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Stellatos, Stacey --- "Looking for Wednesbury's Reasonable Interpretation" [2014] UNSWLawJlStuS 7; (2014) UNSWLJ Student Series No 14-07


LOOKING FOR WEDNESBURY’S REASONABLE INTERPRETATION

STACEY STELLATOS

INTRODUCTION

The judicial review ground of unreasonableness, in particular Wednesbury[1] unreasonableness (Wednesbury) continues to pervade the realms of judicial review in Australia. From the outset of its application, Wednesbury has received an overwhelming amount of criticism. In particular, its scope and boundaries are often deemed as “inescapably qualitative”[2] and stringent. Despite this, Wednesbury continues to dominate the unreasonableness ground. Australia, unlike its common law counterparts continues to uphold Wednesbury unreasonableness in its traditional “unmodified form”[3]. It shall be argued that an unreasonableness ground performs a vital role in judicial review as it ensures that governments act in a reasonable and rational manner.[4] This paper shall address whether the High Court’s complex decision in Minister for Immigration and Citizenship v Li[5] (MIAC v Li) will offer guidance to the contemporary application of the ground of unreasonableness. In effect, it shall be examined whether MIAC v Li is able to assist in attaining the objective of what this paper will describe as the re-interpretation of Wednesbury. Reform to its operation may need to occur and preferable recommendations to the scope of unreasonableness shall be examined, in particular the principle of proportionality.

UNREASONABLENESS IN JUDICIAL REVIEW

The ambit of unreasonableness in judicial review tends to be confined to traditional principles. The ground enables that “an act or decision can be judicially reviewed on the ground of its unreasonableness”.[6] Therefore it functions to ensure that powers are utilised in a manner which reflects both their intention and purpose.[7] The unreasonableness ground in Australia is largely shaped by the judgment of Lord Greene MR in Associated Provincial Picture House Ltd v Wednesbury Corporation[8]. This judgment produced the renowned principle of Wednesbury unreasonableness. It may be difficult to escape one of the most frequently cited passages of Lord Greene’s judgment. His Honour advances that:

“It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming”.[9]

In Australia, Wednesbury is often viewed as upholding the “orthodox standard”[10] of the unreasonableness ground. Subsequently, the framework of this principle shall be explored and also the extent to which it continues to prevail in its original form. Aronson and Groves argue that “Lord Greene clearly intended this ground to represent a safety net” [11] as it would only be used in rare occasions. Weeks affirms this view and states that the Wednesbury standard “applies only to the most absurd exercises of discretion”[12]. The scope provided by Lord Greene has often been termed “circular”[13]. This is because the test in Wednesbury follows the course that “the decision must not merely be unsound, or wrong, it must be perverse”[14]. It is evident that such a test contains an inflexible and stringent base.[15] Thus the standard proposed by Wednesbury is so high that there are very few cases that have successfully met the criteria of the ground.[16]

The principle of unreasonableness has been widely embraced in legal decisions prior to the formulation advanced by Lord Greene. Therefore, the Wednesbury formulation should not be classified as the “holy writ”[17] of the unreasonableness ground. For instance, in the early case of Kruse v Johnson[18], Lord Russell considered that decisions were “manifestly unjust; if they disclosed bad faith...as [they] could find no justification in the minds of reasonable men”[19]. Further, in House v R[20], Starke J stated that even wide discretions “must be exercised judicially, according to the rules of reason and justice, and not arbitrarily or capriciously”.[21] The importance of these early cases serves to illustrate the interplay of unreasonableness prior to its Wednesbury application in the twentieth century.[22] The unreasonableness concept was also entrenched within the legal realms prior to the extensive use of statutory discretions.[23] Despite evidence of such cases, Wednesbury often prevails as the “starting point”[24] in contemporary deliberations involving unreasonableness.

The scope and boundaries of Wednesbury unreasonableness took an interesting turn of development when its categories of irrationality and illogicality were considered.[25] In Council of Civil Service Unions v Minister for the Civil Service[26], unreasonableness and irrationality became in essence synonymous terms. This is due to Lord Diplock’s judgment which advanced that “by irrationality I mean what can now be succinctly referred to as Wednesbury unreasonableness”.[27] Airo-Farulla suggests that the judgment attempted to counter the circularity apparent in the renowned Lord Greene judgment.[28] Lord Diplock in essence stated that the unreasonableness or irrationality ground of review applies:

“to a decision which is so outrageous in its defiance or logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”[29].

Nonetheless, it is arguable that this definition too, remains circular. The view advanced by Lord Diplock was affirmed in various Australian cases.[30]

The decision of the High Court in Ex parte Applicant S20/2002[31] (S20/2002) offered insight into the potential reconfiguration of Wednesbury in Australia. The contested decision in the Refugee Review Tribunal concerned whether a protection visa was invalid on the grounds of irrationality and illogicality.[32] As Beaton-Wells outlines the court recognised a way to bypass the contested privative clause[33] by reviewing the decision on the aforementioned grounds instead of Wednesbury.[34] Despite the fact that the Court did not invalidate the decision on the irrationality/illogicality ground, Gleeson CJ proposed that “unreasonableness is a protean concept”[35] therefore hinting at the need to re-interpret the principle. As a consequence of S20/2002, it has been concluded that “Wednesbury unreasonableness was a ground relevant only to discretionary decisions”[36] thus the ground and its scope in effect was diminished[37]. Similar reasoning was employed in Sydney Ferries v Morton[38] where it was held that “fact-finding”[39] did not encompass the scope of Wednesbury. The exact nature of the principles which emerged from S20/2002 is often questioned.[40] In Minister for Immigration and Citizenship v SZMDS [41], it was held that “rationality is a separate freestanding common law standard”[42] which follows the formulation advanced by Lord Greene. As Kerr argues, the prevailing view is that “Wednesbury and...irrationality and illogicality, both may be due for rehabilitation”[43] and it shall be investigated how this is able to occur in the realms of Administrative Law.

CASE: MIAC v Li

A Background Information

The facts in MIAC v Li are not in any sense unique. The case concerned Ms Li, a cook, who applied on 10 February 2007 for a Skilled-Independent Overseas Student (Residence) (Class DD) visa. In order to attain the visa she had to acquire a favourable skills assessment.[44] Pursuant to issues concerning alleged false information present in the first application, Ms Li requested that the Migration Review Tribunal (MRT) adjourn review until the skills assessment was finalised by the Trades Recognition Australia (TRA). At the MRT hearing in December 2009, it was held that:

“The Tribunal considers that the applicant had been provided with enough opportunities to present her case and is not prepared to delay any further and in any event”.[45]

Subsequently the application was rejected on 25 January 2010. It shall also be noted that on 12 April 2010, Ms Li received a successful assessment by the TRA. Ms Li then applied to the (then) Federal Magistrates Court[46] for judicial review on the MRT’s decision. She was successful and the Court held that:

“The Tribunal’s decision to proceed in [the] circumstances rendered it unreasonable such as to constitute unreasonableness in the Wednesbury Corporation sense”.[47]

The Minister then appealed to the Full Federal Court and the appeal was dismissed on 24 May 2012. The Court held that procedural fairness had been denied to Ms Li and that the MRT had not exercised its statutory requirements of judicial review.[48]

MIAC v Li involved the appeal initiated by the Minster before the High Court. The three judgments (French CJ; Hayne, Kiefel and Bell JJ; and Gageler J) unanimously dismissed the appeal. The Migration Act 1958 (Cth) (MA) provides the MRT with power to adjourn review of decisions.[49] It was held that the Tribunal had not reasonably exercised its statutory obligation when it refused to grant Ms Li the adjournment she desired. As McDonald highlights, the High Court rarely deems administrative decisions invalid on the ground of unreasonableness, therefore this case is quite significant.[50] It will also be argued that the High Court through this decision is advocating the view that Wednesbury requires a level of re-interpretation. Therefore, the case should be received in a positive manner, but its impact(s) on the unreasonableness ground remains unknown.

B High Court Judgments

French CJ acknowledged the ground of unreasonableness, but the basis of his judgment focused on the procedural fairness denied to Ms Li.[51] His Honour advocated that Ms Li had not been granted a fair opportunity to gather relevant evidence for the review of her decision. The reasons provided by the MRT did not possess sufficient information as to why there was a refusal of the desired adjournment. The Tribunal instead focused on the fact that Ms Li had been provided opportunities to gather evidence for the case.[52] The MRT is the sufficient body to decide whether “a reasonable opportunity”[53] was to be provided, however the reasons that were provided by the MRT were deemed to be unreasonable. Subsequently there was “an arbitrariness about the decision, which rendered it unreasonable”[54] and this was the underlying conclusion.

It was also stated that:

“Rationality required by the rules of reason is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power”.[55]

Similarly such “rules of reason”[56] govern a statutory discretion, which in this case was s 363(1)(b) of the MA. Statutory guidelines on what constitutes reasonableness are often vague and this is problematic. French CJ commented that statutory discretions should be curtailed to the “subject matter, scope and purpose”[57] of the legislation. The statutory discretion in contention “did not indicate how that power should be exercised”[58] in such cases. The judgment also considered Kruger v Commonwealth[59] where Brennan CJ stated that “when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably”.[60] Therefore, a connection exists between the ground and its intention which is implied in the legislation.[61]

The plurality also focused on whether the MRT had exercised its statutory discretionary power in a reasonable manner. It was stated that “the legislature is taken to intend that a discretionary power...will be exercised reasonably”[62], thereby the plurality was in agreement with the judgment of French CJ. Subsequently, there was also considerable examination of the possible errors that the Tribunal may have made as a consequence of this determination. This is exemplified in the following passage:

“It is not possible to say which of these errors was made, but the result itself bespeaks error...because error must be inferred, it follows that the Tribunal did not discharge its function (of deciding whether to adjourn the review) according to law. The Tribunal did not conduct the review in the manner required by the MA and consequently acted beyond its jurisdiction”.[63]

As stated in the passage, the exact nature of the errors were not listed and this may be indicative of the High Court alluding to an innominate ground of review. The plurality closely considered the ruling in House v R[64] that “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.[65] The case thus illustrates an example of “decisional freedom” [66], but it was not decided what criteria would be employed to assist such freedom in operation. MIAC v Li may even be suggestive that “decisional freedom”[67] is only permitted in cases which are “rare”[68], which further upholds the renowned Wednesbury principle.

Further the plurality significantly stated that:

Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision − which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury.”[69]

There are strong grounds to suggest that this marks the attempt by the High Court not only to apply unreasonableness, but in effect to reformulate the ground of review.[70] This excerpt is indicative that Wednesbury is not the only contender in the ground of unreasonableness. The ground merely includes Wednesbury as one of its categories. Deliberating the exact intentions desired by the High Court remains a mystery, but there is significant evidence posed by the plurality that they view benefits of expanding the ground.

Lastly, the judgment by Gageler J closely considered Wednesbury unreasonableness as the most appropriate standard to invalidate the decision. His Honour concluded that:

“The MRT does fail to perform its statutory duty to review a decision where:

(i) the manner of its performance of a procedural duty, or of its exercise or non-exercise of a procedural power, is so unreasonable that no reasonable tribunal heeding those exhortations or adhering to those aspirations could have done what the MRT in fact did; and

(ii) that unreasonableness, or neglect, on the part of the MRT is shown to be material to the outcome of the review that the MRT has undertaken in fact.”[71]

It is seemingly evident that Gageler J offers a conventional approach to Wednesbury in direct juxtaposition of the wider view provided by the plurality and French CJ. His Honour also stated that:

“The stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. This is a rare case”.[72]

C Ramifications Following MIAC v Li

If MIAC v Li, is really a “rare” [73] case, will this case become a resonating attempt to re-interpret Wednesbury? The impact of this case as a whole will be highly dependent on a subsequent High Court decision dealing with the ground of unreasonableness. As Weeks highlights MIAC v Li “now effectively runs the unreasonableness and irrationality standards back together”[74] to a large extent. The case concludes that unreasonableness is not limited to Wednesbury – there are a multitude of factors to be included.

It was held in Singh[75] (which possessed similar facts to MIAC v Li) that:

“It would be wrong to see Li as creating some kind of factual checklist to be followed and applied in determining whether there has been a largely unreasonable exercise of a discretionary power. Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court”.[76]

It should be noted that a jurisdictional error was not found in the final court proceedings, and this resulted in the dismissal of the application.[77] Allianz Australia Insurance Ltd v Mackenzie[78] was also similar where it was held that the “submission fail[ed] on a factual basis”[79]. Therefore it lacked the “evident and intelligible justification”[80] found by the plurality in MIAC v Li.

Another consideration is in effect how many adjournments are deemed to be reasonable in similar situations to that of MIAC v Li. From a policy perspective, granting an indefinite stream of adjournments would be costly and cannot be permitted.[81] A possible solution may be to include a number of adjournments into statutory guidelines which would fulfil the reasonable nature of the discretion. As decisions in this area are fact-dependent, it would be difficult to establish an exact number that would constitute reasonableness. Moreover, such a solution may constrain the actual discretion in practice. In the case of Kaur[82], six adjournments had been granted and it was subsequently held that the case did not contain the “capricious exercise of the power”[83] identified in MIAC v Li. The plurality in MIAC v Li stated that the Tribunal does not have an obligation to grant “every opportunity to an applicant” [84] to improve their evidence and review their case. If such reasoning is upheld in subsequent decisions, it will vastly contribute to re-interpreting the ground and its stance towards adjournments in judicial review.

THE PROBLEMATIC FEATURES OF UNREASONABLENESS

Unreasonableness as a ground of review is renowned for its problematic nature. Firstly, it is often thought that the ground intrudes into the territory of merits review. Secondly, if reasons for decisions are provided, critiquing them as unreasonable may be difficult. Lastly, the general framework of the ground shall be reflected upon and why this has led to its undesirable nature.

The unreasonableness ground has not been embraced in a favourable manner. It is often contended that Wednesbury “challenges the dividing line between merits and legality”[85] and therefore its application in practice is problematic. Similarly, the grounds of illogicality and irrationality have also “straddled the boundary”[86] of the two different types of review. The unreasonableness ground is popular in proceedings, but as Morris notes the courts in Australia have displayed immense hesitation to its application.[87] Weeks confirms this view by stating that Wednesbury unreasonableness is a “ground of last resort”[88]. In Attorney-General v Quin[89], it was held that judicial review should not include the “judicial scrutiny of the merits” [90] of cases, instead it is the “legality of the action”[91] which is of importance. It has been suggested that unreasonableness has a tendency to invite “courts to reassess the merits of a decision” [92] and therefore this ground does not concern itself with the aforementioned legality aspect. However, if elicited in a manner encompassing the re-interpretation of Wednesbury, there is argument that the ground will not impede on the merits of a case.[93]

As it is common for public authorities to provide reasons for their decisions, it may be difficult to pursue a course of Wednesbury in judicial review.[94] Basten JA argues that it would be preferable if all decision-makers were bound to provide reasons for their decisions.[95] The High Court in Osmond[96] did not adopt this approach as a matter of common law which was described to be “a significant economic and resource intensive obligation” [97] to be enforced on the executive and its decision-makers. Kerr highlights that the Courts are embracing the view that statutory interpretation facilitates an implied right to reasons.[98] As a consequence it has been argued that the case should be revisited so that an “acceptance of a general duty of reasons”[99] may subsequently be adopted in Australia. In addition, the scope of time to provide reasons for decisions and the quality of the actual reasons may be at issue. If efforts are provided to examine their operation, the scope of unreasonableness may be expanded.

Scepticism of this ground and its application by various commentators is widespread. Taggart argued that unreasonableness “can mean almost anything we want it to mean”.[100] This is suggestive that the term is a fluid construct which is largely the cause of its problematic nature. Construing a set of rules which constitutes the basis of an unreasonable decision is a rather challenging task. This is because as Basten identifies, the ground employs “a flexible, if not undefinable, standard of community values”[101] as its criteria. Other problematic aspects of the concept and its application include its failure to provide an intensity of review and a “margin of discretion”[102] to authorities and public officials. Despite the avid criticisms, Wednesbury continues to mark its existence in s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).[103] This section states:

“An exercise of power that is so unreasonable that no reasonable person could have so exercised the power”[104]

It is evident that this section largely mirrors the principle advanced by Lord Greene to a far greater extent than any other unreasonableness/rationality standard. Further it illustrates the profound impact Wednesbury has on Australia’s statutory judicial review grounds. Despite this, as exemplified in S20/2002, the court has displayed a tendency to bypass similar statutory provisions, in effect undermining the ground of review and limiting its scope.[105]

PROPORTIONALITY – THE DESIRABLE ALTERNATIVE?

Proportionality has a tendency to invade the deliberation of judicial review in Australia. Various legal systems have embraced proportionality. For instance, England has formulated proportionality as a separate ground of review, alongside unreasonableness and irrationality.[106] In contrast, Australia, remains “the notable anomaly”[107] pursuing “the unmodified form of Wednesbury unreasonableness”[108] in Administrative law. Brennan J largely justifies such a stance as attributable to the constitutional “notion of separation of powers”[109] which in Australia is rather rigid in application. Therefore, there shall be some attempt to explain whether proportionality is viable in the Australian context. Proponents of the principle such as Arden argue that “the logic of the proportionality principle is impeccable”[110] and thus the desirable aspects of proportionality will also be considered. It shall be noted that the abundance of academic literature listing the advantages of proportionality reflects the legal systems which have adopted the ground and who also may possibly have a bill of rights. Therefore, the effect of their translation within Administrative Law in Australia is uncertain. Insofar as is the case, it is significant to investigate if proportionality is able to contribute to the successful re-interpretation of Wednesbury.

The scope of proportionality encompasses “reasoned justification”[111]. Thereby the onus is placed on the decision-maker to display that the decision is one of proportion.[112] Martinsen further advances that proportionality “requires that action must be proportionate to its objective” [113] and subsequently offers protection to individuals from state power exercised in a capricious manner.[114] Unlike Wednesbury, proportionality contains a structured test which arguably “facilitates more accountability”[115] to decision-makers. In addition, proportionality is often remarked as being desirable because it itself is not determinative to one model or a stringent criteria. Instead, proportionality may be utilised by courts in a manner “which reflects their own constitutional tradition of judicial restraint”[116], therefore its adaptation in legal systems varies. It is also common for “case law precedent...or statutory drafting”[117] to form the basis of models. It is difficult to employ such a standard in Australia which currently employs an unreasonableness standard which focuses on “arbitrariness”[118] and “capricious exercise of power”[119] in administrative decisions.

Aronson and Groves argue that European “human rights jurisprudence”[120] was notable to the re-evaluation of Wednesbury in England. This occurred shortly after the renowned judgment of Lord Diplock in Council of Civil Service Unions[121]. The case “exposed an exciting new facet, namely, the prospect [of] proportionality”[122] which was promoted as a capable ground of judicial review. England adopted the Human Right Act 1998 (UK) and courts began to recognise proportionality review in cases concerning matters related to human rights.[123] Proportionality is vastly popular in countries which possess a bill of rights or who have extensive human rights legislative regimes. For example, in Canada, Mullan comments on the system of proportionality which operates within the Canadian Charter of Rights and Freedoms.[124] This is unfortunately not the case in Australia, and this is one of the main reasons why proportionality would not be able to operate in a similar manner.

Correspondingly Kiefel J advocates proportionality within the scope of Australia’s legal framework. Her Honour argues that proportionality is an adequate concept “to test the excessive use of legislative power”[125]. Further it is argued that:

“In law, proportionality is employed as a concept and an ideal; as a test and as a conclusion. Its basis as a legal rule is reason”.[126]

Despite its contested nature, there are traces of proportionality in Australia. Firstly, proportionality is endorsed to an extent in constitutional law.[127] Subsequently, Kiefel outlines s 7(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) which is described to be “an appropriate requirement of citizens in...society”[128], therefore such regimes are promoted in other Australian jurisdictions. Proportionality is also widely considered in the realm of delegated legislation, in particular this was illustrated in the case of South Australia v Tanner.[129] In this case a regulation may be invalid where it is “so lacking in reasonable proportionality as not to be a real exercise of the power”.[130] The principle was not directly upheld in the case, but the mere acknowledgement is sufficient to illustrate its potential validity in the Australian landscape.[131]

The proportionality principle encounters challenges and it is believed to have a variety of flaws. Arden comments that proportionality may contribute to “difficulties in forming a view on the evidence”[132] because of its dependence on values. Moreover, Knight argues that proportionality often echoes a “mantra of human rights”[133] and that in effect is problematic to its application. This may create situations where judges “treat any right or interest as being a human right”[134], therefore the realm of judicial review becomes convoluted with that of human rights. Aronson and Groves practically point out that “the doctrinal shape of proportionality review is complicated”[135] as it grants the leverage to judges to examine policies in detail and recommend changes where rights have been infringed in a particular case.[136] Another notable challenge created by proportionality is that it may entail a situation where private interests of an individual are to be balanced alongside that of a public purpose. Such a situation may involve “weighing the immeasurable...against the unspecified”[137] and this is largely ineffective in practice.

In many different respects merit shall deservingly be provided to proportionality. Its appraisal is advocated by Arden who comments that the principle is able to firstly “intensify judicial scrutiny of administrative or legislative acts” [138] and is also able to monitor “judicial restraint”[139] when required. On the contrary, these two aspects may contribute to dwindling relations with the legislative branch and this is problematic to Australia’s strict adherence to the separation of powers doctrine.[140] Further, another positive feature of proportionality is its dependence upon “value judgments”[141] by the judiciary in an explicit manner. These identified values will then be subsequently examined alongside that of the rights which have been contested.[142] The “virtues of articulacy and rationality”[143] are also often expounded by the principle. Craig, an avid proponent of the principle, advocates for proportionality to become a separate ground of review and it is subsequently argued that if this were to occur, proportionality would become “the sole or dominant tool in the judicial armoury”.[144] This may bolster the unreasonableness ground of review.

The judgments in MIAC v Li contains various references to proportionality. French CJ comments that:

“A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves”.[145]

The aforementioned passage raises the possibility that proportionality may be utilised in a manner to reverse the division between reasonableness and rationality. It may also be argued that French CJ is utilising the word reasonable as synonymous to proportionate. Such an action may constitute an important factor to the re-interpretation of Wednesbury. This passage also provides insight that proportionality would be preferably utilised as assisting the existing unreasonableness ground, rather than operating as a separate ground of review. The High Court has welcomed the possibility of proportionality in judicial review. The decision in MIAC v Li arguably confirms this proposition. The viability of “a free-standing proportionality ground of review” [146] in Australia is difficult to fathom considering the absence of constitutional or statutory rights offering humans rights protection. Whether the re-interpretation of Wednesbury involves some form of proportionality in order to be successful shall be considered in the following section.

THE RE-INTERPRETATION OF WEDNESBURY UNREASONABLENESS

The suggestion of a viable ground of unreasonableness in judicial review transcends aspiration. The task cannot be achieved as long as Wednesbury continues to prevail in its original “monolithic”[147] form. A basic re-interpretation of Wednesbury shall be encouraged. It is important to communicate what in effect this means. In its traditional confines, the principle has not been operating in a desired manner. The re-interpretation will involve a level of reconfiguration to locate a way for the ground to best address contemporaneous issues. Like all principles Wednesbury should be allowed to evolve and not be constrained to its original formulation.[148] In its original scope Wednesbury should be acknowledged, in a sense that it profoundly shaped the course of unreasonableness but as a consequence of practical reasons its definition has largely transformed in scope and purpose. Recommendations about re-interpreting Wednesbury has received thorough debate and possible solutions shall be examined.

The re-interpretation of Wednesbury may require emphasis on judicial scrutiny. Knight advocates for the modification of judicial scrutiny and its depth when considering the test created by Wednesbury unreasonableness.[149] As noted by McDonald the contested ground of review may permit judges to consider the “weight given by primary decision-makers to permissible and mandatory relevant considerations”.[150] Basten JA also agrees that it will be necessary to focus on the “intensity of review”[151] especially following the decision of MIAC v Li. Therefore, it is argued that “a variable standard of scrutiny”[152] will be a favourable solution. It is difficult to construe an appropriate level of intensity to suit the unreasonableness ground in Australia. The adoption of some form of “anxious scrutiny”[153] may be suitable but as Le Seur remarks, this level of intensity is closely related to human rights which creates a situation where there is a greater level of justification required to deem decisions as reasonable.[154] Mason notes that “the varying degrees of intensity of review”[155] will facilitate positive relations between Wednesbury and proportionality.

The problematic nature of labels is constraining upon the application of the unreasonableness ground. Therefore, in order to achieve a favourable re-interpretation of Wednesbury, this may involve “the move away from a set of labels”[156] which pervade its scope. This too will promote the aforementioned “functional and pragmatic approach”.[157] Administrative Law is renowned for labels and therefore any plan to disregard or abolish the “semantic labels”[158] would be a difficult task. Despite this, it should be identified that the label following from Associated Provincial Picture Houses Ltd v Wednesbury Corporation[159] is deemed to be rather problematic in practice. This may be examined from the viewpoint of Lord Cooke in Daly[160] in the context of the Human Rights Act 1998 (UK) in regards to which Wednesbury was abandoned. It was advanced that it should be:

“Widely recognised that Associated Provincial Picture Houses Ltd v Wednesbury Corporation was an unfortunately retrogressive decision in English administrative law, in so far that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation”.[161]

It is seemingly evident that the label created by the case has had a profound effect upon the ground of review. This exemplifies the problematic nature of labels, but this does not infer that the re-interpretation of Wednesbury entails renaming the unreasonableness ground or offering a substitute for Wednesbury. Therefore when academics propose manifest and simple unreasonableness[162], it is not in effect productive to introduce replacement labels, as these “multifarious sub-categories”[163] tend to confuse the bounds of judicial review. A re-interpretation of the ground also does not mean the waiver of the concept, thus recommendations relating to a notion of the Wednesburial[164] (removal of Wednesbury) will not assist in attaining the aforementioned objective. Instead, efforts should be directed towards modifying the existing category. It is arguable that the deliberations of the High Court in MIAC v Li may effectively contribute to the modification of the existing category of Wednesbury in Australia. If so, further work is needed to ensure that the ground is able to flourish and accord to contemporaneous standards.

A fundamental aspect of the re-interpretation objective includes a modification of the ground and its application. Aronson and Groves advocate that the “standard has to be applied intuitively”[165]. This was affirmed by the plurality in MIAC v Li, where “a decision-maker has a genuinely free discretion”[166] and this was subsequently held to be a prominent characteristic of the ground. Weeks also highlights that the application of the ground should involve a judge identifying a “requisite level of unreasonableness” [167] via their discretion in the task of quality review. The ground of unreasonableness is important as a coherent application will implement “good sense and sound judgment”[168] within administrative decision-making. The re-interpretation of Wednesbury will need to occur to bolster the fact that the ground is retained as a worthy ground of review. As Basten argues, the application of this ground is crucial because it echoes an “assumed, but usually unarticulated set of standards”[169] entrenched within a community. In addition, Fordham praises its flexible operation as it is able to “accommodate a broad or narrow latitude, depending on the subject matter”[170], therefore the ground does not necessarily operate within stringent confines.

The paper thus far has discussed the operation of both unreasonableness and proportionality as distinct principles. Former Chief Justice Mason considers that the concept of proportionality has the potential to shape Wednesbury unreasonableness.[171] Therefore, it shall be proposed that its re-interpretation may include a situation where the:

“Two tests could coexist side by side, requiring that administrative action be both reasonable and, insofar as it is meaningful questions on the facts, also proportionate”.[172]

The application of this theoretical proposition is advocated as one of considerable interest but as Weeks comments its practical application is unclear.[173] To further explore the viability of this proposition, thorough examination of the relationship between unreasonableness and proportionality must occur and also the merits of both principles shall be assessed on a conceptual level.[174] Following the case of MIAC v Li, the importance of redefining the boundaries of this review ground was communicated. The amalgamation of proportionality and unreasonableness shall be promoted as the most viable form of re-interpretation. Instead of proportionality being a desirable alternative – it should become the desirable associate to Wednesbury, in effect its partner in crime.

In simplistic terms as Elliott advances, there will be “radically different types of review”[175] when either unreasonableness or proportionality is employed. The competition fuelled between these concepts is ongoing and relentless.[176] If the ground of unreasonableness is allowed to flourish, there are strong arguments to suggest that it may be viewed on a similar playing field to proportionality. The mechanics of both principles need to be consulted in a conceptual manner. Firstly, there is Wednesbury, which ineffectively does not “expose the structure and underlying values of the judicial reasoning process”[177] prior to judicial review. This may, of course be as a result of its intuitive application towards the most basic of values. On the other hand, proportionality, as a structured principle emphasises the “content of the values which are being vindicated” [178] and subsequently such values may be balanced against the public interest in issue.[179] The following stage outlined by Elliott in which “the court balances the two competing claims against one another”[180] is often critiqued to be missing in analysis of Wednesbury unreasonableness. The act of “balancing”[181] however is not necessarily correct as Endicott argues there are countless of occasions whereby “interests at stake cannot actually be weighed with each other on any sort of scales”.[182] This was evident in the case in the English case of Coughlan[183] where the “overriding public interest”[184] could not be balanced against the interests of the applicant. Thus, in cases where “balancing the unbalanceable”[185] is to occur, it is argued that the two competing interests should be compared to only one criterion, that of “social importance”[186], which takes into consideration both private and public interests on a single scale. Again, it shall be noted that “social importance”[187] is largely bolstered in system with firmly entrenched human rights, but what is of importance is that this variable takes into account values of the aspects in stake which has a potential of being appropriately integrated into the ground of unreasonableness.[188]

It makes sense to integrate the two concepts rather than introduce proportionality as a separate ground of review. Proportionality is able to perform the integral function of “proportionality reasoning”[189] in judicial review which focuses on improving transparency and objectivity. Whether such an approach could redeem its potential in Australia largely hinges on the situation including “the absence of an instrument setting out rights” [190] which is available in other common law countries such as England and Canada. Allan argues that the test within Wednesbury is able to bolster “both procedure and substance”.[191] Therefore the amalgamation of the two concepts is desirable because it facilitates a situation where both substance and procedure are considered, followed by a higher level of scrutiny by the court.[192]

Introducing proportionality in judicial review may also facilitate greater emphasis on substantive review. Weeks concludes that the integration of proportionality within the unreasonableness ground of review may result in greater emphasis to substantive review.[193] The mechanics of substantive review are known to operate “beyond the porous boundary between legality and the merits” [194] and such a review domain as of late is filled with general support and positive judicial attitude.[195] Peiris argues that substantive review has the potential of using Wednesbury to expand its base.[196] In addition, Hickman outlines that Wednesbury would be able to orchestrate “almost the whole terrain of substantial administrative law”[197] if its base is successfully re-interpreted to take into consideration proportionality. Proportionality will offer further “reasoned justification” [198] in the ground of unreasonableness, thereby ensuring that public accountability is prioritised in the review of administrative decisions.

CONCLUSION

Fundamentally, a ground of unreasonableness is pivotal not only because it may represent “the epitome of judicial restraint”[199] but because it aims to provide a supervisory role over the executive to ensure that deliberations are reasonable. Despite its vital role as Daly suggests, Wednesbury and its “opaque nature”[200] continues to encounter a considerable amount of difficulty. This is because the discourse tends to focus upon a contest of upholding Wednesbury unreasonableness versus removing Wednesbury unreasonableness.[201] This debate is not productive. The overriding objective is to ascertain a re-interpretation of this ground of review which as stated above may be the amalgamation of proportionality and unreasonableness principles. The viability of such a standard remains unknown, but MIAC v Li serves as a reminder of the reforms which need to occur and such a standard may suffice in practice. Conceptually speaking these terms are capable of forming a union, rather than their current stance as prime competitors.[202] The traditional realms of Wednesbury should become limited to a resonating principle reflected upon for mere purposes of historical interest and acknowledgement.


[1] Associated Provincial Picture Hoses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[2] Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 5th ed, 2013) 367.

[3] Dean R Knight, ‘Simple Fair and Discretionary Administrative Law’ (2008) 39 Victoria University of Wellington Law Review 99, 108.

[4] Robin Creyke and John McMillan, Control of Government Action: Text Cases and Commentary (LexisNexis Butterworths 3rd ed, 2012) 809.

[5] [2013] HCA 18.

[6] Mark Aronson and Matthew Groves, above n 2, 362.

[7] Brian J Preston, ‘Judicial Review of Illegality and Irrationality of Administrative Decisions in Australia’ (2006) Australian Bar Review 17.

[8] [1947] EWCA Civ 1; [1948] 1 KB 223.

[9] Ibid 230.

[10] Dean R Knight, above n 3, 120.

[11] Mark Aronson and Matthew Groves, above n 2, 365.

[12] Greg Weeks, ‘The Use of Soft Law by Australian Public Authorities: Issue and Remedies’ (Speech delivered to Peking University, 9 July 2011) 10.

[13] Geoff Airo-Farulla, ‘Rationality and Judicial Review of Administrative Action’ [2000] MelbULawRw 23; (2000) 24 Melbourne University Law Review 543, 572.

[14] Brian J Preston, above n 7, 19.

[15] Margit Cohn, ‘Legal Transplant Chronicles: The Evolution of Unreasonableness and Proportionality Review of the Administration of the United Kingdom’ 58, American Journal of Comparative Law 583, 606.

[16] Greg Weeks, ‘Litigating Questions of Quality’ (2007) 14 Australian Journal of Administrative Law 76, 87.

[17] Sir Anthony Mason, ‘The Scope of Judicial Review’ (Speech delivered to the Australian Institute of Administrative Law, Canberra, Australia, November 2001) 11.

[18] [1898] UKLawRpKQB 101; [1898] 2 QB 91.

[19] Ibid 99-100.

[20] [1936] HCA 40.

[21] Ibid.

[22] Margit Cohn above n 15, 604.

[23] John Basten, 'Judicial Review of Executive Action: Tiers of Scrutiny or Tears of Frustration?' (Speech delivered at the Constitutional and Administrative Law Section, NSW Bar Association, 14 May 2013) 2.

[24] Peter Johnston, (1996) ‘Proportionality in Administrative Law: Wunderkind or Problem Child?’ [1996] UWALawRw 4; 26 University of Western Australia Law Review 138, 141.

[25] Ibid 152.

[26] [1985] AC 374.

[27] Ibid 410.

[28] Geoff Airo-Farulla, above n 13, 544.

[29] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410.

[30] TCN Channel Nine Pty Ltd v Australian Broadcasting Tribunal (1992) 28 ALD 829, 861; Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59.

[31] Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59.

[32] Ibid 64.

[33] Migration Act 1958 (Cth), s 476(2)(b).

[34] Caron Beaton-Wells, ‘Judicial Review of Migration Decisions: Life after S 157[2005] FedLawRw 5; 33 Federal Law Review 141, 152.

[35] Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, 64.

[36] Caron Beaton-Wells, above n 34, 152.

[37] Mark Aronson and Matthew Groves, above n 2, 362.

[38] [2010] NSWCA 156.

[39] Sydney Ferries v Morton [2010] NSWCA 156 at [25].

[40] Caron Beaton-Wells, above n 34, 151.

[41] [2010] HCA 16.

[42] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [124].

[43] D Kerr, ‘The Intersection of Merits and Judicial Review: Looking Forward (Australia)’ [2013] UQLawJl 2; (2013) 32 University of Queensland Law Journal 9, 20.

[44] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [1].

[45] 0900645 [2010] MRTA 151 at [35].

[46] Li v Minister for Immigration and Citizenship [2011] FMCA 625.

[47] [2011] FMCA 625 at [49].

[48] Minister for Immigration and Citizenship v Li [2012] FCAFC 74 at [29].

[49] Migration Act 1958 (Cth), s 363(1)(b).

[50] Leighton McDonald, ‘Rethinking Unreasonableness Review’ (2014) 25 Public Law Review 117.

[51] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [21].

[52] Ibid.

[53] Sarah-Jane Morris, ‘Tribunal Law Update’ (Speech delivered to Council of Australasian Tribunals, Sydney, Australia, 13 September 2013) 2.

[54] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [31].

[55] Ibid [26].

[56] Ibid.

[57] Ibid [23]; Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21.

[58] Greg Weeks, Australian Public Authorities which Breach their Soft Law: Remedies and Suggested Reforms (PhD Thesis, University of New South Wales, 2013) 131.

[59] [1997] HCA 27; (1997) 190 CLR 1.

[60] Ibid 36.

[61] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [29].

[62] Ibid [63].

[63] Ibid [85].

[64] [1936] HCA 40.

[65] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76].

[66] Ibid [28].

[67] Ibid.

[68] Ibid [113].

[69] Ibid [68].

[70] Leighton McDonald, above n 50, 117.

[71] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [98].

[72] Ibid [113].

[73] Ibid.

[74] Greg Weeks, above n 58, 131.

[75] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1.

[76] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [42].

[77] Singh v Minister for Immigration & Anor [2014] FCCA 569 at [27].

[78] [2014] NSWSC 67.

[79] Allianz Australia Insurance Ltd v Mackenzie & Ors [2014] NSWSC 67 at [50].

[80] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76].

[81] Savsani & Anor v Minister for Immigration & Anor [2014] FCCA 213 at [47].

[82] & Anor v Minister for Immigration & Anor [2014] FCCA 161.

[83] Ibid [42].

[84] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [82].

[85] Mark Aronson, ‘Unreasonableness and Error of Law’ [2001] UNSWLawJl 26; (2001) 24 UNSW Law Journal 315, 318.

[86] Greg Weeks, above n 58, 131.

[87] Sarah-Jane Morris, above n 53, 1.

[88] Greg Weeks, above n 58, 130.

[89] (1990) 170 CLR 1.

[90] Ibid 36.

[91] Sarah-Jane Morris, above n 53, 1.

[92] Mark Smyth, ‘Inquisitorial Adjudication: The Duty to Inquire in Merits Review Tribunals’ [2010] MelbULawRw 7; (2010) 34 Melbourne University Law Review 230, 263.

[93] Murray Gleeson, ‘Judicial Legitimacy’ (2000) 20 Australian Bar Review 4, 6.

[94] Greg Weeks, above n 58, 131.

[95] John Basten, above n 23, 6.

[96] v Public Service Board of NSW [1984] 3 NSWLR 447.

[97] John Basten, above n 23, 6.

[98] D Kerr, above n 43, 16.

[99] Michael Kirby ‘The Reasons for Reasons – Osmond Revisited’ (Speech delivered to the Council of Australasian Tribunals, Whitmore Lecture, Sydney, 2 May 2012) 39.

[100] Michael Taggart, ‘Proportionality, Deference, Wednesbury’ (2008) 3 New Zealand Law Review 423, 433.

[101] John Basten, above n 23, 6.

[102] Andrew Le Sueur, ‘The Rise and Ruin of Unreasonableness’ (2005) 10 Judicial Review 32.

[103] Re Hospital Benefit Fund of Western Australia [1992] AATA 205; (1992) 28 ALD 25, 42.

[104] Administrative Decisions (Judicial Review) Act 1977 (Cth), S 5(2)(g).

[105] Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59.

[106] Mark Aronson and Matthew Groves, above n 2, 362.

[107] Dean R Knight, above n 3, 108.

[108] Ibid.

[109] Attorney-General v Quin (1990) 170 CLR 1, 65.

[110] Mary Arden, ‘Proportionality: the way ahead’ (Speech, United Kingdom Association of European Law’ November 2012) 1.

[111] Ibid 35-36.

[112] Ibid.

[113] Dorte S Martinsen, ‘Judicial Policy-Making and Europeanization: the Proportionality of National Control and Administrative discretion’ (2011) 18 Journal of European Public Policy 944, 948.

[114] Ibid.

[115] Mary Arden, above n 110, 35-36.

[116] Ibid 17.

[117] Mark Aronson and Matthew Groves, above n 2, 374.

[118] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [31].

[119] Kaur & Anor v Minister for Immigration & Anor [2014] FCCA 161 at [42].

[120] Mark Aronson and Matthew Groves, above n 2, 366.

[121] v Minister for the Civil Service [1985] AC 374.

[122] Peter Johnston, above n 24, 158.

[123] Mark Aronson and Matthew Groves, above n 2, 373.

[124] David Mullan, ‘Proportionality – A Proportionate Response to an Emerging Crisis in Canadian Judicial Review Law? (response to Michael Taggart, New Zealand Law Review, vol. 3, p. 423, 2008) (Proportionality, Deference, Wednesbury: Taking up Michael Taggart’s Challenge)’ (2010) New Zealand Law Review 233, 239.

[125] Justice Susan Kiefel, ‘Proportionality: A Rule of Reason’ (2012) 23 Public Law Review 85.

[126] Ibid 86.

[127] Peter Johnston, above n 24, 146.

[128] Justice Susan Kiefel, above n 125, 86.

[129] South Australia v Tanner (I988-1989) [1989] HCA 3; 166 CLR 161.

[130] Ibid 165.

[131] Peter Johnston, above n 24, 147.

[132] Mary Arden, above n 110, 36.

[133] Dean R Knight, ‘A Murky Methodology: Standard of Review in Administrative Law’ (2008) 6 New Zealand Journal of Public and International Law 117, 138.

[134] Ibid.

[135] Mark Aronson and Matthew Groves, above n 2, 373.

[136] Dan Meagher, ‘The Brennan Conception of the Implied Freedom: Theory, Proportionality and Deference’ [2011] UQLawJl 8; (2011) 30 University of Queensland Law Journal 119, 122.

[137] Timothy Endicott, ‘Proportionality and Incommensurability’ (Paper presented at the Public Law Discussion Group, February 2013) 4.

[138] Mary Arden, above n 110, 30.

[139] Ibid.

[140] Ibid.

[141] Ibid 31.

[142] Ibid.

[143] Mark Aronson and Matthew Groves, above n 2, 374.

[144] Paul Craig, ‘Proportionality, Rationality and Review’ (2010) 2 New Zealand Law Review 265, 271.

[145] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [30].

[146] Greg Weeks, above n 58, 144.

[147] D Dyzenhaus, M Hunt & M Taggert, ‘The Principle of Legality in Administrative Law: Internationalisation as Constitutionalism’ (2001) 1 Oxford University Commonwealth Law Journal 5, 17.

[148] Peter Johnston, above n 24, 158.

[149] Dean R Knight, above n 133, 121.

[150] Leighton McDonald, above n 50,118.

[151] John Basten, J, above n 23, 14.

[152] Ibid 1.

[153] Andrew Le Sueur, above n 102, 39.

[154] Ibid 40.

[155] Sir Anthony Mason, above n 17, 3.

[156] John Basten, above n 23, 2.

[157] Ibid.

[158] Ibid.

[159] [1947] EWCA Civ 1; [1948] 1 KB 223.

[160] v Home Secretary [2001] UKHL 26; [2001] 2 AC 532.

[161] R (o/a Daly) v Home Secretary [2001] UKHL 26; [2001] 2 AC 532 at [32].

[162] Dean R Knight, above n 133, 149.

[163] Peter Johnston, above n 24, 140.

[164] R Harrison, ‘The New Public Law? A New Zealand Perspective’ (2003) 14 Public Law Review 41, 56.

[165] Mark Aronson and Matthew Groves, above n 2, 369.

[166] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [66]

[167] Greg Weeks, above n 16, 76.

[168] Robin Creyke and John McMillan, above n 4, 809.

[169] John Basten, above n 23, 5.

[170] Michael Fordham, ‘Wednesbury’ (2007) 12 Judicial Review 266, 267.

[171] Sir Anthony Mason, above n 17, 12.

[172] Tom Hickman, ‘Problems for Proportionality (Response to article by Paul Craig in this issue, p. 265) (Proportionality, Deference, Wednesbury: Taking up Michael Taggart’s Challenge’ (2010) 2 New Zealand Law Review 303, 306.

[173] Greg Weeks, above n 58, 132.

[174] Peter Johnston, above n 24, 151.

[175] Mark Elliott, ‘The Human Rights Act 1998 and the Standard of Substantive Review’ (2001) 60 The Cambridge Law Journal 301, 312.

[176] Tom Hickman, ‘The Reasonableness Principle: Reassessing its Place in the Public Sphere’ (2004) 63 Cambridge Law Journal 166.

[177] Mark Elliott, above n 175, 312.

[178] Ibid.

[179] Ibid.

[180] Ibid 313.

[181] Timothy Endicott, above n 137, 1.

[182] Ibid.

[183] R v North and East Devon Health Authority; Ex Parte Coughlan [2001] QB 213.

[184] Ibid 242;254.

[185] Timothy Endicott, above n 137, 19.

[186] Ibid 7.

[187] Ibid.

[188] Ibid.

[189] Ibid 19.

[190] Greg Weeks, above n 58, 145.

[191] TRS Allan, ‘Deference, Defiance and Doctrine: Defining the Limits of Judicial Review’ (2010) 60 University of Toronto Law Journal 41, 49.

[192] Ibid.

[193] Greg Weeks, above n 58, 132.

[194] Ibid.

[195] G. L Peiris, ‘Wednesbury Unreasonableness: The Expanding Canvas’ (1987) 46 The Cambridge Law Journal 53.

[196] Ibid.

[197] Tom Hickman, above n 172, 304.

[198] Paul Craig, ‘Proportionality, Rationality and Review’ (2010) 2 New Zealand Law Review 265, 271.

[199] D Kerr, above n 43,18.

[200] Paul Daly, ‘Dunsmuir’s Flaws Exposed: Recent Decisions on Standard of Review’ (2012) 58 McGill Law Journal 484, 503.

[201] Mary Arden, above n 110, 37.

[202] Mark Elliott, above n 175, 313.


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