Chapters

Jurisdictional Challenges

Not all decisions reached by a government body will be within the jurisdiction of a tribunal or court to hear. Some may be specifically excluded in the relevant Act. Some may be excluded because of the lapse of a particular time limit.

An administrative body may also exceed its power or jurisdiction even when it is dealing with the correct subject matter (e.g. imposing a penalty which it was not empowered to impose).

Improper Exercise of Power

A court will interfere with an administrative decision or question if it can be shown to go beyond the powers given to its maker by Parliament. (An administrative action that is beyond power is often called ‘ultra vires’.) There is a large amount of case-law on this area, and the following paragraphs summarise it.

Irrelevant considerations

If it can be shown that a government body, in reaching its conclusions, has taken into account factors that are not relevant to the matter, the court can intervene. In order to decide what is relevant, it is necessary to compare the reasons given for the decision or action with those permitted by the governing Act.

For example, in deciding whether to grant a 15 year-old homeless person a payment, Centrelink is entitled to take into account factors such as break-down of the family relationship or of the availability or willingness of a parent to provide the young person with a home. If Centrelink decides not to grant the allowance because the young person is currently residing with a person of bad repute, this would be an irrelevant consideration. A denial of the payment which included this as a ground would be overturned by the court and returned to Centrelink for reconsideration free of the irrelevant matter. Alternatively a tribunal could substitute its own decision on what is relevant and make a fresh decision.

Improper purposes

Often, the same facts will justify court actions on the basis of both irrelevant considerations and improper purpose. Sometimes the case law has used the terms interchangeably. Strictly speaking, the claim here is that the decision or action, though on its face proper under the law, is designed to achieve a purpose which is beyond the responsibilities of the government body. For example, an Act may permit a local council to close off a street for a particular event. On the face of it, the council may appear to do this. However, it might be that the real object of the closure was to create a permanent, traffic-free area in the city. This ground will only succeed if it is proved that the government body would not have acted as it did but for the improper purpose.

Unreasonableness

Another ground of judicial review is to claim that an action or decision was so unreasonable that no reasonable body would have reached it. This is a difficult ground, because it admits that the decision was permissible under the law. The individual is contending that it is an absurd or legally irrational application of the law. A decision-maker may have acted unreasonably because highly significant factors were not given proper weight or because their opinion could not have been reasonably formed on the information available (Minister for Immigration; ex parte Eshetu (1999) 162 ALR 577).

Bad faith

Another ground of attack on administrative actions which appear on their face to be proper, is that of bad faith. Here, it is necessary to show the decision was affected by corruption, bribery or similar malpractice. The great difficulty, of course, is to obtain evidence to prove what is considered by the courts to be a very grave allegation against the conduct of government.

Uncertainty

A ground which is rarely available for attacking an administrative action is that it was too uncertain to be meaningful. This is really a question of how vaguely the administration expressed its decision. The question is whether the decision is so vague that it gives no guidance for people to act on it.

Error of law on the face of the record

All authorities must keep some account of their decisions. Sometimes this is limited simply to the bare finding, e.g. ‘licence application denied’. Where no better record of the decision or the reasons for the decision is kept or required, it may be very difficult to establish that the authority has made an error of law. But it is quite common, especially among the more important authorities, for transcripts of proceedings and reasons to be kept.
Where a tribunal’s misunderstanding of the law is so serious that it amounts to an excess of jurisdiction, it can be attacked on that basis. If the misunderstanding is not that serious but is still apparent in the record of proceedings, it is also possible to strike down the ultimate decision on the basis that it is an error of law on the face of the record.

Improper delegation

Improper delegation is a narrow ground. Obviously, government administration requires a great deal of delegation. Ministers, boards and other entities responsible for government decisions must pass over much of their work to subordinate officers. The person responsible in law for making the decision should, however, keep control over it. The instructions given to subordinate officers may provide control, and where officers are ultimately answerable to the decision-maker, the delegation is probably proper.

Improper delegation is usually where a body responsible for a decision has let its judgment be formed by a body over which it had no control. For example, it would be improper delegation if a Secretary of the Department of Family and Community Services left a matter for which the Secretary was responsible to an independent employment agency to decide, so that the Secretary simply signed the letters containing the decision. However, if the Secretary had laid down guidelines, and had only treated the independent agency’s views as recommendatory, there could be no successful judicial review.

Divesting and dictation

More unusual still are the situations where a process is declared legally improper because the decision-maker has divested responsibility or acted under dictation.

‘Divesting’ happens where a decision-maker simply gives away their authority in a matter. For instance, if a Director for National Parks and Wildlife was to declare that in future all determinations about endangered species would be made by an independent foundation, this would be an improper divesting of responsibility.

The reverse of this situation is ‘dictation’. Here, the body responsible for making a decision allows itself to be dictated to by some other entity, normally an entity superior in status to that body. For instance, if electoral commissioners carried out a function given to them in an Act by merely following a ministerial directive, this would be improper dictation. On the other hand, it is quite permissible and also politically sensible, for bodies such as this to take into account government policy in reaching a decision.

A famous case where dictation was successfully shown involved the actions of the Director-General of Civil Aviation in 1965. He refused import permits sought by a company wishing to enter the aviation business, on the basis of a ministerial directive. The potential importer was successful in overturning that ruling. However, in the end the importer was not able to enter the business as the Director-General decided the matter on different grounds.

Inflexible policy

If an administrative body applies predetermined guidelines or policy criteria without regard to the merits of the specific situation, a ground for action may exist. A decision-making body which is required to consider each case on its individual merits must not simply apply rigid policy guidelines. However, this principle cannot be taken too far. Obviously, to ensure consistency in decision-making and community understanding, it is necessary that cases be decided according to set rules.

One way to convince a court that a case has not been given some (however fleeting) special attention is to demonstrate that no case of the kind in issue has been successful over a long period of time. In one English case, it was necessary to show no case of the kind in issue had been decided in favour of an applicant for a period of three years though, in theory, a favourable decision could have been made at any time in that period.

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