Improper Purpose PDF

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Improper Purpose...

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Improper Purpose

Common Law Western Australia A decision-maker must not use their power for purposes other than those conferred. An exercise of power for a different or ulterior purpose may invalidate the decision: Brownells v Ironmongers (1950).

Commonwealth ADJRA An exercise of a power for a purpose other than a purpose for which the power is conferred: s.5(2)(c).

The elements

1. Determine the statutory purpose (conveyed by the Act) Figuring out the statutory purpose is a question of law requiring statutory interpretation. The legislation enabling the decision-maker the power to make the decision must be interpreted to determine the purpose of that power. To do this we must consider: 

Whether there is any express evidence of the Act’s purpose/objectives. Most of the time the purpose of the Act is very express.

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The underlying implied purpose and context of the legislation through statutory interpretation. ‘The subject matter, scope and purpose of the statute’: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986).

2. Decision-maker’s purpose (what did the decision-maker do?) The decision maker’s purpose is a question of fact. The applicant must establish that the decision-maker’s purpose in the making of the decision was not the same as allowed by the statutory purpose. This requires the applicant to prove the subjective state of mind of the decision-maker. This must be proved by inference on the balance of probabilities. Determined through what the decision-maker leads their purpose to look like.

Is the decision-maker’s decision aligned with the purpose of the Act?

Municipal Council of Sydney v Campbell [1925] The Act allowed for the Council to obtain land for purposes of building/remodeling council buildings. The Council obtained the land with additional purposes (sell the land, rent it and make extra money). The evidence of this being the decision maker’s purpose: 

The council never had any plans to remodel the area.

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Two attempts to obtain the land

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The deal would be highly lucrative

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Sort advice from a solicitor as a cover-up

Schlieske v Minister for Immigration and Ethnics Affairs (1988) (West German case) Australian Federal Immigration officials and West German police used the Migration Act in order to deport a non-citizen and wanted criminal to the arms of the West Germans.

The Migration Act was used for the improper purpose of deporting a person in order to have them captured. “It is not one of the purposes of the Act, to aid foreign powers to bring fugitives to justice.” The Act only allows for the deportation for the purpose of getting rid of the person. The decision was a shamed disguised extradition. The evidence of this being the decision maker’s purpose: 

Arrangements made with West German officials

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Constant collaboration with the officials

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Two attempts to extradite him

Once a power is improperly used, does not mean that it vanishes. They must reexercise it according to law. It is difficult to prove improper purpose.

3. Whether there was a decision for an improper purpose that will

invalidate the decision.

Where a decision is made solely for an improper purpose then this will be enough to invalidate the decision.

In cases where there is not solely one reason for the decision, the court must determine which purpose is the dominant or the substantial purpose. If the dominant or substantial purpose is the improper purpose then this will invalidate the decision: Samrein (1982).

Difficultly arises when there is more than one purpose behind making the decision. In the circumstances where one of these purposes is a valid purpose and one is an improper purpose the decision will not necessarily be invalid.

Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage board (1982) 

Act allowed the Board to purchase any land for purposes of the Act, i.e. the building of offices.

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The alleged improper purpose was that the Board planned to build a larger than required building only to share it with another government department.

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It was alleged that the Board would see a commercial gain (improper purpose), however, the Board also did require offices (proper purpose)

HELD: The dominant purpose of the Board’s actions was to build offices (proper purpose). The minor additional benefit was the commercial benefit (it was subsidiary that there was a joint venture). Overall, the object of acquiring the land was to provide offices for current and future needs. (The joint venture was necessary to gain the funding to build a proper and suitable building).

R v Toohey (1981) A land regulation Act was used for the Northern Territory Government to redefine Darwin from 142 to 4350 sq km. This was done for the improper purpose of defeating an aboriginal land claim....