Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: referred to
It was accepted by the applicant that Direction No 21 is "not so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion". I think that approach is correct. In other words, where the decision under s 501(2) is made by the Minister, as opposed to his delegate, jurisdictional error is not established simply by showing a misconstruction of Direction No 21; it must be shown that the Minister acted outside the terms of the statutory power. Section 501(2) does not state the matters the Minister must or may take into account in exercising the discretion. In exercising an apparently unconfined discretion the determination of the limits of the statutory power is made having regard to the subject-matter, scope and purpose of the power and the Act in which it appears. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24, Mason J said at 40: "In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd , adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury , and Water Conservation and Irrigation Commission (NSW) v Browning . By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act." (Footnotes omitted.) 27 As I understood it, the applicant also conceded that if all the Minister did was to take into account as a matter in favour of cancelling the applicant's visa the fact that the applicant had no children then although the Minister had misconstrued Direction No 21 that would not constitute a jurisdictional error. I think that concession was correctly made because there is nothing in the nature and purpose of the statutory provisions to indicate that the fact that the applicant had no children is a matter the Minister was prohibited from taking into account. 28 The applicant submits that the Minister in fact made a more serious error than simply taking into account that the applicant had no children and that the error he made was a jurisdictional error. I do not find it easy to articulate the more serious error identified by the applicant but, as I understand it, it was that the Minister had found that the best interests of the children favoured cancellation of the visa when in fact that there were no children. I reject that submission. A fair reading of the Minister's reasons is that he found that the fact that the applicant had no children was a matter in favour of cancelling his visa. That was a misconstruction of Direction No 21 but not a jurisdictional error.