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TOPIC 4A: GROUNDS FOR JUDICIAL REVIEW – ULTRA VIRES

4.1 Narrow Ultra Vires

Case: London County Council v AG (1902)

Facts: The Council was given the power to operate tramways. Instead, they were operating buses. This was wholly

outside the scope of their authorization.

4.1.1 Substantive/Simple Ultra Vires – Actions not Permitted by Statute

Case: Shanahan v Scott (1957)

Facts: The Marketing of Primary Products Act authorised egg producers in Victoria to establish the Egg and Egg Pulp

Marketing Board. Under the Act, all eggs produced in Victoria would be vested in, marketed and sold by the Board, and

the proceeds divided amongst the producers.

Under s. 43, the Governor in Council could make regulations necessary or expedient for the administration of the Act,

or for carrying out the objects of the Act. In turn, the Governor made Regulation 44, which made it an offence to place

eggs in cold storage, or subject them to preservatives without the Board‟s consent. This would ensure the regulation of

fresh eggs.

A challenge was laid by en egg producer who lived in NSW, but had held his eggs in cold storage in Victoria.

Held:

S. 43, the section which permitted regulations to be made, did not permit the authority to extend the scope or operation

of the Act. The permission was merely ancillary. Thus, the regulations were ultra vires because it extended the legislation

into a further field of regulation; that is, the use, handling and disposition of eggs independent of the Board‟s marketing

of eggs vested in it. The regulations did not only deal with the eggs being marketed by the Board, but dealt with all eggs.

The regulations cannot be justified as necessary or expedient for the administration of the Act.

Case: Foley v Padley (1984)

Facts: s. 11(1)(a) of the Rundle Street Mall Act (SA) provided that the Adelaide City Council could make by-laws

“regulating, controlling or prohibiting any activity in the Mall that is, in the opinion of the Council, likely to affect the use or enjoyment of the

Mall”. There were 2 issues here: (1) did it include a conditional prohibition (as opposed to an outright prohibition)? (2)

what did „in the opinion of the Council‟ mean?

The Council made by-law no. 8, which provided that “No person shall give out or distribute anything in the Mall or in any public

place adjacent to the Mall to any bystander or passerby without the permission of the council”. This seemed to indicate the Act‟s

powers were highly discretionary vis-a-vis „in the opinion of the Council‟.

A group of Hare Krishnas were singing and distributing flyers in the Mall without a permit, and were charged with

contravening the by-law. Foley, one of the members of the Hare Krishnas, was charged with contravening the by-law.

He challenged the validity of the by-law under judicial review, asserting that the law fell outside the scope of the parent

Act.

Issue:

Had the Council gone beyond power in the way it phrased the by-law?

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Held:

3:2 –

(MAJORITY):

The power to prohibit includes the power to prohibit completely, or subject to conditions. The Court will look at the

subject matter of the power along with the words used to confer that power. The power to regulate, control or prohibit

is wide enough to allow for any degree, or whatever form, of conditional prohibition. „Without the permission of the

Council‟ is a valid phrasing for the purposes of the power.

“It was submitted that the description of the activities referred to in s. 1 of By-law No. 9 is very wide and capable of including many activities

that on any view are entirely innocent and innocuous. It is true the by-law is drafted widely, but provided that the activities which are regulated,

controlled or prohibited are of the description to which s. 11(1)(a) refers, the fact that the by-law may be thought to go further

than was necessary is not in itself any ground for invalidating it. In the same way the fact that the prohibition may extend to

some acts which in fact could not affect the use or enjoyment of the Mall does not mean that the by-law is beyond power if the activity generally

is one which could reasonably be considered as likely to affect that use or enjoyment. The legislature has left it to the Council to decide whether

it should regulate, control or prohibit any activity if, in the opinion of the Council, it is likely to affect the use or enjoyment of the Mall, even

if the regulation, control or prohibition will to some extent limit the freedom of speech of those engaging in the

activity” (Gibbs CJ).

Note: Courts do not generally like giving broad, unfettered discretion to decision makers. This is why phrasings like

‘in the public interest’ are not usually valid. It is surprising they give such a wide meaning to the Act here. The

factual scenario may also have been influential, given that distribution of flyers could affect people’s enjoyment of

the Mall. Validation of the by-law centred on a number of reasons –

(1) The Court did not want to be interventionist;

(2) The Court felt the societal problem the by-law was aimed at meant it was allowed;

(3) Contextually speaking, given the human rights character and the fact constitutional protections did not

yet exist, meant the by-law was valid.

(MINORITY)

Murphy J – completely dissented: The by-law delegates power to the Council to completely negative the prohibition

against giving out material. The regulation, control or prohibition is not by a by-law, but rather by a grant or denial of

the Council permission. This is impermissible; such delegation is an avoidance of the proper by-law procedures set out

in the SA Local Government Act. The by-law was too open-ended, giving the Council too much discretion as to whether or

not it could give permission. The by-law might be used for a purpose other than the purpose for which the statute

conferred power to make the by-law.

Brennan J – partly dissented: „Prohibition‟ includes conditional prohibition. However, the by-law itself went too far.

The Council could not have reasonably formed an opinion that handing out material in the Mall would affect the use or

enjoyment of the Mall. The discretion was too broad, bringing within the scope of the prohibition activities which would

not necessarily affect use or enjoyment of the Mall. For example, this could bring simple requests for directions within

the scope.

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4.1.2 Procedural Ultra Vires – Disregard of Express Procedural Requirements

Case: Project Blue Sky (1998)

Facts: Under the Broadcasting Services Act, the Australian Broadcasting Authority (ABA) was tasked with the functions of

developing and monitoring codes of practice and program standards for broadcasting in Australia. S. 160 provided:

“The ABA is to perform its functions in a manner consistent with –

(a) The objects of this Act and the regulatory policy described in s. 4; and

(b) Any general policies of the Government notified by the Minister under s. 161; and

(c) Any directions given by the Minister in accordance with this Act; and

(d) Australia’s obligations under any convention to which Australia is a party or any agreement between Australia and a

foreign country”.

The ABA implemented a „local content standard‟, ensuring that TV in Australia would have a certain minimum

percentage of shows produced in Australia. Project Blue Sky, a New Zealand company, challenged the validity of the

standard on the basis that the ABA had not performed its functions consistently with Australia‟s international

obligations; specifically, there was an agreement which provided that Australia and New Zealand were to give

preferential treatment to each other‟s trade in services in the respective markets. The agreement stated that New Zealand

producers would be treated in a manner „no less favourable than Australian producers‟. Blue Sky claimed the content

standard was inconsistent with the above term.

Issue:

Was failure to follow s. 160 a procedural requirement, breach of which would lead to invalidity of the content standard

made under s.122?

Held:

The traditional mandatory/directory distinction, „may‟ v. „must‟, is to be criticised. While still relevant, the Court must

look further, towards Parliament‟s intention. The essential question is: Did Parliament intend to invalidate any Act which fails to

comply with the procedural condition? In answering this, the Court must take into account factors such as the language of the

Statute in question, the subject matter and objects of that Statute, and the consequences to the parties of a finding that

actions done in breach of the condition are void.

“Statutory interpretation and trying to find legislative intent often reflects a contestable judgment”: The s. 122 content standards are

subject to s. 160. Here, the content standard was not lawfully made because it did not comply with s. 160. However, it

was still valid because:

(a) S. 160, which talks about international agreements, was not expressed an essential preliminary consideration for

the exercise of the ABA‟S powers. S. 160 simply proceeded on the assumption that the ABA had the power to

perform certain functions. As a result, it regulated the exercise of a function already given to the ABA. Because

s. 160 simply regulatory, it was not intended to invalidate s. 122.

(b) The nature of the obligations set out in s. 160 allowed for the ABA to consider government guidelines and

policies, in addition to international agreements. Those conditions were not rule-like, and could not be easily

identified or applied. Therefore, the obligations simply went to administration of the power, not its validity.

(c) If acts done in breach of s. 160 were found to be invalid, it is likely to result in much inconvenience to those

members of the public who have acted in reliance on the conduct of the ABA. Expense, inconvenience and

loss of investor confidence would be likely consequences. Parliament would not have intended these

consequences.

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There is no procedural UV here, and therefore no invalidation of the content standard under s. 122.

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect; it depends further

upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.

The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the

consequences for the parties of holding void every act done in breach of the condition”.

“A court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself

whether compliance with the provision is mandatory or directory. A better test for determining the issue of validity is to ask whether it was a

purpose of the legislation that an act done in breach of the provision should be invalid. In determining the question of purpose, regard must be

had to the language of the relevant provision and the scope and object of the whole statute”.

“Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision

should be invalid if public inconvenience would be a result of the invalidity of the act”.

Case: SAAP v Minister Immigration (2005)

Facts: s. 424A of the Migration Act sets out procedural fairness regarding refugees. Under this section, if it is found an

applicant has provided adverse or inconsistent information, this must be relayed to the applicant in writing, and the

applicant must be given 28 days to respond.

In this instance, there was a hearing, but notice was only given orally. The applicant was illiterate and could not speak

English well. However, there was an interpreter present at the hearing.

Issue:

If an applicant is illiterate and an interpreter is present, is it better that oral communication is used, as opposed to written?

Held:

3/2 -

In a refugee status hearing, the Tribunal was bound to give written notice of particulars to the applicant. Because of the

importance of s. 424A in the scheme of the Act, and the fact it uses the term „must‟ in relation to writing requirement,

any breach of s. 424A will lead to invalidity of the decision.

Dissent: Tribunal cannot be expected to abide by the writing requirement fastidiously, especially when the applicant is

illiterate.

CF:

Case: Minister Immigration v SZIZO (2009)

Facts: s. 441G of the Migration Act required that an applicant be notified of a notice of hearing in one of two ways:

either it would be sent to the applicant themselves, or an authorised representative. In this instance, the applicant family

made their daughter an authorised representative because she spoke perfect English.

The applicants were all notified of the hearing. They all attended, and made written submissions after the hearing. But

after they were notified of a negative decision, they noticed the letter advising of the hearing was sent to the parents, not

the daughter. This constituted a minor procedural breach.

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Held:

There was no denial of natural justice here. Furthermore, the breach of not sending the letter to the authorised

representative did not lead to invalidity. Eventhough s. 441G also used the term „must‟, it was not an essential

preliminary to the making of the refugee decision. It would be absurd if the Tribunal could not review a matter just

because the authorised representative had not been given a hearing, particularly where notice had been given to the

applicants, and the applicants appeared at the hearing. The decision is still valid.

4.1.3 Improper Delegation – Action by the Wrong Person or Body

Case: Forster v University of Sydney (1963)

Facts: Sydney University had delegated power to the University Senate. Due to the presumption against sub-delegation,

the question here was whether the Senate had the power to delegate the power further; in this instance, to one of the

faculties.

Held:

Questions of delegation, in particular the common law maxim against sub-delegation, must be considered by

construction of statute with “due regard to the purpose and objects of the statute, the character of the power which is conferred, the

exigencies of the occasions which may arise with respect to its exercise and other relevant considerations”

Here, the object of the Statute was the entire management of the affairs of the University, which necessarily involved

myriad decisions concerning individual students. The University could not function without an ample facility for

delegation.

In addition, the importance of the subject matter may have a bearing upon the permissibility of delegation, or the

appropriateness of the body to which the delegation is made. In this case, whether a candidate has passed or failed in an

exam is a particular subject which is the sort of decision normally and appropriately delegated to an individual examiner

i.e. junior academic. This is to be distinguished from a more high level decision, such as the removal of a professor. This

will not normally be delegated to a junior academic.

The common law presumption against sub-delegation had not been infringed. Rather, the presumption had been

rebutted by looking at the statute and the sort of decisions made by the body.

Case: Carltona v Commissioners of Works (1943)

Facts: Carltona was a fruit-manufacturing factory. Due to World War II, the Minister of Works took over the factory in

the national interest. Under the relevant legislation, a „competent authority‟, which included the Commissioner of Works,

could requisition land for the national interest. The test was whether it was necessary for the war, for defence of the

realm, or to maintain supplies to the public.

The letter to Carltona notifying of the decision to requisition was signed by „Mr Morse on behalf of the Commissioner (Minister)

of Works‟. Morse was the assistant secretary of the department. Carltona challenged the requisition, arguing Morse was

not a competent person under the statute.

Held:

The Minister of Works has the authority to act. In this case, Mr Morse actually made the decision. This was a problem

because there was no power of delegation.

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However, because Ministers have a special position of constitutional responsibility and the ability to carry out

multifarious and complex tasks, administrative necessity means they have the power to carry out decisions and act via

agents.

Here, there were thousands of war requisitions. The Minister cannot be expected to personally decide on all of them.

The business of government could not be conducted without the arrangement whereby senior officials could exercise

some of the functions given to the Minister.

Case: O’Reilly v State Bank of Victoria (1983)

Facts: S. 264 f the Income Tax Assessment Act provided that the Commissioner of Taxation may by notice in writing

require a person to give evidence or produce documents. Pursuant to s. 8(1) of the Taxation Administration Act, the

Commissioner had delegated to a Deputy Commissioner the power conferred by s. 264. The Deputy Commissioner had,

in turn, given a written authorization to a tax officer, Mr. Holland, to issue notices under s. 264 and sign in the name of

the Deputy Commissioner. Mr. Holland had issued a taxpayer a notice that was framed as a notice issued by the Deputy

Commissioner. At the foot of the notice was the Deputy Commissioner‟s signature.

However, the Deputy Commissioner did not have the power to sub-delegate. The taxpayer argued the notice was invalid

for breaching the rule against sub-delegation. In response, the Deputy Commissioner claimed the agency principle

applied.

Held:

Delegation v Agency

No permanent head of a Department in a public service is expected to discharge personally all the duties which are

performed in his/her name, and for which he/she is accountable to the responsible Minister. While there may exist a

prohibition against delegation, the exercise of power through agents as opposed to delegates is different in rationale.

Gibbs CJ: “There are millions of taxpayers that must be dealt with. It would reduce the administration of the tax laws to chaos if the powers

conferred could only be exercised by the Commissioner or a Deputy Commissioner personally. It cannot be supposed that Parliament intended

such a result.

However, the fact the Act itself contemplates that the delegation will be to a Deputy Commissioner only suggests that it was not intended that

there should be a wholesale delegation of powers to comparatively minor officials. But in any case i would hardly be practicable to make a

delegation of that kind, and it seems to me there exists, as the Parliament must have known, a practical necessity that the powers conferred on

the Commissioner by the Act should be exercised by the officers of his Department who were acting as his authorised agents”.

„Multifarious functions‟: Commissioners, like Ministers, are given functions so multifarious that they can‟t be expected to

personally attend to all of them. Those powers which are exercised under their authority are by responsible, deeper

officials.

Impact of express power to delegate on the agency principle: Agency can still be applied even if there is an express

power of delegation and not any mention of a sub-delegation. This is because of the notion of practical administrative

necessity used in Caltona. If the agency principle cannot be applied, it would render the whole system unworkable.

Parliament would not intend such a result.

Here, the notices had been validly issued. The Deputy Commissioner was too busy to exercise the power. There were

thousands of cases for which notices had to be issued. He could not be expected to be personally involved in all

decisions. The Commissioner and Deputy Commissioner had complex, multifarious functions. Practical administrative

necessity allowed the Deputy Commissioner to act via agency. This is not an impermissible sub-delegation because it is a

separate principle.

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Case: Re Ombudsman (1979)

Facts: S. 11 of the Ombudsman Act provided that the Commonwealth Ombudsman could request an agency to refer a

question to the Administrative Appeals Tribunal (AAT) for an advisory opinion. In this case, the question referred to the

AAT concerned the validity of a decision made by a delegate of the Director-General of Social Services under S. 14 of

the Social Services Act. The delegate, Mr Prowse, had signed a letter notifying the applicant of the decision to affirm the

refusal of benefit. The letter was signed as follows: „L J Daniels, Director-General‟. Mr Prowse signed his own initials

alongside. The AAT held the letter evidenced an attempted but invalid exercise by Mr Prowse of his delegated power.

Held:

(BRENNAN – at AAT):

In some cases it might be permissible for a delegate to act as an agent, but the legislation here did not permit this.

Prowse was given the power to act as a delegate, and acted as such in making the decision. Prowse should have acted as

a delegate and taken responsibility for the decision by signing the letter himself. The letter of notification has to

accurately reflect who made the decision.

If Prowse‟s letter had merely evidenced an act earlier done by him, the letter might not destroy the validity of the

antecedent act. Yet as a matter of administration, the letter would be defective. It would on its face mislead the applicant

into believing that Mr Daniels had dealt with his case and exercised his powers adversely to him and if the applicant had

been aware of his appeal rights under s. 15, he might have been misled into thinking that he could not appeal to any

higher official.

“An act done in purported exercise of a statutory power is valid if the act falls within the statutory provision which confers the power. Prima

facie an act will not fall within the statute unless it is done by the person in whom the statute reposes the power. Validity is dependent

upon the identity of the authority and the doer of the act. However, where the power is not delegable, but the authority could

not have been expected by the Parliament to have exercised it personally in the multitude of instances when its exercise would be required, it

has been held that some classes of acts done by others for an on behalf of the authority should be treated as though they were acts

of the authority”.

“The attempted exercise by a delegate of his own power miscarries when the very act of exercise purports to deny the power which gives validity

to his act”.

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4.2 Broad Ultra Vires

4.2.1 Improper Purpose/Bad Faith

Case: Toohey; ex parte Northern Land Council (1981)

Facts: The Aboriginal Land Rights Act (Cth) established a scheme whereby Aboriginals claiming to have a traditional land

claim to an area of „unalienated Crown land‟ in the Northern Territory (NT) could lodge a claim for that area. The

application would be inquired into in the first instance by an Aboriginal Land Commissioner, who was to prepare a

report for both the Minister for Aboriginal Affairs and the Administrator of the NT. The term „unalienated Crown land‟

was defined specifically to exclude land in or near towns.

In June 1978, the Northern Land Council lodged a land claim over Cox Peninsula in the NT, near Darwin. At the time,

Darwin was defined under the NT Planning Act to be only 143 square km in area. However, in December 1978, the NT

government made Town Planning regulations, including Cox Peninsula within Darwin. This increased Darwin‟s size to

4,300 square kilometres. The NT government was permitted to make Town Planning Regulations under s. 165 of the

Town Planning Act.

The Northern Land Council sought to challenge the validity and operation of the regulation on a number of grounds.

The principal argument was that the regulations made to defeat their land claim were made for an

improper/unauthorised purpose. The Land Commissioner held that the applicants had not demonstrated the Town

Planning Regulations were used in such a way. Accordingly, the Commissioner refused to order discovery of the

government documents which might reveal the reasons why the regulation was made. The consequence was that the

challenge to the validity of the regulation failed.

The applicants applied to the High Court for a writ of certiorari to quash the decision of the Land Commissioner, as

well as a writ of mandamus to have the decision re-heard according to law.

Held:

The Land Commissioner should have examined the validity of the Town Planning Regulations on the basis they were

made for an improper purpose.

Gibbs CJ: In a statutory provision such as this, the nature and extent of the power must be inferred from the

construction of the Act as a whole. A statutory power can only be exercised for the purpose or purposes for which it

was conferred. Here, s. 165 allowed regulations to be made only for planning or sub-division purposes. It was

incontestable that the regulation power is not intended by the Act to defeat land claims of Aboriginal persons. If

exercised for this purpose, it is UV and invalid.

Case: Thompson v Randwick (1950)

Facts: In 1950, the Randwick Council resumed land for two purposes: (1) to construct a road and pathway; and (2) to

sell leftover land to finance the construction of the road and pathway. Thompson challenged the resumption of land.

Held:

The construction of the road and pathway was for a proper purpose, but the selling of leftover land was for an improper

purpose. Whilst it was entitled to resume land for road building purposes, it was not authorised to make profits in doing

so which could otherwise be enjoyed by the land owners. Eventhough there were mixed purposes, the improper purpose

here was substantial because the Council would not have resumed the land if it was not for the planned subdivision and

sale of the land.

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Case: Samrein v Metropolitan Water Storage (1982)

Facts: The Metropolitan Sewerage Draining Board, otherwise known as the Water Board, was authorised to hold real estate

under the Metropolitan Water Sewerage and Drainage Act, but only for the purpose of pursuing its statutory functions.

The Board needed a larger building to house its employees. It owned part of block of land in Sydney, but wanted to

acquire the whole block. To do so, it would have to compulsorily acquire 4 properties. In pursuit of this compulsory

acquisition, the Board planned to construct a 40 storey building. However, it was only going to use 20 stories for its

employees. It would rent the remaining 20 stories to GIO, and also gain profits from a retail precinct at the bottom of

the building.

Samrein was the owner of one of the properties the Board was trying to acquire. He argued that, although the Board was

pursuing the statutory function of housing its employees, it was also pursuing an unauthorised/ulterior purpose in

making profit from the compulsory acquisition. The applicant argued this improper/ulterior purpose was a substantial

purpose; that is, the Board wouldn‟t be pursuing the compulsory acquisition were it not for the ulterior purpose of

making a profit.

In response, the Water Board provided evidence showing that, although it could build a smaller building to house its

employees, if it did so a very valuable block in Sydney would be regarded as an underdevelopment; it would be less

functional and less economical to under-utilise a valuable piece of real estate.

Issue:

Are the purposes for which the Board proposes to acquire the land purposes of the Act?

Held:

The acquisition of land was for a proper purpose. It would be absurd to say that the Board was only permitted to build

sufficient for its purposes under the statute if the result of that was under-development of the block.

The Court distinguished between the dominant purpose of the decision, building to allow for more room for employees,

and the ancillary purpose, ensuring land is properly developed and financed is secured (by letting the property to another

company). The Board‟s plans are permissible because the dominant purpose was proper, even if influenced by subsidiary

profit/economic considerations. The rent was to GIO was just a means to an end. The Thompson test was not satisfied

here.

4.2.2 Relevant/Irrelevant Considerations

Case: Roberts v Hopwood (1925)

Facts: S. 62 of the Metropolis Management Act empowered Local Council to pay its employees „such salaries and wages as

it may think fit‟ (very wide discretion). Over a 2 year period, the Poplar Borough Council resolved that it should act as a

model employer and pay a higher uniform wage of 4 pounds a week to both male and female employees. This was

controversial because it (a) made male and female pay equal, and (b) represented a substantial pay rise (20% for men,

38% for women). Council maintained the wage for the next few years, eventhough the cost of living and general wages

in the country had dropped.

Roberts, a District Auditor and unelected offcial, audited the books of the Council. Under the relevant statute, Roberts

was required to disallow any expenditure contrary to law. Roberts found the wages were so excessive as to amount to a

gift, and thereby contrary to law. He disallowed the increase under the Public Health Act and imposed a penalty on the

members of the Council.

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Held:

The House of Lords upheld the Auditor General‟s decision. The Council was bound to take into account considerations

such as the general level of wages in community, cost of living etc. Thus, the Council had acted contrary to law, as it had

taken into account irrelevant considerations and failed to take into account relevant considerations.

Re Discretion

The discretion in the Act was very wide. Where the discretion is so wide, Courts should be reluctant to intervene. If

Parliament gives a wide discretion, they do so for the purpose of allowing the decision maker to determine what is

relevant or not. However, the Council is a trustee for the public‟s money, and should take into account considerations

such as the general levels of wages as determined by trade union rates, the general cost of living, wages paid by other

Councils etc. Here, they had failed to do so. The substantial pay rise put them out of step with other similar bodies.

Re Equal Wages

The House of Lords also had concerns with the equality of wages. Back in 1925, the House of Lords was very

conservative. They said: “The Council would fail in their duty if it put aside all these aides to the ascertainment of what was just and

reasonable remuneration, and allowed itself to be guided by eccentric principles of socialistic philanthropy, or by a feminist ambition to secure

the equality of the sexes in the matter of wages of world labour. The Council had not been guided by prudent considerations, but by its own

ideology”.

The wage rise represented a gift; the Council was being philanthropic in the way they set wages without regard to what

was good for their rate payers. The wage given to women was a gift disguised as wages, and therefore contrary to law.

There is nothing in the Council‟s duty or powers which allow it to take into account abstract or philosophical views.

Therefore, it had taken into account irrelevant considerations.

Case: Minister for Aboriginal Affairs v Peko-Wallsend (1986)

Facts: The Aboriginal Land Rights Act established a scheme whereby Aboriginals claiming to have a traditional land claim

to an area of Crown land in the Northern Territory (NT) could lodge a claim for that area. The application would be

inquired into in the first instance by an Aboriginal Land Commissioner, who would then prepare a report for the

Minister for Aboriginal Affairs. In the report, the Commissioner was required to comment on the detriment to persons

or communities which might result if the land claim was accepted. If the Commissioner recommended that a claim be

granted, and the Minister was satisfied that the recommendation should be accepted, the Minister was to establish a

Land Trust, to which the Governor-General would formally grant land title.

In this case, the Northern Land Council lodged a land claim over land in the Alligator Rivers region. The

Commissioner‟s report, recommending that part of the claim be accepted, acknowledged that the area of land affected

included at least part of an area which had been used by Peko-Wallsend to undertake mineral exploration. After the

Commissioner‟s report was published, Peko made applications to successive Ministers, asserting the Commissioner‟s

report had not adequately dealt with the detriment they would suffer if the land claim was successful.

There was a lag, and the Minister did not act upon it as an election was called. Following the election, a new Minister was

appointed who approved the land rights claim recommended by the Commissioner. Peko found out the new Minister

had relied on a departmental brief in coming to his decision. This brief had not referred to all of Peko‟s submissions.

Peko challenged the Minister‟s approval, claiming he had failed to take into account a relevant consideration vis-a-vis

their detriment suffered as a result of the land grant.

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Issues:

Was the Minister bound to take into account Peko‟s submission, making failure to do so a „failure to take into account a relevant

consideration‟?

Held:

(MASON J):

There are several principles to note -

I. Relevant considerations: Relevant considerations for the purposes of administrative law are limited those the

decision maker is bound to take into account. To determine what is relevant, it is important to engage in

statutory construction i.e. subject matter, purpose and object of the statute etc. What did Parliament intend in giving

the power?

II. Expressly v impliedly stated factors: Factors bound to be taken into account when construing the statute

differ depending on whether those factors are expressly stated factors or implied factors -

a. Expressly-stated factors: If the statute expressly states the considerations to be taken into account, it will

often be necessary for the court to decide whether those enumerated factors are exhaustive or merely

inclusive. If exhaustive, only those factors must be taken into account. If inclusive, there may be other

factors the decision maker is bound to take into account. This will depend on how the statute is

worded. If the discretion set out is unconfined, the relevant considerations are also unconfined, except

in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the

factors to which the decision maker may legitimately have regard.

b. Implied factors – if the relevant factors are not expressly stated, they must be determined by implication

from the subject matter, scope and purpose of the Act.

III. Insignificant Considerations: If an insignificant consideration is taken into account, it may not necessarily

lead to invalidity of the decision. A factor might be so insignificant that the failure to take it into account could

not have materially affected the decision.

IV. Limited role of court review: It is not the function of the court to substitute its own decision for that of the

administrator by exercising a discretion which the legislature has vested in the administrator.

V. Weight of factors: If there is no statutory indication of how much weight to place on a consideration, it is for

the decision maker, not the court, to determine the appropriate weight to be given to that consideration. But if

a decision maker gives insufficient weight to an important factor, or excessive weight to an insignificant factor,

an error of law may still be argued. However, the ground won‟t be relevant/irrelevant considerations; rather,

the ground of unreasonableness will be in play.

VI. Policy considerations: „Due allowance‟ may be made to account for the fact a Minister may take into account

broader policy considerations.

Despite there being no express provision requiring the Minister to consider detriment, Peko‟s submissions were

considerations the Minister should have taken into account. This is because (a) the purposes and procedures of the

statute and the importance of the rights and interests protected called for the issue of detriment to be considered, and

(b) the Land Commissioner was already required to comment on various matters, including the detriment to persons if

the claim was granted. Parliament was clearly concerned that the Minister not overlooks the consideration. Accordingly,

it provided the means whereby such factors would be analysed and drawn to his attention for the purpose of having

them taken into account. The purpose of the Commissioner‟s report could not be achieved if the Minister was entitled,

but not bound, to consider those factors.

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Re duty to take into account most recent information (given that Peko had made submissions to the Ministerial Officer after the

Commissioner had made his report)

The general rule is that the subject matter, scope and purpose of almost every statute indicates the decision maker is

intended to decide on the most current material available to him/her. Failure to take into account the most recent

available information constitutes an error of law, namely failure to take into account a relevant consideration.

Thus, the decision of the Minister is invalid. The matter is remitted back to the Minister with the direction that the

Minister takes into account Peko‟s detriment as a relevant consideration.

Case: Hindi v Minister for Immigration (1988)

Facts: A Lebanese citizen, Hindi, applied for permanent residency for himself and his family under the Migration Act.

The main facts underpinning Hindi‟s application were that his mother, brother and eight sisters all lived in Australia; that

he could no longer live in Liberia as his employer had ceased operations, at the same time withdrawing his immigration

bond, access to company house and car, and its responsibility for his safety; and that the country of Hindi‟s residence,

Lebanon, was a war-torn country in which he did not formally reside.

His application was considered and rejected twice by the Department of Immigration on the ground that he had not

shown evidence of hardship or displacement due to the civil war in Lebanon. In rejecting the claim, the Department

made certain references; namely, „I have been made aware of‟ and „I have read‟ the applicant‟s claims.

Held:

(SHEPPARD J):

The Department had inadequately considered the material before it. In particular, it had understated the detriment

suffered by the applicant‟s family, and had not given that factor genuine or proper consideration. The use of the above

phrases (“I have read”; “I have been made aware of”) does not reflect that a genuine and proper consideration was

carried out.