Legal Unreasonableness after Li—A Place for Proportionality

Abstract

Substantive legal unreasonableness as a ground of judicial review of the exercise of an administrative discretionary power was not often successful in Australia due to the strictness of Lord Greene’s formulation of the test in Wednesbury. In 2013, the High Court of Australia reformulated the test in Minister for Immigration and Citizenship v Li. That gives rise to questions as to how certain and transparent a test of legal reasonableness can be. The courts in England have considered similar questions concerning Wednesbury unreasonableness often accompanied by a consideration of proportionality principles. This article examines those questions and the extent to which the Australian courts may follow developments in England.