The Appellate Standard of Review in Public Law Cases
 Public Law (Forthcoming)
20 Pages Posted: 29 Oct 2020
Date Written: September 10, 2020
The goal of this paper is to conduct a comparative discussion of the issue of the appellate standard of review in public law cases. On this issue, two common law apex courts have recently divided: the United Kingdom Supreme Court taking one view, the High Court of Australia a very different view. In England and Wales, the Supreme Court has limited the role appellate courts can play in assessing the proportionality of administrative decisions, thereby placing a significant degree of authority in the hands of first-instance courts. By contrast, the High Court of Australia has insisted that the question of whether an administrative decision-maker acted lawfully is one of law, even where the answer to legal question at issue depends (as is often the case in contemporary public law matters) on an appreciation of contextual factors; accordingly, an appellate court can substitute its judgment for that of a first-instance court if it disagrees with the first-instance court’s conclusion.
In this paper, I will begin by laying out the competing approaches taken by the UK Supreme Court and the High Court of Australia. I will then discuss the divergence between these two common law apex courts. Three issues are relevant in explaining the divergence between these two apex courts: whether clear lines of demarcation can be maintained between questions of “law” on the one hand and questions of “discretion” on the other; whether the goal of proportionate dispute resolution should influence the rules relating to appellate standard of review; and, finally whether a legal system’s culture is relatively legalistic or relatively contextual. In summary, in England and Wales, judicial and academic scepticism of the distinction between “law” and “discretion” (consistent with a general preference for contextual rather than legalistic approaches to legal issues) has allowed proportionate dispute resolution to exercise significant influence over the appellate standard of review. This was previously the case in private law and has now come to be the case in public law too. In Australia, however, judicial adherence to the “law”/“discretion” distinction (consistent with the legalistic approach celebrated by many Australian jurists) means that proportionate dispute resolution is less prominent in determining the appellate standard of review.
After my analysis of the reasons for the divergence between the UK Supreme Court and the High Court of Australia, I will also discuss the approach taken by the Supreme Court of Canada. Although the Canadian approach to the appellate standard of review is the same as the Australian, the current approach has been criticised. Moreover, the orientation of the Canadian legal system on the three issues which explain differing approaches to the appellate standard of review more resembles the English than the Australian. Accordingly, this is an area of Canadian law which seems ripe for judicial reform.
Having discussed the divergent approaches in Australia and in England and Wales, analysed the reasons for the divergence and noted the Canadian position, I conclude with a critical assessment of the English position. While the new approach of the UK Supreme Court is unsurprising, as a descriptive matter, it remains to consider whether it is defensible in normative terms. On this, I am sceptical. There are, I suggest, good arguments for the Australian position in public law cases.
Keywords: judicial review, appeals, standard of review, appellate standard of review, legal culture, comparative law
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