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Legality Rules Discretion And Policy Notes

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This is an extract of our Legality Rules Discretion And Policy document, which we sell as part of our Administrative Law Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Administrative Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Legality; Rules; Discretion & Policy Unauthorized Decision Making

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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 o

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.

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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

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

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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.

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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

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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

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Summary of the cases: o

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

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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

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

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

Entic v Carringon (1765) 19 St Tr 1030 Facts: The Secretary of State (SOS) issued Mr C and ORS with a search warrant to enter Mr E's house and seize paper's containing allegedly seditious writing. E sued C for trespass who brough up the lawful execution of the warrant as his justification. The court rejected this and awarded damages for trespass Lord Camden CJ:

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If the SOS had jurisdiction, the law is clear that the officers are as responsible as their superior for trespass

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The power claimed is one to seize paper's as though someone is guilty even if innocent, without them being heard or summoned, without a witness to testify etc. - as such the law should be clear as the power is exorbitant. "If it is law, it will be found in our books. If it is not to be found there, it is not law"

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"The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole."

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Every invasion of property is minute; if no excuse is produced for it then the plaintiff must have judgement.

Executive power as a source of legal authority for government action

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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

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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

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

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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

Clough v Leahy (1904) 2 CLR 139 Facts: The court held that a NSW governor, through an exercise of his common law authority to issue Letters Patent, could establish inquiries into whether criminal offences had been committed by the Machine Shearers and Shed Employees Union Ratio (Griffith CJ; Barton & O'Connor JJ concurring)

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The executive government cannot by its Commission make lawful the doing of an unlawful act
- persons acting under a Commission of the Crown doing acts which would to private persons

be unlawful would be punishable o

As such the powers of the Crown are practically no greater than that of a private individual

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The Prerogative refers to special powers greater than those possessed by individuals that the Crown may use by virtue of its Royal authority - but the power of inquiry is not such a prerogative

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Asking questions is a power which all individuals have and no law is violated by doing so

"Every man is free to do any act that does not unlawfully interfere with the liberty or reputation of his neighbour or interfere with the course of justice...every person is free to make any inquiry he chooses; and that which is lawful to an individual can surely not be denied to the Crown"

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Three points to note from Clough and other similar cases: o

The executive power can be overridden by and not exercised inconsistently with statute (Barton v Commonwealth (1974) 131 CLR 477

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Executive power can't justify governmental acts actionable at common law - but legislation in most jurisdictions confer upon commissions of inquiry coercive power to require document and evidence production (Royal Commissions Act 1902 (Cth))

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Executive power generally does not authorize government action which is coercive, punitive, intrusive or threatening*

"Since the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest....any officer...who purports to authorize or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision"

An exception to the coercive exception is the use of some prerogative powers such as to declare and wage war, which necessarily anticipates extreme coercion (Burmah Oil Co v Lord Advocate) or the prerogative power to keep the peace allows supply of tier gas to police authorities (R v Secretary of State for the Home Department; Ex parte Northumbria Police Authority [1989] QB)

Minister for Immigration and Multicultural Affairs v Vardalis (2001) 110 FCR 491 Facts: MV Tampa rescued 433 people from a fishing boat sinking in waters between Indonesia and Australia. It was heading towards Singapore but the people rescued were assumed to be en route to

Australia. After the captain ignored a request by AU authorities not to enter AU territorial sea, the Tampa was boarded by the SAS who took charge of the vessel to prevent its movement to Christmas Island. North J, in the lower court, concluded that the rescues were unlawfully detained. The Full Federal Court thought otherwise; the High Court refused leave for appeal. Dissenting Judgement - Black CJ:

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The question is whether or not a non-statutory executive power to prevent unlawful noncitizens (UNCs) from entering Australia (which indisputably flowed from Sovereignty) carried ancillary powers to detain/expel unlawful non-citizens for border protection

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Black CJ considered that: o

The Executive power to protect Australia's borders against (UNCs) in times of peace derives only from statute and is at best doubtful at common law. This fact makes the proposition that such powers would exist in s61 of the Constitutions trange and doubtful.

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This case is in clear contrast to other cases where the executive power has been used in the 'interest of the nation (e.g. setting up the Bicentennial Authority the CSIRO etc.)

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Against this background, even if there was prerogative power to do so it has been abrogated through the Migration Act which parliament intended to operate to the exclusion of any other executive power otherwise conferred by parliament

French J:

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It is long accepted that "every state has a right to make laws for the exclusion or expulsion of a foreigner" (Re Adam [1837], Toy v Musgrove [1981] AC, A-G for Canada v Cain [1907]
AC)

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Australia's status as a sovereign nation is reflected in its power to determine who may or may not come into its territory and who may not be admitted into the community - this may well flow from popular sovereignty

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The executive power of the Commonwealth, absent statutory extinguishment would extent to a power to prevent the entry of non-citizens and to do such things that are necessary to effect this

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This was not abrogated by the Migration Act as it did not evince a "clear and unambiguous intention to deprive the executive of the power to prevent..."

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The actions of the government were, anyway, retrospectively validated by the Border Protection (Validation and Enforcement Powers) Act 2001 but this did not override the executive power judicially validated in Vardalis (s7A Migration Act 1958 (Cth))

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This case illustrates the uncertain/fragile foundations of the executive power as a tool of government action - a number of doubts over it have led to subsequent statutory clarification (Defence Legislation Amendment (Aid to Civilian Authorities) Act 200 - power to invoke army assistance to protect CTH regional meeting after Hilton bomb blast in '78, Police Power (Drug Detection) Dogs Act 2001 (NSW) police sniffer dogs in searches)

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