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Published online by Cambridge University Press: 01 January 2025
Although the High Court has never ruled on the issue, the prevailing view has been that unless parliaments enact bills of rights, the principle of proportionality does not and cannot play a role in judicial review of administrative decisions in Australia. Yet in Minister for Immigration and Citizenship v Li, a majority of the High Court hinted that this may not be the case. This article analyses the reasons for Australia's longstanding reluctance to embrace proportionality in the administrative law context, and whether the decision in Li has altered this position. It then explores overseas developments in proportionality review which reveal that the principle may take on many forms in the administrative law context, with differing implications for the separation of powers. The article finds that it might be possible to accommodate certain methods of applying proportionality within Australia's judicial review framework, but not without significant broader changes to judicial review of administrative action in Australia.
This article is based on a paper presented at the 2013 AIAL conference in Canberra. My thanks to Mark Aronson, Matthew Groves, Lorne Sossin, Oscar Roos and the anonymous reviewer for helpful discussions and feedback. All errors are mine alone.
1 Michael Taggart, Proportionality, Deference, Wednesbury [2008] New Zealand Law Review 423, 4245.
2 This article is focused solely on individual, discretionary administrative decisions, and does not consider proportionality review in the context of either primary or subordinate legislation. For a recent discussion of proportionality as a limit on legislative powers in Australia see Kiefel, Justice Susan, Proportionality: A Rule of Reason (2012) 23 Public Law Review 85.Google Scholar
3 This is the term used by Carol Harlow to describe the model of judicial review that developed during the first two-thirds of the 20th century: A Special Relationship? American Influences on Judicial Review in England in Loveland, Ian (ed), A Special Relationship? American Influences on Public Law in the UK (Clarendon Press, 1995) 79, 837.Google Scholar The features of the classic model of review are discussed in detail below.
4 (2013) 249 CLR 332 (Li).
5 See, eg, Aronson, Mark and Groves, Matthew, Judicial Review of Administrative Action (Lawbook Co, 5th ed, 2013) 377Google Scholar; Creyke, Robin and McMillan, John, Control of Government Action: Text, Cases and Commentary (LexisNexis, 2012) 8345Google Scholar; Administrative Review Council, Federal Judicial Review in Australia, Report No 50 (2012) 1356; Meagher, Dan, The Common Law Principle of Legality in the Age of Rights (2011) 35 Melbourne University Law Review 449, 469Google Scholar; Cane, Peter and McDonald, Leighton, Principles of Administrative Law: Legal Regulation of Governance (Oxford University Press, 2nd ed, 2012) 174Google Scholar; Kneebone, Susan, A Commentary on Proportionality: Protection of Common Law Rights or Chipping Away at the Diceyan Edifice in Pearson, Linda (ed), Administrative Law: Setting the Pace or Being Left Behind? (Australian Institute of Administrative Law Forum, 1996) 168, 170.Google Scholar
6 Hunt, Murray, Sovereignty's Blight: Why Contemporary Public Law Needs the Concept of Due Deference in Bamforth, Nicholas and Leyland, Peter (eds), Public Law in a Multi-Layered Constitution (Hart, 2003) 337, 337.Google Scholar
7 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410.
8 See, eg, New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307, 3215 (Kirby J); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 367 (Deane J).
9 Cunliffe v Commonwealth (1994) 182 CLR 272, 356 (Dawson J).
10 Ibid 357.
11 Bruce v Cole (1998) 45 NSWLR 163, 185 (Spigelman CJ).
12 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (European Convention), adopted into UK law in the Human Rights Act 1998 (UK) c 42 (HRA). See discussion of UK and European cases in Woolf, Harry et al, De Smith's Judicial Review (Sweet & Maxwell, 7th ed, 2013) 6303.Google Scholar
13 See SirSales, Philip, Rationality, Proportionality and the Development of the Law (2013) 129 Law Quarterly Review 223, 2245.Google Scholar
14 (2003) 214 CLR 1 (Lam).
15 Ibid 23 [72].
16 Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414, 424.
17 Including in Australia: see generally Friedmann, Wolfgang and Benjafield, David, Principles of Australian Administrative Law (Law Book Co, 2nd ed, 1962).Google Scholar
18 Taggart, Michael, Reinventing Administrative Law in Bamforth, Nicholas and Leyland, Peter (eds), Public Law in a Multi-Layered Constitution (Hart, 2003) 311, 31112Google Scholar; Loughlin, Martin, Procedural Fairness: A Study of the Crisis in Administrative Law Theory (1978) 28 University of Toronto Law Review 215, 216.CrossRefGoogle Scholar
19 Loughlin, above n 18, 216, citing Stewart, Richard B, The Reformation of American Administrative Law (1975) 88 Harvard Law Review 1671, 1675.CrossRefGoogle Scholar
20 Which in essence seems to be the same as the legality/merits distinction, where the latter includes the application of correctly interpreted law to facts, the application of policy, and the balancing of various factors. The law/discretion is more commonly used in Canada while the terminology of legality/merits is more common in Australia.
21 The distinction between law and facts has been described as a vital distinction in many fields of law yet no satisfactory test of universal application has yet been formulated': Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 394 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ). The dichotomy is particularly problematic in the administrative law context because facts are able to become questions of law when they are determinative of a decision-maker's jurisdiction. See Endicott, Timothy, Questions of Law (1998) 114 Law Quarterly Review 292Google Scholar; Ellis-Jones, Ian, The Ever-Elusive Fact/Law Distinction (2007) 13 Local Government Law Journal 66.Google Scholar
22 The process/substance dichotomy has its origins in American legal process jurisprudence, and defines the role of courts as limited to the way in which a decision is made and issues of legal authorisation. The terms process and substance are particularly contested. The former certainly includes procedural fairness, and the latter includes merits and discretion', but precisely where matters such as the considerations a decision-maker is bound to take into account fall is less clear. For a discussion in the Canadian context see Dyzenhaus, David and Fox-Decent, Evan, Re-thinking the Process/Substance Distinction: Baker v Canada (2001) 51 University of Toronto Law Journal 193, 1956.CrossRefGoogle Scholar For a brief discussion in the New Zealand context see Michael Taggart, Administrative Law (2006) New Zealand Law Review 75, 789.
23 See Taggart, Proportionality', above n 1, 451.
24 With the exception of jurisdictional facts.
25 (1995) 184 CLR 163.
26 Kruger v Commonwealth (1997) 190 CLR 1, 36 (Brennan CJ); Goldsworthy, Jeffrey, Parliamentary Sovereignty: Contemporary Debates (Cambridge University Press, 2010) 283.CrossRefGoogle Scholar
27 See, eg, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 (Lord Diplock); Taggart, Proportionality', above n 1, 430.
28 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24, 41 (Mason J).
29 Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135.
30 Dean R Knight, Mapping the Rainbow of Review: Recognising Variable Intensity [2010] New Zealand Law Review 393, 399411.
31 SirWade, William and Forsyth, Christopher, Administrative Law (Oxford University Press, 10th ed, 2009) 3089Google Scholar; TRS Allan, Human Rights and Judicial Review: a Critique of Due Deference [2006] Cambridge Law Journal 671; J Jowell, Judicial Deference: Servility, Civility or Institutional Capacity? [2003] Public Law 592. Note, however, that the doctrine seems to be becoming increasingly integrated with existing concepts in UK public law, such as justiciability and the separation of powers more generally, and cited with approval in those contexts. See, eg, R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60, [20][22] (Lord Sumption JSC), [150] (Lord Kerr JSC).
32 Taggart, Proportionality', above n 1, 45461; Knight, above n 30, 4135.
33 Knight, above n 30, 4135.
34 Lord Irvine, Judges and Decision-Makers: The Theory and Practice of Wednesbury Review [1996] Public Law 59, 623.
35 Ridge v Baldwin [1964] AC 40; In Re HK (an Infant) [1967] 2 QB 617; R v Gaming Board, Ex parte Benaim and Khaida [1970] 2 QB 175.
36 See, eg, Nicholson v Haldimand-Norfolk (Regional) Police Commissioners [1979] 1 SCR 311; Kioa v West (1981) 180 CLR 404.
37 See, eg, Kioa v West (1981) 180 CLR 404, 584 (Mason J), 609 (Brennan J); Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ), 604 (Brennan J).
38 See the discussion and critique of this dichotomy in Dyzenhaus and Fox-Decent, above n 22 , 197205.
39 See, eg, Boyron, Sophie, Proportionality in English Administrative Law: A Faulty Translation? (1992) 12 Oxford Journal of Legal Studies 237CrossRefGoogle Scholar; Irvine, above n 34, 635; de Smith, S A, Judicial Review of Administrative Action (Stevens, 1959) 214Google Scholar; G Ganz, The Limits of Judicial Control over the Exercise of Discretion [1964] Public Law 367.
40 [1991] 1 AC 696, 766.
41 Harlow, Carol and Rawlings, Richard, Law and Administration (Cambridge University Press, 3rd ed, 2009) 1223CrossRefGoogle Scholar
42 See Mark Elliott's analysis of the role of and rationales for deference at various stages of a proportionality analysis: Elliott, Mark, Proportionality and Deference: the Importance of a Structured Approach in Forsyth, Christopher et al (eds), Effective Judicial Review: A Cornerstone of Good Governance (Oxford University Press, 2010) 264.Google Scholar
43 [2001] 2 AC 532, 547 [27] (Daly) (emphasis added).
44 [2006] 2 WLR 719 (Denbigh (HoL)).
45 R(SB) v Governors of Denbigh High School [2005] 1 WLR 3372, 3390 [75] (Brooke LJ) (Denbigh (CA)).
46 Ibid 3390 [76].
47 Ibid 3390 [78].
48 Denbigh (HoL) [2006] 2 WLR 719, 72932 [27][32] (Lord Bingham), 741 [69] (Lord Hoffman), (with both of whom Lord Nicholls agreed) 7334 [41].
49 Ibid 730 [29] (Lord Bingham).
50 Smith and Grady v UK (1999) 29 EHRR 493; Denbigh (HoL) [2006] 2 WLR 719, 731 [30] (Lord Bingham).
51 Denbigh (HoL) [2006] 2 WLR 719, 731 [31] (Lord Bingham), quoting Thomas Poole, Of Headscarves and Heresies: the Denbigh High School case and public authority decision-making under the Human Rights Act [2005] Public Law 685.
52 Ibid 731 [30].
53 Ibid 731 [31].
54 See, eg, Bank Mellat v Her Majesty's Treasury (No 2) [2014] AC 700, 771 [21] (Lord Sumption JSC), 8045 [125][129] (Lord Reed JSC); R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60, [19][22] (Lord Sumption JSC).
55 See, eg, Taggart, Proportionality', above n 1, 4514; Wade and Forsyth, above n 31, 313; Rt Hon Lord Justice Sedley, The Last 10 years Development of English Public Law (2004) 12 Australian Journal of Administrative Law 9, 1518Google Scholar; Selway, Bradley, The Rise and Rise of the Reasonable Proportionality Test in Public Law (1996) 7 Public Law Review 212, 2189Google Scholar; Hettiarachi, Priyanga, The Sacred and the Profound: Judicial Review and Rights, Proportionality and Deference to Executive Conduct (2007) 29 Australian Bar Review 223, 2303Google Scholar; Jeff King, Proportionality: A Halfway House [2010] New Zealand Law Review 327.
56 See, eg, Harlow and Rawlings, above n 41 1206; Poole, Thomas, The Reformation of English Administrative Law (2009) 68 Cambridge Law Journal 142, 1467.CrossRefGoogle Scholar
57 SirMason, Anthony, The Tension Between Legislative Supremacy and Judicial Review (2003) 77 Australian Law Journal 803, 809.Google Scholar
58 See generally, Taggart, Proportionality', above n 1, 44650; Irvine, above n 34, 639; Harlow and Rawlings, above n 41, 1359.
59 R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
60 See Aronson and Groves, above n 5, 24; Selway, Bradley, The Principle Behind Common Law Judicial Review of Administrative Actionthe Search Continues (2002) 30 Federal Law Review 217CrossRefGoogle Scholar; Kneebone, Susan, What is the Basis of Judicial Review (2001) 12 Public Law Review 95Google Scholar; Airo-Farulla, Geoff, Rationality and Judicial Review of Administrative Action (2000) 24 Melbourne University Law Review 543, 55860.Google Scholar
61 See Aronson and Groves, above n 5, 25363, 2867, 3678.
62 Gageler, Justice Stephen, The Constitutional Dimension in Groves, Matthew (ed), Modern Administrative Law in Australia: Concepts and Context (Cambridge University Press, 2014) 165, 177.CrossRefGoogle Scholar
63 R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254, 267317 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).
64 Western Australia v Commonwealth (1995) 183 CLR 373, 486 [148] (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).
65 (2011) 245 CLR 1 (Momcilovic).
66 Ibid 346 [431].
67 Ibid 44 [36] (French CJ).
68 See, eg, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 56775; Coleman v Power (2004) 220 CLR 1; Wotton v Queensland (2012) 246 CLR 1; Monis v The Queen (2013) 249 CLR 92; Attorney-General (SA) v Corporation of Adelaide (2013) 249 CLR 1; Unions NSW v NSW (2013) 88 ALJR 227.
69 Those who consider that proportionality should only apply to decisions affecting fundamental rights include Taggart, Proportionality', above n 1; Tom Hickman, Problems for Proportionality [2010] New Zealand Law Review 303; Aronson and Groves, above n 5, 3756; Sales, above n 13. Paul Craig is the leading commentator arguing that proportionality ought to be recognised as a general head of review: see Paul Craig, Proportionality, Rationality and Review [2010] New Zealand Law Review 265. Others are equivocal or have taken middle-ground positions: see, eg, King, above n 55; Woolf et al, above n 12, 589, 6334.
70 The approach to judicial review of administrative decisions which limit rights protected by the New Zealand Bill of Rights Act 1990 (NZ) is not yet settled in the courts, though commentators generally consider that courts should review such decisions for proportionality, adopting a similar approach to UK courts (which is discussed in detail below). See Wilberg, Hanna, The Bill of Rights in Administrative Law Cases: Taking Stock and Suggesting Some Reassessment (2013) 25 New Zealand Universities Law Review 866Google Scholar; Justice Susan Glazebrook, To the Lighthouse: Judicial Review and Immigration in New Zealand (Paper presented at Supreme Court and Federal Court Judges Conference, Hobart, 2428 January 2009) 3943; Knight, above n 30; Taggart, Proportionality', above n 1, 4425.
71 The House of Lords arguably applied a proportionality test in all but name in Daly [2001] 2 AC 532, in relation to a policy that limited prisoners common law right to privileged legal correspondence. Lord Bingham stated (at [24]) that: the policy provides for a degree of intrusion into the privileged legal correspondence of prisoners which is greater than is justified by the objectives the policy is intended to serve and so violates the common law rights of prisoners. A number of judges in the UK have expressed the view that proportionality ought to eclipse the Wednesbury principle under common law, where no rights are involved: see eg R (Alconbury Development Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, 1406 (Lord Slynn); Daly [2001] 2 AC 532, 548 (Lord Cooke); R v Parole Board ex parte Walker (2007) EWHC 1835, [38] (Laws LJ). In the Canadian context, it is noteworthy that the Supreme Court of Canada repeatedly referred to Charter values rather than rights in the case of Dor v Barreau du Qubec [2012] 1 SCR 395, which is discussed in detail below. It may be that the Supreme Court was keeping the door open to proportionality being applied beyond situations where an enumerated right is in issue to a broader range of interests are in issue.
72 Aronson and Groves, above n 5, 375. See also Hickman, above n 69, 322; Taggart, above n 1, 4778.
73 R v Somerset County Council; ex parte Dixon [1988] Env LR 111, 121 (Sedley J), quoted in Taggart, above n 1, 453. Brennan J famously made similar observations in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35.
74 Aronson and Groves, above n 5, 3756.
75 Hickman, above n 69, 320. Though it should be noted that this statement is highly contested, and many view proportionality as antithetical to the concept of rights: see, eg, Webber, Grgoire, On the Loss of Rights in Huscroft, Grant, Miller, Bradley W and Webber, Grgoire (eds), Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge University Press, 2014) 123CrossRefGoogle Scholar; Grant Huscroft, Proportionality and the Relevance of Interpretation in Huscroft, Miller and Webber (eds), above n 75, 186.
76 Hickman, Tom, Public Law After the Human Rights Act (Hart, 2010) 2856.Google Scholar
77 Ibid 286.
78 Craig, above n 69, 271.
79 See, eg, Craig, above n 69, 2723.
80 Martin Lutern, The Lost Meaning of Proportionality in Huscroft, Miller and Webber, above n 75 , 21.
81 Taggart, above n 1 , 477.
82 Ibid.
83 Ibid 478.
84 Craig, above n 69, 2712.
85 Ibid 272
86 Ibid.
87 Hunt, Murray, Against Bifurcation in Dyzenhaus, David, Hunt, Murray and Huscroft, Grant (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Hart, 2009) 99, 1057.Google Scholar
88 To adopt a term used by Hickman, above n 69.
89 Li (2013) 249 CLR 332, 367 [76], 368 [82] (Hayne, Kiefel and Bell JJ).
90 Ibid 350 [26] (French CJ), 357 [47] (Hayne, Kiefel and Bell JJ), 371 [91] (Gageler J).
91 Gageler, Justice Stephen, Impact of Migration Law on the Development of Australian Administrative Law (2010) 17 Australian Journal of Administrative Law 92, 98101.Google Scholar
92 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
93 Li (2013) 249 CLR 332, 3624 [64][68] (Hayne, Kiefel and Bell JJ).
94 Ibid 364 [68].
95 [1898] 2 QB 91.
96 Li (2013) 249 CLR 332, 365 [70], quoting Kruse v Johnson [1898] 2 QB 91, 99100 (Lord Russell).
97 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 22930 (Lord Greene MR).
98 Li (2013) 249 CLR 332, 3656 [72].
99 Ibid 366 [73], citing Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation (1990) 96 ALR 153, 1678.
100 Allars, Margaret, Introduction to Australian Administrative Law (Butterworths, 1990) 18891.Google Scholar
101 Li (2013) 249 CLR 332, 367 [76], 368 [82].
102 Ibid 369 [85].
103 See Aronson and Groves, above n 5, 3635.
104 Li (2013) 249 CLR 332, 3512 [30] (French CJ).
105 Ibid 380 [124] (Gageler J).
106 See, eg, WASB v Minister for Immigration and Citizenship (2013) 217 FCR 292, 304 [57][58]; Sivaprakasam v Minister for Immigration and Border Protection [2014] FCA 871, [43].
107 (2014) 139 ALD 50, 65 [77] (Singh).
108 [2014] QSC 133.
109 Ibid [83].
110 See Singh (2014) 139 ALD 50, 51 [1]; Kaur v Minister for Immigration and Border Protection (2014) 141 ALD 619, 640 [84]; Sivaprakasam v Minister for Immigration and Border Protection [2014] FCA 871, [41]; TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 311 ALR 387, 409 [82]; Chava v Minister for Immigration and Border Protection (2014) 141 ALD 433, 442 [45].
111 See, eg, A v Corruption and Crime Commissioner (2013) 306 ALR 491, 543 [247]; Jones v Office of the Australian Information Commissioner [2014] FCA 285, [23][25]; Regional Express Holdings Limited v Dubbo City Council (No 3) [2014] NSWLEC 87, [241]; RACQ Insurance Ltd v Motor Accidents Authority of NSW (No 2) (2014) 67 MVR 551, 560 [37]; Flegg v Crime and Misconduct Commission [2014] QCA 42, [17].
112 Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145, [15][20] (Mansfield J), [79], [98] (Buchanan J) (SZSNW); TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 311 ALR 387, 416 [112]; Chava v Minister for Immigration and Border Protection (2014) 141 ALD 433, 441 [37]; Demillo v Minister for Immigration and Citizenship (2014) 135 ALD 455, 461 [29].
113 Singh (2014) 139 ALD 50, 60 [47]; Kaur v Minister for Immigration and Border Protection (2014) 141 ALD 619 6478 [115][119]; Minister for Immigration and Border Protection v Pandey [2014] FCA 640, [41][42].
114 (2014) 139 ALD 50.
115 [2014] FCAFC 145.
116 See Huscroft, Miller and Webber (eds), above n 75 , for a theoretical discussion of these issues.
117 See, eg, Spain v Council (C-310/04) [2006] ECR I-7285.
118 See, eg, Mount Sinai Hospital Center v Quebec (Minister for Health and Social Services) [2001] 2 SCR 281. For a discussion of proportionality in the Canadian administrative law context see Mullan, David, Proportionalitya Proportionate Response to an Emerging Crisis in Canadian Judicial Review Law (2010) New Zealand Law Review 233.Google Scholar
119 Mullan, Proportionality', above n 118, 2368. There is no specific or strict separation of powers doctrine under the Canadian Constitution as there is in Australia and the United States. So, for instance, Canadian legislatures may, and frequently do, confer non-judicial functions on courts and the Supreme Court of Canada may render advisory opinions: see Hogg, Peter, Constitutional Law of Canada (Thomson/Carswell, 5th ed, 2010) vol 1, 7-137-38Google Scholar. Nevertheless, the constitutional basis of the supremacy of Canadian courts over constitutional matters rests on similar principles as in Australian and the US, which is inherently linked to the separation of powers doctrine: see Leclair, Jean, Judicial Review in Canadian Constitutional Law: A Brief Overview (2004) 36(3) George Washington International Law Review 543Google Scholar; Tremblay, Luc B, Marbury v Madison and Canadian Constitutionalism: Rhetoric and Practice (2004) 36 George Washington International Law Review 515Google Scholar; Hogg, Peter, Is Judicial Review of Administrative Action Guaranteed by the British North America Act? (1976) LIV Canadian Bar Review 716, 720Google Scholar; Finkelstein, Neil, Laskin's Canadian Constitutional Law (Carswell, 5th ed, 1986) 689Google Scholar; Strayer, Barry L, The Canadian Constitution and The Courts: The Function and Scope of Judicial Review (Butterworths, 2nd ed, 1983) 816.Google Scholar
120 The Canadian Charter of Rights and Freedoms comprises Part I of the Constitution Act 1982, which is itself sch B of the Canada Act 1982 c 11 (UK). I discuss the development of Canadian law on this issue in Boughey, Janina, Rights, Review and Reasonableness: The Implications of Canada's New Approach to Administrative Decision-Making and Human Rights for Australia (2013) 35 Sydney Law Review 85, 88100.Google Scholar
121 R v Oakes [1986] 1 SCR 103.
122 Daly was decided under common law because the HRA was not yet in place: see Daly [2001] 2 AC 532, [23] (Lord Bingham).
123 See discussion in Taggart, Proportionality', above n 1, 4378.
124 The structured test was not used in Denbigh (HoL) [2006] 2 WLR 719 or Belfast City Council v Miss Behavin Ltd [2007] 1 WLR 1420 though both referred to Daly, so the approach was likely informed by the structure of the Oakes proportionality test.
125 [2012] 1 SCR 395 (Dor).
126 For a brief discussion of this point see Mullan, David, Deference from Baker to Suresh and beyondInterpreting the Conflicting Signals in Dyzenhaus, David (ed), The Unity of Public Law (Hart, 2004) 21, 236Google Scholar. For a practical illustration of the uncertainties see Kane v Canada (Attorney-General) [2011] 4 FCR 112 (application for leave rejected by Supreme Court in Canada (Attorney-General) v Kane [2012] 3 SCR 398), particularly Stratas JA's dissent.
127 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 (Baker).
128 Though it should be noted that the reasonableness standard does not strictly apply to procedural fairness issues. Rather, courts have said that they will give important weight to decision-makers procedural choices: Baker [1999] 2 SCR 817, 840 [27] (L'Heureux-Dub J for Gonthier, McLachlin, Bastarache and Binnie JJ). The question of whether there is a difference between giving weight to a decision-maker's procedural choices and applying the reasonableness standard to those choices is an ongoing issue of contention in Canadian administrative law: see, eg Re Sound v Fitness Industry Council of Canada (2014) 72 Admin L R (5th) 1 [42]; Maritime Broadcasting System Ltd v Canadian Media Guild (2014) 373 CLR (4th) 167 [52][60]; Paul Daly, Deference, Weight and Procedural Fairness on Paul Daly, Administrative Law Matters (5 March 2014) <http://administrativelawmatters.blogspot.com.au/2014/03/deference-weight-and-procedural-fairness.html>.
129 In Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and Pearlman v Governors of Harrow School [1979] QB 56. For a more detailed discussion of the origins of the standard of review see Walters, Mark D, Jurisdiction, Functionalism, and Constitutionalism in Canadian Administrative Law in Forsyth, Christopher et al (eds) Effective Judicial Review: A Cornerstone of Good Governance (Oxford University Press, 2010) 302.Google Scholar
130 Pushpanathan v Canada (Minister for Citizenship and Immigration) [1998] 1 SCR 982, 100611 [30][37].
131 In Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corporation [1979] 2 SCR 227. For a discussion of the history see Macklin, Audrey, Standard of Review: Back to the Future in Flood, Colleen M and Sossin, Lorne (eds), Administrative Law in Context (Emond Montgomery, 2nd ed, 2013) 279.Google Scholar
132 Dunsmuir v New Brunswick [2008] 1 SCR 190.
133 See discussion of recent case law on the deferential standard of review in Sheila Wildeman, Pas de Deux: Deference and Non-Deference in Action in Flood and Sossin (eds) above n 131, 323, 3514.
134 The term is attributed to the late South African public law scholar, Etienne Mureinik: see Dyzenhaus, David, Law as Justification: Etienne Mureinik's Conception of Legal Culture (1998) 14 South African Journal on Human Rights 11.CrossRefGoogle Scholar Leading administrative law commentators have since taken up the term to describe an approach to review that is more focused on the reasonableness of administrators justifications than with the court's objective views of reasonableness: see David Dyzenhaus, Proportionality and Deference in a Culture of Justification', in Huscroft, Miller and Webber (eds) above n 75, 234; Taggart, Proportionality', above n 1, 4615; Hunt, Against Bifurcation above n 87, 110; Woolf et al, above n 12, 6412.
135 I discuss the decision in more detail in Boughey, above n 120, 96100.
136 To borrow Taggart's method of distinguishing between the categories of administrative decisions: Taggart, Proportionality', above n 1.
137 Dor [2012] 1 SCR 395, 405 [7].
138 Dunsmuir v New Brunswick [2008] 1 SCR 190, 221 [47] (Bastarache and LeBel JJ).
139 Dor [2012] 1 SCR 395, 429 [66].
140 Ibid 426 [56].
141 Ibid 426 [56].
142 Ibid 42731 [59][72].
143 Dor [2012] 1 SCR 395, 417 [35], quoting Liston, Mary, Governments in Miniature: The Rule of Law in the Administrative State in Flood, Colleen and Sossin, Lorne (eds), Administrative Law in Context (Emond Montgomery, 2008) 77, 100.Google Scholar
144 See Harlow and Rawlings, above n 41, 2240. A red light theory perspective of administrative law emphasises the importance of courts controlling excesses of state power. Classic red lighters include A V Dicey and Sir William Wade. A green light theory perspective views the administrative state as a vehicle for progress, and sees administrative law as facilitative. John Willis and Louis Jaffe are included among those Harlow and Rawlings label green lighters'.
145 Dyzenhaus, Proportionality and Deference', above n 134, 255.
146 Ibid.
147 Sales, above n 13, 225.
148 Woolf et al, above n 12, 635; Taggart, Proportionality', above n 1, 465.
149 Taggart, Proportionality', above n 1, 465.
150 Li (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ).
151 R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60 [20][22] (Lord Sumption JSC), [150] (Lord Kerr JSC).
152 Public Service Board of NSW v Osmond (1986) 159 CLR 656 (Osmond).
153 The Canadian Supreme Court has not held that there is a general duty to provide reasons, only that in certain circumstances, the duty of procedural fairness will require the provision of [reasons]': Baker [1999] 2 SCR 817, 848 [43]. Although in practice, since Baker, Canadian courts have taken a very broad view and it seems that certain circumstances includes almost every situation in which natural justice applies.
154 A discussion of general state and territory statutes which impose a duty to give reasons can be found in Aronson and Groves, above n 5, 597.
155 See, eg, Migration Act 1958 (Cth) s 66(2)(c).
156 Some rights instruments do recognise a right to justice or fairness in administrative proceedings. For instance, Article 6 of the European Convention on Human Rights protects the right to a fair hearing in the determination of a person's civil rights and obligations, as does s 27 of the New Zealand Bill of Rights Act 1990 (NZ). However, other instruments protect due process rights in a more limited range of circumstances, such as where life, liberty, or security of the person may be affected by a decision: see, eg, International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14; Canadian Charter of Rights and Freedoms s 7.
157 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 259, 271 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
158 Commentators trace the reasonableness requirement back to Rooke's Case (1598) 5 Co Rep 99b. See Wade and Forsyth, above n 31, 2934; Jaffe, Louis and Henderson, Edith, Judicial Review and the Rule of Law: Historical Origins (1956) 72 Law Quarterly Review 345, 3524Google Scholar; Lawson, Gary and Seidman, Guy I, Necessity, Propriety and Reasonableness in Lawson, Gary et al (eds), The Origins of the Necessary and Proper Clause (Cambridge University Press, 2010) 1215.CrossRefGoogle Scholar
159 Li (2013) 249 CLR 332, 3512 [30] (French CJ).
160 (1995) 183 CLR 273.
161 See generally Groves, Matthew, Is Teoh's Case Still Good Law? (2007) 14 Australian Journal of Administrative Law 126.Google Scholar
162 See, eg, Taggart, Proportionality', above n 1 (though note that his argument was based on the undesirability of application of a variable unreasonableness standard); King, above n 55. See also the references at above n 71. Note however that other judges disagree and Wade and Forsyth conclude that the coup de grce has not yet fallen on Wednesbury unreasonableness': Wade and Forsyth, above n 31, 314.
163 See Dixon, Rosalind A new (inter)national human rights experiment for Australia (2012) 23 Public Law Review 75Google Scholar; Meagher, Dan, The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and the Courts (2014) 42 Federal Law Review 1.CrossRefGoogle Scholar
164 Meagher, The HRPS Act and the Courts above n 163, 11.
165 See Jeffrey Jowell, Of Vires and Vacuums: the Constitutional Context of Judicial Review [1999] Public Law 448, 449.