LLB230 Lecture Notes - Lecture 10: Peko, William Gummow, Aboriginal Title
Week Ten; Grounds of Review II - Considering Irrelevant
Matters, Failure to Consider Relevant Matters
Considering Irrelevant Matters
ADJR Act – Section 5(2)(a)
Taking an irrelevant consideration into account in the exercise of power
WHAT HAS BEEN TAKEN INTO ACCOUNT?
An issue of fact and evidence.
WAS ANYTHING TAKEN INTO ACCOUNT IRRELEVANT?
What is irrelevant will often be obvious from the statute.
However, in other cases there will be a need to draw inferences from other
features of the legislation, or the nature of the decision and decision maker.
The absence of reasons cannot of itself provide evidence that there were
irrelevant considerations taken into account.
oBut DM cannot complain when other facts & evidence point to another
decision court draws inference that there was no rational reason
What happens when the thing that is to be taken into account is broad, like
public interest? 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.
What is the Effect of an Irrelevant Consideration on Validity?
oInvalidation because of an irrelevant consideration, generally requires
that the irrelevant consideration was not insignificant.
WHAT MATTERS WERE CONSIDERED?
What does it mean to ‘consider’ a matter? It is usually obvious that a matter
was considered on the basis of the statement of reasons, administrative
material or adoption of an irrelevant policy etc.
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.
'Browning'
ISSUE:
oDid the Commission's decision to refuse Mr Carbone an irrigation lease
take into account irrelevant considerations, being that the land should
be kept for returned soldiers?
PRINCIPLE/FINDINGS:
oNo positive indications of relevant considerations in the Act.
oNot appropriate for the court to consider the basis for the policy - the
Commission is an administrative agency with full discretion
oDid not appear that the Commission had been prompted by anything
but the welfare and development of the irrigation area, which went to
the scope and purpose. Therefore, irrelevant considerations were not
taken into account.
'Murphyores'
1
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Document Summary
Week ten; grounds of review ii - considering irrelevant. Taking an irrelevant consideration into account in the exercise of power. What is irrelevant will often be obvious from the statute. However, in other cases there will be a need to draw inferences from other features of the legislation, or the nature of the decision and decision maker. 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. What is the effect of an irrelevant consideration on validity: invalidation because of an irrelevant consideration, generally requires that the irrelevant consideration was not insignificant. It is usually obvious that a matter was considered on the basis of the statement of reasons, administrative material or adoption of an irrelevant policy etc. Sometimes decision makers will look over a lot of material, a lot of which will be irrelevant.
