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Lecture

Week 9 - Ground - Improper Exercise - Unreasonable Exercise

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
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
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