Chapter 2(b): Judicial Review (Discretionary Power) Flashcards
From where do public bodies derive their administrative authority?
Generally, statutes confer public bodies and administrative bodies a broad discretion to exercise their administrative authority.
How do you identify the discretionary nature of an administrative authority’s power?
- When the statute outright stipulates that such power is discretionary; or
- The statute uses certain expressions like: necessary,* reasonable*, if it is satisfied, if it is of the opinion, as it thinks fit etc
Why are public bodies given discretionary powers?
- Because public bodies possess experience and specialisation in a particular area.
- This experience and specialisation help public bodies in making decisions in their area of expertise.
- However, power or duties that involve the exercise of discretion cannot be delegated.
What is judicial review of administrativeactions?
The process where the court reviews the public bodies’ actions in terms of the decisions made by them when they exercise their powers, review the constitutionality of a statute or the Constitution itself.
What happens if the Court finds and agrees that the administrator has followed the law in making the decision?
The administrator’s decision is upheld.
What happens if the Court finds and disagrees that the administrator has followed the law in making the decision?
The Court will grant a remedy for the complainant against the public authority.
Which court has the authority to undertake judicial review?
The High Court.
Where does the High Court derive its authority to perform judicial review?
- S25(1), Courts of Judicature Act 1964;
- Read together with** s25(2)**, Courts of Judicature Act 1964, and
- Para 1 to the Schedule, Courts of Judicature Act 1964.
Where did Supreme Court recognise that the supervisory powers conferred on the High Court by s 25 of the Court of Judicature Act 1964 read with para 1 of the Sch are wide and all embracing?
Kumpulan Perangsang Selangor Bhd v Zaid bin Haji Mohd Noh [1997] 1 MLJ 789
What was the Federal Court’s decision in Majlis Perbandaran Pulau Pinang v Syarikat Bersama-sama Serbaguna Sungai Gelugor [1999] 3 MLJ 1?
In our view, therefore, unless there are special circumstances governing a particular case, notwithstanding a privative clause, of the ‘not to be challenged, etc’ kind,** judicial review will lie to impeach all errors of law made by an administrative body or tribunal** and, we would add, inferior courts. In the words of Lord Denning in Pearlman v Harrow School at p 70, ‘… no court or tribunal has any jurisdiction to make an error of law on which the decision in the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it.’
What did Lord Diplock say in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374?
By illegality … I mean that the** decision-maker must understand correctly the law that regulates his decision-making power and give effect to it** … by ‘irrationality’ I mean what can now be succinctly referred to a ‘Wednesbury unreasonableness’ … It applies to decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it … I have described the third head as ‘procedural impropriety’ rather than the failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.
What is the fundamental doctrine of administrative law?
The doctrine of ultra vires.
What is the doctrine of ultra vires?
- This doctrine emphasises that the powers of the administrative or statutory agencies or bodies are conferred and limited by law.
- Any exercise of power beyond that restriction or limits render it ultra vires.
What happens when a decision or action is rendered ultra vires?
The decision is null and void.
What are the two types of ultra vires?
- Substantive ultra vires: what the power authorises to be done - the part of the law that creates, defines, and regulates certain rights;
- Procedural ultra vires: How the power is exercised - whether the procedure or its requirements were fulfilled.
What is a delegate cannot delegate in Latin?
Delegatus non potest delegare.
What is delegatus non potest delegare?
- A delegate cannot himself further delegate that power.
- When a power has been confided to a pwerson, he must exercise the power personally unless he has been expressedly empowered to delegate it to another, for instance, through certain statutory provisions.
What is the exception to delegatus non potest delegare?
Where for a public authority and administrators to perform with dispatch and commendably the delegation of powers to the relevant experts in the right field may be necessary as such occasion demands.
What is Ministerial Power?
Ministerial power is where the law prescribes the duty to be performed on somewhat definite and specific terms, leaves no freedom of action to the authority concerned and leaves nothing to its discretion or judgment.
What is an example of ministerial power?
Payment necessary for renewal of driving licence
What are the grounds for review on the exercise of discretionary power?
- Substantive ultra vires;
- Procedural ultra vires - Rules of natural justice;
- Extended ultra vires - Abuse of power, failure to exercise discretionary power;
- Extended ultra vires (CCSU) - Illegality, irrationality, procedural impropriety.
What is CCSU?
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
What triggers substantive ultra vires?
- When the authority exceeds the power conferred by the statute in exercising their discretion;
- When it did not confine itself within the ambit and scope of and not exceed the powers given by law.
- When it steps out of the limits set by the controlling statute, then its act is ultra vires and invalid.
What is procedural ultra vires?
Procedural ultra vires on the part of the decision-maker when exercising their discretion happens when it fails:
* To observe procedural rules that are expressly laid down in the legislation by which its jurisdiction is conferred; or
* To observe basic rules of natural justice; or
* To act with procedural fairness, then
These are considered as procedural impropriety and it is a ground for judicial review. One of the main one is known as the Rules of Natural Justice.
