Welcome to the new version of the Patents Manual. Please note there are changes to the numbering and sequence of the chapters and pages in the manual. You are encouraged to take the time to explore and familiarise yourself with this new structure. Lawfulness

Date Published

Key Legislation:

Administrative Decisions (Judicial Review) Act 1977

  • s6 Applications for review of conduct related to making of decisions

Hearing officers must act in accordance with the law. This requires both knowledge of, and compliance with, the Patents Act and other laws that are relevant to the proceedings and decision made by the hearing officer, and a demonstrated commitment to the legal principles that apply to public officers in the making of administrative decisions.

In this regard, s6 of the AD(JR) Act 1977 is indicative of the improper and unlawful exercise of administrative powers that should be avoided and includes:

  • taking an irrelevant consideration into account;
  • failing to take a relevant consideration into account;
  • exercising a power for a purpose other than a purpose for which the power is conferred;
  • exercising a discretionary power in bad faith;
  • exercising a personal discretionary power at the direction or behest of another person;
  • exercising of a discretionary power in accordance with a rule or policy without regard to the merits of the case;
  • exercising a power that is so unreasonable that no reasonable person could have so exercised the power;
  • exercising a power in such a way that the result of the exercise of the power is uncertain; and
  • exercising a power in a way that constitutes abuse of the power.

These also relate to the principles of fairness, rationality and openness that are discussed in the following sections.

Key considerations for hearing officers in regard to lawfulness are:

  • Does the Patents Act authorise the decision that is proposed to be made?
  • Do they have power under the Act to make the decision?
  • Do they understand the law and any procedures required by law that are relevant to the decision?

If hearing officers are in any doubt, advice should be sought from OEP.

For information on the powers that are delegated to hearing officers, see Hearing Officer Delegations.

Amended Reasons

Amended Reason Date Amended
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