LLB230 Lecture Notes - Lecture 8: Avail, Enquire, Judicial Restraint
Week 8 – Grounds of Review I – Considering Irrelevant Matters, Failure to
Consider Relevant Matters, Wednesbury Unreasonableness
• Need to make out grounds of review – justification
• Grounds of review codified in s 5 & 6 ADJR Act
• Codification of what is already in common law
• Three grounds of JR under the ADJR Act: irrelevant consideration, failing to take into
account relevant consideration, unreasonableness
• Major issues:
- The Enabling Act, i.e. a statute under which the decision was made
- Discretion of the decision maker
- The subject matter of consideration – what has been considered (i.e. the facts,
evidence, statement of reasons, admin material, policy)
Essential Elements of JR
• Administrative decision
• Made under an enactment
• The outs juisditio
• Standing
• Justifiability
• Grounds
Determination from the Statute
• When expressly lists what are irrelevant and what are mandatory legal
requirements/obligations to take into account by the decision maker
• If not, whether it can be implied through interpretation
• May be located from:
- Language of the statute
- Features/subject matter, scope, nature and objectives of the statute
- Nature of the decision
- Nature of the decision maker
- Scope of discretion
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Considering Irrelevant Matters
• A decision may be invalid where an irrelevant consideration has been taken into
account by a decision-maker
• Issue of law resolved by construction of the statute that confers a power
ADJR Act
• Section 5(2)(a)
taking an irrelevant consideration into account in the exercise of power
Criteria of Relevance
• Creating a legal error
• An irrelevant matter was considered – matters which a decision-ake ist
permitted to take into account
• A matter that is prohibited because, having regard to the subject matter, scope and
purpose of the power, it can be seen to reflect an extraneous or improper purpose
or to render the decision arbitrary or capricious
• Significant enough to impact the outcome, i.e. appliats ights/iteests – deprive
him/her of the possibility of a successful outcome
• Can invalidate the decision
• Determination is a question of law and accomplished via interpretation of the
statute
• In many cases, what is irrelevant will be obvious from the statute → ALWAYS start
with the statute
• However, in other cases there will be a need to draw inferences from other features
of the legislation
- What is the legislation about?
- Subject matter
- Language and object of the act
- Nature of the decision and decision maker
General principle: if there is silence, negative inferences may be drawn.
This is not absolute
• Discretions that are unconfined, open-textured, or embody expansive notions like
puli iteest o atioal iteest:
- Provisions of this kind confer a broad discretion upon a decision-maker
- Compromise between competing interests/perspectives
- Usually, the courts will allow a broad discretion (within reason) but in some cases
they may look back to the statute or add an external dimension - such as human
rights elements
• General legal presumption that legislation can never be administered to advance the
personal interests of the decision-maker (R v Anderson)
• International conventions important in setting framework in which statutory powers
are exercised (Minister of State for Immigration and Ethnic Affairs v Teoh)
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Matters That Were Considered and Evidence of an Irrelevant Consideration
• An issue of fact and evidence
- Statement of reasons
- Contemporaneous administrative documents
- Reliance by the decision-maker upon an irrelevant policy statement
- Adoption of a briefing paper that misstates the law to be applied
• Usually clear from the reasons – can see facts, administrative material or policy
- However, just because something was etioed, doest ea that it as
considered in that way
- Inference can be drawn that a decision maker has considered lots of material
- Sometimes decision makers will look over a lot of material, a lot of which will be
irrelevant. It is not a problem that they have looked at irrelevant material, just as
long as it was not taken into consideration
• “ilee does ot pelude the outs sueillae Padfield)
• The asee of easos fo a deisio hee thee is o dut to gie the aot of
itself provide a suppot fo the suggested iatioalit of the deisio Lonrho plc
v Secretary of State for Trade and Industry)
• The absence of reasons cannot of itself provide evidence that there were irrelevant
considerations taken into account. But the decision maker cannot complain that
when other facts and evidence point to another decision, the court draws the
inference that he/she had no rational reason for his/her decision
• May also be inferred something has been taken into account because of the decision
• Public interest decisions can ordinarily be taken into account unless there was a
positive indication that they were excluded
• Principle generally applied → an irrelevant consideration will vitiate a decision,
unless it is insignificant
Policy as an Irrelevant Consideration
• The policy itself can be an irrelevant consideration (Bowser)
- Especially broader social policy, less so executive policy
- More about a policy linked to an election promise or fiduciary duty or something
that may impact the way a minister wants to make a decision
• Roberts and Bowser illustrate that a body – even an elected body – that is exercising
statutory powers may be limited in the extent to which it can implement general
social policy
• Legitimate to make decisions that have popular appeal and electoral support, but
not if the power is exercised not for a public purpose for which the power was
conferred but in order to promote the electoral advantage of a particular party
(Porter v Magill)
• Reliance on policy will be unacceptable where the reliance leads the decision-maker
to act for an unauthorized purpose (Slipper)
find more resources at oneclass.com
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Document Summary
Week 8 grounds of review i considering irrelevant matters, failure to. The enabling act, i. e. a statute under which the decision was made. The subject matter of consideration what has been considered (i. e. the facts, evidence, statement of reasons, admin material, policy) Essential elements of jr: administrative decision, made under an enactment, the (cid:272)ou(cid:396)t(cid:859)s ju(cid:396)isdi(cid:272)tio(cid:374, standing, grounds. Determination from the statute: when expressly lists what are irrelevant and what are mandatory legal requirements/obligations to take into account by the decision maker. If not, whether it can be implied through interpretation: may be located from: Features/subject matter, scope, nature and objectives of the statute. Considering irrelevant matters: a decision may be invalid where an irrelevant consideration has been taken into account by a decision-maker. Issue of law resolved by construction of the statute that confers a power. Adjr act: section 5(2)(a) (cid:862)taking an irrelevant consideration into account in the exercise of power(cid:863)
