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Week 9 Wednesbury Unreasonableness (Focus of Judicial review (judiciary…
Week 9
Wednesbury Unreasonableness
Focus of Judicial review
judiciary should not seek to review the merits of administrative decisions “which are for the repository of the relevant (Executive) power and, subject to political control, for the repository alone”:
*Attorney-General (NSW) v Quin
(1990) 170 CLR 1*
.
Attorney-General (NSW) v Quin
(1990) 170 CLR 1; 93 ALR 1 indicated an
“extremely confined” instance when the merits of a decision or action may be open to judicial review
Provincial Picture Houses Ltd v Wednesbury Corporation
(1948) 1 KB 223, Lord Greene MR said
the court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority.
court is not a court of appeal…
court cannot override a decision of the Executive
concerned only to see whether the Executive has contravened the law by acting in excess of the powers which Parliament has confided in it.
courts can only interfere with an act of executive authority if it be shown that the authority has contravened the law.
not to be assumed prima facie that responsible bodies like the local authority will exceed their powers;
limited and narrow, and focuses on the legality or lawfulness of administrative decisions, and not on their merits
Courts in undertaking judicial review then do not act as an appellate body but focus on preventing the executive from exceeding the powers and functions assigned to it by law
statutory recognition in the Administrative Decisions (Judicial Review) Act 1977 (Cth)
*remember for this to occur it needs to be a decision made under an enactment
S 5(2)(g), ADJRA provides that an order of review can be sought in respect of:
an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.
What is “unreasonableness” that amounts to an invalid administrative decision
Lord Greene MR explained the notion of “unreasonableness” as a common law ground of judicial review in
Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223
:
“if a decision on a competent matter is so unreasonable that no reasonable authority could every have come to it, then the courts can interfere.”
it must be proved to be unreasonable in the sense that the court considers it to be a decision that
no reasonable body could have come to
not
what the court considers unreasonable:
because the court may very well have different views to that of a local authority on matters of high public policy of this kind
Minister for Immigration v Eshetu (1999)
197 CLR 611 warned against the loose usage of “unreasonableness
So what is “unreasonableness”? = irrationality and illogicality?
Crennan and Bell JJ in
Minister for Immigration and Citizenshp v SZMDS
(2010) 240 CLR 611 = reservations about accepting irrationality as a freestanding common law ground.
decisions that talk of “irrationality” as a ground of judicial review
assist in amplifying
the notion of “unreasonableness
irrationality is not free standing ground for judicial review
Australian reluctance to invalidate decision-making by applying the Wednesbury standard
the success of a challenge on the Wednesbury unreasonable ground is confined to extreme cases involving … “
demonstrably absurd decisions
”’
(Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council (2010) 174 LGERA 67 at 93–4
).
What “unreasonableness” can invalidate a decision
Dixon J in
Avon Downs Pty Ltd v Federal Commissioner of Taxation
(1949) 78 CLR 353
“unreasonableness” will only be established if the decision-maker failed to address himself to the right question, incorrectly applied the rules of law, failed to take into account all the relevant considerations, and took into account irrelevant considerations
Minister for Immigration and Citizenshp v SZMDS
(2010) 240 CLR 611
test for illogicality or irrationality
must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based
decision will
not
be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker
A
decision might be said to be illogical or irrational if only one conclusion is open on the evidence
, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
Minister for Immigration and Citizenship v Li
(2013) 249 CLR 332
although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that
no reasonable statutory authority
could ever have come to it”. In such a case the court may interfere.”
Categories of unreasonableness
decision lacks a plausible justification
devoid of any plausible justification that no reasonable body of persons could have reached” it:
Bromley London Borough Council v Greater London Council
(1983) AC 768 per Lord Diplock
Parramatta City Council v Pestell
(1972) 128 CLR 305 provided an example of an administrative decision which lacked a plausible justification for imposing council rates on one land but not on another that was of similar character.
capricious or oppressive exercise of a power is unreasonable and invalid
that the exercise of the power chosen involves an invasion of the common law rights of the citizen, whereas the other powers would not
Edelsten v Wilcox
(1988) 83 ALR 99
there must be advertence to the quality of fairness
view law as not being intended to become an instrument of oppression, nor to be utilised for a collateral purpose of extorting money from other sources
discrimination without justification
Sunshine Coast Broadcasters Ltd v Duncan
(1988) 83 ALR 121
not every discriminatory or unequal treatment is impermissible
only when the discriminatory or unequal treatment is “without any stated or rational justification” is there an abuse of power
Fraud and bad faith
Fraud
ADJR Act also provides that an order of review can be sought on the following grounds:
S 5(1)(g) that the decision was induced or affected by fraud;
S 5(2)(d) (there was) an exercise of a discretionary power in bad faith
SZFDE v Minister for Immigration and Citizenship
(2008) 237 ALR 64, Denning LJ declared
“Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever…”
Bad Faith
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs
(2002) 194 ALR 749
a serious matter involving personal fault on the part of the decision maker
mere error or irrationality does not of itself demonstrate lack of good faith
circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme
Minister for Immigration and Multicultural Affairs v SBAN
(2002) FCAFC 431
inquiry is directed to the actual state of mind of the decision-maker
no such thing as deemed or constructive bad faith
illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith
may manifest itself in the form of actual bias = a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented; something more than a tendency of mind or predisposition