The Growth of Substantive Review
37 Pages Posted: 9 Oct 2014
Date Written: October 9, 2014
Abstract
Until relatively recently, Australia's common law grounds for judicial review of administrative were fairly stable, and at least in appearance, were mostly procedural. The High Court used to say that Wednesbury unreasonableness was Australia's only truly substantive review ground, and Wednesbury's bar was set very high. That stability is eroding. The generic grounds are no longer fixed; new grounds have appeared; the bar for review for unreasonableness is not always set impossibly high; and substantive grounds are beginning to appear. In particular, the Federal Court now recognises review for at least some material errors of fact beyond the constrictions of the old grounds. This paper examines the expansion of substantive review, its possible causes, its relationship to a changing sense of judicial review's "mission", and its possible consequences.
Keywords: administrative law, judicial review, substantive review, material errors of fact
JEL Classification: K00, K23, K19, K30, K39
Suggested Citation: Suggested Citation