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Judicial Review Grounds Iv Notes

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Judicial Review Grounds IV


The introduction to the chapter talks about how reasonableness and rationality is an underlying expectation of government rooted deeply in Western tradition and in theories of government "the most ubiquitous concept used in studying how humans behave as individuals" (G Airo-Farulla) but questions whether this should be framed as a legal requirement.'

Associated Provincal Picture Housese Ltd v Wednesbury Corporation [1848] 1 KB 223 Facts: The Sunday Entertainments Act provided that licensed cinemas could be open on Saturdays only with the local authorities permission 'subject to conditions as the authority think fit to impose'. The plaintiffs were given permission by WC with the condition that 'no children under the age of 15 shall be admitted...' The company sought a declaration that the condition was invalid as unreasonable. The action was dismissed. Lord Greene MR: Summarized his ruling as such:


Courts are entitled to investigate the action of the local authority with a view to seeing whether they have taken matters which they ought to take into account or have refused to take into account.

He was of the view that the physical and moral health of children is obviously a matter which a local authority exercising their powers should have in mind - and with this disposed of the claim.


Once that question is answered, it may still be possible to say that, although the local authority was within the four corners of matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could never have come to it. But to prove a case of that kind would require something overwhelming. In such a case the court can interfere.


It does not interfere is a "judicial" rather than "appellate" authority to see whether the local authority has contravened the law by acting in excess

The development of Wednesbury Unreasonableness


Wednesbury is the starting point to all analysis in this area. Lord Greene's formulation has been given statutory recognition in the ADJR Act which provides that review can be sought in respect of o


s 5(2)(g) - an exercise of power that is so unreasonable that no reasonable person could have so exercised the power

The ground itself serves multiple purposes - a 'safety net' to catch legal errors not fitting into other grounds , an 'umbrella' under which related themes and principles of judicial review are gathered, a 'springboard' from which to define new legal standards to guard against executive abuse - it is testament to the CLAs ability o adapt to changed circumstances in society and government to reflect community values.




Two related grounds exist under teh ADJR Act that are often used interchangeably: o

s 5(1)(j) that the decision was otherwise contrary to law


s 5(2)(j) any other exercise of power that constitutes an abuse of power

Most of modern jurisprudence arises from Lord Diplock's observations in CCSU that the grounds of judicial review could be classified under the heads of 'illegality' 'irrationality' 'procedural impropriety' and 'proportionality' - the second of which concurs with Wednesbury unreasonableness o

Justice French thought of this requirement (TCN) as a single requirement that administrative decisions in the exercise of statutory power have to be rationally based while Deane J thought Wednesbury principles encompassed a duty to act judicially in accordance with natural justice, and thus excludes the right to decide arbitrarily, irrationally or unreasonably.


These observations have also been applied to the way legislation is construed and applied. Brennan J observed that discretionary power statutorily conferred must be exercised reasonably since the legislature is taken to intend that the discretion is so exercised. Reasonableness can be determined with reference to community standards

But as a ground of review applying the principle should be expressed with a caution, this is reflected in three ways o

The scarcity of cases in which administrative decision-making is declared Wednesbury unreasonable even though it is argued frequently


The statement made in cases that 'unreasonableness' is often little more than a shorthand for describing other grounds of legal invalidity (relevant/irrelevant grounds and bad faith - iTCN)


The warning that it is to be applied in the backdrop of the legality/merits decision - Mason J commented that 'the limited role of the court reviewing the exercise of an administrative decision must constantly be borne in mind"


English courts have been more ready to accept the ideas of 'unreasonableness, irrationality and proportionality' partly since they have gone in the direction of escaping the legality/merits distinction.


In Australia however, the distinction is preserved and the test to be used was given in Murrumbidgee which recognized the legality/merits distinction at the heart of administrative law o

"It is...necessary to commence with the identification of the particular statutory power, understood in its context, and to assess the exercise of that power against the high standard of unreasonableness or of irrationality which the outcome must reach before the court can legitimately infer that the legal limits to the exercise of the power have not be observed so that....'could not reasonable have been adopted as a means of attaining the ends of the power' and is therefore, 'not a real exercise of the power"

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 ('S20') (2003) 198 ALR 59 Facts: s65 and 415 of the Migration Act provided that a visa would be granted if the RRT was 'satisfied' that the criteria prescribed by the Act were met. They rejected S20's claim and he challenged the decision as 'irrational, illogical and not based upon finding or inferences of fact supported by logical grounds.' The argument was framed as such since s476(2)(b) provided that the tribunal couldn't be challenged on the grounds of reasonableness. Gleeson CJ: Cautioned of the idea that 'illogical, unreasonable, irrational' may just be an emphatic way of expressing disagreement. After citing Dixon J in Avon Downs he intimated that describing a conclusion as illogical on judicial review might just mean that the court would have reached the required state of satisfaction which the applicant hoped the decision maker would - but more is required under Dixon J's formulation.


Ordinarily it will not be sufficient to establish some faulty inference of fact (ABT v Bond) but: o

There is a duty to act judicially and a power must be exercised 'according to law, and not humouro


Irrationality of the kind described in Bond may involve non-compliance with this duty

Also where 'the true and only reasonable conclusion contradicts a determination' then the determination may be shown to involve legal error (Baristow)

Intimated that illogicality and unreasonableness were 'protean concepts' which require closer definition were said to be relevant to judicial review of administrative decisions.

The textbook writers point out three key things from S20: I.

The HCA was open to the proposition that decisions can be invalidated on the basis of irrational/illogical reasoning or fact-finding but something more serious than a poor expression of reasoning has to be shown

II. Irrationality/illogicality was available as a ground of review but Wednesbury unreasonableness wasn't - this means the two concept have a different field of operation

III. The different field of operation is that Wednesbury unreasonableness is confined to review of statutory discretions whereas irrationality/illogicality is concerned with fact finding


It is also important to bear in mind that in S20 there was a restricted scheme of review and thus there is probably little to be gained by drawing distinctions - the ends result is likely to be that review will be available on one basis or another of Wednesbury unreasonableness, irrationality and illogicality. In Peko they were treated as overlapping.

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