Illegality Flashcards
What are the sub-categories of illegality?
Ultra vires
Error of law
Error of fact
Relevant or irrelevant considerations
Improper purpose
Fettering discretion
Unlawful delegation
What does ultra vires mean for judicial review?
Decision goes beyond power given
When might a decision not be considered ultra vires?
reasonably incidental to power
What are the exceptions to the reviewability of errors of law?
- Error of law is not decisive to decision
- Decision maker is interpreting special system of rules
- Power is imprecise and capable of being interpreted in many ways
What are the types of errors of fact which are susceptible to judicial review?
- Precedent facts
- No evidence for a fact
- Mistaken fact causing unfairness
What are precedent facts?
power to decide depends on initial finding of fact
What are the requirements for a mistaken fact to be susceptible to judicial review?
o Mistake as to existing fact
o Fact is established
o Appellant not responsible for mistake
o Mistake played a material part in decision maker’s reasoning
Who decides which factors are relevant considerations?
Court
What is an example of fettering discretion?
Deciding not to exercise power at all
What type of policies will the court consider fettering discretion?
Rigid or blanket policies
What are the exceptions to unlawful delegation?
- statute allows delegation
- carltona principle
What is the Carltona principle?
where discretion conferred on government minister, presumption that they are allowed to delegate to officials in department (minister remains politically accountable)
- should be someone of appropriate seniority
