Dunsmuir’s Influence in Australia (Janina Boughey)

Janina Boughey is a Senior Lecturer at the University of New South Wales Faculty of Law

The most significant aspect of Dunsmuir is, of course, the majority’s recalibration of the methodology Canadian courts use to afford deference to administrative bodies. It is therefore thoroughly unsurprising that initially Dunsmuir attracted little attention in Australia. The High Court of Australia firmly rejected Chevron deference in 2000, and this has subsequently been interpreted as a repudiation of deference in any and all forms in Australian administrative law.

In the first five years after Dunsmuir was decided, Australian courts referred to the decision on only a handful of occasions, and each of those references was to point out contrasts between the Australian and Canadian positions on reasonableness review and deference (see SZOOR [8]-[9]; SZMDS [28]; Mastwyk [18]; Sanding [229]-[230]).

However, the stark contrast between Canadian and Australian courts with respect to the doctrine of deference disguises some deeper similarities between the two jurisdictions. Despite Bastarache and LeBel JJ’s description of the distinction between jurisdictional and non-jurisdictional errors (and the courts approach to determining which category a given error fell into) as ‘formalistic’ and ‘artificial’ (at [43]), the way this distinction has developed in Australian law in recent decades in fact shares much in common with the standard of review analysis described in Dunsmuir. For starters, the two are ultimately designed to answer the same question: did Parliament intend for the question at the heart of the dispute to be within the authority of the administrative body, or not (see Dr Crawford and my chapter in this forthcoming book). In answering this question, both examine similar (though not always identical) factors, including the language, context and purposes of the statute, the nature of the power being exercised, the identity of the decision-maker and the nature of the statutory scheme that empowers them, and the consequences of the alleged breach. The central difference is that, in Australia, these factors are explicitly linked to Parliament’s intention (noting that Australian courts now consider ‘intention’ to be a metaphor for the meaning produced by the application of the principles of statutory construction), while in Canada there is not a direct connection with statutory interpretation or legislative intention.

In Australia, the full suite of judicial review remedies is available only with respect to jurisdictional errors and, as in Canada, the constitutionally entrenched jurisdiction of superior courts is defined by this concept. Various ‘standards’ of review apply in Australia to the errors which may constitute jurisdictional errors—though they are generally not referred to as ‘standards’ and are not open to judicial selection. Instead they are inbuilt into the tests for unlawfulness and depend on the error alleged. Questions of statutory interpretation attract no deference (a significant difference from Canada in theory—though some have questioned whether, in practice, Canadian courts still, in fact, defer to administrators’ interpretations of law). Questions of fact attract a great deal of deference; unless the fact is classified as jurisdictional. The assessment of merits, including balancing competing relevant matters, has traditionally attracted considerable deference. Until recently a decision was invalid only if it failed the Wednesbury test (which, as far as I can tell, is indistinguishable from ‘patent unreasonableness’). In 2013, however, the High Court of Australia modified the test for unreasonableness, appearing to bring it closer to that articulated in Dunsmuir.

In the case in which this change to the unreasonableness test occurred—Minister for Immigration and Citizenship v Li—Gageler J quoted from Dunsmuir when he explained at [105]:

Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

This constitutes a shift in focus from the traditional, Wednesbury test for unreasonableness, or at least a shift in the way in which that test has been applied in recent decades in Australia. The Dunsmuir formulation is more overtly concerned with the logic and intelligibility of the justifications provided by decision-makers, including the weight the decision-maker has given to competing factors, than the Wednesbury formulation was. However, it is not yet clear how widespread, or how significant the practical impact of this change will be. While the plurality judgment of Hayne, Kiefel and Bell JJ in Li did not mention Dunsmuir, it endorsed a similar move towards a reasonableness test concerned with ‘intelligible justification’ (at [76]).  Gageler J’s reference to Dunsmuir has subsequently been cited in more than 45 cases—mainly in the immigration context, but occasionally also in other contexts where reasonableness is being considered.

Interestingly, while Dunsmuir was largely concerned with judicial deference to the executive, it seems to have been relied on in Australia to affect the reverse: to expand judicial oversight of executive discretion. Although, as Dyzenhaus has argued, a justification-based approach to reasonableness is not necessarily more intrusive than the traditional Wednesbury approach, the effect of Li seems to have been to increase judicial scrutiny of administrative decisions in at least some cases. For instance in Li itself, the error that the High Court identified was that the Tribunal had given ‘too much weight’ to the fact that the applicant had had several opportunities to present evidence, and ‘insufficient weight to her need to present further evidence’ (at [85]). This clearly represents a stricter form of scrutiny than what the traditional grounds of review would have allowed. The new approach to reasonableness has been labelled ‘legal unreasonableness’ to emphasise the point made in Li, that what is reasonable in any case will depend on the statutory and factual context. This raises similar questions to those asked by Binnie J in Dunsmuir and  Alberta Teachers, Abella J in Wilson, and by several commentators, as to whether reasonableness is a variable standard capable of accommodating a range of degrees of deference.

I remain unconvinced that these recent developments in Australian law are a good thing. I wonder whether it is possible or wise to adopt only parts of the Dunsmuir approach while retaining most other aspects of the traditional judicial review framework. I wonder also whether Dunsmuir did in fact simplify the Canadian approach to reasonableness, or whether it simply created a new set of issues to solve. Nevertheless, in my view there are other aspects of Australian administrative law that could benefit from an approach to review similar to that articulated in Dunsmuir. Specifically, there are two contexts in which Australian courts currently show no deference to administrative decision-makers irrespective of the statutory context and administrative body’s expertise, where I think they should. Those are: jurisdictional fact-finding; and the balancing of rights against public interests in jurisdictions with human rights statutes. Both are classified as questions of law (the former as one of jurisdiction), and hence are matters for a reviewing court to resolve on a ‘correctness’ basis under Australia’s judicial review framework. In both contexts courts have repeatedly said that it may be appropriate to give ‘weight’ to the reasons of expert administrative bodies in certain circumstances (see, eg, here at [47] and here at [216]). However, in practice, no such weight tends to be given (see, eg, Malaysia Declaration Case and Certain Children (No 2)). For the reasons articulated by the majority in Dunsmuir, I think reviewing courts should approach both jurisdictional fact-finding and the balancing of rights against public interests using a contextual reasonableness test.

This content has been updated on February 21, 2018 at 22:29.