(4.3) JR OF LAW MAKING - REASONING PROCESS GROUNDS OF REVIEW - (Acting under Dictation)

Question 1

ADJR: where a personal discretionary power is exercised at the direction or behest of another person, the decision is reviewable under

Answer 1

s 5(2)(e) ADJR Act; 6(2)(e) ADJR Act

Question 2

At common law, a personal discretionary power reposed in the decision maker must be exercised independently and

Answer 2

not at the behest of another person or body (Rendell)

Question 3

Key principle

Answer 3

The person/body authorised to make an administrative decision must turn their mind to the decision, rather than do the bidding of someone else.

Question 4

exercising a power of decision at the direction or behest of another person is

Answer 4

a jurisdictional legal error

Question 5

Can regard be had to governmental policy in making decisions/will this amount to dictation?

Answer 5

Yes, even giving it decisive weight (Bread Manufacturers), but it must not be so influential that a decision maker fails to perform its own function, as the statute contemplated (Rendell).

Question 6

Should independent statutory bodies be free from dictation?

Answer 6

Yes like the Parole Board in Rendell which determine questions of individual rights

In Rendell applied governmental policy that no recommendations to be made for a life term prisoner who had served less than 10 years without considering case

Question 7

Where legislation provides for Minister to have role in decision making of a body is this ok?

Answer 7

yes (eg approval before publication of decision)

eg in Bread Manufacturers concerned with broad social/economic policy issues –> was permissible to direct

Question 8

what does Ansett Transport say?

Answer 8

It may be the nature of the power that the DM should obey all lawful directions of the Minister / treat them as decisive considerations

[particularly those discretions reposed in low down departmental officers – here re T&C policy which is essentially a political issue for Cth]

Question 9

Egs where dictation is fine?

Answer 9

i. Governor/GG acts on advice of ministers
ii. Cabinet may dictate a result to individual minister
iii. Jurisdictional representatitves to an intergovernmental committee can be told what to do by their appointing governments

Question 10

If a statute provides the Minsiter with the power to give general guidance to a decision maker can the Minister stipulate precise rules dictating how DM’s discretion can be exercised?

Answer 10

No does not permit the Minister to lay down the precise rules dictating how the DM’s discretion should be exercised (Riddell; ALS)

(must look at Ministerial discretion and consider whether it’s within scope of the Minister’s DM power)

Question 11

Presumption against acting under dictation is displaced by

Answer 11

express legislation if it authorises Ministers to control and override officials or other bodies in the exercise of statutory powers in individual cases.

Question 12

What happened with Rendell v Release on Licence Board (1987) regarding Parolee Board

Answer 12

• In the Rendell application, the Board appeared to adopt as its own a government policy – no release for life-prisoners until served minimum 10 years.

The Board adopted the government’s policy without consideration of merits of Rendell’s case.

Question 13

Outcome in Rendell v Release on Licence Board (1987)

Answer 13

o By reference to legislative history, this Board is required to be independent of the political executive.

• no absolute rule an independent body such as the Board must ignore govt policy, however here the Board was here so influenced by the govt policy it failed to act independently.
• The board just abdicated any responsibility to look at individual cases

Question 14

Facts in Riddell v Secretary, Department of Social Security (1993)?

Answer 14

• Under Social Security Act Secretary had discretion to waive debts owed to Cth and Minister could give directions relating to Secretary’s power (equally broad powers)
• The Minister had issued a direction to the Secretary that the power to waive debt ‘must not be exercised’

Question 15

Outcome in Riddell v Secretary, Department of Social Security (1993) –> was Minister’s direction binding on the Secretary?

Answer 15

No it wasn’t –> exceeded the statutory power to give directions (provision wasn’t expressed in terms which permitted this)

Directions by Minister were only wrt general guidance

Question 16

What does Riddell v Secretary, Department of Social Security (1993) show?

Answer 16

while a ministerial statutory power to issue directions to decision-makers may rebut the rule against acting under dictation, whether it has that effect or not depends on proper construction of the statutory power to give directions.

• Result will always depend on the statutory context – and because that is very often unclear or vague there is a lot of judicial discretion involved