Q 4 Adminstrative Law 2001 – Semester 1 Mark - 82/100
The role of the secretary could be challenged on the grounds that she was not the authorised person to fill the position on the Reconciliation Board.
Prima facie, an act will not fall within the statute unless it is done by the person in whom the statute reposes the power, Ombudsman Case. The decision which was made by the secretary on the Reconciliation Commission did not specify exactly who the d-m was to be. Rather, regard must be had to the “Government Appointees Act (NSW)”. In very definite terms, the act states that the secretary would not be authorised to sit on the committee unless approved by the Premier. As the secretary wasn’t approved, she was prima facie unable to sit on the committee, enabling R to challenge the validity of her input on the decision. However, if a delegate or agency principal relationship can be established between the MAA and the secretary, then it may suffice to validate the secretary’s position on the committee. Delegation must be through a formal instrument signed by the Minister, Fazal Din. Here, there is no evidence of formal instrument of appointment. Further, a delegate can only generally only be appointed where there is an express power to delegate in the statute, Ombudsman Case. There is no evidence of a power to delegate in the “Government Appointees Act”, however the strict terms of provision 1 suggest that a delegate would not be authorised without the Premier’s approval, otherwise it would defeat provision 1. Given the likelihood of establishing a delegate relationship between MAA and the secretary is unlikely, the chance of an agency relationship sufficing to give the secretary the requisite authority to sit on the committee is more remote.
Thus, it may be considered that the Secretary was not authorised to sit on the committee and make a decision, thereby breaching s5(1)(c) [wrong] of the ASJR Act which requires a decision be made by an authorised person.
This has further ramifications as because the secretary wasn’t authorised to sit on the board, it means that the board wasn’t a properly constituted body. A decision made by an invalidly constituted body will lead to an invalid determination, Re Kretchmer. This means that R can challenge the validity of the rejection of his application. R has 2 avenues open to him. Either he can apply to the court for a writ of certiorari quashing the decision, and a writ of mandamus to have the decision made again according to the law, that is by a validly constituted body. Alternatively, the Board may reconstitute itself validly and rehear the decision as, being improperly constituted, the Board was not “functus officio” and therefore hadn’t dismissed the proceeding, Re Kretchmer.
Other grounds on which R could challenge the Minister’s decision are as follows.
- Failure to consider relevant matters, s5(2)(b) ADJR Act and R v ABT at common law. A decision may not be invalidated where a d-m has failed to take account of a relevant consideration in reaching a decision, R v ABT. Here, it may be established that there was a failure to conduct an inquiry to obtain relevant information which should have been considered, Sean Investments. The Minister should have inquired as to the reason why there was only one dissent while eight other committee members approved the application.
- Dictation, s5(2)(e) ADJR Act. Here, the ultimate discretion lies with the Prime Minister. For a discretion to be valid, it must be a real exercise of discretion, not a mere acceptance of a commendation by someone else in whom the discretion is not entrusted, Telstra v Kendal. Here, the PM appears to have blindly followed the recommendation of the committee without question.
- Failure to consider the merits of the individual case, s5(2)(f) ADJR Act. For the reasons cited above, the PM has not considered the merits of R’s case, Randell.