#7229 - Judicial Review Grounds Iv - Administrative Law

• 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.’

• 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

  • 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:

  • 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

  • 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

  • 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

  • “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”

The textbook writers point out three key things from S20:

1. 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

2. 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

3. 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.

• There is doubt as to whether Wednesbury unreasonableness is as narrow as often assumed but when most cases discuss it they do so in the context of rejecting the argument that it was breached

  • Contrarily many cases in which unreasonableness has been found can probably be explained as satisfactorily by other grounds of error

    • In Chan the HCA held that a denial of a refugee application was unreasonable because the decision couldn’t have been reasonably made if the proper test was applied

    • Later in Wu Shan Liang the majority questioned whether ‘error of law’ should have been the ground use in Chan.

• Rationales for a closer definition of Wednesbury reasonableness include:

  • Less risk that the principle will be applied inappropriately or as a cloak for merits review

  • To illustrate how the principle compliments other grounds of judicial review by applying to errors or abuse of power not easily categorized in other grounds (and hence serving as an evolutionary function in administrative law)

• One attempt to define unreasonableness was in the three paradigms outlined by Gummow J in Fares Rural Meat:

  1. The capricious selection of one of a number of powers open to an administrative...to achieve a desired objective, the choice being capricious in that the exercise of the power chosen involves an invasion of the common law rights of the citizen where another power wouldn’t

  2. Discrimination without justification, a benefit or detriment being distributed unequally...