Extended Ultra Vires Notes
Extended Ultra Vires
Introduction
This lecture covers extended ultra vires, including improper purpose, relevant and irrelevant considerations, unreasonableness, and uncertainty.
The textbook may organize these concepts differently, but the exam will follow the structure of these session slides.
Purpose of Extended Ultra Vires: To ensure that decision-makers act within the boundaries of their conferred powers and do not abuse their authority, thereby upholding the rule of law and protecting individual rights.
Recap and Jurisdiction
Judicial review requires establishing jurisdiction: High Court (constitutional), Federal Court (Judiciary Act), Federal Circuit Court (Judiciary Act), or state courts (inherent power).
These jurisdictions are remedy-oriented (common law jurisdictions).
Statutory jurisdictions such as the ADJR Act also exist.
Standing will be dealt with in session seven.
Importance of Establishing Jurisdiction: Crucial because courts can only review administrative actions if they have the legal authority to do so. Jurisdiction determines which court can hear the case and what remedies it can grant.
Establishing Unlawfulness
After establishing jurisdiction, one must prove unlawfulness or a ground for review, such as simple ultra vires (week one).
Procedural fairness was covered earlier in week two.
It's a common law right, but can be excluded by statute.
Includes the hearing rule and the bias rule.
Grounds for Review: These are specific legal principles that, if violated, can lead a court to overturn an administrative decision. Common grounds include exceeding legal authority (ultra vires), failing to follow proper procedures, and acting unfairly.
Jurisdictional Error
Historically, the scope of jurisdictional error has evolved.
Three categories of jurisdictional error:
Simple or narrow ultra vires.
Jurisdictional error in the course of inquiry (extended ultra vires/abuse of power), including procedural fairness (session four).
Extended ultra vires (sessions five and six).
Evolution of Jurisdictional Error: Reflects the courts' ongoing efforts to define the limits of administrative power and ensure accountability. Over time, courts have broadened the scope of review to address more subtle forms of abuse of power.
Breaches of extended ultra vires may not always constitute a jurisdictional error for a court, but generally do for the executive.
Significant overlap exists between grounds of judicial review.
Extended Ultra Vires Defined
It is a broad category involving various forms of unlawfulness.
Occurs when a decision-maker with power abuses that power, or misunderstands their powers during the inquiry, affecting reasoning and actions.
Categories include improper purpose, relevant and irrelevant considerations, unreasonableness, and uncertainty.
Impact on Decision-Making: Extended ultra vires affects the validity and legality of administrative decisions. A decision tainted by extended ultra vires can be challenged and overturned by a court.
Improper Purpose and Bad Faith
Public powers must be exercised for their intended purpose.
Examples:
Local government acquiring land for purposes other than public amenity.
Using town planning laws to defeat a native title claim.
Using deportation powers to extradite individuals for criminal charges.
Ensuring Proper Use of Power: Aims to prevent government bodies from using their authority for personal gain, political advantage, or any other purpose not authorized by law.
Improper purpose doesn't have to be the sole purpose, but it must be a substantial one.
ADJR Act addresses this in sections 5(1) and 5(2), covering improper exercise of power and bad faith.
Determining Purpose
It is a matter of statutory interpretation.
Use a purposive approach: consider text, context, and overall purpose of the Act.
If legislation lacks an object or purpose clause, look at what the Act does and what its provisions relate to.
Statutory Interpretation: Courts look at the actual words of the law, the context in which it was written, and the overall goals the law is meant to achieve.
Case Example: Mixtam Properties
A council issued licenses for caravan sites with conditions on rent control and security of tenure.
The House of Lords determined that the purpose of the Act was to regulate physical conditions (electrical safety, sanitation), not economic or social aspects.
The council's conditions were ultra vires because they were exercised for an improper purpose.
Rule of Law: Illustrates how courts ensure that administrative actions align with the law's intent and do not overstep legal boundaries.
Case Example: Aaran Tewy, Ex Parte Northern Land Council
The Aboriginal Land Rights (Northern Territory) Act 1976 established a scheme for indigenous people to claim traditional land.
The Northern Territory government expanded town boundaries to include land being claimed, potentially to defeat the claim.
The court ruled that common law writs can be issued against the Crown.
The court found the town planning laws were used improperly to defeat the native title claim.
Case Example: Campbell v Sydney Corporation
The Sydney Corporation Amendment Act authorized the Council to acquire land for improvement or remodelling.
The Council sought to extend Martin Place to acquire land and make money from property sales.
The Privy Council held the Council had resumed the land for an improper purpose, not authorized by legislation.
Case Example: Schlieske v Minister for Immigration and Ethnic Affairs
A West German national with an arrest warrant was subject to a deportation order.
The court found the order was a disguised extradition and an improper use of deportation power.
Case Example: Minister for Immigration and Ethnic Affairs v Teoh
Seven South Korean citizens sought deportation to avoid being witnesses in a corruption case.
The court held that detaining them to ensure access to witnesses was an improper exercise of power.
Case Example: Ng v Minister for Immigration and Ethnic Affairs
A Singaporean national faced deportation based on a 12-year-old order.
The court ruled it was not a proper purpose to use old deportation orders after such a long delay.
Dominant vs. Substantial Purpose
The improper purpose must be a dominant or substantial one.
Legal Significance: If an improper purpose is only minor, it may not invalidate the decision. However, if it significantly influenced the outcome, the decision can be deemed unlawful.
Case Example: Thompson v Randwick Municipal Council
A council acquired land to build a new road but wanted more land than required to make money.
The High Court held it was unlawful because the dominant purpose was not just building a road but also making money.
Case Example: Samrein Pty Ltd v Metropolitan Water Sewerage & Drainage Board
The Board acquired land to build a shared premises with another government office and rent out extra space.
The court found that securing office space was the primary purpose, and the ancillary purpose of making money did not constitute an abuse of power.
Collective Decisions
Doctrine is unsettled on how to deal with multiple purposes in collective decisions.
Challenges: It can be difficult to determine the primary motivation behind a collective decision, particularly when decision-makers have different reasons for supporting it.
Case Example: Perth City Council v PYWA
A council voted against establishing a drop-in center, with evidence that five members acted for an improper purpose.
The High Court refused leave to appeal, reviewing different approaches but not adopting a definitive test.
Bad Faith
Improper purpose includes bad faith or the duty to act in good faith.
Difficult to prove overt corruption or maliciousness, but it can be proven in roundabout ways.
Indicators of Bad Faith: Dishonesty, bias, or ulterior motives.
Case Example: SZFDE v Minister for Immigration and Border Protection
A fraudulent lawyer advised an applicant to ignore a hearing, undermining the fairness of the tribunal.
The court found that the actions of the lawyer effectively committed a fraud upon the tribunal, resulting in jurisdictional error.
Relevant and Irrelevant Considerations
Decision-makers must consider all relevant considerations and not consider irrelevant ones.
This ground may be limited by national security or confidentiality concerns.
Courts are wary of overstepping into merits review.
Can be commonly litigated.
Balancing Act: Decision-makers must identify and weigh considerations properly, without giving undue weight to irrelevant factors.
Assessing Considerations
Distinction between considerations a decision-maker must consider/ignore and those they are entitled to consider/ignore.
Generally, only binding considerations will result in jurisdictional error.
Legal Tests: Courts apply specific legal tests to determine whether a consideration is mandatory (must be considered) or discretionary (may be considered).
Case example: Minister for Aboriginal Affairs v Peko-Wallsend Ltd
Requirement to consider a third party mining company's interest in a native title decision was held to be a relevant consideration that was unlawfully ignored.
Case example: Plaintiff M64/2015 v Minister for Immigration and Border Protection
Considering the limited number of refugee visa numbers that were available in any given year to be granted under Australian law, that was regarded as a relevant consideration, not an irrelevant consideration in refusing a visa application request.
Case example: Gwendolen Properties Pty Ltd v Minister for Planning and Infrastructure
A minister's planning decision was regarded as unlawful because it considered the government's pre existing arrangement or agreement with a company, which was not envisaged under the act.
Administrators do not have a duty to inquire into all facts, unless specified by legislation.
Inquiries need to be reasonable.
Case Example: Minister of Aboriginal Affairs v Peko-Wallsend Ltd
Northern Territory Land Council made a land claim, and the commissioner had to consider detriment to any person or community.
Mining company Peko-Wallsend provided information but was cagey about specific affected land.
The new minister was not briefed on Peko-Wallsend's submission and granted the land claim.
The court found that Peko-Wallsend's detriment was something the minister was bound to take into consideration.
This case indicates the high boundary of when a person is bound to consider a relevant consideration.
Relevant consideration is one that you are bound to consider, and it can be inferred from the legislation's purpose.
The court's role is to set boundaries, not to give weight to each consideration.
Case Example: Minister for Immigration and Ethnic Affairs v Teoh
Though it had primarily been presented with relation to legitimate expectation the relevance of this case is furthered by the degree of consideration that might be needed for a relevant factor.
Convicted of selling heroin, sentenced to deportation, married to an Australian citizen
The government considered the interests of Mr Teo's children, but the Court found not sufficiently.
Implied that there are circumstance can be a relevant consideration needing to be considered to the fullest extent.
Unreasonableness
This ground invalidates decisions involving Wednesbury unreasonableness.
Originated from Associated Provincial Picture Houses Ltd v Wednesbury Corporation.
Australian courts are cautious about this ground and usually only find it when it amounts to irrationality.
Unreasonableness means a decision so unreasonable no reasonable person could have made it.
Legal Threshold: Requires a high degree of irrationality or absurdity.
Categories of Unreasonableness
Unreasonableness in Australia has begun to separate from Wednesbury unreasonableness (discretions) and irrationality (factual conclusions).
irrationality: totally unreasonable fact finding.
discrimination: no justifiable reason for differentiated exercise of powers.
Failure to make reasonable inquiries.
Emerging Distinction: Shows a move toward focusing on the factual basis and justification for decisions.
Case Example: Associated Provincial Picture Houses Ltd v Wednesbury Corporation
Associated Provincial Picture House Company applies for permission to open on Sundays and is granted by the Wednesbury Council in 1943 only on the condition that no children under the age of 15 are allowed to be admitted, even if accompanied by an adult.
court outlined, the relevant point being that the refuse to allow children under the age of 15 to come to the cinema on a Sunday did not constitute a jurisdictional error.
The stated that it would only relate to things that were so unreasonable that no one could possibly imagine that it was within power for it to occur.
Case Example: Chan v Minister of Immigration and Ethnic Affairs
The High Court ruled to the Minister's appeal to be set aside due to that is was unreasonable to not consider the history of persecution in China and the nature of Chan's family background.
A family persecuted in China and Chan was viewed friends and family as anti revolutionaries, Chan even joined the Red Guard seeking to smash counter revolutionaries.
Came to Australia with stow away on a ship and applies for protection visa.
Minister's Delegate determines that the temporary permit shouldn't be granted because it's unlikely that Mr Chan will meet the definition of a refugee.
Case Example: Minister for Immigration and Multicultural Affairs v Eshetu
A citizen of Ethiopia getting a fraudulent passport and fleeing the country following being politically active.
In seeking a visa, which was refused the tribunal said, we accept mister Hossetu fears going back to Ethiopia, but the chance he'll experience persecution is remove. His fear is not well founded. He is not a refugee so the question became you know, is Mr. A refugee and entitled to a visa on the ground of a well founded fear of persecution.
Court agreed with the general ruling and said there was a rational basis for what was concluded.
Relationship to Irrationality
Indications that factual irrationality and fact-finding will be carved out as its own ground of review.
Irrationality arises when a decision lacks an intelligible factual justification.
In Lee v Minister for Immigration and Border Protection , the High Court found an intelligible factual justification for one a Visa review decision to refuse delaying in order for the applicant to receive information wasn't provided from the review board.
Focus on Facts: Courts are increasingly scrutinizing the factual basis for administrative decisions to ensure that they are logical and supported by evidence.
Case Example: Applicant S20/2016 v Minister for Immigration and Border Protection
The high court, on the other hand, dismissed the case, and they disagreed with the applicant. And they said, you know, the decision wasn't illogical, irrational, or lacking any basis.
Drew a distinction between when there's very unreasonableness, I. E, is it reasonable to assert a condition that a fifteen year old can't go to a cinema, and irrationality and illogicality, I. E, is there a link between the facts and the conclusions that are drawn?
Case Example: Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd
A fishing quota was established that required boats to catch a certain percentage of the fishes given population at a species wide level.
boats can go out, they're only allowed to catch 10.015% of the total population of flathead or something, which is absurd because no fishing boat can calculate the percentage of a species that they might be taking in on their boat.
The court found that that was totally irrational formula with statistically impossible that lacked a workable basis.
Discrimination
discriminated might also be a form of unreasonableness, no justification for that exercise of power.
Examples in where it can be said to exist can be said in:
Parramatta City Council, you've got a local government act that allows the council to levy a rate on certain properties, which results in an unequal levy between industrial and other properties.
New South Wales Land Council and ATSIC, ATSIC was held to have discriminated against New South Wales in favour of Northern Territory.
Equal Treatment: Ensures that government bodies do not unfairly discriminate against certain individuals or groups.
Failure to Make Reasonable Inquiries
Can be constituted as a form of unreasonableness to the point to the means to invalidate a decision if it is shown.
Examples
Prasad, we had a deportation order made, and we'll see this in a bit in a moment, where there was alleged to be a genuine marriage involved.
Tigner and Broto, a refusal to get a factual report about whether a proposed development site for properties had cultural significance, despite a request from a party to do so, that was regarded as unreasonable for refusal to do that, to justify and cause
It will be seen futile where further enquiry is done.
Case Example: Prasad v Minister for Immigration and Border Protection
*Entry Permit no residing Permanently
*Keshav Assad works for many years in Fiji as a priest, Hindu priest and within a few days of entering Australia contact a locale Hindu group to full time work.
*There was concluded he had violated his visa and thus be revoked.
*Question as this was an error of law as there was no real harm or means
*So the court agreed with Kesh Okusat and said decision maker has to consider the basis upon which the applicant's doing this activity to attract remuneration. And it would have been open for the decision maker to conclude that what was actually occurring here was real work, But this wasn't done because the decision maker didn't actually make any reasonable inquiries into what Mr. Keshav Prasad had actually been doing.
Disproportionality
The argument or power use wasn't proportional and therefore shouldn't act.
*In Waterworks Act 1932, was directed against the zoos and from this act reasonably proportionate
*This is the only case on this disproportionality aspect of unreasonableness. So a grain of salt with that one.
Inappropriate Use of Power
If you choose one power over another with no reasonable justification, that might be unreasonableness.
*Hall had permission to expand their land and develop their land, but they had to cover their own expenses and they needed to build the council said, You may do so. you've got to pay for it yourself. You've got to build a road and then you have to donate that road to the council.
Court agreed as there wasn't no reasonable punitive act with the circumstances.
Uncertainty
Laws or decisions which cannot actually be followed properly.
Legal Consequences: Can render a law or decision invalid if individuals cannot understand what is required of them.
Example:
*the Austro fisheries case and that ridiculous formula.
*.King Jean Clothing in 1945, there was a power granted to a body to declare maximum prices for textiles for clothings but the formula in which this was done to declare this maximum price was super vague and came up with these really nonspecific results.
Television Corp and Commonwealth there need to be certainty there may be statutory requirements can be vague.
*Racecourse Cooperative Sugar and Attorney General a little bit later again, vague procedures to fix sugar prices were also held to be uncertain and thus not actually declaring the prices required under the Act
As you can see from those examples, uncertainty will usually be framed by courts as a matter of simple ultra vires, that is, substantive lack of jurisdiction.