Australia: Exercising discretion in decision making

The exercise of discretion in Local Government decision making is often misunderstood. There are many decisions made by employees, for example, that don't involve the exercise of a discretion.

In circumstances where it is clear the decision must be made in accordance with clear and specific criteria then it is likely that no discretion is involved. A common example are planning approvals. Where the criteria for an approval is clearly met then there is no exercise of discretion involved.

However, where there is an absence of clear criteria to be met the decision maker must exercise a discretion before making the decision.

What is Involved in Exercising a Discretion

Generally speaking, to exercise a discretion, a decision maker cannot just arbitrarily make a decision.

A decision maker must first determine what factors they should take into account. There should then be a weighing up of those factors after applying the facts of the particular matter to them. The decision maker then needs to attempt to balance the merits of a decision one way or the other after giving appropriate weight or importance to each factor.

The decision maker must also not allow any bias or pre judgment to affect the formation of their decision.

If the decision maker goes through the process in this manner before making the decision then they will have properly exercised their discretion.

How Do You Know What Factors to Take into Account

In most cases you will be making a decision pursuant to a legislative power or provision. The legislation itself will often set out factors to be taken into account when making a decision. There are four possibilities:

  1. The legislation sets out the factors that must be taken into account exclusively. In this scenario the decision maker can only take into account those specified factors.
  2. The legislation sets out the factors that must be taken into account but does not make them exclusive. In this scenario the decision maker must still take those factors into account but can in addition also take other factors into account that are not specified.
  3. The legislation sets out factors that may be taken into account. Here the decision maker can choose whether or not to take or pay any attention to those factors or whether to choose other factors to take into account.
  4. The legislation is silent. Because the legislation is silent does not mean the decision maker can make an arbitrary decision, they must still determine what factors to take into account.

Where the Legislation is Silent

If the legislation is silent then the decision maker should begin by looking at the nature of the statutory text and the general purpose and policy of a provision in particular the mischief it seeks to remedy. See Alcam (NT) Alumina Pty Ltd v Commissioner of Northern Territory Revenue 239 CLR 27; Western Australian Planning Commission v Dungey [2010] WASC 52 at [27].

A decision maker should exercise common sense and they are entitled to take into account all of the circumstances and thus avoid the expenditure of public money unnecessarily. See R v Newham Justices, ex parte Hunt; R v Oxted Justices, ex parte Frankland [1976] 1ALL ER 839 at 843.

In the case of Dawson and City of Fremantle [2008] WASAT 125 the SAT accepted the principal stated in a NSW decision to the effect that an enforcement action should not be taken where to do so would work such an injustice that as to be disproportionate to the ends secured by the enforcement.

In Thomas v City of Stirling [2013] WASAT 110 Senior Member Raymond referring to earlier decisions said that the following factors would generally be relevant when exercising a discretion to decide whether or not to issue a Building Order under the Building Act 2011 (WA):

  • The public interest in enforcement of building standards requires that there should be compliance with the Building Act and the conditions of any building permit issued thereunder, such that the person responsible for building work must ensure that no part of the building or incidental structure is placed beyond the boundary of the land upon which the work has been carried out.
  • Regard should be had to the nature and extent of any burden or other detrimental effect to land affected by the encroachment or inconvenience to an owner or user of the affected land.
  • The factual circumstances in which the encroachment occurred.
  • The time which has elapsed since the encroachment occurred.
  • The expense and inconvenience which would be involved in removing the encroachment or any other proposed course of action.
  • In applying the above factors sound common sense should be used to avoid the unnecessary expenditure of public funds.

Sessional member Raymond went on to say that the weight to be attached to the above factors and of any other relevant factors in a particular case will always depend on the circumstances of each case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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