However, there are significant other issues in the factual matrix provided which indicate that there may be grounds for judicial review on the basis of extended ultra vires, to which the remainder of this paper will now address.
Question (b) The Council’s policy on bicycles: has it been inflexibly applied? Is the policy itself invalid for example on the grounds of unreasonableness and/or uncertainty?
Inflexibility: - Policies do not enjoy the status of legislation or of regulations made under an Act, however they do enjoy a great deal of administrative status and a degree of legal status as well. Policies normally set objectives and also include considerations designed to achieve the objectives of the policy. There is two types of policy: formal and informal. Formal policy is in a legal, legislative form, while an informal policy refers to guidelines not in strict legal form that regulate or guide a series of decisions authorised by law. The major characteristic of informal policy is that it refers to matters of value rather than to matters of fact or law. Cases turning on inflexible application of policy are rare, partly because decision makers are normally both free and encouraged to take policy into account: Adams v MIMA (1997) 70 FCR 591 (Drummond J); Stuart v Chief of the Army (1999) 59 ALD 729; [1999] FCA 501 at [30] per Beaumont J; Hicks v Aboriginal Legal service of Western Australia (2000) 61 ALD 451; [2000] FCA 544 (Carr J) at [40].
Determining whether the decision maker has applied policy inflexibly can sometimes be difficult. Challenges to decisions where there has been a failure of the duty to exercise discretionary power properly could be brought under s 5/6(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) where a decision was not authorised by an enactment; or s 5/6(1)(e) an improper exercise of power which includes an exercise of a discretionary power at the direction or the behest of another person (s 5/6(2)(e)); and an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case (s 5/6(2)(f)). Failure to exercise discretionary power could also be the subject of an application under s 7 of the ADJR Act.
It can be argued that the Council applied its policy inflexibly since the policy states that bicycles be banned from city streets except in special circumstances. A bicycle rally to advocate cycling as a form of transport could have been considered as a special circumstance.
Furthermore, will regard to the preamble of the Sydney Roads Act 1979 (NSW), the Council may have adopted a strict interpretation for which its discretionary powers encompass, thereby inflexibly applying their discretion. Note that the preamble states that it is an Act “to adjust the competing rights to use public roads and to provide for the orderly flow of vehicular traffic...”. It can be argued that the Council may have ‘adjusted’ the competing rights with a bias towards motor vehicles due to a strict interpretation of the meaning of ‘vehicular traffic’, thereby not exercising all of their discretion.
Unreasonableness/Uncertainty Grounds: -
In addition to refusing to exercise all of their discretion, there are also significant arguments which can be sustained to purport that the Council made a decision beyond their power.
1. Reasonableness
The test for reasonableness was expounded in the leading case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (known as the Wednesbury Test). Essentially, the gist of the test is that it will apply when decision makers make decisions that are so unreasonable “that no reasonable authority could have ever come to it”, per Lord Greene MR at [234].
One may submit that there was an unreasonable use of power in the instance of the Council because the decision has totally eliminated a party with vested interest in the use of public roads and their right to use the roads. Bicycle riders have been completely disregarded from the consideration of the Council and made it illegal to use Sydney’s public roads. To have used the term “competing rights” in the legislation infers that the legislators had intended to recognise the rights of more than one party to have right of access to public roads.
2. Uncertainty
As per the decision in Television Corporation Ltd v Commonwealth (1963) 109 CLR 59, uncertainty refers to the meaning and application of the provisions of the Act.
In the case of the Council, as previously discussed in this advice, there is substantial ambiguity surrounding the meaning and application of the subject legislation.
Question (3) Comment on the Council’s view of the use of motor vehicles: Is this view formulated on the basis of improper purpose? No evidence?
The Council’s decision has effectively allowed for motor vehicles to monopolise the use of Sydney’s public roads and rendered it illegal to ride bicycles. The Council has listed in their reasons that the use of motor vehicles in the city should be encouraged for commercial reasons, unsubstantiated. This section of the paper will discuss whether the Council’s policy line is formulated on the basis of improper purpose and/or no evidence.
Improper purpose. The duty to act for proper purposes and in good faith is recognised in the ADJR Act. Sections 5(1)(e) and 6(1)(e) deal with situations where the decision-making involves an improper exercise of power. Subsection (2) of ss 5 and 6 defines improper exercise of a power to include: -
(a) An exercise of power for a purpose other that a purpose for which the power is conferred; and
(b) An exercise of a discretionary power in bad faith.
Improper purpose and bad faith cases are rare, however in this given case it might be argued that the Council has been acted in bad faith as its decision has been influenced by the NRMA’s “threat” to lobby against the group presently controlling the Council therefore the Council was acting for an improper purpose. This is supported by reference to the case of R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 in which the High Court ruled that a decision maker cannot be influenced by another outside party and must arrive at his own decision upon the merits of the application. Albeit, in the case of Ipec-Air, the Director-General was influenced by government policy. However, one may argue that an analogous distinction can be drawn because in both instances the decision made had severe political implications. In the case of the Council, the decision maker was more concerned about maintaining a diplomatic relationship with the NRMA and big business (with the reference to commercial interests).
Furthermore, the Council was not making a decision on the merits of the Pedal Power Association’s application, rather it simply ruled them out of consideration altogether and made it illegal for that party to access their rights to public roads.
No evidence. The ADJR Act lists the no evidence rule as a separate ground for challenge. A person may apply for an order for review where there was no evidence or other material to justify the making of decision (ss 5(1)(h), 6(1)(h)). This is qualified in ss 5(3) and 6(3) which specifies that the no evidence ground will not be made out unless:
- the person who made the decision was required by law to reach the decision only if a particular matter was established, and there was no evidence or other material (including facts of which he/she was entitled to take notice) from which he/she could reasonably be satisfied that the matter was established; or
- the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
In the instance of the Council, there is little to comment on the no evidence rule, with the exception that the Council may need to substantiate their decision and further explain what is meant by “commercial interests”.
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