Book contents
- Frontmatter
- Contents
- Foreword
- Preface
- About the contributors
- Table of cases
- Table of statutes
- 1 Australian administrative law: The constitutional and legal matrix
- 2 Administrative law in Australia: Themes and values
- 3 The public/private distinction in Australian administrative law
- 4 Australian administrative law: The human rights dimension
- 5 Administrative tribunals
- 6 Australian Ombudsman: A continual work in progress
- 7 Freedom of information
- 8 Delegated legislation
- 9 The concept of ‘justiciability’ in administrative law
- 10 Standing
- 11 Reasons for administrative decisions: Legal framework and reform
- 12 Relevant and irrelevant considerations
- 13 Improper purpose
- 14 Reasonableness, rationality and proportionality
- 15 The ‘no evidence’ rule
- 16 Failure to exercise discretion or perform duties
- 17 Procedural fairness: The hearing rule
- 18 The doctrine of substantive unfairness and the review of substantive legitimate expectations
- 19 The impact and significance of Teoh and Lam
- 20 The rule against bias
- 21 Jurisdictional error without the tears
- 22 Privative clauses and the limits of the law
- 23 Administrative law judicial remedies
- Endnotes
- Index
12 - Relevant and irrelevant considerations
Published online by Cambridge University Press: 05 June 2012
- Frontmatter
- Contents
- Foreword
- Preface
- About the contributors
- Table of cases
- Table of statutes
- 1 Australian administrative law: The constitutional and legal matrix
- 2 Administrative law in Australia: Themes and values
- 3 The public/private distinction in Australian administrative law
- 4 Australian administrative law: The human rights dimension
- 5 Administrative tribunals
- 6 Australian Ombudsman: A continual work in progress
- 7 Freedom of information
- 8 Delegated legislation
- 9 The concept of ‘justiciability’ in administrative law
- 10 Standing
- 11 Reasons for administrative decisions: Legal framework and reform
- 12 Relevant and irrelevant considerations
- 13 Improper purpose
- 14 Reasonableness, rationality and proportionality
- 15 The ‘no evidence’ rule
- 16 Failure to exercise discretion or perform duties
- 17 Procedural fairness: The hearing rule
- 18 The doctrine of substantive unfairness and the review of substantive legitimate expectations
- 19 The impact and significance of Teoh and Lam
- 20 The rule against bias
- 21 Jurisdictional error without the tears
- 22 Privative clauses and the limits of the law
- 23 Administrative law judicial remedies
- Endnotes
- Index
Summary
If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters.
Failure to comply with Lord Greene's well-worn directive may render a decision ultra vires for failure to take into account a relevant consideration. Conversely, if there are matters to which a decision maker clearly should not have regard, a decision may be ultra vires for taking into account an irrelevant consideration, if such factors are indeed taken into account.
This ground, or perhaps more accurately grounds, of judicial review are enshrined in both common law and statute. The Commonwealth Administrative Decisions (Judicial Review) Act 1977 states in s5(2) that an improper exercise of discretion includes (a) taking an irrelevant consideration into account in the exercise of power and (b) failing to take a relevant consideration into account in the exercise of power. Their history, however, has not been spectacular. From the Wednesbury case through to foundational Australian cases such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd and Sean Investments Pty Ltd v MacKellar, courts have presented the task of judicial review of an administrative decision on the considerations ground as a simple and straightforward exercise in statutory interpretation. Parliament confers discretionary power on a decision maker, the limits of which can be simply ascertained from a reading of the relevant legislation.
- Type
- Chapter
- Information
- Australian Administrative LawFundamentals, Principles and Doctrines, pp. 185 - 197Publisher: Cambridge University PressPrint publication year: 2007