Improper Exercise of Power s5(2) of the ADJR Act (Covered in Week 6) PDF

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Summary

This summary covers all the grounds used to argue Improper Exercise of Power under the ADJR Act. This is relevant for the mid-trimester assessmet task....

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Week 6 – Improper Exercise of Power

Bad Faith •

‘Lack of any honest or genuine attempt to perform the relevant statutory function’

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Actual state of mind of decision-maker •

Attack on honesty of decision maker

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Mere error, irrationality or simply poor decision-making does not amount to bad faith

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But do not need to establish decision-maker knew decision was wrong

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Recreant or reckless is sufficient i.e., subjective failure to carry out statutory duty sufficient

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Same under s 5(1)(e) and (2)(d) of ADJR Act

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Can be inferred from cumulative effect of blatantly perverse findings e.g. o NAOX v Minister for Immigration and Citizenship 

Two asylum-seekers from Bangladesh applied for protection visas on basis faced persecution due to homosexual relationship.

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RRT accepted homosexual but decided not at risk of persecution if discreet.

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High Court held incorrect approach to issue of persecution.

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Remitted to RRT.

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RRT on remittance found not homosexual but related.

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Questionable inferences e.g. 

Questions about intimate details.

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Misinterpretation of DNA evidence.

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Held on further judicial review that finding that not homosexual only way out to justify refusal of protection visa.

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Decision infected by bad faith, unreasonableness and bias.

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Evidentiary burden high – DIFFICULT TO ARUGE

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Not lightly made o ‘Rare and extreme’

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Bad faith nearly always involves improper purpose o More common to rely on improper purpose because no need to establish personal fault or dishonesty

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Overlaps with fraud but bad faith confined to decision maker

Uncertainty •

ADJR Act ground (ss 5(2)(h), 6(2)(h)) but status as common law ground uncertain

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Most commonly referred to in cases concerning delegated legislation

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May indicate presence of another legal error e.g. Unreasonableness

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Most commonly used where decision to grant approval to activity but subject to extensive and nebulous conditions

Luongo v ACT Planning and Land Authority •

Under ACT equivalent to ADJR Act

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Luongo given permission to build single eight-bedroom dwelling

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Neighbour complained that building two separate four-bedroom dwellings to be used as boarding house

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Under Planning and Development Act 2007 (ACT) a ‘controlled activity order’ could be issued by Authority if development undertaken without approval

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Authority issued order in terms (see Textbook p 500)

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Argued on judicial review that order uncertain

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Held: Required degree of certainty depends on statutory context Here non-compliance with order is criminal offence of strict liability Therefore, must identify the circumstances that give rise to the controlled activity precisely Here ‘development’ not defined with sufficient precision Left Luongo to speculate or guess what Authority had in mind by controlled development activity

Fettering Discretion •

When power is conferred on someone it is for them to exercise power Rule against dictation Inflexible application of policy

Acting under Dictation •

Holder of discretion cannot simply follow orders from above e.g.

Evans v Donaldson Royal Commission into Department of Weights and Measures recommended sweeping changes Government decided to dismiss existing officers of Department and to start afresh Courts of Petty Sessions had jurisdiction to deal with questions of dismissal of officers of Department

Court simply read letter from A-Gs department saying that new arrangements would be put in place and all officers would be dismissed Held •

Not really a decision of justices Never exercised own discretion Acted merely as mouthpiece of government Acting under dictation Certiorari granted to quash decision

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Problem of proof? Issue is often establishing the decision-maker acted under dictation.

Bread Manufacturers (NSW) v Evans •

Under Prices Regulation Act 1948 (NSW) Minister had power to veto Prices Commission determination re maximum price (S&M p 394)

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Prices Commission determined price

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Challenged by bread manufacturers on basis that Commission acted under dictation of Minister

Held •

Distinction between Commission taking Minister’s views into account and acting under dictation Minster’s view a permissible consideration Given Minister’s veto power clearly a permissible consideration

Provided decision reached by Commission was its own •

No evidence of dictation in this case Freedom of Information legislation may help plead the case? i.e., string of emails/texts etc.

Acting under Dictation Cont. •

More complicated when statute gives power to give directions e.g. Textbook p 481

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Courts reluctant to find that rule against acting under diction overridden •

Results depend on wording

CPFC v Minister for Immigration and Border Protection (HC, 2015) •

Customs official detains 157 asylum seekers on ship near Australia and then India for a month Under Maritime Powers Act 2013 (Cth) s 72(4) (Textbook 482)

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Customs Officer acted on the direction of Cth Government National Security Committee of Cabinet Attempting to negotiate with India to allow disembarkation in India

 Argued that customs officer acting under dictation •

Held that Act contemplated customers officers would exercise powers in chain of command that led to Minister

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Invested customs officers with discretionary powers that would involve international relations and high-level policy (international relations with other countries).

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Permissible for Minister to direct the boat.

Inflexible Application of Policy •

See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (note AAT)

Three objectives of policy: 1. Consistency •

Particularly important where large numbers of decision-makers

2. Makes administration more straightforward 3. Implementation of political policy •

Tension with principle that discretion cannot be abdicated

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Basic principle that acceptable to formulate policy but must not be applied inflexibly Must consider merits of each case

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Overlap with acting under dictation but Possible to act under dictation without policy; or Policy might be of decision-maker’s own making

Rendell v Release on Licence Board (NSW Court of Appeal, 1987) •

Rendell convicted of murder and sentenced to (mandatory) life imprisonment in 1979

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After seven years makes application for licence to be released to Release on Licence Board

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Board independent statutory board p.t. Prison Act 1952 (NSW)

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Prisons Act, s 61 Board must consider period in custody already served

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Board’s recommendation to Minister (Prisons Act, s 60)

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Crimes Act 1900 (NSW) Governor in Council on recommendation of Minister orders release

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Board responds to request by letter of 2nd July 1987 explaining will not make recommendation because Minister’s policy that must have served minimum of 10 years’ jail before recommending release to Governor in Council.

Held: •

Board inflexibly applied policy as Board set up as independent body by parliament No absolute rule that must ignore policy but must perform own functions Here no alternative i.e., ‘minimum’ Inconsistent with statute Perhaps futile but power conferred by Parliament

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Minister may ignore recommendation

Green v Daniels (HCA, 1977) •

Karen Green 16 years old, Form 4

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Registers at CES on 25/11/76

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Interviewed on 20/12/76 Told: “she could not yet receive unemployment benefit as school leavers would not be receiving it until 22/2/77” Forms and next appointment on 22/2/77 Tasmanian school year Paras 7.302 & 7.304 of ‘Unemployment and Sickness benefit Manual’

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Karen looks for work in December, January and February; attends appointment and receives unemployment benefit from 22/2/77

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Karen Green 16 years old, Form 4

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Registers at CES on 25/11/76

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Interviewed on 20/12/76 Told: “she could not yet receive unemployment benefit as school leavers would not be receiving it until 22/2/77” Forms and next appointment on 22/2/77 Tasmanian school year Paras 7.302 & 7.304 of ‘Unemployment and Sickness benefit Manual’

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Karen looks for work in December, January and February; attends appointment and receives UB from 22/2/77

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Section 107, Unemployed Willing and able to undertake suitable work Taken reasonable steps to find work

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‘Director General’s satisfaction’ (note delegation) and lack of satisfaction re (i), (iii) until 22/2/77

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Department says ‘general rule’ cf Stephen J finding: Problem of dishonest ‘school leavers’ could be addressed in policy but policy illegal because inconsistent with legislation. The policy is thus, unlawful because it is inconsistent with the legislation.

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Declaration that Director-General (see Textbook pp 393-4) Ought to have considered all circumstances of claim Have regard to fact that application made during school holidays But should not treat fact as decisive re s 107

Unreasonableness •

Common law and ADJR Act ss 5(1)(e), 5(2)(g)

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Wednesbury unreasonableness Associated Picture Houses v Wednesbury Corporation (UK Court of Appeal, 1948)

Associated Picture Houses v Wednesbury Corporation (UK Court of Appeal, 1948) •

Local council had power to issue licences ‘on any terms sees fit’

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Issued licence with prohibition on admission of children under 15 on Sundays

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Protection of minors (‘physical and moral health of children’) is a permissible consideration

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Decision was not so unreasonable and so outrageous and bereft of logic that no reasonable decision-maker could have made decision

Unreasonableness Cont. •

Features: Absence of criteria (therefore value judgment) Overlap with other grounds Intensity of judicial review •

‘Safety net’

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High threshold o Not because did not express reasons well or was not entirely logical

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But may be made out where: o Devoid of plausible justification o Decision had unnecessarily harsh effect o Demonstrably inconsistent with other decisions o Excessive or inadequate weight (cf Peko Wallsend) o Made an erroneous and unsupportable finding of fact on a point of importance o Failed to have proper regard to policy o Treated identical situations in different ways

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Closest to review on merits o ‘Inescapably qualitative’ o Separation of powers concerns

Minister for Immigration and Citizenship v Li (HC, 2013) •

Li applied for skilled migration visa as a cook Included skills assessment by Trades Recognition Australia (‘TRA’)

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Visa initially refused because migration agent provided incorrect information re skills assessment

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Appealed for merits review with Migration Review Tribunal (‘MRA’)

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Also applied for new skills assessment with TRA

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MRT commenced second hearing but adjourned requesting further information

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Second TRA assessment also unsuccessful

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Li’s new migration agent wrote to MRT in January 2010 Advised that Li seeking review of 2nd TRA assessment Setting out why 2nd TRA assessment was flawed Requested a further adjournment of MRT hearing

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MRT refused further adjournment and on 25 January 2010 confirmed delegate's decision ‘The Tribunal considers that [Li] has been provided with enough opportunities to present her case and [Tribunal] not prepared to delay further’

Held •

MRT’s decision quashed

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Hayne, Kiefel and Bell JJ considered decision unreasonable ‘Unreasonableness’ depended on true construction of statute Reference to subject matter, scope and purpose esp. Section 363 which gave Tribunal power of adjournment (see Textbook pg. 401 S&M)

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Lower standard than Wednesbury standard ‘Unreasonable’ if it ‘lacks an evident and intelligible justification’ Do not need to point to particular error but decision can be set aside if result reveals an error must have been made

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Too much weight to fact that Li had some previous opportunity to present evidence and arguments

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Insufficient weight to her need to present further evidence

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Failed to have regard to purpose for which statutory discretion to adjourned is provided

 ‘Result bespeaks error’

 Error must be inferred  Did not discharge function according to law in the manner required by Migration Act  Acted outside of jurisdiction  ‘Flexible, contextual approach means that unreasonableness has greater field of operation than previously thought? Unreasonableness Cont. •

ADJR Act s 5(1)(e) and (2)(g) repeats Wednesbury standard

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Can proceed under generic error of law ground or s 5(2)(g) ambulatory (regard to Li)?

Irrationality and Illogicality •

Recent years courts recognised as stand-alone ground of review Statutory exclusion of unreasonableness under Migration Act?

Minister for Immigration v SZMDS (HC, 2010) •

Section 65(1)(a)(ii) of the Migration Act imposes a duty on Minister to grant a protection visa where satisfied Australia owes protection obligations to applicant

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Application made on basis that homosexual and would be persecuted in Pakistan if discovered

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Application rejected by delegate of Minister

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Merits reviewed to Refugee Review Tribunal Tribunal did not accept Applicant homosexual and Had well-founded fear of persecution because

Had not applied for asylum at earliest opportunity when in UK; and Has made a short visit to his family in Pakistan after allegedly entering a homosexual relationship in UAE •

Application sought judicial review in Federal Magistrates’ Court (lost)

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On appeal to Federal Court (won), because Fed Court found Tribunal had engaged in illogical process of reasoning which constituted jurisdictional error Assumed that people in Pakistan who find out he was homosexual during his brief visit there Provided plausible explanation as to why he did not apply for asylum in UK

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Minister appealed to High Court (Minister won (3/2))

Held: 4 (out of 5) •

Found that irrationality or illogicality in reasoning process was an applicable ground of review

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But reasonable minds may differ as to whether the respondent’s conduct was such as to be inconsistent with his claimed fear Not enough to suggest that reasoning of Tribunal was so illogical so as to constitute jurisdictional error

 Expansion of unreasonableness ground to reasoning process but high threshold

Irrelevant and Relevant Matters •

Not a dichotomy but a trichotomy

1. Relevant considerations Must be taken into account 2. Irrelevant considerations Must not be taken into account 3. Permissible considerations Either consider or ignore •

Question is whether decision-maker considered, not weight o ‘in absence of statutory indication’ up to decision maker to assess weight o Merits not legality

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Where excessive weight given to matter of no practical importance, reasonableness review more appropriate

Three questions: 1. Is a matter either relevant or irrelevant? Statutory construction

2. Was matter considered? 3. Must establish materially affected decision in sense that applicant deprived of the possibility of a successful outcome

Relevant Matters •

See Textbook p 465

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Sometimes statute will be express e.g. ‘must have regard’

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But express list may not be exhaustive, or no express list Determined by reference to the ‘subject matter, scope and purpose of the Act’

Minister for Aboriginal Affairs v Peko Wallsend Ltd (HCA, 1986) •

Peko Wallsend exploring in Alligator Rivers area of N.T

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Found uranium @ Ranger 68 (10% of area known as ‘Barite Block’)

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March 1978 Northern Land Council makes claim over Barite Block pt. Aboriginal Land Rights (NT) Act 1976.

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See S&M pp 377-8

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P.t. s 50(1)(a) Aboriginal Land Commissioner investigated application

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Report, Recommendation, detriment

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Section 11 Minister power to recommend to Governor General a grant of estate

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Section 12 GG makes grant

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Commissioner’s hearing but Peko Wallsend does not reveal precisely where Ranger 68 is (‘vague, inaccurate and misleading’)

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Commissioner recommends grant

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Re detriment

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Peko Wallsend’s subsequent submissions to (then) Minister

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(Then) Minister recommends grant except re 10%

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1983 election

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[14 months later] new Minister grant whole of ‘Barite Block’ based on •

Commissioner’s Report and

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Departmental briefing, but no mention of subsequent submissions

Held re Minister’s argument that Minister didn’t fail to take into account ‘subsequent submissions’ held: •

under Act, repository of power is Minister;

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no power to delegate here;

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‘Carltona Principle’ re agency -

nature, scope and purpose of function must be exercised personally

Held were ‘subsequent submissions’ a relevant consideration? •

Statute;

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limited role of judicial review i.e., weight

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‘Minister’ necessarily implied that Minister bound to consider detriment must be most recent up to date material on detriment bound to consider subsequent submissions

‘Considered’ ― Tickner v Chapman (Full Federal Court, 1995) Background: •

See S&M pp 382-3

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Investigation and writing of report

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Minster receives Report and representations attached to report (s10(1)(c))

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Minister may make declaration