TOPIC 4A: GROUNDS – ULTRA VIRES

ULTRA VIRES: The basic idea underpinning the ultra vires doctrine (‘UV’) is that government decisions, actions and powers must not be made in excess of its

lawful powers. There are 2 categories of UV:

1) Narrow/simple UV – where decisions are not authorised by the law at all; there is no legal power to do what has been done;

2) Broad/extended UV – where decisions have not been made in accordance with the legal requirements governing how they should be made. There is legal power to act,

but only if the requirements governing the decision making process are satisfied.

Narrow/Simple UV: Parliament and other democratically elected bodies pass statutes giving important powers to decision makers (eg. To issue control orders). It is expected that those

decision makers will act within the remit of that statute. But sometimes, they can act outside the remit of the statute, in 3 ways: 1) if they exercise their power in an unauthorised fashion

(London County Council v AG (1902), or act beyond the scope of the statute; 2) if they disregard or fail to comply with an express procedural requirement; or 3) if they exercise improper

delegation of authority i.e. the person who exercises the power is not the person to whom the power was conferred. These 3 ways are termed narrow ultra vires or narrow jurisdictional

error. They are named as such because the common law has recognised them as the more extreme sorts of errors, leading to invalidity of the decisions:

NARROW UV – GROUND 1: SUBSTANTIVE/SIMPLE UV

Theory: Governments and their officers cannot perform acts or make

decisions which they are not authorised by law to do; that is, go beyond

what is permitted by statute, or which goes beyond the scope of the

primary Act.

Codification: ADJR Act, ss. 5(1)(d); 6(1)(d) – “that a decision was not

authorised by the enactment in pursuance of which it was purported to

be made”.

Note – only ‘decisions of an administrative character made under an

enactment’ can be reviewed under the ADJR Act. When challenging a

decision made under an Act or Regulation, the decision or the regulation

can only be challenged under the common law; a regulation is a

legislative instrument, and therefore not of administrative character.

Principles: Acts which extend regulation beyond the scope and purpose

ascribed by the primary Act will be deemed substantively UV. Where

Parliament has generally worded Acts by use of terms such as ‘necessary or

expedient’ or ‘as the [power broker] sees fit’, they may be intending broad

discretion. However, the Act or Regulation must still be read in accordance

with the objects and purposes of the primary Act (Shanahan v Scott

(1957)).

A regulation or by-law will not automatically be invalided simply because it

goes further than is necessary to regulate the primary Act. Broadly worded

regulations and by-law are not ordinarily allowed. However, the societal

problem the by-law is aimed at, as well as factors such as human rights

violations and lack of constitutional protection, may make such ordinances

valid. If power is given for the purpose of prohibiting something, the power

will, in the absence of contrary indication, enable the making of a law which

prohibits absolutely or subject to conditions. Statutory interpretation is essential

here (Foley v Padley (1984)).

NARROW UV – GROUND 2: PROCEDURAL UV

Theory: Procedural UV, otherwise known as disregard of express procedural requirements, occurs when an administrative

body fails to comply with or disregards an essential pre-condition for the exercise of their power.

Codification: ADJR Act, ss. 5(1)(b); 6(1)(b) – “that procedures that were required by law to be observed in connection with the

making of the decision were not observed”

Note – for a long time, Courts distinguished between mandatory (‘must’) and directory (‘may’) rules. Breach of the former

would lead to UV, while breach of the latter was open to interpretation. The HC eventually held this distinction was

inappropriate, and a different approach is now used, looking at other factors like the subject matter of the case and consequences

to the parties.

Principles:

In determining whether a body has breached procedural UV, the Court must look towards Parliament’s intention, determining

whether it intended to invalidate any Act which failed to comply with the procedural condition. In answering this question, the Court

must ascertain the Act’s purpose, taking into account factors such as:

a) The language of the Statute (so „must‟ or „may‟ is still relevant);

b) The subject matter and objects of the Statute; and

c) The consequences to the parties of a finding that actions done in breach of the condition are void (if excessive inconvenience would be

cause by invalidating the Act, particularly if it is a minor procedural requirement, the rationale is that Parliament would not have intended that to occur).

Parliament is unlikely to have intended to invalidate an Act which fails to comply with a procedural condition when:

a) The statute simply regulates administration, as opposed to mandates procedure;

b) The conditions are not rule-like, and cannot be easily identified or applied. The more policy like a rule is, the less likely it will be

construed as a procedural requirement;

c) The likely consequences of the Act would cause much inconvenience to the parties or public who acted in reliance of the Act.

Parliament is unlikely to have intended inconvenient consequences. Just because a decision maker fails to consider an international

treaty, the decision will not necessarily be invalid. The subject matter, scope of the Act and any inconvenience to the

applicants/public has to be considered before invalidation is made (Project Blue Sky v ABA (1998)).

RE: Refugee Cases – the word ‘must’ in the statute was strictly construed, leading to invalidity of the decision (re: written

notice to applicant but provided orally) (SAAP v Minister for Immigration (2005). ‘Must’ was construed leniently and the

decision stood (letter was sent to parents, not fluent daughter; also, entire family appeared at hearing, so written notice was not essential).

NARROW UV – GROUND 3: IMPROPER DELEGATION

Theory: There is a common law presumption against delegation: in conferring a

power upon a particular officer, Parliament is presumed to have intended that it

should be exercised by that officer, and not handed over to someone else. However,

the presumption can be varied by statute. Almost all statutes expressly permit senior

officials to delegate many of their powers. Most problems arise when a delegation is

not made, or not made correctly.

Codification: ADJR Act, ss. 5(1)(d); 6(1)(d) – “Delegation not authorised by statute”

Principles: Delegation in the administrative context occurs when the decision maker,

usually the Secretary of a Department, passes authority to decide to another person,

usually to someone junior. There are different categories of delegation: 1) an express

power to delegate; 2) an implied delegation; and 3) the agency/alter ego principle: the

principal (Minister) has influence over the agent (delegated person). When an agent

signs a decision, they don’t sign it in their name, but in the name of the Minister.

Implied Delegation - If there is no express power to delegate, the Court may still imply

delegation after considering i) the subject matter, ii) the purposes and objects of the

statute, iii) the character of the power which is conferred, iv) the exigencies of the

occasions which may arise with respect to its exercise, and v) other relevant

considerations. Large bodies making a number of different decisions may require

expansive powers of delegation. The more mundane a decision, the more likely it is that

courts will imply a power of delegation. The more severe a decision, the less likely it is

that courts will imply a power of delegation (Foster v University of Sydney (1963).

Agency/Alter Ego Principle – the common law recognises that in certain cases, agents

can act in the name of a principal. To validly establish agency, it must (a) be shown

that it is warranted, and (b) be ensured that when acting as an agent, the agent signs in

the name of the superior. By contrast, under delegation, the delegate acts and signs in

their own name.

Because Ministers have a special position of constitutional responsibility, as well as the

ability to carry out multifarious and complex tasks, administrative necessity means they

have the power to carry out decisions and act via agents (Carltona v Commissioner of

Works (1943) – UK Case). When a Minister is entrusted with administrative functions

he may, in general, act through a duly authorised officer of his Department. A power

whose exercise will likely adversely affect the rights of individuals points towards the

notion of the Minister acting personally. Despite an express power of delegation, agency

can still be applied because of the notion of practical administrative necessity. Practical

administrative necessity allows for a Ministerial delegate to act via agency. As agency is a

separate principle to delegation, it will not be an impermissible sub-delegation, even

where sub-delegation is impermissible (O’Reilly v State Bank of Victoria (1983) –

AUS Case). If a person acts as a delegate, they have to sign as a delegate. If a person

acts as an agent, they have to sign as an agent. If a delegate does not sign as a delegate

but as an agent, their decision will be invalid for UV because they will have denied the

proper source of their power. If an agent signs as a delegate, this will too be invalid for

UV. An agent derives their power from the principal, and has to act under the principal’s

name and authority in making their decision. A principal has more influence and control

over an agent. An applicant needs to know who made the decision in their application. If

an applicant thinks that someone senior made the decision, they are less likely to seek

review, as they may incorrectly think they cannot appeal to a higher official. Conversely if

they are junior, an applicant may be more likely to challenge the decision (Re

Ombudsman (1979)).

Broad/Extended UV: Broad UV occurs when a decision maker acts within scope, but makes some

legal mistake within the scope of that power. In these circumstances, the decision maker will be

considered as having abused or exceeded their power.

BROAD UV – GROUND 1:

IMPROPER PURPOSE/BAD

FAITH

Theory: Improper purpose is argued

where the decision maker has exercised

the power for reasons other than for which

the power was conferred. Bad faith is

argued where the decision maker was

motivated by corruption, dishonesty,

malice etc. Neither ground is commonly

argued.

Codification – Improper Purpose: ADJR

Act, ss. 5(1)(e); (2)(c) & 6(1)(e); 2(c) – “An

exercise of power for a purpose other

than for a purpose for which the power

was conferred”.

Codification – Bad Faith: ADJR Act, ss.

5(1)(e)(g); (2)(d) & 6(1)(e)(g); 2(d) – “An

exercise of a discretionary power in bad

faith”.

Principles: A statutory power can only be

exercised for the purpose(s) for which it was

conferred. If a statutory power is exercised

for an ulterior purpose, it will be considered

as being exercised for an

improper/unauthorised purpose and

thereby invalid (R v Toohey; Ex parte

Northern Land Council (1981)). The

Court distinguishes between dominant and

ancillary purposes. When the dominant

purpose is proper, the exercise of power will

be valid, even if influenced by subsidiary

improper purposes, such as

profit/economic considerations (Samrein v

Metropolitan Sewerage (1982)). In cases

of mixed purposes (proper and improper), it

determine whether the improper purpose is

substantial. An improper purpose is

substantial when no attempt would have

been made to exercise the power if the

ulterior purpose was not present (‘but for the

ulterior purpose, would the decision have been

made?‟) (Thomson v Randwick (1950)).

BROAD UV – GROUND 2:

RELEVANT/IRRELEVANT CONSIDERATIONS

Theory: When decision makers take account of matters in the

exercise of a power, they must consider all the matters which are

relevant, ignoring any matters which are irrelevant. Determining

what is relevant and what is irrelevant depends on an examination

of the scope and purpose of the statute.

Relevant considerations – test: the applicant must show the

consideration was a mandatory consideration, not discretionary.

Irrelevant considerations – test: Determining based on the

wording of the statute.

Codification: ss. 5(1)(a)(b) & (2)(a)(b); 6(1)(a)(b) & (2)(a)(b).

Principles: Where an Act gives wide discretion to a person of body to take

into account a range of considerations, Courts will usually be reluctant to

intervene. Parliament affords wide discretion to allow the decision maker to

determine what is relevant and irrelevant. However, where a person or body

is charged with the administration of contributions by its members, that body

owes a duty to its members to conduct that administration in a businesslike

manner, with reasonable care, skill, caution and with due regard to the

interests of those members and contributors. In these circumstances, the

body stands in the position of trustee for its members and contributors.

Abstract or philosophical views may constitute irrelevant considerations

(Roberts v Hopwood (1925)). RE: Relevant considerations:

Considerations limited to those the decision maker is bound to take into

account. This is based on statutory interpretation and analysis of the subject

matter, purpose and object of the statute. What did Parliament intend in giving the

power? RE: Expressly stated factors: When factors are expressly stated in a

statute, consider whether they represent an exhaustive or inclusive list. If

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

may be other factors the decision maker can take into consideration. This will

depend on how the statute is worded. If the discretion set out is unconfined,

the relevant considerations are also unconfined. RE: Insignificant

Considerations: If an insignificant consideration is taken into account, this

may not necessarily lead to invalidity. The test is whether the consideration

materially affected the outcome of the decision. RE: 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 under the ground of

unreasonableness. RE: Policy considerations: ‘Due allowance’ may be made

to account for the fact a Minister may take into account broader policy

considerations. The subject matter, scope and purpose of almost every statute

indicate 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 under failure to take into account a relevant

consideration (Peko Wallsend (1986)). A decision maker must give ‘genuine

and proper consideration’ to relevant factors (Hindi v Minister (1988)).

BROAD UV – GROUND

3:

UNREASONABLENESS

Theory: Decision makers

cannot make decisions which

are so unreasonable that a

decision maker would not

have so decided. The test for

unreasonableness is quite

strict and of a high threshold,

particularly where it is applied

in a literal sense. However, it

is still commonly invoked as a

catch all ground when the

grounds of natural justice and

failure to take into account a

relevant consideration fail.

However, it has been criticised

for straying too far into merits

review.

Codification: ADJR Act, ss.

5(1)(e) & (2)(g); 6(1)(e) &

(2)(g) – “An exercise of power

so unreasonable that no

reasonable person could have

so exercised the power”

Principles: Unreasonableness

has a high threshold. Only those

decisions ‘so absurd that no

reasonable authority could ever

have come to it’ will satisfy the

ground of unreasonableness.

Courts are reluctant to adjudicate

on unreasonableness as it often

strays into merits review. The

courts are not supposed to look at a

matter afresh, substituting their

decision for that of the decision

maker (Wednesbury Case (1948)

– UK Case). Issues of irrationality

may be argued as an adjunct to

unreasonable; i.e. irrational and

unintelligible decisions are akin to

unreasonable decisions, and

therefore UV (Minister for

Immigration v Li (2013)). “A

decision which is „unreasonable‟ is a

decision so outrageous that no sensible

person could have arrived at it” (Lord

Diplock, CCSU).

BROAD UV – GROUND 4: NO EVIDENCE

Theory: No evidence is one ground of judicial review where

there is a clear difference between the common law and ADJR

Act –

Common Law:

Theory: Under the common law, a decision made under statute

will be invalid if there if there is a lack or absence of evidence to

satisfy an essential element of the decision. A decision will not

be invalid under no evidence if there is some evidence to

support the statutory element, even if the evidence is

questionable in its adequacy or sufficiency.

Principles: Even if there is minor but insufficient evidence for a

finding of fact, the Court will not intervene. Only when there is

absolutely no evidence to justify a particular conclusion is judicial

intervention justified (R v Australian Stevedoring (1953).

Evidence can still be challenged under the common law if it is not

logically probative. The Court must still look at the soundness of

the evidence. Findings of fact cannot be based on mere suspicions

or speculations (Pochi (1970)).

ADJR Act:

Theory: Under the ADJR Act, the test includes a

reasonableness component (s. 5(3)(a)), or a test of negativing a

fact by presenting positive evidence to negative it (s. 5(3)(b)) –

1. ‘Reasonableness’ – where there was a particular requisite

matter which the decision maker was not reasonably satisfied as

having been established.

2. ‘Negativing a Fact’ – evidence must negative the finding of

fact by the decision maker.

Codification: S. 5(1)(h); s. 5(3) (*read legislation*)

Principles: The test for common law no evidence is total absence of

evidence. Rationally probative evidence, or faulty logic, will not amount to

an error of law and will not constitute ‘no evidence’ under common law.

While s. 5(1)(h) extends or expands the common law, ascribing a lesser

burden than the common law in proving the ‘no evidence’ test, the effect

of s. 5(3) is to severely limit the area of operation of the ground of review

in s. 5(1)(h) (ABT v Bond (1990)). The word ‘based’ in s. 5(3)(b) requires

the decision maker’s error about the particular fact to have been critical to

the decision; that is, the decision would not have been reached without the

particular factual finding. When the same finding would have been reached,

regardless of the facts (i.e. where the decision was not ‘based’ on those

particular facts), the original decision will not be invalid (Minister for

Immigration v Rajamanikkam (2002)).

RE: s. 5(3)(a): S. 5(3)(a) will only be made out where the establishment of

a particular fact is a pre-condition in law to the decision. When the decision

maker has to take into account a number of factors, and is not limited to

those pre-conditional facts, the establishment of the fact will not amount

to a necessary pre-condition and s. 5(3)(a) will not be established.

RE: s. 5(3)(b): More than a mere lack of evidence must be shown to make

out s. 5(3)(b). An applicant under s. 5(3)(b) has to negative the finding of

fact with positive evidence (TV Capricornia v ABT (1986)).

BROAD UV - GROUND 5:

INFLEXIBLE

APPLICATION OF POLICY

Theory: Administrative officials

are often guided by government in

exercising their powers. However,

these same officials may become

unduly reliant on policies,

exercising little or no independent

judgment when making decisions.

Inflexible application of policy

occurs when the decision maker

applies policy in a rigid,

mechanical way, eliminating all

discretion in application.

Codification: ADJR Act, ss. 5(1)(e)

& (2)(f); 6(1)(e) & (2)(f) – “An

exercise of discretionary power in

accordance with a rule or policy

without regard to the merits of the

particular case”

Principles: A decision maker

exercising statutory discretion is allowed

to adopt a rule or policy to guide his/her

assessment of applications, but has to

keep an open mind to any applicant

seeking to argue their case is a valid

exception to that policy. However, when

a statute confers broad power and does

not set out policy, the decision maker is

allowed to adopt stringent policy to guide

their decision making (British Oxygen

(1971) - UK). Sometimes, Parliament will

intend for a decision maker to exercise

discretion, despite the Act or

circumstances suggesting otherwise. If

that decision maker fails to exercise

discretion, but rather strictly decides in

accordance with external or government

policy, they will have come to a UV

decision. The Court is going to be heavily

influenced by factors such as the power

being exercised, the particular statute, the

nature of the applicants likely to be

adversely affected, and the effect of the

power’s exercise. Sometimes they will

take a more relaxed approach, other

times not. Each case must be considered

in its context (Rendell v Release (1987)

– AUS).

BROAD UV – GROUND 6: ACTING UNDER

DICTATION

Theory: As a general rule, the body upon which discretion

is conferred must exercise that discretion, and not act in

accordance with the orders of another person. Acting under

dictation applies when a decision maker does what

someone else tells them to do, usually a superior, instead of

exercising the discretion themselves. However, the Court

accepts that in reality, decision makers take into account

government policy, particularly from heads of departments

and ministers.

Codification: ADJR Act, ss. 5(1)(e) & (2)(e); 6(1)(e) & (2)(e)

– “An exercise of personal discretionary power at the

direction or behest of another”

Principles: Where discretion is conferred on a public servant,

government policy will not always be an extraneous consideration to

the exercise of discretionary power. A decision maker can take into

account some matter of general government policy, so long as they

arrive at a decision of their own. Senior public servants are permitted

to take into account government policy without infringing the ground

of acting under dictation. A senior public servant, such as the

permanent head of a government department, is bound to obey the

directions of their Minister and take into account departmental policy

(Windeyer J) (R v Anderson; Ex parte Ipec Air Pty Ltd (1965)). A

decision made by a public servant at the direction of his/her Minister

does not constitute acting under dictation. In fact, a public servant is

bound to carry out government policy, especially in areas of vital

importance to the wellbeing of Australia. It would not be wrong for a

senior public servant to give conclusive weight to government policy.

Dissent: While a decision maker may have regard to government

policy, they still have to decide for themselves whether the policy is

decisive to the application. The decision maker is not entitled to

abdicate their responsibility for making a decision by merely acting

on the direction of the Minister (Mason J) (Ansett v Cth (1977)). It is

permissible for an authority to take into account Ministerial policy

and the views of the Minister in coming to their decision. However,

this will depend on the nature of the decision and the agency in

question vis-a-vis its statutory function, its independence under the

statute, and the nature of the relationship between decision maker

and Minister (Bread Manufacturers v Evans (1981)). The meaning

of ‘dictation’ is to act at the behest of another person. ‘Behest’ is akin

to command, rather than request. A decision maker has to show

he/she exercised a real exercise of discretion, not an acceptance by

the decision maker of the discretion of another person (Telstra

Corp v Kendall (1995)). Maritime officers, and other officers

operating under a chain of command, exercise their powers in the

context of that chain, governed by orders and instructions from

superiors. They are bound to follow such orders. Implementing them

will never amount to acting under dictation. The more personal a

decision, the less likely it will be amenable to a higher direction. That

is to say, the more personal the decision, the more discretion must be

exercised (CPCF v Minister for Immigration (2015)).