Administrative law

A PROJECT ON

Irrelevant consideration in use of administrative powerss

SUBMITTED TO:MS. Anukriti mishra

(FACULTY OF administrative law)

SUBMITTED BY:-

Kapil maini
(ROLL NO: - 62, SEM Vi A", BATCH: XI)

HIDAYATULLAH

NATIONAL LAW

UNIVERSITY RAIPUR, (C.G.)

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ACKNOWLEDGEMENTS

I would like to sincerely thank our Administrative law teacher Ms. Anukriti Mishra for giving me this project which has widened my knowledge on the scope . His guidance and support has been instrumental in the completion of this project. Id also like to thank all the authors, writers, columnists and social thinkers whose ideas and works have been made use of in the completion of this project. My heartfelt gratitude also goes out to the staff and administration of HNLU for the infrastructure in the form of our library and IT lab that was a source of great help in the completion of this project. I also thank my friends for their precious inputs which have been very helpful in the completion of this project.

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Table of Contents

ACKNOWLEDGEMENTS ........................................................................................................................... 1 OBJECTIVE ............................................................................................................................................... 3 RESEARCH METHODOLOGY .................................................................................................................. 3 INTRODUCTION ....................................................................................................................................... 4 RATIONALE FOR JUDICIAL REVIEW ......................................................................................................... 6 ACTING WITHIN POWER ..................................................................................................................... 7 PROCEDURAL FAIRNESS ...................................................................................................................... 7 RELEVANT AND IRRELEVANT CONSIDERATIONS..................................................................................... 8 THE FORMULATION OF REASONS ....................................................................................................... 9 Considering Irrelevant Matters ............................................................................................................. 10 The Criteria Of Relevance ................................................................................................................. 10 The Matters That Were Considered ................................................................................................. 11 Undefined Discretion ........................................................................................................................ 13 Public interest ................................................................................................................................... 13 IRRELEVANT CONSIDERATIONS AS GROUND OF JUDICIAL REVIEW ..................................................... 15 Consideration Be Irrelevant If The Discretionary Power Is Expressed Widely .................................. 16 CONCLUSION......................................................................................................................................... 18

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OBJECTIVE
To study and explore the administrative powers. To study and highlight the rationally for judicial review. To find the relevant and irrelevant consideration in administrative functions. To find the irrelevant consideration as ground of judicial review .

RESEARCH METHODOLOGY
The method of research adopted for the project is analytical methodology. For the present project relevant data and information has been received and collected from secondary

sources and there has been use of authentic books and websites which provided reliable information and data.

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INTRODUCTION
In the middle of the 19th Century two seminal decisions of the English Courts applied what were then called the principles of natural justice. In Dimes v Proprietors of Grand Junction Canal1, the House of Lords held that Lord Chelmsford, the Lord Chancellor, could not sit as a judge in a case in which he had a significant financial interest in one of the parties. The second case, Cooper v Wandsworth Board of Works2, held that it had been unlawful for the Board to have demolished the plaintiffs house under an order which it had made pursuant to a statutory power when it had not given the plaintiff the opportunity to appear before it to contest the making of the order. There Byles J3 traced the heritage of the rule, referring to observations of Fortescue J in 1723 in Dr Bentleys Case4 where he said5: God himself would not condemn Adam for his transgression until he had called him to know what he could say in his defence: Gen: iii.9 Today, these rules have been rechristened, or, to use the advertisers vernacular, rebranded, as the rules of procedural fairness comprising, the bias rule and the fair hearing rule. Administrative decision-making which involves the application of these rules is not akin to Groucho Marx prescription for commercial success. He said: The key to success in business is honesty and fair dealing if you can fake those youve got it made. The fact that the 19th Century cases, which I have mentioned, both involved the exercise of powers, one judicial, the other administrative, in respect of property should not be taken as confining the application of the rules of procedural fairness or other constraints attending the exercise of powers merely to proprietary rights. In both the 20th and the present century, accompanying the enormous growth in the size and reach of government, there has been an exponential expansion of the range of matters in which administrative decisions may be taken that affect people in their person or property. In the Commonwealth constitutional context
1 2 3 4 5

(1852) 3 HL Cas 759 [10 ER 301]. (1863) 14 CBNS 180. 14 CBNS at 185. The King v The Chancellor & c of Cambridge (1723) 1 Str 557; 8 Mod 148 at 164; 2 Ld Raym 1334. 8 Mod at 164.

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there is a clear demarcation or separation of the powers given to the three branches of government: the executive, the Parliament and the judiciary. That division is conventional but not always apposite in the context of State and Territory decision-making. However, whatever the source of power to make a decision of an administrative or quasi administrative nature, the Courts will approach judicial review informed by a presumption that the power conferred is likely to be affected by express or implied constitutional or legislative intentions that it is to be exercised by reference to certain considerations. Some of these considerations will be examined after reflecting briefly on the rationale and scope of judicial review. Challenges and new developments will be touched upon with some suggestions to assist in the difficult and challenging tasks which fall to administrative decision-makers of ensuring that their decisions are made after adherence to the processes mandated by law.

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RATIONALE FOR JUDICIAL REVIEW

Frequently judicial review is seen as an intrusion on the executives powers. However, that is not so at all. The historical source of judicial review lies in the protection by the courts of the royal prerogative which sought to prevent the usurpation of power by those who had not been authorized by law to exercise it. Prerogative relief ran from the Superior Courts at

Westminster Hall in London not only to administrative decision-makers but also to other, inferior, courts that had exceeded their jurisdiction or powers by doing that which they were not authorized to do by law. In the Australian context there is no exact equivalent because federal courts owe their existence and powers to the Constitution and laws made under it, while State Supreme Courts are no longer courts of unlimited jurisdiction6. It is an important and vital protection for a democratic society that the Superior Courts be able to supervise the exercise of administrative or quasi judicial power over or affecting persons or property. It is, of course, well established that it is for the repository of a power confided by statute to determine whether the power ought be exercised or not on the merits as the repository sees them7. The courts responsibility is to review the procedure followed by the repository to ensure that the procedure conformed to what was required to be followed under the express or necessarily intended requirements of the statute and any applicable common law principles. Only if the repository conducted the procedure by which he, or she, or it reached the decision in a manner which did not conform with the conditions which the law mandated, does the power of the court to interfere with the decision arise. That power, previously described as prerogative, and now, in the Commonwealth context as constitutional, is to ensure that inferior tribunals and repositories of power do not exceed the jurisdiction which by law has been committed to them by, inter alia, adopting a step, a procedure, or a step in their procedures which was unauthorized.

Re McJannet; Ex parte Minister for Employment Training and Industrial Relations (Q) (1995) 184 CLR 620 at 652-653 per Toohey, McHugh and Gummow JJ

see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan

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ACTING WITHIN POWER

First, the decision-maker must understand the precise nature, extent and scope of the power which he or she or it is being called upon to decide whether or not to exercise. A failure to understand what the power is can be fatal to a decision. A decision-maker can be forgiven for not understanding some statutory powers because they are couched in language or found in statutes that raise an almost impenetrable fog as to their proper construction. For the correct approach to statutory construction see Project Blue Sky Inc v Australian Broadcasting Authority8. I will not pause to mention those models of legislative clarity such as the 4 volumes of the Income Tax Assessment Act 1936, or the also ever changing Migration Act 1958 and Corporations Act 2001. But the Atlanta Journal noted that the Ten Commandments contain 297 words, the United States Constitutions Bill of Rights contained 463, Lincolns Gettysburg address, 266 words and an American regulation dealing with the price of cabbage apparently contained 26,911 words. So, we are not alone.

PROCEDURAL FAIRNESS
Secondly, the rules of procedural fairness, or principles of natural justice, usually attend the making of a decision. However, as has now happened under the Migration Act 1958, occasionally legislatures modify or eliminate these rules, although not always with the consequences which they intended. Thus, the Parliament9 refashioned the rules by providing in s 422B that:This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Whether the Parliament achieved its aim will depend on the extent to which the courts find that the procedures codified in statute deal with matters with which the common law would otherwise deal. The very expression of that concept indicates a number of possible outcomes.

8 9

(1998) 194 CLR 355 by enacting the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth); amendments came into effect on 4 July 2002 these

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However, a Full Court of the Federal Court has held that the expression in relation to the matters it deals with is intended to overcome the effect of the High Courts decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah10. A decision-maker need not consider in each case, whether there is an applicable common law rule of natural justice and then examine the relevant sections to see whether it was expressly dealt with11. That is fortunate because the courts recognize that a decision-maker is likely to be a person without legal qualifications and Parliament could not have intended that the uncertainties of the common law rules were in some unspecified way and to some unspecified extent, to survive12.

RELEVANT AND IRRELEVANT CONSIDERATIONS

A third fundamental concept in administrative decision-making is that the decision-maker must have regard to considerations which are relevant to the exercise of a power and must, conversely, ignore considerations which are irrelevant to that. A failure to take into account a consideration can only amount to a jurisdictional error if it be a matter which the decisionmaker was bound to take into account in making the decision13. Keeping ones eye on the administrative ball in this way ensures that decision-makers do not exceed their authority by deciding matters on bases that are not open to them. The factors which determine whether a matter is one to which the decision-maker is bound to have regard are determined by the proper construction of the legislation, which may refer expressly to matters or necessarily imply that something is relevant. If the discretion to be exercised is unconfined, the decision-maker is authorized to consider any matter unless, having regard to the subject-matter, scope and purpose of the legislation it appears to be irrelevant to the exercise of the power14. Consideration of irrelevant material or the failure to consider

10

(2001) 206 CLR 57 see Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [64]

11 12 13 14

Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [69] [2006] FCAFC 61 at [70] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J

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relevant material in a manner that affects the exercise of power constitutes jurisdictional error15.

THE FORMULATION OF REASONS

In the Commonwealth context most decision-makers can be required to give reasons16. The approach taken to judicial review by Australian Courts reflects an awareness of the boundaries of judicial review17. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang18 Brennan CJ, Toohey, McHugh and Gummow JJ said: the reasons of an administrative decision maker are meant to inform and not be scrutinized upon by overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. Various cases provide some guidance as to the content of reasons19. It may not be an error for the decision-maker to fail to discuss why contrary evidence was not accepted or to fail to discuss every conflict in the evidence in its reasons20. In Minister for Immigration Multicultural and Indigenous Affairs v Yusuf
21

it was held that it was sufficient if the

decision-maker sets out its findings on those questions of fact which it considered to be material to the decision and to the reasons it had for reaching that decision.22 This process focuses on the subjective thought processes of the decision-maker. It also entitles a court to infer that any matter not mentioned was not considered by the Tribunal to be
15

Minister for Immigration v Yusuf (2001) 206 CLR 323, 350-352 at [80]-[83]

16

see: s 13 of the Administrative Decisions (Judicial Review) Act 1977 and s 28 of the Administrative Appeals Tribunal Act 1975: see too s 25D of the Acts Interpretation Act 1901 and Dalton v Federal Commissioner of Taxation (1986) 160 CLR 246

17 18 19

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40-41 per Mason J (1996) 185 CLR 186 at 272 Military Rehabilitation and Compensation Commission v SRGGG (2005) 215 ALR 459. Comcare v Forbutt [2000] FCA 837 These decisions have since been cited with approval in the Full Federal Court decision of McGuire v Military Rehabilitation and Compensation Commission [2005] FCAFC 52 at [33]

20 21 22

215 ALR 459 at 480 [96]. See also Commonwealth v Angela (1992) 34 FCR 313 (2001) 206 CLR 323 at 346 [68] per McHugh, Gummow and Hayne JJ Ibid.

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material.23

That may reveal the presence of a jurisdictional error such as taking into

account an irrelevant consideration or not taking into account a relevant consideration.

Considering Irrelevant Matters

A decision may be invalid (where an irrelevant consideration has been taken into account by a decision-maker. This common law principle is also a ground of review in the Administrative Decisions (Judicial Review), Act 1977 ADJR Act Sec 5 (2) (a). Two issues commonly arise in applying this criterion:24 1. What matters were taken into account by a decision-maker? This is primarily an issue of fact, to be answered by analysis of evidence. 2. Were any of the matters that were taken into account an irrelevant consideration? This is commonly an issue of law, resolved by construction of the statute that confers a power.

The Criteria Of Relevance

A criteria of relevance may also be found outside a statute, by reference to other aspects of the legal framework within which decision-making occurs. A court will be cautious in deciding that an issue that was taken into account was irrelevant. In the simplest scenario, the legislation will exhaustively list the considerations or factors that can be taken into account. However, more often it will be necessary to draw inferences from other features of the legislation, including:25

23 24 25

Language of the statute Purpose or object The subject matter of the statute

(2001) 206 CLR 323 at 346 [69] per McHugh, Gummow and Hayne JJ Administrative Decisions (Judicial Review), Act 1977 R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012., Page

504.

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The nature of the power being exercised The nature of the office held by the decision-maker

The scope of relevant considerations can be read expansively (Murphyores Inc Pty Ltd)26 or restrictively (Roberts).27 In some situations, the statute may give little guidance because the discretions it confers are unconfined or open-textured or embody expansive notions like public interest. The principal focus will always be the words of the statute but other legal assumptions may be taken into account by the court, such as:

A general legal presumption that legislation can never be administered to advance the personal interests of the decision-maker

International conventions Humanitarian considerations Racial and sexual bias would be an irrelevant consideration as a result of antidiscrimination legislation

Serious factual errors may be equated with irrelevant considerations

The Matters That Were Considered

A conclusion that a particular matter was considered can often be drawn from such evidence as:28

A statement of reasons Contemporaneous administrative decisions Reliance by the decision maker upon an irrelevant policy statement The adoption by a minister of a briefing paper that misstates that law to be applied.

26 27 28

Murphyores Inc Pty Ltd v Commonwealth(1976) 136 CLR 1. Roberts v Hopwood [1925] AC 578. R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary , 3rd ed, 2012, Page

505.

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Burchett J makes it clear that a decision-maker may examine an irrelevant consideration or red herring and discard it so long as he does not allow it to affect his decision. 29A court may also look behind a statement by a decision-maker disavowing that an irrelevant matter was considered. Unless the consideration was insignificant, an irrelevant consideration will vitiate a decision. Water Conservation and Irrigation Commission (NSW) v Browning30 Facts: the Irrigation Commission had the power to grant transferral of irrigation leases. The Commission refused a transfer of a lease to the appellant on the core ground that he was Italian and they had a policy against giving leases to Italians (because they were an enemy of the country (WWII time)). The Supreme Court of NSW invalidated the decision on the basis of irrelevant considerations, saying that the only relevant consideration is whether the transferee is a good/desirable farmer. Issue: Which considerations are irrelevant? Held: the commission had found from experience as a general rule, Italians are not good farmers under irrigation methods and considered it to be most undesirable that any further aggregation of Italians be built up on an irrigation area.

This means that the commission in fact refused the transfer according to the right criterion - ie, because the appellant was an undesirable farmer.

Provided the assessment was made in good faith, it is not for the court to examine the justness of that assessment - assessing capable farmers is the job of the commission and not the court.

The statute did not expressly state the considerations that should be taken into account and the discretion it conferred was undefined (but this does not mean it was arbitrary or unlimited).

Note: the case would definitely be decided differently today.

29 30

Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127. (1947) 74 CLR 492.

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Undefined Discretion

The principle as to the proper construction of an undefined statutory discretion espoused by Dixon J in Browning has been consistently approved by the High Court and was restated in OSullivan:31 Where a power to decide is conferred by a statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made.

Public interest
The court in OSullivan went on to caution against applying the maxim expression unius est exclusion alterius (the express mention of one thing implies the exclusion of an alternative thing) so as to limit the scope of a statutory discretion.

Specifically, the court held that public interest considerations could ordinarily be taken into account unless there was a positive indication that they were excluded.

The same approach was taken in R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd,32 where the issue was whether the Broadcasting Tribunal could refuse consent to the transfer of a radio broadcasting licence from one owner to another, on the public interest ground that it was important to avoid a concentration of media ownership. In Director of Public Prosecutions v Smith,33 the court said The public interest is a term embracing matters, among others, of standards of human conduct and the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its

31 32 33

OSullivan v Farrer (1989) 168 CLR 210. (1979) 144 CLR 45 1991] 1 VR 63.

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members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.

Lehane J noted that That Court should be slow indeed to find reviewable error in a ministers decision as to what the public interest requires.34 McKinnon v Secretary, Department of Treasury35 concerned the requirement in a freedom of information statute that an internal working document was exempt from disclosure only if disclosure would be contrary to the public interest:

Such judgement, however, is not made in a normative vacuum. It is made in the context of, and for the purposes of, legislation which has the object... which begins from the premise of a public right of access to official documents...

In Osland,36 a case involving a woman imprisoned for the murder of her husband who claimed she had been a battered wife, the court noted that The exercise of the prerogative of mercy in relation to a person convicted of murder engages the public interest at a high level of importance. In Oshlack v Richmond River Council,37 the High Court decided that it was relevant to consider the public interest character of litigation (in this case, to halt development in a koala habitat) in deciding that a costs order should not be made against the unsuccessful plaintiff. In Momcilovic,[15]38 Heydon J noted the interpretational difficulty of the term public interest, when expressly included in the legislation, as it prevents providing objectively determinable criteria and leaves the courts to their own idiosyncratic conceptions and modes of thought.

34 35 36 37 38

Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537. (2006) 229 ALR 187. Osland v Secretary, Department of Justice (2010) 116 ALD 1. (1998) 193 CLR 72. Momcilovic v The Queen (2011) 280 ALR 221.

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IRRELEVANT CONSIDERATIONS AS GROUND OF JUDICIAL REVIEW

Administrative decision-makers must not take into account irrelevant considerations when exercising their discretionary powers. Administrative Decisions (Judicial Review), Act 1977 (ADJR Act) provisions:

Section 5(1)(e), when read with s 5(2)(a), allows a decision to be challenged on the basis that a decision-maker took into account an irrelevant consideration when exercising administrative power.39

Applications for review of decisions (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds: (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; (2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: ... (a) taking an irrelevant consideration into account in the exercise of a power;

To determine whether an irrelevant consideration was taken into account o ascertain what was in fact taken into account by the decision-maker; and o assess whether anything taken into account was irrelevant.

39

Administrative Decisions (Judicial Review), Act 1977

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Consideration Be Irrelevant If The Discretionary Power Is Expressed Widely

Padfield v Minister of Agriculture, Fisheries and Food40
Relevant statutory provisions: The Agricultural Marketing Act 1958 (UK) (the Act) established a milk marketing scheme and Milk Marketing Board. Under the scheme, milk producers in England and Wales were obliged to sell their milk to the Board. The Board would then market and sell the milk to the consuming public. The price paid by the Board to a producer was fixed by the Board and depended on where the producer was geographically based (the scheme divided England and Wales into 11 regions for this purpose). Section 19(3) of the Act contemplated that complaints could be made by anyone to the Minister concerning the operation of any milk marketing scheme. Section 19(3)(b) obliged a committee of investigation to consider and report back to the Minister on any such complaints if the Minister in any case so directs.

Facts: Messrs Padfield, Loveys-Brock and Steven (the Applicants/Appellants) were 3 members of the 12-member Milk Board who represented the interests of the milk producers of the southeastern region. Padfield proposed that the price paid per gallon of milk to south eastern producers should be increased because of the higher transport costs incurred by those producers. The Board rejected this proposal. Padfield complained to the Minister and asked that this complaint be referred to a committee of investigation pursuant to s 19(3)(b). The Minister refused to refer the complaint to a committee because the complaint was of course, one that raises wide issues going beyond the immediate concern of [Padfield, LoveysBrock and Steven] . and would also affect the interests of other regions and involve the
40

[1968] AC 997 (House of Lords)

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regional price structure as a whole. It was said the Minister had an unfettered discretion to refer a complaint to the committee of investigation. Padfield, Loveys-Brock and Steven challenged the Ministers refusal. Held (Lord Reid): Parliament must have conferred the Ministers discretionary power to refer a complaint with the intention that it should be used to promote the policy and objects of the Act. The policy and objects of the Act must be determined by construing the Act as a whole. If the Minister uses his discretion so as to thwart or run counter to the policy and objects of the Act, the Court will intervene. Held (Lord Hodson): A repository of administrative decision-making power must not allow itself to be influenced by something extraneous and extra-judicial which ought not to have affected its decision. Held (Lord Pearce): The Minister must properly consider the complaint. He cannot throw it unread into the waste paper basket. He cannot simply say "I think that in general the investigation of complaints has a disruptive effect on the scheme and leads to more trouble than (on balance) it is worth; I shall therefore never refer anything to the committee of investigation". To allow him to do so would be to give him power to set aside for his period as Minister the obvious intention of Parliament.

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CONCLUSION

Decisions should be and also appear to be rational and reasonable. An absence of rationality can result in finding that the decision is infected with jurisdictional error. An example of this is when a decision maker acts on material that forms an inadequate basis for the findings made. This is because the inadequacy may support an inference that the decisionmaker had applied the wrong test or was not in reality satisfied of the requisite matters41. The demonstration of a defect in an irrational or unreasonable decision may lie in the evidentiary foundation relied on or available, or the logical process by which conclusions are sought to be drawn from it42. Moreover, decision-makers cannot merely engage in speculation, or rely on suspicions or impressions in forming reasons for decisions43. The ground of unreasonableness can overlap with the ground that the decision maker took into account irrelevant, or failed to take into account a relevant, consideration44. Nonetheless, the jurisdiction of the courts in the area of judicial review has not developed without challenge by the legislature. The Administrative Law Council, in their report

launched only last week, addressed the question of the desirable scope and circumstances in which limitations on judicial review may be justified. .
41

Re Minister for Immigration and Multicultulral and Indigenous Affairs; Ex parte Palme 216 CLR 212 at 223 [39] at 223 [39] applying R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120

42

Corporation of City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 150 [34]; see too per Iacobucci J in Canada (Direction of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at 776-777 [56] referred to by Gummow J in Minister for Immigration v Eshetu (1999) 197 CLR 611 at 657 [145] and Lee J in M164/2002 v Minister for Immigration and Multicultulral and Indigenous Affairs [2006] FCAFC 16 at [81]

43

Applicant M164/2002 v Minister for Immigration and Multicultulral and Indigenous Affairs [2006] FCAFC 16 at [80], [86]-[92] per Lee J

44

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40

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