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Relevant and irrelevant considerations

Sidebotham, N. (2007) Relevant and irrelevant considerations. In: Groves, M. and Lee, H.P., (eds.) Australian Administrative Law: Fundamentals, Principles and Doctrines. Cambridge University Press, Cambridge, UK, pp. 185-197.

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If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Failure to comply with Lord Greene's well-worn directive may render a decision ultra vires for failure to take into account a relevant consideration. Conversely, if there are matters to which a decision maker clearly should not have regard, a decision may be ultra vires for taking into account an irrelevant consideration, if such factors are indeed taken into account. This ground, or perhaps more accurately grounds, of judicial review are enshrined in both common law and statute. The Commonwealth Administrative Decisions (Judicial Review) Act 1977 states in s5(2) that an improper exercise of discretion includes (a) taking an irrelevant consideration into account in the exercise of power and (b) failing to take a relevant consideration into account in the exercise of power. Their history, however, has not been spectacular. From the Wednesbury case through to foundational Australian cases such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd and Sean Investments Pty Ltd v MacKellar, courts have presented the task of judicial review of an administrative decision on the considerations ground as a simple and straightforward exercise in statutory interpretation. Parliament confers discretionary power on a decision maker, the limits of which can be simply ascertained from a reading of the relevant legislation.

Item Type: Book Chapter
Murdoch Affiliation(s): School of Law
Publisher: Cambridge University Press
Copyright: © Matthew Groves, HP Lee 2007.
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