Administrative law › Module guides › Discretion grounds

The idea

Discretion grounds attack how a power was exercised rather than whether it existed. You harvest them by walking the statute subparagraph by subparagraph, reading each as an instruction to the decision maker, and only then labelling the ground. The three families are considerations, policy, and unreasonableness or irrationality.

Mandatory relevant considerations are found by construing the Act, and while the decision maker must genuinely take them into account the weight given is generally for the decision maker, not the court (Peko-Wallsend). To consider representations is an active intellectual process of reading, understanding and evaluating them (Tickner; Plaintiff M1/2021). Policy may guide a discretion but cannot displace the statutory criteria or be applied rigidly (Drake; Green v Daniels; Plaintiff M64/2015). Unreasonableness is made out where a decision lacks an evident and intelligible justification (Li), but the test is stringent and the court does not remake the decision (Stretton; DUA16).

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 reason under attack and the provision that houses it. Grounds are harvested by walking the statute subparagraph by subparagraph as if each were an instruction to the decision maker.
2. Considerations walk. Ask whether the provision made a matter a mandatory relevant consideration, whether the material was an irrelevant consideration once construed, and whether the decision maker brought an active intellectual process to bear (Peko-Wallsend ; Tickner ; Plaintiff M1/2021 ).
3. Purpose check. Construe the authorised purpose, then ask whether an unauthorised purpose was a substantial purpose but for which the power would not have been exercised (Samrein).
4. Policy check. If a policy guided the reason, test it for lawfulness and for inflexible application (Green v Daniels ; Drake (No 2) ).
5. Unreasonableness is the residual. Ask whether the decision lacks an evident and intelligible justification, and hold it to the stringent standard (Li ; DUA16 ). Each box carries its own authority. Construe first every time.

Cases at a glance

Case	In a line
Peko-Wallsend	The Minister granted land without weighing the detriment the Land Commissioner was required to report on. Mandatory considerations are found by construing the Act, and weight is for the decision maker
Tickner v Chapman	The Minister declared a bridge ban after reading part of the report and none of the sealed representations. To consider is an active intellectual process the Minister had to perform personally
Plaintiff M1/2021	The joint judgment fixed the standard of engagement with representations. The decision maker must read, identify, understand and evaluate them within the bounds of rationality and reasonableness
Re Drake (No 1)	Borrowed from Topic 2.4. Policy may guide a discretion, but the repository cannot abdicate its function to whatever the policy says
Green v Daniels	A waiting rule for school leavers added a criterion the statute did not contain. Policy is unlawful where it is inconsistent with the statutory criteria
Plaintiff M64/2015	A visa priorities policy was neither inconsistent with the Act nor applied rigidly. Policy promotes consistency and rationality and stays lawful where it leaves room for the merits
Li	The tribunal refused an adjournment abruptly with no evident justification. A decision is legally unreasonable where it lacks an evident and intelligible justification
Stretton	A visa cancellation on character grounds was not unreasonable. The indicators are read against a broad substantive discretion, and the court does not remake the decision
DUA16	A tribunal decided after a non appearance. The test for unreasonableness is necessarily stringent because courts will not lightly interfere with a statutory discretion
SZMDS	A protection finding rested on inferences from a brief return to Pakistan. Irrationality requires that no logical decision maker could reach the state of mind, and not every lapse in logic qualifies
Samrein	The water board resumed land partly for a joint venture. An unauthorised purpose invalidates only where it is substantial in the but for sense
Schlieske	Deportation was used to effect a disguised extradition to West Germany. The power may be exercised only for the purposes of the Act

The rules

R102 · When is a matter a mandatory relevant consideration? arrow A mandatory relevant consideration is one the decision maker is bound to weigh, found in the express words of the statute or implied from its subject matter, scope and purpose. Peko-Wallsend.

R103 · Who decides the weight to give a relevant consideration? compass The weight to give a relevant consideration is for the decision maker and not the court, absent a statutory direction on weight or an outcome that is legally irrational. Peko-Wallsend.

R104 · How should a complaint about wrong weight be run? arrow A wrong weight complaint is not a considerations complaint and should be run as unreasonableness, because the failure lies in the outcome and not in a failure to advert to the matter at all.

R105 · What does it mean to consider a matter? checklist To consider a matter is to bring an active intellectual process to bear on it, so a summary or an assurance from another will not discharge a personal duty to consider. Tickner v Chapman.

R106 · What standard of engagement with representations does the decision maker owe? checklist The decision maker must read, identify, understand and evaluate the representations, and the level of engagement depends on their nature, form and content within the bounds of rationality and reasonableness. Plaintiff M1/2021 at [24].

R107 · Is there a duty to consider a claim not clearly raised? arrow There is no duty to consider a claim not clearly articulated or not clearly arising on the materials, and the weight to give the representations remains for the decision maker.

R108 · How is it decided whether a consideration is irrelevant? arrow Whether a consideration is irrelevant is a question of statutory construction, so the statute is construed first and the matter is labelled second. Peko-Wallsend.

R109 · Does every overlooked relevant consideration justify setting the decision aside? arrow Not every relevant consideration overlooked will justify setting the decision aside, because a factor may be so insignificant that its omission could not have materially affected the outcome.

R110 · When does an unauthorised purpose vitiate the exercise of a power? compass An unauthorised purpose vitiates the exercise only where it is a substantial purpose, in the sense that no attempt to exercise the power would have been made but for the desire to achieve it. Samrein.

R111 · May a deportation power be used to achieve extradition? arrow A power to deport may not be used to achieve a disguised extradition, because steps whose only purpose is to deliver a person to a foreign prosecution fall outside the purpose of the Act. Schlieske.

R112 · When is a policy lawful and when may it be departed from? arrow A lawful policy may guide a discretion but must not fetter it, and it is applied unless cogent reasons show the policy unlawful or its application unjust in the case. Drake (No 2) cross referred; Green v Daniels.

R113 · What does the cogent reasons formula require? arrow Cogent reasons means the policy is unlawful, as where it superimposes a criterion the statute does not contain, or its application would be unjust on the individual facts.

R114 · Must a decision maker applying a policy still hear the individual? arrow Even where many like applications are processed, the decision maker must stay ready to hear anyone with something new to say. British Oxygen noted; Ipec-Air noted.

R115 · When does a policy remain lawful despite promoting consistency? arrow A policy promotes consistency and rationality and is not a recipe for maladministration where it leaves room for the merits. Plaintiff M64/2015.

R116 · Can a repository surrender its discretion to a policy? arrow The repository may be guided by policy but cannot surrender its function to whatever the policy provides, and where it follows a policy it should make clear it considered the propriety of applying it and give reasons. Re Drake (No 1).

R117 · Can a repository act at the direction of another? arrow A repository must reach its own decision and cannot act at the direction or behest of another, unless the statute requires directions to be followed.

R118 · What is the test for legal unreasonableness? compass Unreasonableness is a legal standard not a merits complaint, and a decision is legally unreasonable where it lacks an evident and intelligible justification on the statute properly construed. Li.

R119 · How stringent is the unreasonableness standard? compass The standard is necessarily stringent because a court will not lightly interfere with a discretion, and the indicators are read against the scope, purpose and objects of the power. DUA16 ; Stretton.

R120 · When is irrationality made out? compass Irrationality is made out where a state of mind was not open on the evidence or no logical connection joins the evidence to the conclusion, and not every lapse in logic will suffice. SZMDS.

R121 · What ground arises where a decision maker treats a discretion as compelled? arrow A statement that the decision maker is under a duty to revoke, or a deemed ineligibility under an invalid rule that strips a safety valve, converts a discretion into a duty and misconstrues the power; name the discretion, then show it was treated as compelled.

Common traps

The false irrelevant consideration. The tip that looks plainly extraneous may fall inside a relevant consideration once the Act is construed. Construe first and label second. Peko-Wallsend is a construction case before it is a labelling case.

The considerations ground is not a jurisdictional fact. A provision that says in deciding whether to grant the Minister must consider a matter is a mandatory relevant consideration during the exercise, not a precondition to power. Keep the ground in Topic 11 and leave jurisdictional facts to their own analysis.

The mischaracterised duty. I am under a duty to revoke converts a discretion into a duty, and it is the 2022 pattern. The 2025 cousin is deemed ineligible under an invalid rule that strips the exceptional circumstances safety valve. Both are misconstructions of the power. Name the discretion, then show the decision maker treated it as compelled.

The merits complaint dressed as unreasonableness. An answer that argues the decision was wrong has asked for merits review, which the framing sentence of the memo already disclaimed. Legal unreasonableness asks whether the decision lacks an evident and intelligible justification on the statute, not whether the court would have decided differently. Point to the indicator, not to the outcome you prefer.

The half stated policy formula. Citing Drake and the cogent reasons formula without Green v Daniels content earns half the marks. Cogent reasons means the policy is unlawful or its application unjust in the circumstances. Complete the formula every time and tie it to the statutory criteria the policy displaced.

Li, Stretton and DUA16 are not synonyms. Li supplies the standard of an evident and intelligible justification. Stretton supplies the indicators and the restraint on a substantive discretion. DUA16 supplies the stringency. Deploy them as a standard plus indicators plus a threshold, not as three interchangeable citations for one proposition.

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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.

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