Courts, Tribunals and Government Policy
| DOI | 10.1177/0067205X8001100203 |
| Date | 01 June 1980 |
| Published date | 01 June 1980 |
| Author | Dennis Pearce |
| Subject Matter | Article |
COURTS, TRIBUNALS AND GOVERNMENT POLICY
By
DENNIS
PEARCE*
Th,e
inclusion in legislation
of
adiscretionary power to be
exercised by amember
of
the bureaucracy is nowadays common-
place. Such adiscretion is usually open-ended and the basis on
which it is to be exercised is spelled out in only the most general
terms. To enable the discretionary power to be exercised consistently
and in accordance with the intentions
of
the government, it is
customary to find apolicy being adopted relating to the manner
of
exercise
of
the discretion. This article is concerned with the attitude
adopted by courtsandtribunals when reviewing governmental action
based on apolicy relating to adiscretion.
It
will be seen that the
courts have moderated an original approach that disapproved
of
the
reliance by decision-makers on policy rulings. Tribunals, on the
other hand, and the Administrative Appeals Tribunal in particular,
will be shown to have rejected constraints that may have been
thought to have been placed upon them by governmental policy
statements.
For many Ministers and public servants it often seems that the fact
that amatter has been decided in accordance with government policy
forecloses further debate. How often one hears those grandiloquent
phrases "The policy of the government
is
...
"or "In future, the govern-
ment will,
as
amatter of policy
...
". How many claimants are denied
their requests with
"It
is
not the policy of the department to
...
".
Sometimes the policy referred to
is
set out in an Act or in regulations.
More often it
is
astatement of the
way
in which an Act or regulation is
to be applied. The purpose of this article
is
to examine the attitude
adopted by the courts and by review tribunals to such statements of
government policy.
Policy and the Courts
Issues relating to governmental policy have come before the courts
in three different
ways.
First, the legality of the policy on which a
decision has been based has been called into question. Secondly, the
validity of adecision made by arigid application of apolicy ruling has
been considered. Thirdly, decisions have been challenged on the basis
thatthe decision-maker has concluded the issue before him in accordance
with the policy directions of another person. These issues will be
considered separately.
(a ) Validity
of
policy
Despite the sanctity with which policy rulings are regarded by most
government servants, statements of policy that are not embodied in
*LL.B. (Adel.), LL.M., Ph.D. (A.N.U.); Reader, Faculty of Law, Australian
National University.
203
204 Federal
Law
Review
[VOLUME
11
legislation have nolegal validity in themselves. They are but statements of
thegovernmental understanding ofthemeaning of the relevant legislation
and themannerin which itshould be applied. If the statement constitutes
awrong interpretation of the legislation or attempts to apply the legis-
lation in an incorrect manner, adecision reached by an application of
the policy will be invalid.
This situation
is
most likely to arise where apolicy statement sets out
criteria
or
conditions which must be complied with before abenefit,
right, licence, appointment, etc. may be granted or made under an Act.
If
these criteria do not, in the view of the court, accord with the terms
of the Act, any decision based on them may be struck down. Arecent
example of this is afforded by the decision of Stephen J. in the High
Court of Australia in Green
v.
Daniels.1There the Court declared that
the criteria adopted by the Director-General of Social Security for
determining when aschool leaver qualified for unemployment benefits
were invalid. The Director-General had ruled that no school leaver was
to be eligible for benefits before the commencement of the next ensuing
school year. This, said the Court, was not aproper test for determining
whether aperson was "unemployed". The state of being "unemployed"
might well arise before that date and aperson should thereupon be
regarded as qualified for the payment of benefits.
Instances of this kind of judicial intervention are numerous and it is
not proposed to pursue the examples further here.2There is, however, a
less frequently occurring variant that should be mentioned. This
is
where
the court upholds the validity of the policy but rules that its application
in the particular case
is
unreasonable. The courts have been very slow to
intervene on this ground because they quite properly take the view that
their role is not to conduct ageneral review of administrative decisions
on the merits. If, however, adecision is regarded as "so unreasonable
that no reasonable authority could ever have come to it",3 the court will
set aside the decision. An example of the adoption of this approach
occurred in England in 1964. Acouncil inserted conditions in aplanning
approval that required the company seeking the approval to construct an
ancillary public road on their own property. The approval also avoided
any right of compensation for this effective acquisition of the company's
land for the public benefit. The Court of Appeal considered that the
conditions were "so unreasonable as to
go
beyond anything that Parlia-
ment can have intended, or that any reasonable authority could properly
have imposed".4
1(1977) 13 A.L.R.
1.
2See further Whitmore and Aronson, Review
of
Administrative Action (1978)
ch.6.
3Associated Provincial Pictures
Ltd
v. Wednesbury Corporation [1948] 1K.B.
223, 230 approved
in
Australia in Parramatta City Council v. Pestell (1972) 128
C.L.R. 305, 327 per Gibbs J.
4Hall &Co.
Ltd
v. Shoreharn-by-Sea UDC [1964] 1W.L.R. 240, 249.
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