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Judicial Review Grounds Ii Notes

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This is an extract of our Judicial Review Grounds Ii document, which we sell as part of our Administrative Law Notes collection written by the top tier of University Of New South Wales students.

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- Judicial Review Grounds II


Legislation conferring power invariably nominates one to exercise it (minister, secretary etc.) and the validity of the decision can hinge on whether it was made by the person such nominated o


But in reality governments can seldom practically make all decisions and hence legislation authorizes for the power to delegate - but even this is unlikely to cope with all situations and sometimes the authorized decision-maker mightn't be available but there is a pressing need for a decision to be made o


Note: delegates non potest delegare - a delegate cannot delegate

But there is the competing risk on public law ideals: the more dispersed a power the harder it is to ensure consistency and central managerial and political control

These competing considerations are resolved with four categories of authorized decisionmaking o

Principal - The person nominated by legislation - retains the authority even if delegated, Acts Int Act s34AB(d)


Delegate - the person/officer to whom the power is delegated by written instrument signed by the principal, pursuant to an authority conferred by legislation. The scope of his power need not match that of the principal - but he acts independently and cannot act at the behest of another (just like the principal). The delegate is expected to sign in his name and not that of the principal


Agent - In limited circumstances acts on the principal/delegate's behalf; generally must be a matter of 'practical administrative necessity' (Re Reference). The arrangement need not be established in formal writing since it is a matter of practical necessity. The agent's authority ceases when the principal leaves office, unlike a delegate (Kelly v Watson)


Administrative Assistant - Designated decision-maker can obtain assistance from others (research, interviews, prepare briefing papers etc.), does not need to be authorized formally or under delegation; the difficulty is in what work can be done by the assistant and what must be done by the decision-maker

Re Reference under Section 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex parte DirectorGeneral of Social Services (1979) 2 ALD 86

Facts: The Ombudsman Act s11 provided that the Cth Ombudsman could request agencies to refer questions to the AAT for advisory opinion - this particular one arose out of Green v Daniels concerning the validity of decisions made by a delegate of the D-G of SS to affirm an earlier decision refusing unemployment benefits to a school leaver. The delegate, Mr Prowse, signed the letter as LJ Daniels - the director general, with his own initials alongside. The tribunal held that this was an invalid exercise of his delegated power Brennan J (President):


Acts done in statutory power are valid if they fall within the statutory provision conferring it - but prima facie it does not fall within the statute unless done by the person to whom the

statute reposes the power


Where powers of an authority are non-delegable but practically must be exercised by another
- then there are classes of acts done by others on behalf of the authority which should be treated as though they were of the authority o


Lord Greene MR in Carltona rationale for this hinged on the doctrine of ministerial responsibility

The extent to which an authority can commit to other officials the performance of duties depends on the nature of the power so exercised and is to be considered with due regard to: I.

The purpose and objects of the statute

II. The character of the power conferred

III. The exigencies of the occasions which may arise with respect to its exercise

IV. Other relevant considerations (Ex Parte Forster; Re USYD)


Where power is not delegable, the only power that can be exercised is acts of the authority and acts which, if they can authorize another to do, acts of the other - but both occur in the name of the authority


But when the power is delegable, the delegate can act in effective exercise of the power with his acts not treated as vicariously done by the authority - he is not an agent of the authority's power and must exercise the power in his own name (Owen Dale v Anthony)

The Question in this case - can a departmental officer that is delegated elect whether to act as a delegate of power or an officer exercising the power of the D-G?


To assume so would be to assume that the officer has a duel character and can exercise his own power and the power vested in another - but this is not so in the case of the Social Services Act. o

The practical administrative necessity which warrants an authority's exercising his power by the acts of another disappears when the authority is empowered to delegate all of his powers and functions to that other


Here the function of deciding whether a reviewable decision exists and exercising the power is so intertwined that they must be exercised by the same person - here it would be fanciful for P to regard himself as exercising any other power than his own


On a matter of administration signing in Daniels name is defective and would mislead one into believing that there was no possible appeal to a higher official


There is also no justification for the idea that delegate's interests (possibility that they will be harassed by citizens if their identity is known) should be shielded as a matter of administrative policy. If the responsibility for decision-making is lifted from their shoulders so to should the power.

O'Reilly v Commissioner of State Bank of Victoria (1982) 153 CLR 1

Facts: The Income Tax Assessment Act s25 provided that the Commissioner of Tax can require a person to give evidence or produce documents. S 8(1) of the Tax Admin Act provided it could be delegated to a Deputy Commissioner. The Deputy Commissioner gave written authorization to a tax officer (Mr Holland) to issue notices under this Act and imprint his signature on it. Mr H issued to a taxpayer a notice framed as if it was done by the DC, bearing his signature. It was held to be valid. Gibbs CJ: After intimating that it was not in dispute the power of delegation to the DC existed but not a power for him to sub-delegate, Gibbs CJ discussed the importance of the statute in considering whether or not a document must be personally signed or whether signing can be delegated to another- it "depends on the nature of the power and all other circumstances of the case"


It is established that Ministers entrusted with administrative functions can act through an authorized officer of his department - but Ministers are not alone in the difficulties which give rise to such a power

? In construing the Act there is no reason why it isn't proper to consider that he couldn't possibly exercise all of the powers personally
? Section 264 involves the exercise of power adverse to individual rights and though this inclines in favour of the view it must be exercised personally the power applies to myriads of cases - literally millions of tax-payers. o

This would reduce administration of tax laws to chaos if these sections could only be administered by the Commissioner or Deputy Commissioner and clearly Parliament didn't intend such a result

? The existence of the power to delegate is important in considering whether they may act through an authorized agent - even though, by saying it could be delegated to Deputy Commissioners (not just anyone), there is no intention that it be wholesale delegated to minor officials, Parliament must have known of the practical necessity that powers conferred on the Commissioner should be exercised by officers acting as agents Wilson J: Noted the clear distinction between delegation and agency. Noted the opposing argument to the practical necessity to delegate - it should oblige the Commissioner to wholesale delegate to everyone, being destructive of administrative order. But this didn't mean there is no need for delegation - it is necessary for administrative efficiency and a sensible devolution of power


The notices under challenged were expressed to be an exercise of the DC by the power delegated to him - bearing his signature


Each notice is what it purports to be, H was acting for the DC in an exercise of authority duly vested in him and his action was that of the DC.


The underlying point in both of these cases is that the nature of the decision made can have an important bearing on whether an agent as opposed to a delegate can make that decision. This was illustrated in Sec, Dept of Social Sec v Alvaro concerning provisions of the SS Act s1224 (overpayment recoverable as a debt if stemming from false statement/misrepresentation) and s1246 (secretary can waive debt)



Held (von Doussa J): Whether the powers must be exercised by the authority and his delegate or whether they can be carried about by one acting with their authority depends on constructions1224 - The steps leading to a decision, namely that an opinion is formed about a failure to comply or that there has been a misstatement/misrepresentation can be ascertained objectively and tested on review by evidentiary material. These support the view that an authorized officer can carry out functions of this kind.s1237(1) - the power to waive a debt is discretionary and one that significantly affects the rights/liabilities of someone otherwise indebted to the Cth. It is also one likely to be exercised in a manner implemented broad policy objectives and directions of the Minister. These favour the view that it is to be exercised personally and not by an authorized officer, but they are not decisive

Another difficulty is drawing the line between work done by administrative assistants o

Sean Investments - decision-makers can adopt substantial briefing prepared by another officer


ASIC v Loitreton - a person authorized by statute to consider inquiry/investigation can employ counsel to question witnesses


Peko, Tickner - obligations t o consider all relevant matters can't be done by an assistant

Breach of Associated Statutory Requirements


Often statutory steps have to be observed in making a decision (e.g. application fees etc.) - the question that arises is whether each and every requirement is to be observed/is strict compliance is required


Issues also arise where legislation stipulates objectives to be met when decisions are made - e.g. in Project Blue Sky wrt a requirement that functions had to be performed consistent with policies


In addressing the questions arising, it is necessary to distinguish between two ways a question can arise:


I. At a preliminary stage of the DM process - before applications are lodged etc. If the breach is challenged at that time in JR proceedings it is likely that the court would rule compliance essential and make a declaration/injunction to enforce compliance

II. If it is at a later stage after significant expenditure on public hearings, consultations etc. it is not as certain whether a court would declare the final decision tainted by the earlier defect

The case law mainly focuses on the second of the questions - whether the validity of actions hinge on compliance with associated statutory requirements o

The test in Project Blue Sky was stated as 'whether it was a purpose of the legislation that an act done in breach of the provision should be invalid'. The legislative purpose is to be ascertained by reference to:


The language of the statuteThe subject matter and;The consequence for those affected of a finding of invalidity



In Protect Blue Sky disagreements were expressed to a distinct between statutory requirements as either 'mandatory' (requiring strict compliance) and 'directory' (requiring substantial compliance)o

But regardless the case law using this distinction are still illustrative and likely would have reached the same results as they adverted to the same factors (statutory language, subject matter, who is responsible for ensuring compliance etc.)

A similar test was stated in Montreal Street Railway [1917] AC - if holding acts done in neglect of a public duty would work 'serious general inconvenience' or 'injustice' to those without control of those entrusted with the duty only it would be considered as directory only*

Applying this test could go either way - it was the intention of the legislature that errors in taxation assessment would be reviewed by an appeal process rather than judicial review (Futuris) but not that a draft environmental plan was invalid if there was a failure to comply with onerous provisions of the statute (McGovern v Kur-ring-gai Council)

This 'general inconvenience limb' was applied in Grunseth - Inadequate advertisement of a planning scheme subject to extensive public consultation not a sufficient reason to invalidate an approval decision because of the considerable inconvenience flowing from it

Other issues exist in how the issue is approached I.

Procedural errors - Proceedings of courts are often treated as 'errors within jurisdiction' rather than errors going to jurisdiction and thus can only be set aside by appeal or certiorari for an error on the face of the record - not by collateral action or judicial review. a. In Posner it was held that "irregularities in procedure do not, it is clear, invalidate or make void orders within jurisdiction" - it is a matter for appeal only. Courts falling in errors within jurisdiction can only be set right by appeal, not by prohibition. But if parliament imposes a restriction on matters within jurisdiction and the court disregards this in violation of those restriction the prohibition is possible

II. The ADJR Act s5(1)(b) provides that an order of review can be sought on the ground that 'procedures that were required by law to be observed...[in making the decision]...were not observed a. Our Town FM - failure to comply with statutory requirements to prepare statement of reasons for decisions made under broadcasting legislation. Evne though the requirement arose after the decision was made to award the relevant license it was held to be invalid

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