administrtive law notes

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ADMINISTRTIVE LAW NOTES Who can bring an application for judicial review? Ripeness or prematurity Wong Keng Leong Rayney v Law Society of Singapore General principle: To consider a premature application for leave to seek judicial review in essence as one made before the actual decision making process of the tribunal at first instance is completed. Exceptions: “where an interlocutory decision has a “substantial effect”, an exception to the prematurity concept may be made … (a) where the decision is not about individual items of evidence but whole areas which would fundamentally affect the conduct and utility of the procedure; (b) where there is a real risk of irreparable damage as a result of the interlocutory decision and therefore no real opportunity to challenge it at a later stage; and/or (c) where there is a real danger supported by evidence that there would be a breach of natural justice at the hearing… [(d)] …an early challenge to an interlocutory decision may not be inappropriate if there may be savings in terms of cost in not exposing the applicant to the full decision-making process and in dealing with the matter immediately. ..

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Page 1: Administrtive Law Notes

ADMINISTRTIVE LAW NOTES

Who can bring an application for judicial review?

Ripeness or prematurity

Wong Keng Leong Rayney v Law Society of Singapore

General principle:

To consider a premature application for leave to seek judicial review in essence as one made before the actual decision making process of the tribunal at first instance is completed.

Exceptions:

“where an interlocutory decision has a “substantial effect”, an exception to the prematurity concept may be made …

(a) where the decision is not about individual items of evidence but whole areas which would fundamentally affect the conduct and utility of the procedure;

(b) where there is a real risk of irreparable damage as a result of the interlocutory decision and therefore no real opportunity to challenge it at a later stage; and/or

(c) where there is a real danger supported by evidence that there would be a breach of natural justice at the hearing…

[(d)] …an early challenge to an interlocutory decision may not be inappropriate if there may be savings in terms of cost in not exposing the applicant to the full decision-making process and in dealing with the matter immediately. ..

[(e)] …to allow the review of decisions initiating a process or commencing a train leading to criminal proceedings where a clear question of law arises or if it would be unfair to allow the process even to begin …”

Locus standi

Chan Hiang Leng Colin v MITA (HC) Jehovah’s witnesses seeking judicial review over an order that banned the distribution

of their publications. Court held that they had locus standi but leave for judicial review not granted.

o When applying for leave, the onus was on the applicant to show prima facie that the application was not frivolous or vexatious and that there was some substance in the grounds supporting the application.

o The arguments that the plaintiffs intended to put forth are practically identical to those canvassed in Chang Hiang Leng Colin v PP and so it appeared that

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they were simply seeking another forum in which to canvass points which had already been rejected after thorough consideration. Their application was both frivolous and vexatious.

Chan Hiang Leng Colin v MITA (CA) Court held that they had locus standi but leave for judicial review not granted.

o They had locus standi because they were not challenging the order as members of any group but in their capacity as citizens. They were invoking their constitutional rights as citizens to profess, practise and propagate their religion. They had sufficient interest as if a constitutional guarantee is to mean anything, it must mean that any citizen can complain to the courts if there is a violation of it.

o What test to apply at the application for leave stage – If you interpret IRC v National Federation as having two tests 1) that the court should quickly peruse the material and consider whether it discloses what might on further consideration turn out to be an arguable case 2) the applicant had to make out a prima facie case of reasonable suspicion. Both tests present a very low threshold and there is no real difference between them.

o Issues of national security not justiciable, the courts function is only to see that there was evidence that the disputed decision was based on considerations of national security. There is very little room for the court to apply any higher test than the Wednesbury test as it would necessarily involve the court in a decision on the merits.

When seeking a declaration or injunction

Private right affected

Government of Malaysia v Lim Kit Siang Lim Cho Hock v Government of the State of Perak Tan Sri Haji Othman Saat Both these cases represent the high water marks of the law of locus standi in Malaysia

beyond which the law should be careful not to tread. Plaintiff must have a genuine private interest to be furthered and protected.

Interference with public right causing private right also to be interfered with.

Interference with public right causing special damage peculiar to plaintiff.

Public right affected

When can an application be made?

After exhausting other remedies?

Yee Yut Ee – Certiorari is a discretionary remedy and therefore it will not normally be granted unless and until the plaintiff has exhausted other remedies reasonably available and equally appropriate such as a statutory right of appeal.

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Kang Ngah Wei – Kang had not utilised the mechanism provided for in s. 37(8) of the Act to get back her driving license. A person should, without more, exercise his right under s. 37(8) of the Act to be subjected to a test as to his fitness to drive a motor vehicle rather than seek an order of certiorari.

Borissik Svetlana v Urban Redevelopment Authority – As a general rules, a person seeking judicial review of a decision by a public body must exhaust all alternative remedies before invoking the jurisdiction of the court for judicial review.

Which bodies are subject to judicial review?

This depends on the source of power. According to the GCHQ case, the ultimate source of the decision making power is nearly always a statute or subsidiary legislation made under a statute, but in the absence of any statute, the source of the decision making power may still be the common law itself.

Public bodies with private functions

PSC v Lai Swee Lin Linda (power derived from contract) Linda sought JR of (a) the decision of the Commissioner of Lands to extend her

probationary period one year retrospectively and (b) the decision of the Senior Personnel Board F to terminate her employment and (c) the decision of PSC in refusing her appeal from the two decisions above.

The issue was whether these bodies were exercising a statutory power or a power derived from contract.

o When statutory bodies make decisions, it does not invariably follow that they are exercising a statutory power. Much depends on the circumstances.

o In this case, the letter of appointment issued to Lai constituted a contract of service with the government and hence their relationship was that of employer and employee. The source of powers of the relevant authorities was therefore derived from the contract of employment and are not susceptible to judicial review.

o Lai’s complaints, if they are well founded, would amount only to a breach of contract and there are adequate remedies in private law that cater to that.

o None of the decisions was a decision of general application affecting employees of a public body, they related solely to Lai and were made in accordance with her terms of employment.

Private bodies with public functions

R v Takeovers Panel, ex parte Datafin (domestic body with public law functions) The applicants who were bidding in competition with NPlc to take over a third

company, complained to the takeovers panel that NPlc had acted in concert with other parties in breach of the city code on takeovers and mergers. The panel dismissed the complaint and the applicants applied to the HC for leave to apply for judicial review.

Issue was whether the supervisory jurisdiction of the HC could be extended to the panel.

o The panel oversees and regulates a very important part of the UK financial market. It has no statutory or common law powers and is not in a contractual relationship with the financial market or those who deal in that market.

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o Lacking any authority the panel thus exercising immense power de facto by amending and interpreting the city code and by the application or threat of sanctions.

o It is therefore without doubt performing a public duty. o The source of power is not the sole test.

If the source is a statute or subsidiary legislation then the body in question will be subject to judicial review.

But if the source is contractual then there will be no judicial review. In between these extremes there is the situation where the body in

question is exercising public law functions or where its actions have public law consequences, this may be sufficient to bring the body within reach of judicial review.

o Leave to apply for judicial review granted.

Ganda Oil Industries v KL Commodity Exchange (private body, contractual relationship) An application for an order of certiorari to quash the decision of the KLCE fixing the

price of crude palm oil, on the grounds of excess of jurisdiction and bad faith. KLCE is limited by guarantee and approved by the Minister to be a commodity

exchange under the Commodities Trading Act.o KLCE is a private body. Even though the Minister is to ensure that the body

satisfied certain requirements before he approves it as an exchange, this is only indirect control. Actual management vests in the management board.

o The relationship between the parties who are members of the exchange is clearly contractual and the exercise of the power of the KLCE is also an exercise of power derived under the contract.

o Act should not be made amenable to judicial review.

Tang Kwor Ham (CA) (private body with public functions) Danaharta acquired a non-performing loan from Tan Kwor Ham under the Danaharta

Act. Disagreement arose over the workout proposal and the correct valuation of the land. Representatives of Tan Kwor Ham (company) sought leave to apply for JR on the

grounds that the workout proposal was infused with public elements. Court granted judicial review.

Type of company

Characteristics JR?

Public or private companies

Incorporated under the companies act. No public functions, no statutory duties. Two or more individual shareholders, government may be one of the shareholders.

No. Even if the government owned the shares it does not ipso facto make it amenable to JR.

Hybrids Shares owned by several persons including the government. Like any other company except that it also performs public functions regulated by statute.

Depends. If the nature of the act is within the confines of its private character then no JR. If the nature of the act is ultra vires the statute then there will be JR.

Government companies

Government is the sole shareholder. Funded with public money and have

Yes. Unless the issue is non-justiciable eg. political issues.

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statutory duties and powers. In mere form they are private companies but in substance they are instruments of the government.

Tang Kwor Ham (Federal Court) Decided on third question of law only – whether the Danaharta Act ousts the

jurisdiction of the courts to entertain an application for judicial review. Court overturned the CA decision on the technicality that the Danaharta Act clearly

prohibits an order of court which stays, restrains or affects the powers and actions of Danaharta.

Clubs and associations

Woon Kwok Cheng v Hochstadt (public law function, no contract and affects livelihood) Plaintiff was a professional jockey who had his jockey licensed revoked for 5 years.

After the 5 years elapsed he applied for a new license but was denied by the Malayan Racing Association without giving any grounds for rejection.

Court allowed JR.o MRA is a private members club with its own rules and regulations, however it

conducts and regulates the sport of horse racing and thus affects the lives of a sizable portion of the population. Horse racing is gambling and so the social fabric of the community is affected. MRA monopolises this trade which is significant to the public. Therefore they exercise a public law function or the exercise of their function has public law consequences.

o There is no contractual relationship between the plaintiff and MRA because the plaintiff’s original license had been revoked and the contract terminated, the jockey license he is applying for now is a totally new application and without the remedy of judicial review he would not succeed in private law as there is no contract. Moreover, his livelihood is affected by the trade controlled by the MRA and hence there should be JR.

o The MRA ought to have given reasons the plaintiff is someone whose livelihood is at stake and who had legitimate expectations (aware of the basic criteria for application for a license and is of the opinion that he has fulfilled them) that the application will be considered and if rejected that reasons would be given.

o By rejecting the plaintiff without giving reasons the MRA has breached procedural fairness and natural justice.

Kay Swee Pin v SICC The legal relationship between any club and its members lies in contract and the rights

of the members are determined by the rules of the contract which are founds in the constitution or the rules of the club. The courts generally leave clubs to manage their own affairs but where a club expels a members, it may only do so in compliance with the rules of natural justice.

In this case, membership of SICC is transferable and highly sought after, it is a symbol of social success and has a high economic value as well. In addition, the rules of the club confer on the disciplinary committee very general and extensive disciplinary powers over the club’s members. Therefore, a more rigorous application of the rules of natural justice was called for.

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Hence there is a duty to act in accordance with natural justice ie. fairly. What fairness requires and what is involved in order to achieve fairness is for the courts to decide and not up to the discretion of the decision makers.

What kinds of actions/decisions are subject to judicial review? (administrative vs judicial power)

Formal rules – subsidiary legislation (non-judicial controls over it)

s. 2(1) Interpretation Act – subsidiary legislation means any order, rule, etc having legislative effect.s. 23(1) Interpretation Act – subsidiary legislation shall be published in the Gazette and shall take effect and come into operation on the date of its publication.

Distinguish an instrument that has legislative effect from one that is merely administrative or executive. Instruments with legislative effect, if they are subsidiary legislation will have to be Gazetted.

If the parent act mentions a particular guideline or rule and does not call it a subsidiary legislation, then it does not have to be gazetted.

If you have a parent act that mentions a guideline. It does not need to be gazetted, it is not subsidiary legislation.

Parent act that says that minister shall publish a code and the code is deemed not to be subsidiary legislation then it does not need to be gazetted.

Cheong Seok Leng v PP (failure to publish subsidiary legislation in the Gazette) Appellant was an NSF assigned to the Vigilante Corps school construction brigade

(civil defence duty) in accordance with a direction issued by the Minister for Home Affairs. He was absent from national service and convicted for desertion. Appealed.

Court upheld his appeal:o The minister had acted within the scope of his power and the assignment was

constitutional as it was made pursuant to a delegated power bested in the minister by the relevant act.

o The main issue however was whether the assignment made by the minister was subsidiary legislation.

The true distinction between legislation an execution of legislation (executive power) is between the delegation of power to make the law which involves a discretion as to what it shall be, and conferring an authority of discretion as to its execution, to be exercised under and in pursuance of the law.

In this case, the assignment was an order having legislative effect as it was intended to charge the Vigilante Corps with additional functions and duties which, if not for the assignment, it would not have had. Therefore, the assignment was subsidiary legislation.

o Being subsidiary legislation, the next question was whether publication was required.

s. 23(1) of the Interpretation Act which required subsidiary legislation to be published in the Gazette was held by the courts to be mandatory based on the legislative intent behind it.

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The section is a manifestation of the legislature’s recognition and acceptance of the need to inform or to enable the public to be informed of the law. This is because the common law applies the precept that ignorance of the law is not an excuse for non compliance with the law. Furthermore, under our legal system, a person is at liberty to do what he wishes except that which is prohibited by law or encroaches upon the rights of other, thus he should know what the laws are.

Publication in the Gazette is a means of providing judicial proof of the public having knowledge of such subsidiary legislation.

Formal rules – subsidiary legislation (judicial controls over it)

The minister, in making the subsidiary legislation must ensure that it is not substantively or procedurally ultra vires (outside the scope of power) and the courts will decide if it is. Procedural ultra vires would be acting in breach of the stipulated procedures in the parent Act.

Cheong Seok Leng v PP (substantive ultra vires) Whether s. 5 of the Vigilante Corps Act permitted the Minister to assign civil defence

duties to the Vigilante Corps.o Vigilante Corps Act stated that the Corps shall assist the police force in the

maintenance of law and order, preservation of public peace, the prevention and detection of crime and the apprehension of offenders or such other duties as may be assigned to it by the Minister.

o Vigilante Corps act for the maintenance and preservation of the security and safety of the people of Singapore. If the civil defence duties are connected with this then it would not ultra vires. Civil defence is a function of preventing or reducing further damage or loss to property and life thereby indirectly promoting the maintenance and preservation of the safety and security of the people of Singapore. Therefore the minister acted within the scope of his power.

Whether construction violated art. 10(2) of the Constitution that prohibits forced labour but allows parliament to provide for compulsory service for national purposes.

o Appellant argued that only parliament may do so and not the minister.o Court held that since the minister made the assignment pursuant to a delegated

power vested in him, it is valid. It is a necessary feature of government that some legislation has to be delegated and the language of art. 10(2) should not be strained such that parliament must legislate for each and every aspect and detail of NS.

Informal rules – guidelines, policies, circulars, etc.

The rationale for establishing informal rules is to allow for flexibility. The issue is whether these informal rules are subject to judicial review.

Lines International Holding v STPB Guidelines that stipulated a denial of berthing rights on the basis of non-compliance

with the 1996 guidelines issued by the STPB and PSA. Intention was to regulate and monitor casino activities on board cruise vessels especially on vessels undertaking Cruises to Nowhere (CNW).

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Parties were only given oral notification but the guidelines were generally known. Issue was the authority of the bodies to set such guidelines and whether to be lawful

they had to be contained in duly promulgated subsidiary legislation.o A legislative act is the creation and promulgation of a general rule of conduct

without reference to a particular case. An administrative act includes the adoption of a policy in accordance with the requirements of policy of expediency or administrative practice. The guidelines issued here were therefore an administrative act.

o STPB and PSA were given discretionary power and are entitled to adopt a general policy in exercise of their statutory powers without having to pass regulations or byelaws for each policy.

o Adoption of a general policy by a body exercising administrative discretion is perfectly valid provide that:

It is not unreasonable on the Wednesbury construction. Courts cannot substitute their view of how the discretion should be

exercised with that actually taken. Burden of proof that the policy is illegal is on the plaintiffs.

The guidelines are made known to the persons affected and The bodies do not fetter their own discretion and are prepared to hear

out individual cases.

Komoco Motors v Registrar of Vehicles Rule was that the value of a motor vehicle would be determined by the Registrar. Minister for Finance released a new policy directive that the ARF was to be based on

OMV and this has been accepted for the last 40 years. Komoco objected to this. Issue was whether the Registrar fettered her discretion to determine the valuation of

cars by relying on the Singapore Customs’ OMV. Court held that she had not.

o The practice of using OMV was cost effective, objective, open and transparent to all traders and importers of motor vehicles.

o The relevant rule allowed the Registrar to rely on OMV without making further enquiries.

City Developments Ltd v Chief Assessor CDL objected to the annual value of the subject property as assessed pursuant to s. 2

Property Tax Act. During the hearing before the valuation review board the CA defended the 5% method of assessment on the basis of a policy to encourage the development of land instead of hoarding it.

Issue was whether the CA acted unfairly in exercising his discretion and whether he acted ultra vires.

o The policy of discouraging land hoarding in land scarce Singapore is a commonsensical notion and in the public interest.

o It is not irrational or unreasonable for government agencies to adopt an integrated and holistic approach towards the formulation and implementation of government policies.

Approach of the courts when it comes to the discretionary powers of the administrative law bodies.

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1. Proper exercise of “discretion” involves making an informed choice between two or more alternative courses of action.

2. Although he has discretionary powers, the official has to exercise them within given parameters, usually legislation.

3. The officer has to reflect on the purpose of the power that he has and decide how to achieve that purpose.

4. The courts will examine the standards of the decision making in terms of delegation – if it was not the intention of the legislature in delegating the power to the official to give him great control, then the courts will be more ready to assume greater control.

5. Courts will examine the manner and motives used in the exercise of discretion to ensure that it is within the parameters of the powers given and for the purposes intended by the source of the power (statute).

6. Courts will not examine the merits of an administrative decision or substitute their own view for the authoritity’s.

7. Courts will not recognise unfettered or absolute discretion. With certain exceptions eg. emergency powers, preventive detention.

Unfettered discretionary power

Padfield v Minister of Agriculture, Fisheries and Food The discretion of the official cannot be unfettered or absolute. Minister, under Agricultural Marketing Act, could refer complaints against the Milk

Marketing Board if he "in any case so directs", to the Committee of Investigation. Minister refused to refer a complaint of South Eastern producers. Mandatory Order applied for to compel reference to Committee.

Minister argued he had an "unfettered discretion" whether to refer/not to refer a complaint, as he thought fit.

Court held:o Parliament must have conferred the discretion with the intention that it should

be used to promote the policy and objects of the Act and construction is always a matter of law for the court. If the minister, by reason of having misconstrued the act, so uses his discretion to run counter to the policy of the act, then the persons aggrieved must be entitled to the protection of the court.

o The minister had a duty to investigate a complaint that alleges that the Milk Marketing Board has acted in a manner inconsistent with the public interest, if not he is rendering nugatory a safeguard provided by the act and depriving the complainers of a remedy that parliament intended them to have.

Types of errors that can be reviewed (jurisdictional vs non-jurisdictional)

Wong Keng Leong Rayney v Law Society of Singapore – judicial review is almost invariably limited to examining whether the tribunal has exceeded its jurisdiction, whether there has been an abuse of discretion or a failure of natural justice, and whether the tribunal has acted irrationally, unreasonably or in bad faith. It hinges on the legality of the decision and not on its substantive merits.

A jurisdictional error must be distinguished from an error not going towards jurisdiction eg. misconstruction of the elements of a statutory provision.

Jurisdictional error of law

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Estate and Trust Agencies v The Singapore Improvement Trust (pre Anisminic, shows that it is not essential whether or not Anisminic applies in Singapore)

Board in question applied a wrong and an inadmissible test in making a declaration. Issue was whether they were acting beyond their powers and that the declaration should hence be unenforceable.

A proceeding is none the less a judicial proceeding subject to prohibition or certirori because it is subject to confirmation or approval by some other authority.

Court granted judicial review. Appears to use the broad construction.

Anisminic (two constructions upon which the court can intervene in the decision of a tribunal) Narrow construction = error of law going towards jurisdiction = want of jurisdiction.

o Cases where the tribunal had jurisdiction to enter into the enquiry in question but has done of failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. Eg. bad faith, breach of natural justice, misconstrued the provisions giving it power to act, etc.

o If it is entitled to enter on the inquiry and does not do any of the things above, then it is as much entitled to decide that question wrongly as it is to decide it rightly and the court cannot intervene except in certain circumstances to correct an error of law.

Broad construction = error of law within jurisdiction = in excess of jurisdiction.o The tribunal has jurisdiction but it can only use its discretion with regard to the

prescribed matters, they cannot determine the limits of their own powers.o If one party submits to a tribunal that its powers are wider than they in fact

are, the tribunal must deal with that submission, but if they reach a wrong conclusion the court must be able to correct that because as a result of making an error of law, they have based their decision on a matter which they had no right to deal. The question for the court is not whether they had made a right or wrong decision but whether they had inquired into and decided a matter which they had no right to consider.

Re Application by Yee Yut Ee (post Anisminic, finality/ouster clauses) Industrial Arbitration Court made an order that the appellant was personally liable for

the payment of claims and debts of the company she worked for. IAC conceded that in its order there was a manifest error of law.

Even though it is clear that no appeal is given from a decision of the IAC, when parliament sets up a tribunal and refers matters to it, it becomes a question of policy as to whether to provide for an appeal. Courts can rely upon the proposition that Parliament could not have intended a tribunal of limited jurisdiction to be permitted to exceed its authority without the possibility of direct correction by a superior court.

Certiorari would issue notwithstanding the presence of words taking away the right to apply for it if:

o The inferior tribunal was improperly constituted.o It lacked or exceeded jurisdiction.o Failed to comply with essential preliminaries.o If a conviction or order had been procured by fraud or collusion.o Where there has been a breach of the rules of natural justice.

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Jurisdictional error of fact

Non national security issues - If the decision involves the establishment of a precedent fact (eg. must establish the fact of non-export before the exporter becomes liable for customs duty, this a matter of statutory interpretation), then the courts engage in a balance of probabilities test to determine the existence of the precedent fact, and once it is established, it then reviews the decision on GCHQ grounds. If the decision does not involve the establishment of a precedent fact (the court ruled that Ss 8/10 ISA did not involve a precedent fact), the question simply concerns the existence of the fact (yes/no), and the decision can only be challenged on the 3 GCHQ grounds. If there are no precedent facts arising out of the statutory interpretation exercise, we go to Yee Yut Ee or GCHQ grounds.

National security issues (Teo Soh Lung/Lee Mau Seng) – subjective satisfaction, not reviewable at all, rejects Chng Suan Tze (the entire approach – precedent fact or no precedent, GCHQ review or not). Argument that CA left open several issues may not hold water in light of the legislative intent relating to Art 149 and ISA.

Re Fong Thin Choo (error of fact amounting to an error of law) The correct interpretation of “evidence” used in the relevant provision is that the

decision maker has a discretionary power to assess and evaluate all the evidence and decide whether such evidence is sufficient or otherwise to prove that the goods have indeed been exported.

The condition of “satisfaction” is concerned with an inquiry as to whether dutiable goods have been exported. This is a question of fact. Whether that fact exists or not must be proved by evidence. The expression “satisfaction” is not to be measured in terms of reasonableness but in terms of justification on the evidence. The relevant provision establishes a precedent fact whereby the fact of non-export must first be established before the exporter becomes liable for customs duty. The function of the court is not to decide whether there was evidence on which the authority could reasonably have come to that decision but to decide whether the decision was justified on the evidence.

In this way, an error of fact can amount to an error of law for the court to decide on:o Where a conclusion was reached on the basis of no evidence.o Where a decision was not supported by the evidence.o Where there was no proper self direction (if legislation provides that an

authority is to be satisfied, there must have been some factual basis).

Grounds for judicial review

The basic framework for judicial review is founds in the GCHQ case (Council of Civil Service Unions v Minister for the Civil Service) and it has been adopted in Singapore by Chng Suan Tze v MHA.

GCHQ case Illegality, irrationality, procedural impropriety, (proportionality). There is no reason why simply because a decision making power is derived from the

common law and not a statutory source, it should for that reason only be immune from judicial review.

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There are three heads the grounds upon which administrative action is subject to control by judicial review.

o Illegality Decision maker must understand correctly the law that regulates his

decision making power and must give effect to it. Whether he has or not is a justiciable question to be decided by judges. Eg. misapplication of law/wrong legal test, improper delegation,

improper purpose, acting under dictation of another body, taking into account extraneous considerations.

o Irrationality Wednesbury unreasonableness

A decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

Bad faith, dishonesty/fraud, disregard of public policy, illogicality, arbitrariness/capriciousness, finding against the weight of evidence, failure to consider relevant matters, legitimate expectations disregarded, uncertainty/inconsistency.

o Procedural impropriety Failure by administrative tribunal to observe procedural rules that are

expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.

Includes the failure to observe the rules of natural justice, failure to act with procedural fairness (failure to consult, give reasons, meet legitimate expectations, etc).

Possible adoption of the principle of proportionality in future.o The administrative authority must maintain a proper balance between purposes

pursued and adverse effect of the decision on the rights, liberties and interests of persons affected.

Improper purpose (illegality)

Statutory powers may only be used for the purposes for which they were created. These purposes may be express or they may be implied.

Sydney Municipal Council v Campbell (express purpose) MC- specified power to acquire land for new public ways or extension thereof;

purpose of the power was to acquire land for remodelling and improving the city. The respondent’s land was not really required for any such purpose but were acquired

with the object of enabling the council to get the benefit of any increment in value of them arising from the extension.

Held: Resolutions to acquire respondents' land invalid as land not really needed and object was to get benefit of enhanced value arising from extension.

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o A body such as the council authorised to take land compulsorily for specified purposes, will not be permitted to exercise its powers of different purposes and if it attempts to do so the court will interfere.

R v Secretary of State for Foreign and Commonwealth Affairs (implied purpose) S of S given power by statute for purpose of promoting development of a country

outside UK, to furnish aid. S of S approved aid for construction of hydro-electric plant on Pergau River in Malaysia. Even though it was economically unsound, the S of S went ahead with it because he has already informally agreed with the Malaysian government that the UK would contribute to the project. Claimant sought JR on the grounds that the reason for the funding was diplomatic and not within the purposes laid down by statute.

QBD held courts could imply development must be economically "sound" development.

o Whatever the S of S intention or purpose may have been, it is for the courts and not the S of S to determine whether the particular conduct was or was not within the statutory purpose.

o Once the court concludes that a statutory power may only be used to further a particular purpose, the freedom of the decision maker is necessarily limited unless the court is satisfied that the action undertaken by the administrator was within the purpose.

Westminster Bank v London & North Western Railway Co (exercise of purposes in bad faith) Local authority (WC) had power to erect public conveniences. Chose to situate them

under middle of Parliament Street with access to either side of street. One of entrances faced Railway Co's premises. Railway Co argued WC wished to build a subway and objected to the convenience.

Held: No objection to the convenience as it must have an access. To show bad faith, must show WC built subway under "colour and pretence" of providing conveniences.

o Power of the authority to erect public conveniences cannot be disputed.o The objections refer to the access of them and to the supposed motives of the

local authority in the selection of the site.o The statute contemplates that such conveniences should be made beneath

public roads and if some access must be provided, it must measure simply of greater and less convenience.

o In order to make out a case of bad faith, it must be shown that the corporation constructed this subway as a means of crossing the street under the colour and pretence of providing public conveniences which were not really wanted at that particular place.

Fettering of own discretion (illegality)

The decision maker may not fetter his own discretion by a rigid policy or administrative rule.

British Oxygen v Minister of Technology Board of Trade was empowered to make to any person (carrying on a business) a

grant towards approved capital expenditure incurred in providing new machinery or plant. Board adopted a policy of denying grants for items costing less than 25 pounds. So rejected applicant's claim for items costing under 20 pounds each. Action for a declaration whether Board had properly exercised its discretion.

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Held: Nothing wrong with having a policy. However the authority must not shut its ears to an application and be always willing to listen to anyone who has something new to say. Respondent's officers appeared to have carefully considered all that appellants have had to say.

A decision maker must not act under the dictates of another body and thereby surrender its discretion.

Lavender and Sons v Minister of Housing and Local Government Claimant bought agricultural land and applied for planning permission to extract

gravel. Planning authority refused permission. Claimant appealed to Min of Housing. Appeal unsuccessful, and Min of Housing explained his policy was to reject permission unless the Min of Agriculture was not opposed (and he had objected on consultation). Claimant sought a quashing order against decision of Min of Housing.

Held: Min of Housing had fettered himself by delegating responsibility given by Parliament to Min of Agriculture of making the effective decision. Minister failed to exercise his discretion properly or at all. (Quashing order granted).

o Minister must be open to persuasion as if he is not, an applicant cannot establish an ‘exceptional case’ in the face of an inflexible attitude.

o By adopting and applying the stated policy, the minister has in effect inhibited himself from exercising a proper discretion in any case where the minister of agriculture has objected to it.

o Everything else may point to the desirability of granting permission, but applying and acting on his stated policy, the minister has fettered himself in such a way that it was not he who made the decision for which parliament made him responsible.

Irrationality / unreasonableness

APPH v Wednesbury Corporation Under s 2(1) of Sunday Entertainments Act 1932, local authority - empowered to

allow cinemas to be open on Sundays "subject to such conditions as the authority think fit to impose".

APPH applied - permission to have Sunday performances at cinema. WC (local auth) gave permission on condition no children under 15 should be admitted on Sundays.

APPH sought declaration- condition- unreasonable and ultra vires. (No appeal in statute).

Issue was when the court could interfere on the decisions that are within the discretion of the authority.

Court held:

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o If a decision in a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. But to prove a case of that kind would require something overwhelming.

o The court is entitled to investigate the action of the authority with a view to seeing whether they have taken into account matters which they ought not to take into account or refused to take into account matters which they ought to have taken into account.

o Once that question is answered in favour of the local authority, it may still be possible to say that, although the authority have kept within the four corners of the matters that they ought to consider, they have come to a conclusion so unreasonable that no reasonable authority could ever come to it. Then the court can interfere.

The GCHQ and Wednesbury standard of unreasonableness may be too restrictive and too narrowly limits the extent of the court’s powers.

Where there is a “subjective satisfaction” clause, the modern approach is to inquire if the official had reasonable grounds for being satisfied and to inquire if there was evidence upon which he was capable of being so satisfied.

Example of subjective satisfaction clause – “where the minister is so satisfied”. Kang Ngah Wei (citing Secretary of State for Education and Science v Tameside

Metropolitan Borough Council) – if a judgment requires the existence of some facts before it can be made, although evaluation of those facts is for the authority alone, the court must inquire whether those facts exist and have been taken into account.

Tan Gek Neo Jessie v Minister for Finance – whether or not the authority is satisfied is not purely a subjective test but an objective one. Must have evidence on the basis of which it could reasonably be said that the authority is satisfied.

Instead of using unreasonableness, can also use the term irrationality (GCHQ) which does not connote a degree of absurdity or outrageousness.

Proportionality

Administrative authority must maintain a proper balance between purposes pursued and adverse effects of the decision on rights, liberties and interests of persons affected.According to Chee Siok Chin, it is not part of Singapore law – “proportionality has never been part of the common law in relation to the judicial review of...administrative power or discretion. Nor has it ever been part of Singapore law”. According to Chng Suan Sze, proportionality is not a separate ground of judicial review and can be subsumed under irrationality.

However, proportionality may be a good alternative to Wednesbury unreasonableness as a finding of unreasonableness is tautological and suggests judicial decision making by intuition. Proportionality provides a more structured analysis and requires the administration

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to actively justify its policy choice. It requires the administration to justify their policy choices specifically and when courts strike down a decision they have to do so on grounds that are more readily identifiable and ascertainable.

Proportionality depends on other forms of control of illegality first being satisfied. It presumes that the general objective of the public body was legitimate and it was not seeking to achieve an illegal purpose. It will then involve some balance between interests or objectives to see if its decision is proportionate or not. If it was disproportionate then the court will grant judicial review.

The court will consider: Whether the measure was necessary to achieve the desired objective. Whether the measure was suitable for achieving the desired objective. Whether the measure nonetheless imposed excessive burdens on the individual.

The court will then consider how intensively to apply these criteria to the following situations:

Where exercise of discretion impinges on fundamental rights. Where the penalty is disproportionate to the offence committed. Where the balancing of interests in exercise of administrative discretion is

disproportionate.

Breach of natural justice (procedural impropriety)

The "rules" or principles are to be followed by Courts, Tribunals, Arbitrators and all people with the "duty to act judicially." Even administrators/decision-makers are under a "duty to act fairly" - minimum standard of natural justice - ie.,giving the person in question notice and an opportunity to make representations – especially when their decisions have far-reaching consequences

The rules/principles of natural justice may be implied from all the circumstances of the case; but may be excluded expressly or by necessary implication

Rule against bias (no person should be a judge in his or her own cause)

1) Actual bias – factual finding of bias, proven on the balance of probabilities.2) Imputed bias – existence of certain facts which will impute such bias.

a. Pecuniary or proprietary interest in subject matterb. Personal or other non-pecuniary interest

3) Apparent bias – where it appears that there may be bias.a. Reasonable suspicion of bias (less stringent)

i. Subjective – court considers if there are circumstances which would cause reasonable suspicion of bias.

ii. Objective – court considers if a reasonable or right minded person could have suspected that the tribunal was not impartial.

b. Real likelihood (danger) of bias (more stringent)

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i. Subjective – court’s impression of probabilities of bias to be inferred as a question of fact in the circumstances.

ii. Objective – court asks whether a reasonable man in the applicant’s position would consider if there is a real likelihood of bias.

Regina v Gough (real likelihood of bias, subjective) The court in cases such as these personifies the reasonable man. Stated the test in terms of real danger rather than real likelihood in order to ensure that

the court is thinking in terms of possibility rather than probability of bias.

Tang Liang Hong v Lee Kuan Yew (real likelihood and reasonable suspicion, objective) Action for defamation against Tang by 11 PAP leaders. Tang alleged apparent bias by

the lower court. Test to be applied in Singapore (from Jeyaretnam Joshua Benjamin v Lee Kuan Yew)

is whether a reasonable and fair minded person sitting in court and knowing all the facts, would have a reasonable suspicion that a fair trial was not possible. Ie reasonable suspicion test.

Although in R v Gough a more stringent test of apparent bias has been adopted, it is not material which of the two tests applies to Singapore. Whichever of the two tests the court applies, it must ascertain the relevant facts and circumstances on which the alleged apparent bias is founded.

Court therefore endorsed the reasonable suspicion test and left open the question as to whether or not it ought to be superseded by the real likelihood test.

Tang Kin Hwa v TCM Practitioners Board The current English position is a real possibility of bias. Standard of proof is not based

on probability but on possibility. In Singapore both tests apply but both are premised on an objective basis. This in

effect results in there being a common substance to both tests.o Key question is whether or not there was a perception on the part of a

reasonable person that there would be a real likelihood of bias.o Likelihood means possibility as opposed to the higher standard of probability.

Therefore even though reasonable likelihood is a more stringent test, it has been lowered by use of the word “possibility” such that it is now in effect the same as the reasonable suspicion test.

Re Shankar Alan (differed from Tang Kin Hwa) The reasonable suspicion test is the law in Singapore. There are important differences in applying the two tests.

o Reference point of the enquiry Reasonable suspicion – viewpoint of a reasonable member of the

public. Real likelihood – view point of the court.

o Substance of the inquiry Reasonable suspicion – how it appeared to the relevant observer and

whether that observer could reasonably entertain a suspicion or apprehension of bias even if the court was satisfied that there was no possibility of bias in fact.

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Real likelihood – degree of possibility of bias even if it was unconscious.

o Different rationale Reasonable suspicion – strong public interest in ensuring public

confidence in the administrative of justice as it is met if the court is satisfied that a reasonable number of the public could harbour a reasonable suspicion of bias even though the court itself thought there was no real danger on the facts.

Real likelihood – met as long as the court is satisfied that there is a sufficient degree of possibility of bias. It is a lower standard so as to mitigate the sheer difficulty of proving actual bias especially considering its insidious and often subconscious nature.

Right to be heard ( audi alteram partem )

Ridge v Baldwin set out the following categories of when the right to be heard is applicable:

Dismissal of a servant by his mastero Master can terminate the contract with his servant at any time and for any

reason or for none.o But if he does so in a manner not warranted by the contract then he must pay

damages for breach of contract.o It is immaterial whether the master has heard the servant in his own defence, it

only depends on whether the facts emerging at the trial prove breach of contract.

Where a man holds office at pleasureo Such an officer has no right to be heard before he is dismissed.o As the person having the power of dismissal need not have anything against

the officer he need not give reasons. He is not bound to disclose his reasons and the court cannot require him to do so.

o If the dismissal was in order to put a better man in his place there can be no legal objective to that.

Dismissal from an officer where there must be something against the man to warrant his dismissal

o Officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation.

Decisions which adversely affected property rights of privileges of persons who had had no opportunity of presenting their cases before the decisions were given

o Eg. Cooper v Wandsworth Board of Works – if owner failed to give proper notice to the Board, the Board had authority to demolish any building and did so without giving the owner an opportunity to be heard. Court held that the power was subject to a qualification that no man is to be deprived of his property without his having an opportunity of being heard.

Deprivation of membership of a professional or social bodyo The right to be heard is not confined to the conduct of strictly legal tribunals

but is applicable to every tribunal or body of persons invested with authority to adjudicate on matters involving civil consequences to individuals. (Wood v Wood)

o Woon Kwok Cheng v HR Hochstadt – jockey deprivation of livelihood.

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o Chiam See Ting v SDP – plaintiff expelled from party after disciplinary committee meeting, not told clearly what case he had to meet, court found a breach of natural justice and an injunction was granted.

o Singapore AAA v Haron Mundir – suspension of a sportsman from competition, disciplinary proceedings were improperly conducted.

Club caseso The club committees ought not, according to the ordinary rules by which

justice should be administered by a body of persons who decide upon the conduct of others, to blast a man’s reputation for ever – perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct. (Fisher v Keane).

Disciplinary proceedings, cancellation of licenses, etc.o SS Kanda v Government of the Federation of Malaya – commissioner of

police purported to dismiss an inspector but failed to supply the inspector with a copy of the report of the board of inquiry which contained matter highly prejudicial to him. This amounted to a failure to afford the inspector a reasonable opportunity of being heard and a denial of natural justice.

o Tan Boon Chee David v Medical Council of Singapore – council found that the appellant was guilty of infamous conduct. Appellant had been given notice of his charges and appeared before the council represented by council had both sides called witnesses. At the end of the hearing the council made an order that the appellant be suspended but the record showed that not all members of the council were present throughout the hearing and during the hearing, members of the council were walking in an out of the inquiry as and when they liked. Court held that there was no fair and proper hearing. It was a clear breach of natural justice for a member of the council to participate in a decision when he had not heard all the oral evidence and the submissions made.

o Cancellation of licenses, authority is under a duty to act judicially and a cancellation is not a purely administrative function. (Ridge v Baldwin)

In the above cases, the authority is dealing with a single isolated case and so it is easy to say that the body is performing a quasi-judicial task and require it to observe the essentials of all proceedings of a judicial character – the principles of natural justice. However, a minister or other body may have functions of a different character eg. to make a scheme for a new road. The primary concern there would be the public interest and not whether the construction will damage an individual owner’s land. He cannot be prevented from attaching more importance to the fulfilment of his policy than to the fate of individual objectors. No individual can complain if the ordinary accepted methods of carrying on public business do not give him as good protection as would be given by the principles of natural justice in a different kind of case.

Tests used by the courts: Was there a duty to act judicially?

o Whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the courts. (R v Electricity Commissioners)

o There is no super-added duty besides determining the legal rights of subjects. (Ridge v Baldwin, explaining R v Electricity Commissioners).

Gravity of consequences of the decisiono Eg. loss of livelihood.

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o Legitimate expectations Legitimate or reasonable expectation may arise either from an express

promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. (GCHQ)

Was there a duty to act fairly? Natural justice depends on a number of factors (probably the test to be used today)

o Person/body making the decisiono Gravity of consequences of the decisiono Terms of any contract/statutory provisions governing the power to decide

When the rules of natural justice are inapplicable

Preliminary acts or inquiries Matters requiring professional expertise Practical difficulties or impossibility Necessity Waiver Express exclusion by statute Legislation / law-making process Existence of elaborate statutory code High-level policy considerations

Fair hearing

Notice (minimum standard)o Of hearing, charges, evidence (give a copy of report of board of inquiry eg. SS

Kanda), likely consequences (sanctions, expulsion, cancellation, etc). Opportunity to make representations (minimum standard)

o Written or oral answers to accusations.o Need for reciprocity between the parties.

Oral hearing or at least written representationso Oral hearing especially where the hearing will be complex.o Need for reciprocity, if one side is heard orally so must the other.

Right of cross-examination of witnesseso If there is a right to an oral hearing.o If specifically requested by a party.o Need for reciprocity – Howe Yoon Chong v Chief Assessor

Right to legal representation Duty to give reasons

Remedies

Private law remedies

Declaration (O. 15) Injunction (O. 29) Damages Specific performance (not in public law cases)

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Public law remedies

Order for review of detention Mandatory order Prohibiting order Quashing order

Limits of judicial review

Constitutional provisions

Art 149(3) – Legislation against subversion. If any question relating to acts done by the Minister under this article arises in any court it shall be determined in accordance with the provisions of any law as may be enacted by Parliament for this purpose and nothing in Art 93 (judicial power of Singapore) shall invalidate any law enacted pursuant to this clause.

Art 18(9) – Presidential Elections Committee. A decision of the PEC as to whether candidate for election to the office of President has fulfilled the requirements shall be final and not subject to appeal or review in any court.

Art 142(3) – Interpretation of financial provisions. The Minister for finance shall certify the NII of that year derived from the past reserves of the Government and such certificate shall be final and conclusive evidence of the amount.

Legislative exclusion

Conclusive evidence cases – Teh Fung Holdings v Collector of Land Revenue – It is imperative that a balance be found in the tension between ensuring that the purposes of the Act and the ensuing public benefit are achieved on the one hand and ensuring that there is no abuse of power on the other. Latitude and flexibility can be given to governmental authorities but it stops where abuse of power begins. There must be sufficient evidence that establishes that a prima facie case of reasonable suspicion (for locus standi) of bad faith exists.

Subjectively worded discretionary powers – Chng Suan Tze v Minister of Home Affairs – The notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.

Intensity of judicial review, doctrine of justiciability – Lee Hsien Loong v Review Publishing Co – The correct approach is not to assume a highly rigid and categorical approach to deciding which cases are not justiciable. Rather the intensity of judicial review will depend upon the context in which the issue arises and upon common sense, which takes into account the simple fact that there are certain questions in

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respect of which there can be no expectation that an unelected judiciary will play any role.

o Depends not on the source of decision making power but on subject matter in question. If the executive has best access to the materials available then its view should be highly persuasive.

o Matters of government policy then judges may be ill equipped to adjudicate because of their limited training, experience and access to materials.

o Where judicial pronouncement may embarrass some other branch of government.

o Executive and legislature are democratically elected therefore court should exercise restraint and operate within the framework of three co-equal branches.