LLB358 Australian administrative law

Grounds of Judicial Review

Relevant and irrelevant considerations

A decision may be invalid where a decision maker:

 has failed to consider a mandatory relevant consideration OR

 has relied on an irrelevant (or prohibited) matter

when making that decision.

When conducting review of a decision on either of these grounds, the court is

concerned only with whether the matter is a mandatory relevant consideration and, if
so, whether it has in fact been considered. And, on the other hand, if a matter is an
irrelevant or prohibited consideration, the court is concerned only with whether it has
been ignored.

Either way, the decision maker may fall into jurisdictional error if they get it wrong.

There is a ‘middle ground’ here: some considerations are neither mandatory nor
prohibited; they are ‘permissible’. i.e., the decision maker may consider them or
ignore them. The decision maker will not fall into error either way. We will discuss
this grey area.

Note that, although we study the two considerations grounds together

(because they overlap), they are distinct grounds of review (see Creyke for a
sound explanation of the distinction).

Note that the court must take care to stick to their role. Bannister (pp. 474-5) reminds
us:
‘When considering whether these grounds of review are made out, the issue
is simply whether or not the decision-maker considered the matter in
question. These grounds of review are not concerned with how much
‘weight’ the decision-maker placed on a particular consideration.’ [emphasis
added]

Reading

Introductory (only if needed)

Withnall Howe (3rd edn): [10.4]-[10.10]

Textbooks

Bannister text: pp. 474-486

Bannister sources: pp. 390-402 (extracts from Mason J in Peko Wallsend; Black CJ and
Burchett J in Tickner v Chapman; Stephen J in Murphyores)

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Further reading

Rigby, Haydn, Administrative Law Principles, pp. 216-219

ADJR Act
Sections 5(1)(e) and 6(1)(e)  ss 5(2)(a) and (b) and 6(2)(a) and (b)

Key cases

 Lu v Minister for IMIA (2004) 141 FCR 346

 Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 (HCA)
(Bannister sources pp. 390ff)

 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1 (Bannister

sources pp. 400ff)

 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13

 R v Trebilco; Ex parte FS Falkiner & Sons (1936) 56 CLR 20

 Sean Investments v Mackellar (1981) 38 ALR 33

 Tickner v Chapman (1995) 57 FCR 451 (Bannister sources pp. 396ff)

Other case examples

 APRA v TMeffect P/L (2018) 158 ALD 473; [2018] FCA 508

 Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1

 Plaintiff M64/2015 v MIBP (2015) 258 CLR 173

Study Questions

1. Is the issue of whether a particular matter is a mandatory relevant consideration

or a permissible consideration or an irrelevant consideration a question of fact or
of law?

2. What are the rules (the ‘test’) for this ground of relevant / irrelevant
considerations as devised by Mason J in Peko-Wallsend? (see Rigby p. 216)

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3. How do the courts define ‘consideration’ in Hindi and in Tickner v Chapman?

What does it require of the decision maker?

4. Proof: how do courts make a finding about which matters were considered by a
decision maker (and which were not)? i.e., what sorts of evidence would an
applicant need to show they had considered various matters? (see Creyke 6th ed
[11.4.21] and ff)

5. Does the ruling in Tickner v Chapman unrealistically demand too much of

decision makers in certain sorts of cases? Does the court suggest any ways
around the problems faced by the Minister with respect to the sealed envelopes
and the cultural prohibition on men viewing materials relating to First Nations
women’s cultural business?

6. In what circumstances can a senior administrator rely on a ‘briefing paper’

prepared by a more junior officer to discharge their obligation to consider the
matters it contains? (Creyke [11.4.18] and ff)

7. Why did the applicant fail to establish there had been an irrelevant matter
considered in Murphyores?

8. Explain the ruling in Lu v Minister for IMIA (2004) 141 FCR 346 (following Peko)
that, to amount to jurisdictional error, the applicant must show that the failure to
consider a matter was ‘material’ to the decision? What does the court mean by
this term? What might this concern with ‘materiality’ be designed to achieve in
terms of the values and aims of administrative law, particularly judicial review and
its scope?