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Week 5 Unathorised Decision Making (principle of legality (Principle of…

- - - - MacDonald v Hamence (1984) 1 FCR 45 at 50.
        “There are many activities in the ordinary course of administering the affairs of government that may be carried on independently of any statutory provision expressly or impliedly authorising the particular activity”
        
        conducting public relations MacDonald v Hamence (1984) 1 FCR 45 at 50;
        
        undertaking inquiries Clough v Leahy (1904) 2 CLR 139
        
        creating community assistance programs Victoria v Commonwealth (AAP case) (1975) 134 CLR 338
        
        incorporating a company to discharge government business Davis v Commonwealth (1988) 166 CLR 79;
        
        managing and developing property Johnson v Kent (1975) 132 CLR 164
        
        conducting legal proceedings Dixon v Attorney-General (1987) 15 FCR 338
        
        entering into contracts NSW v Bardolph (1934) 52 CLR 455
        
        restricting participation in an inquiry Kingham v Cole (2002) 118 FCR 289
        
        implementing an anti-discrimination program Taranto (1980) Pty Ltd v Madigan (1988) 81 ALR 208
        
        publishing a building industry blacklist Victoria v Master Builders’ Association of Victoria [1995] 2 VR 121
        
        requesting extradition Mokbel v Attorney-General (2007) 162 FCR 296
    - - An executive decision will only require special legal authority if it interferes with the rights of people: Entick v Carrington (1765) 19 St Tr 1030); R v Somerset County Council; Ex parte Fewings (1995) 3 All ER 20 at 25
        
        Entick v Carrington (1765) 19 St Tr 1030)
        
        “By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.”
        
        R v Somerset County Council; Ex parte Fewings (1995) 3 All ER 20
        
        “To the famous question asked by the owner of the vineyard: ‘Is it not lawful for me to do what I will with mine own?’ (St Matthew xx. 15) the modern answer would be clear: ‘Yes, subject to such regulatory and other constraints as the law imposes.’ But if the same question were posed by a local authority the answer would be different. It would be: ‘No, it is not lawful for you to do anything save what the law expressly or impliedly authorises. You enjoy no unfettered discretions. There are legal limits to every power you have.’ As Laws J put it, the rule for local authorities is that any action to be taken must be justified by positive law.”
        
        Tutorial notes regarding the exec exercise of law;
        The is no need for positive law for every decision made by the exec
        There can be an implied authority as authorised under common law that the exec can act in certain ways without the need for positive law or stat authorisation
        
        Tutorial Note
        Source of authority need not only be constitutional or statutory authority it is also recognised that there are certain common law powers that the court recognise as inherent to the exec.
        There must be an impact on the right of the individual, if there is no right involved then it is difficult to claim that a positive law is involved.
    - - A v Hayden (No 2) (1984) 156 CLR 532
        
        Even if there is a lawful authority, the executive action still has constraints: constitutional, statutory, common law.
      - An executive decision that interferes with rights may be unauthorized if:
        
        it is ultra vires or beyond power, i.e. there is a statutory law authorizing the decision-making, but it is exercised beyond power
        
        the purported legal authority for the decision-making is unlawful, i.e. the legal authority violates the Constitution or is contrary to law.
        
        it is not authorized by a law, i.e. there is no statutory law that allows or authorises such decision to be made
  - - - • S 5(1)(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made
      - • S 5(1)(c) that the person who purported to make the decision did not have jurisdiction to make the decision
      - s 5(1)(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed
      - • S 5(1)(f) that the decision involved an error of law, whether or not the error appears on the record of the decision
      - s 5(1)(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made
    - - (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.