principles of administrative law
GROUND OF JR – IMPROPER EXERCISE – Relevant Considerations State Grounds for Judicial Review: Here it is necessary to examine the following grounds: • [list grounds] • Considering each… (In particular consider – 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] TAKE INTO ACCOUNT IRRELEVANT CONSIDERATIONS? [5(2)(a) and 6(2)(a) AD(JR) Act (Cth) OR 23(a) JR Act (Qld)] provides that an application for judicial review may be brought where the decision maker took into account irrelevant considerations. These provisions mirror the CL. Issue whether the [decision-maker’s] consideration of _________ was an irrelevant consideration. (N.B. This is the same as 2. In Relevant Considerations) 2. IS THE CONSIDERATION RELEVANT? Two step process of statutory construction to determine what factors [decision-maker] is bound to consider in making the decision is determined by construction of the statute conferring the discretion: Peko-Wallsend. Step 1) Determine if any mandatory considerations listed in section that gives the power & if list inclusive or exhaustive: IF statute SILENT on considerations to be taken into account: Here, the [statute] does not refer to the factors which the [decision-maker] is bound to consider and therefore he will only be bound to consider matters by implication from the subject-matter, scope and purpose of the Act: Peko-Wallsend (Mason J). IF statute clearly DISCRETIONARY i.e. “where the Minister so directs/where the Minster is satisfied”: The words in s ____ “___” are plainly words of discretion and not of a duty: Roberts v Hopwood. In PekoWallsend and in Padfield it was noted that where a statute confers a discretionary power regard is had to the subject-matter, scope and purpose of the statute to determine if the consideration was valid. IF statute EXPRESSLY states the mandatory considerations to be taken into account i.e. “must consider”: Here, the statute expressly states the mandatory considerations to be taken into account. It is therefore necessary to decide whether the enumerated factors of [list considerations] are exhaustive or merely inclusive: PekoWallsend (Mason J). IF merely inclusive: Here the language used namely “[all circumstances, unjust or oppressive etc”] indicate that the list of considerations are not exhaustive and therefore the Minster may be entitled to take into account considerations provided they are not limited implication from the subject-matter, scope and purpose of the Act: Peko-Wallsend (Mason J). IF exhaustive i.e. “must x, y, z and nothing else OR only x,y,z”: Here the statute states that this list is exhaustive and [decision-maker] has not failed to take these into consideration, therefore, ________. Step 2) Determine any mandatory or discretionary considerations that arise by implication from the subject matter, scope and purpose of the Act: STATE: Here, the subject matter _______, scope ___________, and purpose of the Act ___________; all lean towards the idea that there [were/n’t several] mandatory/discretionary considerations, including ______________. THEN:
IF WIDE DISCRETION: Where wide discretion given with little guidance for the decision-maker, only considerations which lack bona fides will be irrelevant: Murphyores Incorporated Pty Ltd v Cth. In Murphyores, the Customs Act allowed different considerations would be relevant depending on what was attempting to be imported/exported given wide range of circumstances, what would be relevant in each situation would be very large range of material – very wide discretion given to minister. Thus environmental concerns were sufficient for sand mining; because of the wide discretion allowed by the Act. IF consideration of COMMUNITY SAFETY:
In McCasker v Qld CSC, the risk to community was relevant consideration when considering whether to grant remission of sentence; because it was consistent with the scheme of act (imprisonment for commission of offences, remission for good behaviour). Similarly here, ________. IF consideration of SOCIAL IDEOLOGY / ECCENTRIC PRINCIPLES: [Here the [decision-maker] has had regard to _________ or [Decision-maker’s] decision may be seen as giving effect to his/her ideologies that ___________]. In Roberts v Hopwood, the House of Lords (particularly Atkinson LJ), made it clear that it is illegal to be guided in preference by some eccentric principles of socialistic philanthropy (in that case feminism). IF clearly irrelevant: Here it may be argued that the consideration of _____ is just that and therefore an irrelevant consideration. IF arguably relevant: Here it may be argue that when regard is had to the [purpose, scope language] of the statute that the [Minister] was entitled to consider ________. This is supported by the used of the words in the act “____”. IF MINISTER had regard to GOVT. POLICY consideration: Here the Minister has had regard to a govt policy consideration. In Roberts v Hopwood, it was held that a matter can never turn purely on a political consideration; however in Botany Bay City Council v Min for Transport, Lehane J, held that it was not wrong for a Minister to take into account promises made prior to an election, although in the context of improper purpose. IF policy = SOLE consideration: Here there seems to be no other reason other than the policy consideration in coming to the decision. By analogy with Roberts v Hopwood, here there is a strong argument that the [minister] had reasons where wrong at law and therefore are reviewable. IF policy = contributing/NOT SOLE consideration: Here policy was not the sole consideration but rather one that was taken into account. By analogy with Botany Bay CC here it is arguable that this consideration was not irrelevant for the purposes of JR. IF took into account EIS but not environmental issue: The consideration of the environmental impact statement here may be argued by [applicant] as an irrelevant consideration. However impact reports can be taken into account: Murphyores. However here the issue and subject matter of the legislation is difference from that case in that it does not concern the environment. Further, the purpose of the legislation _______. IF minister took into account INCORRECT FACT: Here the Minster has taken into account an incorrect fact. This will not be considered an irrelevant consideration. In Cairns CC v Comm of SD it was held that it could not be said that, within the meaning of s23(a), a decision-maker took an irrelevant consideration into account merely because he relied on an incorrect fact. N.B. Scope/Subject Matter/Purpose important because: Padfield v Minister of Agri. Even where a power is conferred in wide terms unfettered where there are no apparent limitations based on the decision making process, the discretion still has to be exercised in such a way as to meet the general standards of decision making – the courts will place a fetter on discretion even where this doesn’t appear in its original statutory context. 4. CONCLUSION:
Therefore, [alleged irrelevant consideration] would probably [be / not be] an irrelevant consideration because from statutory construction of the act it appears the only relevant considerations would be _______. IF grounds probably made out: As grounds are made out the decision will not necessarily be set aside. Court will determine the appropriate weight to be given to the relevant consideration, a significant consideration: Peko-Wallsend. Clear that court will not substitute its own decision but will set lawful limits on the exercise of discretion. At the very least, here the decision will be referred back to the Minister: Peko. N.B. Courts undertaking Merits Review? Mason J’s statement in Peko-Wallsend of whether something would have been so insignificant that it would not have an effect on the decision sounds like it can have a question of ascribing weight to a particular factor. But it is only used in fairly extreme circumstances where a factor was so trivial that no matter how it was considered, it would not have altered the decision made. Also: Spigelman CJ in Bruce v Cole – expressed caution with this statement – in the context of the relevant considerations grounds; emphasising need for care lest the ground be expanded to permit merits review. Court should only decide whether it was taken into account or not. CASES: EXAMPLE Murphyores v Cth Murphyores applied for licence to export zircon (engaged in sandmining on Fraser Island) – this was a fairly political issue. Minister to read Environmental Impact Report prior to the granting of approval under the Customs Act; Murphyores argued that the Environmental Impact Report was not relevant to a decision under the Act. HELD: Court when looking at relevance took a liberal approach – one of the reasons was because the Customs Act governs the import and export of multifarious items and they are all heterogenous (i.e. quite different) ranging from food items, jewellery, minerals etc. HELD: Factors relevant to approval “as multifarious as the items listed in the Customs Act which require export licences” – i.e. as different as the types of goods which were the subject of particular types of applications – it was entirely appropriate to have regard to EI report in relation to some other goods that could be relevant to export of other items (e.g. kangaroo skins). The Court felt that the relevant factors taken into account when making a decision could be as widely differing as the case of types of: therefore, the Minister was free to read the report prior to making the decision N.B. Somewhat politicised decision - preferable decision given the current political climate – destroying the environment and became evident at the time. EXAMPLE Peko-Wallsend Claim for land by Aboriginals (NT Land Rights Act). Two stage process – a lodgement of claim to be followed by a Commission hearing. Upon the making of an application, the Aboriginal Land Commissioner had to consider whether they were the original owners of the land, and whether or not to recommend the Minister grant the land to them. Exploration companies had made a grant, and wanted to explore uranium deposits, which made up a part of the block – BUT - company would not say exactly where the deposit was (commercial interests), and therefore the Commissioner didn’t consider very strongly the interests of the mining company, and made a recommendation that 10% land be given to the aborigines. The company sent a letter, ex-parte communication to the Minister to tell him where the uranium deposit was (in some of the land claimed), in order to get him to consider it before he made the decision. Several Ministerial changes, and the decision was made without reference to the information in the letter (not in the brief). HELD: That there was an improper exercise of power, because of the failure of the Minister to take relevant considerations into account - letter was shown to be a significant enough consideration to be given weight. That the letter also updated the findings of the commissioner, and therefore the information should have been considered.
OLD UK CASES: EXAMPLE Roberts v Hopwood Local Council was empowered by statute to pay its employees “as it saw fit” – this sounded like a fairly wide discretion and there seemed to be no limitation on how to exercise that discretion; it seems that it was only subject to general proposition that the decision must be made according to the law. Local Council decided to pay its employees higher than the national average and women employees the same as men. HELD: Exercise of this power was invalid; District Auditor exercised power to disallow payments. The issue was whether the Council’s decision based on irrelevant considerations - was an obligation on the Council to its constituents in terms of financial responsibility and this duty overrode any desire the Council might have had to improve the working conditions of the employees in the workforce. However, in the judgment, the court referred to a number of “irrelevant considerations” which underpinned the Council’s decision, Lord Atkinson: “eccentric principles of socialist philanthropy”, or “feminist ambitions to secure the equality of sexes in the marketplace”. EXAMPLE Padfield v Minister of Agriculture, Fisheries and Food There was a statutory regime which allowed the fixing of milk prices by the Board administering the milk marketing scheme. The Minister’s power was discretionary – discretionary power to refer complaints to the committee for investigation. Complaint was lodged by a group of milk producers who had an interest in the decision that the board made. Minister refused to refer Padfield’s complaint to investigating Committee, saying that the complaint was “unsuitable for investigation” and refused to give reasons for the decision - the reasons contained observations from the Ministers perspective that, if the matter were to go to an investigating committee and if the committee upheld the complaint, then the Minister might be put in the position that might be expected to effect the decision or the findings of the decision of the committee. The group sought a writ of mandamus - if the committee upheld complaint, the Minister would have to give effect. The Minister feared political embarrassment if he did so (discovered in a leaked memo from Minister’s office). HELD: Minister’s fear of political embarrassment was an irrelevant consideration. The Minister under a duty to act whenever there was a genuine complaint – even though the powers of the minister were cast in fairly wide, generic terms, they were apparently unfettered, but the discretionary powers of Ministers were subject to the “full rigour” of jurisdictional review The purpose the Minister had in refusing to refer was an improper purpose – it can hardly be said that the Act to administer a milk marketing scheme had in mind that appropriate purposes for making decisions were to avoid embarrassment for a politician Essentially, even where a power is conferred in wide terms unfettered where there are no apparent limitations based on the decision making process, the discretion still has to be exercised in such a way as to meet the general standards of decision making – the courts will place a fetter on discretion even where this doesn’t appear in its original statutory context. The court gave notice that if reasons were not given, it could infer a lack of good reason – remember that at common law there is no right to give reasons for decision (c.f. JR/ADJR).
IF WIDE DISCRETION: Where wide discretion given with little guidance for the decision-maker, only considerations which lack bona fides will be irrelevant: Murphyores Incorporated Pty Ltd v Cth. In Murphyores, the Customs Act allowed different considerations would be relevant depending on what was attempting to be imported/exported given wide range of circumstances, what would be relevant in each situation would be very large range of material – very wide discretion given to minister. Thus environmental concerns were sufficient for sand mining; because of the wide discretion allowed by the Act. IF consideration of COMMUNITY SAFETY:
In McCasker v Qld CSC, the risk to community was relevant consideration when considering whether to grant remission of sentence; because it was consistent with the scheme of act (imprisonment for commission of offences, remission for good behaviour). Similarly here, ________. IF consideration of SOCIAL IDEOLOGY / ECCENTRIC PRINCIPLES: [Here the [decision-maker] has had regard to _________ or [Decision-maker’s] decision may be seen as giving effect to his/her ideologies that ___________]. In Roberts v Hopwood, the House of Lords (particularly Atkinson LJ), made it clear that it is illegal to be guided in preference by some eccentric principles of socialistic philanthropy (in that case feminism). IF clearly irrelevant: Here it may be argued that the consideration of _____ is just that and therefore an irrelevant consideration. IF arguably relevant: Here it may be argue that when regard is had to the [purpose, scope language] of the statute that the [Minister] was entitled to consider ________. This is supported by the used of the words in the act “____”. IF MINISTER had regard to GOVT. POLICY consideration: Here the Minister has had regard to a govt policy consideration. In Roberts v Hopwood, it was held that a matter can never turn purely on a political consideration; however in Botany Bay City Council v Min for Transport, Lehane J, held that it was not wrong for a Minister to take into account promises made prior to an election, although in the context of improper purpose. IF policy = SOLE consideration: Here there seems to be no other reason other than the policy consideration in coming to the decision. By analogy with Roberts v Hopwood, here there is a strong argument that the [minister] had reasons where wrong at law and therefore are reviewable. IF policy = contributing/NOT SOLE consideration: Here policy was not the sole consideration but rather one that was taken into account. By analogy with Botany Bay CC here it is arguable that this consideration was not irrelevant for the purposes of JR. IF took into account EIS but not environmental issue: The consideration of the environmental impact statement here may be argued by [applicant] as an irrelevant consideration. However impact reports can be taken into account: Murphyores. However here the issue and subject matter of the legislation is difference from that case in that it does not concern the environment. Further, the purpose of the legislation _______. IF minister took into account INCORRECT FACT: Here the Minster has taken into account an incorrect fact. This will not be considered an irrelevant consideration. In Cairns CC v Comm of SD it was held that it could not be said that, within the meaning of s23(a), a decision-maker took an irrelevant consideration into account merely because he relied on an incorrect fact. N.B. Scope/Subject Matter/Purpose important because: Padfield v Minister of Agri. Even where a power is conferred in wide terms unfettered where there are no apparent limitations based on the decision making process, the discretion still has to be exercised in such a way as to meet the general standards of decision making – the courts will place a fetter on discretion even where this doesn’t appear in its original statutory context. 4. CONCLUSION:
Therefore, [alleged irrelevant consideration] would probably [be / not be] an irrelevant consideration because from statutory construction of the act it appears the only relevant considerations would be _______. IF grounds probably made out: As grounds are made out the decision will not necessarily be set aside. Court will determine the appropriate weight to be given to the relevant consideration, a significant consideration: Peko-Wallsend. Clear that court will not substitute its own decision but will set lawful limits on the exercise of discretion. At the very least, here the decision will be referred back to the Minister: Peko. N.B. Courts undertaking Merits Review? Mason J’s statement in Peko-Wallsend of whether something would have been so insignificant that it would not have an effect on the decision sounds like it can have a question of ascribing weight to a particular factor. But it is only used in fairly extreme circumstances where a factor was so trivial that no matter how it was considered, it would not have altered the decision made. Also: Spigelman CJ in Bruce v Cole – expressed caution with this statement – in the context of the relevant considerations grounds; emphasising need for care lest the ground be expanded to permit merits review. Court should only decide whether it was taken into account or not. CASES: EXAMPLE Murphyores v Cth Murphyores applied for licence to export zircon (engaged in sandmining on Fraser Island) – this was a fairly political issue. Minister to read Environmental Impact Report prior to the granting of approval under the Customs Act; Murphyores argued that the Environmental Impact Report was not relevant to a decision under the Act. HELD: Court when looking at relevance took a liberal approach – one of the reasons was because the Customs Act governs the import and export of multifarious items and they are all heterogenous (i.e. quite different) ranging from food items, jewellery, minerals etc. HELD: Factors relevant to approval “as multifarious as the items listed in the Customs Act which require export licences” – i.e. as different as the types of goods which were the subject of particular types of applications – it was entirely appropriate to have regard to EI report in relation to some other goods that could be relevant to export of other items (e.g. kangaroo skins). The Court felt that the relevant factors taken into account when making a decision could be as widely differing as the case of types of: therefore, the Minister was free to read the report prior to making the decision N.B. Somewhat politicised decision - preferable decision given the current political climate – destroying the environment and became evident at the time. EXAMPLE Peko-Wallsend Claim for land by Aboriginals (NT Land Rights Act). Two stage process – a lodgement of claim to be followed by a Commission hearing. Upon the making of an application, the Aboriginal Land Commissioner had to consider whether they were the original owners of the land, and whether or not to recommend the Minister grant the land to them. Exploration companies had made a grant, and wanted to explore uranium deposits, which made up a part of the block – BUT - company would not say exactly where the deposit was (commercial interests), and therefore the Commissioner didn’t consider very strongly the interests of the mining company, and made a recommendation that 10% land be given to the aborigines. The company sent a letter, ex-parte communication to the Minister to tell him where the uranium deposit was (in some of the land claimed), in order to get him to consider it before he made the decision. Several Ministerial changes, and the decision was made without reference to the information in the letter (not in the brief). HELD: That there was an improper exercise of power, because of the failure of the Minister to take relevant considerations into account - letter was shown to be a significant enough consideration to be given weight. That the letter also updated the findings of the commissioner, and therefore the information should have been considered.
OLD UK CASES: EXAMPLE Roberts v Hopwood Local Council was empowered by statute to pay its employees “as it saw fit” – this sounded like a fairly wide discretion and there seemed to be no limitation on how to exercise that discretion; it seems that it was only subject to general proposition that the decision must be made according to the law. Local Council decided to pay its employees higher than the national average and women employees the same as men. HELD: Exercise of this power was invalid; District Auditor exercised power to disallow payments. The issue was whether the Council’s decision based on irrelevant considerations - was an obligation on the Council to its constituents in terms of financial responsibility and this duty overrode any desire the Council might have had to improve the working conditions of the employees in the workforce. However, in the judgment, the court referred to a number of “irrelevant considerations” which underpinned the Council’s decision, Lord Atkinson: “eccentric principles of socialist philanthropy”, or “feminist ambitions to secure the equality of sexes in the marketplace”. EXAMPLE Padfield v Minister of Agriculture, Fisheries and Food There was a statutory regime which allowed the fixing of milk prices by the Board administering the milk marketing scheme. The Minister’s power was discretionary – discretionary power to refer complaints to the committee for investigation. Complaint was lodged by a group of milk producers who had an interest in the decision that the board made. Minister refused to refer Padfield’s complaint to investigating Committee, saying that the complaint was “unsuitable for investigation” and refused to give reasons for the decision - the reasons contained observations from the Ministers perspective that, if the matter were to go to an investigating committee and if the committee upheld the complaint, then the Minister might be put in the position that might be expected to effect the decision or the findings of the decision of the committee. The group sought a writ of mandamus - if the committee upheld complaint, the Minister would have to give effect. The Minister feared political embarrassment if he did so (discovered in a leaked memo from Minister’s office). HELD: Minister’s fear of political embarrassment was an irrelevant consideration. The Minister under a duty to act whenever there was a genuine complaint – even though the powers of the minister were cast in fairly wide, generic terms, they were apparently unfettered, but the discretionary powers of Ministers were subject to the “full rigour” of jurisdictional review The purpose the Minister had in refusing to refer was an improper purpose – it can hardly be said that the Act to administer a milk marketing scheme had in mind that appropriate purposes for making decisions were to avoid embarrassment for a politician Essentially, even where a power is conferred in wide terms unfettered where there are no apparent limitations based on the decision making process, the discretion still has to be exercised in such a way as to meet the general standards of decision making – the courts will place a fetter on discretion even where this doesn’t appear in its original statutory context. The court gave notice that if reasons were not given, it could infer a lack of good reason – remember that at common law there is no right to give reasons for decision (c.f. JR/ADJR).
