Week 5 - Grounds of Review/Procedures/Delegation/Relevancy

Question 1

What is an express ground of review under s5(1)(B) of the ADJR Act (equivalent to s 20(2)(b) of the JR Act (Qld)?

Answer 1

That procedures that were required by law to be observed in connection with the making of the decision were not observed

Question 2

What is procedures required by law not observed?

Answer 2

A statute might impose procedural or substantive requirements on the decision maker

Not all statutory procedural requirements are essential

question of interpretation to determine whether the staturoy scheme is such that the procedural requirement is essential and or not

Question 3

Procedures required by law observed

Answer 3

A decision may be invalid by non-observance of procedures required to be followed in reaching the decision

Question 4

What did the high court say in Project Blue Sky?

Answer 4

‘mandatory’ v ‘directory’ labels not determinative (‘must’/’may’)

The correct approach is to ask: ‘Was it a purpose of the legislation that an act done in breach of the relevant procedural provision should render the decision invalid?’
 Look to the subject matter, scope and purpose of the Act

Question 5

Decision not authorised by the enactment

Answer 5

This is an express ground of review

(d) that the decision was not authorised by the enactment under which it was purported to be made

public bodies must have legal authority for their actions

Question 6

“Not authorised” consider:

Answer 6

Any relevant express limits on the statutory power?
What does the statute say? – examine the language, scope and purpose of the Act
Do statutory rules of stat interp in the Acts Interpretation Act?