mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: House v Forestry Tasmania [1995] TASSC 95 ; (1995) 5 Tas R 169
Outcome: referred to
summary, delegated legislation may be held invalid because it is an unreasonable exercise of the empowering provision or because the delegated legislation is not reasonably proportionate to the purposes of the empowering provision. There is considerable overlap between the two grounds of review (see De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502 at 510) (" De Silva v Minister for Immigration and Multicultural Affairs "). As the Court does not have authority to conduct merits review, the test in the case of each ground of review is a very demanding one and, in the final analysis, involves a question of whether the delegated legislation represents a real exercise of the power in the empowering section. Cases in which delegated legislation has been held invalid on either ground of review are rare. Examples of cases in which regulations under the Act have been held invalid on the unreasonableness ground are Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77 and Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ; (1999) 94 FCR 219. Examples of cases in which delegated legislation has been held invalid on the reasonable proportionality ground of review are Re Gold Coast City Council By-laws [1994] 1 Qd R 130 , Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 Qd R 314 , Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 (1995) 86 LGREA 288 and House v Forestry Tasmania [1995] TASSC 95 ; (1995) 5 Tas R 169.
Case: Kruse v Johnson [1898] 2 QB 91
Outcome: referred to
Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977 , a local government by-law was challenged on the ground, among others, that it was unreasonable. The challenge was rejected by the High Court. Griffith CJ referred (at 982) to the English decisions of Slattery v Naylor (1888) 13 App Cas 446 (" Slattery v Naylor ") and Kruse v Johnson [1898] 2 QB 91 and formulated (at 983) the test of unreasonableness for delegated legislation in terms of "no reasonable man, exercising in good faith the powers conferred by the Statute, could under any circumstances pass such a by-law". Isaacs J referred with approval (at 986) to two statements in the advice of the Privy Council in Slattery v Naylor (at 452-453), namely, a by-law may be struck down as unreasonable where it is "a merely fantastic and capricious bye-law, such as reasonable men could not make in good faith" and a by-law will not "be treated as unreasonable merely because it does not contain qualifications which commend themselves to the minds of judges".
Case: Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ; (1999) 94 FCR 219
Outcome: referred to
summary, delegated legislation may be held invalid because it is an unreasonable exercise of the empowering provision or because the delegated legislation is not reasonably proportionate to the purposes of the empowering provision. There is considerable overlap between the two grounds of review (see De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502 at 510) (" De Silva v Minister for Immigration and Multicultural Affairs "). As the Court does not have authority to conduct merits review, the test in the case of each ground of review is a very demanding one and, in the final analysis, involves a question of whether the delegated legislation represents a real exercise of the power in the empowering section. Cases in which delegated legislation has been held invalid on either ground of review are rare. Examples of cases in which regulations under the Act have been held invalid on the unreasonableness ground are Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77 and Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ; (1999) 94 FCR 219. Examples of cases in which delegated legislation has been held invalid on the reasonable proportionality ground of review are Re Gold Coast City Council By-laws [1994] 1 Qd R 130 , Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 Qd R 314 , Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 (1995) 86 LGREA 288 and House v Forestry Tasmania [1995] TASSC 95 ; (1995) 5 Tas R 169.
Case: Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77
Outcome: referred to
summary, delegated legislation may be held invalid because it is an unreasonable exercise of the empowering provision or because the delegated legislation is not reasonably proportionate to the purposes of the empowering provision. There is considerable overlap between the two grounds of review (see De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502 at 510) (" De Silva v Minister for Immigration and Multicultural Affairs "). As the Court does not have authority to conduct merits review, the test in the case of each ground of review is a very demanding one and, in the final analysis, involves a question of whether the delegated legislation represents a real exercise of the power in the empowering section. Cases in which delegated legislation has been held invalid on either ground of review are rare. Examples of cases in which regulations under the Act have been held invalid on the unreasonableness ground are Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77 and Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ; (1999) 94 FCR 219. Examples of cases in which delegated legislation has been held invalid on the reasonable proportionality ground of review are Re Gold Coast City Council By-laws [1994] 1 Qd R 130 , Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 Qd R 314 , Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 (1995) 86 LGREA 288 and House v Forestry Tasmania [1995] TASSC 95 ; (1995) 5 Tas R 169.
Case: Minister of State for Resources v Dover Fisheries Pty Ltd [1993] FCA 366 ; (1993) 43 FCR 565
Outcome: discussed
Minister of State for Resources v Dover Fisheries Pty Ltd [1993] FCA 366 ; (1993) 43 FCR 565 , Gummow J discussed the reasonable proportionality ground of review in relation to delegated legislation and the operation of the doctrine of reasonable proportionality in the area of federal constitutional law. The proportionality principle is "differently focused" in the former case: "The fundamental question is whether the delegated legislation is within the scope of what the Parliament intended when enacting the statute which empowers the subordinate authority to make certain laws: see Austral Fisheries at 383-384, per Lockhart J". (Citation omitted.)
Case: Mixnam's Properties Ltd v Chertsey Urban District Council [1964] 1 QB 214
Outcome: discussed
there appear to be differences between the Australian and English approaches to the doctrines of unreasonableness, certain observations of Diplock LJ in Mixnam's Properties Ltd v Chertsey Urban District Council [1964] 1 QB 214 at 237-238 have been referred to in the authorities in this country and are of assistance: "The various special grounds upon which subordinate legislation has sometimes been said to be void&#8212;for example, because it is unreasonable; because it is uncertain; because it is repugnant to the general law or to some other statute&#8212;can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute. Thus, the kind of unreasonableness which invalidates a by-law is not the antonym of 'reasonableness' in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say: 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires'." (Citation omitted.) On appeal, these observations were apparently approved: Chertsey Urban District Council v Mixnam's Properties Ltd [1965] AC 735.
Case: Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 Qd R 314
Outcome: referred to
summary, delegated legislation may be held invalid because it is an unreasonable exercise of the empowering provision or because the delegated legislation is not reasonably proportionate to the purposes of the empowering provision. There is considerable overlap between the two grounds of review (see De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502 at 510) (" De Silva v Minister for Immigration and Multicultural Affairs "). As the Court does not have authority to conduct merits review, the test in the case of each ground of review is a very demanding one and, in the final analysis, involves a question of whether the delegated legislation represents a real exercise of the power in the empowering section. Cases in which delegated legislation has been held invalid on either ground of review are rare. Examples of cases in which regulations under the Act have been held invalid on the unreasonableness ground are Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77 and Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ; (1999) 94 FCR 219. Examples of cases in which delegated legislation has been held invalid on the reasonable proportionality ground of review are Re Gold Coast City Council By-laws [1994] 1 Qd R 130 , Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 Qd R 314 , Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 (1995) 86 LGREA 288 and House v Forestry Tasmania [1995] TASSC 95 ; (1995) 5 Tas R 169.
Case: Re Gold Coast City Council By-laws [1994] 1 Qd R 130
Outcome: referred to
summary, delegated legislation may be held invalid because it is an unreasonable exercise of the empowering provision or because the delegated legislation is not reasonably proportionate to the purposes of the empowering provision. There is considerable overlap between the two grounds of review (see De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502 at 510) (" De Silva v Minister for Immigration and Multicultural Affairs "). As the Court does not have authority to conduct merits review, the test in the case of each ground of review is a very demanding one and, in the final analysis, involves a question of whether the delegated legislation represents a real exercise of the power in the empowering section. Cases in which delegated legislation has been held invalid on either ground of review are rare. Examples of cases in which regulations under the Act have been held invalid on the unreasonableness ground are Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77 and Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ; (1999) 94 FCR 219. Examples of cases in which delegated legislation has been held invalid on the reasonable proportionality ground of review are Re Gold Coast City Council By-laws [1994] 1 Qd R 130 , Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 Qd R 314 , Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 (1995) 86 LGREA 288 and House v Forestry Tasmania [1995] TASSC 95 ; (1995) 5 Tas R 169.
Case: Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 (1995) 86 LGREA 288
Outcome: referred to
summary, delegated legislation may be held invalid because it is an unreasonable exercise of the empowering provision or because the delegated legislation is not reasonably proportionate to the purposes of the empowering provision. There is considerable overlap between the two grounds of review (see De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502 at 510) (" De Silva v Minister for Immigration and Multicultural Affairs "). As the Court does not have authority to conduct merits review, the test in the case of each ground of review is a very demanding one and, in the final analysis, involves a question of whether the delegated legislation represents a real exercise of the power in the empowering section. Cases in which delegated legislation has been held invalid on either ground of review are rare. Examples of cases in which regulations under the Act have been held invalid on the unreasonableness ground are Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77 and Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ; (1999) 94 FCR 219. Examples of cases in which delegated legislation has been held invalid on the reasonable proportionality ground of review are Re Gold Coast City Council By-laws [1994] 1 Qd R 130 , Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 Qd R 314 , Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 (1995) 86 LGREA 288 and House v Forestry Tasmania [1995] TASSC 95 ; (1995) 5 Tas R 169.
Case: Slattery v Naylor (1888) 13 App Cas 446
Outcome: discussed
Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977 , a local government by-law was challenged on the ground, among others, that it was unreasonable. The challenge was rejected by the High Court. Griffith CJ referred (at 982) to the English decisions of Slattery v Naylor (1888) 13 App Cas 446 (" Slattery v Naylor ") and Kruse v Johnson [1898] 2 QB 91 and formulated (at 983) the test of unreasonableness for delegated legislation in terms of "no reasonable man, exercising in good faith the powers conferred by the Statute, could under any circumstances pass such a by-law". Isaacs J referred with approval (at 986) to two statements in the advice of the Privy Council in Slattery v Naylor (at 452-453), namely, a by-law may be struck down as unreasonable where it is "a merely fantastic and capricious bye-law, such as reasonable men could not make in good faith" and a by-law will not "be treated as unreasonable merely because it does not contain qualifications which commend themselves to the minds of judges". In Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd , a management plan under s 7B of the Fisheries Act 1952 (Cth) was challenged on the ground that it was a form of delegated legislation which was capricious and irrational. The plan contained a statistical fallacy which led to unfair catch allocations. The trial judge accepted the applicant's arguments and declared that the plan was void. His decision was upheld on appeal. In the course of his reasons on the appeal, Lockhart J considered the scope of the unreasonableness ground of review. His Honour said (at 382): "Delegated legislation is not invalid on the ground of unreasonableness in the sense that the courts may form a different view as to what is reasonable. Unreasonableness in this branch of the law means unreasonable in the sense that 'a merely fantastic and capricious by-law, such as reasonable men could not make in good faith' is bad, because delegated legislation of this kind could not be regarded as an exercise of the power conferred upon the subordinate legislative body making the delegated legislation: Slattery v Naylor (1888) 13 App Cas 446 at 452." A little later, his Honour said (at 384): "Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws." (See also the joint judgment of Beaumont and Hill JJ at 400-401).
Case: The Mayor, Councillors and the Citizens of the City of Brunswick v Stewart [1941] HCA 7 ; (1941) 65 CLR 88
Outcome: discussed
The Mayor, Councillors and the Citizens of the City of Brunswick v Stewart [1941] HCA 7 ; (1941) 65 CLR 88 (" Brunswick Corporation v Stewart "), a local government by-law dealing with the erection and construction of buildings was challenged on the ground, among others, that it was unreasonable. The challenge was rejected by the High Court. Williams J referred (at 99) to unreasonableness as involving "oppressive or gratuitous interference with the rights of those who are subject to it as could find no justification in the minds of reasonable men".
Case: The State of South Australia v Tanner [1989] HCA 3 ; (1989) 166 CLR 161
Outcome: discussed
is convenient to begin the analysis with a brief discussion of the relevant cases dealing with unreasonableness and a lack of reasonable proportionality as grounds for holding that delegated legislation is invalid. The cases before The State of South Australia v Tanner [1989] HCA 3 ; (1989) 166 CLR 161 (" Tanner ") deal principally, if not exclusively, with the unreasonableness ground of review. Tanner is the leading High Court case on the doctrine of reasonable proportionality in relation to delegated legislation. In that case it was held that delegated legislation will not be valid where it is not capable of being considered to be reasonably proportionate to the end to be achieved. It is not enough that the Court thinks the delegated legislation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power. The Court found support for the ground of review in the judgment of Dixon J in Williams v Melbourne Corporation .
Case: Vanstone v Clark [2005] FCAFC 189 ; (2005) 147 FCR 299
Outcome: cited
leaving this brief review of the cases, I refer to the illuminating discussions of the relevant principles in De Silva v Minister for Immigration and Multicultural Affairs and Vanstone v Clark [2005] FCAFC 189 ; (2005) 147 FCR 299 at 331-343 [99] - [160] per Weinberg J. See also Pearce D and Argument S, Delegated Legislation in Australia (3 rd ed, LexisNexis Butterworths, 2005) at 253-267 [21.1]-[21.19]; Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (4 th ed, Lawbook Co, 2009) at 378.
Case: Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977
Outcome: discussed
Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977 , a local government by-law was challenged on the ground, among others, that it was unreasonable. The challenge was rejected by the High Court. Griffith CJ referred (at 982) to the English decisions of Slattery v Naylor (1888) 13 App Cas 446 (" Slattery v Naylor ") and Kruse v Johnson [1898] 2 QB 91 and formulated (at 983) the test of unreasonableness for delegated legislation in terms of "no reasonable man, exercising in good faith the powers conferred by the Statute, could under any circumstances pass such a by-law". Isaacs J referred with approval (at 986) to two statements in the advice of the Privy Council in Slattery v Naylor (at 452-453), namely, a by-law may be struck down as unreasonable where it is "a merely fantastic and capricious bye-law, such as reasonable men could not make in good faith" and a by-law will not "be treated as unreasonable merely because it does not contain qualifications which commend themselves to the minds of judges".
Case: Williams v The Mayor, Aldermen, Councillors and Citizens of the City of Melbourne [1933] HCA 56 ; (1933) 49 CLR 142
Outcome: discussed
Williams v The Mayor, Aldermen, Councillors and Citizens of the City of Melbourne [1933] HCA 56 ; (1933) 49 CLR 142 (" Williams v Melbourne Corporation "), a local government by-law dealing with the driving of cattle through public streets was challenged on the ground that it was unreasonable. Dixon J (as he then was) said (at 155) in a passage quoted many times since: "To determine whether a by-law is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the by-law appears on its face to relate to that subject. The true nature and purpose of the power must be determined, and it must often be necessary to examine the operation of the by-law in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power. (Compare Widgee Shire Council v. Bonney .)" (Citation omitted.) A little later in his reasons, Dixon J referred (at 156) to the question of whether a restraint embodied in the by-law could be reasonably adopted for the purpose set out in the empowering provision.
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Katisat [2005] FCA 1908
Outcome: cited
The appellant asserted that the Tribunal was obliged to contact the persons who had signed the additional documents that she provided. She submits that the Tribunal should have investigated the matter further. The Tribunal was not obliged to do so. It was for the appellant to present her case. The Tribunal was under no duty to summons the authors of the documents or to inquire into their evidence ( Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Katisat [2005] FCA 1908 at [38] - [67] per Bennett J). In any event, the Tribunal simply placed no weight on the documents because of its prior finding on credibility and those documents were not, in any event, central to the decision of the Tribunal.
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: cited
The appellant asserted that the Tribunal was obliged to contact the persons who had signed the additional documents that she provided. She submits that the Tribunal should have investigated the matter further. The Tribunal was not obliged to do so. It was for the appellant to present her case. The Tribunal was under no duty to summons the authors of the documents or to inquire into their evidence ( Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v Katisat [2005] FCA 1908 at [38] - [67] per Bennett J). In any event, the Tribunal simply placed no weight on the documents because of its prior finding on credibility and those documents were not, in any event, central to the decision of the Tribunal.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Outcome: followed
The Tribunal did not find that the additional documents submitted by the appellant after the hearing were fraudulent. It said that, because it found the appellant lacking in credibility, it was unable to place weight on the further statements and documentation that she provided regarding her husband's accident and subsequent treatment. The Tribunal made a comprehensive finding about the appellant's credibility. It stated, with some care, the basis for that finding based upon a series of factual matters and it explained its reasons in each case. It then found that considering the evidence cumulatively, it did not accept the appellant's claims. Having made that prior finding on credibility, the Tribunal was entitled to place no weight on evidence purportedly corroborative of the appellant's case ( Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] per Gleeson CJ and [49] per McHugh &amp; Gummow JJ).