Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: followed
A failure to take into account a relevant consideration only vitiates a decision if that consideration was one which the administrator was " bound " to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. 39 None of the considerations identified by the Applicant are relevant considerations which the President was " bound " to take into account when making a decision pursuant to s 46PH(4). And some of the " Particulars " alleging considerations which, it is said, should have been taken into account do not fully set forth the facts relevant to the consideration relied upon. 40 One specific matter may be instanced. One "Particular" , again repeated in respect to the other Grounds of Review , asserts that the First Respondent failed to consider correspondence in which it is alleged the delegate " told the applicant he would be harmed if he continued the complaint ". Such a statement in correspondence emanating from the Commonwealth or its officers or delegates, without more, would be disturbing. The context, however, explains the true nature of what was being conveyed to the Applicant. 61 There is no objective basis upon which any such view could be reached in the present case. To the extent, for example, that it is alleged that it was unreasonable to take into account some considerations, a fundamental difficulty confronting the Applicant is that the considerations taken into account have been held to be relevant to the exercise of the discretionary power conferred by s 46PH(4). A further difficulty is that the weight to be given to any consideration is a matter for the First Respondent and not for the Court: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. Mason J there at 41 2, in an oft cited passage, observed: It follows that, 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 the statutory power.... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene MR in Wednesbury Corporation [[1948] 1 KB at 230, 233 4], in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss 5(2)(g) and 6(2)(g) of the AD(JR) Act in these terms. ... However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied. ... But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice. ... So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits. Nothing of that kind has been exposed in the present proceedings. 62 A further way in which the Applicant wishes to advance the Ground of unreasonableness, and also a way in which he seeks to contend that there has been a failure to take into account matters said to be relevant, is his repeated requests made of the Commission and the delegate as to the " need to gather more information ". The Applicant urged both the President of the Commission, and later the delegate, to make inquiries. The delegate took the position that it was not his task to conduct detailed inquiries with a view to resolving potentially competing factual accounts, but rather to seek to conciliate the complaint if at all possible. At the outset, in a letter written to the Applicant on 24 November 2006, the delegate wrote in part as follows: As I have indicated in previous correspondence my function is not as such to make a final or binding determination of the factual issues in the complaint; I am not required to make an operative decision of these matters. I am to inquire into the complaint and to attempt to conciliate it. This may or may not be what you would wish ideally to be the position; you may wish that the legislation provided something different from this. But I do ask you to understand that that is what the legislation provides and that it is all that I can do. Please assist me by focussing on this and by bearing in mind during the conciliation that this is what is involved. It will help you to understand what I am doing and what I have done.