PRINCIPLES OF ADMINISTRATIVE LAW
GROUND OF JR – Decision was not authorised by the enactment State Grounds for Judicial Review: Here it is necessary to examine the following grounds: • [list grounds] Considering each… PROCEDURES REQUIRED BY LAW WERE NOT OBSERVED: The [s5(1)(d) AD(JR) Act (Cth) / s20(2)(d) JR Act (Qld)] provides that where the decision was not authorised by the enactment under which it was purposed to be made; it will create a ground of review. Here the enactment in question is _____________ namely sections ___________. Here [applicant] may argue [decision-maker] breached the rule against delegation as they acted outside the scope of their power by making an unauthorised delegation to [officer] who purported to make the [decision/part of the decision]. COMMON LAW PRESUMPTIONS: Whether authorised question of statutory construction: London County Council v AG. It is presumed that Parliament, in conferring powers, intends them to be exercised in accordance with fundamental tenets of the legal system: Bropho v WA. Unless expressly and unambiguously stated in the statute: Coco v The Queen. 1. Depriving citizens of property rights without compensation: Mixnam’s Properties v Chetsey 2. Levying taxation without authority of Parliament: AG v Wilts United Dairies 3. Depriving citizens of common law rights a. Freedom from trespass: Coco v The Queen b. Depriving citizens of recourse to the courts: Plaintiff s157/2002 v Cth EXAMPLE Coco v The Queen Police had raided a factory of Coco, and had planted a listening device under a Qld statute, gained under a judge. Evidence obtained against Coco, to be used in prosecution for tax evasion. He challenged the validity of warrant for the Supreme Court judge. HELD: Decision to enter private property was not authorised by the legislation - Qld statute didn’t provide for trespass, and courts wouldn’t interpret that way either. Because CL says personal property is sacrosanct, presumed that there wasn’t a right to enter onto property, unless stated expressly within statute. EXAMPLE Plaintiff S157/2002 v Cth In 2001, s474 of the Migration Act 1958 (Cth) states that a ‘privative clause decision’ shall not be reviewed or called into question . With parliament expecting that the Hickman test would be applied to it, thus allowing the decisions falling outside that area would be allowed. The parliament also enacted s486A, which limited appeals to the High Court to 35 days after the actual decision was made. The Plaintiff sought to appeal against a decision by the Refugee Review Tribunal, that he was not a refugee as defined in the Migration Act (and informed by the principles of the UN Convention). HELD: When constructing a privative clause, courts will generally consider: • International obligations – and interpret in accordance with those norms; • That parliament does not seek to curtail right unless it expressly does so; • That Australia is based on the rule of law Held the privative clause not to exclude actions to the courts in terms of appeals to the HCA. DELEGATION 1. What is the rule? The rule against delegation provides that where a statute confers a power on a particular person that power must only be exercised by that person: Peko-Wallsend. IF Legislative or Judicial Power Delegated: Courts will strictly enforce this rule when there is an attempted delegation of quasi-judicial or legislative power. • Legislative functions: will be allowed, when the delegated power is also vested in the same body as to exercise it: Hawke’s Bay Raw Milk Producers Co-Operative Co Ltd v New Zealand Milk Board • Judicial functions - Courts will insist that the essence of the power is exercised by those upon whom the power is conferred, with only mild powers to be delegated: Vine v National Dock Labour Board
IF Administrative Power Delegated: Here, the nature of the powers confer on the minister are administrative, this is relevant to the extent of implied delegation permitted. In the present case there has clearly been a delegation of some functions under s ______ to [officer]. The issue for determination is whether this was authorised under [enactment]. 2. Express Delegation? Here the statute does/not expressly provide for delegation to [officer]. IF IS express delegation in Act: As there is an express authorisation to [officer] it is necessary to determine whether the scope of that power conferred on [officer] extended to [act done]. IF NO express delegation in Act: Carltona Principle: a Minister entrusted with administrative functions has an implied power to, in general act through a duly authorised officer; even in the absence of express delegation: Carltona v Commissioners of Works. This principle exists because the functions of a Minister are generally so multifarious that the business of government could not be carried on if he were required to exercise all powers personally: O’Reilly v State Bank of Vic Commissioners. (Go to 3.) 3. Implied Delegation? Whether the enactment has impliedly authorised delegation is a Question of Statutory Construction: O’Reilly v State Bank. Regard must be had to: Peko-Wallsend a) the language, scope and objects of the legislation; b) the subject matter; and c) the exact nature of the power being delegated, - Application a) The language, scope and objects of [act] IF “where the [minister/decision-maker] is satisfied”: Here similarly to in Peko-Wallsend the words are “where the minister is satisfied”. Mason J there held that those words when read in the context of the legislation required the Minister to act personally. However, [decision-maker] in the present case may argue that the words in this context empower the Minister at his discretion to undertake any means within his power to fulfil the function. Therefore regard must be had to the other factors. IF personal references to the [minister/decision-maker]: Here similarly to in Peko-Wallsend there are specific references to the Minister. These references provide [applicant] with a strong argument based on Peko Wallsend that the parliament intended the power to be exercised by the repository personally – and was not to be delegated. IF above N/A: Based on the language, scope and objects of the [act], in particular, _________. It would appear that delegation was/wasn’t authorised. b) The subject matter IF subject matter DOES concern personal rights (e.g. land etc.): Here the subject matter evidences the intention of parliament to prevent delegation. In Peko-Wallsend and Tickner v Chapman it was relevant that the issue concerned aboriginal land rights and could be potential adverse outcomes to some parties. Similarly, here ________. IF subject matter NOT concerning personal rights: Here the subject matter is different to that in Peko-Wallsend; where the legislation was concerned with aboriginal rights. Here the legislation is focused on [commercial interests in the mining and exploration industry etc.]. This may provide a factual basis for [minister] to distinguish Peko-Wallsend because it does not involve personal rights that would have adverse outcomes to some parties. c) Nature of the power being delegated Questions developed from: Carltona
• Person exercising the power is someone who is the ‘alter ego’ of the Minister • Depends on whether a power would have to direct their own mind to determining it, or not Questions developed from: Carltona & O’Reilly • Is it a power that has the possibility of having a significant impact on one person or large numbers of people? • Is it an important decision? • Does the decision involve a lot of expenditure? • Is it a power that is political in nature? • Set of very clear criteria developed? • Day-to-day decision with high volume? N.B. Allowed delegation of ‘some parts’ doesn’t allow total delgation: Ah Toy v Registrar; O’Reilly. IF nature makes it IMPRACTICAL to Act Personally: Here [minister/decision-maker] would argue that the scope of the act and the nature of the power conferred is such that it is impractical for the Minister to act in a way other than through his officers: O’Reilly. IF it is impractical: Similarly to in O’Reilly; here the power is nothing of important consequence, no substantial rights are affected and administrative efficiency requires the Minister’s function to be delegated: Cf. PekoWallsend. The Minsters function is therefore not a central feature of this statutory scheme, and delegation would be implied authorised. IF borderline OR distinguishable from O’Reilly: Our case may be distinguishable from O’Reilly on the basis that here, like in Peko-Wallsend, the Minister’s function is central to the statutory scheme. Like in Peko-Wallsend, here the Minister’s personal function is evidenced by: [pick relevant factors]
The important consequences of the decision, not only for [applicants] but for others who may suffer detriment as a result such as [because of the interference with land rights]. The preliminary procedures of which the act makes provision.[in Peko the scheme provided for a inquiry and then the minister to act on recommendation – this was evidence that there was no delegation intended]
3. Conclusion: In consideration of the above, it is likely the parliamentary intention was that the Ministers function under section ____ [was to be exercised by him personally/was subject to delegation]. IF breach: As the minister has clearly delegated the function of _______ and this appears to be in breach of the intention of the statute, this ground would be available to [applicant].
EXAMPLE Peko-Wallsend System of Aboriginal land rights gave the Minister final power of recommendation, following a system of inquiry and a report by the Land Rights Commissioner. HELD: The Minister’s role in the scheme was a central role – get report from then act. Unlikely that the parliament intended to be exercised other than personally by the Minister. • Dealt with important rights of Aboriginal people, and therefore shouldn’t be delegated • Could not delegate critical fact finding processes to department staff • While there was an express ability to delegate, in these circumstances there couldn’t be an implied right to delegate also EXAMPLE O’Reilly Statute conferred a power on the Commissioner to issue a notice requiring a person to attend for examination . Statute conferred a power to delegate the Commissioner’s functions to the Deputy Commissioner, but no further. However, the Deputy Commissioner delegated the power to the investigative officers, and simply attached facsimile signature to document. HELD: Delegation was of ‘practical administrative necessity’ - legislature intended that the Deputy Commissioner could delegate the functions. EXAMPLE Ah Toy v Reg. of Companies Certain adverse findings and orders were made against the liquidator of a company in the course of an inquiry held under s 278 of the Companies Act. Delegation of the Registrar of Companies to Price Waterhouse. Registrar appointed Price Waterhouse as their agents for the duration of the liquidation. HELD: No provision for the wholesale delegation of power under the Companies Act. Only provision for delegation where the Registrar was able to delegate where there was a job that he was unable to do; Was a clear circumvention of the legislative provisions which were to allow for qualified people to do this.
Tickner v Chapman Minister had power to declare that certain site would not be developed – for sites with aboriginal significance. Minister was to appoint someone to make report (with representations from interested persons attached to report). Then Minister was to consider report and representations. Minister made declaration which prohibited construction of Hindmarsh Island Bridge • 400 representations attached to report – came out that the Minister had not considered them • Made declaration only 2 days after receipt of report • Did not read content of some sealed envelopes (which said on them they could only be read by women) HELD: Clear from the legislation that Minister had to consider report & representations personally before making any declaration. While could rely on others to process, arrange and summarise, had to personally consider the material particularly with regard to: o Fact that particular power was excluded from Minister’s right to delegate o Declaration had great potential to affect third party rights and interests EXAMPLE
IF Administrative Power Delegated: Here, the nature of the powers confer on the minister are administrative, this is relevant to the extent of implied delegation permitted. In the present case there has clearly been a delegation of some functions under s ______ to [officer]. The issue for determination is whether this was authorised under [enactment]. 2. Express Delegation? Here the statute does/not expressly provide for delegation to [officer]. IF IS express delegation in Act: As there is an express authorisation to [officer] it is necessary to determine whether the scope of that power conferred on [officer] extended to [act done]. IF NO express delegation in Act: Carltona Principle: a Minister entrusted with administrative functions has an implied power to, in general act through a duly authorised officer; even in the absence of express delegation: Carltona v Commissioners of Works. This principle exists because the functions of a Minister are generally so multifarious that the business of government could not be carried on if he were required to exercise all powers personally: O’Reilly v State Bank of Vic Commissioners. (Go to 3.) 3. Implied Delegation? Whether the enactment has impliedly authorised delegation is a Question of Statutory Construction: O’Reilly v State Bank. Regard must be had to: Peko-Wallsend a) the language, scope and objects of the legislation; b) the subject matter; and c) the exact nature of the power being delegated, - Application a) The language, scope and objects of [act] IF “where the [minister/decision-maker] is satisfied”: Here similarly to in Peko-Wallsend the words are “where the minister is satisfied”. Mason J there held that those words when read in the context of the legislation required the Minister to act personally. However, [decision-maker] in the present case may argue that the words in this context empower the Minister at his discretion to undertake any means within his power to fulfil the function. Therefore regard must be had to the other factors. IF personal references to the [minister/decision-maker]: Here similarly to in Peko-Wallsend there are specific references to the Minister. These references provide [applicant] with a strong argument based on Peko Wallsend that the parliament intended the power to be exercised by the repository personally – and was not to be delegated. IF above N/A: Based on the language, scope and objects of the [act], in particular, _________. It would appear that delegation was/wasn’t authorised. b) The subject matter IF subject matter DOES concern personal rights (e.g. land etc.): Here the subject matter evidences the intention of parliament to prevent delegation. In Peko-Wallsend and Tickner v Chapman it was relevant that the issue concerned aboriginal land rights and could be potential adverse outcomes to some parties. Similarly, here ________. IF subject matter NOT concerning personal rights: Here the subject matter is different to that in Peko-Wallsend; where the legislation was concerned with aboriginal rights. Here the legislation is focused on [commercial interests in the mining and exploration industry etc.]. This may provide a factual basis for [minister] to distinguish Peko-Wallsend because it does not involve personal rights that would have adverse outcomes to some parties. c) Nature of the power being delegated Questions developed from: Carltona
• Person exercising the power is someone who is the ‘alter ego’ of the Minister • Depends on whether a power would have to direct their own mind to determining it, or not Questions developed from: Carltona & O’Reilly • Is it a power that has the possibility of having a significant impact on one person or large numbers of people? • Is it an important decision? • Does the decision involve a lot of expenditure? • Is it a power that is political in nature? • Set of very clear criteria developed? • Day-to-day decision with high volume? N.B. Allowed delegation of ‘some parts’ doesn’t allow total delgation: Ah Toy v Registrar; O’Reilly. IF nature makes it IMPRACTICAL to Act Personally: Here [minister/decision-maker] would argue that the scope of the act and the nature of the power conferred is such that it is impractical for the Minister to act in a way other than through his officers: O’Reilly. IF it is impractical: Similarly to in O’Reilly; here the power is nothing of important consequence, no substantial rights are affected and administrative efficiency requires the Minister’s function to be delegated: Cf. PekoWallsend. The Minsters function is therefore not a central feature of this statutory scheme, and delegation would be implied authorised. IF borderline OR distinguishable from O’Reilly: Our case may be distinguishable from O’Reilly on the basis that here, like in Peko-Wallsend, the Minister’s function is central to the statutory scheme. Like in Peko-Wallsend, here the Minister’s personal function is evidenced by: [pick relevant factors]
The important consequences of the decision, not only for [applicants] but for others who may suffer detriment as a result such as [because of the interference with land rights]. The preliminary procedures of which the act makes provision.[in Peko the scheme provided for a inquiry and then the minister to act on recommendation – this was evidence that there was no delegation intended]
3. Conclusion: In consideration of the above, it is likely the parliamentary intention was that the Ministers function under section ____ [was to be exercised by him personally/was subject to delegation]. IF breach: As the minister has clearly delegated the function of _______ and this appears to be in breach of the intention of the statute, this ground would be available to [applicant].
EXAMPLE Peko-Wallsend System of Aboriginal land rights gave the Minister final power of recommendation, following a system of inquiry and a report by the Land Rights Commissioner. HELD: The Minister’s role in the scheme was a central role – get report from then act. Unlikely that the parliament intended to be exercised other than personally by the Minister. • Dealt with important rights of Aboriginal people, and therefore shouldn’t be delegated • Could not delegate critical fact finding processes to department staff • While there was an express ability to delegate, in these circumstances there couldn’t be an implied right to delegate also EXAMPLE O’Reilly Statute conferred a power on the Commissioner to issue a notice requiring a person to attend for examination . Statute conferred a power to delegate the Commissioner’s functions to the Deputy Commissioner, but no further. However, the Deputy Commissioner delegated the power to the investigative officers, and simply attached facsimile signature to document. HELD: Delegation was of ‘practical administrative necessity’ - legislature intended that the Deputy Commissioner could delegate the functions. EXAMPLE Ah Toy v Reg. of Companies Certain adverse findings and orders were made against the liquidator of a company in the course of an inquiry held under s 278 of the Companies Act. Delegation of the Registrar of Companies to Price Waterhouse. Registrar appointed Price Waterhouse as their agents for the duration of the liquidation. HELD: No provision for the wholesale delegation of power under the Companies Act. Only provision for delegation where the Registrar was able to delegate where there was a job that he was unable to do; Was a clear circumvention of the legislative provisions which were to allow for qualified people to do this.
Tickner v Chapman Minister had power to declare that certain site would not be developed – for sites with aboriginal significance. Minister was to appoint someone to make report (with representations from interested persons attached to report). Then Minister was to consider report and representations. Minister made declaration which prohibited construction of Hindmarsh Island Bridge • 400 representations attached to report – came out that the Minister had not considered them • Made declaration only 2 days after receipt of report • Did not read content of some sealed envelopes (which said on them they could only be read by women) HELD: Clear from the legislation that Minister had to consider report & representations personally before making any declaration. While could rely on others to process, arrange and summarise, had to personally consider the material particularly with regard to: o Fact that particular power was excluded from Minister’s right to delegate o Declaration had great potential to affect third party rights and interests EXAMPLE
