LLB230 Lecture Notes - Lecture 8: Judicial Restraint, Enquire, Avail
WEEK 8: Unreasonableness;
disproportionality
- judicial discretion
Codification of the common law in
relation to
oS 39(B) Judicial Act
oS 5 and 6 ADJR Act
Considering Irrelevant Matters
S 5(2)(a) taking an irrelevant
consideration into account in the
exercise of power
- Has to be an issue of fact and
evidence
- What is irrelevant will be
obvious from the statute
- May need to draw inferences
from other features of the
legislation eg. the object of the
Act, the nature of the decision
and the decision maker
- The absence of reasons cannot of
itself provide evidence that there
was irrelevant considerations
taken into account. But the
decision maker cannot complain
that when other facts and
evidence point to another
decision, the court draws
inference that they had no
rational reason for their decision
- When something taken into
account is broad like the public
interest - 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 a
human rights element
Effect of an irrelevant consideration on
the validity of a decision
To invalidate a decision because
of an irrelevant consideration, it
will generally be required to
show that the irrelevant
consideration wa not
insignificant
What matters were considered
To consider a matter is usually
obvious that a matter was
considered on the basis of the
statement of reasons,
administrative material or
adoption of an irrelevant policy
Decision makers will sometimes
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 was not taken into
consideration
Water Conservation and
Irrigation Commissioner v Browning
- Did the Commission’s decision to
refuse an irrigation lease take
into account irrelevant
considerations being that the
land should be kept for returned
soldiers, that Italians were not
good irrigation farmers and
‘enemy born’ people should not
hold land
- There were no positive
indications of relevant
considerations in the Act
- It is not appropriate for the court
to consider the basis for the
policy - the Commission is an
administrative agency with full
discretion, although it is not
meant to be arbitrary ot
completely unlimited
- It did not appear that the
commission has been prompted
by anything but the welfare and
development of the irrigation
area, which went straight to the
scope and purpose of the Act.
Therefore, irrelevant
considerations were not taken
into account
Murphyores Inc Pty Ltd v
Commonwealth
- Did the Minister take into
account irrelevant matters when
he considered that
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environmental impact of mining
on Fraser island
- No, the regulations conferred
wide powers, no general criteria
emerged to limit the
considerations
- The minister is free to have
regard to the environmental
effect of mining as the discretion
is intended to be wide enough to
embrace every consideration
affecting advantage or
disadvantage
Padfield v Minister of
Agriculture
- Did the Minister’s decision to not
appoint a committee of
investigation take into account
irrelevant consideration (policy
reasons - the issues were wide,
self-government of the industry)
- Yes, the Minister must have some
duty to exercise his discretion
oWhere the board acts
contrary to the public
interest, the Minister must
act.
Roberts v Hopwood
- Councils had a wide discretion to
pay their employees whatever
salaries and wages they thought
fit. The council decided to set a
wage that paid 4 pounds to men
than women, which in fact was a
much bigger wage increase for
women
- Where the wages are for people
whose salary the ratepayer
contributes to, the council must
consider what is fair, just and
reasonable and is not to be
guided by some “eccentric
principles of socialistic
philanthropy” or feminist
principles
- There is no rational proportion
between what the women are
paid and the rates for which they
are reasonably remunerated.
They are more ‘gifts and
gratuities’
Ex parte Bowser; Re Municipal
Council of Randwick
Was the adoption of a policy by the
council to only allow the erection of
Australian-made petrol bowsers
irrelevant consideration
Yes, the policy was of general concern
and general interest and should only be
dealt with by the legislature, not by a
body exercising limited powers within a
limited area
- Policy was irrelevant
consideration in regard to
general social policy, not that of
executive policy or fiduciary duty
Failing to Consider Relevant Matters
S 5(2(b) failing to take a relevant
consideration into account in the
exercise of a power;
-Restrictive test (to avoid forcing
the decision-maker to consider
every relevant fact of which they
are aware)
-It must be established that the
decision-maker had a statutory
obligation to consider the matter
-Often not express so relevant
considerations must be obtained
by the scope, purpose and
subject matter of the statute
-In regards to an unconfined
discretion an obligation to
consider a matter should not be
readily implied
Was there a failure to consider
It is often taken on face value -
either by assertion by the
decision- maker or by mention in
the statement of reasons.
Sometimes, there has been more
exacting standard applied
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Document Summary
Codification of the common law in relation to: s 39(b) judicial act, s 5 and 6 adjr act. S 5(2)(a) taking an irrelevant consideration into account in the exercise of power. Has to be an issue of fact and evidence. What is irrelevant will be obvious from the statute. May need to draw inferences from other features of the legislation eg. the object of the. Act, the nature of the decision and the decision maker. The absence of reasons cannot of itself provide evidence that there was irrelevant considerations taken into account. But the decision maker cannot complain that when other facts and evidence point to another decision, the court draws inference that they had no rational reason for their decision. Effect of an irrelevant consideration on the validity of a decision. To invalidate a decision because of an irrelevant consideration, it will generally be required to show that the irrelevant consideration wa not insignificant.
