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Courts, Tribunals and Government Policy

Published online by Cambridge University Press:  24 January 2025

Dennis Pearce
Dennis Pearce*
Affiliation:
Faculty of Law, Australian National University
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Abstract

The inclusion in legislation of a discretionary power to be exercised by a member of the bureaucracy is nowadays commonplace. Such a discretion is usually open-ended and the basis on which it is to be exercised is spelled out in only the most general terms. To enable the discretionary power to be exercised consistently and in accordance with the intentions of the government, it is customary to find a policy being adopted relating to the manner of exercise of the discretion. This article is concerned with the attitude adopted by courts and tribunals when reviewing governmental action based on a policy relating to a discretion. It will be seen that the courts have moderated an original approach that disapproved of the reliance by decision-makers on policy rulings. Tribunals, on the other hand, and the Administrative Appeals Tribunal in particular, will be shown to have rejected constraints that may have been thought to have been placed upon them by governmental policy statements.

Type
Research Article
Information
Federal Law Review , Volume 11 , Issue 2 , June 1980 , pp. 203 - 221
Copyright
Copyright © 1980 The Australian National University

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References

1 (1977) 13 A.L.R. 1.

2 See further Whitmore and Aronson, Review of Administrative Action (1978) ch. 6.

3 Associated Provincial Pictures Ltd v. Wednesbury Corporation [1948] 1 K.B. 223, 230 approved in Australia in Parramatta City Council v. Pestell (1972) 128 C.L.R. 305, 327 per Gibbs J.

4 Hall & Co. Ltd v. Shoreham-by-Sea UDC [1964] 1 W.L.R. 240, 249.

5 Administrative Decisions (Judicial Review) Act 1977 (Ctb), s. S(2) (g).

6 Pearce, , Delegated Legislation (1978).Google Scholar

7 The primary English authorities were cited when the issue was touched on in Myer Queenstown Garden Plaza Pty Ltd v. Port Adelaide City Corporation [1975] 11 S.A.S.R. 504. Fox J. in Sernack v. McTavish (1970) 15 F.L.R. 381 followed the same reasoning without referring to the English decisions.

8 [1919] 1 K.B. 176.

9 Id. 184.

10 [1918] 1 K.B. 68.

11 Id. 70.

12 [1970] 1 W.L.R. 1281.

13 [1971] A.C. 610.

14 Id. 625.

15 Id. 631. See also Sagnata Investments Ltd v. Norwich Corporation (1971) 2 Q.B. 614, particularly 626 per Lord Denning M.R.; Cumings v. Birkenhead Corporation [1972] Ch. 12.

16 Stringer v. Minister for Housing and Local Government supra n. 12; Sagnata Investments Ltd v. Norwich Corporation, supra n. 15. On the application of the rules of natural justice generally, see Flick, , Natural Justice (1978)Google Scholar; Whitmore and Aronson, op. cit. chs 4 and 5.

17 Ss. 5(2)(f) and 6(2)(f).

18 Roncarelli v. Duplessis (1959) 16 D.L.R. (2d) 689.

19 (1909) 9 C.L.R. 140; see also Sernack v. McTavish (1970) 15 F.L.R. 381.

20 [1969] 2 Ch. 149.

21 Mason J. in Ansett Transport Industries (Operations) Pty Ltd v. Commonwealth of Australia (1977) 139 C.L.R. 54, 83; Kitto J. and Menzies J. in R. v. Anderson; ex parte lpec-Air Pty Ltd (1965) 113 C.L.R. 177, 192 and 201-202, respectively.

22 But seemingly not by English courts at all.

23 (1931) 46 C.L.R. 131.

24 Id. 145.

25 (1965) 113 C.L.R. 177.

26 Id. 193. Menzies J. concurred, id. 201.

27 Id. 206.

28 Acts Interpretation Act 1901 (Cth) ss.17, 19A. Like provisions appear in some of the State Interpretation Acts.

29 (1970) 92 W.N. (N,S.W.) 1003.

30 (1977) 139 C.L.R. 54.

31 This apparently strange concordance is probably explained by the fact that both are former Ministers.

32 (1977) 139 C.L.R. 54, 87.

33 Id. 82-83.

34 (1977) 14 A.L.R. 1.

35 Taylor and Owen JJ. have not been included in this group despite the claim in Ansett that they were of like mind. With respect, their Honours did not feel it necessary to express an opinion on the point. It is noteworthy also that Hope J. in Bosnjak’s case considered that they supported the opposing view of Kitto J.

36 Cf. Roncarelli v. Duplessis, supra n. 18.

37 Shell Company of Australia v. Federal Commissioner of Taxation [1931] A.C. 275.

38 In many Acts establishing tribunals the desirable precaution is taken of providing for questions of law to be referred by the tribunal to a court for determination: see e.g. Administrative Appeals Tribunal Act 1975, s. 45.

39 Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 A.LR. 577; 2 Administrative Law Decisions (ALD) 60 (decision of Federal Court of Australia on appeal from Administrative Appeals Tribunal): hereafter “Drake”. See also Case Note, supra p. 93.

40 See further infra.

41 Re Becker and Minister for Immigration and Ethnic Affairs (1977) 32 F.L.R. 469; 15 A.LR. 696; 1 ALD 158.

42 (1979) 24 A.L.R. 577, 589; 2 ALO 60, 68.

43 Id. 590, 70.

44 Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALO 634.

45 (1979) 24 ALR 577, 602; 2 ALD 60, 80.

46 Supra n. 41.

47 Id. 474-475, 701, 163.

48 (1979) 2 ALD 634, 645.

49 Id. 645.

50 (1978) 1 ALD 209.

51 (1979) 2 ALD 401.

52 (1979) 2 ALN 524.

53 (1978) 1 ALD 476.

54 (1979) 2 ALN 671.

55 Re Lane and Department of Transport (1978) 1 ALD 32.

56 As was done following the decision of the Tribunal in Re Heffernan and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 220: see Defence Force (Retirement and Death Benefits Amendments) Act 1979 (Cth) s. 9.

57 A notion that Jed the Administrative Review Council to propose that the present restriction on the Administrative Appeals Tribunal’s power in deportation cases to making recommendations only to the Minister be removed: Administrative Review Council: Third Annual Report 1979 para. 87.