Improper Purpose; Unreasonableness

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This article is a topic within the subject Administrative Law.


Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [9.2.1]-[9.2.19]; [14.1.1]-[14.1.2], [7.2.3C].

Improper or unauthorised purpose

[1] A person or body upon whom a statutory power is conferred can lawfully exercise that power only for the purpose for which it was conferred. An exercise for a different or ulterior purpose will be invalid. This is enshrined in the ADJR Act grounds of review:

s 5(2)(c) an exercise of power for a purpose other than a purpose for which the power is conferred

The purpose for which a power can be exercised is an issue of law. The purpose for which the power was actually exercised is an issue of fact. A mixed issue of fact and law can arise when a power is exercised for a multiplicity of purposes; some authorised and others not.

  • Commonly a statute will define the purpose for which a power can be exercised.
  • Absent an express purpose, it will usually be possible to imply a purpose, by familiar techniques of statutory interpretation that will involve looking at the title, structure and text of an Act, and the nature of the power that is being exercised.
  • A live question is whether they can be special categories of power that are devoid of purpose, for example:
  • Statutory power exercised at a high level by a minister such as appointment to an officer held ‘at pleasure’.
  • Where the decision is being made to achieve a political objective.
  • Where legislation, such as tax law, is complex and involves polycentric considerations and it is difficult to ascertain a range of permissible purposes.
  • An unauthorised purpose will not be lightly inferred and will only be inferred if the evidence cannot be reconciled with the exercise of the power.
  • There are few reported cases which raise the ground of unauthorised purpose, probably because:
  • It is easier to establish the alternative ground that an irrelevant consideration was taken into account.
  • Legislation may support multiple purposes.
  • An astute decision-maker can carefully disguise their real purpose.
  • The evidence may not be strong enough to support an argument of ulterior purpose.

Multiple purposes

An issue arises if one or more of a set of multiple purposes for which a power was exercised, if viewed separately, would be improper. The exercise will not necessarily be invalid in these circumstances; something more must be established.

  • If the unauthorised purpose was a substantial or dominant purpose in the sense that the power would not have been exercised had there not been a desire to achieve the unauthorised purpose, the decision will be invalid.
  • This is principally a question of fact.
  • The statute that is being administered may also have a bearing on the issue, by implicitly requiring that the decision-maker remain focused solely on the authorised purpose and not even avert to the extraneous purpose.

Municipal Council of Sydney v Campbell[2]

Facts: The Council had a power to, with the approval of the Governor, purchase or resume land required for carrying out improvements or remodelling any portion of the city. The proposed extension of Martin Place to Macquarie St and the resumption of a considerable area, embraced property belonging to the respondents. The Chief Judge in Equity made permanent injunctions preventing the resumption because in point of fact, the land was desired for the purpose of enabling the council to get the benefit of any increment in the value of it arising from the extension and to recoup municipality losses.
Issue: Single unauthorised purpose.
Held: The resumption of the land for this purpose alone was not within the ambit of the authority conferred upon the Council. The actual purpose the Council had exercised the power for was held to be a question of fact.

R v Toohey, Ex parte Northern Land Council[3]

Facts: A statute established a scheme whereby Aboriginals claiming to have a traditional land claim to an area of ‘unalienated Crown land’ in the Northern Territory, could lodge a claim for that area. ‘Unalienated Crown land’ was defined so as not to include land in a ‘town’ (as defined by the Planning Act 1979 (NT). The Northern Land Council notified the NT Government that it intended to make a claim for land in the Cox Peninsula. While the claims were being lodged an administrator made a regulation which expanded the town boundaries of Darwin from 142sqkm to 4350sqkm.
Held: The power was not intended to be conferred for the purpose of defeating Aboriginal land claims. The court was entitled to investigate the purposes for which the crown had acted, otherwise clandestine abuse of power would succeed.
  • This case did not resolve the land claim and a later case in the same series of litigation held that legal professional privilege cannot be used to protect from disclosure, communications with Crown law advisors made to further a deliberate abuse of statutory power.
  • In a decision nearly a decade later, the Full Federal Court held that the purpose was unauthorised but acknowledged that had the evidence established that the blocking of the claim was merely consequential or a step towards achieving a primary and legitimate planning purpose, the decision would not have been invalid.

Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board[4]

Facts: Under a statutory power the board made a decision to resume a block of land owned by Samrein, which thereupon commenced proceedings contending that the land had been resumed for an unauthorised purpose. The challenge was dismissed.
Held: The resumption was for a legitimate purpose under the act and not for an ulterior purpose. Although it was accepted that it would be possible to build a smaller building on the area of the block excluding Samrein’s land, the evidence was that this would not be desirable and that even if a smaller building were erected, it would be preferable to put it on Samrein’s land.

Schlieske v Minister for Immigration and Ethnic Affairs[5]

Facts: A warrant had been issued for Mr Schlieske’s arrest by a West German court in relation to drug offences. Extradition proceedings had twice failed but the minister signed a deportation order under the Migration Act. The Federal Court held that the particular steps that had been taken amounted, improperly, to a disguised extradition but that Mr Schlieske could be properly deported to West Germany, provided that Australian officials did not take steps to ensure his delivery into the custody of west German officials.
Held: The minister could not use the Migration Act for the purpose of extradition but could use it for its authorised purpose of deportation.

Unreasonableness, irrationality and illogicality

[6]If the expectation that government acts reasonably, rationally or logically is framed as a legal requirement, the courts must deal with a range of issues:

- The merits/legality distinction
- What does unreasonableness add to other grounds of legal invalidity?
- Does it extend to looking at the substantive fairness of a decision or the adequacy of the factual support for it?
- Can principles of good administration be reduced to legal standards?
- Should the word unreasonable, wherever used in a statute, have the same meaning as ‘unreasonableness’ as a ground of judicial review?

Associated Provincial Picture Houses Ltd v Wednesbury Corporation[7]

Facts: The Sunday Entertainment Act 1932 (UK) provided that a licensed cinema could open on a Sunday only with the permission of the local authority ‘subject to such conditions as the authority think fit to impose’. Provincial Picture Houses was given permission by the Wednesbury Corporation but on the condition that ‘no children under the age of fifteen years shall be admitted to any entertainment whether accompanied by an adult or not.’ Provincial sought a declaration that the condition was invalid as unreasonable.
Held: The action was dismissed. The court can only intervene in a decision of the executive if it is shown that the authority has contravened the law.
  • To the extent that a discretion must be exercised reasonably, a person must direct themself properly in the law, call their attention to the matters which they are bound to consider and exclude from consideration those matters which are irrelevant.
  • “Wednesbury unreasonableness” is required to attract judicial review. This must be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. For example, a red-headed teacher being dismissed because she has red hair.
  • “Wednesbury unreasonableness” is so bad that it amounts to the person not even considering the decision. It will only apply in extreme cases.

The development of Wednesbury unreasonableness

[8]The Wednesbury case rejected the idea that a court could substitute its decision for that of a government official as to what is a reasonable decision.

  • Lord Greene MR went on to suggest that unreasonableness could constitute a free-standing ground for legal challenge, but only in the sense that a decision “is so unreasonable that no reasonable authority could ever have come to it... to prove a case of that kind would require something overwhelming.”
  • This ground is enshrined in the ADJR Act s 5(2)(g).

Applicant S20[9]

Facts: The applicant challenged the decision of the Refugee Review Tribunal on the grounds that it was “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.” (The Migration Act was framed in such a way at the time as to exclude the ground of unreasonableness).
Issue: Many commentators have read this case as drawing a distinction between unreasonableness and irrationality and illogicality. This distinction should now be seen in light of SZDMS.
Held: Wednesbury unreasonableness is confined to review of statutory discretion, whereas irrationality/illogicality is concerned with fact finding. The formulation of the latter ground closely resembles Wednesbury unreasonableness.


Facts: The Refugee Review Tribunal did not accept that SZDMS was a homosexual and therefore refused to grant him a visa. The tribunal noted his return to Pakistan in 2007 and his failure to seek asylum when he was earlier in the UK. The High Court allowed an appeal but held by majority that the Tribunal had not fallen into jurisdictional error.
Issue: Overlap between grounds of review.
Held: Unreasonableness is similar to grounds of no evidence, taking irrelevant considerations into account, not taking relevant considerations into account and irrationality/illogicality, in that they all involve an element of arbitrariness, capriciousness or injustice. Despite the overlap, Wednesbury unreasonableness is only concerned with the exercise of a statutory discretion. What was involved in this case was instead an issue of jurisdictional fact, upon which two reasonable minds may differ.


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

  1. Textbook, pp 486-502.
  2. [1925] AC 338.
  3. (1981) 151 CLR 170.
  4. (1982) 41 ALR 467.
  5. (1988) 84 ALR 719.
  6. Textbook, pp 809.
  7. (1948) 1 KB 223.
  8. Textbook, 810-17.
  9. Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002(2003) 198 ALR 59.
  10. Minister for Immigration and Citizenship v SZDMS (2010) 240 CLR 611.
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