Controlling the Executive

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This article is a topic within the subject Administrative Law.

Contents

Required Reading

The summaries in this based are based on content from R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2009 .

The Principle of Legality

[1] The principle of legality means that all government action requires an identifiable source of legal authority. Consequently, if a government agency exceeds its legal authority, it is acting ultra vires (beyond its power).

  • The principle of legality is easily reflected in the Australian system since the parliament is created by the constitution, which is the "supreme law" and gives it all its power.
  • This underlies principle of legality since parliament needs legal authority for acting - this authority is sourced from: The Constitution, Statute, the Common Law, or executive power.

Unauthorised Decision Making

[2] Government action or decision making can be called into review (for acting ultra vires) if it satisfies any of the following criteria (detailed in s 5 (1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)):

  • (a): The procedures required to be observed were not observed;
  • (b): The person did not have jurisdiction to make the decision;
  • (c): The decision was not authorised by the legislation, given its intent (or given a correct interpretation)
    • Note: This is the main ground of breach.
    • Examples on p. 390.
  • (d): The decision involved an error of law, whether or not the error appears on the record of the decision.

Forms of Government Bodies

[3] It must be kept in mind when applying the principle of legality that there are 3 forms of government bodies:

  1. Executive Agencies - established by executive power, eg, a government department, board, council, committees.
    • Derives legal authority from legislation, or from executive power (see below).
  2. Statutory Agencies (also called statutory authorities and statutory corporations) - established by statute and thus can only exercise those powers conferred by statute,[4] but given statutory construction principles, they can also preform action incidental to the powers or functions conferred upon it
  3. Government Corporation - established in accordance with the Corporations Act 2001 (Cth). They have the same legal capacities of a natural person and thus are not subject to the ultra vires doctrine applying to statutory agencies.[5]

Foundation Cases

The principle of legality was first established in the landmark case Entick v Carrington:[6]

  • Facts: relying on a warrant from the Secretary of State, the King's messengers broke into the plaintiff's house to retrieve documents. The plaintiff sued for trespass.
  • Held: Government action will be unlawful unless there is legal authority to support the action. There was no positive law (in statute or common law) which conferred upon the Secretary of State the power to issue such warrants. The acts are not justifiable by long standing practice, acquiescence, the ends of government, or the enforcement of the criminal law - there was no legal authority which meant they were ultra vires.

The principle was restated in the Australian case A v Hayden:[7]

  • Facts: the plaintiffs were secret intelligence service agents who committed criminal offences in the course of field training. When the state government asked the Commonwealth to disclose their identities, the plaintiffs argued that they should be protected by confidentiality (expressed in their employment contracts) and that their actions were protected by ministerial approval etc.
  • Held: the executive government did not have the power to confer such immunities from criminal law.
    • Governments, even in the pursuit of national security objectives, do not inherently possess the power to authorise officials to act in defiance of the criminal law (ie, immunity from prosecution, etc).
    • The executive government and its servants must still abide by the laws, and no agency of the executive is beyond the rule of law - that is the cornerstone of parliamentary democracy.

Another illustration is given in Church of Scientology v Woodward:


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And Momcilovic v The Queen:


  • Facts: Momcilovic was convicted for trafficking drugs on the basis that there were drugs in her apartment. The Act specified that the onus of proof is reversed in cases of drug possession – if drugs are found in a house, that person has the onus of proof to prove that the drugs were not in their possession. Momcilovic argued that it is an abrogation of her human right and is ultra vires


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Presumption

Another key element of the principle of legality is the presumption that parliament does not intend to override fundamental common law rights and freedoms except when it does so by clear and unequivocal language.

Executive Power

[8] However, a government traditionally has a range of ordinary powers which, so long as they are non-coercive and facilitatory in nature, it can exercise without statutory or legal backing. These are called executive powers.[9]

  • So, the ADJR Act grounds do not apply to government action that relies on the executive power of government; it only applies to those relying on statutory authority.
  • It can thus be seen as a sort of exception to the principle of legality. However, it's not really a true exception because the exercise of executive power as a whole is conferred by s 61 of the Constitution (thus giving it a legislative authority after all).
  • Other names for the executive power include prerogative power, inherent power, Common Law power, power of an ordinary person.

Executive power is used to establish govt agencies, which may later be given a statutory footing (ASIO, CSIRO, Legal Aid).

Executive power was discussed in Clough v Leahy:[10]

  • Facts: the question was whether the executive government could establish a commission of inquiry.
  • Held: the government is a legal person with the power of any natural person. Individuals can do any act that is not explicitly prohibited (so long as it doesn't interfere with the liberties of others). An inquiry, so long as it doesn't publish defamatory content, can be made by any person, and therefore can be made by the government (just can't enforce answering etc).

Clough thus reveals 3 main constraints on executive power:

  1. It can be overridden by statute and cannot act inconsistently with it.
  2. It cannot justify an unlawful act at common law.
  3. It will not authorise government action that is coercive, punitive, intrusive or threatening.
    • Eg, deportation, detention, arrest, compulsory direction to produce docs
    • Exceptions: the prerogative/executive power to declare war,[11], and sometimes, executive power can be used coercively to safeguard Australia’s sovereignty (as it was used in theTampa Case).

Executive power was also discussed in Pape v Commissioner of Taxation:[12]

  • Facts: when the GFC was coming, the Rudd government decided to give out stimulus packages where everyone would get a cheque of some value. Before this happened, Pape brought action in the High Court alleging that the supporting legislation was invalid – issues with tax laws and interferences with state power.
  • Held: the executive power of the government has to be capable of serving the proper purposes of a national government - the government must have the power to do certain things. This comes under those powers.
    • Note: this is a vague and very open description of executive powers, which might be problematic. Executive power must be limited.

Polycentricity

[13] Polycentric is a term used to refer to an issue which non-judiciable (cannot be settled in court) because it contains such a large number of complex intertwined issues that the question cannot be simply resolved by applying some kind of general rule - it is a political/policy question which requires a consideration of different aspects.

This was discussed by Fuller:[14]

  • Polycentric tasks are unsuited to adjudication as the impact on the individual may be intertwined with other dimensions of the decision, and a focus on the individual can distort the coherency of the overall decision.
  • Not all parties affected by a decision can or will be represented in a court – another factor that will mean the courts can form only a partial view of the situation.
  • Better to be made by Parliament, where at least theoretically, everyone’s rights are represented.
  • There are polycentric elements to almost all decisions – it is really a matter of degree.
    • It is wise to consider when those elements have become so significant to test the limits of proper adjudication.

Discretion

[15] Discretion exists 'where there is power to make choices between courses of action or where, even though the end is specified, a choice exists as to how that end should be reached,[16] or, where decisions are made in the absence of previously fixed, relatively clear and binding legal standards. Discretion plays a massive part in administrative law, and its review is often the subject of administrative cases.

  • Discretion is usually conferred when words such as 'may', 'provided that it is reasonable', 'as he thinks fit' etc are used, where the facts are in dispute, or when a policy is vaguely expressed.
  • We have discretion because there are issues without a clear-cut answer or solution, or at least without a single answer across all fact scenarios. It is a crucial element of government decision making.

Galligan remarked that discretion is on the rise:[17]

  • Discretion has increased with increased regulation and increased government involvement in public life, especially given delegation has been a necessary activity in this context.

Discretion is also a source of unease to some. Although well-accepted nowadays, can contravene Dicey’s notion of the ‘rule of law’ which expressly opposes arbitrary use of power.

  • Hayek: Discretion is also at odds with the principle that the government is bound by fixed rules that are known before the fact, so that citizens have the knowledge of the law and can act with certainty beforehand.
  • Can lead to inconsistency in decisions.
  • Also lack of accountability, as don’t know the reasons behind decisions.
  • Offends democratic conscience – unelected people have power to make rulings.

However, there are ways of controlling discretion. Note that these broad discretions are often limited by policy. Davis sets out the principle ways of controlling discretion:

  1. Structuring: Setting a path to follow via policies and manuals.
  2. Checking: Judicial review and administrative review.
  3. Confining: Fixing boundaries and keeping discretion within them.

Galligan further notes that most administrators have an innate sense of administrative propriety – an intrinsic control not to be overlooked.

Policy

[18] Administrators use administrative rules and policies that supplement the legislative text in order to address day-to-day problems. However, there is a clash with legal values which look principally to the legislative framework to seek rules and answers.

  • Executive policy is defined as a non-statutory rule/goal devised by the administration to provide decision making guidance, particularly in administering legislation.
  • Policy structures the exercise of discretion to promote consistency.. Policy can only add detail to legislation; it cannot be inconsistent with it.
  • It is a firmly established principle that a government decision-maker can adopt a policy to provide guidance in the exercise of a statutory discretion.
  • Policies have been distinguished from directions, which are a more specific from of policy statement which set parameters for decision-making.[19]
  • The way in which policies and directions interact with a statute will vary – sometimes they foreshadow what decision should be made, sometimes they provide a structure for decision-making, sometimes they contain guarantees
  • Policy overlaps with legislative instruments (regulations, ministerial directions etc) and soft law (ensure effective regulation eg. outlines procedures {guidelines, protocols} for lodging applications). FOI legislation is also relevant to policy, by requiring policies used in decision making to be publicly notified.

Policy was discussed in Green v Daniels:

  • Facts: Green was a 16yr old school leaver, wanted to get the dole before the summer holidays. She was eligible to receive it under the Social Security Act. However, Green was told that she could not obtain it because of the policy that school leaver could not get it until January of the year after leaving school.
  • Held: the policy was inconsistent with the legislation, as she satisfied the legislation, but not the policy. Also, the policy had been applied inflexibly, without any regard to Green’s personal circumstances, rather than on a case-by-case basis.
    • Policy cannot confine/fetter discretion to such an extent that the merits of the individual case will not be taken into account.
      • Policy is merely Meant to provide guidance.m

Discretion versus policy:

[20] Legal and governmental approaches to decision-making clash:

  • Lawyers are steeped in concepts like Separation of powers, rule of law etc and look to legislative framework while administrators confront the fact that legislative skeleton does not provide answers to myriad of problem that arise in a normal week
  • Lawyers facilitate individual justice through discretion Vwhile administrators urge the need for certainty and consistency achieved through admin rules and policies
  • There is a tension between executive officers (who rely heavily on policy as articulated by Ministers) and lawyers (who rely closely on the legislation).
  • Mason & Wilcox (both judges): Argue that administrative law has achieved a great deal in scrutinising the impact of policy on individual citizens. I.E. They don’t pay enough regard to the circumstance of the applicant.
  • Curtis & Woodward (both senior administrators): Criticise the courts and administrative tribunals for failing to pay proper regard to gov’t policy, and for usurping the role of gov’t. Argue that policy is necessary to avoid arbitrariness and to fill in the gaps of legislation.

Sir Mason: That 20th Century Growth Industry, Judicial or Tribunal Review

[21] A gulf exists between the administrative and judicial processes.

  • The Judicial: Is preoccupied with the operation and preservation of policy, paying subsidiary attention to the ascertainment of facts and to the impact of policy on the interests of particular individuals. Justice to the individual is the primary consideration.
  • The Administrative: Has its emphasis on the ascertainment of facts and how the individual is affected by rule and policy.
  • Administrators are more fearful that a particular decision or ruling will establish a precedent of general application. They therefore tend to be more concerned with the possible consequences of the decision than with its justness or rightness in light of its facts.
  • On the other hand, lawyers are often persuaded that the decision can be confined to its own facts or to a narrow category of cases.

Justice Wilcox: Judicial Review and Public Policy

[22] Policy should be subject to judicial review – to prevent tyranny from the administrators. Ministers are theoretically accountable to Parliament but, in practice, there is accountability only in extreme cases.

  • This is in part because many policy decisions are made otherwise than by ministers - such as by bureaucrats, local governments, and statutory bodies.
  • During recent years, there has been an increasing disposition for courts exercising powers of judicial review to consider the substance, and not merely the procedural aspects, of administrative decisions.
  • In practice it would be very difficult for the courts to isolate and to ignore policy elements whilst otherwise examining decisions for substantive unfairness or unreasonableness.

Curtis: Crossing the Frontier Between Law and Administration

[23] The problem lies in the failure of lawyers trained in the common law to appreciate the role that policy directions and guidelines play in day-day administrative decision-making.

  • The government expects to be able to give effect to its policies through the enactment of legislation and through decisions made in the course of its administration. It is therefore important for administrators to make decision in accordance with the policy objectives of the legislation - otherwise the intentions of the government will fail.

Woodward: Does administrative law expect too much of the administration?

[24] Most those involved in admin law appeals at senior levels come from private legal practice. These lawyers operate from a mindset of focusing too much on the individual – as a client to represent – rather than considering the wider policy/ the larger picture with which the administrator has to contend.


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End

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References

Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. Textbook, 389-91.
  2. Textbook, p.390
  3. Textbook, 391-2.
  4. MacLeod v ASIC (2002) 211 CLR 287.
  5. Corporations Act 2001 (Cth), s 124.
  6. (1765) 19 St Tr 1030.
  7. (1984) 156 CLR 532.
  8. Textbook, p. 400-3.
  9. MacDonald v Hamence (1984) 1 FCR 45 at 50.
  10. (1904) 2 CLR 139.
  11. Burmah Oil Co v Lord Advocate.
  12. (2009) 238 CLR 1.
  13. Textbook, p. 365-7
  14. Fuller, 'The Forms and Limits of Adjudication' (1978) 92 Harvard Law Review 353.
  15. Textbook, p. 367-71.
  16. Craig, Administrative Law, Sweet & Maxwell, London).
  17. Galligan, Discretionary Powers: A Legal Study of Official Discretion, Clarendon Press, 1986
  18. Textbook, p. 669
  19. See Textbook, p 801.
  20. Textbook, p. 803
  21. Textbook, p. 803
  22. Textbook, p. 804
  23. Textbook, p. 805
  24. Textbook, p. 806
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