OoCities by MikeJenny


									1. Does the ADJR Act apply to the decision?

1.1 The ADJR Act will apply to a decision or conduct of administrative
character made under an enactment
Administrative character…
   To distinguish between a legislative decision and an administrative decision, a
     legislative decision is one where new rules are created, whereas an
     administrative decision involves applying the rules to the facts at hand.
     (Toohey, QML v Blewett)
   Currently, there is dispute as to whether legislative decision can be one that
     applies to single person on single occasion (compare Blewett and Toohey)
   Minister for Industry v Tooheys Ltd: Minister is given power to exempt import
     duties. A decision under such a power held to be administrative, as parliament
     provided a general set of rules as to whether good is exempt or not and so
     Minister made decision by applying rules, thus a decision of administrative
     character [325]
   QML v Blewett: Minister changing schedule of products to receive Medicare
     benefit held to be legislative, as such decision had general application [p326]
   SAT FM v ABA: ABA creating licence broadcasting plan held to be legislative
     and not administrative. This is because the licence area plan creates new rules
     of general application rather than specific application, which means that by
     ratio in Toohey, is legislative function. Secondly, notification in the Gazette of
     the licence broadcasting plan means that plan is more legislative rather than
     administrative. Thirdly, power of authority to amend plan at any time is
     similar to the legislature‟s power to amend legislation. [p329]

What is a decision under an enactment…
   In case where enactment empowers a decision to be made, such a decision is
      clearly under an enactment.
   But in the situation where the decision is made under a rather broad power to
      make decisions, the question arises as to whether such a decision is one under
      the enactment
   ANU v Burns: University Council given broad powers to make decisions in the
      best interests of the university. Court found that this power did not extend to
      cover decisions as to the dismissal of a professor. [p330]

What is a decision or conduct…
   For something to amount to a decision, ABT v Bond says that it must be an
      ultimate or operative determination and not a mere expression of opinion.[p336
   Reviewable conduct refers to consideration of the way proceedings have been
      conducted in a body making a decision (ABT v Bond) [p336]
   A finding of fact is generally neither a decision nor reviewable conduct. A
      finding of fact can only amount to a decision when the statute requires that the
      decision-maker make a finding of fact during the decision process
1.2 Exemptions to the ADJR Act
The ADJR Act provides that certain decisions are not reviewable under the ADJR
Act. These decisions include:

      Decisions of the Governor-General
      Decisions of Schedule 1 of the ADJR Act (these decisions refer to decisions
       under certain Acts as well as decisions by certain government bodies)
2. Is the applicant a ‘person aggrieved’ under
the ADJR Act?
The ADJR Act does not specify who is an aggrieved person under the Act. As a
result, we need to consider the common law rules to ascertain who is an aggrieved
person under the Act.

2.1 The general rule
A plaintiff has standing where:
    a) A private right of the applicant has been interfered with
    b) The applicant‟s public right has been interfered with in such a way that the
       plaintiff suffers special damage peculiar to himself
    [Boyce v Paddington Borough Council p372]

2.2 What is special damage peculiar to himself?
     „Special damage‟ is not limited to pecuniary loss [ACF v Commonwealth]
     „Peculiar to himself‟ does not mean that no one else must have suffered
      damage [ACF v Commonwealth p372]
     A mere belief or concern, however genuine, does not in itself constitute
      sufficient standing
     What is required is that the organisation prove something more than the belief
      or concern. Proof of government funding (ACF, North Coast), incident of
      profession (Ogle v Strickland), organisation of conferences or research into
      the area (North Coast), or that his business is affected either directly or
      through 3rd parties (Ogle v Strickland) is sufficient for an organisation to show
      more than merely an emotional concern
3. Can the applicant establish a cause of action
under the Act?
3.3.1 Failure to take into account relevant s5(2)(b) and taking into account
irrelevant s5(2)(a) considerations

Failure to take into account relevant considerations and taking into account irrelevant
considerations results in an ultra vires decision.

3.3.1a General rule: Failure to take into account a relevant consideration is only
possible where the decision-maker fails to consider something which he/she was
bound to do so (Sean Investments vs Mackellar). A step he ought to have considered
constitutes a binding requirement as well (Wednesbury Corporation).

3.3.1b What constitutes a binding requirement: Factors the decision-maker is
bound to consider is to be found in the statute. If there is no express statement of
factors, they must be determined by implication from the „subject matter, scope and
purpose‟ of the Act. (R v Australian Broadcasting Tribunal)

3.3.1c Limitations on the general rule:
1. In the absence of statutory indication of the weight to be given to various
    considerations, it is up to the decision-maker and not the court to determine the
    appropriate weight to be given to matters. (Sean Investments v MacKellar).
2. If the omission to take into account a relevant consideration were so insignificant
    that it doesn‟t materially affect the decision then courts would not set it aside.
    (Baldwin & Francis v Patents Appeal Tribunal)

3.3.1d Applications of the general rule:
Leading case law on failure to take into account relevant considerations: Minister for
Aboriginal Affairs v Peko Wallsend. The minister was bound (as implied from the
subject matter, scope and purpose of the act) to take into considerations detriment
submissions by corporations as he was the sole forum where this matter can be raised.
Further there is an implied rule that the most updated information is to be considered.

Leading case law on taking into account irrelevant considerations: Roberts v
Hopwood. This case was decided on the fact that taking into consideration factors
such as same-sex and equal pay considerations amounted to an irrelevant
consideration. It can be argued that there was nothing in the subject matter, scope and
purpose of the statute that required such a consideration.

Note that these circumstances can often be argued under „unreasonableness‟. See

3.3.2 Improper purposes s5(2)(c) and bad faith s5(2)(d)

3.3.2a Definitions:
 Bad faith: a decision which is motivated by something other than the true power
    and the framework in which it should be used in, can be malicious in nature.
   Improper purpose: When the decision-maker misconstrued the breadth of the
    power, which they have been, made a repository off. It is foreign to proper
   Bad faith is always an improper purpose however not all improper purposes are
    conducted in bad faith

3.3.2b General rule improper purpose: Exercise of power for a purpose other than
that conferred will be ultra vires. Since bad faith is always improper purpose, it will
also lead to a decision being ultra vires. To determine whether it was an improper
purpose look to the object of the statute.
        General rule bad faith: The party alleging „bad faith‟ has the onus to prove
that “the exercise of power was not reasonably capable of fulfilling the purpose of the
statute”. The claimant must prove firstly that it was motive ulterior to the purpose and
secondly that it was tantamount to bad faith, what they were pursuing is not the
purpose of the act.

3.3.2c Application: where there is partly proper and partly improper purpose.
Thompson v Randwick Municipal Council High Court [page 497]: Although there is
partially proper purpose, if the improper purpose is “substantial” then the decision
will be ultra vires. In determining „substantial‟, they concluded since had it not been
for the improper purpose, the decision to resume the land would never have
eventuated therefore it satisfies as a substantial improper purpose.

3.3.2d Application: where there is both bad faith and improper purpose.
R v Toohey(Aboriginal Land Commissioner); Ex parte Northern Land Council High
Court [page 500]: To determine whether there is an improper purpose simply
determine the “purpose conferred by statute to determine whether the act was done for
proper purposes”. To prove bad faith, must show that the “exercise of the power is not
capable of fulfilling the purpose of the statute”. This will be a difficult question of
Obiter dicta: the legal fiction of crown immunity on bad faith and improper purpose
does not hold any longer, simply treat the crown representatives as normal
individuals. It is uncertain whether this applies to the crown or the governor general.
Further bad faith will be most difficult a question of proof.

3.3.2e Application: where there are mixed purposes and collective decisions.

Current precedence (Perth City v DL) will determine the decision invalid if there were
improper purposes by the majority of the decision-makers. If the matter were to go to
the HC, 2 judges already stated their preference for the but-for test, i.e. but for the
improper purpose, would the decision or outcome have been the same? Kirby pointed
out the importance of reference to the relevant act.

3.3.2f Governor General exemption
S3 of ADJR Act states that decisions to which the Act applies do not include decisions
of the governor-general.
3.3.3 Exercise of discretionary power at the behest of another s5(2)(e)

3.3.3a General rule: Where officials are required to exercise the power and the
repository of power does not do this, it results in the decision being ultra vires. In
making a decision, a repository of power cannot allow his or her decision to be made
by an outside body (like a minister who represents the government and its policies).
        Exception (the valid delegation): The repository of power is however entitled
to delegate its powers, where the delegate is acting for and on behalf of the repository
of power.

3.3.3b Application of the general rule: Acting at the behest of outside bodies
R v Anderson; Ex parte Ipec-Air Pty Ltd High Court [page 472]: the director-general
in this case failed to exercise a power that was by law required to be exercised by him,
hence he breached the statute. Instead the director-general forwarded the matter to the
minister and allowed the decision he was required to make to be made by an outside

3.3.3c Application of the general rule: Can policy be considered when making
the decision?
Ansett Transport Industries (Operations) Pty Ltd v Commonwealth High Court [page
476]: it was held that there are no problems with referring to policy as a factor of
consideration when making a decision however it cannot take over the decision
making process. Considering policy is also consistent with notions of responsible

3.3.3d Exception to the general rule (the valid delegation)
Carltona Ltd v Commissioner of Works [page 467]: The Carltona principle allows the
repository of power to delegate its duties because it is impossible for one person to
attend to all these cases, provided the delegation is valid. These duties are carried out
by an underling who acts under the power of the minister (repository of power).

Note there can be sub-delegation.
O’Reilly v State Bank of Victoria Commissioners High Court [page 469]: The
delegator does not need to delegate to all officers, for example, s/he can delegate to a
deputy commissioner who can further the delegation process.

3.3.3e To determine whether it is a valid delegation
Ex parte Forster; Re University of Sydney [page 468]: Held that in determining
whether there is a power to delegate, must look to the purpose, objects and scope of
the statute, to determine whether it will be a valid delegation.

3.3.4 Application of policy s5(2)(f)

3.3.4a General rule: As noted before, policy should be a consideration in the
decision making process. However considering policy, they cannot:
 Firstly they may not apply an ultra vires policy, i.e. a policy that involves the
    government doing something which it is not permitted to do. (Ipec-Air case)
  Secondly an error exists if their discretion is given purely in accordance with
   policy or some self-imposed rule (Ipec-Air case). A decision-maker cannot apply
   a policy inflexibly without considering the merits of the case. s5(2)(f)
Decisions, which have erred in these respects, are ultra vires.

3.3.4b Applying an ultra vires policy
The policy will be ultra vires when it is wider than the empowering statute. (Re Lewis
v Superintendent of Motor Vehicles.) In this case, the decision not to renew licenses
because an applicant failed that particular eye test was wider than the empowering
statute. The statute allowed for the renewal of licenses as long as there is adequate
judgement of distance by drivers. The policy does not account for people who fail the
test but nevertheless under special circumstances can judge distance adequately.

3.3.4c Applying policy without consideration of the merits
(Green v Daniels) Leading HC case law. The decision-maker made a blanket policy
not to allow school leavers to obtain unemployment benefits. The decision-maker
never considered the merits of this student who was a legitimate unemployed person
and who had taken adequate steps to seek employment. The decision-maker placed
this applicant into an inflexible category without regard to the merits.
        This case can also be argued under „applying an ultra vires policy‟. This policy
was ultra vires because it breached statute as the statute never intended that students
of a certain category could never (irrespective of how worthy a candidate), obtain this
unemployment benefit.

3.3.5 Unreasonableness

3.3.5a General rule: There is a duty not to act unreasonably. The first test of
unreasonableness overlaps with relevant/irrelevant considerations. (Wednesbury
 Test 1: Decision-maker must bring to attention that which s/he is bound to
    consider and exclude from consideration matters that are irrelevant. If breached
    then s/he is said to be acting unreasonably.
 Test 2: That the decision or conclusion was so unreasonable that no reasonable
    decision-maker in the same position could ever have come to it.

3.3.5b Application: Irrationality
Unreasonableness test must be framed narrowly and precisely. Determine the purpose
of the statute and its connection with the delegated legislation, to determine whether
parliament has conferred the authority to make the law under challenge.
(Minister for Primary Industries and Resources v Austral Fisheries)

3.3.5c Application: Discrimination
A decision could be deemed unreasonable in the context of discrimination if it
discriminates against a particular group of persons clearly identifiable.
(NSW Aboriginal Land Council v ATSIC)

3.3.5d Application: Disproportionality
In general for disproportionality cases, if costs are totally out of proportion to
benefits, then the decision could fall foul for unreasonableness. Where the decision-
maker‟s criteria which is irrational and illogical led to the perverse factual result.

3.3.5e Degree of unreasonableness
Courts emphasise the importance of a high standard of unreasonableness before courts
are willing to intervene. Normally where there is a logical basis, there will not be

3.4 No evidence to justify the decision s5(1)(h)
S5(3) The ground specified in paragraph (1)(h) shall not be taken to be made out
(a)     the person who made the decision was required by law to reach that decision
        only if a particular matter was established, and there was no evidence or other
        material (including facts of which he or she was entitled to take notice) from
        which he or she could reasonably be satisfied that the matter was established.
(b)     The person who made the decision based that decision on the existence of a
        particular fact, and that fact did not exist.

3.4.1 General Rule: In making a decision, there must be on a balance of probability
some rationally probative evidence to suggest the existence, not just matter of
suspicion or speculation. (Minister for Immigration v Pochi)

3.4.2 Inference of fact
In making an inference there is a requirement that the particular inference by
reasonably open (i.e. there is a basis for making such an inference). If the inference is
reasonably open, it is irrelevant how illogical the reasoning, no judicial can exist
because no error of law was committed. (ABT v Bond)

3.4.3 Other grounds for failure to make the finding of fact
Failure to make a finding of fact can be argued under unreasonableness and
relevant/irrelevant considerations. (Government of Ethnic Affairs v Pashmforoosh)

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