Administrative law › Module guides › Authority grounds

The idea

Authority grounds ask two questions that come before any question about how a discretion was exercised: did the power exist, and did the right person exercise it. You answer them by walking the statute and pinpointing the source of power to the exact subsection, then classifying what each provision does before you name a ground. A jurisdictional fact is a matter Parliament made a precondition to the power existing at all.

Jurisdictional facts split in two. An objective fact the court decides for itself, without deferring to the decision maker even in grey areas (Enfield; Plaintiff M70). A state of mind fact is reviewed only for serious illogicality or irrationality, a high bar and a ground of last resort (SZMDS). The second half of the module is delegation and agency: a minister may act through departmental officers because the functions are too numerous to perform personally (Carltona), but a duty framed for personal attention, such as reading representations, cannot be handed down (Tickner; Peko-Wallsend), and a coercive power needs clear words.

Some rules carry a small icon marking the structure the rule takes. The icon is a reading aid and nothing more. The facts of the cases and the words of the rules do the work.

Attack plan

1. Identify the act under challenge and locate the exact source of power, pinpointed to the subsection (s 19(1)(b), not s 19).
2. Read the statutory language at the classification gate before you name any ground. "In deciding whether ... must have regard" is a mandatory consideration during exercise, "must not ... unless" is a precondition, and "if the repository reasonably believes" is a subjective jurisdictional fact.
3. Branch on that reading. On a precondition or objective jurisdictional fact ask whether the fact existed (Enfield; Plaintiff M70); on a subjective one ask whether the state of mind was formed reasonably (SZMDS); on a bare authority question ask whether the act fell within the power (ABC Developmental Learning Centres).
4. Test the decision maker. Walk the delegation chain in its own terms and remember that a power to delegate cannot itself be delegated (Acts Interpretation Act s 34AB(1)(b)).
5. Then run the agency alternative always, whether the delegation holds or fails (Carltona; Peko-Wallsend).
6. Where a valid chain is planted, check it and move on. Never invent a ground from a clean chain.

Cases at a glance

Case	In a line
Corporation of the City of Enfield v Development Assessment Commission	The special industry question was an objective jurisdictional fact. The court decides for itself whether the fact existed and does not defer in grey areas to the planning authority
Plaintiff M70/2011	The s 198A criteria were objective jurisdictional facts on the plurality view because the power was not framed by what the Minister thinks or believes. Malaysia did not meet them, so the declaration was invalid
MIAC v SZMDS	A state of mind jurisdictional fact is reviewed only for serious illogicality or irrationality. The bar is high, the ground was not made out, and it is one of last resort
ABC Developmental Learning Centres	Departmental demands for information sent interstate were beyond power. Construed in context and purpose the provision confined the power to persons at the licensed premises, and a coercive power needs clear words (at [31])
Peko-Wallsend	Mason J, an express delegation power does not exclude an implied power to act through the agency of others. The detriment consideration still required the Minister's personal attention
Tickner v Chapman	The duty to consider representations required personal reading. Staff could sort and summarise, but photographs and confidential material could not be discharged by summary
Ron Pattenden v Commissioner of Taxation	A detailed delegation and a coercive departure prohibition order. Copying a signature was clerical, but recalculating the liability was a substantive exercise the subordinate could not perform
Carltona	A minister may act through departmental officers because ministerial functions are too multifarious to be exercised personally, and the minister remains accountable to Parliament

The rules

R89 · How do you classify a provision before naming an authority ground? keyring Read the statutory language before naming the ground: 'in deciding whether to grant the Minister must have regard' marks a mandatory consideration, 'must not grant unless' marks a precondition, and 'if the repository reasonably believes' marks a subjective jurisdictional fact.

R90 · When is a criterion an objective jurisdictional fact and how is it reviewed? checklist An objective jurisdictional fact is a criterion whose existence enlivens the power, and the court decides for itself whether the fact existed at the time of the decision without deference to the repository. Enfield ; Plaintiff M70.

R91 · When is a criterion a subjective jurisdictional fact and how is it reviewed? compass A subjective jurisdictional fact requires the repository to form the state of mind reasonably, and the court reviews only for serious illogicality or irrationality such that no rational decision maker could have reached that satisfaction. SZMDS.

R92 · How is a subjective jurisdictional fact treated when it sits inside a procedural precondition? arrow A subjective jurisdictional fact can be integrated inside a procedural precondition, so where a show cause requirement is enlivened by the repository's reasonable belief in a serious and imminent threat the ground is read as one, not two. s 46(4).

R93 · How do you decide whether an act fell within a statutory power, especially a coercive one? staircase The power and its limits are settled by construing the provision in context and purpose, and a coercive power to demand information under threat of prosecution must be conferred in clear and unambiguous language. ABC Developmental Learning Centres at [31].

R94 · What ground arises where a decision maker treats a discretion as a duty? arrow A statement that the repository is under a duty to revoke converts a discretion into a duty, which misconstrues the power and so is an act without authority; construe the verb and do not accept the decision maker's own label.

R95 · Can a delegate sub delegate the delegated power? arrow A power to delegate does not itself include a power to delegate that power, so a delegate cannot sub delegate unless the Act displaces the rule with clear words. Acts Interpretation Act s 34AB(1)(b).

R96 · When may an officer exercise a repository's power through agency? arrow A repository may in general authorise an officer of the department to exercise a function on the repository's behalf, and in law the officer's act is the act of the repository. Carltona.

R97 · Does an express power to delegate exclude the availability of agency? arrow An express delegation power does not exclude an implied power to act through the agency of others. Peko-Wallsend.

R98 · When is agency defeated? arrow Agency is defeated where the nature, scope and purpose of the function show that Parliament intended personal exercise, as with a duty to consider representations that no summary can discharge. Tickner v Chapman.

R99 · How is agency treated where the delegation scheme is detailed and the power coercive? compass Where a delegation scheme is detailed and the power is coercive, implied agency is difficult to establish, and an officer who performs a substantive part of the power rather than a clerical task acts without authority. Ron Pattenden v Commissioner of Taxation.

R100 · After resolving sub delegation, what must always be run next? staircase Whatever the sub delegation answer, the agency alternative is always run next, because the officer may still have acted through the agency of the repository. Carltona.

R101 · What do you do with a delegation chain that is valid at each step? arrow Never invent a ground from a clean chain; where a delegation chain is valid at each step, check it and move on.

Common traps

The precondition run as a jurisdictional fact. Its words ("in deciding whether to grant ... must have regard") make it a mandatory consideration during the exercise, not a precondition and not a jurisdictional fact. Read the verb before you name the ground.

The integrated ground almost no one saw. In supp 1 a subjective jurisdictional fact, the reasonable belief in a serious and imminent threat, sat inside the show cause precondition in s 46(4). Separate treatment of belief and procedure still scored, but the H1 ceiling was to read the belief as integrated into the requirement to show cause rather than as a free standing ground.

The mischaracterised duty. A statement that the repository is under a duty to revoke converts a discretion into a duty, which misconstrues the power and so is an act without authority. The 2025 cousin is a deemed ineligibility under an invalid rule that strips the exceptional circumstances safety valve. Construe the verb and do not accept the label.

Stopping at sub delegation. Where a delegate purports to sub delegate, the anti sub delegation rule in Acts Interpretation Act s 34AB(1)(b) is only the first half. Whatever the sub delegation answer, the agency alternative is always run next because the officer may still have acted through the agency of the repository (Carltona). A lot of students dropped the marks by stopping early.

Signed on behalf. In supp 1 Cath drafted and signed a notice on behalf of Borris, her 500th that year, and Borris had reviewed and approved it. The answer was not automatic. Because he had reviewed the decisions there was arguably sufficient personal exercise of his power, but the marks were in the agency analysis, not in a conclusion asserted without one.

The planted non issue. The 2025 delegation chain from Minister to Secretary to Sam was valid at each step, and the marks flowed to those who checked the chain and moved on. Never invent a ground from a clean chain. Checking a valid chain and saying so is the answer the examiner rewarded, not a manufactured defect.

Practise this module

The practice bank runs this module inside invented scenarios with a Pass answer, an H1 answer and examiner's comments for every drill. Read the rules above, then attempt the bank blind and mark yourself against the model.

Practise this module →