Wednesbury unreasonableness is a legal principle in English and Australian law. It sets the standard for reviewing the reasonableness of decisions made by public authorities.

In the U.S.A., the Chevron doctrine required courts to give deference to agency interpretations of ambiguous statutes. The (U.S.A.) Supreme Court overturned the Chevron doctrine in June 2024.

In Loper Bright Enterprises v. Raimondo, the Supreme Court cut back on the power of federal agencies to interpret the laws they administer. In essence, this decision changes how courts review agency interpretations of statutes in the U.S.A. The decision now requires courts to use their independent judgment to determine whether an agency has acted within its statutory authority.

In an English case, Associated Provincial Picture Houses v. Wednesbury Corporation (1948), the court holds that a decision of a public authority can be overturned on judicial review…

If it’s so unreasonable that no sensible person who had applied their mind to the question could have arrived at it.

This is a stricter test than just showing that a decision was unreasonable. It must be so unreasonable that it defies logic or accepted moral standards.

‘Wednesbury unreasonableness’ in Queensland

The equivalent principle in Queensland and in Australia generally would likely be the ‘Wednesbury unreasonableness’, where courts review administrative decisions.

In Queensland, this principle is often applied when reviewing decisions made by public authorities, such as Queensland Department of Transport and Main Roads(TMR), and the State Penalties Enforcement Registry(SPER).

So if you think a decision made by TMR or SPER is so unreasonable that it meets this test, you can potentially challenge it in court.

The concept of Wednesbury unreasonableness is deeply embedded in Australian administrative law. Over the years, there have been numerous cases where this principle has been applied or discussed.

There’s a recent move towards a new concept of “legal unreasonableness” in Australia (refer University of New South Wales Law Journal). It’s a development from the Wednesbury unreasonableness test.

The High Court deals with this principle in a number of decisions, including in Abebe v Commonwealth, a case around the Migration Act 1958 and the role of Wednesbury unreasonableness in immigration law.

Procedural Fairness

There’s a concept in law known as ‘procedural fairness’. When an authority makes a decision that affects someone’s rights, interests or legitimate expectations, they must follow a fair process. This includes giving the person affected an opportunity to present their case, and to consider their submissions.

If a Government Agency makes a claim against you without providing any evidence, and without giving you an opportunity to respond, this could potentially be seen as a breach of procedural fairness.

Of course, every case is different. You’d need to get specific legal advice to understand how these principles might apply in your situation.

Wednesbury unreasonableness has been applied and discussed in many cases over the years, both in the UK where it originated, and in other common law jurisdictions like Australia.

Courts in some countries are now exploring a more stringent test of “super-Wednesbury unreasonableness”. Or a move towards a concept of “accountability for reasonableness”.

This reflects courts grappling with how to balance the need for government agencies to be able to make decisions efficiently, while holding them accountable, ensuring they act fairly.

Wednesbury Unreasonableness Court Cases

Several recent cases from Australia and the UK touch on Wednesbury unreasonableness in the context of government decision-making or finance:

  • Minister for Immigration and Border Protection v SZVFW (2018): This High Court case in Australia dealt with a decision to refuse a protection visa. The court discussed the concept of legal unreasonableness and how it relates to Wednesbury unreasonableness.
  • Prudential Assurance Company Ltd v HMRC (2018), involving tax law. The Supreme Court considered the issue of how much deference courts should give to the decisions of specialist tribunals, and discussed the relevance of Wednesbury unreasonableness.
  • Friends of Leadbeater’s Possum Inc v VicForests (2020): This Federal Court case in Australia dealt with the issue of sustainable forestry.

Though the UK Post Office scandal was a serious miscarriage of justice, Wednesbury unreasonableness might not have been raised in this case because:

  1. Subpostmasters were prosecuted under criminal law, not administrative law. Wednesbury unreasonableness is primarily a concept from administrative law, rather than criminal.
  2. The scandal involved a failure of the Post Office’s computer system, which might not have been seen as a decision that could be reviewed under the principles of Wednesbury unreasonableness.
  3. Subpostmasters were eventually cleared. The Post Office has since apologized and the government launched an inquiry into the scandal.

Silence From Government Agencies

The issue of government officials failing to respond to concerns or address specific issues is a common frustration for many people. Whether or not this amounts to Wednesbury unreasonableness depends on specific circumstances.

Since Wednesbury unreasonableness applies to the decisions made by public authorities, it’s not to the general conduct or responsiveness of individual officials.

So if an MP or minister fails to reply to a concern, causing frustration, it might not be a decision that can be challenged under the principles of Wednesbury unreasonableness.

However, there are other legal principles and mechanisms we can use to hold government officials accountable for their conduct.

In Australia, there’s the Administrative Decisions (Judicial Review) Act 1977. This provides a mechanism for people to challenge decisions made by public officials if they believe those decisions were made unlawfully, unfairly, or unreasonably. So you can apply to the Federal Court to have the decision reviewed.

It’s important to note that the review is limited to questions of law. The court won’t consider whether the decision was the best possible decision, but rather whether it was made in accordance with the law.

Judicial Review

The NSW equivalent of the ADJR Act is the Administrative Decisions Review Act 1997 (NSW).

In Queensland, the Judicial Review Act 1991 (Qld) provides for people to challenge the legality of government decisions in court:

  • Allows people to apply to the Supreme Court for a review of a government decision on the grounds that it was made unlawfully, unfairly, or unreasonably.
  • Covers a wide range of decisions made by government agencies, including decisions about licensing, planning, and environmental approvals.
  • Sets out the grounds on which a decision can be challenged, including things like a breach of natural justice, a failure to follow proper procedures, or a lack of jurisdiction.
  • Gives the Supreme Court the power to make orders to remedy any problems with the decision, such as setting aside the decision or ordering the government agency to make a new decision.

Overall, the Judicial Review Act 1991 (Qld) is a powerful tool for holding government agencies accountable and ensuring that they act fairly and lawfully.

Grounds of Review

Under Judicial Review Act 1991 (Qld) section 20, you can apply to the Supreme Court for a review of a government decision on the grounds that the decision was “so unreasonable that no reasonable person could have made it“.

This is essentially a codification of the Wednesbury unreasonableness doctrine. Here are several grounds under the Judicial Review Act that people have challenged decisions:

  • ⁠Breach of natural justice. Government decisions on the grounds that they were not given a fair hearing or that the decision-maker was biased.
  • ⁠Failure to follow proper procedures. Government agency didn’t follow correct procedures when making the decision. Such as failing to give proper notice or consult with affected parties.
  • ⁠Lack of jurisdiction.  The government agency did not have the legal power to make the decision in the first place.
  • Error of law. The decision-maker made a mistake in interpreting the law or applying it to the facts of the case.
  • Unreasonableness: Unreasonable behaviour by a government agency may include:
    • a decision not supported by any evidence or reasoning, or
    • if they refuse to engage with a person who is trying to challenge the decision.

In a judicial review application, Courts look at all the circumstances of the case. They determine whether the government agency’s conduct was so unreasonable that no reasonable person could have made the decision.

A Decision of Wednesbury Unreasonableness?

The success of a judicial review application depends on specific facts and circumstances of the case. If the court finds that the decision was indeed unreasonable, it can make orders to remedy the situation… Such as setting aside the decision or ordering the government agency to reconsider the matter.

When a court’s deciding whether a decision is Wednesbury unreasonable, they’re looking at a range of factors, including:

  • Evidence and reasoning that the government agency relied on to make the decision
  • Seriousness of the decision and the impact it has on the person challenging it
  • Context in which the decision was made, including any relevant policies or guidelines
  • ⁠Whether the decision is consistent with the overall purpose of the legislation

There’s definitely an element of judgment involved, and different judges might reach different conclusions about what’s reasonable.

Ultimately, it’s just a matter of opinion. A court has to give reasons for its decision. Those reasons have to be based on the evidence and the law.