[Music] g'day everyone and welcome to the fifth and final video for week seven of our admin law course this has been a huge week but we're just about done all week we've been looking at the grounds for review we've seen that a decision is invalid if it involves an error of law if the decision maker fails to take into account relevant evidence or if they take into account irrelevant evidence a decision is invalid if there's no evidence for a key fact it's invalid if the power is used for the wrong purpose we've learned about discretionary decisions and the fact that discretionary decisions are not made properly if they're made in bad faith if they're made at the behest of another person or if they are simply the inflexible application of a policy in this final video we round out our grounds for review by talking about wednesday unreasonableness and uncertainty now from the very start of this course we made the distinction between legal review and merits review legal review asks whether a decision was made properly in accordance with the rules and merits review asks whether the decision was any good and since then we've really only talked about legal review because the common law and the adjr act only apply to legal review so the courts are not interested in trying to decide whether a decision was any good they're interested in deciding whether a decision was properly made thing is it's possible for a decision to be so bad on the merits so completely out there on the merits that the decision amounts to an error in law if a decision is so bad that there must be an error in process sitting somewhere underneath it it makes sense for this to be considered as an error of law an error in the way the decision was made because the rationale is that if any sensible process had been followed well the decision could never have been made the formulation for this comes from a case called the weddensburg corporation against associated provincial picture houses a decision is bad in law if it is so unreasonable that no reasonable decision maker could have made the decision the adjr act uses almost exactly those same words section 52g says that a decision is bad in law if it isn't if it is an exercise of power so unreasonable that no reasonable person could have so exercised the power now let's look really carefully at those words it has to be so unreasonable that no reasonable person could have so exercised to power it is utterly extreme in the weddensbury case itself a case which revolved around the validity of a council rule that a cinema could not admit children under 15 on sundays the plaintiff failed on virtually every occasion when the matter has been raised before the court it has failed the most well-known attempt in australia is a high court matter named the minister for immigration against ishitu mr ishitu was an asylum seeker who had escaped from ethiopia his evidence was that he had been part of a student protest movement against the government and that he had been arrested and beaten as a result of his protest activities his asylum claim was refused and he claimed and the full court of the federal court accepted that the department had not properly turned its mind to the circumstances of his arrest and imprisonment the high court however disagreed justices gleason and mchugh famously said someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as illogical or unreasonable or even so unreasonable that no reasonable person could adopt it if these are merely emphatic ways of saying that the reasoning is wrong then they may have no particular legal consequence so there has to be an actual flaw in logic not just severe disagreement so we're left wondering what would reach the threshold of weddensbury unreasonableness it would really have to be out there the best made up example i can come up with is if a decision maker rejected an application because it was friday and they always rejected every application they received on a friday that'd be weddensbury unreasonable if a plane took off from queensland flew over papua new guinea and then returned to queensland and the pilot was placed in quarantine on the basis that she had been overseas that had come close to being wednesday unreasonable but the moment that there's any logic at all any logic whatsoever supporting a decision wherein spring unreasonableness becomes difficult to identify in all likelihood if wednesbury unreasonable decisions are made they're probably not going to get to court it's much more likely that an internal review of the decision within the department will result in the decision being turned around so in your assessments and in your actual practice don't jump in to claim weddings be unreasonableness for some reason students love claiming weddensbury unreasonableness but it's almost never seen in the wild a decision is wednesday unreasonable if it is so unreasonable that no reasonable decision maker could have made the decision now at last we come to our final ground for review uncertainty section 52h of the adjr act says that an exercise of power is invalid if it occurs in such a way that the result of the exercise of power is uncertain now you've already met this concept of uncertainty when you did contract law at law something is uncertain if no reasonable meaning can be attached to the words or if some crucial aspect of the decision is left out a made-up example might help here imagine if a commercial fisher obtained a fishing licence and the fishing license said commercial fishing activities under this licence are limited to the area prescribed in the schedule to the licence now that kind of makes enough sense a regulator might well want to say you can fish here but you can't fish there but now let's imagine that through some oversight no schedule actually gets attached in that situation the power would be uncertain wouldn't it it wouldn't actually be clear at all what the fisher was entitled to do and what they weren't entitled to do a really instructive example of uncertainty in action comes from a case called ballarat broadcasters against the australian broadcasting tribunal in that case the tribunal wanted to increase the amount of australian music being played by radio straight by radio stations right across australia they issued a decision to all radio stations that said although incentives will not be offered for the broadcasting of new recordings new independent material and new station originated music which the tribunal wishes to encourage it proposes that license renewal to request stations to supply evidence that they have used a significant amount of this material if stations cannot demonstrate the use of this material conditions may then be placed on a licence in order to encourage the use of new releases new independent recordings and station produced material depending on the relevance of this material to the station's format ballarat broadcasters felt this decision was completely uncertain the court summarised their concerns like this are they required to broadcast new recordings new independent material and station originated music or are they not if they fail to broadcast such material will they be under threat with respect to the renewal of their licences or under threat of the imposition of some special condition what is a significant amount of such material does the material have relevance to the particular format adopted by each applicant can you see that while the tribunal's heart was clearly in the right place no radio station could look at the decision and actually understand their obligation the decision was uncertain okay now this has been a huge week of material we've looked at a heap of different grounds for review over the last three weeks we know that decisions are invalid if natural justice is not given to anyone whose rights interests or legitimate expectations will be affected we know the decision is invalid if it's not authorised by an enactment if the wrong person makes the decision or if some process or precondition has to exist before the decision-making power comes into effect but that condition doesn't actually exist we know the decision is invalid if there's an error of law we know it's invalid if there's no evidence of a key fact or if the decision maker either ignores relevant evidence or considers irrelevant evidence we know the decision is invalid if it's made for an improper purpose we know that discretionary decisions are invalid if they're made in bad faith or if they're made at the behest of another person or if they're simply an inflexible application of policy without considering the individual circumstances we know decisions are invalid if they are so unreasonable that no reasonable decision maker could have made the decision and we know decisions are invalid if they are uncertain those are the grounds on which we can challenge the lawfulness of a decision but if we're successful what happens then that's what we're going to turn to next week we're going to look at remedies under the common law at equity and under the adjr act for now congratulations on surviving week 7 watch these videos over and over the week 7 videos are the heart of the course it's all downhill from here