(4.3) JR OF LAW MAKING - REASONING PROCESS GROUNDS OF REVIEW - (Unauthorised Delegation and Agency)

Question 1

ADJR: where a decision is made by a person without the jurisdiction to make the decision, or where the decision is not authorised by an enactment a ground of review will be established per

Answer 1

(s 5(1)(c); (d) ADJR)

Question 2

Common Law: where a power is conferred on a DM, in the absence of any express or implied power to delegate that power, the named repository must

Answer 2

exercise the power personally (Peko-Wallsend; Re Ombudsmen)

Question 3

Whether delegate’s exercise of DM power amounts to unlawful delegation depends on whether

Answer 3

they acted independently of DM in their own name (signs in their own name)

Question 4

Delegation requires what to be valid?

Answer 4

statutory power to delegate (this is a matter of statutory construction) (O’Reilly)

Question 5

The absence of an express power of delegation may

Answer 5

weigh against the implication if the particular legislative history shows an informed and deliberate choice, suggesting parliament intended.

Question 6

To act through the agency of others what is required?

Answer 6

express or implied statutory power for the formal decision-maker to act through agency of others + proper authorisation given in fact

Question 7

Can Ministers rely on agents?

Answer 7

Yes Ministers are implied to have power to utilise agents (Carltona)

Question 8

The implication for ministers to rely on agents is favoured where

Answer 8

the volume of individual cases requiring exercise of the power make it impractical for the repository to act in all cases (O’Reilly –> was absent in Peko-Wallsend, Nelson Bay)

Question 9

The implication for ministers to rely on agents is less likely to be favoured where

Answer 9

(1) exercise of power likely to adversely affect individuals (O’Reilly; Peko-Wallsend) or
(2) involves a discretion or formation of opinion (Peko-Wallsend; Nelson Bay) and/or
(3) the subject matter of the opinion involves giving effect to a high pulic puporse (Nelson Bay)

Question 10

What’s test for determining whether Parliament intended that the power be exercised personally or does it intend that it be exercisable via agents?

Answer 10

Construe statute, considering (O’Reilly):

1. Nature of the power – eg if to consider broad issues of policy, likely personal
2. Practical necessity – lots of decisions being made? NB particular emphasis placed on this point
3. Adversely affect individuals? There might not be an implied power if the exercise of the power will be likely to affect rights of individuals adversely
4. The breadth of the discretion and the accountability of the agent to the principal

Question 11

If exercise of power is contingent on person holding an opinion (eg subjective jurisdictional fact) can an agent be used?

Answer 11

NO

relevant opinion must be held by specified person (agent holding it is insufficient) (Nelson Bay Claim)

in that case, ATSI land rights – important historical purpose, residential purposes (high level policy considerations eg roads, drainage), no express delegation power

Question 12

Failure to use agent appropriately or shouldn’t have used agent in decision results in

Answer 12

jurisdictional error (MATERIALITY - not ADJR)

Question 13

Facts in Carltona Ltd v Commissioners of Works [1943] (UK Case)

Answer 13

• Challenge to a decision to take possession of a factory during WWII
• Assistant Secretary made the decision to take possession of the particular factory – argued that it wasn’t acceptable that an official made the decision ie, not the Minister

Question 14

Outcome in Facts in Carltona Ltd v Commissioners of Works [1943] (UK Case)

Answer 14

the Minister for works could act through agency of an official when issuing a statutory notice to requisition private land to aid the war effort (during WWII). ==> thousands of requisitions at the time, - no Minister could personally attend to multifarious functions given.

(but contrast this against the more cautious consideration in Peko-Wallsend and Nelson Bay case)

Question 15

Facts in O’Reilly v Commissioners of State Bank of Victoria (1982) (leading case! which restates Carltona as Aus leading authority)

Answer 15

• Notice to the applicant to attend and give evidence in relation to income tax assessments – first step of investigation into financial affairs of a person
• The statutory power: The Commissioner may issue notices requiring individual taxpayers to give information or evidence to tax investigators.
• Delegation: The Commissioner formally delegated this power to Deputy Commissioners.
• Delegates by-passed: The power was in fact exercised by Chief Investigation Officers, acting as agents for Deputy Commissioners.

Question 16

Outcome in O’Reilly v Commissioners of State Bank of Victoria (1982) (leading case! which restates Carltona as Aus leading authority) –>Was the notice to attend and give evidence valid? Was the DM authorised to act through the agent?

Answer 16

Commissioner of Taxatino’s statutory power to require tax payers to give information could be exercised through agency of departmental officials

–> Notice was valid – the power didn’t need to be exercised by the Deputy Commissioner personally – it could be exercised through an authorised officer

• Concluded there was a “practical necessity” for the power to be exercised by authorised agents

Question 17

Facts in Peko-Wallsend

Answer 17

• In the HCA, Minister submitted that he had in fact considered the company’s letter through the agency of departmental officers.
• Minister failed to use most up to date info

Question 18

Outcome in Peko-Wallsend - could agency be implied here?

Answer 18

No

o no administrative necessity
o Importance/consequences: exercise of the power has important consequences for indigenous owners and for others who may suffer detriment.
o Importance of Minister’s function evidenced by preliminary procedures

Question 19

what’s the Carltona principle?

Answer 19

Where the formal decision-maker is a minister, the conventions of responsible government strengthen the case for implying agency

Question 20

Nelson Bay Claim (2014) –> there’s no presumption that the Carltona principle applies, instead there must be

Answer 20

an implication that the identified decision-maker does not need to make the decision

• Exercise of ‘public purpose’ powers requires personal consideration

Question 21

Facts in Nelson Bay Claim (2014)

Answer 21

• NSW Aboriginal Land Council lodged a claim under the Aboriginal Land Rights
• needed subjective jurisidctional fact by Minister to be satisfied that the land wouldn’t be needed for residential purposes
• was no evidence of Minister holding the opinion, presumably was departmental officers holding this

Question 22

Outcome in Nelson Bay Claim (2014) - could the Minister invoke implied agency, so that it would suffice if departmental officers held the opinion when the time was lodged?

Answer 22

The Minister could not rely on implied agency for formation of the opinion.

• The question is whether, given administrative necessity, parliament could not have intended that the Minister personally form the opinion
• considered factors and concluded only Minister could’ve held the opinion

Question 23

Facts in Northern Land Council v Quall [2020] HCA

Answer 23

• Native title Act provided that where there’s NT over land, must be an Agreement for others to use it –> agreement had to be registered and get certificate
• this was signed by Land Council CEO
• issue about whether Land Council could delegate to CEO to sign

Question 24

Outcome in Northern Land Council v Quall [2020] HCA - Was the NLC able to delegate to the CEO the power to sign the certificate in the absence of an express statutory provision saying it could do so?

Answer 24

YES - CEO could

what do you look for to determine whether the presumption that a statutory function is be be performed by the statutory repository of the function does not apply?
• “any contrary indications found in the language, scope or object of the statute”.

Here could assume from legislation that delegation power was within s 27 power to assign responsibilities to members of staff

Question 25

Agent acts

Answer 25

on behalf of another and generally in the other’s name. The agent’s acts are attributable to the other. (Quall)

Question 26

Delegate acts

Answer 26

on their own behalf and generally in their own name (Quall).