Policy

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This article is a topic within the subject Administrative Law.

Contents

Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [11.2.1-7], [11.2.11], [11.2.14C], [11.2.25C],[7.2.5C]; [9.3.18-22];[11.3.1-5C].

Legal status of policy

[1] The interaction of statutory rules and administrative policy depends upon the interpretation of the statute being administered and the nature of the policy under consideration.

“One must take into account the particular statutory function, the nature of the question to be decided, the character of the tribunal and the general drift of the statutory provisions in so far as they bear upon the relationship between the tribunal and the responsible Minister, as well as the nature of the views expressed on behalf of the Government.” (Bread Manufacturers of NSW v Evans)[2]
  • Policy only becomes justiciable when it is applied to the disadvantage of a person who commences proceedings.
  • A policy must not be incompatible with the legislation it elucidates, for example, it must paraphrase the legislation correctly, adequately identify the range of relevant matters, and not extend or confine discretion in a way that would be Wednesbury unreasonable.
  • Policy guidelines enhance consistency, predictability, fairness and democratic legitimacy of administrative decision-making.
  • Some legislation emphasises that it is the duty of the administration to carry out the policy of the elected government.
  • A government policy cannot confine a statutory discretion to the point of preventing a decision-maker from making a decision in favour of a person when such a decision would be authorised by the discretion in the absence of the policy. There must be a real exercise of discretion.
  • Non-fettering rule: a policy cannot strictly confine the exercise of discretion (this would be taking on a legislative role in breach of separation of powers); the decision should be based on the merits of the case.
  • Non-abdication rule: the official who is legally responsible for making the decision should be the one to do so.
  • A decision-maker must always retain an open mind to receiving a submission which urges a change in or departure from policy (British Oxygen).[3]
  • It has been suggested that the obligation to pay close attention to the merits of a case applies more rigorously when the decision has a direct effect on the rights or interests of an individual but in other cases decisions can be more heavily influenced by executive policy.

The ADJR Act offers grounds of review in relation to the application of policy:

  • s 5 (2) (e) an exercise of a personal discretionary power at the direction or behest of another person
  • s 5 (2) (f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case

British Oxygen Co Ltd v Minister of Technology [1971] AC 610.

Facts: Under the Industrial Development Act 1996 (UK), the Board of Trade had adopted a rule that it would not pay a grant in respect of any relevant item costing less than £25. British Oxygen applied for a grant for the cylinders it had purchased, which cost £20 respectively but together over £4 million. The board rejected the company’s application. The House of Lords dismissed an argument that the Board had erred in applying its rule to the company’s application.
Held: A policy must not be exercised in bad faith or so unreasonably that there is no real exercise of discretion but, apart from that, if the Minister thinks that good administration requires the operation of some limiting rule there is nothing to stop him or her.
  • “An authority ought to listen to a substantial argument reasonably presented urging a change of policy.”

Nikac v Minister for Immigration, Local Government and Ethnic Affairs[4]

Facts: The Minister had a statutory power to deport a non-citizen convicted of an offence punishable by more than one year but the AAT recommended against deportation in these cases and his Criminal Deportation Policy stated that a recommendation of the Tribunal should only be overturned by the minister in ‘exceptional circumstances’ and only where strong evidence could be produced to justify the decision. The minister’s decision to deport was challenged on the ground that the minister had misinterpreted the policy insofar as no exceptional circumstances existed and one appellant argued that the minister had had no regard to a transitional policy which had applied three year previously (at the time when the offence was committed by the appellant).
Issue: Discretion to depart from a policy.
Held: The minister had the power to depart from policy so long as no reviewable error occurred as a result. The minister is “free to depart from that policy as he sees fit...” but “even if non-statutory rules such as policies do not have a binding effect, the failure of a decision to have regard to them or his failure to interpret them correctly may amount to an error of law justifying an order of judicial review.”
  • Although there were no exceptional circumstances, there was still plausible justification and therefore the decision was not invalid for unreasonableness.
  • The court drew the inference that the transitional policy had been overlooked and this failure to have regard to the policy vitiated the minister’s decision.

Green v Daniels[5]

Facts: Ms Green lodged an application for a Centrelink unemployment allowance and although she satisfied the statutory requirements for the payments, she was prevented from obtaining the benefit because of a policy which prevented school leavers from obtaining it until after school recommenced the next year.
Issue: Judicial review of executive policy.
Held: Miss Green satisfied all of the requirements in the act, therefore the policy was beyond the power conferred by the Act (ultra vires). It was an attempt to substitute departmental criteria for the criteria that parliament had enacted. It was arbitrary because it was based upon a purely temporal concept and not upon the merits of the case.

Ministerial directions

[6]As a general rule, a minister cannot dictate to a subordinate official the decision to be reached in a particular case. Nor can an official reach a decision by automatically or inflexibly applying a policy or direction from a minister, unless the statute makes it compulsory to comply with the direction.

  1. There will first be an issue of fact, as to whether it can be proved by evidence that the decision-maker reached an independent decision or acted at the behest of a minister.
  2. Next there is an issue of law, concerning the relationship between the minister and subordinate officials (an issue on which there are sharply differing views expressed by judges).

R v Anderson; Ex parte Ipec-Air Pty Ltd[7]

Facts: Ipec-Air applied for a writ of mandamus addressed to the Director-General of Civil Aviation, directing him to grant their import application or to reconsider it and determine it according to law (rather than according to executive policy).
Issue: (Issue of fact) acting at the behest of the minister.
Held: There were no express considerations in the statute which should have been considered by the Director-General.
  • “...a discretion allowed by a statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself...”
  • The majority disagreed with the view taken by Kitto J that the refusal to grant permission was in truth the decision of the government rather than the Director-General.

Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [8]

Facts: The court commented in obiter on the same issue arising in Ipec-Air; whether the Secretary could act in accordance with government policy or a direction from the government in deciding whether to grant permission for importation.
Issue: Issue of fact – acting at the behest of the minister.
Held: It would not be wrong for the Secretary to give weight, even conclusive weight, to government policy when exercising discretion. The Secretary is not entitled to abdicate responsibility for making a decision by relying on a direction from the minister or to fail to decide the case for himself.

Bread Manufacturers of NSW v Evans[9]

Facts: The Prices Commission had a statutory power to make an order setting the maximum price at which a product could be sold. The minister had the power to veto its decision. The NSW Court of Appeal held that Prices Regulation Order No 798 was invalid because in making the order the commission had not come to its own independent decision but had acted under the influence or at the direction of the minister. The High Court held that the evidence as to the consultation between the minister and the commission did not support the conclusion reached by the Court of Appeal.
Issue: Issue of fact – acting at the behest of the minister.
Held: An authority, in the purported exercise of discretion, must not act under the dictation of some other person. It does not follow that that was impermissible for the commission to consider the minister’s views. It is ridiculous to suppose that parliament intended that the only avenue through which the minister could express a view on the matter was through the use of the veto.
  • “One must take into account the particular statutory function, the nature of the question to be decided, the character of the tribunal and the general drift of the statutory provisions in so far as they bear upon the relationship between the tribunal and the responsible Minister, as well as the nature of the views expressed on behalf of the Government.”

End

This is the end of this topic. Click here to go back to the main subject page for Administrative Law.

References

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

  1. Textbook, pp 676-8.
  2. (1981) 180 CLR 404.
  3. British Oxygen Co Ltd v Minister of Technology [1971] AC 610.
  4. (1988) 20 FCR 65.
  5. (1977) 13 ALR 1.
  6. Textbook, pp 696-703.
  7. (1965) 113 CLR 177.
  8. (1977) 139 CLR 54.
  9. (1981) 180 CLR 404.
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