Fettering of discretion in Australian tribunals
Fettering of Discretion in Australian Tribunals
What is Fettering of Discretion?
In administrative law, fettering of discretion occurs when a decision-maker, including a tribunal, restricts or refuses to exercise the discretion conferred by law, either by rigidly adhering to a policy, or by delegating the discretion improperly, thereby failing to consider the merits of each case. It is an error of law that can render a decision invalid.
Tribunals are expected to exercise their discretion independently, fairly, and reasonably, taking into account all relevant considerations and not binding themselves to inflexible rules or pre-determined outcomes.
Key Principles
Discretion must be exercised and not abdicated.
Policies can guide but not bind the decision-maker.
Relevant considerations must be taken into account.
Irrelevant considerations must not influence the decision.
Each case must be considered on its own merits.
Key Australian Case Law on Fettering of Discretion
1. Attorney-General (NSW) v Quin (1990) 170 CLR 1
Facts:
The case concerned whether the Attorney-General had fettered his discretion by adopting a rigid policy about prison parole decisions.
Held:
The High Court held that the Attorney-General must not fetter the discretion conferred on him by law. While policies can guide decision-making, they must not be applied so rigidly that discretion is not genuinely exercised.
Significance:
This is a leading authority on fettering discretion. It establishes that decision-makers must not abdicate discretion, even if they rely on policies.
2. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Facts:
The Minister refused to approve a mining lease, allegedly based on a fixed policy.
Held:
The High Court ruled the Minister must consider all relevant matters and not be bound by a rigid policy that precludes consideration of individual circumstances.
Significance:
Reinforces that discretion cannot be fettered by inflexible policies; each case must be judged on its own facts.
3. House v The King (1936) 55 CLR 499
Facts:
Although not directly about fettering discretion, this case lays down the principle of review of discretion, including whether discretion was exercised correctly.
Held:
The court emphasized that discretionary decisions must be made according to legal principles, taking relevant considerations into account.
Significance:
Used in subsequent cases to assess whether discretion was properly exercised or fettered.
4. R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
Facts:
The Minister had adopted a policy that excluded all claims for land rights in a certain area.
Held:
The High Court held that this amounted to fettering discretion as the Minister refused to consider individual claims based on a rigid policy.
Significance:
Confirms that adoption of blanket policies which preclude consideration of individual circumstances is unlawful fettering.
5. Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Facts:
The Minister made decisions regarding refugee status claims allegedly based on inflexible guidelines.
Held:
The High Court confirmed that while administrative guidelines may be used, they must not prevent the decision-maker from exercising discretion on the facts of each case.
Significance:
A modern case clarifying that fettering occurs when discretion is constrained by rigid guidelines.
6. Conway v Rimmer [1968] AC 910 (UK case influential in Australia)
Facts:
A UK case involving whether a public authority fettered its discretion in refusing to disclose documents.
Held:
The principle that decision-makers should not fetter discretion was applied, and decision-makers must consider all relevant evidence.
Significance:
Although UK law, it has been influential in Australia regarding fettering discretion and fair process.
7. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Facts:
Concerned the exercise of discretion by the Australian Broadcasting Tribunal.
Held:
The High Court emphasized the need to exercise discretion according to law and not fetter it by predetermined rules.
Significance:
Shows application of the fettering principle in tribunals.
Summary Table of Cases
| Case | Principle Established | Court |
|---|---|---|
| Attorney-General (NSW) v Quin | Policies cannot rigidly bind discretion | High Court of Australia |
| Minister for Aboriginal Affairs v Peko-Wallsend | Consider all relevant matters, no rigid policies | High Court of Australia |
| House v The King | Discretion must be exercised lawfully | High Court of Australia |
| R v Toohey; Ex parte Northern Land Council | Blanket policies that exclude consideration = fettering | High Court of Australia |
| Re Minister for Immigration v Lam | Guidelines cannot prevent discretion exercise | High Court of Australia |
| Conway v Rimmer (UK) | Decision-makers must consider all relevant evidence | UK House of Lords |
| Australian Broadcasting Tribunal v Bond | Tribunals must not fetter discretion | High Court of Australia |
Conclusion
Fettering of discretion is a fundamental concept in administrative law, ensuring that tribunals and decision-makers do not abdicate their statutory responsibilities by rigidly following policies or guidelines without exercising true discretion.
Australian courts have consistently held that:
Policies can guide but must not bind decision-makers.
Each case must be decided on its own merits.
Failure to exercise discretion, or applying a blanket policy, amounts to unlawful fettering.
This principle protects individuals from arbitrary or inflexible decision-making and ensures that administrative justice remains fair and lawful.
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