LAWS50032 · Administrative Law
Statutory Interpretation and Vires
This is the bedrock of administrative law: government may act only on a lawful (statutory) source of power, and only within the limits that source sets. Acting within power is intra vires; acting beyond it is ultra vires and reviewable. Identifying those limits is a task of statutory interpretation — text, context and purpose, plus presumptions including the principle of legality. The source-of-power rule traces to Entick v Carrington and A v Hayden (No 2) (no coercive act without positive lawful authority), and even broad or discretionary powers are bounded by the statute's purpose (Church of Scientology v Woodward). This topic is the engine of every judicial-review ground and the home ground of the 25% statutory-interpretation take-home. Because the exam statute is released around 1 June, you can pre-map who holds the power, the preconditions, the discretion and its limits before you ever see the facts — and markers reward correct construction first (text→context→purpose), then authority.
What this chapter covers
- 01The source-of-power principle: no power without lawful authority
- 02Intra vires vs ultra vires; what 'jurisdiction' means
- 03Text → context → purpose, and the presumptions
- 04The principle of legality
- 05Lawful application of policy (flexible, not inflexible)
- 06Key cases: Entick, A v Hayden, Woodward, ICAC v Cunneen, Smethurst, Green v Daniels
Worked example: is the decision within power?
- +1Find the source and read its limits: the power exists, but its words ('to protect public safety') and purpose set its boundary — a power is bounded by the statute's purpose (Church of Scientology v Woodward).
- +1Construe by text, context and purpose: the cancellation power is conferred for a safety purpose, so its lawful field is decisions genuinely directed at public safety.
- +1Apply: cancelling to punish an unrelated complaint is outside that purpose — the power was used for a purpose it was not conferred to serve.
- +1Conclude: the cancellation is ultra vires and reviewable; the officer acted beyond the limits the statute set.
Key terms
- Source-of-power principle
- Government may interfere with rights or take coercive action only on a positive lawful source of power (Entick v Carrington; A v Hayden (No 2)). If there is no lawful source, there is no power, and the act is unlawful.
- Intra vires / ultra vires
- Within power / beyond power. A power exercised within the limits the statute sets (by text, context and purpose) is intra vires and valid; exceeding those limits is ultra vires and reviewable.
- Text, context and purpose
- The orthodox method of statutory interpretation: read the words in their statutory context and in light of the Act's purpose to find the limits of a power. ICAC v Cunneen is a model of close construction narrowing an apparently wide power.
- Principle of legality
- An interpretive presumption that Parliament does not intend to abrogate fundamental rights or oust judicial review except by clear words. It pulls the construction of a power towards a rights-respecting reading.
- Lawful application of policy
- A decision-maker may apply a general policy to guide a discretion, but must not apply it inflexibly so as to shut out the merits of the individual case (Green v Daniels; Re Drake (No 2)). Inflexible application is itself a ground of review.
Statutory Interpretation and Vires FAQ
What is the difference between intra vires and ultra vires?
Intra vires means within power — the decision-maker stayed inside the limits the statute set by its text, context and purpose. Ultra vires means beyond power — the limits were exceeded, and the act is reviewable. Almost every judicial-review ground is, at bottom, a way of showing a decision was ultra vires.
How do I actually interpret a statutory power in the exam?
Read the conferring provision by text, then context, then purpose, and bring in the presumptions (especially the principle of legality). Identify who holds the power, the preconditions to its exercise, the scope of any discretion, and the implied limits. Because the exam legislation is released around 1 June, do this mapping before you see the facts.
Can a decision-maker rely on a policy?
Yes, but only flexibly. A lawful policy can guide a discretion, but applying it so rigidly that the individual case is never genuinely considered is an inflexible-application-of-policy ground (Green v Daniels; Re Drake (No 2)). The line is between a policy that informs the decision and one that dictates it.
Exam move
Treat construction as the first move in every Part-A answer and the whole of the take-home. Drill the source-of-power rule (no power without lawful authority) and the text→context→purpose method until you can map a fresh statute fast: power-holder, preconditions, discretion, limits. Keep a short authority spine — Entick / A v Hayden (source of power), Woodward (purpose bounds power), ICAC v Cunneen and Smethurst (close construction), Green v Daniels (no inflexible policy). Because the exam statute is released early, pre-map it; markers reward correct construction first, then the cases that support it.
