Ashvin Ramgoolam

Page |
OReilly v Comm of State Bank of

PRESERVATION OF DISCRETION
These are rules which relate to the

agent who is exercising the discretionary power. Broad principle: If Parliament has conferred a discretion on a particular decision-maker: Only that decision-maker may use the discretionary power; and The powers discretionary nature must be preserved. Sub-doctrines: Failure to Act (s 7: unreasonable delay in making the decision) Failure to perform a nondiscretionary duty remedy = order mandamus or mandatory injunction. This ground of review is also available where the time limit for making the admin decision has been exceeded. If no express time limit, review is available for unreasonable delay. Thornton v Repatriation Commission: Test of reasonable delay is objective. Deferring a decision to the outcome of a High Court appeal on a similar matter not unreasonable. Rule against delegation Rule against delegation: There is a presumption against the delegation of discretionary power. Prima facie, the power has to be exercised by the person to whom it is conferred. Express powers to delegate override this rule. If express delegation is used, the power must be exercised within the limits of the express delegation. If not, then ultra vires. Carltona: Powers to delegate may be implied where administrative necessity requires it.

Vic (lots of times the discretionary power would be exercised implied power to delegate) *ITAA: s 264: The Comm of Tax may require persons to give such information as the Comm required, and also to attend & give evidence & produce documents. s 8: The Comm may delegate the power under s 264 to Deputy Comms. *Notices under s 264 were issued by an Investigating Officer. *Deputy Comm had authorised the Investigating Officer to issue notices of this sort & stamp on them the Deputys signature. *Issue = did Deputy Comm have implied power to sub-delegate? Lots of cases in which the power to issue notices would be exercised the express power to delegate to the Deputy Comm was insufficient for the day-today operation of the Department Deputy had implied power to delegate. Peko Wallsend (Ministers function was central to the statutory scheme, evidenced by the preliminary procedures, thus requiring a personal decision no implied power to delegate) Secretary DSS v Alvaro (factors) Acting under dictation (ss 5(2)(e) & 6(2)(e)) Ss 5(2)(e) & 6(2)(e): Review is available for an exercise of a personal discretionary power at the direction of another person. Roncarelli v Duplessis *Licensing Commission had sole responsibility for the grant & withdrawal of licences. *Premier directed the Commission to withdraw the liquor licence of Pl, which the Commission did.

Administrativ e Law

Ashvin Ramgoolam
2

Page | Where there is no statutory power to issue directions/guidelines Rendell v Release on Licence Board: Policy guidelines must be consistent with the legislation conferring the discretion. Rendell v Release on Licence Board (policy not to release prisoner until served minimum 10 yr gaol; but statute required consideration of individual circumstances policy inconsistent with Act invalid decision) Re Findlay (policy not to release prisoners in all but the most exceptional cases consistent with Act policy valid) Inflexible application of policy in exercising a discretionary power (ss 5(2)(f) & 6(2)(f)) S 5(2)(f): Review is available for an exercise of a discretionary power in accordance with a rule/policy without regard to the merits of the particular case. Inflexible application of policy = applying policy guideline like a rule to reach a decision, without considering individual circumstances of a particular case. The minimum content of the rule against inflexible application of policy is: British Oxygen v Minister of Technology: Policy guidelines can be used, provided that the decision-maker is always willing to listen to anyone with something new to say. The degree to which policy guidelines may control discretion in advance, depends on: The nature of the entitlement/right which the statute confers. If, once the statutory criteria are satisfied, there is no legal entitlement (ie. only a hope of receiving any benefit), then policy guidelines can be applied more inflexibly. eg. Green v Daniels (once the statutory criteria are

The Commissions decision was void.

Direction/Policy simple ultra vires Formulation of policy rules/guidelines serves 2 important aims: 1) Consistency of decisionmaking. This is particularly important where many administrators exercise the same discretion. 2) Easier decision-making. Administrators dont have to consider afresh every case. However, policy rules/guidelines must still allow the administrator to respond to particular needs of a given case (because statute, by conferring discretion, demands this). Basic position: Despite the legal principle that discretion must not be fettered, administrators are entitled to formulate policy guidelines to assist them in exercising their own discretion but not until they are deprived of any real discretion. Where there is statutory power to issue directions/guidelines An express power to formulate directions/guidelines for use by other decision-makers in exercising their discretionary powers, shows that Parliament intends the discretion to be constrained to some extent. Fine differences in statutory wording affect the scope of a power to issue directions, and the degree to which those directions may constrain the exercise of discretion. ADC v Hand NSW Aboriginal Legal Service v Min Aboriginal Affairs Riddell v DSS Smoker v Pharmacy Restructuring Authority

Administrativ e Law

Ashvin Ramgoolam
3

Page | unemployed, (ii) willing & able to undertake suitable work, and (iii) had taken reasonable steps to obtain work. *The Department applied a policy guideline, which said: As a general rule people who leave school and register for employment within 28 days prior to the end of the school year, or at any time during the long vacation, will not be in a position, until the end of the school vacation, to satisfy the conditions of eligibility for unemployment benefit. People who are legally entitled under the statute, may be denied benefits because they have not satisfied the 12 week waiting period imposed by the policy the policy guideline effectively introduced an extra criterion for eligibility it is inconsistent with the statutory criteria (since applied inflexibly as a rule) ultra vires invalid. Also: If the policy was only a guide, the Dept applied it inflexibly, by automatically imposing the waiting period on Green without giving her an opportunity to establish her eligibility according to the statutory criteria. Tang v Min of Immigration: If the decision turns primarily on the individual circumstances of the applicant, then the decision cannot be reached by simply applying policy guidelines without considering the merits of the case. *s 6A Migration Act: Prohibited non-citizens should not be considered for an entry permit, unless they fall into an exceptional category. One of these was that they were the spouse of an Australian citizen. *Tang, married to an Australian citizen, applied for permanent residency.

satisfied, legal entitlement to unemployment benefits follows unlawful to automatically apply policy guideline without regard to individual merits). The matters relevant to the exercise of the discretion. If the decision on the merits turns primarily on the individual circumstances of the applicant, then policy guidelines cannot be applied as inflexibly. eg. Tang v Min of Immigration, Cumbairux v Min Immigration (immigration decisions turn primarily on individual circumstances of the applicant unlawful to apply policy inflexibly) eg. Re Findlay (parole decisions turn primarily on policy reasons unrelated to the individual circumstances of the applicant lawful to apply policy inflexibly) So look at the relevant considerations in exercise of the discretion. The more personal they are, the less scope there is for policy guidelines to control discretion in advance (Chambairux). But if the personal circumstances are not such important considerations (eg. public interest is more important) then there is more scope to make policy to control in advance (Re Findlay). Examples Green v Daniels (administrator applied general policy like a rule inflexible application of policy) *Social Security legislation provided that a person (subject to age & residence requirements) would be eligible for unemployment benefit, when the Director General of DSS was satisfied that (i) they were

Administrativ e Law

Ashvin Ramgoolam
4

Page | Equally, if an administrator has a power, but mistakenly claims that they have no such power, estoppel cannot take away that power because statute has conferred that power. Practical reason for the rule against estoppel: If estoppel can fetter discretion, administrators would refuse to take the risk of giving any opinions/undertakings at all in response to inquiries. This would be inconvenient to the public. CASES Secretary, Dept of Social Security v Alvaro Implied delegation; decision. *Social Security Act: Power 1 (s 1224): If money was paid because of a false statement, and is not repaid, the amount is a debt due to the Cth. Power 2 (s 1237): The Secretary may waive the debt. Delegation power (s 1299): The Secretary may formally delegate any of its powers to an officer. *A made false statements to the DSS, and consequently received payments under the Act. *An officer in the Department decided that A was indebted to the Cth (pursuant to s 1224). *An authorised review officer affirmed the decision, and decided not to waive the debt (under s 1237). *Neither powers were expressly delegated to the decision-makers. Issue = can they be impliedly delegated to someone? *A appealed to the AAT, which decided it had no jurisdiction to review the decisions because there was no valid decision (since neither the officer nor review officer held valid delegations from the Secretary under s 1299). *Secretary appealed to the Federal Court under s 44(1) AAT Act. Decision

*His application was refused on the basis of a policy statement (against queue-jumpers), before his application was considered on its merits. Since Tang was the spouse of an Australian citizen, he was (under s 6A(1)(b)) entitled to have his case considered on the merits & not pre-emptively rejected on the basis of the policy unlawful to merely apply the policy without considering the application on the merits, as the statute requires. [Note: The fact that he is a queue-jumper might still be a relevant consideration in assessing the merits application could still be refused.] Re Findlay: If the discretionary power is likely to be exercised primarily for policy reasons unrelated to the individual circumstances of the applicant (eg. public interest), then the decision is more capable of being regulated by guidelines.

Fettering discretion by representations (estoppel) Min Imm v Kurtovic: Estoppel is not available against a government decision-maker in its exercise of public powers. This rule against estoppel does not apply to exercise of the governments private (eg. contractual) powers. But Ansett Industries v Cth: A contract with Government cannot fetter a statutory power. Theoretical reason for the rule against estoppel: If an administrator does not a power, they cannot give themselves that power by falsely representing to a 3rd party that they possess it, because that would be against Parliaments intention.

Administrativ e Law

Ashvin Ramgoolam
5 The AATs review jurisdiction

Page | individual circumstances of an application, and advise the Minister. The Minister then looks at the public interest (deterrence), and advises the Executive Council. *Life-term prisoner applied to the Board seeking consideration of his release on licence. *The Board decided to reject the application, by saying that the Government would not recommend release of a life-term prisoner until [he] served a minimum of 10 years in gaol. It will be noted that this is a minimum. The minute & correspondence was proof that the Board exercised its discretion by applying a policy rule adopted by another body without regard to the particular circumstances of the prisoner (as required by statute) unlawful decision. The Board never considered the merits of the application. Boards repeated use of minimum shows that it applied the governments policy because it felt it had no alternative. Also, a practical consideration: If the Board considers it appropriate in a particular case to recommend release before 10 years, its recommendation would discharge its functions of offering its best advice to the Minister. Riddell v Secretary, Dept of Social Security Ultra vires direction (express power to issue directions). *s 1237 Social Security Act: (1) The Secretary may waive the Cths right to recover a debt. (2) In exercising its power, the Secretary must act in accordance with directions issued under (3). (3) The Minister may give directions relating to the

extended to review of decisions made in purported exercise of powers (even where the decision is not legally ineffective) matter should be remitted to the AAT. Can the decision-maker make decisions without a formal delegation of power from the Secretary? Parliament could not have intended that the Secretary personally perform all the functions necessary to carry the Act into effect; some of the functions must be performed by authorised officers. Does this include the 2 powers? For s 1224: The power can be impliedly delegated to an authorised officer, because: A decision under s 1224 only involved ascertainment of facts from objective evidence; The power is not discretionary (no may). The result automatically follows; and The decisions correctness could be tested against evidentiary material. In short, it is a straight-forward decision that does not require much thought. For s 1237: The power cannot be impliedly delegated to an authorised officer, because: The power is a discretionary power (may); It is vested expressly in the Secretary; The exercise of the discretion significantly affects rights & liabilities of people liable under s 1224; and The discretion is likely to be exercised to implement broad policy objectives under the Act. Rendell v Release on Licence Board Dictation (no express power to issue guidelines). *Decision-making process: Statute required the Release on Licence Board to consider the

Administrativ e Law

Ashvin Ramgoolam
6

Page |
Therefore, since the AATs decision

exercise of the Secretarys power. *Minister made a determination: The Secretarys power must be exercised in the following circumstances only *R asked that recovery of his debt be waived under s 1237 because of extreme financial hardship. *On appeal, the AAT decided not to waive the debt by applying the Ministers direction. Is the determination valid? The determinations purpose & effect was to limit the very wide discretion conferred on the Secretary by s 1237(1). The directions were inconsistent with the statute, because: The statutory language: Subs (3) refers to the Secretarys power and subs (2) stated in exercising the power statute regards the Secretary as exercising the power authorises directions which affects the manner of its exercise, but will leave the power itself intact. Therefore, s 1237(3) gives the Minister power to give general guidance to the Secretary only, leaving him free in any particular case to depart from the guidance. The determination, by stating precise rules dictating the result of all applications, is not giving guidance in the exercise of the power, but is attempting to deny the existence of the power inconsistent with statute. The legislative history: A predecessor of s 1237 did not allow the Ministers to give directions. If Parliament intended the Minister to circumscribe the Secretarys power, the language would have addressed the ambit of the power itself rather than simply its exercise.

was based on the invalid determination, its decision involves an error of law and must be set aside. The matter is remitted to the AAT. Smoker v Pharmacy Restructuring Authority Guideline not ultra vires (express power to issue guidelines). *National Health Act: s 99K(1) gives the Pharmacy Restructuring Authority power to make a recommendation with respect to applications for approval of premises as pharmacies. s 99K(2): In making a recommendation under s 99K(1), the Authority must comply with the relevant guidelines determined by the Minister under s 99L. s 99L(1): The Minister must determine the guidelines subject to which the Authority is to make recommendations under s 99K(1). *Ministers determination, para 3(a): approval of a pharmacist shall not be recommended in respect of premises located within 3 kms [of an already approved pharmacist]. *S applied for approval. The premises for which approval was sought was within 3 kms of other pharmacists the Authority considered itself bound to comply with para 3(a) Secretary decided against recommending an approval. Guideline valid? The Ministers guidelines were more properly described as rules which circumscribe the Authoritys discretion. Legislature intended to authorise the Ministers guidelines, because: Statutory language: S 99K is expressed in terms of function rather than

Administrativ e Law

Ashvin Ramgoolam
7

Page |
*s 6A(1)(b) Migration Act: An entry

discretionary power (distinguishable from s 1237 in Riddell, which conferred a broad discretion). The mandatory language of s 99K(2), that the authority must comply with the relevant guidelines, suggests that the guidelines are to be mandatory (ie. rules). [The Ministers directions were essential to the statutory scheme, because the Minister must issue them: s 99K(2)]. Legislative history: The provisions and guidelines originated from an agreement reached between the Minister & the Pharmacy Guild, which contemplated that the Minister could radically limit the Authoritys discretion Parliament would have intended the Authoritys discretion to be circumscribed by the Ministers guidelines. Thus, the guidelines were valid Authority was correct in applying para 3(a) in refusing the application. Differences: Discretion. In Riddell, the power conferred a broad discretion, while in Smoker, the power was expressed in terms of function. Mandatory language. Riddell: must act in accordance with; Smoker: must comply with. Importance of directions to the statutory scheme. Riddell: Minister may give directions. Smoker: Minister must give directions. Legislative history. Chumbairux v Min for Immigration Inflexible application of policy (no express power to issue pcy).

permit shall not be granted unless he is a spouse, child or aged parent of an Australian citizen. [Once satisfied, then Minister has discretion whether to grant permit, and must consider the merits] *Departmental Policy: The marriage must be considered to be genuine and ongoing before consideration may be given. *C married an Australian resident, and applied for resident status on the ground of his marriage. *His application was refused, and he requested reconsideration. *Minister did not consider that C had an ongoing marriage applied the policy decided not to reconsider Cs application. No attention was given to any particular circumstances of C. C was a spouse under s 6A(1)(b). Thus, his application for reconsideration should be considered on its merits. Cs application for reconsideration was not considered on its merits, and was rejected on an erroneous view that C had to have an ongoing marriage before he was entitled to have the merits of his case considered invalid decision.

Re Findlay Policy not ultra vires (no express power to issue policy). *ss 60(1) & (2) Criminal Justice Act: Home Secretary may refer cases of prisoners to the Parole Board for advice, and may release a prisoner on licence if the Parole Board recommends it. *New Policy adopted by Home Secretary: Home Secretary will refuse to exercise his power for certain classes of offenders, in all but the most exceptional cases. *Home Secretary agreed to continue allowing the Parole Board to see all cases, on the understanding that the Boards

Administrativ e Law

Ashvin Ramgoolam
8

Page |

reviews would take account of the new policy. *Parole Board considered the applicants cases in light of the new policy. The policy is valid, because it expressly allowed for exceptional cases (unlike in Rendell). The policy can be applied inflexibly to the applicants, because of (1) the complexity of issues which the Secretary must consider, and (2) the decision did not turn much on individual circumstances, but on the public interest (eg. deterrence, retribution, public confidence in the system, and consistency of treatment between prisoners).

Administrativ e Law