Ashvin Ramgoolam

Page |
Admin law comes into play when

Discretion Discretion is a choice given to Executive decision-makers as to the way they exercise power. Advantage: Provides flexibility to achieve the best decision in an individual case. Disadvantage: Decisions can be inconsistent, arbitrary & unjust against rule of law. Rule of law: Exercises of power must have a source of authority discretionary powers be legally checked & controlled. Courts take a balanced approach to control of discretion: Our grounds of review confine discretion: Procedural fairness Relevant/irrelevant considerations (eg. Roberts) Unreasonableness (eg. Roberts) Statutory interpretation (eg. Shopping hours case) No such thing as absolute discretions (Padfield) Courts imply limits on discretions. But our grounds of review also preserve discretion (eg. ALS v Minister). Policy controls the exercise of discretion by decision-makers. Policy 2 types of policy: broad level (overall govt aims & objectives) & lower level* (govts interpretation of statute; directions on how to exercise discretion under specific legislation). Policies are desirable because they: Improve consistency; Improve fairness to individuals; Achieve the purpose of the power; Minimise unnecessary inconvenience; Give upper Exec control over lower Exec.

government implements its policy in individual instances. Executive & Judicial control of policy (a dynamic relationship) How the Executive controls policy: Policy manuals; Ministerial statements of policy; Unwritten policy: day-to-day practice. How the Judiciary controls policy (its rules): Policy must be consistent with the statute; Policy cannot be applied inflexibly to all cases must consider whether there is anything special about the particular case which warrants a departure from the general rule. The consideration need not be long/detailed, but must exist. (eg. Green v Daniels: no consideration of departure from general rule in particular cases invalid) Policy is not binding on government (no estoppel). Executives response to courts frustrating policy by review: Putting/clarifying policy in the Act (eg. Social Security; Tax); Changing discretions into rules (eg. Migration Act); Immunising policy from review; Statutory powers to issue policy guidelines & directions gives policy statutory force (eg. ADC v Hand, ALS v Min); Shift of use from statutory power to contractual power (because courts scrutinise common law powers much less, & privity limits range of ppl who can pursue a contractual remedy). Tension between Executive & Court The Exec wants overall efficiency ( implements its policies), but the Courts want to protect individual

Administrativ e Law

Ashvin Ramgoolam
2

Page | (iii) has taken reasonable steps to obtain such work. *Pl registered for employment at the CES a day before she finished her final school year, and returned a month later to be told that she could not receive unemployment benefits until the end of the vacation, 22 Feb. *ss107(a) & (b) are not disputed. *Policy manual stated that as a general rule, school leavers do not satisfy the eligibility conditions [(i) & (iii)] for unemployment benefits until the end of the school vacation. Preliminary matters: Despite the phrase as a general rule, the policy was applied as an inflexible rule (which prevented the Pl & others like her from being considered for employment benefits before 22 Feb). The policy did not introduce irrelevant factors into the decision-making process, because the fact that a school leaver applies during holidays will bear upon the question of whether he is truly an intending entrant into the workforce. The DG can provide guidelines indicating how he will be satisfied. However, they must not be inconsistent with the statutory criteria. Are the statutory criteria + instructions inconsistent? Yes. The policy requirement prevented school leavers who satisfy all criteria in s 107 from getting unemployment benefits during the school holidays. The requirement is not, in truth, concerned with satisfying the DG; rather, it was designed to cure a particular abuse. In relation to criterion (i): The instruction makes sure that the applying school leaver has no intention of returning and is thus unemployed, by waiting until the end of the holidays. But this is done at the cost of being wrong in the case of all

liberties ( frustrates some of Execs policies). Ie. Conflict = Effective implementation of public policy (ie. needs of the many) v Preservation of individual rights, freedoms & liberties (ie. needs of the one). Who is charged with striking the balance? Executive government thinks that they set the balance, because an elected govt claims a mandate for their policy program (or even a general right to govern in anyway they want). [If this view is accepted, admin law has no role.] Under the transmission belt theory, Parliament enacts the law, and then the Executive faithfully carries it out. But in reality, it is the Executive which decides on legislative changes (since the government has majority in the Lower House). In fact, the Judiciary has the final say on the balance. It upholds the rule of law. CASES Judicial attitudes to policy & the relationship between them and the retention of discretion. Green v Daniels Policy contradictory to statute (invalid). *s 107: A person is qualified to receive an unemployment benefit if he : (a) is 16; (b) is residing in Australia, and satisfies the Director-General that he is likely to remain permanently; (c) satisfies the DG that he: (i) is unemployed; (ii) is capable & willing to undertake work which, in the DGs opinion, is suitable to that person;

Administrativ e Law

Ashvin Ramgoolam
3

Page |
Actually, there is no strict

applicants who actually have no intention to return. Any method producing erroneous results of this magnitude is clearly unacceptable as a way to satisfy the DG. Also, there are better ways of learning the applicants intention to satisfy the DG (eg. applicant making a declaration of intent). In relation to criterion (iii): The instruction as to what involves reasonable steps cannot impose an arbitrary time before the criterion is to be regarded as satisfied, in the case of only one class of applicants (ie. school leavers). [ie. reasonable steps should not be determined with respect to an arbitrary time] The desire to prevent abuse by dishonest school leavers cannot override the statutory criteria of eligibility in favour of a requirement that finds no place in the legislation, and that denies benefits to the great body of honest school leavers the instruction was erroneous. The DG (by his delegate) applied the erroneous test to determine Pls eligibility during the holidays Remedy = declaration that the DG should have considered all the circumstances of the Pls claim. Cannot give declaration that she was entitled to the unemployment benefits during the school holiday period, because that would be the court usurping the DGs power of attaining satisfaction. [ie. reviewing merits] Analysis The court is preserving some discretion (ie. policy instructions cannot confine discretion as to DGs satisfaction in a way that is inconsistent with the statutory discretion given).

inconsistency between policy & statute in this case, because the policy says as a general rule. Instead, the administrator (DGs delegates) simply did not consider the statutory criteria as required ground of review is inflexible application of policy. The court will look at the substance of the policy (ie. even though the policy said as a general rule, the court treated it as an inflexible rule because it was applied that way) Aboriginal Development Commission v Hand General Directions (valid). *Discretionary Power: s 9(1): The Commission has power to: (c) co-operate with [government bodies] and with other persons & organisations concerned with Aboriginal development; (d) collect information relating to the performance of the Commissions functions. *Power to give directions: s 11(1): The Commission shall exercise its powers in accordance with general directions given by the Minister. *s 11(2): The Minister cannot give directions relating to the content of any advice, information or recommendation that the Commission may give to a Minister, Dept or [govt] authority. *Directions: The Minister gave directions pursuant to s 11, that: 1) The Commission shall cooperate with the Minister in relation to the proposed reorganisation of the Dept & other bodies required to facilitate the formation of the ATSIC. 2) The Commission shall provide information to the Minister as they may reasonably require from the Commission; 3) The Commissions representatives must attend

Administrativ e Law

Ashvin Ramgoolam
4

Page | the judge chose to interpret Directions 1 & 3 as requiring the Commission to only co-operate & give information they did not infringe s 11(2). Also, co-operate could be interpreted to mean positively giving advice and recommendations in favour of forming the ATSIC, which would breach s 11(2). BUT it was in fact interpreted loosely, so as to not require a particular advice/recommendation no breach of s 11(2). The Directions should be read in such a manner as to maintain their validity. To so read them is merely to read them in context. ALS v Minister for Aboriginal Affairs Directions determining outcome of particular cases (invalid). *s 14: ATSIC has power to make grants & loans for the Aborigines interests. *s 12(1): The Commissioner shall exercise its powers in accordance with general directions given by the Minister. *The Minister gave directions to ATSIC under s 12(1) that: 1) ATSIC was not to make a grant/loan unless it has made available certain financial information to the Special Auditor (appointed by the Minister), and 3 weeks has elapsed; 2) ATSIC was not to make a grant/loan if the Special Auditor notifies both the Commission & the Minister that the receiving body is not a fit & proper body to receive public money unless the Minister notifies the Commission that the grant/loan should be made anyway. 3) If the Special Auditor notifies ATSIC & the Minister that the issue requires further

certain meetings to discuss the reorganisation of the Dept & other bodies required for the formation of the ATSIC. *The Commission sought a declaration that the directions were invalid (ie. Ultra vires). Were the directions ultra vires? The adjective general indicates that the direction must not be directed to a particular case, but applied generally. A general direction is similar to a binding guideline. It sets the structure of activity or decision-making. It may require the Commission to undertake an activity of a specified character. It may not direct its attention to a specific case arising for decision before the Commission. Directions 1,2,3 were general, because they were not directed to a particular case or even to the content of views expressed by the Commission. They were just directions as to courses of activity empowered by s 9. Do the directions infringe the limitation imposed by s 11(2)? (ie. did they direct the content of any advice, information or recommendation given by the Commission to the Minister?) No, because on construction, the directions did not make the Commission agree with the Ministers views in its advice/recommendation (ie. The Commission was allowed to express its own views). In Directions 1 & 3, if the words required to facilitate the formation of the ATSIC were read as requiring the Commission to positively facilitate and promote the reorganisation, then they necessarily require the Commission to give certain advice to the Minister they breach s 11(2) invalid. BUT

Administrativ e Law

Ashvin Ramgoolam
5

Page | Legislatures are not experts do not know what the standards are best way is to allow the administrators to invent answers as they are confronted by each concrete case they dont advance rules. Discretion is desirable for individualised justice. Discretion Flexibility Ability to respond to individual cases & complexities of modern govt. We have allowed discretionary power to grow beyond what is necessary. Too much discretion. We need to eliminate unnecessary discretion & find the optimum degree of control. Ways to achieve the optimum degree: Eliminate unnecessary discretionary power: By: fixing the boundaries of discretion. Better control of necessary discretionary power: By: structuring (eg. plans, policy statements, rules, open findings/rules/precedents) & checking (both admin & judicial supervision & review). [structuring = preventative, checking = corrective]

consideration, then the making of the grant is stayed. Direction 2 was not general & so was invalid, because the direction went beyond setting up a general process, and conferred power & discretion on the Special Auditor to override ATSICs discretion in respect of particular applicants. It allowed the Special Auditor to effectively veto ATSICs grant in particular cases It takes away discretion conferred to the Commission, and gives it to someone Parliament has not conferred the power on. It did not require ATSIC to merely follow objective guidelines; rather, it required ATSIC to follow what the Special Auditor subjectively considers is not a fit/proper body. Directions 1 & 3 are subsidiary to Direction 2 the other directions are beyond power. Remedy = declaration that the directions were not general, and are of no effect. Under s 12, the Minister could set up a procedural process, and give directions as to priorities to apply. But the Minister cannot command ATSIC how to determine the outcome of its decision to grant.

Padfield v Minister of Agriculture If Parliament confers discretion, it must have intended the discretion to be used to promote the policy & objects of the Act. The policy & objects are determined by construing the Act as a whole by the courts. no unfettered discretion. ARTICLES Davis He argues: There is too much discretion. Reasons for the continued increase of discretion?

Analysis Can criticise that Davis did not define the optimum amount of discretion, as he spoke of it in general terms (a bit circular too: optimum amount = when theres no unnecessary discretion). Instead, in reality, the optimum amount of discretion is defined by the statute. Davis overlooks this. Hawkins He argues: There is not too much discretion. Discretion is constrained by explicit/implicit organisational rules

Administrativ e Law

Ashvin Ramgoolam
6

Page | guided by the vaguest of standards. Judicial review is relaxed: substantial deference is accorded to the judgments of administrators, on grounds of their alleged expertise. People can be deprived of property/liberty by administrator without court hearing. These developments make nonsense of the idea that the state is legally accountable for its actions. So: Too much discretion arbitrariness, uncertainty, no fair notice of what to expect against rule of law. Does admin law provide a response to the threat of discretion to the rule of law? Much of the states activity in denying liberty & property remains subject to due-process guarantees. The vague standards that guide administrators still operate within a broader framework of rules that constrain the administrators powers. Although judicial review is relaxed, it still constrains state power.

[eg. policies, quotas, time limits]. Such rules are imposed by organisations b/c: they promote consistency minimise criticism from superiors. decision-making procedures make staff more accountable. rules offer guidance important for efficiency. they permit ready repetition of the decision process without deciding a new case afresh. Analysis Hawkins view diminishes Davis argument that discretion threatens the rule of law. When Davis said there was too much discretion, he was looking from a lawyers viewpoint. Hawkins thinks that in the real world, the constraints on discretion are not just legal ones there are also organisational constraints discretion is actually much more constrained. Altman He argues that currently, discretion is inconsistent with the rule of law. Rule of Law has 2 important elements: Fair notice: State must establish a well-defined zone of freedom. [no retrospective law] Legal accountability: Any exercise of power by state must be authorised by a pre-existing system of authoritative legal norms. [Govt has to show some source of legal authority for all its actions] These 2 principles are important because they secure individual freedom, by preventing illegitimate use of power. Is discretion inconsistent with the Rule of Law? Currently: Admin decision makers exercise extensive discretionary powers,

Administrativ e Law