(4.3) JR OF LAW MAKING - REASONING PROCESS GROUNDS OF REVIEW - (relevant considerations)

Question 1

This ground of review can be invoked where

Answer 1

it can be established that the DM was obliged to consider certain factors and failed to do so

Question 2

Under ADJR what establishes a ground of review for failure to take a relevant consideration into account in the exercise of power?

Answer 2

s 5(1)(e) and 2(b)

+ 5(2) which refers to (1)(e) and lists things that the exercise of DM power must have reference to

Question 3

A decision which results from a failure to consider relevant matters will

Answer 3

establish a ground of review (Peko-Wallsend) at CL

Question 4

5 propositions from Peko Wallsend

Answer 4

1) DM must be bound to take matter into account
2) Factors DM considers are determined by subject matter, scope and purpose of act
3) Legal impropriety must materially affect weight given to the matters
4) Generally not for courts to determine the weight given to the matters required to be considered
5) Principles apply to decisions made by a Minister

Question 5

What demonstrates that the DM did in fact consider the relevant factors?

Answer 5

The DM must have given active intellectual engagement’ of the relevant material (Tickner; Carrascalao)

(note if DM can’t delegate powers must personally consider)

Question 6

If personal considerations are required, can you rely on opinion of an advisor?

Answer 6

No - (Tickner)

allowed to use summaries, but only where applicable

Question 7

If personal considerations are required, can time determine whether sufficient consideration was given?

Answer 7

YES –> must be enough time (Carrascalao- 43 minutes not enough to actively engage with 700 pages of material – no evidence given by Minister to counter this)

Question 8

If personal considerations are required does DM have discretion as to what to give weight to?

Answer 8

YES - Weight given to each consideration is at discretion of DM unless weight specified in statute (Peko-Wallsend)

Question 9

If personal considerations are required and DM is a minister, allowance should be given for

Answer 9

taking to account broader policy considerations (Peko-Wallsend)

Question 10

If personal considerations are required but there are cultural prohibitions on considering such info (eg, man can’t read certain contents) is this permitted not to consider?

Answer 10

No

Law will not ‘bend’ to accommodate cultural traditions (eg aboriginal) – envelope that was ‘not to be read by men’ still needed to be read by Minister (Tickner)

Question 11

In order for a remedy to be granted re failure to take factor into consideration what must be shown?

Answer 11

that this failure materially affected the decision such that a remedy should be given? (ie, it is not insignificant) (Peko-Wallsend)

Question 12

Breach of consideration grounds is a

Answer 12

jurisdictional error (Yusuf) + MATERIALITY (not ADJR)

Question 13

What provision under the ADJR Act provides a ground of review for where IRRELEVANT considerations are taken into account in exercise of a DM’s power

Answer 13

s 5(2)(a) ADJR Act
\+ CL equiv is Peko Wallsend

Question 14

Per Murphyores, a consideration will be ‘irrelevant’ where it (4 factors)

Answer 14

(1) expressly/implicitly extraneous to statute
(2) amounts to lack of good faith/corruption
(3) entirely personal/whimsical wrt proper gov administration
(4) Minister’s political embarrassment always irrelevant (Padfield)

Question 15

What’s a caveat to the fact that legislation can grant unfettered discretion re considerations

Answer 15

such unfettered statutory discretions must be read in light of objects/purpose of Act (Padfield)

Question 16

Facts in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) [failing to have regard to RELEVANT considerations]

Answer 16

• Aboriginal Land Council made applications under the Aboriginal Land Rights claiming to have traditional land claims in the Northern Territory – if they succeeded they would acquire land rights over the area that they had traditionally occupied
• Peko-Wallsend had been exploring for minerals in that area
• Peko-Wallsend Ltd sought judicial review of the Minister’s decision under the ADJR Act.
• Claimed that the Minister failed to consider Peko’s additional submissions regarding the actual location of the uranium deposit, and that the detriment to Peko had been understated by the Commissioner

Question 17

Outcome in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) [failing to have regard to RELEVANT considerations]

Answer 17

The Minister was bound to consider the comments on detriment included in the Land Commissioner’s report, being the ‘most recent and accurate info that the Minister had to hand’

• Once it’s accepted that the subject matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of the factor must be based on the most recent and accurate information that the Minister has at hand.

Question 18

Facts in Plaintiff S156 v Minister for Immigration and Border Protection (2014) [failing to have regard to RELEVANT considerations]

Answer 18

• to do with processing arrangements for refugees - P from Iran, detained for being an unlawful citizen
• admin law Q was wrt Minister’s decision to designate Papua New Guinea as a regional processing country

Question 19

Outcome in Plaintiff S156 v Minister for Immigration and Border Protection (2014) [failing to have regard to RELEVANT considerations] –>
was Minister required to consider Aus’s intl obligations, to consult with UNHCR, PNG’s international capacity to fulfil obligations etc?

Answer 19

NO weren’t mandatory considerations
- act expressly stated that the only factor to be considered was the national interest (largely a political Q)

• The Act permits but does not oblige other considerations to be taken into account, ie, broad discretionary power

Question 20

Facts in Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997 [failing to have regard to RELEVANT considerations]

Answer 20

milk producers were required to sell their milk to the Board which was made up of reps from different regions

• One of the regions tried to have the price changed but it did not have the support of the majority of the Board
• The region then complained to the Minister and asked him to appoint a committee to investigate – he refused
• Minister said that the complaint was unsuitable to investigate due to the “width” of the issues
• The Minister was also concerned that he could be put in a difficult position if the complaint was upheld by an investigation – ie he would be expected to make an order based on the recommendation when he did not want to – political embarrassment

Question 21

Outcome in Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997 [failing to have regard to RELEVANT considerations]

Answer 21

successful in getting review which orders mandamus for committee

• Minister has acted for ‘prohibited’ reasons:
  o Prospective political embarrassment - ‘plainly … a bad reason’.
  o Policy/regulatory reasons – these are not open to Minister in the statutory context, as they frustrate the intended operation of the statutory scheme.

Question 22

Facts in Murphyores Inc Pty Ltd v Commonwealth (1976) [failing to have regard to RELEVANT considerations]

Answer 22

• Mining leases and export approval had already been granted by the Qld gov – but the company also needed export approval for overseas from Minister
• Minister directed inquiry to be held into the enviro aspects of the Cth Gov’s decisions relating to exporting minerals extracted from Fraser Island
• He then informed the applicant that no more export permits would be granted until the inquiry had been completed and the Commissioner’s report considered.

Question 23

Outcome in Murphyores Inc Pty Ltd v Commonwealth (1976) [failing to have regard to RELEVANT considerations] –> Were the environmental considerations irrelevant to a decision to export minerals?

Answer 23

No –> Minister could have regard to enviro considerations

• The identification of ‘extraneous matters’ is a process of statutory construction – here the very nature of the power is against an implication that environmental impacts are prohibited considerations

(only if Minister had relied on corrupt, personal or whimsical considerations would decision have been invalidated - Stephen J)

Question 24

Facts in Tickner v Chapman (1995) [active intellectual engagement]

Answer 24

In making decision about order to protect Hindmarsh Island where they wanted to build a bridge, where Minister was required to consider a public consultation report, Minister did not read the representations attached to the report before making the declaration. There were 400 reps which included ‘secret womens business’

• here female staff member read and then made a recommendation
• Chapmans argued Minister hadn’t considered the particular info as secret womens business as required by the statute

Question 25

Outcome in Tickner v Chapman (1995) [active intellectual engagement] - Had the Minister considered the representation as required by the Act?

Answer 25

didn’t satisfy requirement for an ‘active intellectual process directed at the representations’

Minister required by Act to PERSONALLY consider representations

the Minister must have regard to what is said in representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward to appreciate who is making them

Question 26

Facts in Carrascalao v Minister for Immigration and Border Protection (2017) FCR [active intellectual engagement]

Answer 26

• The two appellants were long term PRs who had their visas cancelled because of their alleged involvement in a motorcycle gang
• They appealed, Minister recancelled –> - the Minister had hundreds of pages of materials in relation to the decisions

the applicants argued that the Minister failed to give “proper, genuine and realistic” consideration to the decision
bc Minister he had those materials for 43 minutes when making the decisions in relation to both men

Question 27

Outcome in Carrascalao v Minister for Immigration and Border Protection (2017) FCR [active intellectual engagement]

Answer 27

• FCAFC makes an evaluative judgment that the Minister had not engaged in an active intellectual process with the merits of two cases before cancelling visas

(didn’t fail on ground of failing to give proper, genuine and realistic consideration)