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Published online by Cambridge University Press: 01 January 2025
Predictions have been made about the inevitable demise of judicial review of executive action on the grounds of ‘reasonableness’ for some time. This is especially heightened as and when other substantive grounds of judicial review–for example, proportionality and review for material error of fact–emerge and gain traction. It is argued that these newer grounds are much better suited to the task of reviewing the substance of executive decision-making and they, therefore, reduce the appetite for reasonableness review. This paper considers attempts to retain such review in England, Australia and Canada, notwithstanding the flourishing of other substantive grounds of review. It evauates the reasons, particular to each jurisdiction, for retaining reasonableness review. In the English context, it could be a useful tool to slow down advances in the scope of review. In the Australian context, it could be a suitable vehicle for the incremental expansion of substantive review relative to proportionality, in a way that is not too disruptive of the relatively conservative approach to judicial review on questions of substance. In the Canadian context, it is the only counterpoint available to correctness as a standard of review in the area of substantive review. It could be argued that the retention of a standard of review–like reasonableness–that has a tendency towards deference is misplaced in an era where there appears to be a growing interest in strengthening a culture of justification in the executive through stronger judicial review. Here the aims of the paper are modest. It is not being suggested that reasonableness review should be the sole or primary ground for substantive review. Instead, the paper argues that there is some merit in retaining a tool that is more readily capable of a deferential application (relative to proportionality or correctness as standards of review). The merit of reasonableness review lies in its cautious approach rather than its potential to grow into a strong or sufficient tool of review and, indeed, it is not necessary for it to do so in today's substantive review landscape.
I would like to thank the anonymous reviewer, Matthew Groves and Greg Weeks for their input on this piece. All errors and omissions are my own.
1 R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, 549 [32] (Lord Cooke).
2 R (Carlile) v Secretary of State for the Home Department [2015] AC 945, 970 [32] (Lord Sumption SCJ).
3 This paper uses the phrase ‘reasonableness’ review to refer to all forms of irrationality, unreasonableness, Wednesbury-style review. It is only in very few and now diminishing contexts that the precise vocabulary used appears to makes a difference to the nature of review: see Mark Aronson, ‘The Growth of Substantive Review: the Changes, their Causes and their Consequences’ in John Bell et al (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Hart Publishing, 2016) 118; Carol Harlow and Richard Rawlings, Law and Administration (Cambridge University Press, 3rd ed, 2009) 106–7.
4 [1948] 1 KB 223 (‘Wednesbury’).
5 Ibid 229–30 (Lord Greene MR).
6 Some would argue that these attempts at maintaining a distinction between ‘legality’ and merits’ review is futile and illusory: Peter Cane, ‘Merits Review and Judicial Review—the AAT as Trojan Horse’ (2000) 28 Federal Law Review 213, 221. See also critical comments by judges on the dressing up of merits review to look like procedural or ‘legality’-based review (or ‘merits review in drag’): Powerco Ltd v Commerce Commission [2006] NZHC 662 (9 June 2006) [24] (Wild J); Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 (10 June 2010) [58] (Owen JA).
7 There are few instances where decisions have been found to be so illogical: see, eg, West Glamorgan County Council v Rafferty [1987] 1 WLR 457 (Court of Appeal) (council had decided to evict gypsies from land after years of being in breach of its own statutory duty to provide adequate accommodation for gypsies residing in the area).
8 Lester, Lord and Jowell, Jeffrey, ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ [1987] Public Law 368, 371–3Google Scholar.
9 Hall v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240 (Court of Appeal) (conditional grant of planning permission for the industrial use of land on the condition that the plaintiff build an ancillary road to relieve traffic, at the plaintiff's expense and without any compensation); R v Hillingdon London Borough Council, Ex parte Royco Homes Ltd [1974] QB 720 (conditional grant of planning permission for the residential development of land on the condition that the subsequent houses be occupied by people on the authority's waiting list with security of tenure for 10 years). See also Lord Carnwarth's reflection on his ‘pragmatic’ approach to reasonableness review—this may explain the success of this review in these cases: Lord Carnwarth, ‘From Judicial Outrage to Sliding Scales: Where Next for Wednesbury?’ (Speech delivered at the ALBA Annual Lecture, London, 12 November 2013) <https://www.supremecourt.uk/docs/speech-131112-lord-carnwath.pdf>.
10 See generally Harlow and Rawlings, above n 3, 22–31 on the red/green-light metaphor to explain the different ways in which these constitutional tensions may be resolved. The bifurcation between red and green has been criticised, with some arguing for blended ‘amber’ light analyses of administrative justice systems: see, eg, Hoggett, Brenda, ‘Reviews: Forever Amber?’ (1985) 48 Modern Law Review 236Google Scholar.
11 Largely by removing formalist restrictions to review: Ridge v Baldwin [1964] AC 40 (in the context of natural justice/procedural fairness); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (in the context of errors of law); Padfield v Minister for Agriculture, Fisheries and Food [1968] AC 997 (‘Padfield’) (on the implications of subjective/discretionary powers in legislation for judicial review); E v Secretary of State for the Home Department [2004] QB 1044 (on the reviewability of errors of fact); more recently, Upper Cart v Tribunal [2012] 1 AC 663 (on the extent to which decisions of the Upper Tribunal are open to judicial review); Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 (12 November 2015) and Pham v Secretary of State for the Home Department [2015] 1 WLR 1591 (on the application of proportionality review more broadly in administrative law outside of the Human Rights Act 1998 (UK) and the European context); and Belfast City Council v Miss Behavin Ltd [2007] 1 WLR 1420, [37] (Baroness Hale) (on the limits of deference which cannot be used where there has been a inadequately considered and reflective decision on the part of the executive).
12 With some judges indicating that it is on it is way out: R (Association of British Civilian Internees For East Region) v Secretary of State for Defence [2003] QB 1397, 1412–14 (Lord Phillips MR, Schiemann and Dyson LJJ).
13 Lord Irvine, ‘Judges and Decision-Makers: The Theory and Practice of Wednesbury Review’ [1996] Public Law 59, 60–1.
14 David Feldman, ‘Human rights, terrorism and assessments of risks: the role of judges and politicians’ [2006] Public Law 364, 374–5. The view of judicial legitimacy put forward by Feldman (on the basis of robust reasoning by the judiciary) can be challenged—for example, Christopher Forsyth has more recently argued that there is increasing evidence of a breakdown in structure in judicial reasoning and an increasing reliance on pragmatism: see Forsyth, Christopher, ‘“Blasphemy Against Basics”: Doctrine, Conceptual Reasoning and Certain Decisions of the UK Supreme Court’ in Bell, John et al (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Hart Publishing, 2016) 158–9Google Scholar.
15 See Dicey, A V, An Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1970)Google Scholar ch 12 on the demands of the rule of law when it comes to power—the thrust of which is the need for limits on discretionary power; see also Lord Diplock, ‘Judicial Control of Government’ [1979] Malayan Law Journal cxl at cxlii: ‘Although in a constitution which follows the Westminster Model the doctrine of the separation of powers between legislative and executive is replaced by the doctrine of supremacy of the legislature, it is crucial to this type of constitution that the judicial branch of government should have exclusive power to interpret all written law once it has been made’.
16 Lester and Jowell, above n 8, 372.
17 One of the strongest proponents being Paul Craig, ‘Unreasonableness and Proportionality in UK Law’ in Ellis, Evelyn (eds), The Principle of Proportionality in the Laws of Europe (Hart Publishing, 1999) 85, 99–100Google Scholar.
18 Paul Daly, ‘Wednesbury's Reason and Structure’ [2011] Public Law 237.
19 Which will be further discussed in the next section.
20 Daly, ‘Wednesbury's Reason and Structure’, above n 18, 242–7.
21 See, eg, R v Panel on Take-overs and Mergers, Ex parte Guiness Plc [1990] 1 QB 146, 160 (Lord Donaldson MR): ‘the ultimate question would, as always, be whether something had gone wrong of a nature and degree which required the intervention of the court and, if so, what form that intervention should take’. Although this could also ultimately be seen as a tautologous definition.
22 See Aronson, above n 3, 115.
23 [1996] QB 517.
24 Ibid 555.
25 Andrew Le Sueur, ‘The Rise and Ruin of Unreasonableness’ [2005] Judicial Review 32, 42, critiquing this aspect of Smith.
26 Smith & Grady v United Kingdom (1999) 29 EHRR 493. The superiority of proportionality was then echoed in the first major case utilizing the European jurisprudence: R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, 546–8 [24]–[28] (Lord Steyn), 549 [32]–[33] (Lord Cooke). See also R (SB) v Governors of Denbigh High School [2007] 1 AC 100, 115–6 [29] (Lord Bingham).
27 Such as the Human Rights Act 1998 (UK) c 42 or the European law context in the case of England (on which see Sales, Philip, ‘Rationality, Proportionality and the Development of the Law’ (2013) 129(2) Law Quarterly Review 223Google Scholar; Paul Craig, ‘Proportionality, Rationality and Review’ [2010] New Zealand Law Review 265; Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 (25 November 2015) [131], [133] (Lord Neuberger P) [281]–[282] (Lord Kerr SCJ).
28 2004] QB 1044 (‘E’).
29 See also Jones v First Tier Tribunal [2013] 2 AC 48. This is a departure from the previous position on error of fact which could only be reviewed for correctness if it was a ‘precedent fact’ (see R v Secretary of State for the Home Department, Ed parte Khawaja [1984] AC 74) or on the basis of illegality or the reasonableness of the decision (see Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014; R v Secretary of State for the Home Department, Ex parte Zamir [1980] AC 930).
30 [2004] QB 1044, 1069–70 [61]–[63] (Carnwarth LJ). Such review was justified on the basis of ‘fairness’. The Court of Appeal in E relied on comments from earlier cases: R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 and R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295.
31 Ibid 1071 [66].
32 R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330, 334–5 (Lord Slynn), quoting Wade, William and Forsyth, Christopher, Administrative Law (Clarendon Press, 7th ed, 1994) 316–8Google Scholar.
33 E v Secretary of State for the Home Department [2004] QB 1044, 1071 [66].
34 SeeGroves, Matthew, ‘The Surrogacy Principle and Motherhood Statements in Administrative Law’ in Pearson, Linda, Harlow, Carol and Taggart, Michael (eds), Administrative Law in a Changing State: Essays in Honour of Mark Aronson (Hart Publishing, 2008) 71, 77–9Google Scholar (noting that the extension of this ground could be seen as part of the general transformation of judicial review in England into a more general right of challenge to government decision-making, while also recognizing that the success rate is low in cases raising this as a ground of challenge).
35 See Forsyth, Christopher and Dring, Emma, ‘The Final Frontier: The Emergence of Material Error of Fact as a Ground for Judicial Review’ in Forsyth, Christopher et al (eds), Effective Judicial Review: A Cornerstone of Good Governance (Oxford University Press, 2010) 252Google Scholar, citing Shaheen v Secretary of State for the Home Department [2005] EWCA Civ 1294 (2 November 2005) [28] (Brooke LJ) and MT (Algeria) v Secretary of State for the Home Department [2008] QB 533, 568 [69] (Clarke MR).
36 See also Huang v Secretary of State for the Home Department [2007] 2 AC 167; Kennedy v The Charity Commissioner [2015] AC 455, 507–8 [54]–[55] (Lord Mance SCJ); R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 2697, 2716 [66] (Lords Carnwarth, Mance, Clarke and Toulson SCJJ); Pham v Secretary of State for the Home Department [2015] 1 WLR 1591; R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] 2 WLR 509 (‘Youssef’).
37 [2014] AC 700 (‘Bank Mellat’).
38 Ibid 790–1 [74]. Lord Reed SCJ dissented but his formulation of the test was accepted by Lord Sumption SCJ, giving the majority judgment (at [20]).
39 Ibid 770 [19].
40 As was the case in Pham v Secretary of State for the Home Department [2015] 1 WLR 1591 (impact on citizenship status)—see relevance of this to the Court's decision to utilise proportionality: 1623 [98] (Lord Mance SCJ), 1630 [119]–[120] (Lord Reed SCJ). The recent case of Youssef (where the executive decision would have had an impact on the assets of the applicant) is more like Bank Mellat (see per Lord Carnwarth at [2016] 2 WLR 509, [55]).
41 De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80 (Lord Clyde).
42 Namely, the Oakes test utilised for infringements of Charter rights: R v Oakes [1986] 1 SCR 103.
43 [2016] AC 1355 (‘Keyu’).
44 The applicant sought to rely on the right to life under Article 2 of the European Convention of Human Rights which has been interpreted by the European Court of Human Rights to give rise to a duty to carry out an effective investigation into any death. This claim failed. See ibid [66].
45 Keyu [2016] AC 1355, 1387 [24]–[25] (Lord Neuberger P).
46 Ibid 1410 [135].
47 See, eg, ibid 1410 [136]–[140].
48 Ibid 1446 [279]–[283] (Lord Kerr SCJ) (echoing comments made by Lord Mance SCJ in Kennedy v Charity Commission [2015] AC 455, 509 [54] to the effect that in such non-rights based cases, ‘proportionality review may itself be limited in context to examining whether the exercise of a power involved some manifest error or a clear excess of the bounds of discretion’).
49 Having just assumed the office of President of the Supreme Court, it will be interesting to observe the future trajectory of Baroness Hale P's views on reasonableness review. This is especially since, in R (Lord Carlile of Berriew) v Secretary of State for the Home Department, she differed from Lord Sumption SCJ's use of reasonableness review to assess whether there had been an infringement of Article 10; Lady Hale P would have opted for a more deferential form of proportionality to do justice to the Article 10 right (See, eg, R (Lord Carlile of Berriew ) v Secretary of State for the Home Department [2015] AC 945, [89]).
50 [2015] AC 945 (Lord Sumption SCJ) (‘Carlile’).
51 Keyu [2016] AC 1355, 1454–5 [309]–[311] (Baroness Hale DP).
52 Ibid 1455–6 [312].
53 Ibid 1456 [313].
54 Carlile [2015] AC 945, 961 [10] (Baroness Hale DP). This is curious as the proposed speaker was not a British national: see 989 [85]–[86] (Baroness Hale DP).
55 Lord Neuberger P and Lord Kerr SCJ were not convinced that a more deferential approach was necessary or constitutionally appropriate, where a right was engaged: ibid 982 [57] (Lord Neuberger P), 1003 [137], 1006 [147] (Lord Kerr SCJ). The problematic new final question on ‘fair balance’ introduced in Bank Mellat to the proportionality test was the source of disagreement between the different judges, see, eg, ibid 994 [104]–[108] (Baroness Hale DP), 1008–9 [150]–[154] (Lord Kerr SCJ).
56 Carlile [2015] AC 945, 961–2 [13] (Lord Neuberger P).
57 Ibid.
58 Ibid 964 [20].
59 Ibid 965 [22]. See also Allan, TRS, ‘Deference, Defiance and Doctrine: Defining the Limits of Judicial Review’ (2010) 60 University of Toronto Law Journal 41, 41–59CrossRefGoogle Scholar (who argues that deference based on the identity of the actor versus the nature of the decision or integrity of the primary decision-making process is problematic); Jeffrey Jowell, ‘Judicial Deference: Servility, Civility or Institutional Capacity’ [2003] Public Law 592 (on the need to ground deference on stronger grounds than the credentials per se of the actor). Kavanagh, Cf Aileen, ‘Defending Deference in Public Law and Constitutional Theory’ (2010) 126 Law Quarterly Review 222Google Scholar (on how the question of deference is an important secondary constitutional task for judges in adjudicating any public law case: to determine the boundaries of their own powers in addition to resolving the substantive question before them); Dyzenhaus, David, ‘Dignity in Administrative Law: Judicial Deference in a Culture of Justification’ (2012) 17(1) Review of Constitutional Studies 87Google Scholar.
60 Carlile [2015] AC 945, 965 [22] (Lord Sumption SCJ).
61 Ibid 969 [30], citing Secretary of State for the Home Department v Rehman [2003] 1 AC 153.
62 Ibid 968–70 [29]–[31]. See especially [31]: ‘the obligation of the courts to adjudicate on alleged infringements of Convention rights does mean that the traditional reticence of the courts about examining the basis for executive decisions in certain areas of policy can no longer be justified on constitutional grounds’.
63 Ibid 970 [32].
64 Lord Sumption SCJ's characterisation of the institutional competence and evidential value of the executive's decision as a ‘pragmatic’ judgment versus a constitutional issue relating to the separation of powers is interesting. Arguably, as discussed in Section II(A) above, the question of institutional competence is born out of and informed by the separation of powers. The respect due to the expertise of the executive in a particular specialist area of decision-making is a result of the separation of powers. That is a decision that was delegated to that particular executive to make in light of their expertise in the area. And that allocation or distribution of power should not be displaced easily. Lord Sumption SCJ recognises this, to some extent, in highlighting the democratic values built into the ‘pragmatic’ judgment. See ibid 970 [33].
65 Ibid 969–70 [32]–[33].
66 Ibid 980 [33].
67 Ibid 972–3 [34].
68 The Court of Appeal had in fact confined themselves to the usual grounds of judicial review: illegality, irrationality and procedural unfairness: R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2013] EWCA Civ 199 (20 March 2013) [72], [93] (Arden LJ).
69 See Dore v Barreau du Quebec [2012] 1 SCR 395, discussed in Section V below.
70 [1991] 1 AC 696.
71 [1996] QB 517.
72 Poole, Thomas, ‘Between the Devil and the Deep Blue Sea; Administrative Law in an Age of Rights’ in Pearson, Linda, Harlow, Carol and Taggart, Michael (eds), Administrative Law in a Changing State: Essays in Honour of Mark Aronson (Hart Publishing, 2008) 15Google Scholar; Taggart, Michael, ‘Reinventing Administrative Law’ iN Bamforth, Nicholas and Leyland, Peter (eds) Public law in a Multi-Layered Constitution (Hart Publishing, 2003) 311Google Scholar; Cheryl Saunders, ‘Apples, Oranges and Comparative Administrative Law’ [2006] Acta Juridica 423, 436–7. As suggested by Lord Kerr SCJ in Keyu [2016] AC 1355, 1446 [279]–[283], the constitutional rule of law-type justifications for more involved review of the substantive of a decision using proportionality only bites where there is a fundamental right at stake; concerns also with the loosening the structure of proportionality apparent in the new final stage of Bank Mellat and in the absence of a right where there is nothing for proportionality to hook onto.
73 See, eg, Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 22–3 (on legitimate expectations); Stern, Kristina and Davidson, Joanna, ‘Substantive Fairness: A Case for Reconsidering the Breach between English and Australian Law’ in Groves, Matthew and Weeks, Greg (eds), Legitimate Expectations in the Common Law World (Hart Publishing, 2017) 79Google Scholar; Groves, Matthew, ‘Legitimate Expectations in Australia: Overtaken by Formalism and Pragmatism’ in Legitimate Expectations in the Common Law World (Hart Publishing, 2017) 319Google Scholar; Cf Enfield City Corporation v Development Assessment Commission (2000) 1999 CLR 135, 151–6: the court's more involved review of administrative interpretations of statute.
74 Ridge v Baldwin [1964] AC 40 (in the context of natural justice/procedural fairness). See also Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (in the context of errors of law); Padfield v Minister for Agriculture, Fisheries and Food [1968] AC 997 (on the implications of subjective/discretionary powers in legislation for judicial review). See Poole, above n 72, 15; See also Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 573–4 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (‘Kirk’). The court in Kirk made an attempt at explaining that specific legislative grounds of review are not exhaustive or exclusionary of the common law.
75 Embodying a preference for the ultra vires theory of judicial review: see Forsyth, Christopher, Judicial Review and the Constitution (Hart Publishing, 2000) chs 1, 2, 5Google Scholar; Groves, Matthew and Lee, HP, Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 454CrossRefGoogle Scholar, citing Gageler, Stephen, ‘The Underpinnings of Judicial Review of Administrative Action: Common Law or Constitution?—A Colloquium in Honour of Sir Anthony Mason’ (2000) 28 Federal Law Review 303CrossRefGoogle Scholar; Selway, Bradley, ‘The Principle Behind Common Law Judicial Review of Administrative Action: The Search Continues’ (2002) 30 Federal Law Review 217CrossRefGoogle Scholar; Mason, Keith, ‘What is Wrong with Top-Down Legal Reasoning?’ (2004) 78 Australian Law Journal 574Google Scholar; Aronson, Mark, ‘Is the ADJR Act Hampering the Development of Australian Administrative Law?’ (2005) 12 Australian Journal of Administrative Law 79Google Scholar.
76 (1990) 170 CLR 1, 36 (‘Quin’). See also Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1171 [34], 1172 [37] (McHugh and Gummow JJ); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, 998 [38] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
77 (1990) 170 CLR 1, 36.
78 (2013) 249 CLR 332 (‘Li’).
79 Migration Act 1958 (Cth) ss 360(1), 363(1)(b).
80 (1990) 170 CLR 1, 36.
81 Li (2013) 249 CLR 332, 348 [23] (French CJ).
82 Ibid 348–9 [23]–[25].
83 (2013) 249 CLR 332, 349 [25].
84 Ibid 350 [28].
85 Ibid 363 [67]–[68] (Hayne, Kiefel and Bell JJ).
86 Ibid 344 [14] (French CJ).
87 (2014) 231 FCR 437 (‘Singh’).
88 (2016) 237 FCR 1 (‘Stretton’).
89 The application for a skilled visa had been refused on the ground that the applicant was not able to show that he had ‘competent English’ standards under the relevant regulations.
90 See Li (2013) 249 CLR 332, 344 [14] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88] (Gaegler J); Singh (2014) 231 FCR 437, 445 [43] (Allsop CJ, Robertson and Mortimer JJ); Stretton (2016) 237 FCR 1, 3 [3] (Allsop CJ).
91 Singh (2014) 231 FCR 437, 447 [48] (Allsop CJ, Robertson and Mortimer JJ).
92 See also Aronson, Mark, Groves, Michael and Weeks, Greg, Judicial Review of Administrative Action and Government Liability (Sweet & Maxwell, 6th ed, 2017)Google Scholar ch 3, s 3.4 for a discussion of how this tension manifests more broadly in administrative law in Australia.
93 Singh (2014) 231 FCR 437, 445 [42] (Allsop CJ, Robertson and Mortimer JJ). See also Allsop CJ in Stretton (2016) 237 FCR 1, 3 [2], 5 [10] on avoiding comprehensive or exhaustive definitions of what will count as ‘unreasonable’.
94 Li (2013) 249 CLR 332, 350 [28] (French CJ).
95 Singh (2014) 231 FCR 437, 446–7 [47] (Allsop CJ, Robertson and Mortimer JJ).
96 Ibid 447 [49].
97 Li (2013) 249 CLR 332, 344 [14] (French CJ). The content of these criteria is found not just in the statute but also ‘the common law’; see also ibid 448 [50].
98 Li (2013) 249 CLR 332, 344 [14] (French CJ).
99 Stretton (2016) 237 FCR 1, 4 [7] (Allsop CJ).
100 Ibid 4 [9].
101 Singh (2014) 231 FCR 437, 450 [66] (Allsop CJ, Robertson and Mortimer JJ).
102 Ibid 449 [65], 451 [75].
103 Ibid 451 [77].
104 Stretton (2016) 237 FCR 1, 18 [57] (Griffiths J).
105 Li (2013) 249 CLR 332, 352 (French CJ), 366 (Hayne, Kiefel and Bell JJ).
106 The two state level human rights instruments—Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic)—do not implement review of the compatibility of legislation or any proportionality style review: Momcilovic v The Queen (2011) 245 CLR 1.
107 McCloy v New South Wales (2015) 257 CLR 178. Using an existing constitutional test for assessing the constitutionality of legislation—whether it was ‘reasonably appropriate and adapted’ to its purpose: Hooper, Grant, ‘Judicial Review and Proportionality: Making a Far-Reaching Difference to Administrative Law in Australia or a Misplaced and Injudicious Search for Administrative Justice?’ (2017) 88 Australian Institute of Administrative Law Forum 29Google Scholar; Weeks, Greg, Soft Law and Public Authorities: Remedies and Reform (Hart Publishing, 2016) 148–55Google Scholar.
108 See Boughey, Janina, ‘The Reasonableness of Proportionality in the Australian Administrative Law Context’ (2015) 43 Federal Law Review 59CrossRefGoogle Scholar on the difficulties with accommodating proportionality within the approach to judicial review in Australia.
109 The position on procedural fairness is more settled: see generally Harten, Gus Van et al, Administrative Law: Cases, Texts and Materials (Emond Publishing, 7th ed, 2015) pt IIGoogle Scholar.
110 [2008] 1 SCR 190 (‘Dunsmuir’). See also Canada (Citizenship and Immigration) v Khosa [2009] 1 SCR 339, 373–6 [50]–[54] (Binnie J).
111 Dunsmuir [2008] 1 SCR 190, 220–1 [47]–[48], 222 [50] (Bastarache and Lebel JJ).
112 Ibid 220 [47].
113 See Sossin, Lorne and Flood, Colleen M, ‘The Contextual Turn: Iacobucci's Legacy and the Standard of Review in Administrative Law’ (2007) 57 University of Toronto Law Journal 581CrossRefGoogle Scholar.
114 Dunsmuir [2008] 1 SCR 190, 220 [47] (Bastarache and Lebel JJ).
115 Ibid 226–7 [62]–[64].
116 Ibid 222 [51].
117 Later defined by some judges as questions which have ‘significance outside the operation of the statutory scheme under consideration’: Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association [2011] 3 SCR 654, 697 [84] (Binnie J).
118 Dunsmuir [2008] 1 SCR 190, 222 [50], 225 [58]–[61] (Bastarache and Lebel JJ).
119 Ibid 223 [52].
120 Ibid 221 [48]–[49]. The court here proposed the use of deference as a requirement of the law of judicial review in Canada. Deference was defined not as ‘subservience’ but ‘respect’ for the reasons and views of the decision-maker which are given ‘due consideration’.
121 Ibid 223–4 [54]–[55].
122 Ibid 211 [27].
123 Ibid 222–5 [50]–[59]. See also Mullan, David, ‘Unresolved Issues on Standard of Review in Canadian Judicial Review of Administrative Action: The Top Fifteen!’ (2013) 42 Advocates’ Quarterly 1Google Scholar; Daly, Paul, ‘Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness’ (2016) 62 McGill Law Journal 527CrossRefGoogle Scholar; Daly, Paul, ‘The Unfortunate Triumph of Form over Substance in Canadian Administrative Law’ (2012) 50 Osgood Hall Law Journal 317CrossRefGoogle Scholar; Heckman, Gerald P, ‘Substantive Review in Appellate Courts since Dunsmuir’ (2009) 47 Osgoode Hall Law Journal 751CrossRefGoogle Scholar. See also Van Harten et al, above n 109, 631, which refers to the post-Dunsmuir approach as ‘pragmatic and functional’ (reinforced by Binnie J's comments in his concurring judgment in Dunsmuir at [154]).
124 On which, see Paul Daly, ‘Dunsmuir's Flaws Exposed: Recent Decisions on Standard of Review’ (2012) 58 McGill Law Journal 483 and Van Harten, above n 109, 631. See also Tervita Corp v Canada (Commissioner of Competition [2015] 1 SCR 161, which appeared to depart from the approach of a previous category of cases where the deferential reasonableness v correctness standard has applied to review. See also Kanthasamy v Canada (Citizenship & Immigration) [2015] 3 SCR 909; Mouvement laique quebecois v Saguenay (City of) [2015] 2 SCR 3; Canadian Broadcasting Co v SODRAC 2003 Inc [2015] 3 SCR 615; Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada [2012] 2 SCR 283. These cases show that the Supreme Court is willing to revisit ‘settled categorical’ decisions on the applicable standard of review in certain cases, in favour of the more involved correctness standard through a reconsideration of the context of the case and what standard of review was indicated by the varying contextual factors (for example, the importance of the legal question at stake displaced possible interpretations of legislative intent that would have indicated a more deferential reasonableness standard).
125 Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association [2011] 3 SCR 654; Mouvement laique quebecois v Saguenay (City of) [2015] 2 SCR 3; Canadian Broadcasting Co v SODRAC 2003 Inc [2015] 3 SCR 615 (see especially Rothstein J at 644 [50]).
126 See Abella J in Tervita Corp v Canada [2015] 1 SCR 161, 231–2 [170]–[171]; Mouvement laique quebecois v Saguenay (City of) [2015] 2 SCR 3, 77 [173] and Canadian Broadcasting Corp v SODRAC 2003 Inc [2015] 3 SCR 615 (against too much judicial creativity in deciding the threshold question of what should be the applicable standard of review in a way that departs from prior decisions made on the issue in similar cases).
127 Daly, ‘Dunsmuir's Flaws Exposed: Recent Decisions on Standard of Review’, above n 124, 540.
128 Daly, ‘The Unfortunate Triumph of Form over Substance’, above n 123, commenting on Commission scolaire de Laval v Syndicat de l’enseignement de la region de Laval [2016] 1 SCR 29.
129 Daly, ‘Struggling Towards Coherence’, above n 123, 540, 549–50.
130 Relying on Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association [2011] 3 SCR 654; Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission) [2010] 1 SCR 364 (both of which involved judicial pushback against the ‘true’ jurisdictional question category of cases); Dore v Barreau du Quebec [2012] 1 SCR 395 (which appeared to reverse the default correctness review for constitutional questions and instead used a reasonableness standard); Nor-Man Regional Health Authority v Manitoba Association of Health Care Professionals [2011] 3 SCR 616.
131 Matthew Lewans, ‘Deference and Reasonableness Since Dunsmuir’ (2012) 38(1) Queen's Law Journal 59, 63–4 as foreshadowed in Binnie J's concurring judgment in Dunsmuir, where it was suggested that there should be a general presumption in favour of reasonableness review as the applicable standard of review—see Dunsmuir [2008] 1 SCR 190, 259–60 [146] (Binne J). See also Boughey, Janina, Human Rights and Judicial Review in Australia and Canada: The Newest Despotism? (Hart Publishing, 2017) ch 5Google Scholar. However, Daly expresses concern over presumptive starting points: Daly, ‘Struggling Towards Coherence’, above n 123, 538 in terms of the workability and clarity on how the presumptions arise and are rebutted.
132 Daly, ‘Struggling Towards Coherence’, above n 123, 544 (emphasis added), relying on Tervita Corp v Canada (Commissioner of Competition [2015] 1 SCR 161, which appeared to depart from the approach of a previous category of cases’ to appeal provisions in legislation where the deferential reasonableness v correctness standard has applied to review. See also Mouvement laique quebecois v Saguenay (City of) [2015] 2 SCR 3, where the Court demonstrated a willingness to ‘segment’ different parts of a decision and apply the two standards of review differentially versus taking a holistic view of a decision and a singular standard of review.
133 Dore v Barreau du Quebec [2012] 1 SCR 395.
134 [2011] 3 SCR 471.