Responsive Reasons in Administrative Law: Evolution

In the opening post in this series I described the traditional position in relation to reasonableness review. Here I describe the significant changes that have occurred over the last couple of decades…

For all the tenacity of Wednesbury, it has been gradually displaced over the years, around the common law world. I addressed this point in my monograph Understanding Administrative Law in the Common Law World:

The intensity of substantive review varies from case to case, depending on the interaction of a variety of contextual factors. As has been said in Canada, the “range will necessarily vary”,[1] because reasonableness “takes its colour from its context”,[2] falling to “be assessed in the context of the particular type of decision making involved and all relevant factors”.[3] To put the point another way, “reviewing courts can afford the administrative decision-maker hardly any margin or no margin of appreciation, a moderate margin, or a broad margin”.[4] In New Zealand, while review of the merits “is to be avoided”,[5] the standard of substantive review “may vary with context”.[6] Australian courts have said that legal unreasonableness is “context-specific”[7] and “invariably fact dependent”[8], requiring an “evaluative judgement” by the reviewing court,[9] such that in all cases, “the precise content of an implication of reasonableness, where it is implied, will be based upon the context, including the scope, purpose, and real object of the statute”.[10]

Around the common law world, in cases involving broad statutory grants of discretionary authority to regulate economic activity, on the one hand, the intensity of review of abuse of discretion is more relaxed; whereas on the other hand in cases involving detailed statutory schemes with little room for interpretive manoeuvre and important individual interests at stake, judges will engage in exacting review of the administrative action in question. Sometimes, the range of possible, acceptable outcomes will be so constrained by the relevant contextual factors as to admit of only one reasonable outcome.[11]

Then, an applicant for judicial review must identify a “badge of unreasonableness” that creates a “fatal flaw” in the decision.[12] At that point, the range of reasonable outcomes becomes relevant in determining how much the decision-maker must provide to convince a court that the decision ought to be upheld notwithstanding the presence of a badge of unreasonableness:

Where a decision is indelibly tainted by a badge or badges of unreasonableness, judicial intervention will be more or less appropriate depending on the range of reasonable outcomes. For instance, the narrower the range, the more that will be required by way of explanation of the badge(s) of unreasonableness tainting the decision. Conversely, the wider the range, the less a reviewing court should require by way of explanation.[13]

As the Supreme Court of Canada has put it, “[t]he greater the interpretive constraints in a given case, the greater the burden of justification on the decision maker in deviating from those constraints”.[14]

Whether a decision falls within the range of reasonable outcomes, given the relative tightness or looseness of relevant constraints, can be assessed by reference to the reasons provided for a decision. Reasons for decision have assumed great importance across the Commonwealth.[15] In determining whether a decision is reasonable, the reasons provided by the decision-maker will be the central focus.

In this regard, the recent saga involving Novak Djokovic’s exclusion from Australia (and hence the Australian Open tennis tournament) is instructive. The saga culminated (as a matter of administrative law at any rate) in the decision of the Full Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[16] At issue was the Minister’s use of the statutory power to cancel a visa in s. 116 of the Migration Act. This power is extremely broad: it allows the Minister to act when “satisfied” (a subjective, rather than objective standard) that someone’s presence in Australia could conceivably cause harm to health, safety or good order. The Minister gave detailed reasons for cancelling the visa provided to Djokovic, on the basis that his presence in Australia would foment anti-vaccination activism.

Several generations ago, it would have been unthinkable that a Minister would give any reasons — still less 10 pages of reasons! — to support a decision to cancel a visa. Yet because the courts now stand ready to scrutinize executive action, ministers can no longer rely on authority alone to make decisions. They must engage in the reasoned exercise of public power (even where, as here, Djokovic was not entitled to any procedural fairness prior to its exercise). Indeed, the decision was upheld in no small part because it was grounded in the evidence and responded to the central arguments made by Djokovic’s lawyers.[17] To presage what is to come in the next section, the decision was responsive to the evidence and argument.

In short, the common law of reasonableness has evolved beyond the traditional – “Hands Off!” – formulation to revolve around the concept of a range of reasonable outcomes, grounded in a consideration of the reasons provided for the decision in question.

Now, there is an obvious objection that can be made at this stage. Doesn’t an assessment of whether a decision falls within a range of reasonable outcomes, based on an analysis of the reasons provided, inevitably mean that the reviewing court is drawn into a consideration of the merits – precisely what the hortatory language of Wednesbury and its fellows is designed to avoid? One response to this objection is to simply bite the bullet and observe that assessing reasonableness has always involved an analysis of the reasoning process and the weight accorded to various factors by the decision-maker. Plus ça change, plus c’est la même chose. But the hortatory language continues to be cited and defended on the basis that keeping judges away from the merits is an important aspect of the separation of powers. In that regard, as we will see in the next section, the rise of responsiveness offers another response to this objection: if a decision-maker has not responded at all to a relevant point, its decision can be held to be unreasonable without any concern for trespassing on the forbidden merits. Responsiveness goes a little bit further than that – as it also requires responses to a relevant point to be adequate – but not so far as to amount to a reweighing of factors considered by a decision-maker.

[1] Wilson v Atomic Energy Agency of Canada 2016 SCC 29; [2016] 1 SCR 770 [22].

[2] Canada (Citizenship and Immigration) v Khosa 2009 SCC 12; [2009] 1 SCR 339 [59].

[3] Catalyst Paper Corp v North Cowichan (District) (n 143) [18]. See also Canada (Citizenship and Immigration) v Vavilov (n 4) [107].

[4] Canada v Kabul Farms Inc 2016 FCA 143 [24]. See also Canada (Citizenship and Immigration) v Vavilov (n 4) [110].

[5] Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601; [2013] 2 NZLR 57 [22].

[6] Quake Outcasts v Minister of Canterbury Earthquake Recovery [2017] NZCA 332; [2017] 3 NZLR 486, 509. See also Kim v Minister of Justice (n 163), 45-47.

[7] Minister for Immigration and Border Protection v SZVWF [2018] HCA 30 [52] per Gageler J (hereafter Minister for Immigration and Border Protection v SZVWF).

[8] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 [42].

[9] Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 [5] per Allsop CJ.

[10] Minister for Immigration and Border Protection v SZVWF, [134] per Edelman J.

[11] See e.g. In re G (Adoption: Unmarried Couple) [2009] AC 173 [144]; McLean v British Columbia (Securities Commission) (n 133) [38]; Michalak v General Medical Council [37].

[12] Understanding Administrative Law in the Common Law World, p. 139.

[13] Paul Daly, “Struggling Towards Coherence in Canadian Administrative Law: Recent Cases on Standard of Review and Reasonableness” (2016) 62 McGill Law Journal 527, at p. 558.

[14] Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, at para. 66.

[15] Elliott, “Has the Common Law Duty to Give Reasons Come of Age Yet?”

[16] [2022] FCAFC 3.

[17] [2022] FCAFC 3, at paras. 72, 76, 83, 86, 98, 99.

This content has been updated on April 24, 2024 at 22:46.