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litigation, this ground of review has become both more conceptually complex
and less certain as the standards against which it is judged, and the appropriate
level of judicial intervention, particularly for failure to consider a relevant matter,
have become a subject of much debate. It has also become one of the most-often
argued grounds of review.6
This increasing popularity, along with the ground’s somewhat vaguely defined
boundaries and growing complexity, make it one of the more important and
interesting grounds of review to study because it arguably represents a micro-
cosm of administrative law as a whole. Certainly it clearly exemplifies many of
the problems inherent in our system of judicial review, such as the potential for
judicial incursion into the merits of a decision and the difficulties of defining the
ambit of and the relationship between the various grounds of review. Mason J
clearly warned of the dangers of the former in Minister for Aboriginal Affairs v
Peko-Wallsend Ltd7 both generally and in relation to the considerations ground of
review in particular. The difficulties of defining the ambit of this ground of review
can be seen in, for example, the overlap between this ground and that of unrea-
sonableness in relation to the duty to make inquiries or the duty to obtain relevant
information. Likewise recent cases, such as Re Minister for Immigration and Mul-
ticultural Affairs; Ex parte Applicant S20/2002,8 while predominantly concerned
with the ambit of the unreasonableness ground and the emergent ground of irra-
tionality, may have considerable impact on the future development of the con-
siderations ground as the extent of an irrationality ground is clarified. Many of
these developments are consequent on recent migration litigation, as constantly
changing migration legislation has necessitated the evolution of this and many
other grounds of review. The emergence of jurisdictional error, for example, as
a central ground of review in the migration area has in turn rendered failure to
consider a relevant matter one of the more important grounds of review follow-
ing the conclusion in Minister for Immigration and Multicultural Affairs v Yusuf 9
that failure to so consider constitutes a clear basis for asserting jurisdictional
error.
Developments such as these have led to recent arguments that courts have
gone too far in their interpretation and application of this ground of review and
so breached the separation of powers doctrine and the legality/merits divide.10
Certainly, courts exercising federal judicial power must not breach these consti-
tutional limitations on their power of review. This ground of review, however,
does provide a necessary safeguard against the misuse of administrative power.
Although at times vague and sometimes difficult to apply it does, despite these
difficulties, nevertheless provide a useful standard against which to measure
administrative decision-making. This is particularly so in the current climate of
government attempts to curtail the courts’ power of review.
The following discussion examines the development of the requirements for
establishing both failure to consider a relevant matter and consideration of an
irrelevant matter. ‘Failure to take into account relevant considerations’ focuses
on the former, in particular the requirements that a decision maker actually
187
RELEVANT AND IRRELEVANT CONSIDERATIONS


consider the matter in question, and also the level of personal knowledge and
involvement of a decision maker in the consideration of factors relevant to his
or her decision. ‘Taking into account irrelevant considerations’ examines the less
complex ground of taking into account an irrelevant consideration. Finally, this
chapter offers some concluding observations about this ground of review which
deserve greater attention.



Failure to take into account relevant considerations

It is perhaps the judgment of Mason J in Minister for Aboriginal Affairs v Peko-
Wallsend Ltd11 that provides the seminal starting point for any discussion of
failure to take into account a relevant consideration. The case is well known. It
concerned a ministerial decision to grant a parcel of land to its traditional owners,
following a report and recommendation submitted to him by the Aboriginal Land
Commissioner.12 Peko-Wallsend argued that the minister had failed to take into
account a relevant consideration in issuing the declaration, namely the detriment
the company would suffer as a result of his decision, the details of which were
contained in a subsequent submission made to the minister following the report
and recommendation of the Commissioner. The specific question addressed by
the High Court in this case was whether this subsequent submission was, in fact,
a relevant matter which the minister should have considered when making his
decision. The Court held that the answer to this question was ‘yes’. The minister
had failed to look at a relevant consideration. Of some importance in reaching this
conclusion was the issue of detriment. That is, Peko-Wallsend’s submission clearly
detailed the detriment it would suffer if the land grant was declared. Detriment
was a relevant matter to be considered. Section 50(3)(b) of the Aboriginal Land
Rights (Northern Territory) Act 1976 (Cth) specified that the Commissioner’s
report was to comment on any detriment that might be suffered by interested
parties if the land claim was granted. Clearly, if this was something on which
the Commissioner was obliged to comment, it should be something which the
minister had to consider. Mason J reasoned:

[i]t would be a strange result indeed to hold that the Minister is entitled to ignore
material . . . which may have a direct bearing on the justice of making the land grant . . .13

In his judgment, Mason J specified a number of principles that have become
fundamental to the operation of this ground of review. Importantly, he empha-
sised that courts must be vigilant in complying with the appropriate limits of
judicial review, and that the role of the courts is not to review the merits of a
decision. Rather, courts must be mindful of their task of examining a decision
on the basis of legality only.14 While it is now well-worn that courts must review
only the legality and not intrude into the merits of a decision, it is nevertheless
important to pay heed to Mason J’s warning. As McMillan reminds us:
188 AUSTRALIAN ADMINISTRATIVE LAW


A cardinal principle in public law is the legality/merits distinction, to the effect that
the role of a court is to define the boundaries of a statutory discretion, but not to exam-
ine whether an executive decision made within those boundaries was the preferable
decision to make.15


Courts should not review administrative fact findings, nor should they substitute
their judgment for that under scrutiny.16 Failure to observe such limitations can
lead to questionable decisions by judicial bodies, with courts sometimes inter-
vening simply because something that may be relevant is omitted from a decision
maker’s reasoning17 Having regard to these limitations, Mason J warned that it
is up to the decision maker, not the courts, to determine the weight that should
be accorded to a particular consideration. To interfere at this level would again
breach the legality/merits divide.18
In relation to the considerations ground of review in particular, Mason J stated
that it can only be argued where a decision maker is obliged to consider a relevant
factor and that determining this issue is a simple process of statutory interpreta-
tion. At its simplest level, a statute may expressly impose such an obligation on
a decision maker, but in most instances it is something that needs to be implied
from the subject matter, scope and purpose of the act. As such a decision can only
be ultra vires if there has been a failure to consider a matter which the statute
either expressly or by implication states is both relevant and mandatory. Mason J
also emphasised that even in these circumstances this ground of review will not
always be successful. It will only succeed if the matter which was not considered
was significant; that is, material to the final decision. If the final outcome would
have remained unchanged this ground of review will not succeed.19
A further issue which arose in the Peko-Wallsend case was that of knowledge.
That is, it was found by the High Court that in order for the considerations ground
of review to succeed, the applicant must show that the matter was something of
which the decision maker had knowledge. This criterion has been the subject of
much debate in later cases. It was satisfied in Peko-Wallsend because the minister
was deemed to have constructive knowledge of the material in question. A final
issue of contention, although not one that arose in Peko-Wallsend itself, is the
level of consideration that a decision maker must give to a relevant matter. That
is, whether it is sufficient for a decision maker merely to assert that he or she has
considered a matter, or whether, as argued in a line of immigration cases, it is
necessary to establish a more in-depth level of consideration and analysis.
What is perhaps left after Peko-Wallsend is a series of questions. How to deter-
mine if something is prescribed in the empowering statute as relevant? How is it
decided if there is an obligation to consider such a matter? What might constitute
sufficient consideration? What level of knowledge is a decision maker deemed
to possess? How accurate must be the information on which he or she relies?
And when, if ever, is there an obligation on a decision maker to find relevant
information? These issues are discussed fully below.
The initial stages of arguing failure to take into account a relevant consid-
eration are fairly uncontentious. The two questions of whether something is in
189
RELEVANT AND IRRELEVANT CONSIDERATIONS


fact relevant and whether the decision maker is obliged to consider the relevant
material are, as Mason J identified in Peko-Wallsend, largely exercises in statutory
interpretation. The court will simply examine the grant of discretion conferred
in the empowering statute to ascertain its limits. Sometimes the statute may well
expressly (and exhaustively) state the considerations to which a decision maker
must have regard in the making of a decision. More frequently, however, a statute
will provide little express guidance as to those factors which are relevant, and it
becomes necessary for the courts to imply relevance by looking at the purpose,
object and subject matter of the Act as a whole. In these instances, the statute
often confers discretion in such wide terms that a determination of relevance is
not always easy. The wider and more open textured the grant of discretion the less
guidance there is as to what is and is not relevant. Of course, it is a fundamental
principle of judicial review that an apparently unconfined statutory discretion
is not an unfettered discretion. It will above all be limited by the purpose of the
Act and so allow the court an avenue to imply relevance. However, it is also a
fundamental principle that the wider the grant of discretion, the narrower the
role of the courts and the greater the decision maker’s scope for determining
relevance, as it is clear that the legislature has intended that the decision maker
decide what is relevant and which factors will be considered.20 There can clearly
be considerable room for disagreement on what may or may not be relevant to a
particular decision and also on the appropriate role of the courts in determining
relevancy. Compare, for example, the infamous case of Roberts v Hopwood,21 in
which the House of Lords felt compelled to castigate the Poplar Borough Coun-
cil’s decision to set equal pay for male and female employees, despite the grant
of an unconfined discretion to pay such salaries as it saw fit, with the statement
of Deane J in Sean Investments Pty Ltd v MacKellar that:

In a case . . . where relevant considerations are not specified, it is largely for the decision
maker, in light of matters placed before him by the parties, to determine which matters
he regards as relevant . . .22

The task of implying relevant considerations into a statute is a vague process
that can often simply depend on the nature of the statute in question and the facts
of the particular case, yet the manner in which courts choose to interpret a statute
may have a considerable impact not only on the individual case, but also the future
interpretation of that statute. Creyke and McMillan cite the example of the now
defunct ‘strong compassionate or humanitarian grounds’ for granting residency
under the Migration Act 1958 (Cth)23 as an illustration of the impact judicial
interpretation of a statute can have. They highlight that this phrase was, according
to departmental guidelines, intended to be applied narrowly to applicants seeking
residency in Australia due to situations of war or natural disasters in their country
of origin, or because of a denial of their fundamental rights and freedoms. The
Federal Court, however, applied a broader interpretation to the phrase, extending
it to include cases that could generally result in feelings of pity or compassion if
an applicant were to be deported.24 The consequence of this was that the range of
matters that could be implied as relevant also widened so that by the late 1980s,
190 AUSTRALIAN ADMINISTRATIVE LAW


the number of applications under this section was 8000, not the expected 100 per
year.25 This example shows that it is the interpretation given to statutory phrase,
whether by the decision maker or the courts, that will dictate relevance, and this
process is both uncertain and malleable.
A further issue that must be commented on in relation to relevance is that not all
material presented by an applicant is a relevant consideration. Material presented
as evidence must clearly relate to one of the criteria identified in the statute
(whether expressly or by implication) as relevant. It is primarily the statute, and
not the facts of a particular case, that determines what factors are relevant. In
Abebe v Commonwealth Gummow and Hayne JJ explained:
This does not deny that considerations advanced by the parties can have some impor-
tance in deciding what is or is not a relevant consideration . . . What is important,
however, is that the grounds of judicial review that fasten upon the use made of rele-
vant and irrelevant considerations are concerned essentially with whether the decision
maker has properly applied the law. They are not grounds that are centrally concerned
with the process of making the particular findings of fact upon which the decision
maker acts.26

Clearly, there must be a link between a party’s submissions and the obligation to
consider them. This is not a ground of review that is available because there is an
error in the fact finding process or the interpretation or weighing of the evidence
presented to the decision maker. It is a ground of review for ensuring that the
decision maker properly applies the law. It is not an avenue for re-submitting and
re-arguing findings of fact. Justice Kirby recently confirmed that this ground of
review should not be used by applicants:
to re-canvas factual findings in an impermissible way and to argue their claim for
judicial review in a manner significantly different from the argument advanced before
the tribunal.27

Even if the applicant can establish that a matter was relevant this will not be
sufficient. It must also be shown that the contentious consideration is one that
the decision maker was bound to consider. As stated by Mason J in Peko-Wallsend:
The ground of failure to take into account a relevant consideration can only be made
out if a decision maker fails to take into account a consideration which he is bound to
take into account.28

Some considerations may be mandatory, some forbidden and others merely
permissible. It is certainly not intended that this ground that judicial review be
open for failure to consider everything that could be relevant. There is not an
obligation on a decision maker to consider every single piece of evidence that
comes before him or her, but only those which the statute renders mandatory.29
This, once again, is a question of statutory interpretation. At its simplest, the
legislation will expressly list those matters which are obligatory. If not, it must be
implied. This, again, is something which may turn on the nature of the discretion
conferred. The wider the grant of the discretion, the greater the level of deference
191
RELEVANT AND IRRELEVANT CONSIDERATIONS


that should be accorded to the decision maker to determine if he or she should
consider the matter. It is not for the courts to interfere with this decision. To do
so would be to impinge on the merits of the case. As stated by Deane J in Sean
Investments v MacKellar:

The ground of failure to take into account a relevant consideration will only be made
good if it is shown that the decision maker has failed to take into account a consideration
which he was, in the circumstances, bound to take into account for there to be a valid
exercise of the power to decide.30

A decision maker cannot be held to have erred for failure to consider everything
placed before him or her by the applicant.31 The range of mandatory considera-
tions can, however, be influenced by the applicants. In the migration context, for
example, in determining if an applicant should be deported all that needs to be
considered is the eligibility for deportation and whether there are good reasons
for not deporting.

However, if the deportee and others make lengthy submissions, and if some of the
departmental material calls for a response from the deportee, the agenda’s size will
increase significantly, and the decision maker must consider it all . . . In other words,
the parties can often lengthen the agenda by placing material and submissions before
the decision maker for consideration . . .32

The nature of the discretion may also influence the implication of an obligation
to consider a matter.33 Thus, in cases such as Peko-Wallsend34 and Hindi v Minister
for Immigration and Ethnic Affairs35 where the decision could impact adversely
on an individual, the courts may more readily imply an obligation to consider
relevant material.
An issue at the core of the dispute in Peko-Wallsend36 was the extent of the
minister’s knowledge, in particular, the level of his knowledge of the additional
submissions and objections put forth by Peko-Wallsend to address the question of
the impact that the minister’s decision could have on its mining interests and that
the report by the Commissioner to the minister recommending the land grant
did not adequately deal with the potential impact on its commercial interests.
The minister, in making his decision, had relied on a departmental brief that
summarised the major issues in the dispute. This brief, however, did not refer
to these subsequent submissions put forward by Peko-Wallsend. The minister
argued in response to a challenge to his decision to allow the land grant that
he was unaware of this subsequent information. The Court concluded that the
minister had knowledge of the submission regardless of whether he had read,
seen or was even aware of it.
It is uncontentious that a decision will be invalid for failure to consider a
relevant factor of which the decision maker had actual knowledge. The High Court
here extended this principle so that knowledge includes constructive or deemed
knowledge. Its reasoning was that information which is in the possession of the
department is deemed to be in the possession of the minister.37 The submission in
192 AUSTRALIAN ADMINISTRATIVE LAW


Peko-Wallsend was one of which the minister should have had knowledge. It was
in the possession of the department. The failure of the departmental brief to refer
to it did not absolve the minister of responsibility. While it is acceptable for the
minister to rely on a briefing paper provided by his or her staff, such reliance does
mean that the minister is able to argue lack of knowledge of certain information
that deals with a relevant consideration as a means of defending a decision that
failed to take that information into account.38
From this beginning, the issue of the knowledge of which a decision maker is
possessed has become one of the more contentious elements of the considerations
ground of review. While there is arguably some merit in Mason J’s reasoning
that, in making a decision, the decision maker should have regard to submission
put forward by affected parties that address relevant criteria, this arm of the
considerations ground has burgeoned such that it now raises issues concerning
the quality of the briefing paper, the accuracy of the information upon which
a decision maker relies and the extent to which a decision maker is obliged to
conduct inquiries to ascertain relevant and accurate information. McMillan has
been particularly critical of the importance that courts have placed on the briefing
paper, arguing that linking it to the considerations ground of review has created a
number of difficulties, as it brings the briefing paper itself to the fore, so that the
‘length and quality of the briefing paper thereafter became a crucial determinant
of the validity of an administrative decision’.39
The judges in Peko-Wallsend allowed the paper to be brief. But its exact content
was not conclusively discussed. Brennan J asserted that it must include salient
facts and Gibbs CJ asserted that it must include material facts. If something is
insignificant, it can however be omitted.40
In relation to the accuracy of the information on which a decision maker relies,
the court in Peko-Wallsend stated that information which is the basis of a decision
must be ‘the most recent and accurate information that [is] at hand . . . the most
current material available to the decision maker.’41
This would seem to impose some obligation on the decision maker to base
his or her decision on information that is accurate and current. Certainly, it has
become clear that any mistake that is contained in the briefing paper will result
in a decision made on the basis of such a paper being ultra vires. For example, in
Re Patterson; Ex Parte Taylor42 there were two errors in the briefing paper which
led to a declaration of invalidity of the minister’s decision. The first of these was
the paper’s failure to fully elucidate the meaning of ‘national interest’, which was
at the core of the visa determination in dispute. The second mistake related to Mr
Taylor’s option to seek further review of the decision to cancel his visa. McMillan
suggests that neither of these errors were significant to the minister’s decision, as
‘national interest’ was an issue about which the minister would be informed and
that Mr Taylor was able to seek review of the decision regardless of the error in
the briefing paper.43 This leads McMillan to conclude that this approach to this
ground of review is clearly posing an ‘open ended risk’ that courts will intervene
too far.44
193
RELEVANT AND IRRELEVANT CONSIDERATIONS


A final issue that arises in relation to this question of knowledge is that of
whether there is an obligation on a decision maker to conduct an inquiry to obtain
relevant information. There have been a few cases suggesting that if readily
available and relevant information is ignored by the decision maker this may
expose the decision to review and there may, therefore, be a duty on the decision
maker to initiate inquiries to ascertain this information.45 For example, in Prasad
v Minister for Immigration and Ethnic Affairs,46 Wilcox J held that the decision
maker should have inquired as to why the parties provided inconsistent evidence
in relation to their marriage and that failure to do so rendered the decision ultra
vires. Other examples include Luu v Renevier47 and Tickner v Bropho.48 Some of
these cases have been dealt with under unreasonableness and some under the
considerations ground. Aronson, Dyer and Groves note that in light of Applicant
S20, this duty must now be questionable, at least insofar as it is part of the
unreasonableness ground.49 In relation to the considerations ground, the High
Court has recently moved away from imposing such an obligation when it held
that a decision maker was not under an obligation to inquire into the sentencing
practices of a country seeking extradition of someone from Australia.50 What
does appear to be clear is that if such a duty were to be imposed it would be a
very limited one.51
One of the more contentious areas of the considerations ground of review is
that of consideration itself. That is, what constitutes sufficient consideration of
any particular matter? Is simply looking at such an issue enough or must there be a
demonstration that the decision maker actively turned his or her mind to the issue
in question? This is not a question that was addressed comprehensively in Peko-
Wallsend, although Mason J suggested that simply some consideration will be
sufficient given that the task of the court is to police the legal limits of the decision
maker’s power and not to substitute its decision for that under review. On this
view, the considerations ground of review is inappropriate if the complaint is that
something has not been adequately considered. This issue is rather something
that should be dealt with under Wednesbury unreasonableness.52
Since Peko-Wallsend, however, competing lines of authority on this issue have
emerged. On the one hand, there are cases clearly indicating that courts should
show deference to the decision maker. That is, if there is an assertion by the
decision maker that he or she has considered the matter, or if it can be implied
from the circumstances, this will be sufficient. To inquire any further into this
question would be an inappropriate incursion into the merits of the decision.
This is more than adequately demonstrated by Sean Investments53 where the
court accepted that reference to the matter in a briefing paper was sufficient to
constitute consideration. Deane J in this case also emphasised that courts should
show deference to a decision maker.
The competing line of authority, drawn largely from migration litigation, does
not accept a simple assertion of consideration as sufficient. This line of cases
rather demands a rigorous analysis of whether the issue in question was in fact
considered. That is, the decision maker must show that he or she actually turned
194 AUSTRALIAN ADMINISTRATIVE LAW


their mind to the issue and fully considered it. Nowhere is this requirement more
clearly articulated than in Khan v Minister for Immigration, Local Government and
Ethnic Affairs, where Gummow J famously stated that a decision maker must give
‘proper, genuine and realistic consideration to the merits of the case’.54
This less than adequately explained standard has been supported and applied
in a number of cases including Hindi v Minister for Immigration and Ethnic
Affairs,55 Minister for Immigration and Ethnic Affairs v Tagle56 and Minister for
Immigration, Local Government and Ethnic Affairs v Pashmforoosh.57 Hindi, in
what McMillan labels ‘a foremost illustration of the elasticity of that standard’,58
clearly demonstrates the willingness of a court to intervene and conclude that a
matter has not been properly considered despite the decision maker’s assertion
that it had been. The kinds of factors that a court may look at in determining if
sufficient consideration has been accorded in these circumstances include the
reasons given for the decision, the failure of these reasons to mention the mate-
rial in question and the decision itself. In Tagle, it was an inflexible application
of policy that led the court to conclude that proper consideration had not been
given to the case.
Aronson, Dyer and Groves are critical of this approach, preferring the ‘tick-
a-box’ approach to consideration that is displayed in most cases. That is, that
deference be accorded to a decision maker’s assertion that he or she has consid-
ered an issue. They assert that cases such as Khan are ‘puzzling’ and use:

the considerations ground quite openly to assess whether the decision maker placed the
appropriate weight on relevant considerations. That was probably in plain disregard of
the limits of the ‘considerations’ grounds.59

They rather support a line of cases that has been critical of this approach to the
considerations ground, including Bruce v Cole60 and Minister for Immigration and
Multicultural Affairs v Anthonypillai.61 In the former of these cases, Spigelman J
warned against judicial incursion into merits review. In Anthonypillai, the Federal
Court said that the use of this standard ‘creates a kind of general warrant, invoking
language of indefinite and subjective application in which the procedural and
substantive merits of any . . . decision can be scrutinised’.62
Arguably, the Khan standard does bring the courts very close to a review of
the merits of a decision. However, in many instances it is not sufficient for the
court to accept an assertion of consideration by the decision maker. It is no coin-
cidence that it is in migration cases that this debate is being played out. When
dealing with areas that have such potential adverse impact upon the individual,
it is necessary for the decision maker to do more than pay lip service to funda-
mental principles. Aronson, Dyer and Groves suggest that whatever the preferred
option there is potentially no longer any scope for review for inadequate consid-
eration in light of Applicant S20. That is, if an attack is going to be launched
for failure to give genuine consideration to a matter the applicant is question-
ing, the reasoning underlying the decision is now something that is challenged
on the basis of irrationality, not unreasonableness and certainly not failure to
give consideration to a relevant matter.63 In relation to the standard laid down in
195
RELEVANT AND IRRELEVANT CONSIDERATIONS


Khan, they submit that S20 has now subsumed Gummow J’s requirement that the
consideration that decision makers give to mandatory considerations be proper,
genuine and realistic.64
Whether or not this will be the case remains to be seen.
Finally, when it comes to consideration, it is clear that ministers are able to rely
on departmental briefing papers, and in some cases, notably Sean Investments, it
has been accepted that a ministerial delegate is able to consider relevant matters
and give a summary to the ultimate decision maker. But there is another line
of authority that suggests that this is not sufficient and demands that it be the
ultimate decision maker who actually considers the matter in question.
This emphasis on the role of the decision maker is demonstrated in Tickner v
Chapman.65 In this case, the Minister for Aboriginal Affairs issued a declaration
to prevent the Hindmarsh Island development. This decision was ultra vires for
failure to consider a relevant matter as the minister had not personally considered
some 400 submissions on the proposal or secret material detailing the adverse
impact that would be suffered by Aboriginal women in the area if the develop-
ment went ahead.66 The legislation in this case made it clear that it was to be
the minister who should consider the issue and it was clear that he had not. This
approach was again applied in Tobacco Institute of Australia Ltd v National Health
and Medical Research Council.67 The legislation in this case placed the authority
under a duty to have regard to submissions received in relation to an inquiry into
passive smoking. The Council decided to consider only those submissions that
had been peer reviewed in scientific journals, and submissions were summarised
before being considered. As with Tickner, the decision in this case was held to
be ultra vires because the Council did not consider the material itself, but rather
relied on summaries prepared for it by researchers.68 In both Tickner and the
Tobacco case, the Federal Court focused on the statutory language which made
it clear that the decision makers had a personal duty to consider the matters in
question.
Ultimately, as noted by Aronson, Dyer and Groves, the practical problem with
the considerations ground of review is not in establishing that a matter is relevant
or that there is an obligation on the decision maker to consider the matter. It is in
proving its breach, that is, establishing that the decision maker failed to consider
a matter which he or she had an obligation to consider.69



Taking into account irrelevant considerations

The converse to the above ground of review is that a decision may be ultra vires
if a decision maker takes into consideration an irrelevant matter. Lord Greene
explained in the Wednesbury case:

. . . if the nature of the subject-matter and the general interpretation of the Act make it
clear that certain matters would not be germane to the matter in question, the authority
must disregard those irrelevant collateral matters.70
196 AUSTRALIAN ADMINISTRATIVE LAW


This principle is also enshrined in s5(2)(a) of the ADJR Act. This arm of the
considerations ground is, however, much less complex than that of failure to look
at a relevant consideration. All that is required is that the matter addressed by
the decision maker be irrelevant, that it is something which the decision maker
is prohibited from examining and that having regard to the matter materially
impacts on the final outcome.
As with failure to look at a relevant consideration, these issues are ones which
are determined by a process of statutory interpretation. Sometimes the statute
will state expressly those matters to which a decision maker must not address
themselves. But more often they must be implied from the language, purpose and
subject matter of the statute in question. As with failure to consider a relevant
matter, courts must, when engaging in this process of statutory interpretation and
exercising review for taking into account an irrelevant consideration, be aware
of the limits of judicial review. They must, in appropriate circumstances, show
deference to the decision maker and allow him or her to determine if a particular
matter is irrelevant.
One of the more notorious examples of this ground of review, and of the court
arguably exceeding its mandate, is that of Roberts v Hopwwod.71 While the case
is now of questionable precedent, it does clearly demonstrate the difficulties
associated with this arm of the considerations ground. The case concerned a
decision by the Poplar Borough Council to fix salaries for its employees at an equal
rate for men and women and maintained them as such for five years despite a fall
in the cost of living over this period. In setting aside this decision as ultra vires
the House of Lords determined that the Council, although vested with a wide
discretion to pay its employees ‘such salaries and wages as [it] may think fit’, had
taken into account an irrelevant consideration in reaching its decision, namely,
that it thought that a public authority should be a model employer. Or, as stated
by Lord Atkinson ‘some eccentric principles of socialist philanthropy, or . . . a
feminist ambition to secure the equality of the sexes in the matter of wages in the
world of labour’.72
The irrelevant consideration was not one expressly stated but was implied in
the legislation. One of the comments that can clearly most easily be made about
this case is that the House of Lords arguably breached the legality/merits divide
and rather than judging on the lawfulness of the decision it made a policy decision
about the appropriateness of the Council’s determination.
There are, however, many other cases where the courts have shown greater
deference to the decision maker. Where a broad discretion is conferred Australian
courts generally show deference to the decision maker to determine relevance
and are reluctant to intervene on the basis that an irrelevant factor has been taken
into account.73 Thus, in Murphyores Inc Pty Ltd v Commonwealth,74 for example,
the High Court read the list of permissible considerations expansively to reject an
argument that an environmental impact assessment was irrelevant to a decision
on whether to grant permission to export mineral concentrates.
197
RELEVANT AND IRRELEVANT CONSIDERATIONS


What these cases demonstrate is that the difficulties of succeeding in an argu-
ment of taking into account an irrelevant consideration are greater than its coun-
terpart of failure to look at a relevant matter. Generally (with the exception of
Roberts), for a matter to be deemed irrelevant there must be a clear positive
indication in the statute that the matter in question was one which the decision
maker was prohibited from considering. As such, matters such as the public inter-
est have repeatedly been held not to be irrelevant or extraneous to an exercise
of discretion unless the statute clearly gives a positive indication that they are
prohibited.75 Political considerations however have been held to be irrelevant,
such as in Padfield v Minister of Agriculture, Fisheries and Food76 where the minis-
ter famously based his decision not to establish a committee of investigation into
a milk marketing scheme on the potential embarrassment he would suffer if the
committee upheld the complaint.
There are a number of issues that can be mentioned by way of conclusion. The
first is that with this, as with many of the grounds of review, there is considerable
uncertainty of principle. There is no definite approach to answering questions
of statutory interpretation, the extent to which a decision maker is entitled to
rely on briefing papers and the like is not completely resolved and the level of
consideration that must be accorded to a relevant matter remains contentious.
Consequently, this ground of review and its lack of certainty does bring with it
the potential for occasional inappropriate judicial incursion into the merits of a
decision, thus raising the perennial question of the appropriate ambit of judicial
review. Decisions such as Roberts, Hindi or Prasad do clearly raise such issues.
Courts must, of course, respect the constitutional limitations on their power of
review and not intervene in the merits of a case.77
This does not mean that courts should be too restrained in their approach to
judicial review, particularly on the considerations ground. Indeed, recent devel-
opments in migration law have demonstrated the need for judicial intervention
at a number of levels.78 One consequence of such developments is that jurisdic-
tional error has become an important tool in monitoring migration decisions. One
important way in which an applicant can establish jurisdictional error is by argu-
ing the considerations grounds of review.79 In turn, this has resulted in greater
numbers of applications for review on this ground.80 This is but one example of
the potential overlap between the grounds of review. The considerations ground
also overlaps with unreasonableness, the emerging irrationality standard and
natural justice.81
Finally, it should be noted that despite the dangers and uncertainty associated
with this ground of judicial review and judicial review generally, judicial review
is, to quote Mary Crock, ‘No bad thing’,82 and the considerations ground of review
serves a useful purpose. The task for the courts, as always, is simply to find the
right balance between intervention and restraint.
13
Improper purpose
HP Lee




‘Improper purpose’ is a recognised ground, both at common law and under
statute, which, if established, can enable the courts to invalidate the exercise
of a discretionary power. At common law, this ‘elementary proposition’ was first
established in England ‘in cases concerning the exercise of powers of compulsory
acquisition’.1 At the federal level in Australia, under the Administrative Decisions
(Judicial Review Act) Act 1977, s5(1)(e) and s6(1)(e) provide respectively for
judicial review of a decision or conduct engaged in for the purpose of making a
decision on the ground ‘that the making of the decision was an improper exercise
of the power conferred by the enactment in pursuance of which it was purported
to be made’. ‘An improper exercise of a power’ referred in relation to a decision
or conduct engaged in the making of a decision is defined in both instances as
meaning ‘an exercise of power for a purpose other than a purpose for which the
power is conferred’.2 This fundamental principle was articulated in the following
broad fashion by Gibbs CJ in The Queen v Toohey; Ex parte Northern Land Council3
(hereafter ‘Toohey’):

The principle, which is clearly settled . . . is that a statutory power may be exercised
only for the purposes for which it is conferred.4

Gibbs CJ invoked the principle stated by Latham CJ in Brownells Ltd v Ironmongers’
Wages Board:5

No inquiry may be made into the motives of the legislature in enacting a law, but where
a statute confers powers upon an officer or a statutory body and either by express
provision or by reason of the general character of the statute it appears that the powers
were intended to be exercised only for a particular purpose, then the exercise of the
powers not for such purpose but for some ulterior object will be invalid.6

198
199
IMPROPER PURPOSE


In Municipal Council of Sydney v Campbell,7 the Municipal Council of Syd-
ney was conferred the power to resume any land with a view to ‘carrying out
improvements in or re-modelling any portion of the city’.8 It was held by the
Privy Council that the resumption of the lands in issue was effected ‘with the
object of enabling the Council to get the benefit of any increment in the value of
them arising from the extension [of Martin Place]’9 and thus was unauthorised
and an improper purpose. Likewise, in Schlieske v Minister for Immigration and
Ethnic Affairs and Others10 the deportation power under the Migration Act was
held to enable the country ‘to determine who shall be permitted to enter it and
who should be excluded therefrom’.11 Consequently, it was an improper purpose
to effect a deportation under the Migration Act for the purpose of extradition.
As Wilcox and French JJ explained: ‘It is not one of the purposes of the Migra-
tion Act to aid foreign powers to bring fugitives to justice.’12 The exercise of the
deportation power has yielded a few other cases in which the improper purpose
ground was successfully invoked. In Park Oh Ho v Minister for Immigration and
Ethic Affairs,13 Foster J remarked that ‘a deportation order can never be legally
made or maintained for the purpose of keeping persons in custody to ensure their
availability as witnesses in a prosecution’.14 In Ang v Minister for Immigration and
Ethnic Affairs,15 Wilcox J found that the departmental deputy secretary had ‘used
his power to make a deportation order, not for the purpose intended by the Act,
that is to implement a present decision to remove the applicant from Australia as
soon as possible, but to enable the department to make such a decision at a later
date’.16




The Toohey case

Regarded as a landmark case, Toohey dealt with the improper purpose argu-
ment in the context of a subordinate law claimed to have been made for a pur-
pose not contemplated by the primary Act. In Toohey, a claim by the Northern
Land Council on behalf of a group of Aborigines was made under the Aborig-
inal Land Rights (Northern Territory) Act 1976 (Cth) to a substantial area of
the Cox Peninsula in the Northern Territory. The area of the Cox Peninsula
is about 800 square kilometres. If the area of land fell within the expression
‘unalienated Crown Land’, the Aboriginal Land Commissioner, Toohey J, would
have the jurisdiction to deal with the application. The expression ‘unalienated
Crown land’ was defined to exclude land in a town. In between the making
of the land claim and the actual hearing by Toohey J, the Administrator of
the Northern Territory, exercising a regulation-making power under the Plan-
ning Act 1979 (NT), made a regulation which declared a large area comprising
4350 square kilometres centred upon the town of Darwin (which has an area of
about 143 square kilometres) as town land. The declared area included the Cox
Peninsula.
200 AUSTRALIAN ADMINISTRATIVE LAW


The Northern Land Council challenged the validity of the regulation by seeking
to establish that it was made not for town planning purposes consistent with
the Act, but for the alien purpose of defending the land claim by removing the
Cox Peninsula from the operation of the Land Rights Act. An application by the
Council for the production of a wide range of documents in the possession of
the Administration relating to the considerations which brought the impugned
regulation into existence was rejected by Toohey J. The Council sought from
the High Court writs of certiorari and mandamus to quash the Commissioner’s
decision and to compel him to exercise his jurisdiction under the Land Rights Act.
The High Court made an order of mandamus to compel Toohey J ‘to inquire into
the question whether the Administrator had exercised the power for planning
purposes or for the improper purpose of defeating land claims’.17
A significant feature of the case was that the statutory discretion which was
claimed to have been exercised for an improper purpose was reposed in the
Administrator of the Northern Territory. Two justices18 held that the Admin-
istrator was the Crown’s representative in the Northern Territory, while two
other justices19 proceeded on the assumption that he was. The Court held that it
could inquire whether a power granted to the Crown by statute had been exer-
cised by the Crown for a purpose which the statute did not authorise. In reach-
ing this conclusion, the Court jettisoned the then prevailing Crown immunity
doctrine.
Gibbs CJ said:

In my opinion no convincing reason can be suggested for limiting the ordinary power
of the courts to inquire whether there has been a proper exercise of a statutory power
by giving to the Crown a special immunity from review. If a statutory power is granted
to the Crown for one purpose, it is clear that it is not lawfully exercised if it is used for
another. The courts have the power and the duty to ensure that statutory powers are
exercised only in accordance with law. They can in my opinion inquire whether the
Crown has exercised a power granted to it by statute for a purpose which the statute
does not authorise.20

The High Court also pointed out that they were concerned with the judicial
impugnment of the exercise of statutory discretions and not the exercise of a
prerogative power by a Crown representative. To what extent can the courts
review an exercise of a prerogative power on the improper purpose ground? No
definitive stand was taken by the High Court on this question, although some
members of the Court did comment on the issue. Aickin J said:

The position with respect to prerogative powers is not the same as that with respect to
statutory powers, it being clear that at least in the case of some prerogative powers,
reasons, motives and intentions of the Crown’s representative are not reviewable in any
court.21

Considering the state of the authorities at the time of the Toohey decision,
Mason J remarked:
201
IMPROPER PURPOSE


There was no doubt that an exercise of prerogative power was considered to be immune
from attack for mala fides. Likewise . . . there is no doubt that an attack on the exercise
of a prerogative power for improper purpose and inadequacy of grounds was regarded
as inconsistent with accepted doctrine.22

However, Mason J appeared to favour the more enlightened view that reviewa-
bility of a prerogative power depended on the subject-matter of the power. He
said:
An examination of the cases in which the courts have refused to examine the exercise
of prerogative powers reveals that most, if not all, of the decisions can be justified on
the ground that the prerogative power in question was not, owing to its nature and
subject-matter, open to challenge . . .23

Mason J approved the view expressed by Lord Denning MR in Laker Airways
Ltd v Department of Trade24 that the exercise of a discretionary prerogative power
‘can be examined by the courts just as any other discretionary power which is
vested in the executive’.25
Wilson J, after acknowledging that a statutory discretion was more susceptible
of judicial review than a prerogative power, said:
In the case of prerogative powers, the subject matter of the power will be of primary
importance in determining whether the manner of exercise of the power is justiciable.26

Today, the prevailing view is that judicial review of a prerogative power is
dependent on the ‘nature and subject matter’27 of the prerogative power. The
exercise of the prerogative power to make a treaty, the prerogative of mercy or
the disposition of the armed forces are often cited as illustrations of prerogative
powers touching on subject matters not susceptible to judicial review.


Determining the purpose of the power

Aickin J in Toohey said:
Generally speaking executive or administrative powers are conferred for a purpose
ascertainable, with greater or lesser difficulty, from the terms of the instrument con-
ferring the powers.28

Spigelman CJ of the New South Wales Court of Appeal said in Attorney-General
(NSW) v World Best Holdings Ltd29 that the contemporary approach to the deter-
mination of parliamentary intention is the same approach taken by the High
Court in determining whether there was a legislative purpose to invalidate con-
duct that was undertaken without compliance with a legislative stipulation.30 In
Project Blue Sky v Australian Broadcasting Authority,31 McHugh, Gummow, Kirby
and Hayne JJ said:
The existence of the purpose is ascertained by reference to the language of the statute,
its subject matter and objects, and the consequences for the parties of holding void
202 AUSTRALIAN ADMINISTRATIVE LAW


every act done in breach of the conditions. Unfortunately, a finding of purpose or no
purpose in this context often reflects a contestable judgment. The cases show various
factors that have proved decisive in various contexts, but they do no more than provide
guidance in analogous circumstances. There is no decisive rule that can be applied,
there is not even a ranking of relevant factors or categories to give guidance on the
issue.32

The task of challenging an exercise of a statutory discretion on the ground
of improper purpose is facilitated in many instances by an express indication in
the statute of the purpose for which the power may be exercised. An ‘objects’
clause is often a feature of modern-day statutes. The Environment Protection and
Biodiversity Conservation Act 1999 (Cth) contains an example of a very detailed
objects clause. Section 3(1) states:

(1) The objects of this Act are:
(a) to provide for the protection of the environment, especially those aspects of
the environment, that are matters of national environmental significance; and
(b) to promote ecologically sustainable development through the conservation
and ecologically sustainable use of natural resources; and
(c) to promote the conservation of biodiversity; and
(d) to provide for the protection and conservation of heritage; and
(e) to promote a co-operative approach to the protection and management of
the environment involving governments, the community, land-holders and
indigenous peoples; and
(f ) to assist in the co-operative implementation of Australia’s international envi-
ronmental responsibilities; and
(g) to recognise the role of indigenous people in the conservation and ecologically
sustainable use of Australia’s biodiversity; and
(h) to promote the use of indigenous peoples’ knowledge of biodiversity with the
involvement of, and in co-operation with, the owners of the knowledge.

Professor Robin Creyke and Professor John McMillan have, however, observed:
‘Commonly, too, there can be conflicting purposes in the one statute’. They exem-
plified this observation by pointing to the freedom of information statutes which
specify the aim of promoting ‘public disclosure of government documents’ and
the competing aim of securing official secrecy in the public interest.33
Toohey was concerned with an attack on the validity of a piece of delegated
legislation. It is clearly accepted that the improper purpose argument can be lev-
elled at both legislative and administrative acts. Whether subordinate legislation
was made for a purpose not contemplated by the enabling Act would depend on
the construction of the scope of the enabling Act. Where the subordinate legisla-
tion would impact adversely on common law rights a clear manisfestation in the
enabling Act of an intention by the legislature to confer such a power would be
essential. In Bailey v Conole,34 the Supreme Court of Western Australia (compris-
ing Northmore, Draper and Dwyer JJ) acceded to the submission in the case that
the impugned traffic regulation under which the appellant bus driver had been
convicted was invalid. Two of the judges (Draper and Dwyer JJ) found that the
203
IMPROPER PURPOSE


regulation’s object was ‘admittedly to prevent privately owned omnibuses com-
peting with government trams’,35 contrary to the spirit of the enabling statute.
Dwyer J said that ‘clear and unambiguous language’36 was required if it was the
parliament’s intention to confer a power to achieve such an object.


Evidentiary burden

The authors of Judicial Review of Administrative Action asserted:

Any inquiry into purposes presents real evidentiary difficulties, where the court must
choose between the appearance of a purpose and determining the objective reality.37

In the Australian context, Gibbs CJ in Toohey has made it very clear that ‘[t]he
onus of proving that the Crown did act for an unauthorised purpose lies on those
who make that assertion’.38
Similarly, in Municipal Council of Sydney v Campbell, the Privy Council also
said:

Where the proceedings of the Council are attacked upon this ground, the party impeach-
ing these proceedings must, of course, prove that the Council, though professing to
exercise its powers for the statutory purposes, is in fact employing them in furtherance
of some ulterior object.39

It is very difficult to establish an improper purpose especially if a right to
reason is not conferred by law.40
The level of evidentiary difficulties will depend on the subject matter. The
courts tend to adopt a very cautious and deferential approach if a decision is made
at the highest level of government and especially if the decision complained of
has a ‘political’ backdrop.
Extreme reluctance on the part of the courts to query the invocation of a
power to declare a state of emergency was displayed by the Malaysian courts
and the Privy Council in Ningkan v Government of Malaysia.41 In Ningkan, a
constitutional impasse had arisen in the Malaysian state of Sarawak. To resolve
this constitutional deadlock with the ultimate aim of removing the Chief Minister
of the State, the Malaysian King proclaimed a state of emergency in Sarawak
and in consequence of that proclamation, an Emergency Act was passed by the
Malaysian Federal Parliament. On perusing the provisions of the Emergency Act
the indubitable conclusion was that the Emergency Act was crafted with the
aim of empowering the state Governor to effect the removal of the state Chief
Minister who had fallen out of favour with the Federal Government.42 It was
submitted in Ningkan that ‘the said proclamation was in fraudem legis in that it
was not to deal with grave emergency whereby the security or economic life of
Sarawak was threatened but for the purpose of removing the petitioner from his
lawful position as Chief Minister of Sarawak’.43 It was pointed out to the court
that earlier emergency provisions had been made in 1964 in relation to the whole
204 AUSTRALIAN ADMINISTRATIVE LAW


Malaysian Federation and that they were sufficient to deal with any threat to the
security of the Federation or any part of it. It was further pointed out that none of
the usual signs of a grave emergency existed in Sarawak at or before the making
of the proclamation: there were no disturbances, riots or strikes.
Ningkan lost his case because the Privy Council, in dealing with the ‘in fraudem
legis’ arguments on the assumption that the proclamation of emergency was a
justiciable issue, held that Ningkan had failed to discharge the heavy onus of
proof placed on him of showing that the ‘government was acting erroneously or
in anyway mala fide’.44
Ningkan illustrates the difficulty of challenging the exercise of a statutory dis-
cretionary power on the improper purpose ground, especially when the exercise
of the power allegedly relates to the protection of the security of the state. The
courts are extremely reluctant to second-guess the executive on the issue, and
where possible seek to avoid having to make a decision on it. Lord MacDermott,
in delivering the reasons for the Privy Council’s decision, said: ‘Whether a Procla-
mation under statutory powers by the Supreme Head of the Federation can be
challenged before the courts on some or any grounds is a constitutional question
of far-reaching importance which, on the present state of the authorities, remains
unsettled and debateable.’45
In NAALAS v Bradley,46 the Chief Minister of the Northern Territory (Mr Shane
Stone) offered the position of Chief Magistrate of the Northern Territory to Mr
Bradley, following the resignation of Mr Ian Gray as Chief Magistrate. The circum-
stances which led to Mr Gray’s resignation ‘had to do with his views regarding the
regime of mandatory sentencing which came into force in the Northern Territory
on 8 May 1997’.47 Also, at the time of the resignation, there was consideration by
the Northern Territory government of the introduction of contract appointments
for magistrates. Mr Bradley was appointed Chief Magistrate on 27 February 1998
by the Administrator-in-Council. As there was an initial understanding that Mr
Bradley was prepared to serve only two years, a ‘special determination’ providing
for a special remuneration package was made by the Administrator. Subsequent
to the negotiations relating to the special remuneration package, Mr Bradley
requested that his appointment be an ‘ordinary’ appointment, but that ‘he would
only stay for two years’.48 By the time of the actual appointment, the government
had jettisoned the idea of enacting legislation for fixed-term appointments for
magistrates, which in consequence would have made ‘the remuneration package
in the special determination inappropriate’.49
The appellant’s case at first instance was summarised in the joint judgment of
Black CJ and Hely J in the Full Court of the Federal Court:

The appellant alleged that the appointment of Mr Bradley on 27 February 1998 by the
Administrator in Council was made for improper purposes. Several improper purposes
were alleged as set out in [12] of the statement of claim:
(i) defeating the measure of judicial independence implicitly required by the Act;
(ii) giving effect to an agreement or arrangement entered into on or prior to 27
February 1998 between the Northern Territory and Mr Bradley, pursuant to which
205
IMPROPER PURPOSE


Mr Bradley agreed to accept the office of Chief Magistrate for a limited period of
2 years upon certain terms and conditions;
(iii) securing a short-term special appointment to the office of Chief Magistrate;
(iv) creating what was, in effect, a 2 year appointment subject to review at the expi-
ration of that time;
(v) securing an appointee who would, at the expiration of 2 years, be dependent
upon the executive government for remuneration and allowances;
(vi) subverting the purpose of s 7 of the Act requiring magistrates’ appointments to
be to age 65; and
(vii) defeating a fundamental objective of the Act, namely that magistrates should
enjoy secure tenure to the age 65 free from the influence of, and appearance of
influence by, the executive government.50

The appellant’s case as to impropriety of purpose ‘was largely based on
inferences’.51 Having established that other contending inferences were also open
on the facts, Weinberg J concluded that he was ‘not persuaded’ that the decision
to appoint Mr Bradley was actuated by an improper or extraneous purpose.52
In the appeal to the Full Court of the Federal Court of Australia, the improper
purpose argument was more constricted. Black CJ and Hely J explained:

On appeal, the factual basis for the alleged improper purpose was confined to a
contention that the inevitable consequence of the special determination was that
Mr Bradley would be forced to re-negotiate the terms and conditions of his con-
tinued appointment if he chose not to resign after 2 years, and that this was a
consequence known to and intended by those advising the Administrator, including
Mr Stone.53

In South Australia v Slipper,54 the finding of an improper purpose was aided by
the open acknowledgment of the minister whose exercise of a power under the
Lands Acquisition Act 1989 (Cth) was impugned. The Commonwealth, in order
to compulsorily acquire land, is required under the Lands Acquisition Act 1989
(Cth) to serve on an affected person a pre-acquisition declaration containing
certain minimum information. Such a requirement is waived if the minister,
under s24(1)(a), issues a certificate stating that the minister is satisfied that
‘there is an urgent necessity for the acquisition and it would be contrary to the
public interest for the acquisition to be delayed’. Following the giving of such
a certificate, the minister ‘may, subject to section 42, declare, in writing, that
the interest is acquired by the acquiring authority by compulsory process’: s41.
Section 42 provides that the making of a declaration under s41(1) is precluded
in relation to land in a ‘public park’ unless there is consent to the acquisition by
the state or territory government.
Following an announcement by the Commonwealth of its aim to establish
a nuclear waste storage facility at two specified sites in South Australia, the
state government introduced legislation into the South Australian Parliament
proposing to make the two specified sites ‘public parks’.
In South Australia v Slipper, it was submitted, inter alia, that the s24 certificates
had been issued by the Commonwealth minister for an unauthorised purpose.
206 AUSTRALIAN ADMINISTRATIVE LAW


Branson J, with Finn and Finkelstein JJ agreeing, found that the power under
s24(1) of the Lands Acquisition Act 1989 (Cth) had been exercised for an improper
purpose.55 Invoking the explanation of ‘improper purpose’ by Aicken J in R v
Toohey : Ex parte Northern Land Council,56 Branson J held that the power conferred
by s24(1)(a) ‘was not conferred for the purpose of authorising the Minister to limit
or control the operation of s42 of the Act’.57 In this case, the improper purpose
was evidenced by the acknowledgment by the minister that he had acted under
s24(1) to prevent s42 of the Act ‘from operating in accordance with its terms’.58
The judge added that the minister had ‘conceded that he acted to frustrate the
will of Parliament as reflected in s42’.59


A mixture of purposes

A difficult aspect of the improper purpose ground lies in a situation involving a
mixture of purposes, some proper and some improper. Such situations are not
uncommon. Kirby P in Warringah Shire Council and Others v Pittwater Provisional
Council60 succinctly explained the ‘truism’ in the following terms:

‘In the nature of human affairs, it is rare that individuals, still less corporations such
as local government authorities, act as they do exclusively for a particular purpose.
It is of the nature of human motivations (and still more, if it can be ascertained, the
motivation of corporations governed and directed by numerous individuals) that their
purposes are complex and multifarious.’61 From this truism a controversy has arisen as
to the extent to which an illicit, irrelevant or impermissible purpose for the exercise of
statutory powers will render that exercise beyond power, with the serious consequences
that follow.

Professor Paul Craig thus observed: ‘Complex problems can arise where one of
the purposes is lawful and one is regarded as unlawful.’62 Professor Craig has
identified the following various tests which have been used in the English courts
to resolve the problem:

First, what was the true purpose for which the power was exercised? Provided that
the legitimate statutory purpose was achieved it is irrelevant that a subsidiary object
was also attained. Secondly, what was the dominant purpose for which the power was
exercised? Thirdly, were any of the purposes authorised? This has less support in the
case law than the previous two tests. Fourthly, if any of the purposes was unauthorised
and this had an effect upon the decision taken, that decision will be overturned as being
one based upon irrelevant considerations.63

The approach favoured in Australia was adverted to by the High Court in Thomp-
son v Council of the Municipality of Randwick,64 wherein the appellants had sought
injunctions to restrain a council from resuming certain council-owned lands with
a view to implementing a scheme for the purpose of constructing a new road.
The council sought to resume more land than was required for that purpose so
that the profit arising from the re-sale of the balance of the land would help to
207
IMPROPER PURPOSE


reduce the cost of the road construction. The High Court found that the evidence
established that one purpose underlying the attempt by the council to acquire the
land not required to construct the new road was ‘to appropriate the betterments
arising from its construction’.65
In a joint judgment, Williams, Webb and Kitto JJ said:

[I]t is still an abuse of the Council’s powers if such a purpose is a substantial purpose in
the sense that no attempt would have been made to resume this land if it had not been
desired to reduce the cost of the new road by the profit arising from its re-sale.66

In allowing the appeal, they reiterated the ‘substantial purpose’ test as the
operative test in Australia. Williams, Webb and Kitto JJ concluded:

Upon consideration of the scheme as a whole, the conclusion seems irresistible that,
with respect to so much of the land included in the scheme as is not required for the new
road, profit-making by sale is a substantial purpose actuating the Council in deciding
upon the proposed resumptions.67

The ‘substantial purpose’ test was adopted with approval by Gibbs CJ, Mason,
Murphy, Wilson and Brennan JJ in Samrein Pty Ltd v Metropolitan Water Sewerage
and Drainage Board.68 The High Court observed:

If the Board is seeking to acquire the land for an ulterior purpose, that will be an
ostensible but not a real exercise of the power granted by the Act. The attempted
exercise of power will be vitiated even if the ulterior purpose was the sole purpose of
the acquisition; it will be an abuse of the Board’s powers if the ulterior purpose is a
substantial purpose in the sense that no attempt would have been made to acquire the
land if it had not been desired to achieve the unauthorised purpose . . .69

The High Court emphasised that the questions whether the land was acquired
for another and unauthorised purpose and, if so, whether that purpose was a
substantial purpose were questions of fact.
Professor Margaret Allars’ criticism of the ‘substantial purpose’ test as ‘inter-
nally contradictory’ is apt.70 Referring to the test as a ‘strict’ one, she observed:

The ‘but-for’ element indicates that the purpose must be necessary to the decisions
being reached, whilst the ‘substantial’ element indicates that the purpose must be a
weighty one, a requirement which swings back to the English test.71

The ambivalence detected by Professor Allars in the High Court’s judgment in
Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board was reflected
in the High Court’s agreement with the finding of the primary judge that the
legitimate purpose was ‘the true, and the dominant purpose’.72


Decisions made by a multi-member body

Another difficulty with the operation of the improper purpose test relates to
decisions which are made by a multi-member body. Kirby P in the NSW Court
208 AUSTRALIAN ADMINISTRATIVE LAW


of Appeal in Warringah Shire Council and Others v Pittwater Provisional Council
noted that ‘where a decision maker is a collective body, discerning its intentions,
purposes and motives will necessarily be more problematical’.73
The appropriate test to be applied in attributing a ground of decision to a
multi-member body was considered by the Full Court of the Supreme Court of
Western Australia in Perth City v DL74 and commented upon by Toohey, Gummow
and Kirby JJ in the appeal before the High Court in IW v City of Perth.75 In issue was
the question whether the City of Perth had infringed anti-discrimination laws by
refusing planning approval for the use of premises as a day time drop-in centre for
HIV-infected persons. The Full Court of the Supreme Court of Western Australia
concluded that the Equal Opportunity Tribunal had erred in law in upholding
the complaint of discrimination.
The application was rejected by the Perth City Council on a close vote of
thirteen to twelve. It was found by the Equal Opportunity Tribunal that five of
the majority on the Council had cast their votes ‘not upon planning or like grounds
but because of views which they then held about HIV/AIDS impairment or the
characteristics which they ascribed to persons so impaired’.76 Toohey J identified
those possible tests which emerged from the proceedings in the Tribunal and the
Supreme Courts as follows:

(1) That ‘the ground of decision of any Councillor whose decision was causative, in
the sense that “but for” that decision approval would not have been refused, can
be imputed to the Council’;77
(2) That ‘relevantly the ground of decision is the ground on which a majority of the
voting Councillors made their decision’;78 and
(3) That one should look at the ground ‘on which a majority of the majority Councillors
made their decision’.79

Given that the appeal to the High Court was dismissed on grounds which did
not require the Court to deal with determining how to attribute a decision to a
multi-member body, the issue remains unresolved. However, Toohey, Gummow
and Kirby JJ expressed their views on the issue. Toohey J appeared to favour
a but-for test. He said that in the case before the Court the vote cast by each
Councillor determined the outcome of the matter, adding:

If one or more of these Councillors voted on an impermissible ground, whether or not
that was ‘the dominant or substantial reason’ . . . that vote determined the outcome
because the result would have been different ‘but for’ the vote of that Councillor. The
City of Perth could only act through its Council; the Council could only act through
the vote of its members; the vote of every member of the majority was causative in the
sense that the application would not have been refused but for each of those votes; and
in fact five Councillors reached a decision on a ground that was unlawful. The decision
of the Council was likewise infected.80

Gummow J preferred a strict stance based on the position pertaining to dis-
qualification for bias. He noted that, as a matter of general law, ‘a decision made
by such a body as the Council, one or more members of which are disqualified for
209
IMPROPER PURPOSE


bias, is liable to be set aside on administrative review’.81 In the case of decisions
entrusted by law to a collegiate group acting by a majority, he said that the
decision-making process would be tainted ‘in similar manner as a decision of that
body would be tainted by the presence of bias, in accordance with the principles of
administrative law’.82 According to those principles, it was no answer ‘that only a
minority of those decision makers comprising the majority of the whole body was
biased’.83
Kirby J held that it was not necessary to show that the majority of the Council-
lors or, alternatively, a majority of the majority acted on the unlawful ground. The
focus should be on achieving the purposes of the legislation and these purposes
‘could only be achieved, in the case of the City, acting through the vote of the
members of its Council, by ensuring that no unlawful “ground” caused the doing
by the City of the act complained of’.84
He added:

Where, as in this case, the discrimination alleged was not only one of the reasons for
the act of the Council (and hence the City) but also critical to the determination which
decided whether the act would be done or not, the discriminatory conduct on the part
of the members of the Council may be attributed to the Council itself. This is not because
of a doctrine of company law or administrative law. It is because no other interpretation
would achieve the objectives of the Act that the relevant conduct (in this case of the
local government body) should be free from unlawful discrimination and that proof
that the unlawful ground for the conduct was ‘the dominant or substantial reason’ is
not required.85



Improper purpose and bad faith

It has been observed that ‘the courts sometimes uses terms like “improper pur-
pose” (or “motive”) and “bad faith” interchangeably and unscientifically’,86 Lord
Somerville, in Smith v East Elloe RDC,87 said that the ‘mala fide’ term has ‘never
been precisely defined as its effects have happily remained mainly in the region
of hypothetical cases’.88 He added that it covered ‘fraud or corruption’.89
The term ‘malafides’ should only be used in the context of actual dishonesty and
‘not the mistaken pursuit of a by-purpose’.90 The latter category refers to a situa-
tion where the authority may exercise a discretionary power for an unauthorised
purpose without realising that it is acting illegally. Stephen J in Toohey91 referred
to the distinction between ‘honest error and dishonest design’, as described by
Isaacs J in Werribee Council v Kerr.92 This distinction was elaborated by Isaacs J
on another occasion:

[Mala fides] is wholly distinct from the notion of mistakenly pursuing a by-purpose.
Such a pursuit may in this connection be honest or dishonest. The body pursuing it may
genuinely avow it, thinking it permissible. There the action adopted may be ultra vires
but not mala fide. On the other hand there may be a pretended pursuit of a legitimate
purpose that is mala fide.93
210 AUSTRALIAN ADMINISTRATIVE LAW


Constraints imposed by the Commonwealth Constitution
In the Australian constitutional context, there are judicial comments which sug-
gest that the external affairs power in s51(xxix) of the federal Constitution might
not be attracted to support the validity of federal legislation if the entry into
the treaty was ‘merely a device to procure for the Commonwealth an additional
domestic jurisdiction’.94 This was elaborated by Brennan J in Koowarta v Bjelke-
Petersen95 in the following way:

I would agree, however, that a law with respect to a particular subject would not
necessarily attract the support of para. (xxix) if a treat obligation had been accepted
with respect to that subject merely as a means of conferring legislative power upon the
Commonwealth Parliament.96

Engaging in a ‘colourable attempt’ of using the power in s51(xxix) for the
improper purpose of converting a matter of internal concern into an external
affair indicates bad faith on the part of the executive. However, Gibbs CJ recog-
nised the difficulty involved in proving bad faith and said:

The doctrine of bona fides would at best be a frail shield, and available in rare cases.97

The invocation of a power of executive detention vested by statute may be
constrained by the operation of Ch III of the Commonwealth Constitution even
though the purpose is manifest on the face of the statute. The separation of judicial
power doctrine as established by the Boilermakers’ case98 precludes the vesting
of a judicial power in a non-Chapter III court. Kirby J in Al-Kaateb v Godwin99
explained:

The existence and pre-dominance of the judicial power necessarily implies constitu-
tional limitations on the use of the heads of legislative power in Ch 1 (or the powers
of the Executive under Ch II) of the Constitution in providing for unlimited deten-
tion without the authority of the judiciary. This is because such a power of deten-
tion can turn into punishment in a comparatively short time. And punishment, under
the Constitution, is the responsibility of the judiciary; not of the other branches of
government . . .100

The purpose underlying the exercise of an executive detention power is there-
fore crucial in determining the validity of the detention. The High Court has
subscribed to a punitive/non-punitive dichotomy in making that determination.
McHugh J in Re Woolley: Ex parte Applicants M276/2003101 said:

The issue of whether the law is punitive or non-punitive in nature must ultimately
be determined by the law’s purpose, not an a priori proposition that detention by the
Executive rather than by judicial order is, subject to recognised or clear exceptions,
always punitive or penal in nature.102

McHugh J stated that the ‘most obvious’ example of a non-punitive law that
authorises detention is ‘one enacted solely for a protection purpose’.103 Where
the executive seeks to effect detention for a purpose which is penal or punitive in
211
IMPROPER PURPOSE


nature, the detention is rendered unlawful even though it is ‘proper’ (that is, an
intention manifested by the terms of the legislation); it is simply unlawful because
the punitive nature of the detention contradicts Chapter III of the Commonwealth
Constitution.


An overlap with irrelevant considerations
The acknowledged heavy onus involved in proving the existence of an improper
purpose largely explains the small number of cases decided on this ground. This
explanation is augmented by the ‘comparative ease of establishing the alternative
ground, that an irrelevant consideration was taken into account’.104 In asserting
that a decision maker was actuated by an ulterior purpose is akin to saying that
the decision maker had taken into account, as an irrelevant consideration, the
matter constituting the ulterior purpose in arriving at the impugned decision. In
Ex parte SF Bowser and Co; Re Municipal Council of Randwick,105 Ferguson and
Davidson JJ concurred with Street CJ in holding that a council had gone outside
the legitimate scope of its function when it granted permission for the erection of
a petrol pump on a footpath subject to a condition that the pump be of Australian
manufacture. Street CJ found that the Local Government Act was passed ‘to make
better provision for the government of the areas’ but that adopting a policy of
giving preference to goods of Australian origin exceeded the council’s powers. ‘I
think that that is an extraneous consideration which ought not to influence the
minds of councillors in dealing with applications.’106

The above exegesis on the improper purpose ground indicates that this ground is
not one which will be invoked readily by a person who is aggrieved by an exercise
of a discretionary power by a public authority. The onus of proof is extremely
heavy. This is particularly so if the challenge pertains to a matter which involves
a national security interest or which has serious political overtones. In such a
context, the courts are likely to steer away from it, as it may require the courts
to exercise scrutiny over the motive or the bona fide of the maker of a decision
which is sought to be impugned. This will be the case if other grounds can be
relied upon. In the case of improper purpose, the overlap with the ground of
irrelevant considerations provides the courts with the escape route.
14
Reasonableness, rationality
and proportionality
Geoff Airo-Farulla




Reasonableness is a central, defining concept in Australian administrative law.
All justiciable aspects of administration – determinations of fact, questions of
law, discretion, and delegated legislation – are subject to judicial review for
unreasonableness.1 Other grounds of judicial review similarly apply across the
board. However, the courts most explicitly have to navigate the boundaries
between the ‘legality’ and the ‘merits’ of administrative action when applying
the reasonableness grounds. Theoretically, the legality/merits dichotomy lies at
the heart of Australian administrative law doctrine, defining the respective roles
of administrative agencies, courts, merits review tribunals, and Ombudsmen.
The courts’ use of unreasonableness as a ground of judicial review tells us where
the boundary between the two actually lies in practice.2
This chapter provides an overview of the role of reasonableness, and the
related concepts of rationality and proportionality, in judicial review of adminis-
trative action. It begins by discussing why the law requires administrators to act
reasonably, then the relationship between the concepts of reasonableness, ratio-
nality and proportionality. It then considers how the courts use these concepts
when reviewing findings of fact, exercises of discretion and delegated legislation.
It concludes with a defence of the role of reasonableness as a ground of judicial
review, against the charge that it is too indeterminate to provide a useful standard
of good administrative decision-making.


Why is reasonableness legally required?

Much has been written on why the courts can hold unreasonable administra-
tive action invalid.3 As they clearly can do so, the law must somewhere oblige

212
213
REASONABLENESS, RATIONALITY AND PROPORTIONALITY


administrators to act reasonably. The question is whether this obligation comes
from statute or the common law. No overarching statutory provision imposes
such a requirement, and specific statutory grants of power rarely do so in explicit
terms either. However, one view is that it ‘goes without saying’ that Parliament
intends that statutory powers be exercised reasonably.4 This is a reasonable
assumption because, in a representative democracy, one would not ordinarily
expect the people’s representatives to give the executive power to act arbitrar-
ily and capriciously. In practice, then, the courts often apply a presumption
of statutory interpretation to this effect. However, there is not room for this
presumption to operate if a statute clearly and unambiguously gives a deci-
sion maker power to decide unreasonably. It also cannot apply to non-statutory
powers.
The alternative view is that the common law requires decision makers to act
reasonably when exercising their powers, just as the common law requires us
to take reasonable care to avoid harming our ‘neighbour’. Such a common law
principle can apply to statutory grants of power because Parliament does not
legislate in a vacuum. Parliament will not be taken to have altered or excluded
the common law, unless the statute contains clear and unambiguous words to
that effect.5 If this common law approach is taken, the further question arises:
Where in the common law does the reasonableness requirement come from?
It is often associated with common law procedural fairness or natural justice
requirements.6 Historically, the courts enforced compliance with natural justice
requirements on decision makers having a ‘duty to act judicially’. The notion of
‘acting judicially’ was used to define the nature of natural justice requirements, by
analogising from how courts make decisions to define how other decision makers
ought to decide. As the courts do not consider that they can or do decide unrea-
sonably, some judges have suggested that natural justice imposes an analogous
duty on administrative decision makers.
The modern formulation of when procedural fairness is required – affecting
rights, interests or legitimate expectations – is much broader than the historical
‘duty to act judicially’ requirement. Even so, many statutory grants of power fall
outside even the broad, modern test. If a requirement to act reasonably comes
from procedural fairness, then any decision-making power not subject to proce-
dural fairness would similarly not have to be exercised reasonably. The better view
is that the requirement to act reasonably is a free-standing common law principle
of good administration that applies to all administrative actions, not just those
subject to procedural fairness. Either common law approach avoids the prob-
lem, inherent in the implied statutory intent approach, of non-statutory grants
of power being free of any requirement to act reasonably. Only the free-standing
common law approach also avoids the procedural fairness approach’s limits.
In practice, either common law approach leads to the same outcome as the
‘legislative intent’ approach in most cases: Administrative decision makers are
required to act reasonably, unless the statute clearly demonstrates that Parliament
intended to give them power to act unreasonably. The weakness in all these
214 AUSTRALIAN ADMINISTRATIVE LAW


approaches is therefore evident: Parliament can, if it wants, give administrative
agencies power to act unreasonably, provided it does so clearly. Is there, then, a
constitutional basis for legally requiring administrative agencies to act reason-
ably? In Plaintiff S157/2002 v Commonwealth,7 the High Court endorsed Dixon
J’s statement in Australian Communist Party v Commonwealth that the Constitu-
tion is framed on the assumption of the rule of law.8 As Montesquieu long ago
said, the point of the rule of law and the separation of powers is that ‘power
should be a check to power’ so that ‘the life and liberty of the subject [is not]
exposed to arbitrary control’.9 Arguably, then, the Constitution requires the courts
to be more than mere rubber-stamps to the existence of arbitrary and capricious
power. If the Constitution’s assumption of the rule of law is meaningful, then the
Constitution must place some limits on Parliament’s power to confer arbitrary
power on the executive. Ultimately, any attempt to use reason to explain why
administrative agencies have to use reason is inevitably circular: What is the rea-
son for reason? In a fundamental sense, expectations of reasonableness are not
merely constitutional, but constitutive of our legal system.



Reasonable, rational, proportionate

In ordinary language, ‘reasonable’ can be used to describe or qualify many things,
such as ‘a reasonable price’. In the administrative law context, the two most
important uses of reasonableness are in relation to actions and beliefs. In both
cases, the first requirement of reasonableness is that the reasons, for the action
or belief, must be intelligible: if we cannot understand the reasons for something,
we cannot judge it reasonable. Intelligibility is not enough, however: intelligible
reasons can still be either good or bad. In this context, reasonableness means
more ‘within reason’, which the Macquarie Dictionary defines as ‘justifiable or
proper’. To ‘justify’, reasons have to be at least persuasive, if not compelling; to
be ‘proper’, reasons have to be relevant to the particular situation.
‘Rationality’ is a closely related concept. Thus, the Macquarie Dictionary rele-
vantly defines ‘rational’ as ‘proceeding or derived from reason, based on reason-
ing’. In practice, however, we use the concept of rationality to refine our under-
standing of reasonableness in the following two key ways:

• Rational action: A person is considered to act rationally if they try to find, and then
adopt, the best means to achieve their desired end. People cannot necessarily find all
the available options, or accurately predict which will be most effective. However,
it is irrational to act unthinkingly, or contrary to one’s beliefs as to what is best.
• Rational belief: A belief is considered rational if it is based on some probative evi-
dence, and the person has not simply ignored countervailing evidence.10 Rationality
is based on practical reasoning, which means that there is scope for people to rely
on judgment and experience, as well as formal logic, when evaluating and weighing
evidence. However, it is irrational to be logically self-contradictory, to fall back on
prejudice or habit, or to take a ‘stab in the dark’.
215
REASONABLENESS, RATIONALITY AND PROPORTIONALITY


Rationality is necessary for an action to be reasonable, but is not always suffi-
cient. Sometimes, what might seem to be the best means to an end is still ‘unrea-
sonable’, in the sense of being excessive or not ‘proportionate’. The concept of
‘reasonable force’ is a good example: shooting a person dead may be the most
effective way of stopping them running off with a stolen packet of chewing gum,
but such excessive use of force is not proportionate to the offence. The concept of
proportionality is often summed up in the saying ‘You don’t use a sledgehammer
to crack a nut’. As discussed below, in law, proportionality also has a more spe-
cific meaning, derived from its use in European administrative law, in situations
where fundamental human rights are at stake.


Is the test objective or subjective?

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