Case: Reg v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32 ; (1979) 180 CLR 322
Outcome: followed
In Reg v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32 ; (1979) 180 CLR 322 at 329, Mason J, with whom Gibbs J agreed at 324, explained the significance of a statutory requirement that a decision-maker "have regard to" costs necessarily incurred in providing nursing home care in a particular nursing home when determining a scale of fees. Mason J said that the expression "have regard to" required the decision-maker to take the costs into account and give them weight "... as a fundamental element in making his determination": Sean Investments 180 CLR at 329. He explained that in that case there were two reasons for such a construction, first, that the costs were the only matter explicitly mentioned as a matter to be taken into account and, secondly, the scheme of the provisions was that once an approval were given, the proprietor of the nursing home was not permitted to exceed the scale of fees fixed by the decision-maker. 104 As Mason J pointed out the section did not require the decision-maker there to fix the scale of fees exclusively by reference to particular costs. The decision-maker was entitled to have regard, he said, to other relevant considerations. But, the function of the decision-maker was to determine a scale of fees for the particular nursing home, not all nursing homes. Thus the Act directed that regard be had to the costs incurred in providing care in that nursing home: Sean Investments 180 CLR at 329. 105 I am of opinion that when s 152CR(1)(d) required the Commission, in making a final determination, to take into account Telstra's direct costs of providing access to the ULLS in the manner the Commission proposed, it was required to take that matter into account, together with the other matters referred to in the section, and to give weight to them as a fundamental element in making its decision: The Queen v Toohey; Ex parte Meneling Station Pty Limited [1982] HCA 69 ; (1982) 158 CLR 327 at 333 per Gibbs CJ applying what Mason J had said in Sean Investments 180 CLR at 329 to a section requiring a decision-maker to take a variety of matters into account. Mason J said that the requirement to have regard to a matter meant that it would become a central element for the decision-maker in his considerations: Meneling Station 158 CLR at 338. And, as he later explained in his classic judgment in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power. Mason J said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no great importance, but the preferred ground on which that power was to be exercised was that the decision was "manifestly unreasonable". A person entrusted with a discretion must call his own attention to the matters which he is bound to consider: Peko-Wallsend 162 CLR at 39 per Mason J applying Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 228 per Lord Greene MR. 108 Because s 152CR(1) required it to take into account each of the seven specified factors, the Commission had to give each of them appropriate consideration in arriving at its final determination. The number and variety of factors which a statute requires a decision-maker to take into account or to have regard to in arriving at a decision necessarily affects the weight any one of those factors must be given in the deliberative process. In Sean Investments [1979] HCA 32 ; 180 CLR 322 , the costs were fundamental - or foundational - because they were the only matter which the statute prescribed. The subject matter, scope and purpose of the statutory power provide a context in which to assess the duties it imposes on the decision-maker in any particular situation: cf: Foster v Minister for Customs [2000] HCA 38 ; (2000) 200 CLR 442 at 452 [22] - [23] per Gleeson CJ and McHugh J, Gaudron and Hayne JJ agreeing with their Honours at 454 [32].