Yet another recent case demonstrates the care that must be taken by public bodies when adopting guidelines or practice manuals to help streamline the exercise of a statutory discretion. It is acceptable to adopt such guidelines but they cannot be inconsistent with the applicable legislation, be a substitute for the statutory test, or be treated as absolute requirements.

For example, in Aviation Industry Association v Civil Aviation Authority, pilots and industry groups successfully challenged a medical manual used by the CAA which stated that applicants for medical certificates with more than a 1% risk of coronary failure were unfit to fly. The problem was not that the manual contained such a guideline, but the CAA and its officers treated it as an absolute rule or a rigid cut-off point, not a screening test with a degree of flexibility.

The lesson is simple. Policies, guidelines and manuals to help streamline the exercise of statutory discretion must not be applied so rigidly as to replace the actual statutory discretion. Public bodies must retain the flexibility to hear and assess those cases that do not meet the guidelines and must still consider whether a licence or approval should still be granted (or whether the guidelines should be changed to cover such situations).

This article is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this article.

Copyright Phillips Fox, 2001

Author - Dean Knight: dean.knight@phillipsfox.com

Web site: Phillips Fox