GROUND OF JR – IMPROPER EXERCISE – Unreasonable Exercise of Power
State Grounds for Judicial Review:
Here it is necessary to examine the following grounds:
• [list grounds]
Considering each… (In particular consider – Relevant Considerations)
IMPROPER EXERCISE OF POWER (Copied in other sections – only mention once)
[5(e) and 6(e) AD(JR) Act (Cth) OR 20(e) and 21(e) JR Act (Qld)] provide an umbrella term for a number of self-
contained grounds in [5(2) & 6(2) AD(JR) Act (Cth) OR 23 JR Act (Qld) in which an exercise of power can be reviewed
on the grounds of improper exercise of power.
1. HAS [DECISION-MAKER]?
There may be grounds for JR under [5(2)(g) and 6(2)(g) AD(JR) Act (Cth) OR 23(g) JR Act (Qld)] for an unreasonable
exercise of power. Watershed case is Wednesbury Corp (Lord Greene MR) stated the narrow ground as decisions that are
manifestly unreasonable; no sensible person could ever dream that the decision law within the powers of the authority.
Circumstances in which Wednesbury unreasonableness would be found are rare, and caution should be applied because it
may lead a court to review a decision on its merits (when looking at whether court giving too much or too little weight to
one consideration or another): MIMA v Eshetu (Quoting Mason J in Peko-Wallsend).
Q. Unreasonable led into Merit Review?
It is clear from Mason J’s comments in Peko-Wallsend that this ground may lead a
court into merit review when looking at whether there was too much or too little
weight to one consideration or another: MIMA v Eshetu. The courts have instead
opted to create a distinction to avoid this between something that is unreasonable in
terms of Wednesbury (so beyond the powers of what the decision maker could have
done) and the situation in Eshetu, which the court described it as a question of
disagreement of the certain factors which could be weighted, and the court is not
concerned with ascribing weight to relevant circumstances or factors.
Principle was restated in Bromley v GLC, avoiding emotional terms as: decisions, that looked at objectively, are so devoid
of any plausible justifications that no reasonable body of persons could have reached them. Bromley v GLC held
hallmarks of unreasonableness are: perversity, illogicality, disproportionate effects. Here, …
IF concerns FACT-FINDING stage:
It is still unclear whether the courts will allow this ground to cover unreasonable fact finding exercises as well as
unreasonable decisions/reasoning. However in Eshetu Gleeson CJ and McHugh J left open whether illogicality of fact
finding would be sufficient to show unreasonableness. Furthermore in Prasad the problem occurred during the fact-
finding exercise and this wasn’t seen as a problem; although it was the Minister’s decision that was in question. Finally
in Applicant S20/2002 Gleeson CJ acknowledged possibility of irrationality as a separate ground; and Kirby J
acknowledged perverse view on fact finding, court could say that it does not correspond with statute. Arguably this
ground may apply during fact-finding. (Continue on with other IF)
EXAMPLE Applicant S20/2002
Migration Act removed certain grounds of review – unreasonableness and natural justice; Lawyers argued new
ground of “irrationality”. Problem was in fact finding process – unreasonable approach.
HELD: FC: 2:1 judges held, irrationality not a separate ground of review from unreasonableness so could not
appeal, Finkelstein J held that unreasonable fact finding was an error of law.
HC: 5:2 judges held, appeal was excluded on other grounds
Gleeson CJ: acknowledged possibility of irrationality as a separate ground
Kirby J: if irrational, perverse view on fact finding, court could say that it does not correspond with statute
IF disproportionate effects (i.e. compared to the purpose of the act): SA v Tanner
Here similarly to in SA v Tanner, [applicant] may argue that [decision] is unreasonable because it was not reasonably
proportionate to the purpose for which the power was given. Whilst in SA v Tanner the applicants were unsuccessful
because in the context of the whole overriding purpose which was concerned with the pollution of the water used for
domestic water supplies, it was reasonably proportionate to refuse approval to erect an aviary; Here, _________. EXAMPLE SA v Tanner
Planning Commission refused approval to erect an aviary, citing bar to approval in Waterworks Regulations: “No
person shall erect, construct, enlarge or establish a piggery, zoo or feedlot on any land within a watershed.”
HELD: Power or barrier which was directed under the Waterworks Regulations was fairly wide ranging and
fairly extreme; BUT in the context of the whole overriding purpose which was concerned with the pollution of
the water used for domestic water supplies, it was reasonably proportio