LAWS50032 · Administrative Law
Grounds of Review
This is the analytical engine of Part A. After issue-spotting the grounds against a closed menu, you must answer two questions: (1) was the decision affected by jurisdictional error — did the decision-maker act outside the limits Parliament set (Craig; Kirk)? and (2) what is the consequence — is the act invalid? That turns on Project Blue Sky (did Parliament intend invalidity?) and on materiality (Hossain → SZMTA → MZAPC → LPDT 2024). The grounds menu itself includes acting without authority, unlawful or inflexible policy, error of law, procedural fairness, and — the three covered in depth here from Topics 12–14 — invalid delegation (and the Carltona agency principle), improper purpose, and relevant/irrelevant considerations (the Peko-Wallsend propositions). Each of these is an implied limit on a statutory discretion, read off the enabling Act by construction and codified in ADJR s 5. Markers reward the drilled drill: identify and argue all arguable grounds for breadth, then take your strongest through the full two-stage breach → materiality analysis for depth.
What this chapter covers
- 01The closed grounds menu — issue-spot against it
- 02Jurisdictional vs non-jurisdictional error (Craig; Kirk)
- 03Invalidity: did Parliament intend invalidity? (Project Blue Sky)
- 04Materiality (Hossain → SZMTA → MZAPC → LPDT 2024)
- 05Invalid delegation and the Carltona agency principle
- 06Improper purpose (dominant/substantial); R v Toohey
- 07Relevant and irrelevant considerations (the Peko-Wallsend propositions)
- 08Consequences of breach (Bhardwaj); discretion to refuse relief
Worked example: ground, breach and materiality
- +1Issue-spot the grounds (breadth): two arguable grounds — improper purpose (a power used for an unauthorised purpose; ADJR s 5(2)(c)) and failure to take a relevant consideration (a mandatory consideration ignored; ADJR s 5(2)(b)).
- +1Construe the implied limits: both grounds are read off the enabling Act — the authorised purposes and the mandatory considerations come from the statute by construction (Peko-Wallsend).
- +1Improper purpose — the test: if an unauthorised purpose was substantial or dominant, the ground is made out (R v Toohey; Samrein).
- +1Breach → materiality: ask whether Parliament intended invalidity (Project Blue Sky) and whether the error was material — could it realistically have changed the outcome (LPDT 2024)?
- +1Conclude: a material breach Parliament intended to invalidate means the decision is affected by jurisdictional error and liable to be quashed, subject to the discretion to refuse relief.
Key terms
- Jurisdictional error
- An error that takes the decision-maker outside the limits Parliament set (Craig; Kirk). It founds the constitutional writs and, subject to Project Blue Sky and materiality, renders the decision invalid; the JE/non-JE label matters chiefly for the writs.
- Project Blue Sky
- The authority for the consequence question: breach of a statutory requirement does not automatically invalidate — ask whether Parliament intended that an act done in breach be invalid, construing the statute as a whole.
- Materiality
- The requirement that an error be capable of realistically affecting the outcome before it founds invalidity (Hossain → SZMTA → MZAPC → LPDT 2024). LPDT (2024) is the controlling authority; always reach materiality in the consequence analysis.
- Improper purpose
- A ground of review (ADJR s 5(2)(c)): exercising a power for a purpose it was not conferred to serve. It is made out where an unauthorised purpose was the substantial or dominant purpose of the decision (R v Toohey; Samrein).
- Relevant and irrelevant considerations
- Grounds (ADJR s 5(2)(a)/(b)) read off the enabling Act: the decision-maker must take into account the considerations the Act makes mandatory and must not take into account those it prohibits. The Peko-Wallsend propositions govern which considerations are mandatory.
Grounds of Review FAQ
What is jurisdictional error?
An error that takes the decision-maker outside the limits Parliament set, so the decision is not a 'decision made under the Act' (Craig; Kirk). It founds the constitutional writs and, where Parliament intended invalidity (Project Blue Sky) and the error is material (LPDT), renders the decision invalid. It is the central organising concept of judicial review.
Does every breach make a decision invalid?
No — this is the two-stage point. First, did Parliament intend a breach of this requirement to invalidate the decision (Project Blue Sky)? Second, was the error material — could it realistically have changed the outcome (LPDT 2024)? Only a material breach Parliament intended to invalidate produces invalidity.
How do I structure a grounds answer in Part A?
Breadth then depth: issue-spot every arguable ground against the closed menu to bank the breadth marks, then pick your strongest and run the full analysis — state the ground and section, construe the implied limit off the Act, show the breach, then run breach → materiality (Project Blue Sky; LPDT) to the consequence, and consider the discretion to refuse relief (Aala).
What is the Carltona principle?
The agency principle: a Minister (or other repository) may act through a duly authorised departmental officer — the officer is the alter ego or agent — without express authority, because administration would otherwise be unworkable (Carltona; adopted in Australia in O'Reilly v State Bank of Victoria). It answers the 'unauthorised decision-maker' ground.
Exam move
This is where Part A is won or lost, so over-practise the structure. Keep the closed grounds menu visible and issue-spot against it for breadth, then drill the consequence engine until it is automatic: jurisdictional vs non-jurisdictional (Craig; Kirk) → did Parliament intend invalidity (Project Blue Sky) → was it material (LPDT 2024). For the Topics 12–14 grounds, learn the construction move: invalid delegation (is the decision-maker the statutory repository or a lawful delegate/Carltona agent?), improper purpose (substantial or dominant unauthorised purpose — Toohey), and considerations (the Peko-Wallsend propositions for what is mandatory). Always cite the ADJR s 5 sub-section and the leading case, then carry your strongest ground through to materiality.
