Law Essay

administrative Action Are objects of legal refreshen so poorly be that they enable the court of justices to break and call for the vitrines in which they give grant discriminative check up on? Should that be the trip? Introduction all-important(a) Grounds of Re tantrum Un reason Un honestness as a rationality of examine is difficult to define with all pellucidness or certainty and as a direst answer has often been branded as a chore ridden aspect of administrative law.The concept of Wednesday unreasonableness, formulated in the sheath of Associated Provincial Picture Houses v. Wednesbury Corporation 1948 and impartd developed in Council of Civil Service Unions v. minister of religion for the Civil Service 1985 per passe-partout Diplock was that courts would intervene to line up an administrative operation found on the maroon of reasonableness unaccompanied if it was so outrageous in its defiance of logic or accepted clean-living measurings that no sens ible someone who had applied his header to the question to be resolute could curb arrived at it. Indeterminacy as to the description of Unreasonableness Poorly delineate worldly concerns of brush up? The concept of unreasonableness as propagated by Lord Greene and simulateed by Australian courts is inherently equivocal. Whether a particular end is reasonable or non is often nonhing more than a question of floor and opinion by the courts. This creates an nominate sense of arbitrariness which and then calls into question the trunk and attendantly dominance of much(prenominal)(prenominal) a desktop of canvas as illustrated by case law.The effectiveness of unreasonableness as a ground of check into was blatantly called into question in the case of Chan v see for Immigration and Ethnic in-person business where the spunky progress and the federal official Court differed in opinion as to what constituted unreasonableness which was manifestly unfair. This app arnt unfitness of the courts to carry out a consensus on what exactly constitutes the required degree of unreasonableness in order to allow a verso of the dis siced administrative determination calls into question the accord with which it apprize be applied by courts.Although subsequent cases (Prasad v Minister for Immigration and Ethnic personal business/ Luu v Renevier/ Minister for Ab cowcatcher personal business v Peko-Wallsend) seemed to prefer an expansive interpretation of unreasonableness, in uncomplete of these cases can it be said that the delegates conclusiveness re toasted or sothing that was manifestly unfair or overwhelming as required by Lord Greenes original version. Conversely, it can be order outd that the Federal Court manifestly check intoed the merits of the case and substituted its ending for that of the original one.In these cases although it was difficult to reach the cobblers last that the decision was so unreasonable that no reasonable pers on would ca-ca come to them, that is exactly what the courts did. This further prompts arguments that the ground of unreasonableness is so poorly defined that courts can pick and choose the cases in which they grant juridical re trip up. The wider the interpretation of unreasonableness greater the chance that courts ar in essence effrontery greater opportunity to conduct a merits based review with the effect being that juridic review becomes less effective as it fall backs the element of consistency.In firing of this realization, this ground has recently come under snug scrutiny by both the judiciary and the legislature. Where unreasonableness does come through as a ground of review, both the High Court and the Federal Court afford held unambiguously that it essential be unyieldingly construed and that the courts moldiness intermit from using unreasonableness as a guise to get a line an appeal and so engage in merits review of a case.In the cases of Minister of immigr ation and Ethnic personal business v Eshetu and Minister for Immigration and Multicultural Affairs v Betkhoshabeh, the Court established strict constraints for unreasonableness, press that it is scarcely to be utilise in the well-nigh extreme of cases and that the review should only if extend to the equity of the decision. These cases clearly mark a turnaround from the precedent approach in Prasad. In essence his ground of review has been narrowed so that it is to be used only where at that place is unreasonableness in the very strict sense of the word such that courts can only intervene where only one possible conclusion could have been reached by the decision maker nevertheless was not so reached. in that locationfore precisely delimit this ground of review is impossible cod to conflicting trains to reign in unreasonableness as a ground of review as opposed to restrict its scope to a fault.Proponents of the restrictive approach advocated in Eshetu would argue that a wider interpretation and application of unreasonableness may eventuate in discriminative review extending to the merits of a case and possibly usurping the administrative cognitive cultivate. However to restrict unreasonableness as a ground of review to that outcome runs the risk of marginalizing this ground to the effect of making it redundant. This then gives abide to the speculation that occasions where discriminative review was warranted payable to the oppressive nature of administrative decisions would go unchecked.There must be a ground of review that can capture decisions such as that in Chan that would other escape scrutiny. Moreover the arguments for and against a restrictive approach to interpreting unreasonableness do not of themselves remove other elements of unreasonableness as a ground of review that ar poorly defined. The fates for something overwhelming or for the evidence to shop only one possible conclusion are no more determinate than those of the concept of reasonableness itself.There still pull throughs the need for courts to engage in an evaluative, shelter laden inquiry as to the reasonableness (or the extent thereof) of a decision and this necessarily involves delving into the merits of a decision rather than its rectitude. The test of whether a decision is reasonable then hinges upon whether the evidence has been considered with propriety and reasonably and it is precisely this which makes the test one of poor definition.In determining whether the getable evidence was reasonably interpreted, even considering the more recent restrictive approach propagated by courts, the courts are fundamentally disagreeing with the decision under review on an indeterminate ground. The danger of illegitimate judicial incursion into the merits of the decision remains present despite its strict expression. Violating the distinction between merits and judicial review Poorly defined intellect of review?Although courts can justify jud icial review on the basis of Wednesbury unreasonableness, this justification is bound in that the courts cannot intervene simply because they do not agree with the administrative decision or view the facts oppositely. The distinction between judicial and merits review requires that courts only concern themselves with the question of whether the decision maker had acted inside the confines of his power subject to the issues of relevancy, proprietary of endeavor and unreasonableness.In no way must they concern themselves with the appropriateness of nor the policy considerations behind the decision in a bid to influence or criticize the policy. To do so would amount to a merits review and this would be contrary to the rule that the final authority on the merits of a decision should be the body vested with the arbitrary power to do so by sevens.The speculation behind this is that although Courts have the constitutional authority to review decisions of the other fortifys of gover nment, there is an ever present danger that they force extrapolate this duty excessively and effectively exercise the power vested by Parliament in the primary decision maker, hence modify their decision for that of the intended decision maker. This would amount to a radical breach of the doctrine of Separation of Powers due to the courts exercise of a surrogate political process in direct and conflictual contravention of the notion of parliamentary sovereignty.The amount effect would be a crumble of our established system of parliamentary democracy as the courts are neither democratically elected nor politically accountable. The credibility and legitimacy of both the judiciary (and judicial review) and the Constitutional guarantee against excesses by any arm of the Government would be impaired should such a development occur. However the riddles surface when there is feat to apply the theory to normal. Judicial review, despite the grounds on which it is justified, ecessarily involves a process that is evaluative, with emphasis on examining the merits of a decision. When this is compounded by the fact that a conferral of discretionary powers are done so in language that often lacks clarity and is easy-ended, it is not too remote to state that courts, in their flack to evaluate the reasonableness of a decision, will have to embark upon the path of a value-laden judgment close whether there was a breach of the confines of the discretionary power.This inherent problem within grounds of review is particularly exacerbated in the case of Wednesbury unreasonableness because, although the enacting statue would include the requirement of reasonableness, it will inconveniently leave out the definition of reasonableness, hence creating more room for an evaluative process by the courts. This then amounts to a process of raggedness a contested decision against an ideal standard of reasonableness, a standard which has to be construed by the courts.It is then no surprise that the prove is often an swarthy and loose standard which tends to veer towards the substantive elements of a decision rather than the procedural elements. The fundamental problem of Wednesbury unreasonableness as a ground of judicial review is that the trigger for raising this ground is the dis telled tincture of the administrative decision. Hence what this amounts to is an intervention by the courts in lieu of the merits of the decision, hence blurring the distinction between legality and merit.When courts attempt to evaluate the legality of administrative action on the murky grounds of unreasonableness, they risk justifying a merits review as judicial review and hence risk an intervention based on their construction of unreasonableness and not based on the legality of the decision in question. Procedural Grounds of review crook Bias is a failure to have an extend mind on the issues. Actual twist, a unsympathetic mind, may lead to other reviewable errors but exis ts as a separate ground of review.Bias as a ground of review also looks at the perceptions and a decision may be set aside for a perception of parti pris, whether there was any or not. The test is whether a fair minded define observer would perceive a possibility of diagonal. This muckle of the essay deals with assesss continuing to act in a decision making process when they have an kindle in the outcome of the case. A judge with a financial evoke in a decision is not automatically barred from hearing the case and is only barred if the use up was such as to create a perception of bias Ebner v Official trustee in unsuccessful person (2000)The distinction between actual bias and an apprehension of bias is that for the latter there needs to be no issue of whether the judicial police incumbent energy or did in fact bring an dispassionate mind to the resolution of that case. All that is required is that he might or might have brought an dispassionate mind to the resoluti on of the case. The High re-defined the apprehension of bias commandment in Ebner v Official Trustee in Bankruptcy (2000) such that the governing principle now is that a judge is disqualified if a fair minded lay observer might reasonably delve that the judge might not bring an impartial mind to resolving the case at hand.The principle may also need to be modified in the case of some administrative decision makers, to recognize and accommodate the different legal framework within which administrative decisions are made. Indeed, in Minister for Immigration and Multicultural Affairs v Jia, the High Court made it clear that the application of the Ebner principles will depend on the chance of the case at hand. Judicial officers, by justice of their national duty do not lose their rights as citizens to engage in a nonpublic life and participate in all that a private life necessarily entails.Therefore to assert that there will be conflicts of relate between the public duty and priv ate life of judicial officers seems to be an otiose argument. Any argument that this conflict of interest could result in bias, hence forming a ground for review must then be contemplated with skepticism. intimacy The prominence of financial diversity, prevalent interest in shareholding, necessity of investing in superannuation and its related equity funds all result in a significant number of judicial officers, standardized their counterparts in other professions to have an interest in publicly listed companies.These publicly listed companies are not only the dominant incumbents of their industries but also, as a result of their expansive service production, likely to be gnarly in litigation periodically. Therefore there is dominance scope for litigants to argue that there should be judicial review of a decision made on the basis of an apprehension of bias because of the pecuniary interest of the judge in the case. However, the resolution of virtually cases involving larger c ompanies is unlikely to be significant in affecting the value of a shareholding.Hence shareholdings in large companies will not be disqualifying factors in most proceedings. The proportion of the shares held to the value of the company as an aggregate is likely to be insignificant such as to warrant an intervention on this account. Association There is no clear touchstone that can provide an easy mode of separateing what might be a disqualifying association and this could provoke arguments that this ground of review is poorly defined and arbitrary. Obviously a judicial officer cannot preside in a case in which he or she is a caller or in which a close congenator is caller.On the other hand, the judicial and planning appeal systems would be unworkable if a member was disqualified simply because they knew a party, let alone a substitute of a party. The High Court has stated that a reasonable apprehension of bias may exist where the presiding judge has a literal personal famil y with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person. However what constitutes a substantial personal relationship may, in practice, be elusive.Much depends on the nature, age and closeness of the relationship. The High Court decision in Bienstein v Bienstein, which established the general principle that a judge is not disqualified from hearing a matter simply because, when a barrister, he or she has appeared for a party in the past. The recent decision of the House of Lords in Gillies v Secretary of order for Work and Pensions is illustrative that, in the case of an unspoilt tribunal or court, a relationship with the billet whose decision was under review might not be a disqualifying factor.The House of Lords considered that a fair minded observer, who had considered the facts properly, would appreciate that professional detachment and the ability to exercise an independent judgment l ay at the heart of such decisions. No-one is immune from a complaint of apprehended bias. Judges cannot be judge to be value-free. Conduct Sometimes the conduct of a judicial officer may be such that a reasonable person may apprehend that the matter might not be decided impartially.But this does not mean that a judicial officer cannot have an opinion some the general dependability of a witness who regularly appears before a court or tribunal provided that the officer is open to persuasion and does not make comment indicating prejudgment. It must be stressed that the expression of tentative views, intentional to elicit relevant submissions, does not constitute bias nor create a reasonable apprehension of bias. Indeed, this practice actually enhances procedural fairness by wakefulness the parties to the thoughts of the tribunal and providing them with an opportunity to persuade the tribunal to adopt a different course.Demands to disclose interests or associations When should a ju dicial officer respond to questions about their interests or associations? There are different schools of thought as to the appropriate practice to adopt when a judicial officer is asked about his or her interests or associations. My view is that, within reason, it is better to answer specific questions in relation to factual matters in order to put minds at rest or, if minds are not put to rest, to require the parties to confront the potentially disqualifying interest or association and identify the logical data link this may have with a partial adjudication.However a judicial officer should not feel compelled to identify and disclose all possible interests and associations, direct and indirect, whether or not relevant to the case at hand. And there is certainly no obligation to answer questions about opinions, values or attitudes. Effect of non- apocalypse of non-disqualifying interest What happens if a judicial officer does not disclose an interest or association which might hav e been discover as a matter of prudence (on the asis that it was potentially disqualifying), but, when revealed, was not ultimately found to be a disqualifying interest or association? In Ebner, the majority of the High Court thought it undeniable to distinguish between considerations of prudence and requirements of law. The court considered that, as a matter of prudence and professional practice, judicial officers should disclose interests and associations if there is a serious possibility that they are potentially disqualifying.But it thought it was neither serviceable nor necessary to describe this practice in cost of rights or duties. Thus if a judicial officer does not disclose a non-disqualifying interest or association, his or her silence cannot reasonably support an evidence of want of impartiality. Conclusion The High Court has emphasise that judicial officers should not be too vigorous to disqualify themselves when confronted with an insubstantial objection, lest th at this will lead to gathering shopping.But the same does not go to disclosure of potentially disqualifying interests or associations. Quite apart from any moral responsibility, recent decisions have shown the practical virtues of disclosure in circumstances of any doubt. But in determining any objection a court or tribunal should apply a method that requires there to be some logical partnership between the alleged disqualifying matter and an inability to impartially determine the proceeding.