Looking for Wednesbury's Reasonable Interpretation

Abstract

The judicial review ground of unreasonableness, in particular Wednesbury unreasonableness (Wednesbury) continues to pervade the realms of judicial review in Australia. From the outset of its application, Wednesbury has received an overwhelming amount of criticism. In particular, its scope and boundaries are often deemed as “inescapably qualitative” and stringent. Despite this, Wednesbury continues to dominate the unreasonableness ground. Australia, unlike its common law counterparts continues to uphold Wednesbury unreasonableness in its traditional “unmodified form”. It shall be argued that an unreasonableness ground performs a vital role in judicial review as it ensures that governments act in a reasonable and rational manner. This paper shall address whether the High Court’s complex decision in Minister for Immigration and Citizenship v Li (MIAC v Li) will offer guidance to the contemporary application of the ground of unreasonableness. In effect, it shall be examined whether MIAC v Li is able to assist in attaining the objective of what this paper will describe as the re-interpretation of Wednesbury. Reform to its operation may need to occur and preferable recommendations to the scope of unreasonableness shall be examined, in particular the principle of proportionality.