Case discussion- admin law PDF

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A case discussion to make your concepts clear.
Very helpful to understand admin law topics....

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CASE Entick v Carrington

ISSUE Principle of legality that requires legal authority for any action it undertakes.

AD(JR) Not relevant here (English Case). Common law issue of Ultra Vires there was no right under statute or precedent to issue a warrant.

DISCUSSION On 11 November 1762, the King's Messengers broke into the home of the Grub Street writer, John Entick (1703?-1773) in the parish of St Dunstan, Stepney "with force and arms". Over the course of four hours, they broke open locks and doors and searched all of the rooms before taking away 100 charts and 100 pamphlets, causing £2,000 of damage. The King's messengers were acting on the orders of Lord Halifax, newly appointed Secretary of State for the Northern Department, "to make strict and diligent search for . . . the author, or one concerned in the writing of several weekly very seditious papers intitled, The Monitor, or British Freeholder". Entick sued the messengers for trespassing on his land. The trial took place in Westminster Hall presided over by Lord Camden, the Chief Justice of the Common Pleas. The messengers claimed that they acted on Halifax's warrant, which gave them legal authority to search Entick's home; they therefore could not be liable for the tort. However, Camden held that Halifax had no right under statute or under precedent to issue such a warrant and therefore found in Entick's favour. Lord Camden ruled, as later became viewed as a general principle, that the state may do nothing but that which is expressly authorised by law, while the individual may do anything but that which is forbidden by law. This is one of the first cases to establish that government action which intrudes on individuals existing rights will be unlawful unless there is legal authority to support the action.

CASE A v Hayden

ISSUE Principle of legality that requires legal authority for any action it undertakes.

AD(JR) Not strictly an AD(JR) Act matter, but based essentially on acting beyond the scope prerogative.

DISCUSSION The plaintiffs : -4 Australian Secret Intelligence Service Officers (ASIS) 6 Civilians under part time employment with ASIS 1 Army Rep The Defendant: Commonwealth The Plaintiffs participated in a security training exercise at the Sheraton Hotel in Melbourne which involved freeing a hostage from a hotel room using masks and carrying weapons. The Victorian Government though this was a criminal activity and wanted the names of the participants from the Commonwealth Government in order to investigate the crimes and consider prosecution. The Plaintiffs sought an injunction to prevent the release of their names on the grounds of: a) contract of employment confidentiality b) the training had ministerial approval c) carried out with ASIS instruction d) participants given “training cards” saying it was a commonwealth exercise. HELD: Case held that the governments, even in their pursuit of national security objectives, do not inherently possess power to authorise their officials to act in defiance of the criminal law. The executive power of the commonwealth must be exercised in accordance with the constitution and the laws of the commonwealth. The GG, the Federal Executive Council and every officer of the commonwealth are bound to observe the laws of the land. Constitutional writs are available to restrain apprehended violations and to remedy past violations. No agency of the Executive Government is beyond the rule of law.

CASE Church of Scientology Inc v Woodward

ISSUE ASIO was conducting an investigation into the church. Church contended that ASIO acting beyond the scope of its powers. Can the doctrine of Ultra Vires apply to the activities of ASIO where the activities of ASIO exceed its statutory functions. S. 17 of the Australian Security Intelligence Organisation Act 1979 (Cth) provided that ASIO’s functions were “to obtain, correlate and evaluate intelligence RELEVANT TO SECURITY”…”IN RESPCT OF MATTERS RELATING TO SECURITY”.

AD(JR) Not an AD(JR) matter but a common law matter on whether certain actions of parties are available for review on the ground that the actions were not permitted by the statute.

DISCUSSION Court ruled that the judiciary can examine whether administrative action undertaken by a national security agency is supported by the legislation establishing the agency. In this case the debate was about whether the issue was justiciable or not, not the actual hearing of the matter.

CASE London County Council v Attorney General

ISSUE Power of statute to run a bus instead of a tram.

AD(JR) English Case

DISCUSSION A number of private bus companies in London succeeded in challenging the council’s right to run bus services. Held: Where the London County Council had statutory powers to purchase and operate tramways, it was held by the House of Lords that it had no power to run omnibuses, which was not incidental to the running of tramways.

A Federal Police Officer purporting to act under delegated authority from

CASE Businesses and Consumer Affairs

ISSUE in a bank account exceeded powers of the Customs Act 1901

AD(JR) case heard in Federal Court.

DISCUSSION the Comptroller General of Customs seized bank notes to the value of $8000 then in the possession of Mr Vickers. The seizure was followed by service upon Mr Vickers of a notice of seizure under the Customs Act which said the money was seized because of dealing in narcotics. It later came to the notice of the police that Mr Vickers had a bank account in NSW with $15,000 in it. A notice was served on the bank and cc to Mr Vickers that in the powers under the Customs Act, the $15,000 was also seized because of dealing in narcotics. The bank gave a bank cheque to the police officer and this is held in an account operated by the 4th defendant being the Collector of Customs for NSW. Michael Vickers was acquitted of the crimes and wanted his money back. When he wrote to the Collector of Customs asking for both the $8,000 and $15,000 back, the Collector said he was out of time under the Customs Act and the money would be forfeited. Michael Vickers applied for relief under section 5 of the AD(JR) Act on the decision taken defendants to seize the money. Vickers submitted that he was an applicant that was aggrieved by a decision to seize the $8000 and the money and service of the notices were not authorised by the Customs Act (s. 5(1)(d)). The Court held that these are decisions of an administrative character and are within the powers of the AD(JR) Act. The Court held that the statutory power authorising customs officers to seize ‘goods, moveable property, or monies in the form of cash’ did not authorise seizure of the moneys credited to a bank account. He lost on the $8,000 but won on the $15,000.

B

(1)(d) in

The Boyles (Applicants) are the registered proprietors of a lease from the

CASE

ISSUE under s.10 of the City Area Leases Ordinance 1936 (A.C.T.), for grant rights for the use of a residential premises as a veterinary surgeon

AD(JR) Federal Court that the decision to allow the “home” occupation was outside the scope of the Ordinance.

DISCUSSION Commonwealth of certain land known as Block 9, Section 11, Division of Griffith (also known as 31 Monaro Crescent, Griffith) in the Australian Capital Territory. Adjoining that land is Block 8, Section 11, Division of Griffith, also known as 85 Flinders Way, Griffith. Block 8 is situate at the corner of Monaro Crescent and Flinders Way. The leases of all the blocks in Section 11 provides that it may be used for residential purposes only. The applicants sought an order of review under AD(JR) Act in respect of a decision made on 15 September 1986 under s.10 of the City Area Leases Ordinance 1936 (A.C.T.) by Mr Charge ("the first respondent"), a delegate of the Minister of State for Territories . That decision approved of Mr Pearce ("the second respondent") carrying on the profession, trade, occupation or calling of veterinary surgeon on Block 8 subject to certain conditions relating to the use of the land being observed by the second respondent in carrying on the business. To have an occupation in the house, Mr Pearce must reside there before a permit is granted. The Court held that neither at the date of the application made by the 2nd respondent nor at the date the 1st respondent purported to grant approval, was the 2nd respondent bona fide residing on the land. The approval must be set aside. It may be a matter for debate which is the most appropriate ground set out in s.5 of the AD(JR) Act to assign as the reason for setting aside the decision. It is sufficient, however, to rely on s.5(1)(d) - that the decision was not authorized by the enactment in pursuance of which it was purported to be made. Reliance might also be placed on s.5(1)(e) read with s.5(2)(h) and s.5(3)(b).

CASE Shanahan v Scott

ISSUE Marketing of Primary Products Acts 19351953, ss. 18 (1) (c), 43 (1) (b) (iv) – Egg and Egg Pulp Marketing Board Regulations 1953, reg. 44. The purpose of this appeal by specific provision of the Egg and Egg Pulp Marketing Board Regulations 1953 of the State of Victoria. The question depends entirely upon the extent of the power of subordinate legislation conferred upon the Governor in Council of that State by the Marketing of Primary Products Acts 19351953. The provision the validity of which is attacked is No. 44 of those regulations.

AD(JR) Not applicable Appeal from Supreme Court of Victoria judicial review ground of ultra vires.

DISCUSSION The Marketing Act authorised egg producers in Victoria to establish an Egg Board in which all eggs produced in Victoria would be vested, marketed and sold by the Board. Section 43(1) said the Gov could make regulations “necessary or expedient for the administration of the Act, or for carrying out the objects of the Act.” The Gov made reg 44 which made it an offence to place eggs in cold storage or subject them to preservative treatment without the consent of the Board. The purpose of this was to make it difficult in Victoria to store or sell other eggs not under the control of the Board. High Court held the regulation invalid because the regulation went beyond what the Act requires as it wasn’t expedient for the administration of the Acts or for carrying out the objects of the Act. The regulation applies to eggs that the Board has nothing to do with.

CASE Foley v Padley

ISSUE S. 11(1)(a) Rundle Street Mall Act Allows Adelaide City Council to make bylaws “regulating, controlling or prohibiting any activity in the Mall or any activity in the vicinity of the Mall that is, in the opinion of the Council, likely to affect the use or enjoyment of the Mall.” By Law No. 8 made providing that “No person shall give out or distribute anything in the Mall or in any public place adjacent to the mall to any bystander or passer by without the permission of the Council.

AD(JR) The appellant was charged before a Court of Summary Jurisdiction in Adelaide with giving out an item of printed material to a passer-by in the Mall without the permission of the Council contrary to s.1 of the By-Law. The Stipendiary Magistrate reserved for consideration by the Supreme Court the question whether s.1 of the By-Law is valid. The Full Court of the Supreme Court upheld its validity. This appeal is brought by special leave against that judgment.

DISCUSSION The By-law is valid. The Council could reasonable have formed the opinion that the prohibited activity was likely to affect the use of enjoyment of the Mall. The Legislature left it to the Council to decide whether it should regulate, control or prohibit an activity. The High Court here really looked at this from a “reasonableness” test. Could the Council reasonably have formed the opinion that the activity is likely to affect the use or enjoyment of the Mall. Who agrees? Brennan dissented.

CASE Carltona Ltd v Commissioners of Works [1943]

ISSUE Whether an agent of the Minister can carry out tasks of the Minister without being formally delegated that power. Likely to be more limited in Australia.

AD(JR) English Case Common law. delegatus non potest delegare

DISCUSSION The plaintiffs owned a factory which was to be requisitioned. They sought a judicial review of the lawfulness of the order making the requisition, saying that the Defence (General) Regulations 1939 had been implemented not by the Minister as required, but by an official within the Ministry of Works and Planning. They argued that as a holder of a delegated power, the Minister could not himself delegate its use (‘delegatus non potest delegare’). Held: The court recognised the inappropriateness of the argument and answered it by holding that in law, civil servants acted not on behalf of but in the name of their ministers. The action of the official was not a delegated act; it was the act of the Minister. A minister could speak through the alter ego of a civil servant in an affidavit. Civil servants are servants of the Crown, not of the ministers who are answerable to Parliament for the departments in which they serve. Where a power or function is conferred on a Minister, in circumstances where, given administrative necessity, Parliament cannot have intended the Minister to exercise the power or function personally, an implied power of delegation (or agency) may be inferred. Lord Greene MR said: ‘In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of ministers by responsible officials of the department. Public business could not be carried on if that were not the case.’ ‘Constitutionally, the decision of such an official is, of course, the decision of the minister.’ ‘It has been decided as clearly as anything can be decided that, where a

CASE

ISSUE

AD(JR)

DISCUSSION regulation of this kind commits to an executive authority the decision of what is necessary or expedient and that authority makes the decision, it is not competent to the courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. If it were not so it would mean that the courts would be made responsible for carrying on the executive government of this country on these important matters. Parliament, which authorises this regulation, commits to the executive the discretion to decide and with that discretion if bona fide exercised no court can interfere. All that the court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature and to see that those powers are exercised in good faith. Apart from that, the courts have no power at all to inquire into the reasonableness, the policy, the sense, or any other aspect of the transaction.

O’Reilly v State Bank of

S. 264 Income Tax

Not applicable.

S 264 of the ITAA provides that the Commissioner may by notice in

CASE Victoria

ISSUE Assessment Act 1936 (Cth) s. 8(1) Taxation Administration Act 1953 (Cth)

AD(JR) Issue of delegation – ultra vires common law

DISCUSSION writing require a person to give evidence or produce documents. S 8(1) of the TAA the Commissioner had delegated to a deputy commissioner the power conferred by s. 264. The Deputy commissioner had in turn given a written authorisation to a Tax Officer (Mr Holland) to issue notices under s. 264 and to imprint the DCs signature on the notice. Mr Holland did this. The defendants failed to comply with the notice, and contested its validity. They argued that the Deputy Commissioner's purported authorization given to Mr H in 1980 was an invalid sub-delegation; or, alternatively, that the Deputy Commissioner had no power to authorize anyone else to exercise the section 264 power on his behalf. The plaintiff, the Commissioner, did not dispute that the Deputy Commissioner had no power of sub-delegation. A case was stated to the High Court pursuant to section 18 of the Judiciary Act 1903 (Cth) seeking, inter alia, the Court's opinion on the validity of the notice issued by H. The High Court held by a majority (Mason J. dissenting), that the notice issued by H under section 264 (1)(b) of the TAA was valid. It was not disputed that the Commissioner had validly delegated his power under section 264 to the Deputy Commissioner; nor was it disputed that the Deputy Commissioner could not further delegate this power to anyone else. Thus, the question that the Court had to decide was whether, apart from any exercise under delegation, the power of issuing a notice under section 264 was one which was only exercisable by the Commissioner personally, or whether it was also exercisable by the Chief Investigation Officer Mr H.

CASE

ISSUE

AD(JR)

DISCUSSION Different judges approached the decision in different ways. Mason J dissented. Gibbs CJ (and Murphy J) held that prima facie, B can exercise the power as A's agent, unless the statute on its construction requires otherwise. One factor which Gibbs C.J. felt would incline a court to the view that the power should be exercised personally was that section 264 conferred on the Commissioner a power whose exercise would be likely to adversely affect the rights of individuals. Against this, however, was the factor of administrative necessity. His Honour noted that although the alter ego principle had been partly based on the constitutional responsibility of ministers, it was also based on the recognition that the functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise his powers personally. Wilson J. There is a clear distinction to be drawn between the delegation of a power and the exercise of that power through servants or agents. There exists a 'necessity in modern government for the shared performance of duties short of delegation'. The question is simply whether the alter ego principle applies in this particular case. In determining whether the alter ego principle was applicable to this situation, his Honour had to consider the two submissions made by the defendants. The first submission was that the alter ego principle was limited to the relationships between ministers of the Crown and their departments, which was not the case here. Wilson J said that no permanent head of a department in the Public Service is expected to discharge personally all the duties which are performed in his name and for which he is accountable to the responsible Minister. To this end his Honour drew a distinction between a 'power' and a 'right'; and said that 'one may conclude that a power may be exercised through an agent more readily than that a right is conferred upon an agent'. In this case s. 264 was

CASE

ISSUE

AD(JR)

DISCUSSION concerned with powers. The second submission was that the existence of the wide power of delegation given to the Commissioner by section 8( 1) of the TAA meant that in this case there was no need to invoke the principle because there was no 'administrative necessity'. His Honour said that the practical administrative necessity to allow a Deputy Commissioner to exercise the powers delegated to him by the actions of officers authorized by him is evident. The opposing argument would oblige the Commissioner himself to delegate his powers, not only to the Deputy Commissioners, but to a host of departmental officers throughout Australia, rendering each of them a Commissioner in his own right. It would be wholly des...