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

Question 1

Under AJDR there is a ground of review for instances of ‘an exercise of discretionary power in accordance with a rule or policy, without regard to the merits of that particular case’ per

Answer 1

s 5(2)(f) ADJR Act

Question 2

To what extent can policy influence a certain result?

Answer 2

o DM must be free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision (Minister for Home Affairs v G)

Valid policies can’t be inflexibly applied!

Question 3

Effect of an inflexible application of policy?

Answer 3

Inflexible application of policy is a jurisdictional error (M64/2015)

Question 4

Policies must be

Answer 4

consistent with the enabling legislation (Minister for Home Affairs v G)

Question 5

Facts in Minister for Home Affairs v G (2019)

Answer 5

Act seting out rules for citizenship – policy added if children would suffer hardship/disadvantage

• G a 10 year old child, born in Aus, but Albanian citizen, was granted a PR – mother applied for Aus citizenship was refused on basis it didn’t’ meet the policy guidelines, appeals to AAT was refused on same guidelines
• The citizenship act provides for citizenship by conferral on minimal conditions if under 18 – it’s a lot easier, only have to be under 18 and a PR but minister’s power to confer citizenship is discretionary

Question 6

Outcome in Minister for Home Affairs v G (2019) - policies must be consistent with the enabling legislation

Answer 6

Held policy was okay and was consistent with the act – a borderline case, here could look like a policy that is arguably inconsistent bc it purports to narrow the circumstances in which a person is eligible for citizenship as opposed to the statute

Question 7

Facts in M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 – policies must not be inflexibly applied

Answer 7

Policy created priority system for visas – was not controlling the administrator’s decision –>these types of policies help high volume decision making

WAS VALID

We’ve got a broad and subjective evaluation of matters + the policy had saving words in it to say it wasn’t meant to consider circs of particular case –> helpful for showing it wasn’t unlawful policy
In absence of informal reasons couldn’t prove that the DM had failed to exercise own discretion