Principles OF Administrative LAW (Autosaved) PDF

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EVOLUTION OF ADMINISTRATIVE LAWPrinciples:a) Procedural fairness b) Jurisdiction c) Discretion d) Sub-delegation e) Subsidiary legislation f) Judicial review.Fairness Principle:Apply to whenever agencies make administrative or quasi-judicial-other than legislative or policy decision-that affected an...

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EVOLUTION OF ADMINISTRATIVE LAW Principles: a) b) c) d) e) f)

Procedural fairness Jurisdiction Discretion Sub-delegation Subsidiary legislation Judicial review.

Fairness Principle: Apply to whenever agencies make administrative or quasi-judicial-other than legislative or policy decision-that affected an individual’s rights, privileges, or interest. More recently, it requires decision makers to consult individuals who have come to rely on a policy or procedure before change, where those individuals have been led to have a ‘legitimate expectation, that the policy or procedure would continue to apply. Procedural Fairness and Natural Justice. Traditionally there was distinction between quasi judicial function (if a govt. Administrator’s decision denied a right or entitlement, the decision was considered quasi-judicial/quasi judicial functions only included binding decisions and excluded mere recommendations to govt. ) on the one side and legislative, policy making, investigative, or administrative functions on the other. Administrative functions included instances where an administrator denied a privilege or a benefit. If quasi-judicial the affected party had a right to fair hearing: notice, representation, oral hearing, examination of witnesses, and closing arguments. But in case of the other functions, the procedure applicable was that explicitly or impliedly set out in a statute that authorised the

function otherwise there was no minimum procedure that had to be followed to allow a fair process. Minister of National Revenue v. Coopers and Lybrand: The criteria for determining whether a decision is quasi-judicial: -whether a hearing is contemplated by the enabling statute -whether the decision affects (in)directly the rights and obligation of an individual. -whether an adversarial process is required. -whether substantive rules are supposed to be applied to each individual case or in the broad sense. And as per Nicholson v Haldimand-Norfolk Board of Commissioners of Police: whether the decision affect a particular individual or group more than it would affect the general public. Procedural fairness/right to be heard: consultation before a final decision is made(rudimentary in nature). This is increasingly being applied to investigative, advisory and legislative functions. Natural justice/right to a hearing: formal hearing

Legitimate Expectation. Government agencies should consult individuals before making decisions that affect expectation (rather than rights). Where an individual has a legitimate expectation of receiving benefits or expectations, the court will require consultation before it is removed. Legitimate expectation may be created by government reassurance or pattern of conduct. R v Liverpool Corp., Ex Parte Liverpool Taxi Fleet Operators ’ Association [1972]Q.B.299

Reference Re Canada Assistance Plan,[1991] 2 S.C.R.

JURISDICTION Meaning It refers to scope of authority or powers conferred upon a govt body or official by legislation or other laws. Govt. Bodies or officials must always act within their legal authority or powers.

Sources of Jurisdiction Constitution and legislation Govt agencies and dept are created by statute and their restricted to powers explicitly granted to them thereof. Additionally at common law, they have whatever powers that are necessarily incidental to their explicit powers. A court will find this powers by necessary implication only where the jurisdiction sought is necessary to accomplish the objectives of the legislative scheme and is essential to the body fulfilling its mandate. This implied power doctrine is a source of substantive jurisdiction. Thirdly, agencies may have unwritten procedural powers at common laws. Agencies have common-law authority to create and follow procedures not provided for in their statutes, but only to the extend that these procedures are reasonably necessary to allow them to carry out their statutory obligations. It common-law source of jurisdiction is known as the inherent powers doctrine and is expressed as a rule that ‘every agency is the master of its own process.’ Requirement to act within jurisdiction

When undertaking any action including decision making govt.agencies are bound by the rule of law meaning: a) The powers and duties of any govt agency or official is limited to that established by law. b) Any such agency must follow the procedures set out in the legislation when exercising those powers and duties. Agencies neither have the right nor the authority to ignore provisions of the law; their task is not to determine what the law should be, that is the function of the legislature. An agency should not act outside the statutory or common-law granted to them and must do everything that a statute or common law requires them to do. If an agency acts outside its jurisdiction if it does something that its statutory or common-law powers do not authorize it to do or if it fails or refuses to do something that it is legally required to do. Jurisdiction and procedural fairness If a statute requires an agency to make a decision and the agency fails to do so within a reasonable time, the agency is said to be declining jurisdiction. Alternatively, failing to take the required decision may be treated as a breach of procedural fairness. If a statute requires an agency to follow a particular procedure in making a decision, the agency may be acting outside of jurisdiction if it follows a different procedure. Where the procedure followed deprives someone of a fair opportunity to present her case, it may also be a breach of procedural fairness. Quasi-judicial functions also have to be discharged in accordance with the common law rules of procedural fairness. Therefore failure to follow procedure may be described as ‘exceeding jurisdiction’, ‘acting outside jurisdiction’ or ‘making a jurisdictional error.’

Lastly, if the words of a statute allows an agency to do something, fairness comes into play in the interpretation of its power. If the statute is open to interpretation, the proper interpretation of the statutory power is one that does not violate fairness requirements.

DISCRETION IT means the right to decide or choose from a variety of option. Requirement in its exercise: Fairness or reasonableness The rule of law requires that decisions be based on the intent and purposes of statute granting the discretion. In so doing the agency/official has to determine which of the several possible applications of the law is most fair or reasonable in the circumstances. Principles applicable in the exercise of discretion: i.

ii.

iii. iv.

Jurisdiction. Discretion must be exercised within the ‘ four corners of the statute(within the decision makers discretion). It must also cohere to the intent and purpose of the statute. Relevancy. Must also only consider the relevant factors-those that are consistent with the purpose and the wording of the statute. This is tied to the first rule. Consistency. They must treat similar cases similarly. They must act in good faith. They must stick to their jurisdiction and act for proper purposes.

Limits on the authority to rule out options: the rule against fettering discretion. When officials rule out options that the law requires them to consider, they are said to be fettering discretion. Therefore the authority to rule out options is subject to two limitations:

1. An officer with a power to exercise discretion cannot refuse to exercise that discretion. He must do so when called upon by the members of the public whether he likes it or not. 2. An official with a power to exercise discretion cannot refuse to consider any factor that is relevant in deciding which option to choose. The effect of this rule is that tribunals cannot make any rules that would be subsequently binding upon itself or another panel. But there is still a need for consistency, which can be established by following these rules: NB: DISCRETION MUST BE EXERCISED WITHIN A REASONABLE INTERPRETATION OF THE MARGIN OF MANOEUVRE CONTEPLATED BY THE LEGISLATURE, IN ACCORDANCE WITH THE PRINCIPLES OF ADMINISTRATION LAW GOVERNING THE EXERCISE OF DISCRETION, AND CONSISTENT WITH THE BILL OF RIGHTS-Baker v Canada(Minister of Citizenship and Immigration)[1999]2 S.C

Ways to minimise uncertainty and inconsistency with fettering discretion: Policies and Guidelines Policies and guidelines would minimise uncertainty and inconsistency in decision making. However they must never be treated as binding rules as that would amount to fettering discretion. Relevant factors must always be considered. When called upon to review exercise of discretion or/ and substitute its own view with that of an agency in should take into account such policies and guidelines.

Where there are ministerial directives, they should only be followed if required by statute to do so. Otherwise they should be considered , and can be refused if necessary. Consultations Govt official are free to consult and should do so to avoid inconsistency with previous decision. As for tribunals, except where a statute governing a tribunal excludes or places stricter limits on the right to consult, it is advisable and acceptable for it to seek advice from other tribunal membes, staff, counsel, or the chairs as long as: a) The tribunal makes the final decision b) The consultation is voluntary c) The consulted party does not force the tribunal to take a certain decision and; d) Any need matters introduced in the course of the consultation is shared with the parties who are then given an opportunity to comment on them. Caution in overturning discretionary decisions. A tribunal called upon to review the exercise of discretion by an administrator should only do so when the impugned decision is clearly wrong; reached unreasonably or unfairly. Where an official or department has no policy or guideline in the exercise of discretion, the tribunal called upon to review his decision must develop a guideline to aid it review. Such a guideline should ideally be published in order to guide the parties before them.

SUBDELEGATION Delegatus non potest delegare : a delegate cannot delegate.

The rule against subdelegation provides a where the legislature has delegated a decision making function to an official s/he may not delegate that power. The raison detre behind this rule is the need to preserve the quality and the fairness of decision. Its presumed that the legislature chose the delegate carefully based on his knowledge, skills and/or qualification. For accountability purposes, it is prudent that decision making process should take place within the established structure. If a delegate is required to follow a specified procedure in the discharge of his mandate he is not allowed to delegate it to circumvent that procedure. Lastly it is also a component of the principle of jurisdiction; if a function is vested upon a specific agency then only that agency has the power to discharge that function. Exceptions: 1. A minister may delegate statutory powers to a public servant within his ministry. If a statute says that a ministry may do something them the minister can delegate even elements of his discretion to his subordinates. 2. Sub-delegation may also be expressly or impliedly permitted by a statute. Where there is no such permission the decision whether delegation is permissible would turn on the question whether the power is purely administrative or quasi-judicial. If the function touches on the rights or interest of individuals then it may not be delegated.

Validity of delegated legislation. There are two types of delegated legislations: 1. Regulations made by the cabinet or minister. 2. By laws passed by municipalities.

The concern is with the quality and fairness of these legislations. To check on these, there usually are requirements of consultation with the public and/or tabling before the relevant parliamentary committee. More importantly though they are require to fall within ‘the four corners’ of the enabling statute. They must be consistent with the objective of the statute and the scope of the regulatory powers set in the enabling statute. They should provide details to give effect to the policy established by the statute and not set up a new policy. The power to make regulation must be explicitly provided for in the enabling statute or be implied in which case it must be necessary for effective implementation of the objectives of the statute. Statutes take precedence over regulation meaning therefore that should a reg.be in conflict with a statute it would be invalid, this unless the statute provides that the reg is meant to amend, enlarge or abrogate it. A regulation is invalid if it discriminates against groups or individual unless that discrimination is permitted by the parent statute. Discrimination occurs where different groups or individuals in a similar situation are treated differently. Finally a statute that allows a municipality to regulated an activity does not allow it to prohibit that activity.it would be invalid because it is beyond the municipalities jurisdiction....