Comparative Analysis: Codifying Wednesbury Unreasonableness in Australia, UK, South Africa, Schemes and Mind Maps of Law

Download Comparative Analysis: Codifying Wednesbury Unreasonableness in Australia, UK, South Africa and more Schemes and Mind Maps Law in PDF only on Docsity! AIAL FORUM No. 56 THE CODIFICATION OF WEDNESBURY UNREASONABLENESS – A RETARDATION OF THE COMMON LAW GROUND OF JUDICIAL REVIEW IN AUSTRALIA? Jason G Pennell and Yi Hui Shi* In the 1960s and 1970s, the Federal Government enacted the Administrative Decisions Judicial Review Act (‘ADJR Act’) which codified most if not all of the common law grounds of judicial review under the prerogative writs system. The codification was welcomed at first as it provided a statutory alternative to applicants for judicial review which involved a much simpler application procedure. The benefits of the codification also lay in its simplicity and accessibility for administrators and courts alike.1 However, it has been suggested that the codification of the grounds of review in the ADJR Act has retarded and arrested the development of the common law grounds of review.2 In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002, Kirby J lamented the failure of Australian Courts to develop the common law in the same way and direction as it has been developed in England in more recent years. Consequently, it has been suggested that Australia has lagged behind other jurisdictions in the development of the common law grounds of judicial review. This article will evaluate this point through the codification of the Wednesbury unreasonableness ground of review particularly in relation to its application in the ADJR Act. It will first outline Lord Greene’s formulation of ‘unreasonableness’ and the various criticisms of that formulation. It will then discuss the current Australian position, including any development since the Wednesbury decision, in relation to this ground of review and the relative positions and developments in the UK, South Africa and Hong Kong. The article will conclude by an analysis of the consequences of Australia lagging behind. 1. Unreasonableness as a separate ground of review The concept of unreasonableness as an independent ground of review was defined by Lord Greene in the UK Court of Appeal decision in Associated Provincial Picture House v Wednesbury [1948] 1 KB 223. Essentially, it subjects to review, decisions that are ‘so unreasonable that no reasonable authority could ever have come to [them]’.3 This ground of review was envisaged by Lord Greene as a safety net, which operated to catch those decisions that were manifestly absurd but might escape review on the other more specific grounds.4 Alternatively, it has been suggested that the ground was to serve as an ‘umbrella’, under which to gather related themes and principles applying in judicial review, or as a ‘springboard’, from which to define new (or adapted) legal standards to guard against executive abuse.5 * Jason Pennell is a barrister practicing at the Victorian Bar; Yi Hui Shi is Monash University Law Student 22 AIAL FORUM No. 56 1.1 Criticisms of the Wednesbury unreasonableness The concept of Wednesbury unreasonableness as a ground of review raises concerns as to the extent to which both constitutional and practical limitations of judicial power are maintained. It has been suggested that the courts, when reviewing decisions under this ground, essentially look at the substance result of the decision rather than the process by which the decision is made. By holding that an actual decision reached by an administrative body is deficient on its face rather than considering the way in which the decision was made, the courts are arguably usurping the power of Parliament. Moreover, the test has been criticized as not only complex and confusing but also incoherent and circular. Lord Cooke in R v Chief Constable of Sussex, ex parte International Traders Ferry Ltd 6(‘ITF’) regarded Wednesbury as a ‘briefly considered’ case which might not be decided the same way today and criticized Lord Greene’s formulation of ‘unreasonableness’ as an unnecessary ‘admonitory circumlocution’ to judges. Consequently, the court adopted a simple test used (for unreasonableness) in Secretary of State for Education and Science v Tameside Metropolitan Borough7: ‘whether the decision in question was one which a reasonable authority could reach’. This attempt to simplify the Wednesbury test was mirrored in the South African decision Bato Star Fishing (Pty) Ltd v Minister for the Environmental Affairs 8(‘Bato Star’) where O’Regan J held that the reasonableness of a decision depended on the circumstances of each case. Subsequently, his Honour gave a non-exhaustive list of the relevant factors a court may take into account in determining the reasonableness of the decision in question. The list includes ‘the nature of the decision, the identity and expertise of the decision-maker, the range of factor relevant to the decision, the reasons given for the decision, the nature of the competing interests involved and the impact of the decision on the lives and well being of those affected’.9 The Wednesbury test has also been criticised for its strictness. Although there is a high volume of cases that have raised and discussed this ground; there are few reported instances of a decision being declared invalid on the basis that it is Wednesbury unreasonable. Even where a decision is held to be invalid on this ground, it is usually invalid on other grounds too or the courts will have regard to whether the decision also conflicts with certain substantive principles which exist independent of statute, such as lack of a plausible justification10 and duty of inquiry11. Consequently, Lord Cooke in R (Daly) v Secretary of State for the Home Department12 has attacked the Wednesbury decision as ‘unfortunate and retrogressive’ due to the narrow scope of the Wednesbury test. 2. The development of the Wednesbury unreasonableness in Australia The Wednesbury unreasonableness ground of review received statutory recognition through the enactment of s 5(2)(g) of the ADJR Act. Subsequently, while other jurisdictions have attempted to expand or simplify Lord Greene’s formulation of unreasonableness, Australian courts have continued to adopt his Lordship’s definition by reason of the statutory regime and subjected the ground to a much more limited application than Lord Greene has initially envisaged. In other words, codification has restricted the development of this ground of review in Australia when compared to other Commonwealth jurisdictions. In Minister for Immigration and Multi Cultural Affairs v Eshetu13, the Full Federal Court precluded an applicant from seeking judicial review of a decision under the unreasonableness ground of review on the basis that the applicant merely disagreed with the decision-maker’s reasoning. In doing so, the Court prescribed limited boundaries for unreasonableness, insisting that it be used only in the most extreme circumstances, such as where the evidence could only indicate one possible conclusion and not be supportive of any 23 AIAL FORUM No. 56 However, in two recent cases in Hong Kong the courts34 have shown their willingness to accept the sliding scale of intensity of scrutiny outside the human rights context. The cases concerned a challenge to the decision of the Town Planning Board not to reduce the extent of a proposed reclamation of certain areas of the Harbour along the waterfront from Central to Causeway Bay to provide land for a Central-Wanchai Bypass and to ease traffic congestion in the Central District and to improve the existing waterfront by making it more pedestrian-friendly and easily accessible by the public, after hearing 770 objections to the original plan. The Court in these cases accepted the sliding scale of intensity of scrutiny as a valid approach to determine the standard of judicial review required. The concept of a sliding scale can also be regarded as an attempt to reconcile the Wednesbury unreasonableness test and the principle of proportionality at least in the human rights context. The concept recognises that the degree of intensity could vary from the traditional Wednesbury test to the intermediate heightened degree of scrutiny to the more stringent test of proportionality.35 However, under a sliding scale test, the Wednesbury test seems to have been accorded a looser application compared with that of the test of proportionality. 4. Consequences of Australia lagging behind The narrow application of Wednesbury unreasonableness in Australia has resulted in Australian courts having to use other review grounds, such as legitimate expectation, to justify their decisions to review unreasonableness decisions rather than relying on the unreasonableness ground in the other common law jurisdictions. In Baker v Canada (Minister of Citizenship and Immigration)36, the Supreme Court of Canada held that the decision to deport the applicant by the Minister pursuant to the Immigration Act RSC 1985 was unreasonable in light of the expertise of the decision maker, the nature of the decision being made and the language of the empowering provision and the surrounding legislation. L’Heureux-Dube J noted that in reviewing discretionary decisions, courts must give considerable deference to the decision makers’ jurisdiction and the manner in which the discretion was exercised.37 This was consistent with the approach adopted by O’Regan J in Bato Star. In Minister for Immigration and Ethnic Affairs v Teoh 38the Australian High Court resisted the opportunity to expand the Wednesbury unreasonableness test. The court looked to the ground of legitimate expectation to justify its decision to review the administrative panel’s decision that the hardship of a deportation order on the applicant’s wife and children did not outweigh the policy against serious criminal offending. The Court’s decision in Teoh is controversial as it essentially forced a legitimate expectation onto the applicant. The court justified this imposition by finding that the act by the Executive government to ratify an international convention was a positive statement by the Executive to the world and to the Australian people that it would act in accordance with the convention, and the applicant need not to have been aware of that convention or have personally entertained the expectation.39 Subsequent case, however, have criticised Teoh in this aspect, suggesting the decision in Teoh was highly artificial and the extent to which there could be an expectation where it was not actually held by an applicant being very limited.40 Conclusion Based on the recent developments in relation to the Wednesbury unreasonableness ground of review, it appears that the codification of the Wednesbury test in Australia has potentially restrained the development of this ground of review at common law, despite the fact that the codification was not intended to replace the common law system of prerogative writs in any way. This has resulted in the Australia courts having to look to other grounds of review to 26 AIAL FORUM No. 56 27 incorporate its obligations under international treaties into the domestic law. This has lead to somewhat strained reasoning in achieving similar results that may have been achieved by adopting a more flexible approach to the reasonableness standard currently adopted. Consequently, in light of the development sin other common law countries around the world, it may be time for Australia to move away form its narrow interpretation of the Wednesbury unreasonableness and embrace the trend to a broader approach. Perhaps the introduction at the State and Territory levels of Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Bill 2006 (Vic) may encourage the High Court in the future to widen its Wednesbury test to in light of human rights considerations. Bibliography Caron Beaton-Wells, ‘Australia’s ADJR Act: Reform or Repeal?’41, Australian Administrative Law Forum 30 June & 1 July 2005 Creyke, R & McMillan, J, Control of Government Action, Text, Cases and Commentary, LexisNexis Butterworths, 2005 David Dyzenhaus, Murray Hunt & Michael Taggart, ‘The Principles of Legality in Administrative Law: Internationalization as Constitutionalisation” (2001) 1(1) Oxford University Commonwealth Law Journal 19. Johannes Chan, ‘A Sliding Scale of Reasonableness in Judicial Review’ (2006) University of Hong Kong 4 Jowell J & Lester, A ‘Beyond Wednesbury: Substantive Principles of Administrative Law” (1987) PL 368, at 375. Naomi Sidebottom, “Judicial Review: Is There Still a Role for Unreasonableness’, Murdoch University Electronic Journal of Law, Vol 8, No 1 (March 2001), at p 11. Shivaji Filix, ‘Engaging Unreasonableness in Judicial Review’ (2006) Acta Juridica, forthcoming, p 11. Monash Administrative law lecture materials Endnotes 1 Caron Beaton-Wells, “Australia’s ADJR Act: Reform or Repeal?”, Australian Administrative Law Forum 30 June & 1 July 2005, p16. 2 Kirby J, Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, at pp 157, 166. 3 Wednesbury, at 230 4 Ibid 5 Creyke, R & McMillan, J, Control of Government Action, Text, Cases and Commentary, LexisNexis Butterworths, 2005, pp 725-26. 6 [1999] 1 All ER 129 7 [1976] 3 All ER 665 [1977] AC 1014 8 2004 (4) SA 490 9 Bato Star, at 512. 10 Eg Parramatta City Council v Prestell (1972) 128 CLR 305. 11 Eg Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; 65 ALR 549; 7 ALN N 79. 12 [2001] 1 AC 532 13 (1999) 162 ALR 577 14 Minister for Immigration and Multi Cultural Affairs; Ex Parte S202002, p 61. 15 Attorney General v Quinn (1990) 170 CLR 1, per Brennan J at p 36. AIAL FORUM No. 56 28 16 A v Pelekanakis (1999) FCR 70, per Weinburg J. 17 R (Daly), at p 549. 18 Naomi Sidebottom, “Judicial Review: Is There Still a Role for Unreasonableness”, Murdoch University Electronic Journal of Law, Vol 8, No 1 (March 2001), at p 11. 19 Shivaji Filix, ‘Engaging Unreasonableness in Judicial Review’ (2006) Acta Juridica, forthcoming, p 11. 20 [1985] AC 374 21 Jowell J & Lester, A “Beyond Wednesbury: Substantive Principles of Administrative Law” (1987) PL 368, at 375. 22 Bato Star, pp 514-515. 23 Johannes Chan, ‘A Sliding Scale of Reasonableness in Judicial Review’ (2006) University of Hong Kong 4, at p 8. 24 Prasad, pp 169-170. 25 Ibid. 26 Chan, p 8. 27 R v Ministry of Defence; exp Smith [1996] QB 517, at p 554. 28 Creyke & McMillan, p 726. 29 David Dyzenhaus, Murray Hunt & Michael Taggart, ‘The Principles of Legality in Administrative Law: Internationalization as Constitutionalisation” (2001) 1(1) Oxford University Commonwealth Law Journal 19. 30 [1996] QB 517 31 [2001] 1 WLR 840 32 [2004] UKHL 56 33 A and Others v Secretary of State for the Home Department [2004] UKHL 56, at p 29. 34 Town Planning Board v The Society for the Protection of Harbour [2004] 1 HKLRD 396 and The Society for the Protection of Harbour v Chief Executive in Council [2003] 3 HKLRD 960. 35 Chan, p 8. 36 [1999] 2 SCR 87 37 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817, at p 75. 38 (1995) 183 CLR 273 39 Teoh, per Toohey J at p 301 and per Mason CJ & Deane J at p 291. 40 Eg the judges in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502.