Admin 3

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A s h v i n R a m g o o l a m P a g e |1

Discretion

“Discretion” is a choice given toExecutive decision-makers as to theway they exercise power.

Advantage: Provides flexibilityto achieve the best decision inan individual case.

Disadvantage: Decisions can beinconsistent, arbitrary & unjust

against rule of law. Rule of law: Exercises of power

must have a source of authority discretionary powers be legallychecked & controlled.

Courts take a balanced approach tocontrol 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* (govt’s interpretation

of statute; directions on how toexercise discretion under specificlegislation).

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.

Admin law comes into play whengovernment implements its policyin 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-daypractice.

How the Judiciary controls policy(its rules): Policy must be consistent with

the statute; Policy cannot be applied

inflexibly to all cases – mustconsider whether there isanything special about theparticular case which warrants adeparture from the general rule.

The consideration need not belong/detailed, but must exist.(eg. Green v Daniels: noconsideration of departure fromgeneral rule in particular cases

invalid) Policy is not binding on

government (no estoppel). Executive’s response to courts

frustrating policy by review:

Putting/clarifying policy in theAct (eg. Social Security; Tax);

Changing discretions into rules(eg. Migration Act);

Immunising policy from review; Statutory powers to issue policy

guidelines & directions givespolicy statutory force (eg. ADC v

Hand, ALS v Min); Shift of use from statutory

power to contractual power(because courts scrutinisecommon law powers much less,& privity limits range of ppl whocan pursue a contractualremedy).

Tension between Executive &Court

The Exec wants overall efficiency

( implements its policies), but theCourts want to protect individual

A d m i n i s t r a t i ve L a w

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liberties ( frustrates some of Exec’s policies).

Ie. Conflict = Effectiveimplementation of public policy(ie. needs of the many) v

Preservation of individual rights,freedoms & liberties (ie. needsof the one).

Who is charged with striking thebalance? Executive government thinks

that they set the balance,because an elected govt claimsa mandate for their policyprogram (or even a general rightto govern in anyway they want).[If this view is accepted, admin

law has no role.] Under the “transmission belt”

theory, Parliament enacts thelaw, and then the Executivefaithfully carries it out. But inreality, it is the Executive whichdecides on legislative changes(since the government hasmajority in the Lower House).

In fact, the Judiciary has the finalsay on the balance. It upholds

the rule of law.

CASES

Judicial attitudes to policy & therelationship between them and theretention of discretion.

Green v Daniels

Policy contradictory to statute(invalid).

*s 107: A person is qualified toreceive an unemployment benefit if he : (a) is 16;

(b) is residing in Australia, andsatisfies the Director-Generalthat he is likely to remainpermanently;

(c) satisfies the DG that he:

(i) is unemployed; (ii) is capable & willing to

undertake work which, in the

DG’s opinion, is suitable tothat person;

(iii) has taken reasonablesteps to obtain such work.

*Pl registered for employment atthe CES a day before she finishedher final school year, and returned

a month later to be told that shecould not receive unemploymentbenefits until the end of thevacation, 22 Feb.

*ss107(a) & (b) are not disputed. *Policy manual stated that “as a

general rule, school leavers do notsatisfy the eligibility conditions [(i)& (iii)] for unemployment benefitsuntil the end of the school vacation.

Preliminary matters: Despite the phrase “as a general

rule”, the policy was applied asan inflexible rule (whichprevented the Pl & others likeher from being considered foremployment benefits before 22Feb).

The policy did not introduceirrelevant factors into thedecision-making process,because the fact that a schoolleaver applies during holidays

will bear upon the question of whether he is truly an intendingentrant into the workforce.

The DG can provide guidelinesindicating how he will be“satisfied”. However, they must notbe inconsistent with the statutorycriteria.

Are the statutory criteria +instructions inconsistent? Yes. Thepolicy requirement preventedschool leavers who satisfy all

criteria in s 107 from gettingunemployment benefits during theschool holidays. The requirement isnot, in truth, concerned withsatisfying the DG; rather, it wasdesigned to cure a particular abuse. In relation to criterion (i): The

instruction makes sure that theapplying school leaver has nointention of returning and is thus“unemployed”, by waiting untilthe end of the holidays. But thisis done at the cost of beingwrong in the case of all


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applicants who actually have nointention to return. Any methodproducing erroneous results of this magnitude is clearlyunacceptable as a way to satisfy

the DG. Also, there are better ways of

learning the applicant’sintention to satisfy the DG(eg. applicant making adeclaration of intent).

In relation to criterion (iii): Theinstruction as to what involves“reasonable steps” cannotimpose an arbitrary time beforethe criterion is to be regarded assatisfied, in the case of only one

class of applicants (ie. schoolleavers). [ie. “reasonable steps”should not be determined withrespect to an arbitrary time]

The desire to prevent abuse bydishonest school leavers cannotoverride the statutory criteria of eligibility in favour of a requirementthat finds no place in thelegislation, and that denies benefitsto the great body of honest school

leavers

the instruction waserroneous. The DG (by his delegate) applied

the erroneous test to determine Pl’s

eligibility during the holidays Remedy = declaration that the DGshould have considered all thecircumstances of the Pl’s claim. Cannot give declaration that she

was entitled to theunemployment benefits duringthe school holiday period,

because that would be the courtusurping the DG’s power of attaining satisfaction. [ie.reviewing merits]

Analysis

The court is preserving somediscretion (ie. policy instructionscannot confine discretion as to DG’ssatisfaction in a way that isinconsistent with the statutory

discretion given).

Actually, there is no strictinconsistency between policy &statute in this case, because thepolicy says “as a general rule”.Instead, the administrator (DG’s

delegates) simply did not considerthe statutory criteria as required ground of review is “inflexibleapplication of policy”.

The court will look at the substanceof the policy (ie. even though thepolicy said “as a general rule”, thecourt treated it as an inflexible rulebecause it was applied that way)

Aboriginal Development

Commission v HandGeneral Directions (valid). *Discretionary Power: s 9(1): The

Commission has power to: (c) co-operate with [government

bodies] and with other persons& organisations concerned withAboriginal development;

(d) collect … informationrelating to the performance of the Commission’s functions.

*Power to give directions: s11(1): The Commission shall …exercise its powers in accordancewith general directions given by theMinister.

*s 11(2): The Minister cannot givedirections relating to the content of any advice, information orrecommendation that theCommission may give to a Minister,Dept or [govt] authority.

*Directions: The Minister gave

directions pursuant to s 11, that: 1) The Commission shall co-

operate with the Minister “inrelation to the proposedreorganisation of the Dept &other bodies … required tofacilitate the formation of theATSIC”.

2) The Commission shall provideinformation to the Minister asthey may reasonably requirefrom the Commission;

3) The Commission’srepresentatives must attend


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certain meetings to discuss …the reorganisation of the Dept &other bodies … required for theformation of the ATSIC.

*The Commission sought a

declaration that the directions wereinvalid (ie. Ultra vires).Were the directions ultra vires?

The adjective “general” indicatesthat the direction must not bedirected to a particular case, butapplied generally.

A general direction is similar to abinding guideline.

It sets the structure of activity ordecision-making.

It may require the Commissionto undertake an activity of aspecified character.

It may not direct its attention toa specific case arising fordecision before the Commission.

Directions 1,2,3 were “general”,because they were not directed to aparticular case or even to thecontent of views expressed by theCommission. They were justdirections 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 anyadvice, information orrecommendation given by theCommission to the Minister?) No,because on construction, thedirections did not make theCommission agree with theMinister’s views in itsadvice/recommendation (ie. TheCommission was allowed to expressits own views). In Directions 1 & 3, if the words

“required to facilitate theformation of the ATSIC” wereread as requiring theCommission to positivelyfacilitate and promote thereorganisation, then theynecessarily require theCommission to give certain

advice to the Minister theybreach s 11(2) invalid. BUT

the judge chose to interpretDirections 1 & 3 as requiring theCommission to only co-operate

& give information they didnot infringe s 11(2).

Also, “co-operate” could beinterpreted to mean positivelygiving advice andrecommendations in favour of forming the ATSIC, which wouldbreach s 11(2). BUT it was infact interpreted loosely, so as tonot require a particularadvice/recommendation nobreach of s 11(2).

The Directions should be read insuch a manner as to maintain their

validity. To so read them is merelyto read them in context.

ALS v Minister for AboriginalAffairs

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 accordancewith general directions given by theMinister.

*The Minister gave directions toATSIC under s 12(1) that:

1) ATSIC was not to make agrant/loan unless it has madeavailable certain financialinformation to the SpecialAuditor (appointed by theMinister), and 3 weeks haselapsed;

2) ATSIC was not to make agrant/loan if the Special Auditornotifies both the Commission &the Minister that the receivingbody is not a fit & proper bodyto receive public money – unlessthe Minister notifies theCommission that the grant/loanshould be made anyway.

3) If the Special Auditor notifiesATSIC & the Minister that the

issue requires further


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consideration, then the makingof the grant is stayed.

Direction 2 was not “general” & sowas invalid, because the directionwent beyond setting up a general

process, and conferred power &discretion on the Special Auditor tooverride ATSIC’s discretion inrespect of particular applicants. It allowed the Special Auditor to

effectively veto ATSIC’s grant in

particular cases It takes awaydiscretion conferred to theCommission, and gives it tosomeone Parliament has notconferred the power on.

It did not require ATSIC to

merely follow objectiveguidelines; rather, it requiredATSIC to follow what the SpecialAuditor subjectively considers isnot a fit/proper body.

Directions 1 & 3 are subsidiary to

Direction 2 the other directionsare beyond power.

Remedy = declaration that thedirections were not “general”, andare of no effect.

Under s 12, the Minister could setup a procedural process, and givedirections as to priorities to apply.But the Minister cannot commandATSIC how to determine theoutcome of its decision to grant.

Padfield v Minister of Agriculture

If Parliament confers discretion, itmust have intended the discretionto be used to promote the policy &objects of the Act. The policy &

objects are determined byconstruing the Act as a whole bythe courts. no unfettered discretion.

ARTICLES

Davis

He argues: There is too muchdiscretion. Reasons for the continued increase

of discretion?

Legislatures are not experts do not know what the standardsare best way is to allow theadministrators to invent answersas they are confronted by each

concrete case they don’tadvance rules.

Discretion is desirable forindividualised justice.

Discretion Flexibility Ability to respond toindividual cases &complexities of modern govt.

We have allowed discretionarypower to grow beyond what isnecessary. Too much discretion.

We need to eliminate unnecessary discretion & find the optimumdegree of control.

Ways to achieve the optimumdegree: Eliminate unnecessary

discretionary power:

By: fixing the boundaries of discretion.

Better control of necessarydiscretionary power:

By: structuring (eg. plans,

policy statements, rules,openfindings/rules/precedents) &checking (both admin &

judicial supervision &review).

[structuring = preventative,checking = corrective]

Analysis

Can criticise that Davis did not

define the optimum amount of discretion, as he spoke of it ingeneral terms (a bit circular too:optimum amount = when there’sno 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 muchdiscretion. Discretion is constrained by

explicit/implicit organisational rules


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[eg. policies, quotas, time limits].Such rules are imposed byorganisations 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 processwithout deciding a new caseafresh.

Analysis

Hawkins’ view diminishes Davis’argument that discretion threatensthe rule of law. When Davis saidthere was too much discretion, hewas looking from a lawyer’sviewpoint. Hawkins thinks that inthe real world , the constraints ondiscretion are not just legal ones –there are also organisational

constraints discretion is actuallymuch more constrained.

AltmanHe argues that currently,discretion is inconsistent with therule 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: Anyexercise of power by state mustbe authorised by a pre-existingsystem of authoritative legalnorms. [Govt has to show somesource of legal authority for allits actions]

These 2 principles are importantbecause they secure individualfreedom, by preventing illegitimateuse of power.Is discretion inconsistent withthe Rule of Law?

Currently:

Admin decision makers exerciseextensive discretionary powers,

guided by the vaguest of standards.

Judicial review is relaxed:substantial deference isaccorded to the judgments of

administrators, on grounds of their alleged expertise.

People can be deprived of property/liberty by administratorwithout court hearing.

These developments makenonsense of the idea that the stateis legally accountable for itsactions.

So: Too much discretion arbitrariness, uncertainty, no fair

notice of what to expect againstrule of law.Does admin law provide aresponse to the threat of discretion to the rule of law?

Much of the state’s activity indenying liberty & property remainssubject to due-process guarantees.

The vague standards that guideadministrators still operate within abroader framework of rules thatconstrain the administrators’

powers. Although judicial review is relaxed,

it still constrains state power.


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