Proportionality, Rationality and Review
New Zealand Law Review, p. 265, 2010
38 Pages Posted: 8 Feb 2011
Date Written: 2010
There is a debate in certain common law jurisdictions as to whether proportionality should be accepted as a general criterion for judicial review in administrative law. This article responds to Mike Taggart’s bifurcation thesis and his argument that proportionality should be reserved for rights-based cases, with low intensity rationality review being used for other types of case. I argue to the contrary that proportionality should be a general principle of judicial review that can be used both in cases concerned with rights and in non-rights based cases, albeit with varying intensity of review. The article begins by addressing the advantages of proportionality as a head of review. The argument then shifts to consideration of Mike Taggart’s preferred position of proportionality for rights-based cases combined with low intensity review for other administrative law challenges. It is argued that this position does not cohere with positive law, and that it is not desirable in normative terms. The remainder of the article is premised on the assumption that rationality is accorded a broader meaning. I address various objections to proportionality becoming a general head of review, and contend that these arguments are mistaken or misplaced.
Keywords: proportionality, review, rationality, rights
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