or policy was contrary to the law
TO MAKE OUT THIS GROUND:
The decision-maker exercised a discretionary power (so look for the words ‘the decision
maker/person MAY..’) AND
In exercising the discretion, the decision-maker acted in accordance with some rule or policy
AND
In so acting in accordance with the rule or policy, the decision-maker failed to give due accord to
the merits of the circumstances of that case or the legal criteria, OR the rule or policy was contrary
to law.
Green v Daniels (1977) 51 ALJR 463 – student unemployment benefits
• Inflexible rules which preventing plaintiff from unemployment benefits
• Unemployment benefits not paid to students until they returned to school the following year
• Held: the decision was invalid. All the decision-maker here did was apply an inflexible rule
which prevented Green from being considered for unemployment benefits until school
commenced. This was an inflexible application of government policy which didn’t consider
the statutory requirements or Green’s circumstances.
• Further, policy will be unlawful when it substitutes itself for the legislation or is inconsistent
with the scope or objects of the Act. POLICY CAN GIVE DIRECTION BUT CAN NOT CONSTRAIN
DIRECTION GIVEN IN LEGISLATION
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Document Summary
Inflexible policies ties in with relevant considerations, and ultra vires, bias: policy can only be used as guidance they are not a directive. The decision-maker exercised a discretionary power (cid:523)so look for the words (cid:494)the decision maker/person may(cid:495)(cid:524) and. In exercising the discretion, the decision-maker acted in accordance with some rule or policy. In so acting in accordance with the rule or policy, the decision-maker failed to give due accord to the merits of the circumstances of that case or the legal criteria, or the rule or policy was contrary to law. Green v daniels (1977) 51 aljr 463 student unemployment benefits. Inflexible rules which preventing plaintiff from unemployment benefits: unemployment benefits not paid to students until they returned to school the following year, held: the decision was invalid. All the decision-maker here did was apply an inflexible rule which prevented green from being considered for unemployment benefits until school commenced. Policy can give direction but can not constrain.
