Judicial Review Grounds III

Acting for an unauthorized purpose

• 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

The authorized statutory purpose

• 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

The actual purpose of the decision

• 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

Multiple purposes

• 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

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