The Reasonableness of Proportionality in the Australian Administrative Law Context

DOI10.22145/flr.43.1.3
AuthorJanina Boughey
Publication Date01 March 2015
SubjectArticle
THE REASONABLENESS OF PROPORTIONALITY IN THE
AUSTRALIAN ADMINISTRATIVE LAW CONTEXT
Janina Boughey*
ABSTRACT
Although the High Court h as never ruled on the issue, the prevailing view has been that
unless parliaments enact bills of rig hts, the principle of proportionalit y does not and
cannot play a role in judicial review of administrative decisions in Australia. Yet in
Minister for Immigration and Cit izenship v Li, a majority of the High Court hinted that this
may not be the case. This article a nalyses the reasons for Australia's l ongstanding
reluctance to embrace proportionality in the administrative law context, and whether
the decision in Li has altered this position. It then explores overseas developments in
proportionality review w hich reveal that the princip le may take on many forms in the
administrative law context, with differing implications for the separation of powers. The
article finds that it might be possible to accommodate certain methods of applying
proportionality within Austr alia's judicial review framework, but not witho ut
significant broader changes to judic ial review of administrative action in Australia.
I INTRODUCTION
Seven years ago Professor Taggart noted that Australia n administrative law was once
again becoming an 'outlier' in the common law world, this time wi th respect to our
failure to embrace the principle of proportionality. 1 The dominant view in Australia is
that proportionality is not, and perhaps cannot be, a ground or standard on which courts
can review discretionary administrative decisions at common law. 2 While
proportionality has spread gradually throughout the re st of the common law world,
Australian courts have hardly enga ged with the concept at all in t he context of review
* Lecturer, Faculty of Law, Monash University. This article is based on a paper presented at
the 2013 AIAL conference in Canberra. My thanks to Mark Aronson, Matthew Groves, Lorne
Sossin, Oscar Roos and the anonymous reviewer for helpful discussions and feedback. All
errors are mine alone.
1 Michael Taggart, 'Proportionality, Deference, Wednesbury' [2008] New Zealand Law Review
423, 4245.
2 This article is focused solely on individual, discretionary administrative decisions, and does
not consider proportionality review in the context of either primary or subordinate
legislation. For a recent discussion of proportionality as a limit on legislative powers in
Australia see Justice Susan Kiefel, 'Proportionality: A Rule of Reason' (2012) 23 Public Law
Review 85.
60 Federal Law Review Volume 43
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of administrative action. Instead, Australian courts have adamantly adhered to the
'classic', 3 Diceyan model of judicial review which only allows cour ts to review the
substance of administrative decisions on the notoriously strict Wednesbury stand ard of
unreasonableness.
The reason for Australia's outlier status seems fairly obvious. In other common law
jurisdictions, proportionality was only incorporated into administrative la w following
the introduction of a statutory or constitutional bill of rights, a nd Australia has no such
instrument at the federal level. Yet, in Minister for Imm igration and Citizenship v Li,4 four
members of the High Court hinted at a poss ible shift in the Australian a pproach to
unreasonableness review, which appears to incorporate elements of proportionality.
This article considers these developments and asks whether it is possible to fit the
principle of proportionality into the classic, common law model of review, aspects of
which are entrenched within Australia's constitutional frame work. It argues that any
attempt to incorporate propor tionality review into Austra lian law in the manner in
which it is applied in the United Kingdom would confront s ignificant constitutional
hurdles. However, commentary and case law from other common law jurisdictions
Canada in particularshow that proportionality is no t a unitary or immutable concept.
This article argues that other models may offer versions of proportionality that could be
adapted to fit within the constitutio nal framework underpinni ng judicial review of
administrative action in Australia.
The first section discusses the reasons for Australia's reluctance to embrace the
principle of proportionality in the co ntext of judicial review of a dministrative action.
Obiter comments coupled with the broader Australian approach to judicial review of
administrative action suggest that there are two main, interrelated barriers to
proportionality: its potenti al to transform judicial review into merits review, and thus
undermine the legitimacy of the role of courts in reviewing decisions; and the absence
of a 'rights anchor' for proportionality review in Australia. The section analyse s why
proportionality is a thre at to the classic, Diceyan model of review for these two reasons,
and notes that aspects of the c lassic model have been found t o be entrenched within
Chapter III of the Australian Co nstitution. Thus, Australia's resi stance to proportionality
has taken on a constitutional dimensi on.
Section II of the article examines the ju dgments in Li, and argues that the decision
intimated some potentially significant s hifts in Australian law. The most obvious was
the Court's suggestion that proportionality ma y form part of a broader notion of
reasonableness in Australian administra tive law. Related to this are various other
comments in the judgment s about the p ossible structure and role that proportionality
might play in Australian law. Given t hat none of the judgments ex plicitly introduces
proportionality review, it is possible t hat Li will have little long term impact on the state
of Australian administrative law. It is equally possi ble, however, that the judgment may
signal the start of a new Australian approach to reasonableness review.
3 This is the term used by Carol Harlow to describe the model of judicial review that
developed during the first two-thirds of the 20th century: 'A Special Relationship? American
Influences on Judicial Review in England' in Ian Loveland (ed), A Special Relationship?
American Influences on Public Law in the UK (Clarendon Press, 1995) 79, 83–7. The features of
the 'classic' model of review are discussed in detail below.
2015 The Reasonableness of Proportionality 61
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Section III of the article goes on to consider the latter possibility, which has been the
approach adopted in a numb er of cases since Li, and asks whether it is possible to
reconcile proportionality with Australia's judicial review framework. It examines the
two main barriers to proportionality id entified in section I, and, in that context,
considers both overseas practice and academic commentary on proportionality review.
With respect to the first barrier, the article argues that while the UK approach is difficult
to reconcile with Australia's judicial review framework, recent developments in Canada,
which include a more formal role for deference in the proportionality analysis, may offer
a model that is more consis tent with Australia's judicial review framework. It is argued
that the Canadian approach is a lso more consistent with many of the Court's indications
in Li and subsequent interpretations of that de cision. With respect to the second
barrierthe absence of a bill of rights in Australiathe approach in Li suggests that
proportionality requires n o such anchor. Although it may be possible to develop a
version of proportionality review which fits within Austra lia's constitutional framework
and is not anchored to rights, such an approa ch would still raise a host of practical
problems. The article then goes on to consider the possibi lity that an adequate anchor
for proportionality may be prov ided by either the common law or the Hum an Rights
(Parliamentary Scrutiny) Act 2011 (Cth). Both have significant drawbacks. However, it is
argued that both are legally defensible, and, in many practical respects, preferable to a
rights-independent approach.
II AUSTRALIA'S CAUTIOUS APPROACH TO PROPORTIONALITY
Prior to the High Court's statements in Li, the prevailing view of Australian judge s and
commentators was that proporti onality did not, and perhaps could not, form part of
Australian administrative law. 5 Although the rest of the common law world has
discussed proportionality at great length over the past decade or two, to the point that
'at a purely doctrinal level the topic long since ceased to be very interesting',6 Australian
courts have managed to sa y surprisingly little on the topic . In the years followi ng Lord
Diplock's initial suggestion that proportional ity may become a ground on which courts
could invalidate administrative decisions a t common law,7 several Australian ju stices
expressed varying levels of support for the princip le.8 Most, however, were deeply
suspicious. For instance in 1994 Da wson J suggested that proportionality was a principle
5 See, eg, Mark Aronson and Matthew Groves, Judicial Review of Administrative Action
(Lawbook Co, 5th ed, 2013) 377; Robin Creyke and John McMillan, Control of Government
Action: Text, Cases and Commentary (LexisNexis, 2012) 8345; Administrative Review Council,
Federal Judicial Review in Australia, Report No 50 (2012) 1356; Dan Meagher, 'The Common
Law Principle of Legality in the Age of Rights' (2011) 35 Melbourne University Law Review 449,
469; Peter Cane and Leighton McDonald, Principles of Administrative Law: Legal Regulation of
Governance (Oxford University Press, 2nd ed, 2012) 174; Susan Kneebone, 'A Commentary on
Proportionality: Protection of Common Law Rights or "Chipping Away at the Diceyan
Edifice"' in Linda Pearson (ed), Administrative Law: Setting the Pace or Being Left Behind?
(Australian Institute of Administrative Law Forum, 1996) 168, 170.
6 Murray Hunt, 'Sovereignty's Blight: Why Contemporary Public Law Needs the Concept of
"Due Deference"' in Nicholas Bamforth and Peter Leyland (eds), Public Law in a Multi-Layered
Constitution (Hart, 2003) 337, 337.
7 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410.
8 See, eg, New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307, 3215 (Kirby J);
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 367 (Deane J).

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