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When a court considers whether administrative action was reasonable, it may
simply ask whether the action is objectively capable of being justified, regardless
of the decision maker’s actual reasons. Or it may go further, and ask whether
the decision maker’s subjective reasons were reasonable. To give an extreme
example, a lazy decision maker may flip a coin and reach the same decision that
another, diligent decision maker could have reached by rationally considering
the evidence. The decision is objectively capable of being justified. If the legal
requirement is simply for administrators to act reasonably, then the decision itself
will be valid, notwithstanding the flawed process of reasoning used to make it.
If the legal requirement is for administrators to be reasonable, then the decision
will be invalid.
The classic administrative law test of Wednesbury unreasonableness strongly
suggests an objective test. In Associated Provincial Picture Houses Ltd v Wednesbury
Corporation (Wednesbury),11 Lord Greene MR said that a court could set aside a
decision where the decision maker had come ‘to a conclusion so unreasonable that
no reasonable [decision maker] could ever have come to it’. In the past, the courts
have certainly tended to apply this test in a purely objective fashion. However,
the trend is clearly towards a subjective reasonableness test. A number of factors
push the courts in this direction. First, a number of related grounds of judicial
review, such as improper purpose and relevant and irrelevant considerations,
require the courts to examine the decision maker’s actual reasons. Having gone
so far, it is difficult for the courts to pull back in the face of other reasoning
errors. The modern expansion in legal obligations to give reasons for decisions
has clearly reinforced this. That development itself reflects increased political
and community expectations that public servants have good reasons for their
decisions.
The separation of powers doctrine also suggests that the reasonableness
requirement should be a subjective one. The courts have emphasised that the
separation of powers doctrine gives the legality/merits distinction a constitu-
tional basis. When the legislature grants power to an administrative agency, it
216 AUSTRALIAN ADMINISTRATIVE LAW


makes that agency primarily responsible for deciding how that power ought to
be exercised. Thus, the decision’s merits – what the correct and preferable thing
to do was in the circumstances – is for the agency to decide. The court’s role is
limited to deciding whether the decision maker stayed within the bounds of their
power. As Mason J said in Minister of Aboriginal Affairs v Peko-Wallsend Ltd:12

The limited role of a court in reviewing the exercise of a discretion must be constantly
borne in mind. It is not the function of the court to substitute its own decisions for that
of the administrator by exercising a discretion which the legislature has vested in the
administrator. Its role is to set limits on the exercise of that discretion, and a decision
made within those boundaries cannot be impugned.

Thus, if the decision maker has properly decided to exercise their power in
a particular way, the court should not come up with other reasons for why the
power should not have been exercised in that way. Equally, though, where a
decision maker did not decide reasonably, the court should not come up with
better reasons to justify the decision maker’s action. The court should not do the
decision maker’s job for them.


Reasonable fact-finding

Laws are necessarily expressed in general, abstract terms. But legislatures grant
abstract powers to administrators so they can make practical decisions, about
specific people in particular circumstances. Thus, statutory grants of power are
typically expressed in one of two forms:

• If X is satisfied Y exists (or will exist), X may do Z; or
• If Y exists, X may do Z.

In each form of expression, X is the decision maker, Y is a requisite state of
affairs, and Z is the action that the decision maker is empowered to take. The
focus here is on Y, that is, the requisite state of affairs to which the statutory
power relates.
This requisite state of affairs may be purely factual, such as ‘the applicant is over
eighteen’. It may involve discretionary value judgments and questions of policy,
such as ‘the applicant is a fit and proper person’. It may involve predicting the
future, such as ‘the applicant has a well-founded fear of persecution if they return
to their home country’. It may involve questions of law as well as fact, such as
what constitutes ‘persecution’ in the previous example. It may involve uncertain
cause-effect relationships, such as ‘the applicant’s injury or disease is attributable
to their employment’, when the causes of the disease are not well understood.
In every case though, the decision maker’s starting point must be empiri-
cal reality: Did the applicant actually do something that calls their fitness into
question? What happened to the applicant when they were previously in their
home country? What disease does the applicant have? As the High Court said in
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REASONABLENESS, RATIONALITY AND PROPORTIONALITY


Minister for Immigration and Ethnic Affairs v Guo,13 in relation to determinations
about well-founded fears of persecution:

It is . . . ordinarily an integral part of the process of making a determination concerning
the chance of something occurring in the future that conclusions are formed concerning
past events . . . Without making findings about the [past], . . . the Tribunal would have
had no rational basis from which it could assess whether there was a real chance that
[Mr Guo] might be persecuted . . . if he were returned to the PRC [People’s Republic of
China].

Even where statutory grants of power are not directly based on a requisite
state of affairs, they will usually identify certain matters that the decision maker
should ‘have regard to’ or ‘consider’ in deciding whether or not to act. Again,
these considerations may be purely factual, or may involve discretionary value
judgments or questions of policy, or the risk that something may happen in the
future. To the extent that the relevant considerations do involve factual elements,
the decision maker must find the facts in order to consider them. Statutes also
frequently require decision makers to have regard to certain types of information.
Again, Parliament’s intention is clearly that the decision maker will not simply
engage in idle contemplation, but will use the information to make empirical
conclusions.14
Thus, inherent in all statutory grants of power is a legislative intent that deci-
sion makers inform themselves about the empirical reality that they are deciding
about – to find the facts of the case. It is no coincidence that statutory require-
ments to give reasons for decisions invariably require decision makers to explicitly
state the findings of fact on which their decision is based. Of course, administra-
tors may get their findings of fact wrong. The general principle is that ‘[t]here is
no error of law simply in making a wrong finding of fact’.15
In the first form in which grants of power are typically expressed identified
above, where the legislature has explicitly referred to X being ‘satisfied’16 as to
Y, then it is clear that X’s ‘jurisdiction’, or power to decide, includes the power
to determine whether the requisite state of affairs empirically exists: to find the
facts of the case. If the decision maker finds the facts of the case in a valid way,
they have power to act, even if they are empirically mistaken about the facts.
The wrong finding of fact ‘goes to the merits’ of the decision, not its legality. On
judicial review, the court’s role – the ‘legality’ question – is to determine whether
the decision maker validly found the facts. The requirements for validly finding
facts are discussed further below.
In the second form of expression, power is granted in terms that seem to require
the requisite state of affairs to actually, empirically exist before the decision maker
has the power to act. If the power is interpreted in this way, then the requisite
state of affairs is a ‘jurisdictional fact’, on which the power’s existence depends.
A decision maker who acts on the basis of an incorrect finding that the fact exists
has made a legal error about the power’s existence. Similarly, a decision maker
who refuses to act, on the basis of an incorrect finding that the fact does not exist,
218 AUSTRALIAN ADMINISTRATIVE LAW


has also made a legal error about the power’s existence. In either case, on judicial
review the court’s role – the legality question – is to determine whether or not the
requisite facts, and hence the power itself, actually existed. In substance, then,
in jurisdictional fact cases courts review the correctness of the decision maker’s
factual finding, not just its reasonableness.
In practice, the courts almost always interpret grants of power in the form
‘if Y exists’ as actually meaning ‘if X is satisfied Y exists’. This interpretation
usually seems more consistent with the legislative intent and purpose underlying
the Act. It also better maintains the distinction between the legality and the
merits of a decision, as it avoids the court having to consider the correctness
of the administrator’s factual findings. As Aronson, Dyer and Groves point out,
‘[j]urisdictional facts are . . . mercifully rare, because of the extreme improbability
of Parliament intending to give courts the last word on most factual issues’.17 In
the vast majority of cases, therefore ‘if Y exists’ means, in effect, ‘if X is satisfied
Y exists’.
When the statute is interpreted in this way, the court’s role is exactly the same
as when the statute is expressly in those terms. The question is still whether the
factual findings were validly made, not whether they were correct. As Gleeson
CJ, Gummow, Kirby and Hayne JJ said in Enfield Corporation v Development
Assessment Commission (Enfield):18

[If the relevant provision] had been expressed so as to turn upon the satisfaction or opin-
ion of the relevant authority as to a state of affairs, or were it to be so understood, . . . the
existence of the opinion or satisfaction would be treated as requiring an opinion or
satisfaction formed reasonably upon the material before the decision maker.

As this passage makes clear, the requirement for beliefs to be reasonably
formed does not only apply when the grant of power expressly requires the
decision maker to form the relevant satisfaction. Rather, it applies whenever
the grant of power is ‘understood’ as requiring the decision maker to form a
conclusion about the requisite state of affairs.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant
S20/2002 (S20),19 and Minister for Immigration and Multicultural and Indigenous
Affairs v SGLB (SGLB),20 the High Court held that a decision maker’s satisfaction
was not reasonably formed if it was ‘illogical, irrational, or was not based on
findings or inferences of fact supported by logical grounds’. In practice, three
interrelated requirements must be met for a factual finding to be ‘supported by
logical grounds’:

1. The finding must be empirically grounded in rationally probative evidence.
2. The finding must have been reasonably open on that evidence.
3. The decision maker must have rationally considered that evidence.

In order to avoid intruding excessively into the ultimate decision’s merits, the
courts apply a ‘rule of restraint’21 when applying these requirements. Allowance
is made for the decision maker’s judgment and experience, and not every factual
219
REASONABLENESS, RATIONALITY AND PROPORTIONALITY


statement in a statement of reasons needs separate justification. Further, even
if a particular finding is found to be problematic, the decision itself will only be
invalid where it was ‘based on’ that finding. Each of these requirements is dis-
cussed below, as is the legal consequences of rational uncertainty, i.e. situations
where the evidence is simply inadequate to allow decision makers to reach the
required state of satisfaction.


The finding must be empirically grounded in rationally
probative evidence
The first requirement for a factual finding to be supported by logical grounds is
that it must have some grounding in empirical reality. Decisions based on chance,
blind guesses, convenience, habit or prejudice are all properly characterised as
arbitrary and capricious. Thus, at common law it is clearly established that a
finding of fact based on ‘no evidence’ is a jurisdictional error of law.22 In this
context, evidence is not limited to material that would be admissible as evidence
in judicial proceedings. Rather, it means any ‘material which tends logically to
show the existence or non-existence of facts . . . or to show the likelihood or
unlikelihood of the occurrence of some future event the occurrence of which
would be relevant’.23
To satisfy the ‘no evidence’ rule, it is not enough that there is material relevant
to the question of fact to be determined: the material must provide empirical
grounding for the actual finding made. As Hayne J said, on judicial review, the
question for the court is ‘whether the material upon which the decision maker
has acted was material that, as a matter of logic or reason, supported the finding
made’.24 For example, in SFGB v Minister for Immigration and Multicultural and
Indigenous Affairs,25 the Refugee Review Tribunal accepted that the applicant had
a well-founded fear of persecution from the Taliban when he left Afghanistan, but
it found that his fear was no longer well-founded, because the Taliban ‘is no longer
a force in Afghanistan’, and not active in the applicant’s home region. Material
before the tribunal described the general situation in Afghanistan, and the level of
the Taliban’s activity in the applicant’s home region. There was, therefore, some
evidence on the overall question to be determined. However, the only information
about the applicant’s home region suggested that the Taliban in fact remained
active there. The Full Federal Court set aside the Tribunal’s decision, because
there was no evidence supporting its critical finding that the Taliban was not
active there.
The ‘no evidence’ ground requires that there be literally ‘no’ rationally proba-
tive evidence to support the finding made. As Aronson, Dyer and Groves put it,
‘[t]he “no evidence” ground cuts out when even a skerrick of evidence appears’.26
Some cases have taken a de minimis approach,27 holding that there must be
more than a ‘scintilla’ of evidence supporting the relevant finding, because a
mere scintilla rationally cannot prove anything.28 The dividing line between a
‘skerrick’ and a ‘scintilla’ is far from clear, but either way the ‘no’ evidence rule is
220 AUSTRALIAN ADMINISTRATIVE LAW


a strict one. It is not a covert means to attack the sufficiency of the evidence or
the weight attributed to it. Questions of the sufficiency and weight of evidence
go to the decision’s merits, except in extreme cases where it can be said that
the factual finding was not reasonably open on the evidence before the decision
maker.


The finding must have been reasonably open on the evidence
In practice, decision makers rarely make important finding of facts based on
absolutely ‘no evidence’. Usually, questions of fact need to be resolved precisely
because the evidence is unclear. The decision maker’s job is to mentally weigh up
the various pieces of evidence, determining how persuasive each one is, and then
balance it out to reach a conclusion. This weight and balance metaphor may sug-
gest some kind of scientific or mathematical process, but in practice the process
usually involves a large degree of discretionary judgment. By conferring decision-
making power on the administrative agency, the legislature has indicated that it
relies on the decision maker’s judgment and discretion to achieve the legislation’s
underlying objective. The courts therefore strongly adhere to the principle that
the decision maker’s evaluation of the evidence lies at the heart of the decision’s
merits. Factual findings cannot be judicially reviewed simply because the court
would have reached, weighed and balanced the evidence differently.
However, if there really is no more than a mere ‘skerrick’ of evidence going one
way, and overwhelming evidence going the other, then objectively there may only
be one finding reasonably open. A decision maker who makes the contrary finding
invites judicial criticism. Several possible doctrinal bases have been identified
for why the court can invalidate such decisions: The decision maker must have
misunderstood the law to be applied, or asked the wrong question, or must not
actually have been satisfied of the requisite state of affairs;29 or the decision maker
has created a reasonable apprehension of bias,30 or the finding was ‘Wednesbury
unreasonable’.31
Conceptually, Wednesbury unreasonableness provides the most satisfying
explanation for such a holding. It provides a direct, and quite apt, description
of the actual problem: ‘No reasonable decision maker, looking at the evidence,
could have made that finding of fact’. The other suggested doctrinal bases all
require the court to infer, from the finding’s objective unreasonableness, that
some other problem exists: if the decision maker decided that, then by implica-
tion they must have asked themselves the wrong question, or not really considered
the question at all, or have already prejudged the question. However, S20 appears
to have closed off using Wednesbury unreasonableness to describe the problem. It
held that Wednesbury unreasonableness only applies to exercises of discretions,
so that it cannot be used as a ground of attack for factual findings that were not
objectively open on the evidence.32
This does not mean that such findings are immune from review. If a factual
finding flies in the face of overwhelming evidence, a court may still infer that
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REASONABLENESS, RATIONALITY AND PROPORTIONALITY


the decision maker must have applied the wrong legal test, or asked the wrong
question. Alternatively, S20’s requirement that the decision be based on findings
of fact ‘supported by logical grounds’ may be broad enough to encompass objec-
tively unreasonable factual findings.33 In any case, S20 clearly does allow review
of a decision maker’s failure to rationally consider the evidence, and that will
often be easier to demonstrate than that the finding itself was not reasonably
open on the evidence. A critical finding may well have been reasonably open,
but if the decision maker’s reasons were seriously flawed, their decision can still
be set aside. For example, in S20 itself, Kirby J accepted that the decision was
reasonably open on the evidence,34 but considered it invalid because the decision
maker had not rationally considered the evidence.


The decision maker must have rationally considered
the evidence
S20 is significant because it clearly establishes that courts can review the sub-
jective rationality of factual findings. The question whether this is an available
ground of review has long been a vexed one.35 In Epeabaka v Minister for Immigra-
tion and Multicultural Affairs,36 the Full Federal Court held that a decision could
not be invalidated on the basis that the decision maker had failed to rationally
consider the evidence. In S20, the High Court did not give explicit guidance on
the authoritative status of the earlier case-law, and the Full Federal Court has
been divided on whether this ground is now open.37 It surely must be, given that
in S20 the High Court clearly did examine whether the decision maker had failed
to rationally consider the evidence.
In S20, the Refugee Review Tribunal had rejected the applicant’s claims of
persecution in the past because inconsistencies in his evidence led the tribunal
to reject his credibility. Having rejected the applicant’s credibility, the Tribunal
declared that it gave no weight to corroborating evidence from several indepen-
dent sources that clearly supported the applicant’s story.
The applicant argued that this was illogical. The question was whether the
corroborative evidence strengthened the applicant’s credibility, not whether the
person’s lack of credibility undermined the corroborative evidence – after all,
the evidence did not come from him. The tribunal ought to have suspended its
conclusion on the applicant’s credibility until after it had determined what weight
the corroborative evidence should have, judged on its own merits. The trial judge
and all members of the Full Federal Court agreed that the tribunal’s reasoning
was flawed in this way, but the trial judge and a majority of the Full Federal
Court (Hill and Stone JJ, Finkelstein J dissenting) held that failure to rationally
consider the evidence was not an available ground of review.
The High Court in effect upheld Finkelstein J’s view of the applicable law. The
Tribunal’s decision could be set aside if it was shown to be ‘irrational, illogical
and not based upon findings or inferences of fact supported by logical grounds’.
However, a majority (Gleeson CJ, McHugh, Gummow and Callinan JJ, Kirby
222 AUSTRALIAN ADMINISTRATIVE LAW


J dissenting) held that the decision maker’s reasons were not logically flawed.
The majority’s main reason for this was that it accepted, as a general proposition,
that a person’s own credibility may be so ‘shot’ that no amount of independent
corroboration can restore it. McHugh and Gummow JJ said: ‘It cannot be irra-
tional for a decision maker . . . to proceed on the footing that no corroboration can
undo the consequences . . . of a conclusion that’38 a party is lying. With respect,
however, this statement must be subject to some qualification. At the very least, it
clearly is irrational for a decision maker to ignore corroborative evidence, if their
conviction that a person is lying has a totally illogical basis, such as the person’s
shoe-size.
Ultimately, the balance between corroboration and credibility depends on just
how ‘shot’ the person’s credibility is, and how strong the corroboration is. Indeed,
all members of the High Court considered that the tribunal should actually have
considered the corroborative evidence in this case. Gleeson CJ ultimately only
let the tribunal member off the hook by suggesting that she did not mean what
she said about giving the corroborative evidence ‘no weight’.39 McHugh and
Gummow JJ (Callinan J agreeing) took the tribunal member at her word, and
thought that it would have been ‘preferable’ had she weighed up the corroborative
evidence before reaching a conclusion on credibility. However, her failure to do so
went to the merits of her decision, not its validity.40 Kirby J also took the tribunal
member at her word, but, in his view, her failure to consider the corroborative
evidence went to the legality of her decision, because she had failed to take a
fundamental step in the legally-required reasoning process.41
Two further observations about S20 are worth making. First, McHugh, Gum-
mow and Callinan JJ’s approach reflects the courts’ traditional reluctance to
probe too deeply into credibility findings where evidence is given orally.42 Credi-
bility assessments can happen subconsciously and in the blink of a witness’s eye,
and decision makers are not required to give detailed reasons for why they reject
a witness’s credibility. On the other hand, there are clear dangers in making cred-
ibility assessments ‘intuitively’, especially where cross-cultural communication
issues arise, and when dealing with people who may be vulnerable, traumatised
and rightfully fearful of authority.43 There is an increasing expectation for cred-
ibility assessments to be put on a more objective basis than ‘I found the person
inherently unbelievable’. Failing to do so is not an error of law, although it may
yet become one. However, if the decision maker does offer more objective reasons
for disbelieving a person, the courts are increasingly likely to examine them to
ensure that they are reasonably plausible, notwithstanding the majority’s lack of
inclination to go down this path in S20.
Secondly, it is unclear how S20 applies where the decision maker has made a
simple mistake about the evidence, for example, misreading a six (6) for a nine
(9). Such errors, on their own, do not equate with irrationality.44 On the other
hand, the decision maker may turn their simple error into the fundamental, but
clearly erroneous, premise for a whole chain of reasoning. In such a case, are the
ultimate factual findings and inferences ‘supported by logical grounds’?45
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REASONABLENESS, RATIONALITY AND PROPORTIONALITY


The rule of restraint
Not every factual conclusion in a statement of reasons needs to be indepen-
dently based on rationally probative evidence, objectively open on that evidence,
and reached through a rational process of reasoning. First, decision makers can
usually take uncontested facts for granted, and concentrate their attention on
the issues in contention. Otherwise, the process of obtaining the evidence and
finding the facts would be incredibly burdensome and impractical. Secondly,
decision makers are entitled to rely on their own knowledge, experience and
expertise when they assess the evidence. For example, the courts readily accept
that decision makers can rely on their own judgment and experience to reject a
supposed version of events as inherently implausible. They do not require specific
evidence that similar events have never ever occurred, which would of course be
impossible to obtain. Thus, up to a point, there is nothing wrong with decision
makers generalising from what they already know.46
Thirdly, not every factual aside, comment or observation need be based on
rational consideration of rationally probative evidence. As the High Court empha-
sised in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,47 the reasons
must be read fairly and as a whole. The court’s role is not to go over them with a
fine toothcomb looking for minor errors, or as Kirby J put it in S20, ‘minor infe-
licities or trivial lapses in logic’.48 Flaws in the reasoning process must be serious
before a court will entertain an argument that they vitiate the factual finding.
Finally, and most importantly, the ultimate decision must be based on the
impugned finding: it must appear that the same ultimate decision would not
have been made without the impugned finding having been made.49 A similar
requirement applies under the specific ‘no evidence’ ground of review in the
Administrative Decisions (Judicial Review) Act 1977 (Cth).50 The High Court has
interpreted this requirement strictly, requiring that the impugned finding be
‘critical’ to the ultimate decision.51 This is often discussed in terms of the finding
being a ‘critical link’ in the decision maker’s ‘chain of reasoning’, and a search
for whether there is sufficient rational support for the ultimate decision in the
reasons, even without the particular factual finding.52


Managing uncertainty
In practice, decision makers frequently cannot determine the facts with any cer-
tainty. The available evidence is often limited, and the underlying cause of known
facts may not be well-understood. Further, decision makers are only human, so
their capacity to process large amounts of information is naturally limited. Get-
ting more and more information may not actually lead to any greater clarity
if it simply overwhelms the decision maker’s ability to ‘hold it all together’. In
practice, then, the courts recognise that decision makers need to be able to act on
imperfect information, and cannot display logically perfect reasoning, in coming
to their conclusions.
224 AUSTRALIAN ADMINISTRATIVE LAW


But what if the decision maker, acting reasonably, just cannot be sure? In
S20 itself, while there was some corroboration of the applicant’s story, there
were still some problems with it, so any decision maker would have found it dif-
ficult to be sure whether to believe the applicant. Faced with uncertainty, one
option is to simply decide that some elements of the evidence are more important
than the others, and then reach the conclusion that those elements support, as
did the tribunal member in that case. In practice, though, that often amounts
to little more than a stab in the dark. The alternative is to openly acknowl-
edge the uncertainty, and then determine the legal consequences that flow
from it.
Legally, administrative decision makers usually do not have to be satisfied
beyond reasonable doubt. Certainty is not required. Rather, administrative deci-
sion makers usually ought to decide on the balance of probabilities, which means
asking ‘Is it more likely than not?’53 This is consistent with basic expectations
of rationality – it is irrational to believe in one version of events if you actually
consider another version to be more likely. Under the balance of probabilities
test, the mere fact that the decision maker has some doubt about asserted facts
does not mean that they should not accept them.54 That is the beyond reasonable
doubt standard. Asserted facts may be somewhat doubtful, but, on the evidence,
still more likely than not. In practice, however, once doubts are raised it may be
difficult to rationally decide even what is more likely than not. The only rational
and truthful answer may simply be ‘I just don’t know’.
If insufficient evidence exists to decide rationally where the balance of prob-
abilities lies, then the default rule is that the ‘status quo prevails’.55 For example,
when a person applies for some kind of governmental grant or benefit, the general
rule is that the applicant needs to provide sufficient evidence to demonstrate that
they meet the relevant criteria. If they fail to do so, then the application can be
refused, without the decision maker having a duty to enquire, i.e. obtain further
information to fill the gaps in the applicant’s case.56 On the other hand, decision
makers may be empowered to initiate the decision-making process themselves,
for example by considering whether an existing grant should be cancelled. In
these cases, the decision maker needs to gather sufficient evidence to be reason-
ably satisfied of facts that justify the action being taken. If sufficient evidence
is not available to rationally induce the required satisfaction, then the decision
maker cannot act. Of course, in such cases the affected person may still have a
‘practical’ or ‘tactical’ onus, in the sense that their failure to provide certain kinds
of information may well allow the decision maker to draw adverse inferences
about them.
The balance of probability test is the usual test, but a statutory grant of power
may expressly adopt a different one. For example, it may require the decision
maker to reach a higher level of satisfaction about the requisite state of affairs,
such as beyond reasonable doubt, before they can act. Alternatively, it may set a
lower standard, such as requiring no more than a reasonable suspicion. In the first
case, if the evidence is not sufficient for the decision maker to rationally reach the
225
REASONABLENESS, RATIONALITY AND PROPORTIONALITY


required certainty, then the conditions necessary for them to take action do not
exist. In the alternative case, the decision maker can act on the basis of reasonable
possibilities, rather than probabilities.
Even where the statute does not expressly depart from the balance of prob-
ability test, properly understood it may allow or require the decision maker to
apply a different test in order to achieve the statute’s underlying purpose. For
example, many statutes are intended to protect people or the environment from
some form of risk. The concept of ‘risk’ spans two spectra: the likelihood of occur-
rence (that is, from the barely possible, to the very probable); and the magnitude
of the consequences (that is, from minimal to catastrophic). Just how great the
risk should be before the regulatory agency intervenes is pre-eminently a pol-
icy question that the legislature has committed to the administrative agency,
not a court, to decide. A decision maker can therefore be quite risk averse, and
decide to act on the basis of quite limited evidence that the risky event has or
will occur, particularly where they consider the stakes to be high in terms of
consequences.
When it comes to determining whether or not a person is a refugee, the question
is whether they have a well-founded fear of persecution. A fear will be well-
founded if there is a real chance or real possibility of it occurring; thus decision
makers do not need to be satisfied that it is more likely than not. Furthermore,
the real chance test applies not only to predicting what is likely to happen in the
future, but also to what happened in the past.57 In other words, decision makers
should ask themselves whether there is a real chance that the applicant is telling
the truth, not whether it is more likely than not that they are. In S20, the majority
did not explain why the decision maker could ignore whether the corroborative
evidence showed there was at least a real chance that the applicant would face
persecution in Sri Lanka.


Reasonable exercises of discretion

As discussed above, Wednesbury unreasonableness applies primarily, if not only,
to exercises of administrative discretion – the ‘Z’ part of ‘If Y exists, X may do
Z’. The decision maker has discretion if they have a choice about what to do in
the particular circumstances. This may involve choosing from a limited menu of
options in the statute itself, or a more open-ended search for the best response,
for example, determining what action would be necessary and convenient or in
the public interest. In either case, identifying the appropriate action inherently
raises public policy questions that the legislature has committed to the admin-
istrative agency to resolve. Separation of powers considerations apply strongly
here, because judges cannot impose their subjective views about good public
policy on the government.58
However, even the broadest, most open-textured discretions are subject to
some limits. A key limit is that they must be exercised in order to achieve the public
226 AUSTRALIAN ADMINISTRATIVE LAW


policy purpose underlying the statute conferring the discretion.59 Decision mak-
ers are thus usually restricted to choosing the means they will employ to achieve
that statutory purpose, rather than determining the ultimate end to be achieved
itself. If a decision maker’s choice of means does not appear to be rationally
related to a valid statutory purpose, then a court may invalidate their decision,
either by inferring that the decision maker had another, improper purpose, or for
unreasonableness.60 The selected means may appear not to be rationally related
to the statutory purpose in either of two ways:

1. The means cannot reasonably be expected to be effective in achieving the relevant
end at all;
2. The means, whilst effective, appear to be a wholly inappropriate way to achieve
the relevant end.

The first ground is very difficult to establish. Administrators cannot be
expected to perfectly predict the future, or achieve perfect outcomes. Predict-
ing outcomes is often necessarily speculative, and there must be scope for policy
experimentation. One possible example of this ground, though, is Austral Fish-
eries Pty Ltd v Minister for Primary Industries and Energy,61 in which a fishery
management plan was held to be unreasonable. The plan implemented a new
‘Total allowable catch’ for the fishery by introducing a new quota system. The
aim was that each industry participant would be allocated a quota in proportion
to their share of the total catch under the old system. However, a statistical fallacy
in the formula used to calculate the quotas meant that some participants were
allocated far less than their pre-quota share, while other boats were allocated far
more. The plan therefore could not reasonably be considered likely to achieve
the intended outcome.
The second ground is the more usual basis on which Wednesbury unrea-
sonableness is argued. As Aronson, Dyer and Groves say, this form of Wednes-
bury unreasonableness ‘is inescapably qualitative, because it requires qualitative
assessment of the impugned decision’.62 Thus, such arguments are often simply
invitations – rarely accepted – for the courts to express their own views about the
decision’s merits. For this ground of review to rise above merits review, and have
a principled basis, there must be a relevant normative standard that limits the
choices allowed to the decision maker in the circumstances,63 which the decision
has exceeded. To be relevant, the normative standard must be more than just the
individual judge’s subjective views about what should have been done. It must
reflect some wider community standard that the decision maker was bound to
respect, either by virtue of the common law, or because the legislature must be
taken to have so intended.
Thus, in a frequently quoted passage in Council for Civil Service Unions v Minis-
ter for Civil Service (CCSU),64 Lord Diplock suggested that Wednesbury unreason-
ableness ‘applies to a decision which is so outrageous in its defiance of . . . accepted
moral standards that no sensible person who applied his mind to the question
could have arrived at it’. In Kruger v Commonwealth,65 Brennan CJ said:
227
REASONABLENESS, RATIONALITY AND PROPORTIONALITY


When a discretionary power is statutorily conferred . . . the power must be exercised
reasonably, for the legislature is taken to intend that the discretion be so exercised.
Reasonableness can be determined only by reference to the community standards at
the time of the exercise of the discretion and that must be taken to be the legislative
intent.

The difficulty is to identify community standards that clearly operate to limit
administrative discretion. In practice, most unreasonable cases have involved
either issues of inconsistency and unequal treatment, or some kind of excessive
and disproportionate impact on affected individuals.


Inconsistency and unequal treatment
Consistency, in the sense of treating like cases alike, is a basic goal of bureaucratic
organisations and a basic requirement of good administration.66 As the Western
Australian Full Court said recently:

Inconsistency has the potential of bringing the decision-making process into disrepute
because it suggests that the decision is arbitrary, rather than one made in accordance
with a disciplined approach reflecting the application of sound [policy] principles and
consistent with commonly accepted notions of justice.67

In Kruse v Johnson,68 Lord Russell of Killowen CJ made an early suggestion
that inconsistent treatment may be unreasonable, saying that a council by-law
might be invalid if it was ‘partial and unequal’ in its operation. In Parramatta City
Council v Pestell,69 the High Court did indeed strike down a decision to impose
a rate on industrial properties, but not residential properties in the same area,
when both types of property would benefit equally from the work to be paid for
by the rate. In Sunshine Coast Broadcasters Ltd v Duncan,70 Pincus J held that a
decision rejecting one application, for reasons equally applicable to competing
applications that were allowed, was an abuse of power because no rational basis
for the differential treatment could be shown.71
On the other hand, in De Silva v Minister for Immigration and Multicultural
Affairs,72 the Full Federal Court accepted that there was a rational basis for
treating differently people from Sri Lanka, depending on when they had arrived
in Australia. From 1990, in light of conflict in Sri Lanka, all Sri Lankans lawfully
in Australia were able to automatically obtain a series of twelve-month visas
allowing them to remain here on humanitarian grounds. In 1997, the government
decided that those who had arrived before 1 November 1993 would be allowed
to stay permanently, without having to show that they had a well-founded fear of
persecution and therefore were refugees. The others would either have to show
that they were refugees, or go home.
The legality of this policy was challenged by 164 Sri Lankans who had arrived
after the cut-off date. They argued that there was no rational basis for treating
them differently from those who had arrived earlier. The government explained
that its policy was to resolve the status of people from a number of countries
228 AUSTRALIAN ADMINISTRATIVE LAW


besides Sri Lanka, who had also been on temporary humanitarian visas for a long
time because of conflicts in their home countries. In other words, the basis for
the distinction was not the conditions in the person’s home country, but how long
they had been in Australia on a temporary humanitarian visa.
The Court accepted that the length of time in Australia was a rational basis
for distinguishing between different groups of people. Implementing this policy
necessarily involved identifying a cut-off date. While the date selected was in
one sense arbitrary, by excluding those who arrived even one day later, any cut-
off date would inevitably have this effect. Thus, the cut-off date was rationally
related to the end to be achieved, and its differential impact was both rationally
explicable and necessary in order to achieve the policy objective.


Disproportionate impact
Administrative agencies are established to take action, in the public interest,
that often impacts adversely on particular individuals. This is particularly true
of regulatory agencies, which regulate what individuals and businesses may do
to their workers, customers, shareholders, the environment and so on. The mere
fact that an administrative agency’s action impacts on a person cannot, with-
out more, mean that its action was Wednesbury unreasonable.73 On the other
hand, the principle that the punishment should fit the crime is well-established,
and not just in criminal law. When considering how to respond to a particular
problem, such as a breach of a licence condition, the decision maker may have
a menu of options to choose from that range in their severity. If the infraction is
very minor, selecting the most severe response available may be out of all pro-
portion to the situation and therefore unreasonable. As Sir Anthony Mason has
argued:

A decision which involves the application of policy to an individual to his detriment in
circumstances where there is no reasonable basis for thinking that the integrity of the
policy will be significantly compromised if the decision went the other way, is dispro-
portionate to the interest which the decision maker seeks to protect. Gross dispropor-
tionality in this sense often lies behind a conclusion that a decision is unreasonable.74

One example is Hall and Co Ltd v Shoreham-by-Sea Urban District Council.75
Hall applied for planning permission to develop land alongside a busy road. The
local authority granted permission on the condition Hall construct and maintain
a public road along the front of the land, parallel to the existing road, to relieve
congestion on that road. The local authority had the power to resume land needed
for public roads, but was required to pay compensation if it did so. The council’s
attempt to achieve the same end without paying compensation was unreasonable.
The leading Australian example is Edelsten v Wilcox.76 Edelsten was a doctor
who owed the Australian Tax Office (ATO) a large amount of money. To recover
it, the ATO ordered the Health Commission pay to it 100% of all the Medicare
payments that the Commission owed to Edelsten. The Medicare payments were
229
REASONABLENESS, RATIONALITY AND PROPORTIONALITY


Edelsten’s only source of income, and were also necessary to meet his business
outlays, so this decision threatened to put him out of business. He was also
appealing the amount that he owed to the ATO, and he was likely to have to
abandon his appeal because of the decision’s practical impact. The Full Federal
Court held that the ATO’s decision was a disproportionate solution that made
absolutely no attempt to balance the competing interests, and it was therefore
unreasonable.


Proportionality, human rights and degrees of scrutiny
In both of Hall and Edelsten, the public policy objective could be achieved equally
effectively, without such a harsh impact. However, it is for the decision maker to
decide how important the policy objective is, and therefore what level of effec-
tiveness is needed. Traditionally, Wednesbury unreasonableness does not apply
where a less severe approach would compromise effectiveness. On this view, the
courts cannot require decision makers to trade off some degree of effectiveness, in
order for their decisions to have a less severe impact. Doing so is an impermissible
intrusion into the decision’s merits.
This is very much a one size fits all approach to unreasonableness. It does not
distinguish between more and less important policy objectives, nor between more
and less important individual interests. In practice, of course, the common law
has long considered some individual rights and interests more important than
others.77 By the same token, some policy objectives are generally considered more
important than others – counter-terrorism versus anti-littering, for example. A
measure impacting on individual rights may appear a proportionate response to
the problem of terrorism, but disproportionate to the problem of litter.
In Europe, in recognition of this, a more specific proportionality test has devel-
oped as a test of validity of administrative actions impacting on human rights pro-
tected by the European Convention on Human Rights (ECHR). In essence, under
the European proportionality principle the court examines whether a decision’s
impact on a fundamental human right was no greater than was strictly neces-
sary in the circumstances. In assessing what was necessary, the policy objec-
tive’s importance is weighed in the balance. Some trade-off in effectiveness may
be required, if fully achieving the policy objective is not considered important
enough to justify the impact on human rights.
Lord Diplock seems to have had this approach in mind when he identi-
fied proportionality as a potential ground of review in CCSU.78 This sugges-
tion was soon taken up, and since Bugdaycay v Secretary of State for the Home
Department,79 the English courts have made Wednesbury unreasonableness more
context-dependent. Thus, ‘the intensity of review in a public law case will depend
on the subject-matter at hand; so in particular any interference by the action
of a public body with a fundamental right will require a substantial objective
justification’.80 In other words, the nature of the impact on individuals has to be
weighed against the objective importance of the policy objective. The requirement
230 AUSTRALIAN ADMINISTRATIVE LAW


for more intense scrutiny when fundamental common law rights are at stake
emerged before the Human Rights Act 1998 (UK) introduced the European pro-
portionality principle directly into English administrative law.81 Thus, today the
English courts apply three levels of intensity of scrutiny:

• The ‘traditional’ Wednesbury approach, where there is no particular impact on fun-
damental rights.82
• Heightened levels of more ‘anxious scrutiny’ where fundamental or common law
rights are at stake.83
• A European proportionality analysis where specific Convention rights are at stake.84

It remains to be seen whether Australian courts will similarly move beyond
a one-size-fits-all approach to Wednesbury unreasonableness, and increase the
intensity of scrutiny when fundamental rights are at stake. In S20, Kirby J was
alone in endorsing the second level of ‘heightened scrutiny’ approach in relation
to decisions that ‘imperil life or liberty’.


Reasonable Delegated Legislation
Delegated legislation can be attacked as unreasonable in two situations. The
first is where the power to legislate is delegated in terms of ‘If X is satisfied Y
exists, X may . . . ’ make a regulation or by-law, or other rule having legislative
force. The High Court’s approach in Enfield and S20 applies equally here. Power to
legislate does not exist unless the required satisfaction or opinion was reasonably
formed.85 Thus, the requirements for reasonable fact-finding discussed earlier
apply here, with the qualification that power to legislate is rarely delegated in
terms that require the subordinate legislator to decide pure questions of fact.
Attention is normally focussed on wider public policy questions, so decisions
are usually less vulnerable to attack on the basis of ‘no evidence’, or failure to
rationally consider the evidence.
The second situation in which the validity of delegated legislation can be
attacked as being unreasonable is where the power to legislate is granted in
order to provide an administrative means for achieving an identifiable legislative
purpose. This picks up the earlier discussion about the proportionality of means
and ends. As Dixon J said in Williams v Melbourne Corporation,86 delegated leg-
islation is invalid if ‘it could not reasonably have been adopted as a means of
attaining the ends of the power’. In modern terms, a court can review whether
the delegated legislation is ‘reasonably appropriate and adapted’ to achieving the
statutory purpose.87 Again, what was said earlier about disproportionate impact
on individuals applies here as well.
The complicating factor is that it remains unclear exactly when the reason-
ably appropriate and adapted test applies. In theory, it is well established that
it applies at least where the power is expressly purposive, but courts still do not
always apply the reasonably appropriate and adapted test.88 Even where power to
legislate is delegated in purely subject matter terms, the reasonably appropriate
231
REASONABLENESS, RATIONALITY AND PROPORTIONALITY


and adapted test should in principle still apply. The distinction between sub-
ject matter and purpose, as a basis for determining whether the test applies,
comes from constitutional law. The High Court uses subject matter and purpose
as alternative ways of testing whether there is a sufficient connection between
a Commonwealth law and a constitutional head of power. If the law and a head
of power have the same subject matter, then a sufficient connection exists, and
the law’s purpose is irrelevant. However, a law that does not directly operate on
a head of power’s subject matter will still be sufficiently connected to it, if the
law is reasonably appropriate and adapted to achieving a purpose that is within
power.
If the same approach is taken with respect to delegated legislation, then the
reasonably appropriate and adapted test would be inapplicable to exercises of
purely subject matter powers. However, the constitutional grants of power to
the national Parliament to legislate on specific subjects for Australia’s ‘peace,
order and good government’ are very different from statutory grants of power
to administrative agencies to legislate. The constitutional grants of power with
respect to particular subject matters are not limited to the achievement of any
particular purpose, so the High Court has no reason to ask whether the law on
the relevant subject matter is reasonably appropriate and adapted to achieving a
purpose. In contrast, administrative agencies are only ever given power, including
legislative power, for particular purposes. The proper purposes doctrine already
requires an agency’s purpose in making delegated legislation to be consistent with
the head legislation’s purposes, even where the power to legislate is delegated in
purely subject-matter terms.89 Thus, even when the power to legislate is expressed
in purely subject matter terms, delegated legislation’s validity depends on its
purpose, and the reasonably appropriate and adapted test is therefore applicable.
There are good reasons for requiring delegated legislators to articulate the
purposes for which the delegated legislation has been made, and then demon-
strate that it is reasonably appropriate and adapted to achieving that purpose. R
v Toohey; Ex Parte Northern Land Council,90 in which delegated legislation was
made extending Darwin’s town boundaries for the improper purpose of defeating
an Aboriginal land claim, shows that such power can be the subject of very real
abuse. The law will not be effective in curbing such abuses if delegated legisla-
tors do not have to disclose their purposes. And there is little point in requiring
purposes to be proper, unless a rational connection between the stated purpose
and the law is also required. Otherwise, delegated legislators will be able to say
one thing – that they are acting for a proper purpose – but do another – act in a
way that achieves a completely different purpose.

The main criticism advanced against the development of unreasonableness as a
ground of judicial review is that it is too indeterminate a standard. Administra-
tors, affected individuals and courts have insufficient guidance as to what will
count as unreasonableness in a particular case. This criticism has some force. For
example, exactly what makes a decision illogical, irrational, or based on findings
232 AUSTRALIAN ADMINISTRATIVE LAW


of fact not supported by logical grounds, and when this test applies, is far from
clear. On the other hand, unreasonableness and related grounds are no more
indeterminate than the distinction between jurisdictional and non-jurisdictional
errors of law, which was so central for so long, and is now undergoing a revival
in the High Court’s jurisprudence on the constitutional writs under s75(v) of
the Constitution. Similarly indeterminate standards abound in other areas of
the law too – the reasonable foreseeability test in negligence law, for example.
Whatever one thinks about the acceptable level of legal indeterminacy generally,
unreasonableness in administrative law is not an extreme example of it.
An alternative view is that unreasonableness’s indeterminacy is a strength,
not a weakness. It is indeterminacy that has allowed the Australian courts to
slowly but surely turn up the intensity of review of factual findings. The effect
of this, in my view, has clearly been to enhance the integrity of administrative
decision-making in this country. It is also indeterminacy that has allowed the
English courts to modify the traditional one-size fits-all approach to Wednesbury
unreasonableness, in recognition that not all policies, and not all affected inter-
ests, are created equal. While the Australian courts have not yet gone down this
path, the logic is strong, and it is probably only a matter of time until they do.
The logic is not all one way, however. Governments are not powerless here.
They can choose how they respond. The negative reaction is to try to ward off
the courts with privative clauses. A more positive approach is to build greater
integrity into the system in the first place. The courts are well aware that review
for unreasonableness, after a decision has been made, is a poor substitute for well-
designed institutions in the first place. Decision-making bodies can be designed to
minimise the possibility for arbitrary and capricious decision-making in a number
of ways. Multi-member panels are particularly effective, particularly where the
members are genuinely independent and bring a range of perspectives, expertise
and experience to the task. In such a setting, flaws in reasoning are usually quickly
exposed through robust debate. Open, participatory and transparent procedures
help too. Indeterminacy means that the courts can turn down the intensity of
review if the decision-making institution is well designed,91 as well as turn it
up if it is not. More open acknowledgment of this by the courts would create
clear incentives for governments to respond positively rather than negatively,
and build more integrity into their institutions.
15
The ‘no evidence’ rule
Bill Lane




‘No evidence’, law versus facts and the
‘legality-merits’ distinction

Generally, courts have been reluctant to interfere by way of judicial review in
the manner in which decision makers assemble facts and evidence1 so that the
extent to which an absence or insufficiency of evidence constitutes a basis for
judicial review has been difficult to determine precisely. This judicial reluctance
to evaluate the evidence on which a decision is based reflects the ‘critical line
between factual and legal matters’2 and the historical importance which the
law attaches to the conventional distinction between errors of law and errors of
fact. As Aronson, Dyer and Groves have explained, the fact/law distinction is a
fundamental tenet of legal doctrine, observable in most areas of law, albeit one
of notorious difficulty in application.3 In a criminal trial, for instance, the role of
the judge is to declare the law whilst the function of the jury is to determine the
facts and in the process of litigation generally, the function of higher or appellate
courts is mostly confined to resolving questions of law.
In administrative law, the fact/law distinction is readily observable in the
relationship between administrative appeals and judicial review.4 In most systems
of administrative decision-making, an appeal from a primary decision maker to
a higher administrative official or tribunal usually means a re-hearing of the
facts and evidence. On the other hand, intervention by way of judicial review
means that the role of the court is confined to the correction of legal errors. As
Kirby J explained in Minister for Immigration and Multicultural Affairs; Ex Parte
Applicant S20/2002, judicial review is not a basis for a complete re-evaluation of
the findings of fact made by an administrative tribunal.5


233
234 AUSTRALIAN ADMINISTRATIVE LAW


In Australia, the fact/law distinction in administrative law is accentuated as
a result of the marked separation of judicial power under the Australian Con-
stitution. In Australian Broadcasting Tribunal v Bond,6 Mason CJ spoke of the
relationship between the executive and judicial branches of government as mean-
ing that the function of courts exercising judicial review does not ordinarily
extend to an examination of findings of facts.7
The distinction between legality and merits is another way of describing the
manner in which this constitutional separation of judicial power dictates avoid-
ance of judicial interference in the fact finding and evidentiary processes of
administrative decision makers. Brennan J warned in Attorney-General (NSW)
v Quin8 that if courts were to examine the merits of an administrative decision,
they would assume a power to do the very thing entrusted to the repository
of an administrative power within the executive branch, thus transgressing the
autonomy of the three branches of government.9
In other words, the legality merits distinction is deeply rooted in conventional
doctrine about the role of the judiciary in a system of government based on a
formal separation of powers. It has played a central, legitimising role in rela-
tion to judicial review of administrative action in Australia with the result that
recognition of no evidence as a ground of judicial review has been relatively cir-
cumscribed. This is in contrast to the more relaxed approach which has evolved
under English law.10


‘No evidence’ as a basis for judicial review

In considering the manner in which ‘no evidence’ has emerged as a basis for
judicial review, it is useful to bear in mind at the outset that the use of the word
‘evidence’ in a legal context is normally taken to mean material which would be
legally admissible in judicial proceedings, that is, in accordance with the rules of
evidence.11 However, most administrative decision makers, including tribunals,
are not bound by the rules of evidence; their statutory charters often directing
them to proceed with as little formality and technicality as possible in order to
arrive expeditiously at a just result.12 In this context therefore, the term ‘evidence’
does not carry the same meaning as it does in judicial proceedings and often other
terms such as ‘matter’ or ‘material’ are used which are an appropriate shorthand
method of signifying the distinction. For instance, the system of statutory judicial
review in Australia, based on the Administrative Decisions (Judicial Review) Act
1977 (Cth)13 (ADJR Act), does not apply against an exercise of judicial power and
in that respect, its ‘no evidence’ ground (dealt with later) refers to ‘evidence or
other material’ where the term ‘other material’ encompasses matter which would
not be admissible in accordance with the rules of evidence.14

Fact finding generally and errors of law
As indicated earlier, the confined nature of judicial review reflects the underlying
importance of the fact/law distinction so that judicial interference in the fact
235
THE ‘NO EVIDENCE’ RULE


finding and evidentiary processes of decision makers is formally restricted to
errors of law. Of course, the often fine distinctions which courts draw in classifying
an error as legal, rather than factual, are the subject of much critical analysis.15
However, it is at least recognised that as a general principle, the existence or
otherwise of evidence of a particular fact is a question of law16 so that an absence
of evidence or material to sustain a finding or inference of fact is an error of law.17
As Diplock LJ colourfully explained in R v Deputy Industrial Injuries Com-
missioner ex parte Moore,18 the decision maker ‘must not spin a coin or consult
an astrologer’ although it can be safely presumed that the threshold level of
acceptable decision-making sits well above a benchmark of that nature. Gener-
ally, administrative decision makers are expected to base their findings on pro-
bative material which is capable, as a matter of normal logic, of demonstrating
the existence or non-existence of the relevant facts.19
The procedure by which both administrative decision makers assemble rel-
evant evidence and reach decisions is largely the same as it is for courts. The
process was described by the New South Wales Court of Appeal in Azzopardi v
Tasman UEB Industries Limited20 as involving three stages – the first being the
determination of primary facts and inferences, the second involving identifying
and making directions as to relevant law and the third constituting the applica-
tion of the relevant law to the facts.21 Not surprisingly, there was no disagreement
between the members of the court that any error committed at the second stage
of identifying the relevant law would constitute an error of law.
However, the first and to some extent the third stages, involving as they do the
resolution of facts and evidence, produced a difference of views. Although it is
widely accepted that an error of law will occur if there is no evidence to support
the existence of a fact, the majority in Azzopardi considered that as a general
rule, the process of determining primary facts at the first stage of the process was
not vulnerable to attack on the basis of error of law.22 On the other hand, Kirby
P took the view that errors of law were, indeed, possible at this stage – where
‘manifest error or illogicality in the reasoning process’ was apparent.23
In relation to the third stage, the majority considered that ‘marginal
cases’ might exhibit an error of law, for instance, where a statutory test is
not satisfied24 although no real analysis followed. Nonetheless, Azzopardi’s
reference to ‘marginal cases’ where the application of statutes is involved draws
attention to the fact that in cases of this nature, the process of identifying legal,
as opposed to factual errors is often fraught with uncertainty. In general, misin-
terpreting a statute may mean that an incorrect legal test is applied and that may
result in a decision based on an absence of material to support conclusions of
fact.25 In that respect, as Starke J pointed out in Federal Commissioner of Taxation
v Broken Hill South Limited,26 a question of law arises if there was no material to
justify the meaning given to the relevant words of a statute.27 Broken Hill South
Limited involved legislation allowing for tax concessions for ‘mining operations’.
The issue was whether the decision-making body was correct in determining
that this phrase encompassed activities constituting the upkeep, maintenance
and safety of an inactive or shut-down mine. In the result, the High Court took
236 AUSTRALIAN ADMINISTRATIVE LAW


the view that it was permissible for the decision maker to adopt a construction of
the phrase which would encompass the activities in question, implying in other
words that there was sufficient material to support the meaning adopted so that
there was no error of law.
Beyond this, however, most authorities indicate that errors of law in relation
to the construction of statutory words and phrases are generally confined to tech-
nical or specialist words, as opposed to words capable of definition by reference
to their ordinary dictionary meaning.28


‘No evidence’, jurisdictional error and error of law on the
face of the record
The emergence of ‘no evidence’ as a basis of judicial review under common law
is inherently linked with prerogative writ procedure and in particular, the writs
of certiorari and prohibition in relation to the correction of jurisdictional error.
Originally of course, these writs applied against inferior courts and indeed, most
of the early cases involving attempts to challenge decisions for want of evidence
involve decisions by justices and magistrates.29 Generally speaking, however,
superior courts were initially loath to engage in any kind of re-examination of
the facts and evidence, a position stemming from the basic approach that in accor-
dance with its primary and original meaning, jurisdictional error was confined
to the correction of an unlawful assumption of authority.
The 1922 decision of the Privy Council in R v Nat Bell Liquors Ltd30 is generally
regarded as the classic representation of this judicial reluctance to interfere. The
case involved a magistrate’s decision to convict a company for the unlawful sale of
alcohol. The conviction was ultimately shown to be based on the uncorroborated
evidence of a single witness, who had acted as an agent provocateur and whose
credibility was in issue for falsely denying a conviction of his own for the theft
of alcohol. There being no statutory right of appeal, certiorari was invoked in an
attempt to argue that there was no jurisdiction to convict a person on unsupport-
able evidence. According to Lord Sumner, however, as long as the magistrate had
jurisdiction to entertain the matter, it was erroneous to suggest that to convict
without evidence is to act without jurisdiction:

. . . if his jurisdiction to entertain the charge is not open to impeachment, his subse-
quent error, however grave, is a wrong exercise of jurisdiction which he has, and not a
usurpation of a jurisdiction which he has not.31

Although there were some indications that the strictness of this approach might
have been confined to inferior courts, rather than administrative bodies,32 it was
ultimately apparent that it applied to both.33
As the prerogative writs extended to administrative bodies established by
parliament, it was possible for jurisdictional error to result from an incorrect
interpretation of statutory provisions conferring power. Although in one sense,
this might have allowed for review of the facts and evidence, the remedy was
237
THE ‘NO EVIDENCE’ RULE


confined, in jurisdictional terms, to what are generally referred to as ‘jurisdic-
tional facts’; that is, facts or circumstances clearly specified by the legislature as
conditioning the exercise of the power conferred, so that a wrong finding as to
their existence constitutes jurisdictional error.34 So, if a statute provides that if
‘A’ exists the decision maker may grant a licence, the existence or otherwise of
the fact or matter which constitutes ‘A’ is directly examinable by way of judicial
review.
Whilst conventional notions of jurisdictional error did not permit a re-
examination of the facts and evidence before the decision maker, the jurisdic-
tional fact doctrine is based on the rationale that the existence of ‘A’ is a question
of law because it determines whether the decision maker has jurisdiction to exer-
cise the power entrusted to it. In that way, the theory could accommodate the
apparent review of facts whilst remaining true to the basic position that, once it
was shown that the decision maker was correctly seized of jurisdiction, judicial
interference in its subsequent treatment of the evidence was unlikely.
Craig has described this as the natural result of the commencement theory of
jurisdictional error35 and it was a position which endured, at least in formal terms,
until the House of Lords in Anisminic Ltd v Foreign Compensation Commission36
gave judicial recognition to a broader notion of jurisdictional error in recognising
that a body correctly seized of jurisdiction may nonetheless subsequently exceed
jurisdiction in the process of reaching a decision.
Jurisdictional error aside, however, prerogative writ procedure had always
contained the potential for an alternative means of examining the adequacy
of evidence before the decision maker. The possibility lay within the writ of
certiorari which, apart from correcting jurisdictional error, also corrects errors
of law on the face of the record. Whilst this particular use of the writ had fallen
into disuse in the late nineteenth century, it was revived by the Court of Appeal
in Re Northumberland Compensation Appeal Tribunal; ex parte Shaw.37
Of course, the error must be a legal, rather than a factual, error, although it
need not be one of such magnitude as to amount to jurisdictional error.38 So,
despite the narrow formalism of Nat Bell Liquors Ltd, certiorari for error of law
on the face of the record offered a means of traversing restrictions inherent in
the traditional concept of jurisdictional error. It thereby provided an alternative
avenue for possible judicial examination of the adequacy of facts and evidence
upon which a decision was based. The manner in which this was possible was
explained by the House of Lords in Armah v Government of Ghana.39 In that
case, the question was whether a magistrate had correctly committed a person
for trial where the statute required the evidence to raise ‘a strong or probable
presumption’ that an offence had been committed. Ultimately, the majority found
that the magistrate had applied the wrong test, mistakenly taken from an earlier,
differently worded provision of the statute. In other words, the wrong question
had been posed at the outset, thus resulting in jurisdictional error. Accordingly, it
was not strictly necessary to consider whether, if the correct test had been applied,
there was, nonetheless, evidence which would support a decision to commit for
238 AUSTRALIAN ADMINISTRATIVE LAW


trial. Nonetheless, Lords Reid and Upjohn issued a reminder that interference
by way of certiorari was not confined to jurisdictional matters but extended to
errors of law on the face of the record. Lord Upjohn pointed out that the existence
or otherwise of evidence to justify a finding was a question of law.40 Lord Reid
noted that, if the depositions in a committal hearing were part of the record,
there would be an error of law on the face of the record if they were insufficient
to support the committal.41
Ultimately, the effectiveness of certiorari for error of law on the face of the
record as a means of examining evidentiary findings depends largely on how
widely review courts are prepared to define ‘the record’.42 Obviously, a broad
approach increases the available material from which potential errors of law
can be identified although, in Australia at least, the High Court has rejected an
expansionist approach in defining ‘the record’. So, for instance, in the absence
of legislation to the contrary, the record of an inferior court will not ordinarily
include the transcript, exhibits or the reasons for decision43 unless they have been
incorporated by reference.44 In the case of tribunals, the reasons for decision and
the complete transcript of proceedings will not ordinarily be taken as constituting
the record.45


Developments under English law
English courts have managed to develop a more relaxed approach to judicial
review and ‘no evidence’ than their counterparts in Australia. As Mason CJ
explained in Australian Broadcasting Tribunal v Bond, the difference is that
English law regards ‘insufficiency of evidence’ as a basis for judicial interven-
tion, whereas Australian courts have formally adhered to the stricter, ‘complete
absence of evidence’ approach.46 The House of Lords decision in Anisminic Lim-
ited v Foreign Compensation Commission47 is responsible in some measure for
the broader approach. As indicated earlier, by expanding the concept of juris-
dictional error, the position was ultimately reached under English law where no
distinction remains between jurisdictional and non-jurisdictional errors of law48
except, possibly, where a privative clause expressly ousts the writ of certiorari
for error of law on the face of the record.49 Under Australian law by contrast, the
distinction between jurisdictional and non-jurisdictional errors of law remains,
at least in the case of inferior courts.50
In other respects, the ‘insufficiency of evidence’ position under English law is
often linked with a series of cases involving local authority regulation of hous-
ing and compulsory acquisition of which the Court of Appeal decision in Ash-
bridge Investments Limited v Minister of Housing and Local Government51 is usually
regarded as representative. There, the court sanctioned a trial judge’s interfer-
ence with a ministerial determination made under legislation which required
the minister to decide that a particular dwelling constituted a ‘house’ satisfying
the description of ‘unfit for human habitation’. Lord Denning said that the trial
judge was justified in setting aside a decision of this nature, not only where the
239
THE ‘NO EVIDENCE’ RULE


minister had acted on ‘no evidence’ but also where he had reached a conclusion
which could not be ‘reasonably sustained on the evidence’.52 Although the case
involved a statutory appeal, rather than judicial review, the court’s reasoning
made it obvious that this was regarded as an issue going to the jurisdiction of
the minister,53 an approach which was confirmed in subsequent decisions of a
similar nature.54
In more recent times, English law has moved further in accepting the idea that
a factual mistake in the evidence may, in itself, be a basis for judicial review.55 For
example, in R v Criminal Injuries Compensation Board; ex parte A56 the House of
Lords indicated that mistake or ignorance of a relevant fact could constitute a basis
for judicial review in relation to unfairness or natural justice57 and subsequently,
in E v Secretary of State for the Home Department,58 the Court of Appeal took a
broader, systematic approach to judicial review for factual error. Whilst generally
agreeing with the decision in ex parte A that factual error may be reviewable in
relation to unfairness, Carnwath LJ suggested four requirements for establishing
mistake of fact as a basis of judicial review: (i) that the mistake was a mistake
as to an existing fact, including the availability of evidence, (ii) that the fact or
evidence was objectively verifiable and uncontentious, (iii) that the applicant for
review was not responsible for the mistake and (iv) that the mistake played a
material, although not necessarily decisive, part in the decision.59
In E, decisions by an immigration appeal tribunal rejecting refugee status were
shown to be based, in part, on factual assumptions which were later shown to be
wrong60 and the issue on appeal was whether or not the tribunal had erred in
law by not admitting relevant evidence (reports which showed the incorrectness
of the tribunal’s assumptions). The case proceeded by way of appeal, rather than
judicial review, although it was clear that the court considered that there would
be no material difference as to the manner in which the point of law was treated.61
Craig considers that the systematic approach taken in E provides useful guid-
ance for future development.62 Whilst the case raises distinct and difficult issues
about the role of judicial review in relation to evidence which was not available to
the decision maker,63 he nonetheless considers that it generally paves the way for
a uniform approach to judicial intervention on the basis of mistake of fact which,
at the same time, avoids limitations implicit in the narrow approach which con-
fines review to ‘jurisdictional facts’ or to the situation where the disputed fact is
the only evidence on which the decision was based.64


The Australian common law position
As indicated earlier, unlike the direction taken by their English counterparts,65
Australian courts have been more circumspect in recognising the ‘no evidence’
rule as an independent ground of judicial review and in that respect appear to
be far more reluctant to move beyond the traditional approach of confining ‘no
evidence’ within the realm of the jurisdictional fact doctrine. The High Court
decision in Parisienne Basket Shoes Pty Ltd v Whyte66 is a landmark illustration of
240 AUSTRALIAN ADMINISTRATIVE LAW


a theme which has changed little in subsequent years. The issue in that case was
whether or not documents necessary for activating a prosecution were properly
laid before justices within the time specified by the legislation. This depended on
ascertaining when the offence was actually deemed to have occurred.67 According
to the High Court, this was an issue of fact reserved for the justices, rather than
a condition precedent to the valid exercise of their jurisdiction.68 That meant
that the lack or otherwise of evidence on which their decision was based was not
reviewable. Dixon J stated that the existence of facts upon which a decision is
based will always be a matter for the decision maker, except where the legislature
had specified that they constitute the condition upon which the existence of
jurisdiction depends.69
The same kind of reasoning is evident in R v Australian Stevedoring Industry
Board; Ex parte Melbourne Stevedoring Co Pty Ltd70 except that, in this instance,
judicial intervention was possible because the relevant facts were seen as juris-
dictional facts, conditioning the board’s power to act. The legislation in that case
allowed the board to make an inquiry and to cancel or suspend the registration
of an employer of waterside workers where it was satisfied that the employer was
unfit to continue. After the board had commenced its inquiry, the High Court
granted prohibition. At that point, the evidence before the Board amounted to
little more than minor record-keeping infractions by the employer concerning
stevedore attendance records. Although the decision can be explained in a num-
ber of different ways,71 at the centre of the High Court’s reasoning was the fun-
damental distinction between

a mere insufficiency of evidence or other material to support a conclusion of fact when
the function of finding the fact has been committed to the Tribunal and on the other
hand, . . . the absence of any foundation in fact for the fulfilment of the conditions upon
which in point of law the existence of the power depends.72

According to this reasoning, the legislature contemplated ‘unfitness’ to mean
deficiencies of a certain magnitude in relation to stevedoring operations rather
than the relatively minor or trivial type of infractions which the board had relied
on to initiate its inquiry. In other words, the board had proceeded on the basis of
facts which did not fall within what the legislation contemplated as sufficient to
invoke its inquiry power.
The High Court decision in Sinclair v Mining Warden at Maryborough73 is
probably the first indication of a greater willingness on the part of the High
Court to embrace the idea that an absence of evidence could constitute an inde-
pendent basis of judicial review outside the jurisdictional fact doctrine.74 The
legislation in that case allowed a mining warden to recommend to the minister
that an application for a mining lease be granted or refused; however, the statute
provided that the warden was to recommend refusal if he was of the opinion that
the public interest would be prejudicially affected by the grant of a lease.
In the course of reaching a decision to recommend the grant of a lease, the
warden refused to take account of an objection put forward by the applicant on
241
THE ‘NO EVIDENCE’ RULE


behalf of an environmental group. The refusal was based on the view that the
objection simply represented the group’s own view and could not therefore be
considered as representing the interests of the public, which the statute required.
In the result, the High Court ruled that the warden had misunderstood the legal
test to be applied – the fact that the appellant represented only a section of the
public did not automatically mean that the interests of the public as a whole
would not be prejudicially affected.
More to the point however, three of the four judges made it clear that the
exercise of the warden’s power required depended on more than simply finding
that the formal requirements of a lease application were met. Barwick CJ (with
whom Murphy J agreed) pointed out that in two of the areas of land relating to
the lease application, there was no evidence at all of the presence of minerals
and no evidence to suggest that a mining lease was nonetheless necessary for
the proper discharge of mining operations in other areas. In other words, there
was no evidence upon which the warden’s power to make a recommendation
could have properly been exercised.75 Sinclair thus indicates that an absence of
evidence, in itself, will allow for judicial review, but as subsequent decisions have
indicated this does not extend to a mere insufficiency of evidence.76


‘No evidence’ and other grounds of review
Wilcox J observed in Television Capricornia Pty Ltd v Australian Broadcasting
Tribunal77 that it is possible for ‘no evidence’ to be treated as an aspect of some
other ground of judicial review where the challenge centres on the absence of
facts or evidence before the decision maker.78
In one sense, of course, it can be said that the most obvious and direct example
is found in the jurisdictional fact doctrine79 which, as indicated earlier, operates
where the legislature has indicated that the exercise of a power is made condi-
tional on the existence of a specified fact or matter. In other words, the existence
or otherwise of that fact or matter is directly examinable for possible jurisdic-
tional error. However, the jurisdictional fact doctrine does not permit review of
the general facts and evidence before a decision maker who is otherwise properly
seized of jurisdiction.
In other respects, an absence of evidence to support a decision may result
in a breach of the rules of natural justice, which, at the same time, may also
constitute jurisdictional error.80 A breach of natural justice or procedural fairness
may arise, for instance, where a decision maker refuses to admit or listen to
relevant material81 or bases a decision on material falling short of what can be
described as logically probative evidence.82 For example, in Mahon v Air New
Zealand,83 a Royal Commission had investigated the causes of an airline crash.
At the end of the inquiry, the Commissioner made a finding that senior airline
officials had deliberately destroyed or concealed relevant documents as part of
a pre-determined plan of deception, referring to one official as the ‘orchestrator
of a litany of lies’.84 As the Privy Council explained, the rules of natural justice
242 AUSTRALIAN ADMINISTRATIVE LAW


required a finding of this nature to be based on evidence of probative value
which logically demonstrated the existence of the facts relied on. In that respect,
whilst the evidence indicated that some witnesses provided false testimony to
the inquiry,85 the Commissioner’s finding of an organised plan of deception by
officials was found to be based upon a misunderstanding of the manner in which
they had collected and recorded evidence. Once the Commissioner had formed
a preliminary view that such a finding was warranted, he was bound to advise
persons likely to be adversely affected and provide them with an opportunity to
address relevant matters so as to ensure that he was thus able to proceed on all
available and relevant material.86
As explained earlier developments under English law have linked mistake of
fact with unfairness. In R v Criminal Injuries Compensation Board; ex parte A87
the House of Lords indicated that judicial review based on unfairness or a breach
of natural justice was possible where mistake or ignorance of a relevant fact was
involved,88 a stance which Craig has explained fits generally within the general
nature of English law’s judicial review for ‘illegality’.89
Beyond this, the exclusion of factually relevant material may mean that a
relevant consideration has been ignored, resulting in a failure to comply with
statutory requirements in reaching a decision.90 More controversially, if a process
of fact finding can be described as having proceeded in an ‘obviously perverse
manner’, Wednesbury unreasonableness may apply.91 Indeed, recent suggestions
from the High Court indicate that, under Australian law, ‘manifest illogicality or
irrationality’ may, in itself, become a recognised basis for judicial interference in
the fact finding process.92



Statutory regimes of judicial review and ‘no
evidence’ rule – the ‘ADJR Act system’

Some jurisdictions have established statutory regimes of judicial review which
expressly incorporate a ‘no evidence’ rule.93 In Australia, the Administrative Deci-
sions (Judicial Review) Act 1977 (Cth) (ADJR Act) establishes a system of judicial
review for administrative decisions taken under federal law. The ‘ADJR Act sys-
tem’ has been replicated in a number of other Australian jurisdictions.94 It does
not supplant the pre-existing common law-based procedures but provides a sim-
plified method of judicial review for administrative decisions made pursuant to
statutory authority.95 Review is available on any one or more of a number of
specified grounds, which generally reflect the recognised common law grounds
of judicial review.96 One of these grounds provides for review where ‘there was
no evidence or other material to justify the making of the decision’.97
At the very least, the inclusion of a ‘no evidence’ ground was an acknowledge-
ment that Australian common law recognised that an absence of evidence to sup-
port a decision constitutes an error of law, although the statutory ‘no evidence’
243
THE ‘NO EVIDENCE’ RULE


ground is qualified by reference to specific matters which must be established
before the rule can operate.98
A notable feature of the ADJR Act is that as well as the inclusion of a specific
‘no evidence’ ground, a general ‘error of law’ ground was also included.99 The
architects of the ADJR Act were no doubt well aware that an ‘error of law’ ground
was capable of encompassing ‘no evidence’ situations, having regard to the com-
mon law position. The reason for including both seems to have been driven by a
concern that an unrestricted ‘no evidence’ ground could be unnecessarily disrup-
tive given that, for the most part, administrative decision-making was based on
the exercise of discretionary powers where legally admissible evidence was not
necessary.100 There was also a related apprehension about the extent to which
an unrestricted ‘no evidence’ ground might invite courts to stray into the merits
of administrative decision-making under the guise of judicial review.101
In the result, the recommendation was for the specific ‘no evidence’ ground to
operate in two situations: firstly, where the decision maker relied on the existence
of a particular matter for which no evidence in support could be reasonably
demonstrated; and secondly, where a fact which conditioned the valid exercise
of a decision was shown not to exist.102


The specific ‘no evidence’ ground in s5(1)(h)
In its final form, the specific ‘no evidence’ ground in section 5(1)(h) of the ADJR
Act provides a ground of review on the basis that ‘there was no evidence or other
material to justify the making of the decision’.
The two situations which qualify the ‘no evidence’ ground are spelt out in
s5(3) which provides:

The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a) the person who made the decision was required by law to reach that decision only
if a particular matter was established, and there was no evidence or other material
(including facts of which he or she was entitled to take notice) from which he or
she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular
fact, and that fact did not exist.

The Explanatory Memorandum attached to the Bill for the ADJR Act103 stated
that the ‘no evidence’ ground was intended to embody the basis of the decision
of the House of Lords in Secretary of State for Education and Science v Tameside
Metropolitan Borough Council.104 That case dealt with the exercise of a statutory
power by the Secretary of State to give a local authority a direction if satisfied
that the authority was acting unreasonably. The Secretary of State had directed
the local authority to reverse its policy of establishing a comprehensive school
system. The direction was based on the view that it would not be possible for the
local authority to implement it in time for the start of the new school year, thus
244 AUSTRALIAN ADMINISTRATIVE LAW


causing insurmountable difficulties for the parents of students. According to the
House of Lords, whilst the Secretary of State’s power was discretionary, it had to
be based on the existence of at least some evidence warranting its exercise and in
this case, there was no evidence that the local authority was acting unreasonably,
thus there was nothing to justify the direction.
It is not clear which of the two limbs of the ‘no evidence’ ground was meant to
be predicated on Tameside although it would seem that there are elements of the
decision in both. Wilcox J observed in Television Capricornia Pty Ltd v Australian
Broadcasting Tribunal105 that Tameside clearly involved a positive finding as to
the non-existence of the relevant fact, thus suggesting its relevance for the second
limb. On the other hand, Kirby J in Minister for Immigration v Rajamanikkam106
commented that a reading of Tameside made the provenance of the first limb at
once obvious.107


The general ‘error of law’ ground in s5(1)(f)
As indicated earlier, apart from a specific ‘no evidence’ ground, the ADJR Act also
includes a general ‘error of law’ ground. This is found in s5(1)(f ) of the ADJR
Act, which provides for review on the basis that ‘that the decision involved an
error of law, whether or not the error appears on the record of the decision’.


The relationship between ‘error of law’ in s5(1)(f) and
‘no evidence’ in s5(1)(h)
Given the underlying common law position that ‘no evidence’ constitutes an error
of law, the inclusion of both an ‘error of law’ ground and a ‘no evidence’ ground
raises an immediate question about their intended relationship. Did the architects
of the ADJR Act contemplate the ‘no evidence’ ground in s5(1)(h) would operate
in a self-contained manner, supplanting all pre-existing common law notions of
no evidence? Or was it assumed that there would be a measure of overlap between
the ‘no evidence’ and ‘error of law’ grounds?
There is no indication that the potential interplay of the two separate grounds
was actively considered beforehand. The first judicial comment on the issue was
made in one of the initial Federal Court decisions dealing with the provisions in
Western Television Ltd v Australian Broadcasting Tribunal.108 In that case, Pincus
J expressly rejected the idea that the ADJR Act ‘error law’ ground in s5(1)(h)
could encompass circumstances considered as falling within the particular ‘no
evidence’ ground. In his opinion, that would result in the ‘no evidence’ ground
having no practical effect.109
However, that view did not endure and a basis for ‘harmonising’ the two
grounds was subsequently explained by the High Court in Australian Broad-
casting Tribunal v Bond.110 According to Mason CJ, the preferable view was to
regard the ‘error of law’ ground in s5(1)(f ) as encompassing what was generally
understood to be within the common law ‘no evidence’ rule before the enactment
of the ADJR Act. On this view, the specific ‘no evidence’ ground in s5(1)(h) was

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