Topic 3 notes - abuse of power PDF

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Topic 3: Abuse of power in determining and applying the law Abuse of power versus excess of power In Topic 2, we commenced our study of judicial review with the ground described as excess of power. With excess of power cases, we directly consider whether a decision falls within the terms of a statute. It may be a substantive statute, such as one conferring power to make decisions in relation to protecting a watershed, such as we saw in Tanner. Or it could be a procedural statute, where a failure to comply with certain requirements for the making of a decision lead to invalidity. Last week, we looked at some legislation that creates procedural regimes for the making of delegated legislation. A breach of procedural requirements can spell invalidity for legislation. We have here a distinction between substantive and procedural ultra vires. In this topic, we turn to abuse of power cases. Abuse of power occurs where certain errors that have been elaborated upon in the common law are relied upon. Those errors include where an administrator acts for an improper purpose, takes into account irrelevant considerations or fails to take into account relevant considerations, acts unreasonably, and acts on the basis of no evidence or insufficient evidence. We can describe excess of power as involving narrow ultra vires while abuse of power involves broad or extended ultra vires. We should not, however, overplay the contrast between excess and abuse of power. With abuse of power, we are still considering whether an administrative decision/action is authorised by legislation. If it is not, the decision/action falls outside authorisation and, in that sense, involves an excess of power. So, an abuse of power means a decision is outside, or in excess of, power. Rather than searching for a clear conceptual distinction between the topics of excess of power and abuse of power, the terms ‘excess of power’ and ‘abuse of power’ can be treated as labels of convenience to indicate different potential defects in administrative decisions. Abuse of power refers to the defects referred to under that heading and under ‘Failure to exercise discretion’ in the Study Guide. Then there are the defects associated with the violation of procedural fairness. However, if we apply other constraints derived from the wording of the enabling legislation, that may involve review on the ground of excess of power.

Applicability of abuse-of-power grounds to decisions of a legislative and administrative character The abuse of power grounds that we cover in this topic are improper purpose, taking into account irrelevant considerations, failing to take into account relevant considerations, and unreasonableness. When we apply abuse of power grounds, we need to consider whether decisions are of a legislative or administrative character. R v Toohey (Aboriginal Land Commissioner); Ex parte Northern Land Council (1981) 151 CLR 170 established that the ground of improper purpose applies to decisions of both characters. On the other hand, the abuse-of-power ground of unreasonableness, which is described as Wednesbury unreasonableness, does not apply to decisions of a legislative character. In decisions of a legislative character, the reasonableness requirement is considered through applying the excess of Administrative Law 2021© – Eric Ghosh, UNE

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power ground. Furthermore, a higher degree of unreasonableness may need to be demonstrated when challenging decisions of a legislative character. Except when applying the ground of improper purpose, it is best to consider the validity of delegated legislation as a matter of excess rather than abuse of power. With delegated legislation, political accountability mechanisms are stronger, and that explains courts’ greater reluctance to strike down delegated legislation.

Improper purpose/bad faith We turn now to the first of the abuse of power grounds: improper purpose. This includes bad faith. Bad faith implies a dishonest or fraudulent purpose. Improper purpose is a more general term: it refers to purposes other than the purposes for which the power was conferred. The main High Court case is Thompson v Randwick CC. Randwick Council, in Sydney, was empowered to resume land for the purpose of the ‘improvement and embellishment’ of the area. The Council planned to construct a new road and pathway across existing land, so it planned to resume that land and then subdivide it appropriately. However, it decided to acquire more land than was strictly necessary for building the new road and pathway, partly because by doing so, it could subdivide the land to provide frontages to the new road, sell that land for a profit, and thereby defray the costs of building the new road. The High Court held that to buy land and simply sub-divide it to provide suitable frontages did not constitute an ‘improvement’ of the land because the Council was not building any amenities on the land. If the Council wished to force the amalgamation of certain blocks of land, it should instead have simply made that a condition for the erection of buildings on that privately owned land. It did not need to purchase that land to achieve that goal. The Court acknowledged that the Council may have been motivated partly by proper purposes in acquiring the additional land, although the Court does not make it clear what that proper purpose was. However, even if there were proper purposes involved, that would not save the decision. The Court stated that if a decision would not have been made but for the improper purpose, the decision involves an abuse of power. This principle is important when dealing with decisions that are motivated by both proper and improper purposes. It seems to me that the High Court took an overly narrow interpretation of what improvement of land involves, but that need not concern us here.

The duty not to take into account irrelevant considerations Apart from the powers of administrators being circumscribed in the sense that those powers must be exercised for legitimate purposes, the legislation conferring powers on administrators will often suggest a range of considerations which ought to be taken into account and also considerations which should not be taken into account. The propositions Mason J lists in Peko-Wallsend provide the classic statement of these ground of review. Indeed, he also refers to Wednesbury unreasonableness. PekoWallsend is also important on the question of delegation of power, which is covered in a later topic. Peko-Wallsend dealt with Aboriginal land rights. The conferral of land rights can be understood as a third phase in the interaction between indigenous and non-indigenous Australians. The first phase occurred principally in the 18th and 19th centuries, and it involved a drastic reduction in the indigenous population due to displacement, killing and new diseases. In the second phase, emerging Administrative Law 2021© – Eric Ghosh, UNE

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towards the end of the 19th century and continuing in the first half of the 20th century, remaining Aboriginal groups that hindered the expansion of the pastoral economy were segregated on reserves. Furthermore, there were policies in place to remove children of mixed blood from their mothers and communities and place them mostly in institutions. The idea was to segregate fullblood Aborigines in reserves controlled by white governors and to assimilate mixed-blood children into the white community. A third phase of interaction involved the conferral of a degree of self-determination. In the 1960s and early 70s, there was greater concern about how indigenous Australians were being treated. The policies of the past were increasingly viewed as racist. There was a greater receptiveness to the work of anthropologists. They had found a profound attachment by indigenous communities to their land. Instead of segregating traditional Aboriginal and Torres Strait Islanders on reserves, subject to the minute control of governors, the vision emerged of them being free to return to their own traditional lands, if they wished to and where that was possible, and obtaining some control over their own lives. With the resources available partly through ownership of their traditional land, they would be able to establish an economy which would sustain their communities. For those indigenous Australians living in urban settings, empowerment could lie, for instance, in the creation of representative institutions for indigenous people that would enable them, for instance, to have much greater influence upon government decisions especially affecting them. Perhaps the initiatives of the Howard government with the abolition of the Aboriginal and Torres Strait Islander Commission in 2004 and the Northern Territory intervention in 2007 represented a fourth phase of Aboriginal policy, in which the aspiration for self-determination is given less weight. Up until now, no institution designed to democratically represent indigenous people has replaced ATISC. In any case, it is the third phase, with its emphasis on self-determination, which provides the political context for Peko-Wallsend. It is out of the idea of self-determination that the call for Aboriginal land rights emerged, and one product of that was the Commonwealth Aboriginal Land Rights Act, which applied to the Northern Territory. This allowed Aboriginal groups to make claims with respect to vacant Crown land. They would achieve ownership of that land, and rights to its minerals. This Act, then, offered a challenge to pastoral and mining companies not used to the idea that their access to land may be restricted by indigenous groups. The Aboriginal Land Rights Act provides a procedure for determining a land rights claim. A land claim must first be lodged with the Aboriginal Land Commissioner, who is, or has been, a judge. The Aboriginal Land Commission will hold a hearing which leads to a report making recommendations to the Minister on whether a land claim should be granted. The ultimate decision is up to the Minister. It may be helpful to quote s 50 of the Act more fully than is found in the judgment of Mason J: (3) In making a report in connexion with a traditional land claim a Commissioner shall have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed, and shall comment on each of the following matters: (a)

the number of Aboriginals with traditional attachments to the land claimed who would be advantaged, and the nature and extent of the advantage that would accrue to those Aboriginals, if the claim were acceded to either in whole or in part; Administrative Law 2021© – Eric Ghosh, UNE

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the detriment to persons or communities including other Aboriginal groups that might result if the claim were acceded to either in whole or in part;

(c)

the effect which acceding to the claim either in whole or in part would have on the existing or proposed patterns of land usage in the region; and

(d)

where the claim relates to alienated Crown land—the cost of acquiring the interests of persons (other than the Crown) in the land concerned.

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(4) In carrying out his or her functions a Commissioner shall have regard to the following principles: (a)

Aboriginals who by choice are living at a place on the traditional country of the tribe or linguistic group to which they belong but do not have a right or entitlement to live at that place ought, where practicable, to be able to acquire secure occupancy of that place;

(b)

Aboriginals who are not living at a place on the traditional country of the tribe or linguistic group to which they belong but desire to live at such a place ought, where practicable, to be able to acquire secure occupancy of such a place.

The Commissioner in fact recommended that a land grant be made. The land in question included a uranium deposit over which Peko-Wallsend had applied for mineral leases. Peko-Wallsend claimed that the Commissioner’s report did not deal adequately with the effect the recommended land grant would have on its commercial activities. The company communicated its objection to successive Ministers. The responsible Minister decided to grant the land on the basis of a departmental brief which did not refer to the objection of Peko-Wallsend. The question was whether the Minister thereby failed to take into account a relevant consideration before making his decision. One argument was that even if there was a failure to take into account a relevant consideration, a remedy should not be provided to the company. What is important to recognise here is that administrative law remedies can sometimes, as a matter of discretion, be refused even where a ground of review has been established. The extracted discussion in the case might be more meaningful if the argument for refusing relief is clarified. This argument was accepted by Wilcox J in his dissenting judgment in the Full Federal Court. The respondent’s submission was that the Commissioner failed to take into account the commercial detriment arising from a land claim. This lay in the failure of the Commissioner to recognise that significant mineralised prospects existed within the area that was recommended for the claim. The reason for the Commissioner’s failure was that the respondent’s evidence before the Commissioner was vague and inaccurate with respect to the location of certain significant prospects, the most valuable of which was Ranger 68. The respondent was, then, complaining about faults in the Commissioner’s report which the respondent itself was responsible for creating. Wilcox J accepted that the reason for the misleading evidence was that for tactical reasons, the respondent decided to withhold information. Rather than pinpointing the precise prospects, the respondent may have thought there was a better chance of the land claim being rejected in totality if the precise location of prospects was not revealed. A pinpoint location may have led to a land claim being accepted which merely excised some particular areas, while the mineral lease covered the land in general. Wilcox J thought these circumstances sufficed to suggest that the Court should withhold a remedy even though the respondent had proved that an error of law had occurred. The majority, on the Administrative Law 2021© – Eric Ghosh, UNE

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other hand, thought that the errors in the respondents’ evidence which led to the inaccuracies in the Commissioner’s Report were innocent or, at least, understandable. The respondent may have been anxious that if the particular location of the site were disclosed, this might give an advantage to their competitors. Exactly what this advantage would be is not indicated with great clarity by the majority.

Unreasonableness Wednesbury was decided in 1946 and is emblematic of the judicial restraint that existed at the time.31 The actual restraint that was involved in this case is not only appreciated through the language the judges used but also the political context, as Michael Taggart has explained: In 1946, the people of Wednesbury had, by postal ballot, voted in favour of Sunday cinema opening. The cinema licensing authority was the local council, leading members of which had unsuccessfully opposed Sunday cinema on religious grounds. Pursuant to a statutory power to impose such conditions as it thought fit, the council banned children under 15 years of age, whether or not accompanied by an adult. The local Gaumont theatre challenged this decision as unreasonable… While a close study of the context suggests strongly that the upper class councillors tried to snatch a partial victory for their religious objection to Sunday cinema from the jaws of electoral defeat at the hands of the predominantly plebeian electors, the Court refused to see it that way and simply asserted that the physical and moral (including religious) well-being of the children were proper considerations for the local authority to take into account. 32

The emphasis on restraint found in the Court’s decision was partly pursued through contrasting judicial with appellate review. To appreciate this contrast, it is helpful to note that judicial review is a creature of the common law and appellate review is a creature of statute. There are different types of statutory review available, but the Court would have had in mind the appellate power it enjoyed. The English Court of Appeal could set aside a decision if satisfied that it was clearly wrong based on the law and evidence as it stood at the time of that decision. The Court could also substitute the decision that should have been made at first instance. A clear distinction with judicial review is that successful judicial review leads generally to quashing decisions rather than substituting a new decision. Substituting a new decision could breach the separation of powers, unlike with appellate review. However, the distinction between a decision that is ‘clearly wrong’ and a decision which is unreasonable is less clear. It is one of degree. An appellate court setting aside a decision need not be concerned about breaching the separation of powers. While Wednesbury emphasised restraint, courts became more activist in judicial review in the UK from the 1960s. In this context, Wednesbury was often cited in indicating abuse of power grounds. You will see in the case that various grounds are listed. However, focusing on the ground of unreasonableness, this is clearly a highly flexible notion. One can cite this case while in fact applying more exacting scrutiny than was actually applied in Wednesbury. On the other hand, the formulation in Wednesbury has been criticised. Indeed, this ground was more significant when decisions were

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Michael Taggart, ‘Proportionality, deference, Wednesbury’ [2008] New Zealand Law Review 423, 428. Michael Taggart, ‘Wednesbury unreasonableness’ in Peter Cane and Joanne Conaghan, The New Oxford Companion to Law (Oxford University Press, 2008) 55. Administrative Law 2021© – Eric Ghosh, UNE

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more frequently unaccompanied by reasons. Where reasons are available, one should first attempt to apply the more precise grounds of review, such as the other grounds covered in this topic. Judicial reluctance to apply this ground too readily is partly due to its vagueness and the boundary between it and merits review appearing to be especially elusive. Nevertheless, the unreasonableness ground does get applied in contexts where reasons are provided for decisions. Indeed, the restraint suggested by the idea that the impugned decision could not have been reached by a reasonable person has been criticised. Hayne, Kiefel and Bell JJ in Minister for Immigration v Li (2013) 249 CLR 332 said at [68]: ‘Lord Greene MR’s oft-quoted formulation of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision’. And at [76]: ‘Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification’. While this more liberal approach has been applied in various cases, the concerns about the vagueness of this ground of unreasonableness and the possibility of it veering into merits review remain. There are also High Court cases that continue to apply a less liberal approach and emphasise the stringency of the unreasonableness test.33 There have also been academic attempts to add some specificity to the ground. Margaret Allars suggests that there are some paradigms of unreasonableness, and I will refer to two of them here. One paradigm is unjustifiable discrimination, eg, conferring a benefit or detriment unequally amongst members of a class who are equally deserving. A second paradigm is disproportionality, which involves a lack of reasonable proportionality between the means used to achieve a particular end and the value of that end.

Questions 1. Assume an individual motivated by proper and improper purposes. How significant should t...