LLB230 Lecture Notes - Lecture 11: Judicial Restraint, Avail, Kioa
Week Eleven; Grounds of Review III - Wednesbury
Unreasonableness, Procedural Fairness (Intro and Bias)
WEDNESBURY UNREASONABLENESS
Has the authority made a decision that was so unreasonable that no
reasonable authority would have come to it?
Difficult ground to make out
'Umbrella' and 'safety net'
Blurs merits/legality distinction
'Wednesbury'
FACTS/ISSUES
oCinema was given permission under a statute to open on Sundays,
provided that it had the permission of the Wednesbury Corporation
(WC, a local authority), which had a wide discretion
oWC imposed a condition that no child could attend the cinema if under
15 years, with no exceptions. Was it unreasonable?
PRINCIPLES/FINDINGS
oIt is the court's duty to consider whether an executive decision has
contravened the law. It is not a court of appeal.
oWhat is unreasonable?
Once it is established that the subject matter of the condition is
one that the authority can deal with, then that is enough.
It is not the court’s job to decide what is reasonable and
unreasonable (i.e. making a judgment call), that is the
executive’s job as they are entrusted by parliament with
discretion.
Courts must ensure that the executive agency acted within the 4
corners of their jurisdiction.
When they have done that, they may ask themselves if the
authority made a decision that was so unreasonable that no
reasonable authority would have come to it ... and it would
require something overwhelming.
ADJR Act 1977 –Section 5(2)(g)
an exercise of power that is so unreasonable that no reasonable person could have
exercised the power
Is illogicality and irrationality the same thing as unreasonableness?
'SZMDS'
FACTS/ISSUES: Rejection of asylum claim.
PRINCIPLES: Accepting irrationality as a separate ground is complicated
because:
oMay mean emphatic disagreement only.
oDifficulties of overlap with unreasonableness.
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oMeans the decision to which the Tribunal came in relation to the state
of satisfaction required ... is one at which no rational or logical decision-
maker could ever arrive on the same evidence ... and could not be
formed by a reasonable person.
oIt is not illogical or irrational to adopt different reasoning but it may be
so where there is only one conclusion available.
oJurisdictional fact v discretion.
'Li'
Facts/Issues:
oDid the tribunal act unreasonably when it did not delay its decision to
await the review of skills assessment decision?
Principles:
oDecisional freedom left by a statute cannot be construed to allow
arbitrariness, capriciousness or abandonment of common sense.
oNot every rational decision is reasonable.
oThe standard of reasonableness depends on how the statute is
construed, i.e. implication.
oGiving excessive weight may be unreasonable. Not just why, how.
Illustrative Cases & Categories
Lack of Plausible Justification
'Pestell'
oFACTS/ISSUES:
Act stated that the council could levy a rate upon land to defray
the cost of work or service that ‘in the opinion of the council
would be of special benefit.’
The council imposed the levy on properties within an industrial
area but not in an area that contained dilapidated housing.
oPRINCIPLE/ FINDING:
UNREASONABLE.
‘The section is concerned with the question whether a portion of
the area will receive a special benefit from the work, and not
whether the owners of some lands in that portion will, having
regard to their personal circumstances, in fact be able to
immediately avail themselves of that benefit.’
'Quarantine'
oFACTS/ISSUES:
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The Act prohibited the importation of meat unless authorised by
a permit by the Director, who had to ensure that the risk of
disease was kept ‘acceptably low.’ Should the Director have
refused importation of pork from the US, based on threat of
disease not yet present in Australia?
oPRINCIPLES/FINDINGS:
The decision of the Director was not unreasonable.
‘The legislation does not suggest that quarantine decisions are
to be made on an assumption that every scientific fact is known
about every conceivable disease ... decisions have to be made
in the existing state of knowledge.'
No specific criteria were laid down.
'An element of speculation, in the sense of assessing the
likelihood of future occurrences, was necessarily involved ...’
Capricious Use of Power
'Edelsten'
ISSUE:
oWas the requirement that Dr Edelsten pay the Tax Office 100 per cent
of his Medibank payments unreasonable?
PRINCIPLE/FINDING:
oYes, it was a capricious use of power because the Medibank payments
comprised his entire income & would prevent him from contesting the
assessments.
o‘An extraordinary power has been conferred on the Commissioner, and
it must carry with it a special obligation.’
Evidentiary Weighting
Weight and importance of facts generally goes to the merits, not legality.
Sometimes treated as deficiencies in reasoning, evidentiary or fact-finding
processes.
Judicial restraint required.
Is there ‘an illogicality in, or misapplication of, the reasoning adopted by the
decision-maker, so that the factual result is perverse, by the decision-maker’s
own criteria’?
Duty of Inquiry
'SZIAI'
FACTS/ISSUES:
oThe tribunal failed to follow up inquiries into the validity of certificates
attesting the applicant’s membership of the Ahmadiyya Muslim
community in Bangladesh.
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Document Summary
Week eleven; grounds of review iii - wednesbury. Principles/findings: it is the court"s duty to consider whether an executive decision has contravened the law. Once it is established that the subject matter of the condition is one that the authority can deal with, then that is enough. It is not the court"s job to decide what is reasonable and unreasonable (i. e. making a judgment call), that is the executive"s job as they are entrusted by parliament with discretion. Courts must ensure that the executive agency acted within the 4 corners of their jurisdiction. When they have done that, they may ask themselves if the authority made a decision that was so unreasonable that no reasonable authority would have come to it and it would require something overwhelming. Adjr act 1977 section 5(2)(g) an exercise of power that is so unreasonable that no reasonable person could have exercised the power.
