Week 7 Legislative Scope & Purpose and Grounds of Judicial Review
LEGISLATIVE SCOPE & PURPOSE
and GROUNDS of JUDICIAL REVIEW
Texts:
Creyke & McMillan Ch 9 & 14
Aronson, Dyer & Groves Ch 5, 6 & 7
Introduction to the Topic
Legislation can never adequately address all the situations to which it will be applied.
To decide whether a situation comes within the scope of an Act, it is often necessary
to look beyond the language of the Act, at the context and purpose of the Act and
often, at the legal setting in which the Act is to operate. One can then begin to
examine the major possible grounds of judicial review.
Statutory Interpretation
Commonwealth:
s 15AA of the Acts Interpretation Act 1901
New South Wales:
s 33 of the Interpretation Act 1987
Victoria:
s 35(a) of the Interpretation of Legislation Act 1984
Queensland:
s 14A of the Acts Interpretation Act 1954
Tasmania:
s 8A of the Acts Interpretation Act 1931
South Australia:
s 22 of the Acts Interpretation Act 1915
Western Australia: s 18 of the Interpretation Act 1984
Australian Capital Territory: s 11A of the Interpretation Act 1967
Grounds of Review
Creyke & McMillan emphasise three major grounds of review:
• The requirement that statutory powers be exercised for an authorised
or “proper” purpose
• The requirement that irrelevant matters are not taken into account
• The requirement that relevant matters are taken into account.
With regards to the ground of improper purpose, the reviewing court will imply what
the proper and improper purposes are: see R v Toohey (Aboriginal Land
Commissioner); Ex p. Northern Land Council. The ground is made out if it is
established objectively that the decision achieves a purpose extraneous to the enabling
legislation.
Bad faith is a separate ground of review that requires proof of personal fault or
dishonesty (e.g. personal wrongdoing, dishonesty, malice, corruption, fraud, including
fraud of a third person) but it is very difficult to prove and thus bad faith is a rarely
used ground of review.
Where multiple purposes are achieved, the ground of improper purpose can become
complex. The High Court has chosen to apply the so-called “motivating purpose” test.
That is, the question to be asked is whether the power would have been exercised but
for the improper purpose: see Thompson v Randwick Municipal Council and Samrein
Pty Ltd v Metropolitan Water, Sewerage & Drainage Board. Only the power which
has been conferred for that purpose can be used: see Schlieske v Minister for
Immigration & Ethnic Affairs.
Relevant and irrelevant considerations for a decision-maker may be multi-faceted
with any combination of legal issues, factual material, or policies. Like the improper
purpose ground of review, review on grounds of relevant and irrelevant considerations
does not depend on relevancy being expressly addressed in the empowering
legislation.
If the empowering legislation does expressly address the issue, the reviewing court
will still need to decide whether the legislation is exhaustive or only inclusive. Even if
the empowering Act is unclear or even silent, the reviewing court will imply which
considerations must be taken into account, which considerations must not be taken
into account, and which matters may be taken into account or disregarded without the
administrator being wrong in law: see especially Mason J’s judgment in Minister for
Aboriginal Affairs v Peko-Wallsend Ltd.
Wednesbury Unreasonableness
The unreasonableness ground of review, commonly referred to as “Wednesbury
unreasonableness”, see Associated Provincial Picture Houses Ltd v. Wednesbury
Corporation [1948] 1 KB 223 needs to be dealt with care because it may lure the
reviewing court into evaluating the factual basis or the “merits” of an exercise of
discretion. This is something which a reviewing court must not do.
Unreasonableness can have any number of meanings. It is, however, an independent
ground of review. Difficult questions are likely to be examined. Is the court making a
judgment about the reasonableness of the substantive decision or the rationality of the
decision-maker? Is the court weighing the various options available to the
administrator?
The High Court in a series of recent decisions has signalled that review on grounds of
unreasonableness (“Wednesbury unreasonableness”) is confined to the substantive
decision – the outcome of an exercise of discretion. The decision may, for example,
be unreasonable because it violates accepted moral or community standards or results
in unequal or inconsistent treatment of similar cases. However, the High Court has
indicated that Wednesbury unreasonableness should not be used where the complaint
is that the decision-maker was irrational or illogical. At the same time, the High Court
appears to be recognising a separate ground of review for extreme irrationality; see Re
Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002.
Many a commentator has concluded that the scope of review for unreasonableness is
very sensitive to shifts between judicial activism and restraint.
The issue of proportionality may also need to be examined, in that the decision lacked
reasonable proportionality. In South Australia v Tanner, the High Court was willing to
ask whether delegated legislation was disproportionate to the end to be achieved and
thus invalid.
Subsequently however the High Court has emphasised that proportionality is not an
independent ground of review and the High Court has confined the reasoning in
Tanner to judicial review of delegated legislation, and then only to legislative powers
that are “purposive” (i.e. operates for a particular purpose) rather than legislative
powers which operate on a particular subject matter; see Cunliffe v Commonwealth
(1994) 124 ALR 120 at 176-8.
It may also be necessary to consider whether a decision can be set aside as invalid
where the decision-maker has failed to seek out relevant material. If so, it is not an
independent ground of review but a type of unreasonableness, or a failure to have
regard to relevant material.
Normally, the reviewing court will confine its consideration to the material that was
actually or constructively before the decision-maker (with respect to constructive
knowledge, see Minister for Aboriginal Affairs v Peko-Wallsend). However,
reviewing courts have been prepared to receive evidence that there was material
readily available and centrally relevant which a reasonable decision-maker would
have inquired into – for example, information which up-dates the facts or information
not within the knowledge of the applicant; see Prasad v Minister for Immigration and
Ethnic Affairs (1985) 65 ALR 549 at 561-563.
Unreasonableness
This ground rests on the premise that:
“…when a discretionary power is statutorily conferred on a repository,
the power must be exercised reasonably, for the legislature is taken to
intend that the discretion be so exercised.”
Kruger v The Commonwealth (1997) 190 CLR 1, 36 per Brennan J.
Adopted also by Gummow J in Minister for Immigration and Multicultural
Affairs v Eshetu (1999) 197 CLR 611, 650
Categories of unreasonableness include:

that the decision was devoid of plausible justification
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

the giving of excessive or inadequate weight to a consideration
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

making an erroneous finding of fact on a point of importance
GTE (Australia) v Brown (1986) 14 FLR 309

failure to have proper regard to departmental policy or
representation
Nikac v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65

the unnecessarily harsh effect of the decision
Edelsten v Wilcox and FCT (1988) 83 ALR 99

failure to give genuine, proper and realistic consideration to a
matter including making adequate inquiry as to facts
Although according to Wilcox J in Prasad v Minister for Immigration
and Ethnic Affairs (1985) 159 CLR 550, 570, ‘[t]he circumstances in
which a decision will be invalid for failure to inquire are…strictly
limited’

demonstrable inconsistency with other decisions;
Kruse v Johnston [1898] 2 QB 91; Fares Rural Meat and Livestock Co Pty
Ltd (1990) 96 ALR 153

discrimination without a rational distinction.
The Council of the City of Parramatta v Pestell (1972) 128 CLR 305
‘Unreasonableness’ is, accordingly, a broad head of judicial review, with the potential
to stem executive excess by filling gaps not covered by more specifically stated
grounds. Empirical research suggests that this ground is one of the most frequently
relied on by applicants, and that it is upheld in the courts in 21.1% of cases.
Acting for an Unauthorised (or Improper) Purpose
The common law position has been entrenched in paragraphs 5(2)(c) and 6(2)(c) of
the AD(JR) Act.
Bad Faith and Fraud
The common law position has been entrenched in paragraphs 5(2)(d) and 6(2)(d) of
the AD(JR) Act.
Considering Irrelevant Matters and
Failing to Consider Relevant Matters
The common law position has been entrenched in paragraphs 5(2)(a) and 6(2)(a) of
the AD(JR) Act.
No Evidence
The common law position has been entrenched in paragraphs 5(1)(h) and 5(3); 6(1)(h)
and 6(3))of the AD(JR) Act.
Proportionality
Attempts have been made to move away from the language of unreasonableness in an
effort to provide greater clarity and consistency in reviewing administrative discretion.
Proportionality, for example, has been suggested as a ground of reviewing
administrative action.
Grounds of Judicial Review:
1. ACTING FOR AN UNAUTHORISED (OR IMPROPER) PURPOSE
Municipal Council of Sydney v Campbell [1925] AC 338
* R v Toohey (Aboriginal Land Commissioner); Ex p. Northern Land
Council (1981) 151 CLR 170
* Thompson v Randwick Municipal Council (1950) 81 CLR
* Samrein Pty Ltd v Metropolitan Water, Sewerage & Drainage Board
(1982) 41 ALR 467
* Schlieske v Minister for Immigration & Ethnic Affairs (1988) 79 ALR
554; aff’d (1988) 84 ALR 719
2. BAD FAITH & FRAUD
SBBS v Minister for Immigration and Multicultural and Indigenous
Affairs (2002) 194 ALR 749
Minister for Immigration and Multicultural Affairs v SBAN [2002]
FCAFC 431
3. CONSIDERING IRRELEVANT MATTERS
Water Conservation and Irrigation Commission (NSW) v Browning
(1947) 74 CLR 492
Roberts v Hopwood [1925] AC 578
* Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997
Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1
Ex parte S F Bowser & Co; Re Municipal Council of Randwick (1927) 27
SR(NSW) 209
4. FAILING TO CONSIDER RELEVANT MATTERS
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363
Tickner v Chapman (1995) 57 FCR 451
* Hindi v Minister for Immigration & Ethnic Affairs (1988) 16 ALD 526
* Prasad v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550
5. WEDNESBURY UNREASONABLENESS & IRRATIONALITY
* Associated Provincial Picture Houses Ltd v. Wednesbury Corporation
(“Wednesbury”) [1948] 1 KB 223
* Re Minister for Immigration and Multicultural Affairs; Ex parte
Applicant S20/2002 [2003] HCA 30 (17 June 2003)
5.1. Examples
Parramatta CC v Pestell [1972] 128 CLR 305
Edelsten v Wilcox (1988) 83 ALR 99
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd
(1993) 112 ALR 211
* Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR
549
Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121
5.2 Unreasonableness and the Duty of Inquiry
* Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR
549 esp at 561-563
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
* Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Luu v Renevier (1989) 91 ALR 39
5.3 Proportionality
State of South Australia v Tanner (1988) 166 CLR 161
Cunliffe v Commonwealth (1994) 124 ALR 120 at 176-8
Selected Readings
Statutory Interpretation
Bayne, P 'Judicial review of questions of fact', (1992) 66 Australian Law Journal 96
Brennan, G 'The role of the judge', (1997) 3 Judicial Review 65
Le Sueur, A P 'The judges and the intention of Parliament: is judicial review
undemocratic?', (1991) 44 Parliamentary Affairs 283
Pearce, DC & Geddes, RS – Statutory Interpretation In Australia, 5th ed, 2001,
Butterworths, Sydney, Ch 3
Woolf, H 'Judicial review: the tensions between the executive and the judiciary',
(1998) 114 Law Quarterly Review 579
Grounds of Review
Airo-Farulla, G, "Rationality and Judicial Review of Administrative Action" - [2000]
MULR 23; (2000) 24 Melbourne University Law Review 543
Creyke, R and Hill, G, "A Wavy Line in the Sand: Bond and Jurisdictional Issues in
Judicial and Administrative Review" - Federal Law Review Vol 26 No 1 (1998)
Gageler, Stephen ‘The Legitimate Scope of Judicial Review’ (November 2001) 21(3)
Australian Bar Review 279
Mason, Sir Anthony, Judicial Review: A View from Constitutional and Other
Perspectives - Federal Law Review Vol 28 No 2 (2000)
McMillan, J 'Developments under the ADJR Act: the grounds of review', (1992) 20
Federal Law Review 50
McMillan J, 'The Foundations and Limitations of Judicial Review' - Gilbert and Tobin
Centre of Public Law - Constitutional Law Conference (15 February 2002)
Morabito, V and Barkoczy, S 'Restricting the judicial review of income tax
assessments: the scope and purpose of Schedule 1(e) of the Administrative Decisions
(Judicial Review) Act 1977 (Cth)', (1999) 21 Sydney Law Review 36
Sidebotham, N, "Judicial Review: Is There Still a Role for Unreasonableness?" - E
Law - Murdoch University Electronic Journal of Law, Vol 8, No 1 (March 2001)
Willheim, E 'Ten years of the ADJR Act: from a government perspective', (1992) 20
Federal Law Review 111
Unreasonableness
Allars M, Australian Administrative Law, Cases & Materials, Butterworths 1997
Blake, C and Sunkin, M 'Immigration: appeals and judicial review', [1998] Public
Law 583
Crock, M 'The impact of the new administrative law on migrants', (1989) 58
Canberra Bulletin of Public Administration 150
McEvoy, T 'New flesh on old bones: recent developments in jurisprudence relating to
Wednesbury unreasonableness', (1995) 3 Australian Journal of Administrative Law
36
Panetta, Rossana ‘Wednesbury Unreasonableness: Judicial or Merits Review?’ (2002)
9(4) Australian Journal of Administrative Law 191
Tongue, S 'Fairness in administrative decision-making: the Immigration Review
Tribunal model', (1996) 9 AIAL Forum 44
No Evidence
Bowman, B 'Judicial review - "no evidence"', (1984) 14 Manitoba Law Journal 195
Keith, K J 'The Erebus case in the Privy Council', [1984] New Zealand Law Journal
35
Proportionality
Jowell, J. & Lester, A. "Proportionality: Neither Novel Nor Dangerous" in Jowell, J &
Oliver, D New Directions in Judicial Review (Stevens, London, 1988)