Reasonableness Review and the Interdependence of Process and Substance after Vavilov

Questions about substantive judicial review - its legitimacy, its appropriate intensity, its proper limits - often appear to be as intractable as they are beguiling. The appeal - but also the complexity - of the debate lies, at least in part, in the fact that it is animated by disagreement about underlying constitutional matters, including the rule of law, the separation of powers, and the nature, status, extent, legitimacy and interaction of legislative, administrative and judicial authority. In this chapter, I am concerned with substantive review in the narrower of the two senses in which the term is used in this book: that is, review of the decision itself, as distinct from the process by which the decision was taken, on grounds involving some degree of scrutiny of the merits. More particularly, the aim is to explore the relationship between the constitutional matters mentioned above and the front-line doctrinal tools, such as the Wednesbury and proportionality tests, that are associated with substantive review. I will advocate an approach that, while acknowledging the valuable role that doctrinal tools are capable of playing in the structuring of law and legal reasoning, insists upon such tools’ subservience to the underlying concerns that ought to be in the driving seat. I will also argue against approaches that promise neat, bright-line distinctions but which do so by masking underlying normative or constitutional complexity through the application of a formalist doctrinal veneer.

In reviewing legal acts adopted in the context of the economic-financial crisis, proportionality finds frequent application. However, case-law at both national and Union’s level displays elements of a loose proportionality review, as Courts hardly dare to challenge the substance of the decisions negotiated by law-makers. The article argues that loose proportionality is tied to a departure from the juridical roots of the referring concept, which lie in a ‘culture of justification’ as alternative to a ‘culture of authority’ in the exercise of public power. In this light, it provides analysis of the case-law concerned to show that the decisions taken at the political level do not seek their legitimacy in dialogical justification, but find it in the alleged assumption that they represent the optimal ‘reasonable solution’ for all Member States, despite the painful inequalities they entail. As they prove somehow alien to the cultural-juridical roots of the concept, they cannot undergo a fully-fledged proportionality scrutiny. Yet, this may signpost the gradual comeback of a ‘culture of authority’ requiring careful reflection, as it would touch upon the very conception of the human person as capable of self-determination – arguably, the cornerstone of contemporary constitutional arrangements. Proportionality, Economic-Monetary Union, Judicial Review, Sovereignty, Crisis, Reasonableness, Fundamental Rights, Self-Determination.

This article examines how judicial reasons function remedially in administrative law following Canada (Minister of Citizenship and Immigration) v. Vavilov. While reasons traditionally explain decisions, they have always had a remedial function through their normative and expressive force. Vavilov’s “culture of justification” increased the remedial function of reasons by making them central not only to judicial oversight but to administrative decision-making itself. In this post-Vavilov framework, courts now write reasons that not only justify outcomes but provide the framework for administrative redetermination, transforming them into functional remedies.

Modern judicial review in Australia has been characterised by a significant increase in the judiciary’s willingness to constrain the actions of both the executive and the legislature. How has this increase in judicial power come about? This paper argues that it is the result of an underlying shift in the role that the judiciary sees for itself.This article is divided into three main parts. First, there will be an examination of what a culture of justification entails. Particular attention will be paid to its democratic foundations and practical and theoretical origins in South Africa. Second, developments in Australia will be examined, supporting the proposition that there has been a substantial shift in power to the judiciary consistent with it taking on the role envisaged for it by a culture of justification. Third, it is concluded that an understanding of the shift that has taken place and its limitations is useful, but that administrative law (including judicial review) is shaped by many competing demands. Therefore any shift will be far from linear. Consequently, rather than a shift toward a culture of justification which is suggestive of an all-pervasive change, it is more helpful to talk of an evolution in which the judiciary is seeking to impose a justificatory account of the rule of law.

This article addresses an apparent asymmetry in the law of judicial review of administrative action. While procedural review is explicitly concerned with the rights of people who find themselves subject to public administrative power, rights do not figure in the prevailing account of substantive review. Instead, courts have treated substantive review as an opportunity to promote the rule of law and give effect to legislative intent. The author argues that the asymmetry is merely apparent, and that especially following Canada (Minister of Citizenship and Immigration) v Vavilov, substantive review is best understood as a rights-oriented enterprise. More specifically, substantive review vindicates a right to justification according to law held by the legal subject of an administrative decision. This account makes the legal subject visible within the law of substantive review and allows us to see the law of judicial review more generally as an integrated domain concerned with administrative law rights. Note on expert review: This article went through double-blind expert review, in compliance with the Alberta Law Review's typical peer review process. The other articles in this issue were subject to single-blind expert review.

There are five recent decisions of the High Court of Australia, four of which were given in matters which had arisen under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the Act”), and all of which have a significance for the operation of the Act, as well as for public law generally. They are Park Oh Ho v Minister for Immigration and Ethnic Affairs, Chan fee Kin v Minister for Immigration and Ethnic Affairs, Attorney-General (NSW) v Quin, Haoucher v Minister for Immigration and Ethnic Affairs and Australian Broadcasting Tribunal v Bond. The primary concern of this paper is to consider some aspects of their significance for the operation of the Act.

The Constitutional Court is the highest court in all constitutional matters and thus decides appeals from other courts in disputes involving natural and juristic persons and the state, including criminal matters, if the matter is a constitutional matter or an issue connected with a decision on a constitutional matter. The Court may hear any matter, if the Constitutional Court grants leave to appeal because the matter raises an arguable point of law of general public importance that ought to be considered by that court. The Constitution makes it clear that courts are independent and subject only to the Constitution and the law. All persons to whom and organs of state to which a court order or decision applies are bound by it. It is important that the courts employ a standard of judicial review that is compatible with constitutional principles and values. The Constitutional Court subscribes to a standard of “deference” in judicial review. This principle recognises the need to protect the institutional character of each of the three arms of government in a manner that will prevent their ability to discharge their constitutional role being undermined. The principle of deference concerns the function of the judge in mediating between the law and legislative and executive politics. Around the world, litigation or judicial review has become immensely popular as a treatment for the pains of modern governance. South Africa is no exception to this phenomenon. This activism by litigation consists of efforts to promote, impede, or direct social, political, economic, or environmental change, or stasis. Organisations and individuals often disregard or distrust the political process and approach the courts to advance their own interest and to protect their own rights. Litigants seek to enforce constitutional principles and values that affect others as directly as them and that are valued for moral or political reasons and are independent of economic interests. The relief claimed aims to restructure the public organisation or conduct by the legislature and/or executive to eliminate a threat to constitutional principles and values enshrined in the Constitution. The South African Constitution has provided the public litigant with the freedom to bring matters before the courts not possible in terms of the common law. This has led to a departure from the traditional conception of litigation and consequently the remedies that courts have to offer. Courts have the duty to intervene in constitutional violations, but they have a prerogative to decide when and to what extent to intervene when such a violation occurred within the domain of other branches of government. The decision on whether to intervene and then, to what extent, will depend on the standard of judicial review the courts employ. Davis proposes a culture of justification for judicial review that takes into account the democratic prerogative of the elected arms of government to fashion and implement public policy within the framework of the Constitution. This culture accepts that the role of judicial review is to foster a culture of democracy, and that the judiciary must commence from a standpoint that it operates within a governmental system that is based upon a doctrine of separation of powers. Although Davis’s work is meant as only as a framework for a coherent theory of judicial review, the question of justification and participation advances other constitutional values such as openness, non-discrimination, accountability and participation to judicial scrutiny. It is submitted that the culture of justification meets the tenets of judicial review as set out by both Mureinik and Dyzenhaus and finds application in an objective interpretation of constitutional provisions and values. The culture of justification ensures that the government justifies its decisions to the governed; it promotes transparent government and allows the citizens to participate in decisions affecting them.

Dunsmuir v. New Brunswick, 2008 SCC 9, set out to bring a greater degree of clarity to the law surrounding substantive judicial review than had previously been the case. However, the innovations made in Dunsmuir have not been successful in achieving this objective.That administrative action be "lawful, reasonable, and procedurally fair" is a cardinal gospel principle, stricto sensu. Dunsmuir v. New Brunswick, was in this sense a capstone case in Canadian administrative law, an epochal harbinger. It developed from infancy days of the pre-existing Diceyan formalistic era, underscoring formal trifurcation of powers between the judiciary, legislature and executive, to evolve into the teen-hood of 'pragmatic and functional era'. This focused at contextualized meshing of regulation, policy objectives and practicalities. This graduated into a youthful stage during 2002 to 2008, (affectionately referred to as the dysfunctional period) characterized by weariness and frustration to finally culminate into a mature adulthood, fondly called the categorical approach era. The four-factor approach, not been entirely jettisoned though, was marginalized in favor of a categorical approach. This paper situates Dunsmuir into a historical continuum in Part-I and II to assess the degree of possible clarity afforded to the law surrounding substantive judicial review than had previously been the case. This assesses the impact of standard of review on a range of administrative decisions indicating a perceptible shift from correctness to reasonableness in areas, hitherto not accorded deferential treatment by the Supreme Court. Part III focuses on failure of Supreme Court to apply the reasonableness standard in a consistent and principled fashion, notwithstanding the promise of "principled framework that is more coherent and workable." Part IV, underscores that the "innovations made in Dunsmuir has not been successful in achieving this objective of clarity on law surrounding substantive judicial review than before" and that Court's post-Dunsmuir approach to reasonableness review is both disappointing and confusing. I have argued that this shortcomings can be remedied by articulating a contextual approach on the lines of reasoning in Baker v Canada (Minister of Citizenship and Immigration), contextualizing the values of "justifiability, transparency and intelligibility" through judicial review in a particular administrative context.

In Canada (Minister of Citizenship and Immigration) v Vavilov, the Supreme Court of Canada endeavoured to reformulate the law of substantive review of administrative decisions. This was familiar territory for the Court. Over the last four decades, the Court has revised the doctrinal framework for substantive review on numerous occasions, with limited success in promoting stability in the law. Early academic responses to Vavilov considered whether the new doctrinal framework would endure. This paper focuses on a prior question: What is the problem with substantive review? It argues that contrary to the Court’s longstanding posi-tion, the foundations of the law of substantive review are neither clear nor stable. Rather, substantive review doctrine is built upon two heavily contested principles capable of being conceptualized in different ways. The jurispru-dence features multiple competing conceptions of those principles, producing tensions which create instability in the law. This suggests that to solve the problem, a coherent theory of sub-stantive review that either resolves or prevents these tensions is necessary.

In the aftermath of Baker v Canada (Minister of Citizenship and Immigration) in 1999, many scholars saw the potential for the fusion of process and substance in Canadian judicial review. As it transpired, Canadian administrative law doctrine hardened into a bifurcated approach, with procedural matters being reviewed on a correctness standard, and substantive review typically attracting reasonableness. This article argues that the formal standard of review (correctness) does not match the actual practice of procedural review, which in fact is extremely similar to the judicial method employed in conducting substantive review. The potential fusion signalled by Baker has thus not been as comprehensively abandoned as the standard of review jurisprudence might suggest. This article argues that such a fusion would be beneficial in terms of clarity for potential litigants and in terms of enhancing judicial fidelity to the rule of law.

Government Accountability Sources and Materials: Australian Administrative Law is designed to accompany the third edition of the textbook Government Accountability: Australian Administrative Law. Following the accessible structure of Government Accountability, this book guides students through the real-world operation of administrative law and demonstrates how multiple doctrines and mechanisms can interact in a single situation. Extracts from primary materials – including cases and legislation – provide a clear account of the facts, issues and statutory provisions considered by the courts, and are accompanied by relevant commentary. This edition has been thoroughly updated to include recent significant cases such as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021), Hocking v Director-General of the National Archives of Australia (2020) and MZAPC v Minister for Immigration and Border Protection (2021). Written by a team of experts, Government Accountability Sources and Materials: Australian Administrative Law is a fundamental and student-friendly introduction to administrative law in practice.

Government Accountability Sources and Materials: Australian Administrative Law is designed to accompany the third edition of the textbook Government Accountability: Australian Administrative Law. Following the accessible structure of Government Accountability, this book guides students through the real-world operation of administrative law and demonstrates how multiple doctrines and mechanisms can interact in a single situation. Extracts from primary materials – including cases and legislation – provide a clear account of the facts, issues and statutory provisions considered by the courts, and are accompanied by relevant commentary. This edition has been thoroughly updated to include recent significant cases such as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021), Hocking v Director-General of the National Archives of Australia (2020) and MZAPC v Minister for Immigration and Border Protection (2021). Written by a team of experts, Government Accountability Sources and Materials: Australian Administrative Law is a fundamental and student-friendly introduction to administrative law in practice.

This article argues that power struggles between judiciaries and executives are fuelled by tensions of securitisation, border control and human rights over the issue of irregular migration. The article juxtaposes three paradigm court cases to render the argument concrete, focusing on two Australian High Court decisions (M70 v Minister for Immigration and Citizenship and CPCF v. Minister for Immigration and Border Protection & Anor) and one decision from the European Court of Human Rights (Hirsi Jamaa and Others v. Italy). An examination of these cases reveals each step of this cycle: the executive attempts to produce a buffer to avoid or minimise migrants’ protections and judicial review, yet such manoeuvring is countered by the judges. Following this, new steps of the cycle occur: governments display disappointment to courts’ interventions in an effort to discredit the exercise of judicial power while the judiciaries maintain the focus on the rule of law. And so the cycle continues. The key argument of this paper rests on the paradox resulting from the executive’s attempts to curb judicial intervention, because such attempts actually empower judiciaries. Comparing different jurisdictions highlights how this cyclical power struggle is a defining element between these two arms of power across distinct legal-geographical boundaries. By tracing this development in Australia and in Europe, this article demonstrates that the argument has global significance.

The non-statutory executive power of Australia's Commonwealth government is firmly back on Australia's public law agenda. Even before the events at sea that gave rise to the case of CPCF v. Minister for Immigration and Border Protection (now reserved before the High Court), the government was making plans to give other decisions relating to asylum-seekers a "non-statutory" footing, with the apparent aim of rendering the decisions less amenable to judicial review. This paper (an extended and updated version of a paper delivered at the 2014 AIAL National Administrative Law Conference on 24 July 2014) examines whether it is possible, in Australia's migration law setting, to make decisions relating to refugee protection "non-statutory" and, if it is, whether such decisions would be justiciable. In doing so, the paper provides analysis of important High Court decisions such as Plaintiff M61E v. Commonwealth (2010) and Plaintiff S10/2011 v. Minister for Immigration and Citizenship (2012) as well as recent intermediate court decisions. It also assesses government proposals against what the considers are the four modern principles of justiciability of non-statutory executive action: the public power principle (including outsourcing issues), the subject matter principle, the affectation principle and the decision-maker principle. The paper ultimately concludes that the Commonwealth government is unlikely to be able to place reviews of refugee decisions on a non-statutory footing and that, even if it could, most claims arising from such reviews are likely to be justiciable in any event.

The question of when an error will be sufficiently “material” to justify the quashing of a tainted decision has prompted some discussion and debate on the High Court of Australia in two important recent cases: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 and Hossain v Minister for Immigration and Border Protection [2018] HCA 34. This is a difficult issue, which causes conceptual confusion and obscures important underlying issues. By reference to material drawn from Australia, Canada, England, Ireland and New Zealand, I argue that there are three distinct types of materiality. First, materiality can be used to denote whether an error is sufficiently serious to count as jurisdictional. Second, materiality can be used to denote a causal link between the error complained of and the decision under review. Third, materiality can be used to denote judicial discretion to refuse relief. I suggest that distinguishing between these types facilitates clearer analysis and debate about the appropriate place of “material” error in judicial review of administrative action.