CPD Course:
Exercise of Discretion by
Public Decision-Makers:
Common Pitfalls
and How to Avoid
Judicial Review

Dr. Stephen Thomson is an Associate Professor at the ANU College of Law, The Australian National University.  He previously worked in Hong Kong for a number of years at The Chinese University of Hong Kong and City University of Hong Kong.  Dr. Thomson is the author of the leading text 'Administrative Law in Hong Kong' (Cambridge University Press, 2018), a Legal Adviser to the Ombudsman of Hong Kong, a member of the Constitutional Affairs and Human Rights Committee of the Law Society of Hong Kong, and an examiner on the Overseas Lawyers Qualification Examination.  He is also the General Editor of the Federal Law Review and was a Herbert Smith Freehills Visitor at the University of Cambridge.  His work has been used by courts, government and legislatures in Hong Kong, the UK and the US.  Dr. Thomson holds a PhD in constitutional and administrative law from the University of Edinburgh.

This course looks at the exercise of discretion (how to make decisions) by public decision-makers in the context of judicial review in Hong Kong.  It begins by examining what discretion is and some of its underlying ideas and concepts.

The course then explores three main areas in which it is considered how public decision-makers should exercise discretion to reduce the likelihood of being successfully judicially reviewed.  These are:

1. The role of policies, how they should be formulated and how they should be applied;
2. Relevance of considerations, failure to take into account relevant considerations and taking into account irrelevant considerations; and
3. Reasonableness, rationality and cogency of the exercise of discretion.

In each of these areas, we will consider common pitfalls that can lead decision-makers to violate one or more grounds of judicial review, and what decision-makers can do to minimise the likelihood of being successfully judicially reviewed.

While this is plainly of interest to practitioners representing or working for public decision-makers, it is also very useful for practitioners representing applicants for judicial review in terms of understanding the legal obligations of public decision-makers in this area.  Your seminar leader will use accessible, easy-to-understand explanations and examples, and be pleased to answer your questions.  All welcome.

• What is discretion?
• The role of policies in decision-making
• How should policies be formulated?
• How should policies be applied?
• What are relevant considerations and how should they be folded into the decision-making process?
• What are irrelevant considerations and how should they be excluded from the decision-making process?
• What is unreasonableness and irrationality review? How does it work in practice?
• How can decision-makers exercise discretion in a way which minimises the prospects of being successfully reviewed on the basis of unreasonableness and irrationality?