Persons upon whom statutory powers are conferred can lawfully exercise it only for the purpose it was conferred, an invalid exercise of it for a different or ulterior purpose will be invalid (Brownwells v Ironmongers)
- The parallel ADJR Act ground is s5(2)(c) – “an exercise of a power for a purpose other than a purpose for which the power is conferred”
- it is an ‘unauthorized’ rather than ‘improper’ (no considerations of ethics come in)
Two primary issues arise
- What purpose can the statutory power be lawfully exercised for – which turns on the construction of the statute which confers it
- For what purpose was the power exercised

Commonly statute defines the purpose for which the power can be exercised but absent an express purpose it will usually be possible to imply it through the application of statutory interpretation principles to the title, structure and text of the Act and the nature of the power exercised as well as Constitutional considerations which demarcate the boundaries of lawful exercise
A question that arises, especially in the context of high political (GG) questions, is whether a category devoid of purpose can exist – e.g. where decisions are made to achieve a political objective
- Botany Bay City Council – courts rejected argument that two Cth Ministers acted improperly by taking action to implement an election promise
- Padfield – court struck down decision based on a minister’s view that adverse political consequences could arise if it was made
There is also the issue of whether some governmental powers aren’t restricted
- e.g. the GG’s power to dismiss the Prime Minister who serves at his pleasure or dissolve Houses of Parliament when they are deadlocked over bills, power to pardon an offender, sign a treaty etc
  - All of these raise the question about whether there is a purpose ascertainable by a court that limits the exercise of the power – the issue of justiciability is also relevant

Some decisions openly announce the purpose – but it can be inferred
- Brownwells v Ironmongers – burdensome rate of overtime stipulated by wage board evidenced the power was improperly used to control opening hours
The purpose sought by subordinate legislation is generally apparent from the instrument
But sometimes courts have to draw evidentiary inferences from e.g. the conduct or documentation of a government agency to identify what motivated them
- Gaudron J states the test – “An improper purpose will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of power” – Industrial Equity v Dep Com of Tax
Very few cases exist in which unauthorized purpose is raised
- Probably because it is easier to establish that an ‘irrelevant consideration was taken into account’
  - French J in BHP Billiton v Dep Com of Tax suggests ‘to the extent that that is an irrelevant consideration it also reflects a purpose other than a purpose for which he power is conferred
- Could also be that it is difficult to prove that a decision-maker acted with an ulterior purpose since legislation could support multiple purposes, allowing the DM to disguise their purpose.
- Perhaps the evidence is just not strong enough to support an argument of ulterior purpose

The problem arises where multiple purposes are achieved by the exercise of power and one or more of them viewed separately is an unauthorized purpose
- Schlieske and Samrein together illustrate that it will not be invalid; the approach is to “examine whether the unauthorized purpose was a substantial or dominant purpose in the sense that the power would not have been exercised had there not been a desire to achieve the unauthorized purpose” (Thompson v Randwick Corp)
- The relevant statute could also have a bearing on the issue – if it requires that a DM is focussed solely on the authorized purpose and cannot advert to one extraneous it may be less stringent

Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467

Facts: The Board could, under the Metropolitan Water Sewerage and Draianage Act, compulsorily resume land for any of the purposes of the Act. They did this on land owned by Samrein who commenced proceedings contending the land was resumed for an unauthorized purpose. This was dismissed in the NSWSC and the HCA

Gibbs CJ, Mason, Murphy, Wilson & Brennan JJ:

If the Board seeks to acquire the land for an ulterior purpose, there will be an ostensible but not real exercise of the power granted by the Act – but this wont vitiate it if it wasn’t the sole purpose
If the ulterior purpose is a substantial purpose in the sense that no attempt would have been made to acquire the land if it had not been desired to achieve the unauthorized purpose – it would be an abuse of the Board’s powers.

After observing the acquisition was to provide office accommodation, and then setting out the particulars of the construction and the joint venture between the board and GIO (tenants in common with equal shares) they started the argument:

The financing of the scheme by giving an interest to GIO was a substantial purpose for the acquisition – only 21 stories was needed for its own purpose and to do so it would have needed smaller land

The evidence showed that this would have been possible, but less aesthetic, functional and desirable. And even if a smaller building were erected it would be desirable to put it on the appellant’s land
It was clearly needed to provide office accommodation and it didn’t acquire more than it needed for that purpose – maybe it did need less if it were to build a smaller and different building but the owner of the land isn’t entitled to say that they could get by with a smaller building
It is absurd to suggest the Board should have constructed a building no larger than was needed if it appeared that this would have been an under-development of a valuable city site

The acquisition was for office accommodation, the joint venture was a means to an end:

The court distinguished Thompson v Randwick – there no attempt would have been made to resume the land if it wasn’t the desire of the council to profit from resale to reduce the cost of construction on new roads

The court analogized to CC Auto Port v Minister for Works – where land was acquired to provide a bus terminus which was used to develop a retail shopping centre – the provision was for accommodation here, as in that case, ‘both the initiating and abiding purpose of the resumption’

Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719

Facts: Schlieske (S) was a national of West Germany who, there, had a warrant issued for his arrest. Extradition proceedings by the Govt against him failed twice. Concurrently a deportation order under the Migration Act was signed and discussions held between AU and WG to have him deported and delivered into custody of German police officers. The Federal court held that it was an improper ‘disguised extradition’ but that S could properly be deported as long as the AU officials didn’t take steps beyond those necessary for the purpose of removing him

Wilcox & French JJ:

s18 of the Act authorizes deportation; all policy considerations in the act are to be taken into account and it should be noted that the right of a nation to expel foreigners is an absolute and unqualified one
But the amplitude of these powers has tempted governments to not just deport, but deliver them into the hands of government individuals who have nothing to do with the movement of persons to/fro the deporting country – this was sanctioned by the courts earlier but now a distinction is made between deportation for extradition (‘disguised extradition’) and deportation for immigration control which is a de facto extradition

Application of the principle of proper purpose

The Minister may consider, under the Migration Act a wide range of matters such as the person’s criminal record (but this is less clear with allegations of criminality – the decision to deport has nothing to do with them being wanted on criminal charges by another country; the authority and mechanism of the constitution and extradition exist for that)
Governments can choose to deport fugitives to a country seeking to extradite them – this isn’t necessarily unlawful but can, according to the circumstances, support an inference that the choice is actuated on an improper purpose – e.g. official conduct outside that authorized purpose

What is alleged

Here a ‘sham’ extradition is alleged – though officials purported to act under the Migration Act they were actuated by the purpose of delivering S to West German authorities for him to be tried.
But this doesn’t mean he can’t be deported – it only means that in doing so the Minister must only pursue the purpose of deportation (to ensure the deportee does in fact leave the country and ensuring security if they are of violent disposition)
- If it is deemed necessary that an authorized officer escort is required, one cant object that the deportee is wanted on criminal charges – but if al the circumstances other than the fact that he is wanted show that it wouldn’t be necessary to provide an escort; it would be objectionable to allow an escort to better ensure he arrives in the country and faces criminal charges (this has nothing to do with the deportation power)

#7231 - Judicial Review Grounds Iii - Administrative Law

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