adminstrative law update - unreasonableness
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Administrative Law Update - Unreasonableness
15 September 2014
Emma Turner, Special Counsel
Insights following Minister for Immigration and Citizenship v Li
> Minister for Immigration and Citizenship v Li [2013] HCA 18
> Key Principles
> Minister for Immigration and Border Protection v Pandey [2014] FCA 640
> Agar v McCabe [2014] VSC 309
> Topouzakis v Greater Geelong City Council [2014] VSC 87
> Tips for avoiding unreasonableness in decision-making
Outline
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> The test:
> Where an exercise of statutory power is so unreasonable that no reasonable person could have so exercised the power.
> Wednesbury unreasonableness often described as a judicial ‘safety net’.
> Li one of the small number of cases where decision invalidated on sole ground of unreasonableness.
> The High Court in Li in dismissing an appeal from a judgment that a decision infected by Wednesbury unreasonableness has confirmed such may amount to jurisdictional error.
Wednesbury - a circular standard
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‘a sighting of “rare bird” of unreasonableness in solo flight” (Leighton McDonald (2014) 25 Public Law Review 117)
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> MRT decision
> “considers that the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further”
> Federal Magistrates’ Court
> decided in favour of Ms Li on the basis that “the Tribunal’s decision to proceed [in] the circumstances rendered it unreasonable such as to constitute unreasonableness in the Wednesbury Corporation sense”.
> Federal Court
> described the review function of the MRT as “its core function” and an unreasonable refusal of an adjournment will not just deny the a meaningful appearance to the applicant but will mean that the MRT has not discharged its core statutory function in reviewing the decision and such a failure constitutes jurisdictional error for the purposes of s75(v) of the Constitution.
Minister for Immigration and Citizenship v Li [2013] HCA 18
French CJ: the decision was not informed by any consideration other than the asserted sufficiency of the opportunities provided to Ms Li to present her case - an, arbitrariness about the decision which rendered it unreasonable.
Plurality: failed to consider that as the skills assessment was being reviewed this should have conveyed to the MRT that Ms Li did not consider she had an opportunity to present her case, which it was required to consider in the context of s360.
Gageler J: Nothing in the MRT's reasons suggested that it considered Ms Li’s prospects and there was no basis to infer that the MRT considered that the adjournment would be likely to have been unduly protracted. No reasonable tribunal, seeking to act in a way that was just and fair in accordance to substantial justice and merits of case, would have refused the adjournment.
High Court’s decision
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> Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred.
> Every discretion has to be exercised, according to “the rules of reason”.
> Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review.
> Area of decisional-freedom however cannot be construed as attracting a legislative sanction to be arbitrary, capricious or to abandon common sense.
French CJ
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> Legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.
> The legal standard of reasonableness is the standard indicated by the true construction of the statute.
> Legal unreasonableness is not so confined to an irrational or bizarre decision, or one so unreasonable that no reasonable decision-maker would have made it, as ‘Wednesbury is not the starting…nor should it be considered the end point’.
> Instead a decision will be vitiated by legal unreasonableness where it ‘lacks an evident and intelligible justification’.
Plurality
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> Reasonableness is not implied as a condition of validity if inconsistent with the terms in which a power or duty is conferred or imposed or if otherwise inconsistent with the nature or statutory context of that power or duty.
> Unreasonableness is constrained by:
> the stringency of the Wednesbury test;
> the practical difficulty of assessing the test where considerations of policy are concerned.
> Successful invocation of unreasonableness has been rare and ‘nothing in these reasons should be taken as encouragement to greater frequency’.
Gageler J
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> The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: [29], [63], [88].
> Legal unreasonableness can be:
> a conclusion reached after the identification of an underlying jurisdictional error in the decision-making process; or
> it can be a conclusion reached without necessarily identifying another jurisdictional error from which an undisclosed error may be inferred: [27]-[28],[76].
Key Principles
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> Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust“:[28],[110].
> Where reasons are given, judicial review is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process:[76].
> Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law“: [105].
Key Principles cont…
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> The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: [67].
> Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: [30],[66].
> The test of legal unreasonableness is stringent: [113].
> In some circumstances a proportionality analysis of the decision-making may be appropriate to determining whether or not the decision was reasonable: [30]-[31], [73]-[74].
Key Principles cont…
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> MRT refused an adjournment despite applicants advising they may have misunderstood or been misguided by their migration agent and queried whether the applicant was a genuine applicant for a student visa.
> Federal Circuit Court found the Tribunal failed to consider an issue relevant to the determination of the visa – the genuineness of Ms Pandey’s intention to be a student and whether she would genuinely undertake study for which she might enrol.
> Federal Court found the primary judge erred in concluding that the tribunal was bound to consider the somewhat hypothetical question of whether Ms Pandey would genuinely undertake a course of study if she were to enrol.
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
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> The legal reasonableness of the Tribunal’s decision is “borderline”.
> the circumstances of this case put it into the category of case where the Tribunal had a “genuinely free discretion” or “decisional freedom”
> The Tribunal’s decision could not be described as arbitrary, capricious, lacking in common sense or plainly unjust.
> Nor could it be described as lacking in an evident and intelligible justification.
> Whilst a different Tribunal might have reasonably arrived at a different decision, that fact alone does not mean that the decision was legally unreasonable. Nor does the fact that the court, on review, might also have exercised the discretion differently.
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> The ground of unreasonableness will be made out where the decision is manifestly unreasonable, that is, where it lacks an evident and intelligible justification or simply defies comprehension.
> Further a decision will be unreasonable where it is illogical or irrational in the sense that it involves illogical findings, or inferences of fact unsupported by probative material or logical grounds.
> The ground may also be established where a decision under review is plainly inconsistent with other decisions made in respect of circumstances that are substantially similar, if not identical to those under review.
Agar v McCabe [2014] VSC 309
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> Forrest J determined that the Magistrates’ orders were not manifestly unreasonable for the following reasons:
> The relevant test was one of fact and degree and allows for differences in conclusions – he may not have agreed with the Magistrate however the Magistrates’ conclusion did not defy comprehension or lack an intelligible justification.
> It fell to the Magistrate to assess the reliability and credibility of Mr Agar as a witness and it follows the strength of his evidence as to demonstrating legitimate purpose.
> Second, nothing in the Magistrates’ reasons, or for that matter the transcript, is suggestive of irrationality or illogicality, or the drawing of inferences unsupported by probative material.
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> Council barred plaintiff from entering municipal building and advised he could request a review of the ban two years after it commenced.
> Under the local law Council had the power to restrict access to municipal buildings where nuisances adversely affect the enjoyment, health and welfare of persons in the municipality.
> In exercising a discretion under the local law Council was required to act fairly and reasonably and in proportion to the breach.
> Reason – plaintiff admitted to being charged with offensive conduct occurring at the council owned leisure center.
Topouzakis v Greater Geelong City Council [2014] VSC 87
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> Emerton J had to have regard to affidavit material from Council officers setting out the basis for the decisions.
> the general principle is that a court, when considering the lawfulness of a decision, may admit evidence in quite limited circumstances so as to elucidate, but not fundamentally collide with, the reasons stated by the decision-maker [38].
> failure by the council to act in compliance with its own laws to observe the requirement to act “fairly and reasonably” and in “proportionate to the nature and extent of the breach” could give rise to jurisdictional error – as the provision was restrictive rather than facultive (in contrast to Li) and the lawfulness of the council’s decision was affected by not doing what the law required.
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> Emerton J found the Council’s decision unlawful because the council failed to comply with the requirement of the local law in exercising its discretion to act reasonably and in proportionate to the nature and extent of the breaches.
> Her Honour remarked were it necessary to decide she would hold the decision was unreasonable in the Wednesbury sense as the:
> basis for the ban not clear or whether responsive to assuaging the concerns of the relevant kind;
> the period of the ban was arbitrary; and
> lacked an intelligible justification.
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> Decision-makers ought to be aware of the implications of Li:
> Considering whether their decision has:
> an evident and intelligible basis
> where no reasons (or scant reasons provided) the decision-making process is documented and transparent and can be explained at a future date if required
> Whether the outcome falls within the a range of possible decisions which are defensible in fact and at law
Implications for decision-makers
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> What is reasonable in a given circumstances (the standard of reasonableness) is to be determined from the scope, subject and purpose of particular statutory provisions in the given case.
> In appropriate cases, a decision may invoke a consideration of whether it is a proportionate response to the question to be decided, having regard to the scope and purpose of the discretionary power in question.
Implications for decision-makers
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Be wary of using a sledgehammer to crack a nut!
But be confident of the degree of decisional freedom when exercising discretional power
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QUESTIONS
The information contained in this presentation is intended as general commentary and should not be regarded as legal advice. Should you require specific advice on the topics or areas discussed please contact the presenter directly.
Disclaimer
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