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Class Notes

Week 8 Lecture Notes

Covers narrow ultra vires in administrative law—when decision-makers act beyond their legal powers. Topics include statutory interpretation, procedural breaches, jurisdictional facts, and leading cases like Project Blue Sky and Kioa v West.

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    Lecture Notes Introduction to Narrow Ultra Vires ' Lthra v -as is when a d e d » o n - m a k a r T i t a s a aecsicn -diet i beyond h a w k e y are al ewed tc exercise their power. Definitions Jurisdiction ■ power to docide U ltrs Vires ■ beyond power * The exercise of executive power may involve: >an administrative decision, >an administrates action, or >a tegislative acton (delegated legislaton’) > can only be renewed through common law ■ There s no a rc jn-sta nces w are a c sc sicn-rr akar has uftirr ate p o w e r . ■ The scope as to where e decision- T a k e r ' s power beg ns and ends will always be e question of a ■ .. • Al i administrative powers are limited. * The courts use the ultra vires grounds of review to identity and enforce limits an power. -Question of law Power

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    * An adminisiralive decision or action ttial is beyond a power's limit is ... > ultra vires, and ... > an error of law, and ... > trivahd. * Traditionary, ultra vires has been the principal way that the common law has woited to keep the executive accountable. * The procedures that must be followed before the power can be exercised. * The subject matter over which power is granted. * The actions that power is granted to perform. Ultra Vires and Statirtory Interpretation Classic Prosu rnptions nl Statutory Interpretation • Courts ShiuJd flrve ar. nilfip’irtllkjr Ifial gives tiled M |l:e u'dedyny purpose of the staluto over n irfafprelataii that wflctd tend to deical 1hat purpose The purposive approach is P» prefenw! and odhockw appnjaci k> statutory interpxlatKzi: Acte !'ir&7XEiaHorT fid ?90f (Cth) s15AA (+ ■ s15AE]; Acts In Isrpefaliorr Act f9K (CH) sUA [+ sUB; ■ Remedy statutes nr siaintes designed in confer a beneft. sfrruXd be iite iy construed ■ lecslalkn should nol be inte'p'tfad as derigra'irg longStandng cornrrwn law rights and freedoms wifoutbear words (eg.' J raedorn of contract, property rgils, piracy and trespass; ■ letrda&cri shoiAd n« Irrpose retwpectiv* obligation* unless mere are clear words ■ Express powers endixta addiboral mplied powers > le sJaben dcesn t regtriti access ro Cajrts wthcul very c '.ear words (and even Lnen Courts read sucft reslncticns very nsrroty)

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    > Purposive InterpreiHtion Waters if pL'Wrc Transport CCVT1711SLIL1 1 ? (1991} 103 ALR 513 >Did the Vide- an Squal Opportunities Board possess lhe power to investigate a complaint against a decision to replace tram conductors with ticket venS'ng machines under an express power to investigate ‘discrimination on the ground of disability? > T h e principle that reqtires that the partcular provisions of the Act must be need in the light d the sWtutcry ob.eels is ol particular significance in the case d legislate which protects or entrees human rights: (per Mason CJ and Caudron J at 520). Common law principles and Individual rights • A well-asteblislwd common taw prmopte ot statutory Irrterpfetaton is the presumption that legisalures do not intend 10 en ower ctecteton-maim to aversely impact individual ngfili unless there is a clear intention to the contrary. * firopto v Western Ausfrafia (1990} 171 CLR 1: Crown was bourxJ 10 comply wth statutory protections of an Aboriginal hentaga site. The HC said >11 is '... improbable that the legislature would overthrow fundamental prinoptes, infringe ghts or dec-art from the general system of law. without expressing its intention wlh irresistible clearness.' (at 17-10) * Cocc v R (1994) 120 ALR 415: the H 01 Court herd tiat a genarail h - w d M acttinisWlw power to auifonse police to irstai a HsHnqj device to collect evdence did not rictode a power authoreing secral entry to the house m oner lo Instar fie device However, the prolection of common lew nghti can often conflict wllti Mhanetaig ItM objects of legislation with e remedial purpose. ■ Arthwy Lagcai Sialno Pty Ltf v Mawcs (197B) 74 ALR 77 > The painttffS sough* Io overturn an cmer of the Carrrnlsaoner attowng the Northern Land Ccuncl to acctss crown tend subjeci to a land rights claim The pianirffs pastoral ease surrounded the tend subject to Hie dam. > FC held the order was ultra vires (2 1) and split war whether the legislator needed to specify a power ‘wen nesisfiNe rteamess'. > As t a po«cr had nd t«r. ini nJ d enrty in th* erjsn- n fd ornr r of r*i Cciii'i'ifiHorrH' was lAS 6'ul.

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    Judicial deference to executive power * VanoL® factors influence the degras of de’eraoce dat (he courts grant 10 an agency: > Statutory terms e g. w th unstructured powers' the courts are tew likely to scrutinise the agency ico dosely because the subject matier may be tco controversial or 'po ifcal >The nature of the agency's role: Courts wll defer Io an agency's technical expertise, particularly in relation to (non- jjritocliwal) fact’li-iding (gee lecture M j >Th# effect on the applicant's interests, a court is likely io more closely scretinisfr an administraiM deo&nn which has a serious and erect affect on the legrtmate inwests of the appfcant Procedural Ultra Vires ■ The most basic form of ultra vires is procedural ultra vires, ■ A failure to oorripiy with statutory procedures will constitute grounds for judicial review under both: > A D J R A ss 5(1}(b) & 6(1)(b) > J R A s s 20(2)(b) &21{2)(b) • P p, zzaa .ra: uhra vires requires us to »en:ify"thesto'ps'tha: have to be fa ; zv.sa by a declaton-nnaltor :n craarfor a power to exist ■ The decision- v aker f as to follow :b ose stops in order to valirz y axcrcis: :hat power. ■ If :hs zez sion-mansr ■ zoss - ' : fa z w t h a stops praparty :hs n :hsy -..or t os acting with " fto powsr thay ■ -s baan granite ano their decision will ba ultra . ' i t s .

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