Research Assignment Essay LAWS3300 PDF

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In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, Griffiths J observed that: ‘Within the bounds of legal unreasonableness, there “is an area within which a decision-maker has a genuinely free discretion”… It is critical that, in exercising a judicial review function, the courts not exceed “their supervisory role by undertaking a review of the merits of an exercise of discretionary power”… Application of a standard of legal unreasonableness “does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker”.’ (citations omitted) In that context, to what extent should judges engaged in judicial review defer to administrative decision-makers?

Introduction The consideration of deference to administrative decision-makers through the judicial review process presents some difficulty, as developments in the case law may be understood to limit the interpretation strictly to questions of law. This approach has received some criticism, primarily because a judicial review will not fetter the discretionary power of a decision-maker in the circumstances, merely examine if an error of law had occurred. This problematic nature has been highlighted in the decision of Minister for Immigration v Stretton.1 For this reason, it will be argued that the extent to which deference is provided by the courts exhibits crucial concerns due to its narrow interpretation; two sections will substantiate this position. First, an examination of the case law will establish the shortfalls of the present approach. Second, the essay provides a discussion of the approach in Stretton,2 considering the impacts of limiting interpretations of judicial review to unreasonableness in decisions undertaken by the administrative function. Overall, the essay argues that an excessive scope by

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Minister of Immigration and Border Protection v Stretton (‘Stretton’) [2016] FCR 11. Ibid.

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the judiciary to defer may create unjust outcomes, particularly if all relevant factors are not considered. 1.) Shortfalls of the present approach The first concern with the deference of power exercised by administrative decision-makers is the lack of consideration attached to the merits of the case in the judicial review. In PekoWallsend,3 the Federal Court found that while all legal aspects must be taken into account, the administrative decision-maker has the tendency to place greater weight on merits, rather than lawfulness of the decision. A similar approach can be observed in Quin,4 whereby Brennan J stated that the function of judicial review is not to rectify an administrative decision error, rather, that right rests with the appropriate decision-maker, subject only to questions of legality.5 This approach highlights one of the principal problems with the extent to which deference to administrative decision-makers may impact the case, as no distinction between merits and legality is assessed in judicial reviews.6 Further, an administrative decision may be found unreasonable only in limited circumstances, such as, where a jurisdictional error has occurred or some personal view affected the final decision.7 Accordingly, judges in performing judicial review should defer to administrative decision-makers, but only to a limited extent as failure to do so may create undesirable outcomes. A strict regard to the ground of legal unreasonableness also presents the concern that other pertinent factors will be disregarded, in this way failing to provide an appropriate decision. To determine unreasonableness of a decision, the test in Wednesbury8 is often applied. It

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Peko-Wallsend Ltd v Minister for Aboriginal Affairs (‘Peko-Wallsend’) (1985) 5 FCR 532. Attorney-General (NSW) v Quin (‘Quin’) (1990) 170 CLR 1. 5 (1990) 170 CLR 1 [35] (‘Quin’). 6 Peter Cane, ‘Merits Review and Judicial Review – The AAT as Trojan Horse’ (2000) 28 Federal Law Review 220-1. 7 Chris Wheeler, ‘Judicial Review of Administrative Action: An Administrative Decision -Maker’s Perspective’ (2017) 87 Australian Institute of Administrative Law Forum 86-7. 8 Associated Provincial Picture Houses Ltd v Wednesbury (‘Wednesbury’) [1948] 1 KB 223.

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establishes that a decision performed by a government official can be substituted in a judicial review, but only if it has been so unreasonable that a reasonable person in those circumstances would not undertake it.9 This approach was further affirmed in Li,10 where the Court stated that its supervisory function does not include consideration of the decisions’ merits in order to satisfy the standard of legal unreasonableness.11 This means that there is a high extent to which judiciary defers to administrative decision-makers, reversing the decisions strictly in situations of apparent unreasonableness.12 Consequently, the result of adopting such a stringent examination by the courts is primarily because of the lack of clear distinction between unreasonableness and irrationality, effectively diminishing consideration of other factors pertinent in a specific decision.13 Nonetheless, some opposing arguments have been put forth that extensive deference to the administrative decision-maker by judicial review is essential, with narrow interpretations in reviewing decisions as sufficient scope of the courts’ power. As administrative decisionmakers are often experts in the specific field, Henckels argues that relying on these discretionary decisions is desirable as it recognises the proficiency of other branches of the government.14 Moreover, several statements in judicial review, while not explicitly stating the deference doctrine, suggest that interference with merits review by administrative decisionmakers is beyond the exercise of judicial power.15 This is evident in Stretton,16 where Griffiths J stated that the principal purpose of the judicial review is to remain within a certain boundary,

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Ibid. Minister for Immigration and Citizenship v Li (‘Li’) (2013) 249 CLR 332. 11 Ibid [66]. 12 Naomi Sidebotham, ‘Judicial Review: Is There Still a Role for Unreasonableness’ (2001) 8(1) Murdoch University Electronic Journal of Law [13]-[15]; [1948] 1 KB 223 (‘Wednesbury’). 13 Alan Freckelton, ‘The Concept of ‘Deference’ in Judicial Review of Administrative Decisions in Australia – Part 2’ (2013) 74 Australian Institute of Administrative Law Forum 52-3. 14 Caroline Henckels, ‘Proportionality and the Separation of Powers in Constitutional Review’ (2017) 45(2) Federal Law Review 192-3. 15 Henckels, above n 14, 193. 16 [2016] FCR 11 (‘Stretton’). 10

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restricting the court’s influence on merits review by the decision-maker.17 In other words, the objective of judicial review in this area is to narrowly construe only the ‘extreme cases’ of unreasonableness.18 For this reason, the narrow approaches by the judiciary in maximising deference may be viewed as essential for adequate outcomes. 2.) Impacts on administrative decision-makers from Stretton’s decision The impact of the Stretton19 decision has reinforced the limited scope of interpretation considered in judicial review in the examination of discretionary powers by administrative decision-makers, extending its deference. In this case, the Court, specifically Griffiths J, reviewed the validity of the visa cancellation decision by the Minister under the Migration Act,20 stating that discretionary powers in merits review are not within the scope of judicial supervisory function.21 Although this outcome expands deference, as unreasonableness is established in a broader sense,22 the test remains stringent in its application,23 potentially limiting a rigorous judicial review. Notably, this narrow boundary of unreasonableness is evident in Li,24 and in Singh,25 where the standard set in judicial review specifically favours the application of pertinent legal principles rather than factual circumstances of each case.26 This means that courts in construing legal unreasonableness will place substantial weight on the lawfulness of the decision, rather than its merits, which are recognised to fall within the scope of powers of administrative decision-makers.27 Consequently, judges in judicial review

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Ibid [56]. [2016] FCR 11 [56] (‘Stretton’); Alan Freckelton, ‘The Concept of ‘Deference’ in Judicial Review of Administrative Decisions in Australia – Part 1’ (2013) 73 Australian Institute of Administrative Law Forum 59. 19 [2016] FCR 11 [56] (‘Stretton’). 20 Migration Act 1958 (Cth). 21 [2016] FCR 11 [56] (‘Stretton’). 22 Sidebotham, above n 12, [19]-[20]. 23 (2013) 249 CLR 332 [112]-[113] (‘Li’). 24 Ibid. 25 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437. 26 Justice John Griffiths, ‘Judicial Review of Administrative Action in Australia’ (2017) 88 Australian Institute of Administrative Law Forum 13-4. 27 [2016] FCR 11 [56] (‘Stretton’). 18

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should limit the extent to which they defer to administrative decision-makers, to ensure all relevant factors are thoroughly examined. The statement by Griffiths J in Stretton28 further limits the potential of enabling additional oversight of discretionary decisions performed by the administrative body, setting the ‘bounds of legal unreasonableness’ at a higher threshold. The implication of this view causes an increase in the scope of deference by the courts to administrative decision-makers, narrowing powers of judges to alter or ‘substitute’ discretionary decisions,29 other than in exceptional circumstances.30 Further, as inconsistent decisions by the administrative decision-makers may occur, judges in judicial review should limit the extent to which powers are deferred, to maximise consistent and just outcomes.31 However, limiting the powers of the executive branch of government would be incompatible with the principles enshrined in the Constitution, which establishes the role for both executive and the judiciary.32 Accordingly, this approach may be seen as a development in the usurpation of power by the judiciary, ultimately being contrary to the rule of law.33 Consequently, a narrower approach that limits the extent of deference to administrative decision-makers in judicial review could allow consideration of other pertinent factors, albeit its determination requires substantially thorough application. Nonetheless, it is plausible to deduce that the decision in Stretton34 has in fact expanded the scope of judicial power, as the Court has increased its focus towards a wider spectrum of underlying factors in the lawfulness of the administrative decision. Two important arguments have been made with respect to this viewpoint. First, Wheeler argues that the ongoing changes

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[2016] FCR 11 (‘Stretton’). Ibid [56]-[57]. 30 Freckelton, above n 20, 58-9. 31 Emily Johnson, ‘Should ‘Inconsistency’ of Administrative Decisions Give Rise to Judicial Review?’ (2013) 72 Australian Institute of Administrative Law Forum 57-8, 60. 32 Bradley Selway, ‘The Principle Behind Common Law Judicial Review of Administrative Action – The Search Continues’ (2002) 30(2) Federal Law Review [37]. 33 Selway, above n 34, [37]-[38]. 34 [2016] FCR 11 (‘Stretton’). 29

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to what constitutes ‘unreasonableness’ of a decision in effect broadens the powers of judiciary in reviewing administrative decisions, rather than defers power.35 Moreover, he highlights that the broadness of these decisions form uncertainty and complexity for administrative decisionmakers, as opposed to creating wider discretion.36 Second, as Freckelton argues in pointing to statement by Mason J in Peko-Wallsend,37 that a decision may be set aside when ‘too little weight’ was given to a specific factor,38 highlights that courts may be engaging in merits review in examination of these factors. Both approaches demonstrate that the broadening of the principles generates complexity for administrative decision-makers, as such, judges should increase the extent of deference. Conclusion As it can be seen, the extent to which judges in judicial review defer to administrative decision-makers presents some shortfalls in the present approach. The observation by Griffiths J in Stretton39 has to some extent broadened the interpretation of decisions performed by the judiciary, although, its application remains to be a contentious issue. Furthermore, limiting the extent of interpretation to factors within the bounds of unreasonableness minimises the ability of judicial review to correct unjust decision-making. Ultimately, the extent of deference should be lessened, with regard to the appropriate balance between the executive and judiciary branch of government.

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Wheeler, above n 7, 79. Wheeler, above n 7, 79-80, 84. 37 (1985) 5 FCR 532 (‘Peko-Wallsend’). 38 Freckelton, above n 20, 59 [4]. 39 Ibid. 36

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