IALS Lunchtime Seminar: Legal Unreasonableness in Judicial Review- Australia and the United Kingdom

Video date: 
Wednesday, 26 February, 2020
Video speaker(s): 
Justice Besanko, Judge, Federal Court of Australia

Description

Commonwealth administrative law in Australia is a creature of statute and the common law. The statutory law includes the Commonwealth Constitution and specific Acts such as the Administrative Decisions (Judicial Review) Act 1977 (Cth.)  and the Administrative Appeals Tribunal Act 1975 (Cth.) The common law includes the well-known specific errors going to jurisdiction including breach of procedural fairness, bad faith, improper purpose, taking into account irrelevant considerations and failing to take into relevant considerations. Wednesbury unreasonableness is also a ground of judicial review. 

Until recently, Wednesbury unreasonableness was rarely invoked successfully in applications for judicial review of administrative decisions, almost certainly because of the perceived stringency of the test. However, recent High Court of Australia authority has suggested a relaxation of the test and legal unreasonableness is now being advanced with much greater frequency. The High Court is grappling with the formulation of a test which recognises that the basis of judicial review is legality and that merits review is impermissible. The seminar will address the lessons that may be taken from the authorities in this country, including the doctrine of proportionality. Australia does not have a Human Rights Act at Commonwealth level.

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