Relevant and irrelevant considerations

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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, [9.3.1-13], [9.3.15C-16C], [9.3.23-26]; [9.4.1-9], [9.4.11C], [9.4.14C], [9.4.21-22C]; [14.1.1-2], [7.2.3C].

Study Guide page 70: Extract from Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611.

Considering irrelevant matters

[1] A decision may be invalid (where an irrelevant consideration has been taken into account by a decision-maker. This common law principle is also a ground of review in the ADJR Act s 5 (2) (a). Two issues commonly arise in applying this criterion:

  1. What matters were taken into account by a decision-maker? This is primarily an issue of fact, to be answered by analysis of evidence.
  2. Were any of the matters that were taken into account an irrelevant consideration? This is commonly an issue of law, resolved by construction of the statute that confers a power.
    • A criteria of relevance may also be found outside a statute, by reference to other aspects of the legal framework within which decision-making occurs.

The criteria of relevance

[2] A court will be cautious in deciding that an issue that was taken into account was irrelevant. In the simplest scenario, the legislation will exhaustively list the considerations or factors that can be taken into account. However, more often it will be necessary to draw inferences from other features of the legislation, including:

  • Language of the statute
  • Purpose or object
  • The subject matter of the statute
  • The nature of the power being exercised
  • The nature of the office held by the decision-maker

The scope of relevant considerations can be read expansively (Murphyores Inc Pty Ltd)[3] or restrictively (Roberts).[4] In some situations, the statute may give little guidance because the discretions it confers are unconfined or open-textured or embody expansive notions like “public interest.”

The principal focus will always be the words of the statute but other legal assumptions may be taken into account by the court, such as:

  • A general legal presumption that legislation can never be administered to advance the personal interests of the decision-maker
  • International conventions
  • Humanitarian considerations
  • Racial and sexual bias would be an irrelevant consideration as a result of anti-discrimination legislation
  • Serious factual errors may be equated with irrelevant considerations

The matters that were considered

[5] A conclusion that a particular matter was considered can often be drawn from such evidence as:

  • A statement of reasons
  • Contemporaneous administrative decisions
  • Reliance by the decision maker upon an irrelevant policy statement
  • The adoption by a minister of a briefing paper that misstates that law to be applied.

Burchett J makes it clear that a decision-maker may examine an irrelevant consideration or “red herring” and discard it “so long as he does not allow it to affect his decision”.[6] A court may also look behind a statement by a decision-maker disavowing that an irrelevant matter was considered. Unless the consideration was insignificant, an irrelevant consideration will vitiate a decision.

Water Conservation and Irrigation Commission (NSW) v Browning[7]

Facts: the Irrigation Commission had the power to grant transferral of irrigation leases. The Commission refused a transfer of a lease to the appellant on the core ground that he was Italian and they had a policy against giving leases to Italians (because they were an enemy of the country (WWII time)). The Supreme Court of NSW invalidated the decision on the basis of irrelevant considerations, saying that the only relevant consideration is whether the transferee is a good/desirable farmer.
Issue: Which considerations are irrelevant?
Held: the commission had found from experience “as a general rule, Italians are not good farmers under irrigation methods” and considered it to be “most undesirable that any further aggregation of Italians be built up on an irrigation area.”
  • This means that the commission in fact refused the transfer according to the right criterion - ie, because the appellant was an undesirable farmer.
  • Provided the assessment was made in good faith, it is not for the court to examine the justness of that assessment - assessing capable farmers is the job of the commission and not the court.
  • The statute did not expressly state the considerations that should be taken into account and the discretion it conferred was undefined (but this does not mean it was arbitrary or unlimited).
  • Note: the case would definitely be decided differently today.

Undefined discretion

The principle as to the proper construction of an undefined statutory discretion espoused by Dixon J in Browning has been consistently approved by the High Court and was restated in O’Sullivan:[8]

“Where a power to decide is conferred by a statute, a general discretion, confined only by the scope and purposes of the legislation, will ordinarily be implied if the context (including the subject-matter to be decided) provides no positive indication of the considerations by reference to which a decision is to be made.”

Public interest

The court in O’Sullivan went on to caution against applying the maxim expression unius est exclusion alterius (the express mention of one thing implies the exclusion of an alternative thing) so as to limit the scope of a statutory discretion.

  • Specifically, the court held that public interest considerations could ordinarily be taken into account unless there was a positive indication that they were excluded.
  • The same approach was taken in R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd,[9] where the issue was whether the Broadcasting Tribunal could refuse consent to the transfer of a radio broadcasting licence from one owner to another, on the public interest ground that it was important to avoid a concentration of media ownership.
  • In Director of Public Prosecutions v Smith,[10] the court said “The public interest is a term embracing matters, among others, of standards of human conduct and the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.”
  • Lehane J noted that “That Court should be slow indeed to find reviewable error in a minister’s decision as to what the public interest requires.”[11]
  • McKinnon v Secretary, Department of Treasury[12] concerned the requirement in a freedom of information statute that an internal working document was exempt from disclosure only if disclosure would be contrary to the public interest:
  • “Such judgement, however, is not made in a normative vacuum. It is made in the context of, and for the purposes of, legislation which has the object... which begins from the premise of a public right of access to official documents...”
  • In Osland,[13] a case involving a woman imprisoned for the murder of her husband who claimed she had been a ‘battered wife’, the court noted that “The exercise of the prerogative of mercy in relation to a person convicted of murder engages the public interest at a high level of importance.”
  • In Oshlack v Richmond River Council,[14] the High Court decided that it was relevant to consider the public interest character of litigation (in this case, to halt development in a koala habitat) in deciding that a costs order should not be made against the unsuccessful plaintiff.
  • In Momcilovic,[15] Heydon J noted the interpretational difficulty of the term “public interest”, when expressly included in the legislation, as it prevents providing “objectively determinable criteria” and leaves the courts to their own “idiosyncratic conceptions and modes of thought.”

Padfield v Minister of Agriculture, Fisheries and Food[16]

Facts: the Milk Board had the power to set a different price for each region that produced milk. The producers in the south-east region urged the Board to pay them a higher price, supported by two independent reports; however, the result would be a decrease in the price paid to other regions – who, with a majority representation, rejected the proposal. The south-east producers then asked the minister to appoint a committee of investigation, pursuant to the act, which would allow the minister to direct the Board to take action based on its recommendations. The minister refused (because he was afraid of bad publicity) and his decision was upheld by the Court of Appeal. The House of Lords overturned the decision.
Issue: Policy as an irrelevant consideration.
Held: The court held that the reasons given by the minister were bad in law and that he should be directed to reconsider the complaint of the plaintiffs.
  • The court rejected the contention that the minister’s “only duty is to consider a complaint fairly and that he is given an unfettered discretion with regard to every complaint either to refer it or not to refer it to the committee as he may think fit.”
  • The decision would be reviewable “if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act...”
  • A decision can be questioned whether or not reasons are given for the decision.

Roberts v Hopwood[17]

Facts: Under the power of the local council to determine wages, the Poplar Borough Council resolved that it should act as a model employer and pay a higher uniform wage rate of £4 per week to male and female employees. This meant a 20% increase for men and a 38% increase for women. The district auditor disallowed the increase under the Public Health Act 1875 (UK) as ‘contrary to law’ and imposed a £5000 surcharge on the members of the council.
Issue: Policy as an irrelevant consideration. This case would not be decided the same way today due to anti-discrimination and equal pay legislation.
Held: The House of Lords held that council had acted contrary to law and the surcharge was rightly made.
  • The council had wrongly considered “some eccentric principles of socialistic philanthropy, or... a feminist ambition to secure equality of the sexes in the matter of wages in the world of labour...”

Evidence of an irrelevant consideration

[18] In Padfield,[19] the finding of invalidity was made easier since the minister had voluntarily stated the reasons for his decision in a letter, however, the court warned that silence would not preclude judicial review.

  • In Public Service Board of NSW v Osmond,[20] the court noted that “if the decision maker does not give any reason for his decision, the court may be able to infer that he had no good reason.”
  • In Jones v Dunkel,[21] this concept was taken a step further by holding that an inference of fact adverse to a party can be drawn by their failure to give evidence to explain or contradict an issue.

Effect of an unauthorised purpose or irrelevant consideration

[22] It may be necessary to show, on the facts of the case, that the unauthorised purpose was the main reason for making the decision or that its effect was substantial; or that the irrelevant consideration was not insignificant.

  • An insignificant error can be overlooked by a court, though generally a court should avoid intruding into the merits of a decision and attempting to second-guess whether the same decision would have been made without the influence of the irrelevant consideration.
  • The test to be applied is whether as a result of an error a person has been deprived of the possibility – not probability – of a favourable decision.

Policy as an irrelevant consideration

[23] Roberts [24] illustrates the point that even an elected body may be limited in the extent to which it can attempt to implement general social policy.

Bromley London Borough Council v Greater London Council[25]

Facts: a newly elected council made a decision to fulfill its election promise and reduce fares by 25%, and to fund this deficit by a rate levy of six pence in the pound.
Issue: Policy as an irrelevant consideration.
Held: The House of Lords held that the council was in breach of its fiduciary duty to taxpayers, its duty to conduct operation on ordinary business principles and that it had wrongly considered itself bound to implement an election manifesto.
  • It would be “entirely wrong for [a government] to regard themselves as bound to exercise their discretion in relation to that policy in accordance with their election promises, whatever the cost and other countervailing considerations may turn out to be.”

Porter v Magill[26]

Facts: A local council made the decision to sell off local housing stock in marginal wards in order to change the residential and voting composition of the wards.
Issue: Policy as an irrelevant consideration.
Held: The House of Lords held that it was legitimate for a local council to make decisions that have popular appeal and electoral support but this is different to exercising power not for a public purpose but to promote electoral advantage for a particular party.

For Australian cases considering policy see textbook pp 520-1.

Failing to consider relevant matters

[27] A decision may be invalid where a decision-maker has failed to give consideration to a relevant matter in reaching a decision. This common law principle is enshrined in the ADJR Act s 5 (2) (b).

  • It is important to view this criterion separately from the related ground, ‘consideration of an irrelevant matter.’
  • Failure to consider a relevant matter applies only where the law mandates that a particular matter be considered.
  • Rarely will there be explicit evidence that a matter was not considered, and the argument will instead focus on whether an inference to that effect can be drawn from what was said by the decision-maker.

A breach of this ground can be committed in either of two ways:

  1. By a failure to consider a relevant matter of which the decision-maker had active or constructive knowledge
    • A person challenging the decision will have to establish an express or implied statutory obligation on the decision-maker to consider the particular matter and a failure to discharge that obligation.
  2. By a failure of the decision-maker to conduct an inquiry to obtain potentially relevant information, ie information which should have been considered.
    • This can also be described as the ‘duty of inquiry’ and arises under unreasonableness and breach of natural justice as well.

Obligation to consider

[28] The first stage of the test for failure to take a relevant matter into consideration is to establish that there was an express or implied statutory obligation on the decision-maker to consider the particular matter in question.

  • A party is not entitled to make an exhaustive list of all the matters which the decision-maker might conceivably take into account and attempt to attack a decision from this angle (Sean Investments). [29]
  • In the simplest situation, the legislation will specify expressly the particular matters that must be considered but often the obligation will have to be implied from the subject matter, scope and purpose of a statute.
  • If a discretion is unconfined, an obligation to consider a matter should not be readily implied.
  • In Minister for Immigration v Huynh,[30] it was inconsistent with the breadth of power vested in the minister to cancel a visa, that the minister should be obliged to consider a range of matters personal to the applicant.
  • The courts emphasise the obligation of a decision-maker to consider the impact of a decision on the interests of a person who has made a submission drawing attention to that potential adverse impact.
  • Some cases have emphasised the obligation of the decision-maker to base a decision on material that is factually accurate, material to the decision and up-to-date.

Failure to consider

[31] Courts are often prepared to accept at face value an assertion by an official that a matter was considered, or to draw that inference from the fact that the matter is mentioned in a statement of reasons or a briefing paper adopted by the decision-maker, even where the reasons are formulaic.

  • Other cases express a more demanding standard, emphasising the obligation of the decision-maker to give genuine reasons for the decision or to articulate the connection between the relevant consideration and the outcome of the decision.
  • Courts have cautioned against reading administrative decisions in a hypercritical manner that blurs the distinction between judicial review and merits review.
  • A special issue may arise as to whether a senior decision-maker can discharge the obligation to consider relevant matters by adopting a summary or analysis undertaken by a subordinate officer (generally this approach is accepted unless excluded by the statute).

Other issues

[32] Other principles which apply include:

  1. A decision-maker who their eyes closed to information cannot be excused on that basis.
  2. The obligation to consider relevant matters can be ongoing to the point of the decision.
  3. Just as a single irrelevant consideration can invalidate a decision, so too can a failure to consider a single relevant matter. :#A court may overlook an insignificant breach.

Case law

[33]

Peko[34]

Facts: there was a scheme whereby Aboriginals could lodge native title claims. The Commissioner recommended that the claim in this case be acceded to and acknowledged that the area of land affected included at least part of an area known as Ranger 68. In that area, Peko had been undertaking mineral exploration since 1967 and had identified an extensive uranium deposit valued at $280m. Ranger 68 in fact lay wholly within the area recommended for grant. Peko made submissions to the Commissioner drawing attention to the error and noting that the report thereby understated the potential detriment to the company’s mining interests. Court proceedings were conducted on the basis that the minister making the decision was unaware of representations made by Peko to his predecessors and had not taken them into account when deciding to endorse the recommendation of the commissioner and the department that the land be granted. The High Court held that the minister was bound to take those representations into account and had therefore failed to consider a relevant matter.
Issue: Ongoing obligation to consider relevant matters.
Held: The court accepted that it would unreasonable to expect the minister to read all the relevant papers relating to the matter personally but that if he relied on a summary which was incorrect or fails to bring his attention to a material fact which he is bound to consider, then he will have failed to take that material fact into account.
  • The court may need to determine whether factors listed by the legislation are exhaustive or merely inclusive.
  • A factor may be so insignificant that failure to take it into account could not have materially affected the decision. This could not be said of the facts of this case.
  • “The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind.”
  • Ignorance of the facts does not protect a decision.

Tickner v Chapman (sub nom Norvill v Chapman)[35]

Facts: In the context of the minister’s power to make a declaration that an area is a significant Aboriginal area that is under threat of injury or desecration, two confidential annexures were submitted with a report in a sealed envelope; with a notation that they should not be read by men because they contained secret folklore of the Ngarrindjeri women. The minister did not read the contents of the envelopes but was briefed on them by a female member of staff who had read them and reported on whether the representations where adequately covered in the rest of the report. In an action brought by proponents of the bridge development in the case and two residents of the island, the trial judge held that the minister’s declaration was invalid on three grounds, including that the minister had failed to consider the representations made with the report as required by the Act. The Full Court dismissed an appeal.
Issue: Delegating consideration of relevant material.
Held: The Act was construed as demanding that the minister personally consider the report and any representations attached to it.
  • Consideration is a “active intellectual process directed at that representation or submission.”
  • Black CJ noted that evidence before the trial judge which supported the minister not giving sufficient consideration included that the minister had a busy schedule at the relevant time and the extent and description of the discussion the female staff member had with the minister was vague.
  • There is an inevitable tension between the legal processes which require disclosure and the Aboriginal customs which involve secrecy but every member of society must comply with the terms of the law if they wish to use its protection.
  • The minister had other options available such as asking the Prime Minister to appoint a female Minister or member of the executive council to act on his behalf during the consideration of the report and the representations.
  • “A mere summary... cannot suffice... for the minister would not then be considering the representations, but someone else’s view of them, and the legislation has required him to form his own view....”

The principle cited in Hindi[36] – that a decision-maker must give “proper, genuine and realistic consideration” to a matter – must be seen in the light of SZJSS which illustrates the potential for overlap between the grounds of review of relevant considerations and unreasonableness, particularly when matters such as inappropriate weight or the failure to give “proper, genuine and realistic” consideration to a matter are involved.

SZJSS[37]

Facts: SZJSS were a Nepalese husband and wife who fled Nepal for Australia in 2006 and applied for protection visas. The Refugee Review Tribunal was not satisfied that, with the end of the civil war and changed social and political conditions, SZJSS would be subject to forced participation in Maoist training camps. SZJSS successfully sought judicial review of the Tribunal’s decision on two occasions and the matter was remitted for redetermination. The Tribunal decided to give “no weight” to letters corroborating SZJSS’s evidence on the basis of changed circumstances in Nepal and because the applicant had “exaggerated and distorted” parts of his evidence. On appeal to the Federal Court, Rares J set aside the Tribunal’s decision for jurisdictional error for failure to give “proper, genuine and realistic consideration” to the evidence before it, unreasonableness in giving no weight to the evidence and reasonable apprehension of bias. The minister appealed to the High Court which found that the Tribunal had not fallen into jurisdictional error.
Held: “Mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions is not sufficient reason for overturning a judicial decision upon a review.”
  • The Federal Court was really engaging in merits review and using judicial terms such as “proper, genuine and realistic consideration” to impugn a decision with which it disagreed.
  • When the Tribunal said it gave the letters no weight it was referring to the fact that it did not accept the evidence they purported to corroborate.
  • The evaluation of evidence was a matter for the Tribunal.

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, p 522.
  2. Textbook, pp 504-5.
  3. Murphyores Inc Pty Ltd v Commonwealth(1976) 136 CLR 1.
  4. Roberts v Hopwood [1925] AC 578.
  5. Textbook, pp 505-18.
  6. Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127.
  7. (1947) 74 CLR 492.
  8. O’Sullivan v Farrer (1989) 168 CLR 210.
  9. (1979) 144 CLR 45.
  10. [1991] 1 VR 63.
  11. Botany Bay City Council v Minister of State for Transport and Regional Development (1996) 66 FCR 537.
  12. (2006) 229 ALR 187.
  13. Osland v Secretary, Department of Justice (2010) 116 ALD 1.
  14. (1998) 193 CLR 72.
  15. Momcilovic v The Queen (2011) 280 ALR 221.
  16. [1968] AC 997.
  17. [1925] AC 578.
  18. Textbook, p 522.
  19. Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.
  20. (1986) 159 CLR 656.
  21. (1959) 101 CLR 298.
  22. Textbook, p 523.
  23. Textbook, pp 519-21.
  24. Roberts v Hopwood [1925] AC 578.
  25. [1983] 1 AC 768.
  26. [2002] 2 AC 357.
  27. Textbook, pp 523-4.
  28. Textbook, pp 524-6.
  29. Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363.
  30. (2004) 139 FCR 505.
  31. Textbook, p 526.
  32. Textbook, p 526.
  33. Textbook, pp 529-43.
  34. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
  35. (1995) 57 FCR 451.
  36. Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1.
  37. Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.
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