(10) ULTRA VIRES – PRESERVATION OF DISCRETION
 Roncarelli v Duplessis
PRESERVATION OF DISCRETION
 These are rules which relate to the agent who is exercising the
discretionary power.
 Broad principle: If Parliament has conferred a discretion on a
particular decision-maker:
 Only that decision-maker may use the discretionary
power; and
 The power’s discretionary nature must be preserved.
 Sub-doctrines:
Failure to Act (s 7: unreasonable delay in making the
decision)
 Failure to perform a non-discretionary duty  remedy = order
mandamus or mandatory injunction.
 This ground of review is also available where the time limit
for making the admin decision has been exceeded.
 If no express time limit, review is available for
“unreasonable” delay.
 Thornton v Repatriation Commission: Test of reasonable
delay is objective.
 Deferring a decision to the outcome of a High Court
appeal on a similar matter  not unreasonable.
Rule against delegation
 Rule against delegation: There is a presumption against the
delegation of discretionary power. Prima facie, the power has
to be exercised by the person to whom it is conferred.
 Express powers to delegate override this rule.
 If express delegation is used, the power must be exercised
within the limits of the express delegation. If not, then  ADC v Hand
ultra vires.
 Carltona: Powers to delegate may be implied where
administrative necessity requires it.
 O’Reilly v Comm of State Bank of Vic (lots of times the
discretionary power would be exercised  implied power to
delegate)
 *ITAA:
 s 264: The Comm of Tax may require persons to give
such information as the Comm required, and also to
attend & give evidence & produce documents.
 s 8: The Comm may delegate the power under s 264
to Deputy Comms.
 *Notices under s 264 were issued by an Investigating
Officer.
 *Deputy Comm had ‘authorised’ the Investigating Officer
to issue notices of this sort & stamp on them the Deputy’s Inflexible application of policy in exercising a
signature.
 *Issue = did Deputy Comm have implied power to sub-
delegate?
 Lots of cases in which the power to issue notices would
be exercised  the express power to delegate to the
Deputy Comm was insufficient for the day-to-day
operation of the Department  Deputy had implied
power to delegate.
 Peko Wallsend (Minister’s function was central to the
statutory scheme, evidenced by the preliminary procedures,
thus requiring a personal decision  no implied power to
delegate)
 Secretary DSS v Alvaro (factors)
Acting under dictation (ss 5(2)(e) & 6(2)(e))
 Ss 5(2)(e) & 6(2)(e): Review is available for “an exercise of a
personal discretionary power at the direction of another
person”.
 *Licensing Commission had sole responsibility for the
grant & withdrawal of licences.
 *Premier directed the Commission to withdraw the liquor
licence of Pl, which the Commission did.
 The Commission’s decision was void.
Direction/Policy simple ultra vires
 Formulation of policy rules/guidelines serves 2 important
aims:
 1) Consistency of decision-making. This is particularly
important where many administrators exercise the same
discretion.
 2) Easier decision-making. Administrators don’t have to
consider afresh every case.
 However, policy rules/guidelines must still allow the
administrator to respond to particular needs of a given case
(because statute, by conferring discretion, demands this).
 Basic position: Despite the legal principle that discretion must
not be fettered, administrators are entitled to formulate policy
guidelines to assist them in exercising their own discretion –
but not until they are deprived of any real discretion.
Where there is statutory power to issue directions/guidelines
 An express power to formulate directions/guidelines for use
by other decision-makers in exercising their discretionary
powers, shows that Parliament intends the discretion to be
constrained to some extent.
 Fine differences in statutory wording affect the scope of a
power to issue directions, and the degree to which those
directions may constrain the exercise of discretion.
 NSW Aboriginal Legal Service v Min Aboriginal Affairs
 Riddell v DSS
 Smoker v Pharmacy Restructuring Authority
Where there is no statutory power to issue directions/guidelines
 Rendell v Release on Licence Board: Policy guidelines must
be consistent with the legislation conferring the discretion.
 Rendell v Release on Licence Board (policy not to release
prisoner until served minimum 10 yr gaol; but statute required
consideration of individual circumstances  policy
inconsistent with Act  invalid decision)
 Re Findlay (policy not to release prisoners in all but the most
exceptional cases  consistent with Act  policy valid)
discretionary power (ss 5(2)(f) & 6(2)(f))
 S 5(2)(f): Review is available for “an exercise of a
discretionary power in accordance with a rule/policy without
regard to the merits of the particular case”.
 Inflexible application of policy = applying policy guideline
like a rule to reach a decision, without considering individual
circumstances of a particular case.
 The minimum content of the rule against inflexible
application of policy is:
 British Oxygen v Minister of Technology: Policy
guidelines can be used, provided that the decision-maker
is always willing to listen to anyone with something new
to say.
 The degree to which policy guidelines may control discretion
in advance, depends on:
 The nature of the entitlement/right which the statute
confers. If, once the statutory criteria are satisfied, there
is no legal entitlement (ie. only a hope of receiving any
 (10) ULTRA VIRES – PRESERVATION OF DISCRETION
benefit), then policy guidelines can be applied more
inflexibly.
 eg. Green v Daniels (once the statutory criteria are
satisfied, legal entitlement to unemployment benefits
follows  unlawful to automatically apply policy
guideline without regard to individual merits).
 The matters relevant to the exercise of the discretion.
If the decision on the merits turns primarily on the
individual circumstances of the applicant, then policy
guidelines cannot be applied as inflexibly.
 eg. Tang v Min of Immigration, Cumbairux v Min
Immigration (immigration decisions turn primarily
on individual circumstances of the applicant 
unlawful to apply policy inflexibly)
 eg. Re Findlay (parole decisions turn primarily on
policy reasons unrelated to the individual
circumstances of the applicant  lawful to apply
policy inflexibly)
 So – look at the relevant considerations in exercise of the
discretion.
 The more personal they are, the less scope there is for
policy guidelines to control discretion in advance
(Chambairux).
 But if the personal circumstances are not such important
considerations (eg. public interest is more important) then
there is more scope to make policy to control in advance
(Re Findlay).
Examples
 Green v Daniels (administrator applied general policy like a
rule  inflexible application of policy)
 *Social Security legislation provided that a person
(subject to age & residence requirements) would be
eligible for unemployment benefit, when the Director
General of DSS was satisfied that (i) they were
unemployed, (ii) willing & able to undertake suitable
work, and (iii) had taken reasonable steps to obtain work.
 *The Department applied a policy guideline, which said:
As a general rule … people who leave school and register
for employment within 28 days prior to the end of the
school year, or at any time during the long vacation, will
not be in a position, until the end of the school vacation, Secretary, Dept of Social Security v Alvaro
to satisfy the conditions of eligibility for unemployment
benefit.
 People who are legally entitled under the statute, may be
denied benefits because they have not satisfied the 12
week waiting period imposed by the policy  the policy
guideline effectively introduced an extra criterion for
eligibility  it is inconsistent with the statutory criteria
(since applied inflexibly as a rule)  ultra vires 
invalid.
 Also: If the policy was only a guide, the Dept applied it
inflexibly, by automatically imposing the waiting period
on Green without giving her an opportunity to establish
her eligibility according to the statutory criteria.
 Tang v Min of Immigration: If the decision turns primarily on
the individual circumstances of the applicant, then the
decision cannot be reached by simply applying policy
guidelines without considering the merits of the case.
 *s 6A Migration Act: Prohibited non-citizens should not
be considered for an entry permit, unless they fall into an
exceptional category. One of these was that they were the
spouse of an Australian citizen.
 *Tang, married to an Australian citizen, applied for
permanent residency.
 *His application was refused on the basis of a policy
statement (against queue-jumpers), before his application
was considered on its merits.
 Since Tang was the spouse of an Australian citizen, he
was (under s 6A(1)(b)) entitled to have his case
considered on the merits & not pre-emptively rejected on
the basis of the policy  unlawful to merely apply the
policy without considering the application on the merits,
as the statute requires.
 [Note: The fact that he is a queue-jumper might still be a
relevant consideration in assessing the merits 
application could still be refused.]
 Re Findlay: If the discretionary power is likely to be exercised
primarily for policy reasons unrelated to the individual
circumstances of the applicant (eg. public interest), then the
decision is more capable of being regulated by guidelines.
Fettering discretion by representations (estoppel)
 Min Imm v Kurtovic: Estoppel is not available against a
government decision-maker in its exercise of public powers.
 This rule against estoppel does not apply to exercise of
the government’s private (eg. contractual) powers.
 But Ansett Industries v Cth: A contract with Government
cannot fetter a statutory power.
 Theoretical reason for the rule against estoppel:
 If an administrator does not a power, they cannot give
themselves that power by falsely representing to a 3rd
party that they possess it, because that would be against
Parliament’s intention.
 Equally, if an administrator has a power, but mistakenly
claims that they have no such power, estoppel cannot take
away that power because statute has conferred that power.
 Practical reason for the rule against estoppel:
 If estoppel can fetter discretion, administrators would
refuse to take the risk of giving any
opinions/undertakings at all in response to inquiries. This
would be inconvenient to the public.
CASES
Implied delegation; “decision”.
 *Social Security Act:
 Power 1 (s 1224): If money was paid because of a false
statement, and is not repaid, the amount is a debt due to
the Cth.
 Power 2 (s 1237): The Secretary may waive the debt.
 Delegation power (s 1299): The Secretary may formally
delegate any of its powers to an officer.
 *A made false statements to the DSS, and consequently
received payments under the Act.
 *An officer in the Department decided that A was indebted to
the Cth (pursuant to s 1224).
 *An authorised review officer affirmed the decision, and
decided not to waive the debt (under s 1237).
 *Neither powers were expressly delegated to the decision-
makers. Issue = can they be impliedly delegated to someone?
 *A appealed to the AAT, which decided it had no jurisdiction
to review the decisions because there was no valid decision
(since neither the officer nor review officer held valid
delegations from the Secretary under s 1299).
 *Secretary appealed to the Federal Court under s 44(1) AAT
Act.
“Decision”
 (10) ULTRA VIRES – PRESERVATION OF DISCRETION
 The AAT’s review jurisdiction extended to review of decisions  *Minister made a determination: The Secretary’s power
made in purported exercise of powers (even where the
decision is not legally ineffective)  matter should be
remitted to the AAT.
Can the decision-maker make decisions without a formal
delegation of power from the Secretary?
 Parliament could not have intended that the Secretary
personally perform all the functions necessary to carry the Act
into effect; some of the functions must be performed by
authorised officers. Does this include the 2 powers?
 For s 1224: The power can be impliedly delegated to an
authorised officer, because:
 A decision under s 1224 only involved ascertainment of
facts from objective evidence;
 The power is not discretionary (no “may”). The result
automatically follows; and
 The decision’s correctness could be tested against
evidentiary material.
In short, it is a straight-forward decision that does not require
much thought.
 For s 1237: The power cannot be impliedly delegated to an
authorised officer, because:
 The power is a discretionary power (“may”);
 It is vested expressly in the Secretary;
 The exercise of the discretion significantly affects rights
& liabilities of people liable under s 1224; and
 The discretion is likely to be exercised to implement
broad policy objectives under the Act.
Rendell v Release on Licence Board
Dictation (no express power to issue guidelines).
 *Decision-making process:
 Statute required the Release on Licence Board to consider
the individual circumstances of an application, and advise
the Minister.
 The Minister then looks at the public interest
(deterrence), and advises the Executive Council.
 *Life-term prisoner applied to the Board seeking
consideration of his release on licence.
 *The Board decided to reject the application, by saying that
the Government would not recommend release “of a life-term
prisoner until [he] served a minimum of 10 years in gaol. It
will be noted that this is a minimum”.
 The minute & correspondence was proof that the Board
exercised its discretion by applying a policy rule adopted by
another body without regard to the particular circumstances of
the prisoner (as required by statute)  unlawful decision.
 The Board never considered the merits of the application.
 Board’s repeated use of “minimum” shows that it applied
the government’s policy because it felt it had no
alternative.
 Also, a practical consideration: If the Board considers it
appropriate in a particular case to recommend release
before 10 years, its recommendation would discharge its
functions of offering its best advice to the Minister.
Riddell v Secretary, Dept of Social Security
Ultra vires direction (express power to issue directions).
 *s 1237 Social Security Act:
 (1) The Secretary may waive the Cth’s right to recover a
debt.
 (2) In exercising its power, the Secretary must act in
accordance with directions issued under (3).
 (3) The Minister may give directions relating to the
exercise of the Secretary’s power.
“must” be “exercised in the following circumstances only”
 *R asked that recovery of his debt be waived under s 1237
because of extreme financial hardship.
 *On appeal, the AAT decided not to waive the debt by
applying the Minister’s direction.
Is the determination valid?
 The determination’s purpose & effect was to limit the very
wide discretion conferred on the Secretary by s 1237(1).
 The directions were inconsistent with the statute, because:
 The statutory language:
 Subs (3) refers to “the Secretary’s power” and subs
(2) stated “in exercising the power”  statute
regards the Secretary as exercising the power 
authorises directions which affects the manner of its
exercise, but will leave the power itself intact.
 Therefore, s 1237(3) gives the Minister power to give
general guidance to the Secretary only, leaving him
free in any particular case to depart from the
guidance.
 The determination, by stating precise rules dictating
the result of all applications, is not giving guidance
in the exercise of the power, but is attempting to deny
the existence of the power  inconsistent with
statute.
 The legislative history: A predecessor of s 1237 did not
allow the Ministers to give directions. If Parliament
intended the Minister to circumscribe the Secretary’s
power, the language would have addressed the ambit of
the power itself rather than simply its exercise.
 Therefore, since the AAT’s decision was based on the invalid
determination, its decision involves an error of law and must
be set aside. The matter is remitted to the AAT.
Smoker v Pharmacy Restructuring Authority
Guideline not ultra vires (express power to issue guidelines).
 *National Health Act:
 s 99K(1) gives the Pharmacy Restructuring Authority
power to make a recommendation with respect to
applications for approval of premises as pharmacies.
 s 99K(2): “In making a recommendation under s 99K(1),
the Authority must comply with the relevant guidelines
determined by the Minister under s 99L”.
 s 99L(1): “The Minister must determine the guidelines
subject to which the Authority is to make
recommendations under s 99K(1)”.
 *Minister’s determination, para 3(a): “approval of a
pharmacist shall not be recommended in respect of premises
located within 3 kms [of an already approved pharmacist]”.
 *S applied for approval. The premises for which approval was
sought was within 3 kms of other pharmacists  the
Authority considered itself bound to comply with para 3(a) 
Secretary decided against recommending an approval.
Guideline valid?
 The Minister’s “guidelines” were more properly described as
rules which circumscribe the Authority’s discretion.
 Legislature intended to authorise the Minister’s “guidelines”,
because:
 Statutory language:
 S 99K is expressed in terms of function rather than
discretionary power (distinguishable from s 1237 in
Riddell, which conferred a broad discretion).
 The mandatory language of s 99K(2), that the
authority “must comply with the relevant guidelines”,
suggests that the guidelines are to be mandatory (ie.
rules).
 (10) ULTRA VIRES – PRESERVATION OF DISCRETION
 [The Minister’s directions were essential to the consider, and (2) the decision did not turn much on individual
statutory scheme, because the Minister “must” issue circumstances, but on the public interest (eg. deterrence,
them: s 99K(2)]. retribution, public confidence in the system, and consistency
 Legislative history: The provisions and guidelines of treatment between prisoners).
originated from an agreement reached between the
Minister & the Pharmacy Guild, which contemplated that
the Minister could radically limit the Authority’s
discretion  Parliament would have intended the
Authority’s discretion to be circumscribed by the
Minister’s “guidelines”.
 Thus, the guidelines were valid  Authority was correct in
applying para 3(a) in refusing the application.

 Differences:
 Discretion. In Riddell, the power conferred a broad
discretion, while in Smoker, the power was expressed in
terms of function.
 Mandatory language. Riddell: “must act in accordance
with”; Smoker: “must comply with”.
 Importance of directions to the statutory scheme.
Riddell: Minister may give directions. Smoker: Minister
must give directions.
 Legislative history.

Chumbairux v Min for Immigration

Inflexible application of policy (no express power to issue pcy).
 *s 6A(1)(b) Migration Act: An entry permit shall not be
granted … unless he is a spouse, child or aged parent of an
Australian citizen.
 [Once satisfied, then Minister has discretion whether to
grant permit, and must consider the merits]
 *Departmental Policy: The marriage “must be considered to
be genuine and ongoing” before consideration may be given.
 *C married an Australian resident, and applied for resident
status on the ground of his marriage.
 *His application was refused, and he requested
reconsideration.
 *Minister did not consider that C had an “ongoing” marriage
 applied the policy  decided not to reconsider C’s
application. No attention was given to any particular
circumstances of C.
 C was a spouse under s 6A(1)(b). Thus, his application for
reconsideration should be considered on its merits.
 C’s application for reconsideration was not considered on its
merits, and was rejected on an erroneous view that C had to
have an “ongoing” marriage before he was entitled to have the
merits of his case considered  invalid decision.

Re Findlay
Policy not ultra vires (no express power to issue policy).
 *ss 60(1) & (2) Criminal Justice Act: Home Secretary may
refer cases of prisoners to the Parole Board for advice, and
may release a prisoner on licence if the Parole Board
recommends it.
 *New Policy adopted by Home Secretary: Home Secretary
will refuse to exercise his power for certain classes of
offenders, in all but the most exceptional cases.
 *Home Secretary agreed to continue allowing the Parole
Board to see all cases, on the understanding that the Board’s
reviews would take account of the new policy.
 *Parole Board considered the applicants’ cases in light of the
new policy.
 The policy is valid, because it expressly allowed for
exceptional cases (unlike in Rendell).
 The policy can be applied inflexibly to the applicants, because
of (1) the complexity of issues which the Secretary must