Judicial Review and Proportionality: Making a Far-Reaching Difference to Administrative Law in Australia or a Misplaced and Injudicious Search for Administrative Justice?

Australian Institute of Administrative Law (AIAL) Forum, Vol. 88, pp.29-47, 2017

Sydney Law School Research Paper No. 17/61

26 Pages Posted: 27 Jul 2017  

Grant Robert Hooper

The University of Sydney Law School

Date Written: July 25, 2017

Abstract

Until the High Court’s 2013 decision of Minister for Immigration and Citizenship v Li (“Li”), it was generally accepted that proportionality had no role to play in judicial review of administrative (executive) decision-making. This was despite its international popularity, ability to promote human rights and use in similar common law jurisdictions.

After Li it seemed that proportionality was to have a role, although what role was and is still unclear. If the role is to be akin to a true structured proportionality analysis, then the High Court has added to its judicial review arsenal one of the most potent weapons available to address administrative injustice. However, it is a weapon that may come with a high price as it imposes substantial obligations on the user and may change how administrative law is viewed in Australia.

This paper first provides an overview of the High Court’s use of the term proportionality and then offers a general definition based on its use at an international level. Second, this paper looks at the European origins of proportionality to show that while it initially applied to what we now know as administrative decisions,it was used in a constitutional setting very different from that of Australia. Third, this paper will explore a number of obstacles to the introduction of proportionality in Australia, in particular: the judiciary’s reluctance to play more than an indirect role in facilitating good administration; Lord Denning’s introduction into the English common law of legitimate expectations and why it was ultimately of little significance in Australia; and the difficulties faced by England in implementing the proportionality test in a common law system. Finally, this paper will revisit the decision of Li and suggest that the reasonableness test in Australia can benefit from incorporating what can only be very loosely referred to as a proportionality test. It is a test that is much simpler and far more constrained than the more common “structured” proportionality test.

Keywords: Proportionality, judicial review, comparative, administrative justice, human rights

JEL Classification: K10, K30

Suggested Citation

Hooper, Grant Robert, Judicial Review and Proportionality: Making a Far-Reaching Difference to Administrative Law in Australia or a Misplaced and Injudicious Search for Administrative Justice? (July 25, 2017). Australian Institute of Administrative Law (AIAL) Forum, Vol. 88, pp.29-47, 2017; Sydney Law School Research Paper No. 17/61. Available at SSRN: https://ssrn.com/abstract=3008447

Grant Robert Hooper (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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