Common Law Restraints on Discretionary Powers: S156-2013 v. Minister for Immigration and Border Protection, [2014] HCA 22

An old debate in administrative law concerns the appropriate role of courts in imposing common law restrictions on discretionary powers. For example, when a statute says "X may, in his absolute discretion, do Y", are any limitations of fairness or rationality implied by the common law? The modern tendency has been to admit that there are such limitations. Agreement on this is hardly uniform, however, and there is certainly no agreement on how far judges can legitimately go in imposing common law restraints on discretion.

Municipal Powers: Another Look at the Ford Case

News stories about an Ontario court striking down the City of Toronto's ban on shark fin products (decision not yet available online), as well as a pending media engagement, led me to have another look at Hackland J.'s decision to remove Mayor Rob Ford from office earlier in the week.

Administrative Law and Assange

Julian Assange is currently hiding out in the Ecuadorian embassy, where he may be for some time. The British government's suggestion that he could be arrested there is wide of the mark, however.

Of prerogatives, rules and guidance

The UK Supreme Court decided two very interesting immigration cases the week before last, touching on two very interesting issues.

Principles of (European) Good Administration

The Working Group on EU Administrative Law of Parliament's Committee on Legal Affairs recently reported on the desirability of an EU-wide code of administrative procedure along the lines of America's Administrative Procedure Act (or Ontario's Statutory Powers Procedure Act).

A Theoretical Book but a Practical Approach

Over the next couple of weeks, I am going to blog occasionally about my new book, A Theory of Deference in Administrative Law:Basis, Application and Scope. For my first post, I thought I would start with something that does not really appear in the book at all: a brief overview of the approach I urge. Despite the daunting title, what I actually propose is, in my view, quite simple. I have drawn on Canadian cases to provide examples, solely because they feature in an article I am currently revising, which will shortly appear in the McGill Law Journal; I hope to post it on SSRN by the end of this week. In principle, this approach is applicable in any common law jurisdiction where there is judicial review of administrative action.

Changing Policy to Reflect Policy? Be Careful

As a Q.C., Rabinder Singh appeared in some of the most significant public law cases before the superior courts of England and Wales.

He was appointed to the bench in 2011. From the High Court, he recently issued an interesting judgment in H.A. (Nigeria) v. Home Secretary, [2012] EWHC 979 (Admin), a case concerning the lawfulness of the detention of an asylum seeker who suffered from mental disorders and was detained in a series of Immigration Removal Centres.

Of greatest interest is Singh J.'s treatment of an administrative policy which had been developed by the Home Secretary. The wording of the policy had been changed, but the Home Secretary argued that the change merely reflected administrative practice.

This was important because had the policy changed in substance, it would have been necessary to undertake an equality impact assessment; none had been conducted.

Singh J. held that a material change, requiring an assessment, had occurred, whatever the subjective intention of those involved:

1. In my judgement there was a change in at least the stated policy. There was obviously a change of wording, in other words a reformulation of it. Even if the Defendant did not intend that to be a substantive change in her own policy, there are two reasons why the public sector equality duties were triggered by that reformulation. The first is that the meaning of a policy is an objective matter: whatever the subjective intentions of its authors, the formulation matters because the words which express a policy affect the public, not just officials within a department, for example individuals who are liable to detention and those who advise them. The reason why public law has in recent years come to recognise the importance of adherence (in general) to policy statements is that they serve an important function in maintaining the rule of law, which is of particular importance when fundamental rights such as the right to personal liberty are at stake. 

1. The second reason is that, even on the Defendant's own evidence, she was seeking to reformulate the policy to re-align it to what had been thought within the department to be its practice all along. The courts had given an interpretation to the policy which did not accord with the practice of the Defendant's department. But that is implicitly to acknowledge that in fact there was a change of policy if not of practice. It was common ground before me that, in the present context at least, the meaning of a policy is ultimately a question for the courts, not one for the executive. If that is right, then when the words of a policy are altered, that is a change in policy. It was clearly intended to have some effect, otherwise it would have been a pointless exercise.

These comments on the interpretation of policies being wholly in the domain of the courts are very English (whenever I get around to my promised discussion of Auer deference, the difference of the American approach will be manifest). But the fundamental point is that when administrative policies change, the administrator in question is placed under a variety of public law duties, which are perilous to ignore.

Due Process and Drone Strikes

Last week, the New York Times published a lengthy article on the 'secret kill list' being maintained by President Obama. Whatever the merits of targeted killings as a matter of international law, international human rights law, or justice, for students of administrative law, there are at least three aspects of interest to the story. To be clear, in what follows, I am not taking a position on the legality or morality of the strikes. But in the absence of formal due process through judicial review, it is worth considering the internal safeguards that administrative law norms suggest.

Avoiding 'Charter-Free' Zones

One of the questions not broached by the Supreme Court of Canada in Doré (see my earlier post here) was what happens when the legislature has attempted to exclude consideration of the Charter by an administrative decision-maker.

In a pair of decisions released in 2003, the Court made clear that where an administrative decision-maker has an express or implied power to determine questions of law, it will also have the power to adjudicate on Charter or constitutional challenges to its governing statute, as long as that power has not been excluded by the legislature, expressly or by necessary implication. More recently, the Court has held that an administrative decision-maker which is not lumbered with these impediments may go on to award Charter remedies, as long as the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal.

In both British Columbia and Alberta, there are statutory provisions preventing certain decision-makers from considering Charter arguments. The next question is how broadly those provisions should be read, given the need for express or necessarily implicit exclusion of the power to decide Charter questions.

In Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, the question was whether the B.C. Utilities Commission could consider whether the province had adequately discharged its constitutional duty to consult with First Nations. The Court held that the Commission had a general power to consider questions of law and, thus, constitutional questions. It then drilled down into the provision of the B.C. Administrative Tribunals Act that sought to remove the Commission's power to consider constitutional questions (s. 44, as further defined by s. 1 and a related statute). Taking a close look at the terms of the relevant statutory provisions, the Court concluded that only challenges to the constitutional validity or constitutional applicability of a law, or an application for a constitutional remedy, were precluded. The Court accepted that, in broad terms, the challenge was constitutional in nature, but that the statutory provisions did not indicate a clear intention on the part of the legislature to exclude from the Commission’s jurisdiction the duty to consider whether the Crown has discharged its duty to consult with holders of relevant Aboriginal interests (at para. 72).

Another way to put the same point might be that in exercising its powers, the Commission was obliged to do so in a manner consistent with constitutional principles and provisions; this is hardly a radical proposition (see e.g. para. 56 here), but it would be radical to oblige an administrative decision-maker not to exercise its powers in a manner consistent with constitutional principles and provisions.

However, this line of argument might run into difficulty when faced with a more comprehensive legislative attempt to oust Charter jurisdiction, as the Alberta Court of Appeals recently explained in United Food and Commercial Workers, Local 401 v Alberta (Attorney General). Here, the question was whether an adjudicator appointed by the Information and Privacy Commissioner had acted reasonably in determining that a union could not collect and use video recordings of individuals crossing a picket line. The adjudicator never considered the effect of its decision on Charter rights, because of s. 11 of the Administrative Procedures and Jurisdiction Act, a general ouster of Charter jurisdiction that can only be reversed by the provincial cabinet. The ouster provisions are very broadly drawn and apply to:

(i)    any challenge, by virtue of the Constitution of Canada or the Alberta Bill of Rights, to the applicability or validity of an enactment of the Parliament of Canada or an enactment of the Legislature of Alberta, or

(ii)    a determination of any right under the Constitution of Canada or the Alberta Bill of Rights.

It was thus "beyond the mandate" of the adjudicator to "engage" Charter issues (at para. 44).  The Court of Appeal gave a nod to the need to consider fundamental values (at para. 42), but it remains to be seen how broadly this nod will be interpreted.

It is worth emphasizing that Justice Abella noted in Doré that administrative decision-makers "must act consistently with the values underlying the grant of discretion, including Charter values" (at para. 24). With the reference to "values", it seems open to an individual to argue that the decision-maker has to take account of Charter values, such as fairness, justice and equity without the individual having to prove that an actual Charter right has been infringed. Even the broadly drawn provisions in the Alberta legislation do not prevent Charter values being taken into consideration.

The challenge for applicants, advocates and, indeed, decision-makers who wish to consider Charter issues despite legislative attempts to prevent them from doing so, will be to couch their arguments in terms of values rather than in the technical terms of Charter rights and proportionality tests.