In Australia, it is presently unclear whether and to what extent the unreasonableness ground applies to administrative action based on non-statutory executive power. Earlier this year, Robertson J handed down a decision which advances the limited jurisprudence in this area.
Category: Public Law
The High Court has dismissed yet another challenge to state legislation relying on the Kable principle. The case concerned legislation that gives very broad power to courts. The Court’s split decision exposes a significant division on the Court as to the nature of judicial power.
In this case, the question for the High Court was whether Code of Conduct legislation, that applied to Australian Public Service employees, imposed an unjustified burden on the constitutionally implied freedom of political communication. The High Court’s answer was ― “No”.
The UK Supreme Court recently handed down a decision about privative clauses, R v Investigatory Powers Tribunal  UKSC 22. The decision is relevant to Australia because it prompts consideration of the scope and basis of Kirk v Industrial Court of New South Wales.
A majority of the High Court held that Queensland laws regulating the making of gifts to political parties were valid, and that a Commonwealth law purporting to permit such gifts was invalid.
The High Court unanimously held that a State legislature could not vest jurisdiction in an executive tribunal to hear a dispute between residents of different States, but split 4:3 on why
The High Court has read down a statutory secrecy provision that purported to shield information from production to a court on judicial review. In doing so, it has confirmed that s 75(v) of the Constitution protects more than simply the right to commence proceedings for judicial review.
In Falzon v Minister for Immigration and Border Protection, the High Court dismissed a challenge to the validity of s 501(3A) of the Migration Act. The Court held that the provision, which provided for the cancellation of a visa in certain circumstances, did not confer judicial power on the executive.
In Rizeq v Western Australia  HCA 23, the High Court had the opportunity to resolve some doubts about the sources of law in federal jurisdiction and about the operation of s 79 of the Judiciary Act 1903 (Cth).
What a difference a Day makes: the High Court on disqualifying pecuniary interests of parliamentarians
In Re Day [No 2]  HCA 14, the High Court determined that Mr Bob Day had an indirect pecuniary interest in an agreement with the Commonwealth, and was thereby disqualified from being chosen or sitting as a senator pursuant to s 44(v) of the Constitution. The Court’s decision substantially revised the ambit of that section.
Re Day [No 2]  HCA 14
The Court of Appeal has found that a failure to disclose the “substance” or “gist” of confidential information relied upon when making an exclusion order under the Racing Act 1958 (Vic) will not necessarily constitute a breach of procedural fairness.
The High Court has found that a number of provisions of the Commonwealth Electoral Act 1918 (Cth) are not invalid as being contrary to ss 7 and 24 of the Constitution.
In recent decisions of the Federal Court (Wigney J) and the NSW Court of Appeal (Bathurst CJ), unreasonableness jurisprudence has been relied on to reject the argument that the “illogicality” ground of judicial review is solely concerned with the end result, as opposed to findings or reasoning “on the way”.
The High Court has confirmed that the making of a “procedural” decision to consider exercising a non-compellable discretion to either grant a visa or to permit a further application for a protection visa (which decision has the effect of prolonging the mandatory detention of those affected) gives rise to an obligation to accord procedural fairness.