PRINCIPLES OF ADMINISTRATIVE LAW
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 selfcontained 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 involvement apparent in the sections. As such it probably [would/won’t] allow minister direction: Bread Manufactures. CONCLUSION With consideration of the above factors, on the balance it is likely this ground would/not be made out. CASES: (Ministerial) EXAMPLE Breads Manufacturers Breadmakers challenged orders made by the NSW Prices Commission on the maximum price of bread. Argument that the Commission had bowed to the wishes of the relevant Minister – who had power to veto any decision made by the Commission. HELD: Necessary to examine statutory framework to determine that the Minister had a role in the decision-making process, and that made it difficult to discover whether the will had been overborne. The Commission was supposed to get information from a wide range of sources, including the Minister. Not sufficient evidence to draw inference that Commission had abdicated power to the relevant Minister. Gibbs CJ = power of veto in Minister means that it was appropriate to consult with Minister rather than make a futile decision (which would be overturned). Mason, Wilson, Aickin JJ = Commission not an independent statutory body, but on facts did not abdicate power. EXAMPLE Ansett v Cthb In Ansett¸ that company sought to challenge a decision of the Secretary of the Department of Aviation to allow another company to import aircraft. Said that the decision-maker was overborne by the Minister Held: Nothing wrong with making decisions in line with government policy, in fact it is likely to be a determinative factor. Mason J (dissent): There was something wrong – said there was a complete abdication of power, defeated statutory intention that Secretary make the decision. EXAMPLE R v Anderson; Ex Parte IPEC-Air A company wanted a licence to import aircraft in order to operate an air freight business in Australia. The decision upon licences was made by the Director-General of Civil Aviation. He referred to the Minister, who said there was a twoairline policy. On that basis, the Director-General rejected the applications. HELD: 3:2 – permissible for DG to follow govt policy. Per Taylor and Owen JJ: it was appropriate to take account of govt policy in refusing to allow the applicant to have an importing licence. Per Windeyer J: that taking heed from government policy was the only thing that the DG could do. Per Kitto and Menzies JJ: DG had acted under dictation. Although government policy may be a relevant consideration; the Director-General here had been overborne by the Minister and government policy. Menzies - one of the reasons for conferred power on the DG was to keep politics out of the decision.
IF NOT MINISTERIAL CONTEXT In the non-ministerial context the courts are less liberal in allowing a decision maker’s will to be overborne. The test is whether the decision maker truly exercised an independent discretion; and the mere fact that they make the same decision does not mean they were overborne: Telstra Corp v Kendall. N.B. • •
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Can draw inferences from evidence given as to the nature of the relationship and any transfers of information that went on Can look behind the statement of reasons and pieces of evidence that the normal decision making process has been undertaken in order to find out the real nature of the relationship between the decision maker and the other person (e.g. Nashua – delegate said in conversation that he had been “instructed” to make a particular decision + wrote consistent file note).. Where statute states that power is given to a person “personally” it is showing an intention that that person specifically is to exercise the power
CONCLUSION With consideration of ______, on the balance it is likely this ground would/not be made out. CASES: (Non-Ministerial) EXAMPLE Telstra Corp v Kendall Steps taken under the Telecommunications Act including disconnection of phone lines to stop offences being committed. HELD: FCFCA (Black CJ, Ryan and Hill JJ): Not sufficient for an applicant to show that decision is same as Minister requested, must show that the decision maker had “no real independent discretion”. • Fine line b/w making a decision at the behest of another and just making the same decision • Must show that the decision maker’s will or capacity to independently make a decision was overborne • Must show that, in truth, someone else made the decision EXAMPLE Nashua Australia Pty Ltd v Channon Minister’s delegate revoked a decision made under s273 of the Customs Act; Courts will determine whether a decision maker’s will has been overborne – will draw inference from the evidence, including exchanges with minister and others etc. Court will look behind statement of reasons presented. Where statute states that power is given to a person “personally” it is showing an intention that that person specifically is to exercise the power HELD: Here, evidence sufficient to show will was overborne - decision maker said in conversation that he had been “instructed” to make a particular decision + wrote consistent file note.
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 involvement apparent in the sections. As such it probably [would/won’t] allow minister direction: Bread Manufactures. CONCLUSION With consideration of the above factors, on the balance it is likely this ground would/not be made out. CASES: (Ministerial) EXAMPLE Breads Manufacturers Breadmakers challenged orders made by the NSW Prices Commission on the maximum price of bread. Argument that the Commission had bowed to the wishes of the relevant Minister – who had power to veto any decision made by the Commission. HELD: Necessary to examine statutory framework to determine that the Minister had a role in the decision-making process, and that made it difficult to discover whether the will had been overborne. The Commission was supposed to get information from a wide range of sources, including the Minister. Not sufficient evidence to draw inference that Commission had abdicated power to the relevant Minister. Gibbs CJ = power of veto in Minister means that it was appropriate to consult with Minister rather than make a futile decision (which would be overturned). Mason, Wilson, Aickin JJ = Commission not an independent statutory body, but on facts did not abdicate power. EXAMPLE Ansett v Cthb In Ansett¸ that company sought to challenge a decision of the Secretary of the Department of Aviation to allow another company to import aircraft. Said that the decision-maker was overborne by the Minister Held: Nothing wrong with making decisions in line with government policy, in fact it is likely to be a determinative factor. Mason J (dissent): There was something wrong – said there was a complete abdication of power, defeated statutory intention that Secretary make the decision. EXAMPLE R v Anderson; Ex Parte IPEC-Air A company wanted a licence to import aircraft in order to operate an air freight business in Australia. The decision upon licences was made by the Director-General of Civil Aviation. He referred to the Minister, who said there was a twoairline policy. On that basis, the Director-General rejected the applications. HELD: 3:2 – permissible for DG to follow govt policy. Per Taylor and Owen JJ: it was appropriate to take account of govt policy in refusing to allow the applicant to have an importing licence. Per Windeyer J: that taking heed from government policy was the only thing that the DG could do. Per Kitto and Menzies JJ: DG had acted under dictation. Although government policy may be a relevant consideration; the Director-General here had been overborne by the Minister and government policy. Menzies - one of the reasons for conferred power on the DG was to keep politics out of the decision.
IF NOT MINISTERIAL CONTEXT In the non-ministerial context the courts are less liberal in allowing a decision maker’s will to be overborne. The test is whether the decision maker truly exercised an independent discretion; and the mere fact that they make the same decision does not mean they were overborne: Telstra Corp v Kendall. N.B. • •
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Can draw inferences from evidence given as to the nature of the relationship and any transfers of information that went on Can look behind the statement of reasons and pieces of evidence that the normal decision making process has been undertaken in order to find out the real nature of the relationship between the decision maker and the other person (e.g. Nashua – delegate said in conversation that he had been “instructed” to make a particular decision + wrote consistent file note).. Where statute states that power is given to a person “personally” it is showing an intention that that person specifically is to exercise the power
CONCLUSION With consideration of ______, on the balance it is likely this ground would/not be made out. CASES: (Non-Ministerial) EXAMPLE Telstra Corp v Kendall Steps taken under the Telecommunications Act including disconnection of phone lines to stop offences being committed. HELD: FCFCA (Black CJ, Ryan and Hill JJ): Not sufficient for an applicant to show that decision is same as Minister requested, must show that the decision maker had “no real independent discretion”. • Fine line b/w making a decision at the behest of another and just making the same decision • Must show that the decision maker’s will or capacity to independently make a decision was overborne • Must show that, in truth, someone else made the decision EXAMPLE Nashua Australia Pty Ltd v Channon Minister’s delegate revoked a decision made under s273 of the Customs Act; Courts will determine whether a decision maker’s will has been overborne – will draw inference from the evidence, including exchanges with minister and others etc. Court will look behind statement of reasons presented. Where statute states that power is given to a person “personally” it is showing an intention that that person specifically is to exercise the power HELD: Here, evidence sufficient to show will was overborne - decision maker said in conversation that he had been “instructed” to make a particular decision + wrote consistent file note.
