Administrative law mythbuster no 01: Wednesbury

By John Carroll, Cain Sibley, Neil Cuthbert
19 Sep 2019
Wednesbury unreasonableness continues to be relevant, but is not the sole basis for establishing unreasonableness as applicants can seek review for extreme illogicality or irrationality.

What people think Wednesbury unreasonableness means

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 sets the benchmark for the closest that a court will come to reviewing the merits of a decision on judicial review: assessing the reasonableness of the decision made under an enactment.

In Wednesbury, English cinemas could legally open on Sundays, subject to conditions, some of which were at the discretion of the local authority. The local authority in Wednesbury barred children under 15 years of age from attending any entertainment on Sundays. The cinema argued this was unreasonable; only children unaccompanied by an adult should have been barred.

Lord Greene MR identified two types of unreasonableness:

  • a decision that took into account irrelevant considerations or did not take into account relevant considerations; and
  • where a discretionary decision was "so unreasonable that no reasonable authority could ever have come to it" – and that required "something overwhelming".

Here, nothing overwhelming was present. Lord Greene MR explained there were likely to be a wide range of views of "honest and sincere people" on this issue, but the Court’s role was "not to decide what it thinks is reasonable"; rather, its role was:

"to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose."

His statement on unreasonableness has since found its way into the grounds of review in the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Whether under the ADJR Act or at common law, Wednesbury sets a very high bar for unreasonableness, one which applicants will have a hard time meeting.

So that's not right anymore?

No, not quite.

Wednesbury continues to be relevant but is not the sole basis for establishing unreasonableness.

That's because, from the 1990s onwards, we begin to see the High Court diverging from the strictures of Wednesbury unreasonableness, and two recent High Court cases have made a departure from the formula of Wednesbury: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, and Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713.

In Li the High Court re-formulated the reasonableness ground of review, with the majority finding that unreasonableness could be established where a decision lacked an "evident and intelligible justification". That could occur where no reasons were provided or where some reasons were provided and it was "nevertheless not … possible for a court to comprehend how the decision was arrived at". Justice Gageler construed the meaning of reasonableness with reference "the subject matter, scope and purposes of the statute", picking up some of the terms of the statute in the ultimate formulation of reasonableness in this case.

In SZVFW Justice Gageler was joined in this view by Justices Nettle, Gordon and Edelman, which also accords with a broader normative shift towards focusing on the statute. Echoing Lord Greene MR, Justice Edelman drew a distinction between reasonableness as a catch-all for other grounds of review and as a distinct ground of review.

What you need to remember about Wednesbury

Historically, the unreasonableness ground of review was reserved for decisions whose outcome was manifestly arbitrary, vague, or irrational: so unreasonable that no reasonable person could have made the decision. That may no longer be the case, since the High Court in Li indicated that the unreasonableness ground should not be reserved only for decisions that are bizarre or absurd. The bar to establishing unreasonableness may no longer be as high as in Wednesbury. Accordingly, the first thing to remember is to ensure that the outcome of any administrative decision is reasonably open or authorised by the parameters of the statute under which it is made.

The second thing you need to remember about Wednesbury unreasonableness is that there is now an offshoot ground of review for serious illogicality or irrationality. Following Li, decision-makers should be careful to ensure that each decision has an evident and intelligible justification. In other words, it may not be enough to arrive at a reasonable outcome. The decision-maker should reason clearly from facts to conclusions and avoid any procedural missteps. Two contrasting cases illustrate the application of this principle:

  • Minster for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 stands for the proposition that where a statute imposes an obligation on the decision-maker to reach a state of satisfaction (on the basis of evidence), then it will be a jurisdictional error to ignore relevant evidence where that amounts to a failure to discharge the decision-maker's statutory task. Here, the Tribunal engaged in no process of weighing certain country information that was relevant to the review.
  • The High Court in Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 held that the Administrative Appeals Tribunal did not act unreasonably where it exercised a discretion to refuse the visa applicants an adjournment after they failed to appear. The court looked to the purpose of the statute conferring the discretion and found that, in circumstances where the visa applicants had been genuinely unresponsive throughout the proceeding, it was reasonably open to the Tribunal to proceed in their absence.

In conclusion, the current position is that a decision will be unreasonable where its outcome or reasoning process is fundamentally at odds with the statutory scheme.

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