The Growth of Substantive Review

37 Pages Posted: 9 Oct 2014

See all articles by Mark Aronson

Mark Aronson

University of New South Wales (UNSW)

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

Aronson, Mark I., The Growth of Substantive Review (October 9, 2014). Available at SSRN: https://ssrn.com/abstract=2507613 or http://dx.doi.org/10.2139/ssrn.2507613

Mark I. Aronson (Contact Author)

University of New South Wales (UNSW) ( email )

Kensington
High St
Sydney, NSW 2052
Australia

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