Legality; Rules; Discretion & Policy

Unauthorized Decision Making

• The chapter begins with the fundamental principle of legality/rule of law/constitutionalism postulate that “government agencies need legal authority for any action they undertake”

The scope of the principle of legality

• The notion itself is codified in the Administrative Decisions (Judicial Review Act) – which lists the ways in which a breach of legal principle can occur (s5(1)(b-f)); key to which is an action not being supported by legislation

  • Examples include given: Statutory power to run ‘tramways’ doesn’t extend to conducting bus services (London County Council v A-G), customs authority to seize goods/property didn’t include seizure of money credited to a savings account (Vickers v Minister for Business and Consumer Affairs) etc.

• The problem is intensified when the government relies not on legislation but on executive power – however public law principle dictates that statutory backing is required for all executive action that is coercive in nature

• In applying the principle awareness of the different legal entities of government are required:

  • Executive Agencies – established by the executive (e.g. government departments established by the G-G, boards, councils etc). Derives its power from legislation (e.g. Migration Act on the department of Immigration) or executive power.

  • Statutory Agencies – established in accordance of Acts of parliament. Can only exercise power conferred by statute (Macleod v ASIC [2002] HCA) but may use powers incidental to the functions expressly conferred upon it and thus has a broad range of powers

  • Government Corporations – established under the Corporations Act 2001(Cth); is not subject to the ultra vires doctrine. Legislation confers and limits their powers. They are also subject to constitutional constraints

• Unauthorized decisions are common to different arms but have different names (no jurisdiction VS ultra vires)

The Principle of Legality – Foundation Cases

• Summary of the cases:

  • Entick v Carrington – One of the first cases to establish unequivocally that government action will be unlawful unless there is legal authority to support it

  • Hayden – Governments, even in the pursuit of national security objectives, do not inherently possess powers to authorize officials to act in defiance of the criminal law

  • Woodward - The judiciary can examine whether administrative action taken by a national security agency is supported by legislation establishing that agency

  • Congreve – Government activity that is coercive, threatening or intimidating in nature will be unlawful unless there is clear statutory authority to support it.

Executive power as a source of legal authority for government action

• Governments are legal persons and have the ordinary rights of citizens and can do the same thing citizens do (employ staff, rent premises, enter into contracts etc.) without statutory backing – this is referred to as the executive power

• Prerogative power on the other hand refer to the government’s power to exercise, as a residue of English history, other special non-statutory functions such as declaring wars

• Page 493-94 lists a number of activities that the government may ordinarily undertaken in the administration of its affairs

• Executive power has its origins in s61 of the Commonwealth which provides that “The executive power of the Commonwealth...is exercisable by the Governor-General as the Queen’s representative and extends to the execution....of the laws of the Commonwealth”. State governments have such backing from their own constitutions

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