Delegation and Discretion

Question 1

Why is there a need for delegation and discretion

Answer 1

The government has so many jobs to do, its unreasonable to assume that the legislature and parliament can carry that all out themselves
Therefore there has to be some sort of discretion in delegated power
The government need to be able to evolve to the changing circumstances of cases and ndividuals- the legislature is slow at change so the delegating power to the executive allows for more efficiency

Question 2

State the cases that underline delegation and discretion

Answer 2

Reference re sucession
Roncarelli v Duplessi

Question 3

Reference re secession

Answer 3

There are 4 unwritten con pricniples
1. Federalism
2. Democracy
3. RoL
Discretion matters cuz everyone is equally bound by the law
Therefore there cant be unlimited powers of discretion, there has to be some limits
4 Respect for minorities

Question 4

Roncarelli v Duplessi

Answer 4

It was against the RoL to deny a restaurant license based on someones religion
No such thing as absolute and untramelled discretion
There can be absolute discretion if the leg explicitly allows foe it but thats still subject to the consitution.
Theres no inherent arbitrary power
Exceptions are fraud and corruption

When making a deicsion must be fair and impartial especially when revoking a licese for soemthingb that is legal
Must allign witht he purposes of the statute
Have to exercise discretion in accordance to relevant cconsiderations

Question 5

Examples of discretionary powers

Answer 5

Thrugh bylaws, minisetries have a lot of discretion to interpret tarrifs and royalties trough broad look at terms ad conditions

Question 6

Constraints on Discretionary powers

Answer 6

1. Legislation
   Must look at statute that binds this power
   Can only exercise power that was designated to tem
   MUST LOOK IN FUL CONTEXT OF PURPOSES
2. Bad faith/arbitrariness” Cant make a decision based on improper purposes
3. Charter rights
4. Unwritten consituional principles
5. Consider relevant factoes/ do not consider irrelevant factors

Question 7

Reasonablenss review

Answer 7

The legislator in designating that power intended for it to be exercised reasonably
Therefore have to look at it objectively; qwas it reasonable
Not whether or not u like the policy
Do not question legislators decision to assign authority eeither

Question 8

Substantie review

Answer 8

Look at governing statute and what it has authorised the dm to do
Discretion can only be exercised within the limits of the statutory power and any regulations
Otherwise ultra vires

Question 9

Review of discretionary decisions

Answer 9

Any discetion must be in line with the purposes of rhe statutory scheme.
Admin body may have a lot of discretion power, but must allign with rationale of scheme.

Question 10

Which limits to they follow

Answer 10

Definitions
Formlas of discretionary power

Question 11

Unreasonable exercises of discretion

Answer 11

1. Whether they considered relevant factors as provided through statute- usually in regulations
2. Whether they considered an irrelevant factor that was nt authotised, ultra vires
3. Reasonabless
   Inherent coherent and rationale chain of analysis
   Justified in relation to fatual and legal contraints
4. Arbitrariness
5. Fettering/subdelegation

Question 12

Whats fettering of discretion

Answer 12

Very rare
Based on fundamental principle thay when deleagted power, decicion maker should exercise that power themselves

Fettering is binding themselves to a policy or guideline,ie. a manual book

Question 13

State cases

Answer 13

Maple lodge farms
Stemojn investments

Question 14

Maple lodge farms

Answer 14

Shoud not adapt mandoatory policies to limit the exercise of discretion
Should be easily able to adapt to circumsances

Question 15

Stemojn investments

Answer 15

Any decision with feterring is undreasonabke
Cant limit their discretion by binding themsekves to a policy and failing to consider other relevant factors

Question 16

Whats sub delegation

Answer 16

When legislaltir delegates power to something or someone and they hand that power to someone else

Question 17

Is sub delegation allowed
State cases

Answer 17

Generally no, unless authroised by statute explicitly or implicitly
Even if yes, there must be some supervisory role in place

VIm resturants

Weber artic

Question 18

Vic restaurnts

Answer 18

Gave authorit for police to reject or accept permit
Without superising, therefore this is illegal and ultra vires

Question 19

Weber

Answer 19

The same thing needed a recommendation from a travel agent, also no supervisory role, which made it ultra vires.