(9) ULTRA VIRES – ABUSE OF DISCRETION
 Ultra vires means beyond power. Administrator has no power
to take that action.
 Ultra vires doctrine: An administrator must act within the
limits of powers which have been conferred on them, by
statute or common law.
Narrow ultra vires
(where an administrator goes beyond the express limits of their
power)
Simple ultra vires
 Ss 5(1)(d) & 6(1)(d): Review is available where the decision
was not authorised by the enactment in pursuance of which it
was purported to be made.
 This occurs where the administrator lacks the power to act as
they did (as a matter of statutory interpretation).
 Swan Hill Corp v Bradbury: Regulations authorising intrusion
into common law rights & freedoms are likely to be construed
narrowly by the courts.
 A statutory power to make regulations “regulating”
building activity, did not authorise regulations which
prohibited that activity entirely.
Procedural ultra vires
 Ss 5(1)(b) & 6(1)(b): Review is available where the
procedures that were required by law to be observed in
connection with the making of the decision were not
observed.
 This occurs where the administrator has the power to act as
they did only after following a certain procedure (a
precondition), and the administrator purported to exercise the Establishing this ground of review
power without following the procedure.
 Look for preconditions – things you need to do before
(not during) you make the decision.
 Project Blue Sky: Whether invalidity flows from non-
compliance with statutory requirements, is a question of
legislative intent.
 Norvill v Chapman
 Difference between procedural UV & procedural fairness:
 If have statutory steps & didn’t do them, then use
procedural UV.
 If don’t have a hearing, or an adequate one, then use
common law procedural fairness.
Wide ultra vires
(where an administrator goes beyond the implied limits of their
power. These limits are implied by common law)
Abuse of discretion
 Acting for an improper purpose (or bad faith);
 Failure to take account of a relevant consideration;
 Taking account of an irrelevant consideration;
 Unreasonableness.
Failure to exercise discretion
 Improper delegation of a discretion;
 Acting under dictation;
 Inflexibly applying a policy;
 Improperly fettering a discretion by contract/estoppel.
ABUSE OF DISCRETION
 These are rules which relate to the manner in which a
discretionary power is exercised.
 Padfield v Min of Agriculture: No such thing as an unfettered
discretion. Even formally unconfined & absolute discretions
may be reviewed for abuse of discretion.
 Differences between irrelevant consideration ground, and
improper purpose ground:
 Irrelevant consideration ground is easier to establish,
because it doesn’t matter that other relevant
considerations are taken into account. No “but for” test
(don’t have to show the irrelevant consideration
determined the outcome).
 But success in establishing the improper purpose ground
is more useful, because when the power is exercised
again, it will be much harder for the administrator to
reach the same conclusion (due to the “but for” test). If
succeed on irrelevant consideration ground, then the
administrator can still arrive at the same conclusion
easily.
Improper purpose
 Ss 5(2)(c) & 6(2)(c): Review is available where an
administrator exercises a power for a purpose other than a
purpose for which the power is conferred.
 Padfield: A discretionary power may only be exercised in
pursuance of the purpose for which it was originally conferred
(even if the power is expressed on its face to be unfettered).
 1) Authorised purpose? (a matter of statutory construction:
question of law).
 Ask: What is the purpose for which the power is intended
to be exercised [or for which the power was conferred]?
What purposes are consistent with the Act?
 Sometimes the power expressly states its purpose.
 If not express, then the purpose must be implied from (i)
the object of the Act, or (ii) if no objects clause, the Act
as a whole (eg. Woollahra Council v Min for Env).
  The power is read down to its intended purposes.
 2) Actual purpose? (a matter of evidence: question of fact).
 Ask: What were the actual purposes for which the power
was exercised? Are they consistent with the purposes of
the Act?
 Established using documentation (letters, minutes),
interview transcripts, cross examination.
 If the power is exercised for multiple purposes, ask: But for
this unauthorised purpose, would the same decision still have
been made?
 If yes, the decision’s valid.
 If no, the decision’s invalid.
[Note: Need cross-examination to be sure of answer. But
if the proper purposes are enough to justify that decision,
then probably fail “but for” test  ground fails]
 So, real question is: Is the power actually exercised for a
purpose that is consistent with the statute?
 Motive is irrelevant. Eg. Sydney Municipal Council
(motive is to make profit  lower rates, but still improper
purpose).
Examples
 Sydney Municipal Council v Campbell (true purpose was to
make profit)
 *Council had power to compulsorily acquire land:
 (9) ULTRA VIRES – ABUSE OF DISCRETION
 “for the purpose of making or extending streets”; or
 for the purpose of “carrying out improvements or
remodelling any portion of the city”.
 *Council decided (under 1st power) to acquire:
 land necessary for extension of Martin Place; and
 adjacent land not necessary for the extension of the
street.
 *After the acquisition, Council said that the 2nd
acquisition was made using the 2nd of its compulsory
powers.
 *Council minutes revealed that the purpose required by
statute was lacking, and was only invoked as an
afterthought.
 The adjacent land was not being acquired for either of the
given statutory purposes, because the purpose of the
acquisition was to make profits from expected future
increases in land value once the street was extended
(established from Council’s minutes)  improper
purpose.
 (Irrelevant that the Council had a good motive)
 Shop Distributive v Min Industrial Affairs (authorised purpose
= to exempt particular shops totally; actual purpose = to
exempt all shops partially)
 *Legislation limited shop opening hours. Its purpose was
to protect shop assistants so they won’t be called to work
all hours.
 *s 14(3) provided that shops were to be closed on
Sundays, except otherwise provided in the Act.
 *s 5 gave the Minister power to issue certificates to
individual shops, to exempt them from s 14(3).
 *s 13 allowed the Governor to alter closing times by
proclamation, after some consultation procedures.
 *Minister decided to adopt Sunday trading by issuing
certificates under s 5, rather than by s 13 proclamation.
 The s 5 power was conferred for the purpose of
exempting particular shops totally from the legislation,
not to provide a partial exclusion for all shops from 11-5
on Sundays only  the s 5 power was used for an
improper purpose  invalid.
 Also, if it were possible to use exemption certificates to
alter trading hours, then protections given by s 13 could
be bypassed. This cannot be the legislature’s intention.
 Woollahra Council v Minister for Environment
Relevant & Irrelevant Considerations
 Ss 5(2)(a)-(b) & 6(2)(a)-(b): Review is available where the
administrator:
 (a) takes an irrelevant consideration into account in the
exercise of a power; or
 (b) fails to take a relevant consideration into account in
the exercise of a power.
 There are some considerations that the decision maker is free
to take into account or ignore.
 Min for Aboriginal Affairs v Peko-Wallsend: Every statute
implies that the decision is to be made on the basis of the most
current material available to the decision-maker.
 An update on a relevant consideration is itself a relevant
consideration.
Principles
 For relevant considerations (Min for Aboriginal Affairs v
Peko-Wallsend):
 “Relevant considerations” are considerations that a
decision maker is legally bound to take into account.
 The relevant considerations are determined by
construction of the statute conferring the discretion.
 If the statute expressly states relevant considerations,
the court must decide [by interpretation] if they are
exhaustive or merely inclusive.
 If the statute does not expressly state relevant
considerations, they must be implied from the subject
matter, scope and purpose of the Act.
 Failure to take into account a relevant consideration will
not invalidate the decision, if the factor is insignificant
and the failure to take into account could not have
materially affected the decision.
 The weight given to various considerations is generally
for the decision-maker (not the court) to determine.
 However, if a factor has been given far too much
weight, or far too little weight, the decision may be
reviewed if the decision is “unreasonable”.
 For irrelevant considerations:
 “Irrelevant considerations” are considerations that a
decision-maker is legally bound to NOT take into
account.
 The irrelevant considerations are implied from the subject
matter, scope and purpose of the statute (even where the
discretionary power is in its terms unconfined).
 Taking into account an irrelevant consideration will not
invalidate the decision, if the factor is insignificant and
would not materially affect the decision.
Establishing this ground of review
 1) What is a relevant/irrelevant consideration? (Q of law –
statutory interpretation)
 If the Act expressly states them, then they may be
exhaustive or merely inclusive (depends).
 If the Act does not expressly state them, then must imply
them from the subject matter, scope and purpose of the
Act.
 Always link to the purposes of the Act… ask: Does
this consideration have nothing to do with the
purposes of the Act?
 2) Was it in fact considered? (Q of fact – evidence)
Unconfined discretionary power
 Padfield v Min of Agriculture: Even in the case of
unconfined/absolute discretions, there are some matters which
are irrelevant and must not be taken into account.
 (political embarrassment was held to be an irrelevant
consideration)
 Peko-Wallsend: The exact determination of these matters
depends upon “the subject matter, scope and purpose of the
statute”.
Confined discretionary power (ie. express relevant considerations)
Identification of legally relevant/irrelevant considerations
 R v Hunt; ex parte Sean Investments: The specified factors are
not necessarily exclusive.
 *s 40AA(7) National Health Act conferred a discretion to
fix fees chargeable by Private Nursing Homes, “having
regard to the costs necessarily incurred” in running the
home.
 Since this “costs” factor is the only one mentioned by the
statute, it is necessarily a fundamental factor in the
determination of fees.
 However, “costs necessarily incurred” is not an exclusive
factor – the decision-maker could have regard to other
factors, such as those which show the fees are excessive
or unreasonable.
 (9) ULTRA VIRES – ABUSE OF DISCRETION
 Sean Investments v McKellar (certain non-express factors are
not irrelevant considerations)
 *The Minister made his decision under s 40AA(7) [same
as above], giving reasons that included (i) the costs
necessarily incurred in running the home, (ii) the effect
upon the patients, and (iii) a concern that rents would not
be unduly subsidised.
 Considerations (ii) & (iii) were not irrelevant to the
Minister’s exercise of the statutory discretion.
 The relevant factors, and the weight to be given to them,
will vary from case to case.
 Phosphate v EPA (economic concerns are not relevant
considerations)
 *s 20(6) Environmental Protection Act gave EPA power
to grant licences subject to such conditions it thinks fit.
 *EPA, after having regard to environmental
considerations only, licensed a factory subject to a
condition that there be no release of sulphuric gas when
an offshore wind was blowing.
 *The company argued that other factors, in particular
economic consequences to the community of imposing
the condition, should have been considered.
 Environmental factors were obviously relevant.
 But the other factors were not relevant:
 There was no indication in the Act that either
economic concerns or the “public interest” were to
be taken into account.
 The Act’s sole and only purpose was to reduce
pollution to specified levels. It was not to minimise
pollution consistent with the maintenance of
commercial activity. (the Act did not contemplate
some balancing of considerations)
 The Board was comprised entirely of experts in
environmental matters; there were no members
chosen for their financial/industrial expertise.
Whether failed to take into account a relevant consideration
 ACF v Forestry Commission
 *Commission decided that certain areas of forest were
“definitely not qualifying areas” for World Heritage
Listing.
 *The Act required the Commission to identify any such
areas as soon as practicable, presumably so that they
could be logged.
 *ACF argued that it was a relevant consideration that the
identified areas had a relationship with existing World
Heritage areas, which the Commission did not consider.
 The relationship of the identified areas to an existing
World Heritage area, WAS a relevant consideration.
 However, the relationships have been considered (by
inference), because:
 The Commission had refused, with respect to a
number of other areas, to say they were “definitely of
no value” on precisely this ground. It was unlikely
that the Commission would have regard to such
factors in one case, and then ignore them in the next.
 This was an interim report which was required to be
prepared quickly; thus, a large amount of detail was
not to be expected  the report did not have to
expressly consider it.
Unreasonableness
 Ss 5(2)(g) & 6(2)(g): Review is available where an exercise of
power is so unreasonable that no reasonable person could
have so exercised the power.
 Wednesbury: A decision will be reviewable where no
reasonable person/body/administrator could have made that
decision.
[A decision is not “unreasonable” simply because the Court or
reasonable person would have made a different decision.]
 *Act allowed a cinema licence to be granted “subject to
such conditions as the Authority thinks fit to impose”.
 *The condition attached was that “no children under 15
should be admitted to Sunday performances”.
 This condition was NOT unreasonable.
 Some judicially recognised forms of unreasonableness are:
Discrimination without justification
 Parramatta CC v Pestel
 *Statute: The Council has power to determine a special
rate where specified works would be “of special benefit
to a portion of its area”.
 *The Council, by purporting to exercise this power,
levied a special rate on an industrial area, to raise revenue
to provide amenities of special benefit to the area (eg.
roads, kerbing, guttering, drainage).
 *Only industrial sites were levied; 90 residential purposes
were not levied.
 The Council could not reasonably have concluded that the
work only benefited industrial sites. The improvements
by the Council benefited industrial & non-industrial sites
alike  it was unreasonable to levy some sites and
exempt others.
 Sunshine Coast Broadcasting v Duncan
 *A guideline said that applications for the right to service
an area should be refused, if the area is already
adequately serviced by other stations.
 *On the basis of this guideline, a station’s application was
refused, while 8 other stations’ applications were
accepted.
 Lack of consistency  unreasonable.
 [Also – a relevant consideration (the public interest) was
not adequately considered.]
Decision is out of proportion to the goal to be achieved
 R v Barnsley Corp; ex parte Hook (minor incident)
 *H, a stallholder, was caught urinating in a side street
when the toilets were closed.
 *The Council decided to revoke his licence to trade in the
market.
 The decision to revoke was unreasonable, because it was
disproportionate to the offence: H was deprived of his
source of livelihood, because of this minor incident.
 [Also invalid for breach of natural justice]
 Fares Rural Meat v Australian Meat & Livestock Corp (long
term purpose)
 *Act gave power to revoke an approval to engage in live
stock, only for the purposes of promoting, controlling,
protecting & furthering the interests of the Australian live
stock industry.
 *The applicant’s approval was revoked after Saudi Arabia
rejected its shipment.
 [The decision was invalid for failure to accord procedural
fairness]
 However, since the purpose for which the power had to
be exercised is the long term best interests of trade, the
decision was not disproportionate to that purpose (even
though the applicant was likely to suffer substantial
commercial losses).
 (9) ULTRA VIRES – ABUSE OF DISCRETION
Limited duty of inquiry
 Prasad v Min Immigration and Ethnic Affairs: Where material
which is central to a decision to be made is easily available,
failure to obtain that material before reaching the decision
would be unreasonable (if a reasonable decision-maker would
have obtained that material).
 *The Department rejected P’s application for permanent
residency, because of a suspicious marriage.
 This suspicion was based on inconsistent answers
that the Ps gave in interviews.
 [The decision is invalid, because of a failure to take into
account the relevant considerations of 8 statutory
declarations from various persons declaring that they
knew the Ps as a happily married couple.]
 It was unreasonable of the decision-maker not to make
further inquiries to investigate the discrepancies.
Unreasonable application of statutory words to facts [where there’s
discretion, eg. “satisfied”]
 Chan Yee Kin v Minister for Immigration: A decision may be
unreasonable because the decision-maker misconceived the
legal concept involved.
 *C claimed refugee status. The grant was dependent on “a
well founded fear of persecution”.
 *Minister decided that C did not have “a well founded
fear of persecution”.
 *C had been detained and interrogated in China, been
listed in public as an opponent of the State, had been
exiled, and had been detained for some months after
unsuccessful attempts to escape.
 The Minister’s decision was unreasonable, because given
the accepted facts and the meaning of the phrase, no
reasonable decision-maker could have reached the
conclusion that C did not have such a fear.
 Austral Fisheries: Delegated legislation may be invalid on the
ground of unreasonableness, if it leads to manifest
arbitrariness, injustice or impartiality.
 *Delegated legislation was made, which reduced quotas
of every boat in the industry, except one boat which had
its quota doubled.
 *The stated objectives of the delegated legislation were to
develop a fair & equitable process of allocation, to reflect
existing market shares for fish, and to minimise
disruption to the industry.
 Held unreasonable  delegated legislation was
invalidated.
CASES
Woollahra Council v Minister for Environment
Improper purpose.
 *National Parks and Wildlife Act:
 s 151(1)(f): The Minister may grant licences to
occupy/use national park lands.
 s 152: The Minister may grant licenses to carry on
business within a national park.
 *A private business school proposed to renovate and lease a
building in a national park.
 *Minister & Director (under ss 151 & 152) granted the school
a licence to use the building, and to carry on its business there. 2) Was it taken into account?
 *They were motivated in reaching their decisions by the
opportunity to restore the building & improve the surrounding
land, at no cost to the government.
Authorised purpose?
 Since the power does not expressly state the authorised
purposes, these purposes must be derived from the general
structure of the legislation.
 “preservation”, “care”, “control” and “management” of
national parks kept appearing in the Act  The Act’s overall
purpose is “the maintenance, preservation and defence of
national parks against outside encroachments”.
 [Thus, the broad ss 151 & 152 powers are read down to this
authorised purpose]
Actual purpose?
 The actual purpose of the development is inconsistent with the
purposes authorised by the Act, because:
 Documentation showed that the school’s offer was the
trigger for the application.
 The school proposed was private and not public.
 Its curriculum related to business matters and had nothing
to do with the parks [eg. botany/horticulture].
 The school’s use of public buildings and land would
restrict the public enjoyment of the park for some time.
 Thus, the powers conferred by ss 151 & 152 do not extend to
the grant of the licence  invalid licence.
 The good motive of the Minister & Director in saving money
on park improvements was irrelevant.
Minister for Aboriginal Affairs v Peko-Wallsend
Implied relevant consideration; implied delegation.
 Aboriginal Land Rights Act:
 *s 50(1)(a): If the Aboriginal Land Commissioner finds
that Aboriginal applicants for land are traditional owners,
he must recommend the land grant to the Minister.
 *s 50(3)(b): The Commissioner must comment in his
report on the detriment to persons that might result, if the
claim were acceded to.
 *s 11(1)(b): Where the Minister is satisfied that the land
grant should be made, he must recommend that to the
GG.
 *The Commissioner held an inquiry into Aboriginal claims,
and PW made vague submissions about the location of
uranium it discovered in the block.
 *The Commissioner recommended a grant of 10% of the
block. He commented on the detriment that a grant might have
on the companies, but was unaware that the whole deposit lay
within the 10% block recommended for grant.
 *After the Commissioner’s report, PW informed the Minister
of the deposit’s real location by submission.
 *A successor of the Minister, without reference to PW’s
submission, decided to recommend to the GG that the grant
should be made. The Minister was in fact unaware of the
companies’ submissions.
1) Is PW’s submission a relevant consideration?
 The purpose of s 50(3) (requirement of Commissioner to
comment on detriment) must be to ensure that the Minister
considers detriment when making his decision under s 11 
the Act implies detriment to be a relevant consideration in
deciding under s 11.
 Furthermore, the Minister’s consideration of detriment must
be based on the most recent & accurate information that he
has at hand. Since PW’s submission is the most recent
information on detriment, PW’s submission is a relevant
consideration.
 No evidence that Minister took it into account.
 The Minister could not have impliedly delegated
consideration of PW’s submission to someone else, because:
 he did not use his express power to delegate;
 (9) ULTRA VIRES – ABUSE OF DISCRETION
 the Minister’s function under the section is a central  There was procedural ultra vires, because the reporter’s
feature of the statutory scheme (its importance evidenced published notice did not adequately state the purpose of the
by the preliminary procedures, eg. Holding an inquiry application:
under s 50);  For the purpose of the application to be stated, it is
 the exercise of the power has important consequences; necessary to specify the area over which protection is
and sought, and to identify the injury/desecration
 the power (s 11) requires that the “Minister is satisfied” apprehended. Neither was adequately stated.
(ie. personal to Minister).  Such failure cannot be cured except by publication of a
fresh notice  invalid.
Edelston v Wilcox  Minister failed to take into account express relevant
Implied relevant considerations; unreasonableness; PF. considerations:
 *s 218 ITAA: The Commissioner may issue a notice requiring  1) Each representation attached to the report is a relevant
a person who owes money to a taxpayer, to pay the consideration.
Commissioner that money as is sufficient to pay the tax debt.  2) The Minister did not take these representations into
 *E, a doctor, received payments from the HIC under the account, because (i) the Minister only had 1 day to make
Medicare scheme. his decision, and could not have considered the report and
 *The Commissioner: representations within that time; and (ii) he did not have
 issued a notice (under s 218) requiring the HIC to pay to physical access to the representations.
it 100% of the money they owe to E, until an amount of  The obligation to consider is personal to the Minister, and
tax due was satisfied; cannot be delegated (s 31).
 revoked the notice and issued new notices, requiring  Although he could receive assistance of his staff, as
payment of only 45% of the money; and long as he still considered.
 revoked the notices, and issued fresh notices requiring  The statute does not imply that the obligation to consider
payment of 100% of the money. is subject to confidential information  Minister was
 *E sought ADJR review of the Commissioner’s decisions to obliged to take the “secret women’s business” into
nd rd
revoke the 2 notice, and to issue the 3 notice. account.
 S 218 was not intended to be used to extort money from
friends/relatives, or to punish a TP who used permissible
means for the limitation of his liability to tax, or to obtain
payment of tax payable by other persons.
 Commissioner failed to take into account 2 relevant
considerations:
 1) It was a relevant consideration that the payments from
the HIC constituted 96% of E’s income, and were
required to meet part of his living expenses and the
expenses of his practice. 2) This consideration was not
taken into account, because the Comm only projected a
previous year’s figures.
 1) It was also a relevant consideration that there was a
genuine ongoing dispute. 2) The Comm ignored this.
 The decision to substitute notices relating to 100% of the
amount of payments, was so unreasonable that no reasonable
person could have so exercised the power.
 There was a breach of natural justice, because E was not
given an adequate opportunity to submit that the
recommendation should not be taken.
 Thus, the decisions to revoke & issue notices were invalid.

Norvill v Chapman
Procedural UV; Express relevant considerations.
 *Aboriginal Heritage Protection Act:
 S 10(1): Where the Minister (a) receives an Aboriginal
application seeking protection of a specified area, (b) is
satisfied …, and (c) has received a report and has
considered the report & any representations attached to
the report, then he may make a declaration in relation to
the area.
 S 10(3): Before submitting the report, the reporter shall
publish a notice (i) stating the purpose of the application,
and the matters required to be dealt with in the report; (ii)
inviting interested persons to furnish representations; and
(iii) specifying an address to which such representations
may be furnished.
 *The Minister exercised s 10 to effectively ban construction
of a bridge over the area.