Administrative Powers
One of the major imperatives for the growth of statute law in the past hundred
years or so has been the expansion of government activity. Statutes have
established new organisations such as government instrumentalities. Then they
have endowed these, and also executive officials, with an array of powers and
responsibilities. These powers are frequently discretionary and sometimes a
duty. So vast is the range of activities of executive government, and so great
its impact on the citizen's life, that a new branch of law, administrative law, has
been developed by the courts and the legislatures. It represents an attempt to
ensure that powers are used justly and properly for both the individual and the
public good.
Two of the principal common law doctrines used to control statutory powers
consist of ultra vires and natural justice. A third rule, implied powers, extends
a power to make it effective. Finally there are some rules or presumptions
about the exercise of power.
Natural Justice
Natural justice requires a decision maker to make full inquiry before making a
decision. This includes two requirements when a decision is about to be made
that will affect a person. The person must be informed of the nature of the
decision and they must be given an opportunity to make their input into the
decision, that is, to present their case.
Ultra Vires
Ultra vires requires a decision maker to keep the exercise of the power within
the letter and spirit of the terms of the power conferred by the legislature. The
rationale for these doctrines is aptly stated in the following passage from Lord
Halsbury:
[W]hen it is said that something is to be done within the discretion of the authorities
that something is to be done according to the maxims of reason and justice, not
according to private opinion; according to law, and not humour. It is to be not
arbitrary, vague, and fanciful, but legal and regular. And it must be exercised
within the limit to which an honest man competent to the discharge of his office
ought to confine himself.
482
Ancillary Powers
Almost any grant of express power confers an implied power commonly
described as ancillary power. This is expressed in a Latin maxim, quando lex
aliquid concedit, concedere videtur et illud sine quo res ipsa valere non
482
Sharpe v Wakefield [1891] 1 AC 173, 179
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