Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: applied
On the evidence, I infer that the Minister did consider whether to inform other ministers under s 131(1)(a) of his proposed decision to approve the channel deepening project, and he determined not to do so on the advice of his department. He was entitled to rely on the recommendations of his department and their officers: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 30-31 per Gibbs CJ, and 65-66 per Brennan J ( Peko-Wallsend ). There is therefore no basis for the claim that the Minister failed to comply with s 131(1) in this regard. 102 Having found that the Minister considered whether to inform other ministers of his proposed decision to approve the channel deepening project, the next question is whether the belief that other ministers did not have administrative responsibilities relating to the project was so unreasonable that a reasonable minister could not have formed that belief. The applicant must establish that the Minister's conclusion, when viewed objectively, was "so devoid of any plausible justification that no reasonable [person] could have reached [it]": Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821 per Lord Diplock. See also Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, 233-234 per Lord Greene MR; Fares Rural Meat &amp; Livestock Co Pty Limited v Australian Meat &amp; Livestock Corporation [1990] FCA 139 ; (1990) 96 ALR 153 at 166 per Gummow J; Peko-Wallsend at 41 per Mason J. 111 As to the first limb of the ground, it was necessary for the applicant to establish that s 136(1)(a) bound the Minister to take into account the three allegedly relevant matters. The proper approach was explained by Mason J in Peko-Wallsend Ltd at 39 40 as follows: (a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 183, 196-197; Ashby v Minister of Immigration [1981] 1 NZLR 222 at 225, 230, 232-233. ... (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion... If the relevant factors and in this context I use this expression to refer to the factors which the decision-maker is bound to consider are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. 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 (1979) HCA 62 ; (1979) 144 CLR 45 at 49-50, adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury [1937] HCA 15 ; (1937) 56 CLR 746 at 757-758, and Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21 ; (1947) 74 CLR 492 at 505. 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.