WEEK 6 Statutory Purpose and Relevant Considerations (decision-maker must…
WEEK 6 Statutory Purpose and Relevant Considerations
decision-maker must observe three key rules in making a decision or in exercising a statutory power
, he must exercise a statutory power according to the purpose for which it was conferred;
The exercise of a power for a different or ulterior purpose would be illegal and invalid:
Brownells Ltd v Ironmongers’ Wages Board
(1950) 81 CLR 108 at 119-120.
But if a power is conferred by statute upon a body in such terms that it appears that the power was conferred for a particular purpose, the power must be exercised only for that purpose, and if it was shown that the power was exercised for a purpose which was “beyond the scope of or not justified by the instrument creating the power” (Vatcher v. Paull (1915) AC 372, at p 378), then such an exercise of the power will not be valid.
The principle in Brownells Ltd v Ironmongers’ Wages Board (1950) 81 CLR 108 has been incorporated in s 5(2)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
Administrative Decisions (Judicial Review) Act 1977 (Cth) 5(2)(c)
The provision provides that an order of review can be sought in respect of “an exercise of power for a purpose other than a purpose for which the power is conferred”.
But whether a power has been exercised for a purpose for which it is conferred is not always straightforward. This question arises in at least two instances:
1) when a statute fails to expressly and clearly state its purpose, and
can lead to the issue of determining whether a power was exercised by a decision-maker according to the purpose for which it was conferred
In those instances when a statute fails to expressly and clearly state its purpose, recourse to techniques of statutory interpretation may be made to determine the implied purpose of the statute, such as by examining the title, structure and text of a statute, as well as the nature of the power that is exercised
R v Toohey; Ex parte Northern Land Council
(1981) 151 CLR 170;
Schlieske v Minister for Immigration and Ethnic Affairs
(1988) 84 ALR 719.
2) when a decision fails to expressly and clearly state or indicate its purpose.
decision-maker may have decided on the basis;
of an improper purpose (i.e. one not authorised by a statute),
considered irrelevant matters or considerations, or
had ulterior or improper motives.
The difficulty of determining whether a power has been exercised according to a statutory purpose for which it was conferred is heightened when a statute supports multiple purposes.
The rule is simple
: where a statute authorises a power to be exercised for specified purposes, such power
be exercised for different purposes
Municipal Council of Sydney v Campbell
(1925) AC 338
A body authorised to (do an act) for specified purposes, will not be permitted to exercise its powers for different purposes, and if it attempts to do so, the Courts will interfere… ‘Whether it does so or not is a question of fact
two cases tell us that when a law does not specifically state the purpose for which a power is to be exercised, it does not mean that a power conferred by that law is unlimited and unqualified.
2 more items...
related question whether the exercise of a power according to specified statutory purposes is valid even if it also had an ulterior and improper purpose
1 more item...
, in exercising his statutory power, he must not take into account irrelevant considerations;
rule was expressed in
R v Trebilco
(1936) 56 CLR 20 in the High Court by Latham CJ who said that a court can intervene when a decision-maker “took extraneous considerations into account.”
Rule now enshrined in
Administrative Decisions (Judicial Review)
Act 1977, which provides in s 5(2)(a)
that an order of review can be sought in respect of “taking an irrelevant consideration into account in the exercise of a power.”
1) What is an irrelevant consideration?
Murphyores Inc Pty Ltd v Commonwealth
(1976) 136 CLR 1, Stephen J
“all corrupt or entirely personal and whimsical considerations, considerations which are unconnected with proper governmental administration.”
R v Trebilco
(1936) 56 CLR 20
“such as circumstances which had no relation whatever to the position of an applicant as a taxpayer or to his financial capacity or to land taxation—such as, for example, the fact that the applicant was engaged in some occupation of which the board disapproved”
2) Would taking account of an irrelevant consideration necessarily vitiate a decision?
Klein v Domus Pty Ltd
(1963) 109 CLR 467
For a decision to be vitiated, the irrelevant consideration must be the “dominating, actuating reason for the decision”
Australian Conservation Foundation v Forestry Commission
(1988) 19 FCR 127
It is true that a decision-maker may not take account of an irrelevant consideration; but I think he may pick up a red herring, turn it over and examine it, and then put it down, so long as he does not allow it to affect his decision.”
, in exercising his statutory power, he must take relevant matters into account.
A failure by a decision-maker to observe this rule may invalidate a decision:
R v Australian Broadcasting Tribunal; Ex parte Hardiman
(1980) 144 CLR 13
Administrative Decisions (Judicial Review) Act
1977, which provides in s 5(2)(b)
that an order of review can be sought in respect of “failing to take a relevant consideration into account in the exercise of a power.”
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
(1986) 163 CLR 24
a decision-maker has an obligation or duty to take relevant matters into account in making a decision only when so required expressly or impliedly by a statute
Sean Investments Pty Ltd v MacKellar
(1981) 38 ALR 363,
a party has no right “to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
(1986) 163 CLR 24 gave a treatise on the rule concerning a failure to take into account a relevant consideration
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive
(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.
(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision
(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind.