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 ).
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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